author: Hildebrant, J.

text:
    Gulla, Appellant, v. Reynolds et al., Appellees.
    (No. 6919
    Decided March 22, 1948.)

      Messrs. Qinocchio <& GinoccMo, for appellant.

      Mr. Robert G. McIntosh, for appellees.
   Hildebrant, J.

Plaintiff recovered a judgment against the nonowner driver of a truck, based on his negligent operation thereof.

In a supplemental petition filed by virtue of Section 9510-4, General Code, lie now claims the owner’s liability insurance policy, by the terms of its so-called omnibus clause, extended coverage to the driver of the truck. The defendant company contends that the circumstances of this case fail to bring the driver within the terms of the policy.

The so-called omnibus clause reads:

“The unqualified word ‘insured’ wherever used in coverages A and B and in either parts of this policy, when applicable to such coverages, includes the named insured and, except where specifically stated to the contrary, also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is with the permission of the named insured.”

The facts are: On the day of the accident the driver, who was known to the owner, contacted him at his furniture store, seeking casual employment. The owner employed him to make a delivery of furniture and put him in possession of the truck by giving him a note to present at the parking lot a block away where the truck was stationed. He also hired as helper a woman companion of the driver, and together they made the delivery and returned to the store in approximately an hour. The owner paid them and the employment then and there terminated, and there is nothing in the record to show that the driver was to do anything further with the truck. Shortly thereafter, and while still on the.premises, and at approximately three p. m., although conflicting testimony fixes the time up to five p. m., the driver bought a small item of furniture and requested permission of the owner to deliver it in the truck to the home of his helper, which was only a little more than a block distant from the store. The owner granted that permission and testified:

“A. # # * he asked if he conld deliver the baby bed to his house a block away, and I said he could and deliver the truck to a truck place which was a block from his place and block from my store.

“A. Between two-thirty and three o’clock in the afternoon.

“Q. Did you go to the parking lot to find out if he ever returned the truck? A. No I didn’t.

“Q. Do you know if truck ever returned .to the parking lot? . A. No-, it was not returned.

“Q. Did he have any other jobs to do for you that night? A. None.

# ^

“Q. He asked if he could deliver this bed to Fourteenth and Main. A. Yes.

“Q. As soon as he did that you instructed him to take your truck to the parking lot on Walnut street?' A. That’s right.

* * * # # #

“Q. Did he make delivery? A. Yes, made delivery in perhaps three-quarters of .an hour;' brought the truck back to the store and made purchase of the baby bed and asked if he could use the truck to take it to the house and then he would take it to the parking lot.

* # # # #

“Q. Then you gave him permission to use the truck? A. Yes; he could have carried it but he asked if he could use the truck and I said he could.

“Mr. McIntosh: From there he was to take the truck to the lot? A. Yes.

“Q. That was the extent of your promise as to using the truck? A. Absolutely.

“Q. You gave him no permission to ride around'in it or for any other purpose? A. No.

“Mr. Ginocchio: Mr. Straus, did you issue positive orders to him, telling him — don’t do this or that; or— don’t drive here or drive there? A. Well, as I say, my gasoline allotment was very small; I certainly would have objected. I told him to take the truck to the lot after delivering the baby bed.

“Q. No, I guess you didn’t understand my question; Did you expressly tell him — don’t use the truck for» any other purpose but delivering that? A. My express instructions were to take the truck to the parking lot after delivering the baby bed.

“Q. State what you told him with reference to taking the truck. A. So far as I know, I did n,ot tell him he could not take that truck on a pleasure trip, but it certainly was understood.

‘ ‘ The Court: That was when you gave him instructions to take the truck from your store with the baby bed? A. Yes I did.

“The Court: Did that control you in your idea of letting him use it? A. Yes.

“The Court.: Because it was a very short distance? A. That is right.”

The record further shows that gasoline rationing was in effect at the time and the owner accordingly was concerned with limiting the use of his truck. The * accident happened shortly after eight p. m., that evening.

The trial court,, without the intervention of a jury, found as a fact that the actual use of the truck by the ■driver in this case at the time of the accident was not with permission of the named assured; indeed, that its use was in violation of Section 12619, General Code, and entered judgment for the defendant,

There are many decisions construing and applying permissive use provisions in liability insurance policies. These authorities divide into generally two doctrines. The so-called minority rule, developed in .construing the older policies, where the phraseology was “use with permission,” was that where permission, express or implied, was given by the owner to use the car in the first instance, such use was covered by the policy, even though the person using the car may have put it to a use far beyond that contemplated by the owner at the time permission to use was given. This doctrine was softened somewhat by those cases holding coverage to be extended when the deviation from the contemplated use was slight as distinguished from a deviation of great extent. This doctrine was criticized as providing a rule necessarily variable and uncertain.

Authorities holding the above are: Dickinson, Admr., v. Maryland Casualty Co., 101 Conn., 369, 125 A., 866, 41 A. L. R., 500; Stovall v. New York Indemnity Co., 157 Tenn., 301, 8 8. W. (2d), 473, 72 A. L. R., 1368.

The other, or majority doctrine, is that permission by the owner to the use of his car by another includes only such use as was reasonably contemplated by the owner, as shown by the circumstances, and that while, even under this doctrine, a slight deviation would not necessarily exclude coverage, yet a use by the operator outside the scope of the owner’s contemplated permission excludes such use from being the permitted pse within the terms of the policy.

Authorities in line with the above are: Frederiksen v. Employers’ Liability Assur. Corp., Limited, 26 F. (2d), 76; Trotter v. Union Indemnity Co., 35 F. (2d), 104; Laroche v. Farm Bureau Mutl. Automobile Ins. Co., 335 Pa., 478, 7 A. (2d), 361. Extensive annotations on this subject are contained in 72 A. L. R., 1398, and 106 A. L. R., 1253.

In more recent policies, and apparently to escape the so-called minority rule above referred to, the phraseology has been changed to “actual use” with permission, etc. In 7 Appleman on Insurance Law and* Practice, 132, Casualty Insurance, Section 4354, it is •stated:

“The term ‘actual use’, as employed in the present policy, was drafted to confine the coverage to -situations where the employment made of the vehicle at the time of the accident was within the scope of the permission granted.”

It seems logical to this court that the term “actual use” be construed as referable to the. use being made -of the car at the time and place of the accident and if that be outside the reasonable scope of the permission granted to hold that coverage is not extended to the •driver. See 2 Words and Phrases (Perm. Ed.), 1947 Cumulative Annual Pocket Part, at page 54.

The judicial struggling to formulate a rule- may be •accounted for by reason of this being a factual question and the qases show an infinite variety of • cir-cumstanees.

Here, the permission was explicit, and while no affirmative instructions against other use were given, yet all implications to be drawn from the circumstances tend toward definite limitation to make delivery but little more than one block away, as to distance, and return the truck directly and immediately to the , parking lot as to time.

Some three hours later and beyond the area necessary to the contemplated use and beyond the scope of the purpose for which the driver was in possession and •outside the right of user, and we agree with the trial court, even outside the pale of the law, making it an •offense to operate a motor vehicle without the consent ■of the owner, this accident occurred.

We, therefore, hold that the actual use by the driver here was not with, permission of the named assured, -within the terms of the policy.

The judgment of the Court of Common Pleas is. affirmed.

Judgrne'n~t affirmed.

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


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Rahn, Appellant, v. Kissel, Exr., Appellee.
    (No. 6924
    Decided March 8, 1948.)

      Mr. Judson A. Shuey, for appellant.

      Messrs. Bates, Skirvin <& Varnau, for appellee.
   By the Court.

The -trial court sustained a demurrer to the plaintiff’s fourth amended petition, and the-plaintiff not desiring to plead further, the court entered judgment for the defendant. The plaintiff appealed from that-judgment.

The petition purports to state two causes of action.

In the first cause of action, it is alleged that the-plaintiff performed services, between 1914 and 1918, for the decedent during her lifetime, and that decedent became indebted to her in the sum of $7,200; that in 1936, the parties had an accounting, and on September 20, 1936, an oral promise was made by the' decedent “to hold said $7,200 found to be due plaintiff under said account stated in trust for the use and benefit of plaintiff, and it was further agreed that at any time during the continuation of said trust agre.ement that the plaintiff had the right to make demand * * * for payment * * * and said Henrietta Kissel agreed to make payment on said demand, and to further pay interest thereon at four per cent for the time said money was held. ’ ’

The defendant demurred'to this first cause of action on the ground that it was barred by the statute of limitations, and also on the ground that it did not state a cause of action.

It is clear that the fourth amended petition does not allege that the defendant is a trustee of a continuing and subsisting trust or a trustee of a trust of any other description.

The relationship of the parties in the beginning was that of debtor and creditor, and that relationship was never changed. To change the relationship the debt would have had to be discharged, payment made, and then the money deposited with the defendant, to be held by defendant as a separate and distinct fund, the title to which would be in the plaintiff. No such metamorphosis of defendant’s debt into plaintiff’s property held by defendant for her is alleged.

The necessary elements of a trust are set forth in 40 Ohio Jurisprudence, 186 et seq., and 54 American Jurisprudence, 44. To hold that an obligor could be a trustee of his own oral promise would be anomalous and a confusion of two completely distinct and dissimilar legal concepts.

The court was right in concluding that no cause of action was stated for the enforcement of a trust.

Then the only possible cause of action stated was a cause of action upon an oral promise made in 1936 to pay money on demand.

It has long been the settled law of Ohio that money payable upon demand is due immediately without demand and that the statute of limitations commences to run at once. 1 Ohio Jurisprudence, 347; Hill v. Henry, 17 Ohio, 9. Even where demand is necessary to give a right of action it is generally held that such demand must be made within the period prescribed by the statute of limitations. 1 American Jurisprudence, 429.

Therefore, the first cause of action alleged accrued-on September 20, 1936, when the oral agreement was made'. This action was not filed until June 12, 1946, which is almosfi^en years after the right of action accrued and the statute commenced to run. As the time in which an action on an oral promise, must be brought is limited to six years by Section 11222, General Code, it is manifest that the cause of action is barred, and as-this appeared upon the face of the fourth amended petition, the court was right in sustaining the demurrer to this cause of action.

In the second cause of action the plaintiff set forth a written release executed by her and her husband. She alleged that her husband owed the defendant $10,800, with interest, upon which she had obtained judgment, and that*in consideration of the defendant accepting $1,100 in cash on the judgment and a mortgage for $3,650 and the satisfaction of the balance of the debt of $10,800, she and her husband agreed to release and discharge the defendant from all claims and demands that they might have against her and also-agreed to release all right of inheritance from defendant and that if that release should prove ineffective, the balance of the debt should be regarded as an advancement. There were other provisions not necessary to mention.

This release was executed in 1936.

The only ground assigned for the cancellation of this release was that it included among its provisions the one that attempts to exclude the plaintiff from inheriting from defendant, the claim being that this was void.

The fact that the defendant conld not insist on the release in all its provisions is no ground for its cancellation.

The defendant had a right to enforce the judgment against plaintiff’s husband in its entirety. Her agreement to forego that and abcept less in cash and the plaintiff’s agreement in lieu thereof was ample consideration for plaintiff’s promises, notwithstanding •she may not have been bound on the Original debt, on which, however, she had acknowledged that she was bound.

It is our view that the cause of action was fatally ■defective and that the court was right in sustaining the general demurrer thereto.

The judgment is affirmed.

Judgment affirmed.

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


author: Ross, J.

text:
    The Central Building & Loan Co., Appellant, v. Jenkins, Admr., Appellee.
    (No. 6868
    Decided December 1, 1947.)

      Mr. Charles K. Pulse and Mr. Vernon W. McDaniel, for appellant.

      Mr. Hugh S. Jenkins and Mr. J. M. Woy, for appellee.
   Ross, J.

This is an appeal on questions of law from .a judgment of the Common Pleas Court of Hamilton county in favor of the defendant, Hugh S. Jenkins, administrator of the Bureau of Unemployment Compensation.

The action was brought by the plaintiff, The Central Building & Loan Company, to determine its rights and status under the Unemployment Compensation Law (Section 1345-1 et seq., General Code, effective 1941-1942) and for a judgment declaring invalid certain liens secured by the defendant upon the assets of plaintiff.

In the answer, it is stated:

“* * * that the .plaintiff is conducting a building and loan association business and is open for business and meetings of the board of directors one night a week between the hours of seven and nine p. m.; that it has nine directors and that its officers are also members of the board of directors and that it has another employee as a janitor; that the defendant made an assessment against plaintiff for contributions for the period of October to December, inclusive, 1941, and January to. June, inclusive, 1942, and filed a lien therefor which is recorded in book 1 page 100 of the recorder’s office of Hamilton county.

* # # # *

“* * * for a further defense, alleges that plaintiff is an employer within the meaning of the unemployment compensation law of Ohio and that during the fourth calendar quarter of 1941 it had five individuals in its employment to whom it paid remuneration in the sum of $819 and that there was due as contributions thereon the sum of $22.11; that during the first and second calendar quarters of 1942 defendant had five individuals in its employment to whom it paid remuneration in the sum of $1,638 and that there was due as'contributions thereon the sum of $44.23; that the sum of $22.11 bears interest at the rate of 8 per cent per annum from February 1,1942, and the sum of ■$44.23 bears interest at the rate of 8 per cent per annum from August 1, 1942.”

A reply was filed which in effect was a general denial of the allegations of fact and conclusions of law set out in the answer.

The issues thus presented revolve about the method adopted by the plaintiff in paying certain officers and directors compensation for services rendered plaintiff in addition to their normal activity as directors.

Under the statute law effective in the period under consideration (Section 9646-3, General Code) the plaintiff was prohibited from dividing sums paid directors into amounts paid as directors and officers.

The plaintiff deemed itself amenable to this law and from and after its effective date paid directors performing extra duties as officers or otherwise a sum of money which brought the plaintiff within the class required to pay premiums for unemployment compensation as required by the act then in force.

Its reason for such payment is immaterial. The evidence clearly shows it paid compensation in an undivided lump sum which while attributable to several specie.s of service still acquired the status of a salary. No attempt was made to divide such compensation into payments and allotments. The amounts paid were carried on the books as undivided lump sums, as salaries.

The plaintiff was, therefore, directly within the terms of the act requiring the payment of premiums in that five persons received from plaintiff for services rendered more than $60 per calendar quarter, none of which was allocated, paid, or allotted as directors’ fees.

The judgment of the Common Pleas Court is affirmed.

Judgment affirmed.

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


text:
    Bush, Appellant, v. Bush, Appellee.
    (No. 3987
    Decided October 9, 1947.)

      Mr. Thomas O. Miller, for appellant.

      Mr. H. 8. Kerr, for appellee. ,
   By the Court.

This is an appeal on questions of law from an order of court dismissing certain proceedings in aid of execution instituted by plaintiff.

On the 24th of October, 1942, plaintiff was granted a decree of divorce from defendant and a separation agreement entered into by the parties was approved and made a part of the decree, in which agreement it was provided that the defendant shall pay to the plaintiff, through the clerk of the Common Pleas Court, Division of Domestic Relations, Franklin county, $7.50 each week from the date of the agreement until such child attains the age of 18 years. The order was identical as to each of two children. On October 22, 1946, execution was issued against the defendant for the accumulated arrearage on the order in the sum of $1,178.08, and there being no real estate or personal property on which levy could be made, the plaintiff instituted proceedings in aid of execution and the Pennsylvania Railroad Company was ordered to appear and answer concerning claimed indebtedness due the defendant. The order in aid of execution was made on November 20, 1946.

At various times subsequent to the support order the defendant was cited for contempt in failing to' observe the order and particularly in July 1944, and again on July 6, 1946, he was found to be in contempt of court, as charged. In the entry of July 6/ 1946, it was provided as a condition to defendant’s purging himself of his contempt that he pay $10 a month to apply on the arrearage in addition to the regular payments set by the order of October 24, 1942. In the order of July 1944, a somewhat similar order was made, but different amounts and dates when they should be paid were fixed.

Succeeding the proceedings in aid of execution, defendant filed a petition after term, of date November 29,1946, wherein there is a recitation of the procedural steps incident to the divorce case, support orders and contempt proceedings and in which petition it was prayed that all former orders made be modified'; that any arrearage claimed by plaintiff be vacated and for such other and further relief as defendant may be entitled to receive.

Plaintiff moved to strike that petition from the files'- and the entry upon this motion, in the first paragraph-thereof, finds that the proceedings of the plaintiff' should be and they are hereby dismissed; The Pennsylvania Railroad Company, debtor of the defendant,, is ordered to pay to him wages and salary due him,, and the defendant’s petition after term is dismissed: for want of service of summons upon .the plaintiff.

The plaintiff, appellant herein, assigns as error the' action of the court in dismissing her proceedings in aid of execution.

In a brief written opinion of the trial judge with: which we have been favored it appears that his action was predicated upon the proposition that there was no-showing by the plaintiff of defendant’s failure to observe the contempt order of the court of July 6, 1946..

At the outset, it should be observed that, the petition of the defendant being dismissed, there was-nothing before the trial judge which called upon the-court to dismiss the proceedings in aid of execution.. Nor may it be said that the orders on the citations in contempt, or any of them, constituted a modification of the original decree of October 24, 1942, in which the-obligation of the defendant to pay support money in a. definite sum was fixed. However, if the order of the court is correct, then without respect to the validity of any reason assigned to support that order, it is our obligation to affirm it.

The court was without authority upon the contempt proceeding to modify the separation agreement of the-parties which was carried into the support decree except to increase the amount of support, unless fraud or mistake in securing the decree appeared. Tullis v. Tullis, 138 Ohio St., 187, 34 N. E. (2d), 212. No suchaverment was made or found by the court to be established.

The contempt proceeding was but one remedy available to the plaintiff to bring about observance by the defendant of thea original support decree. The constructive contempt was predicated upon a tendency by the action of the defendant by failing to pay as ordered, to obstruct, embarrass or prevent the due administration of justice (9 Ohio Jurisprudence, 15), and did not affect or attempt to vacate or modify the extent of the obligation enjoined upon him by the original support decree. In the contempt proceedings the defendant may have avoided a finding of guilt of the charge if it had appeared that he was unable for any reason to pay the accumulated arrearage on the support decree, but would it be ^asserted that this absolved him from the legal effect of the civil decree against him? The right of execution on judgment, or any other remedy which the law afforded the plaintiff, was available to her notwithstanding she may also have invoked contempt proceedings to call upon the court to punish the defendant for his willul disobedience of the court order.

Coming then to the one determinative question in this case, namely, was the support decree here under consideration such a judgment that execution could be levied thereon without first carrying into separate formal legal judgment the total amount due under the decree?

The question is not an open one in this court because we have passed upon it in Sweigart v. Sweigart, in the first headnote thereof, 33 Ohio Law Abs., 250, 35 N. E. (2d), 578, in this language:

“Where alimony in the form of weekly installments for support of minor children has been allowed in a divorce decree, the claim for the balance in default is enforceable by levy and execution as in any other judgment. ’ ’

To like effect, and of superior authority is Piatt v. Piatt, 9 Ohio, 37, stating in the third paragraph of the-syllabus:

“Where alimony is decreed in a gross sum, or in-installments, the decree may be enforced. by execution for such installment as it becomes due, or any number of installments, due when' execution issues, may be included in one writ.” (Italics ours.)

Also, a nisi prius decision; Breen v. Breen, 14 N. P. (N. S.), 219, 31 O. D., 612, states in the first paragraph of the headnotes:

“Past due installments of alimony are in legal effect a judgment on which an execution may be issued. ’ (

Although the installments in the Breen case are characterized as alimony the order under consideration was for support of the plaintiff and her minor child. See, also, Embshoff v. Embshoff, 12 C. C. (N. S.), 236, 21 C. D., 589. The-proceedings in aid of execution were improperly dismissed.

The judgment will be reversed and the cause will be remanded.

Jtidgment reversed.

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


text:
    Cohen et al., Exrs., Appellees, v. Cohen et al., Appellants.
    (No. 6866
    Decided December 15, 1947.)

      Messrs. Gorman, Silversteen & Davis, for appellees.

      Mr. Benjamin S. Schwarts, for appellants.
   Hildebrant, J.

In passing on exceptions to the inventory, the Probate Court denied 'the efficacy of an antenuptial agreement, dated June 4, 1925, between •decedent and the widow, to preclude the widow from receiving the statutory exemption of $2,500 under ■Section 10509-54, General Code, allowed her by the .appraisers in the inventory.

This allowance is claimed as error in this appeal on ■questions of law.

The antenuptial agreement heretofore upheld by the Probate Court and this court reads in part:

“That whereas, the parties hereto contemplate a marriage with each other and do not desire to affect in any way the legal status of the property owned by •said parties or ihe rights of their heirs except as hereinafter provided, and, * * *

“Whereas, in view of these circumstances said Joe Cohen ‘ desires to make suitable provision for said Lena Wolfson in lieu of dower in his real estate and in place of any year’s allowance, homestead, mansion rights, and other share in or distribution of his per•sonal estate, and of any and all other rights or claims of the said Lena Wolf son as widow,' heir, survivor, or next of kin of the said Joe Cohen, and has explained to her the value of the estate she is relinquishing, being the dower, year’s allowance, homestead, mansion rights and the distributive share of his personal estate.

# # # * #

“In consideration of said marriage and the promises and agreements of said Joe Cohen and the conveyance of said one-half interest in the real estate to be purchased above described, the said Lena Wolf son hereby covenants and agrees to and with the said Joe Cohen, his heirs, executors, administrators, and assigns, that ■said conveyance of said one-half interest in said real real estate to be ^purchased shall be in lieu of any and all rights or claim of dower, inheritance, or descent, in and to the real property of said Joe Cohen now owned or hereafter acquired, and in lieu of any and all rights or claims to a distributive share of his personal estate now owned or hereafter acquired, and of all claims for an allowance for a year’s support, and mansion rights, and in lieu of any and all claims or rights in and to the estate of said Joe Cohen which may in any manner arise or accrue by virtue of said marriage. ’ ’

Item II of the Will of the decedent is:

“Item II. Having heretofore, to wit, on the 4th day of June, 1925, entered into an antenuptial contract with Lena Wolf son, who is now my wife, Lena Cohen, in which contract we adjusted and settled our mutual property rights, I now confirm said antenuptial agreement and request that the same be carried out to the letter, and for that reason I make no bequest or devise to my wife, Lena Cohen, herein, as such antenuptial contract, made an equitable and just disposition and settlement of all property rights between us.”

Section 10509-54, General Code, provides in substance that certain personal property, if s'elected, as therein proyided, by the widow, shall not be deemed assets or administered as such, but must be included in the inventory or in lieu thereof, money up to a maximum of $2,500, which shall be a charge on all property, real and personal, belonging to the estate*, prior tq the claims of all unsecured creditors of the deceased or of the estate.

Historically, the purpose of the statute was to partially compensate the surviving spouse for loss of vested dower rights which were abolished at the same-time and to supplement the compensatory increase granted a spouse under the statutes of descent and distribution, changed at the same time. See comment under Section 10509-54 in the Pagers Ohio General Code, and Vol. IV, Ohio BAR, page 412.

It, _ therefore, appears that the wording of the ante-nuptial ‘ agreement is peculiarly apt in specifically covering dower rights and cláims to a distributive-share of the estate.

Further, the antenuptial agreement clearly declares its provisions to be in lieu of any and all rights or claims to a distributive share of the personal estate now owned or hereafter acquired, and in lieu of any and all claims or rights in and to the estate which may arise or accrue by virtue of the marriage.

The language is all-inclusive, and leayes no room for construction by a court and clearly covers the provisions of that section.

The chief contention made is that it is against public-policy to deny this set-off to the widow, even in the-face of this antenuptial agreement, found by the Probate Court and this court to be fair, reasonable and valid, and fully performed by the decedent for some-16 years.

In Section 10504-61,' General Code, the Legislature,. inter alia, has provided that election of a spouse to take under a will does not bar the exemption under Section 10509-54, General Code, unless the will expressly otherwise directs. The public policy has thus been declared to permit the bar by will and there appears to be even stronger reason to uphold the bar of an antenuptial' agreement found fair, reasonable, and fully performed for some 16 years. We cite Atwood, Exr., v. Miller, 24 Ohio Opinions, 398, 10 Ohio Supp., 131, although a Probate Court case, finding language in the will, far less clear and convincing than the wording of the antenuptial agreement here, sufficient to bar the money exemption. And by his will this decedent expressly confirms this antenuptial agreement and requests it be carried out to the letter. By inference, at least, Juhasz v. Juhasz, 134 Ohio St., 257, 16 N. E. (2d), 328, 117 A. L. R., 993, is consistent with holding the antenuptial agreement to be a bar. The validity of an antenuptial agreement was involved there, and the court found it was not properly attacked within the time limit set by Section 10512-3, General Code, and, therefore, was valid, and not subject to attack, so that the lower court’s refusal to set off the 20 per cent exemption was permitted to stand.

If the widow may still claim the exemption in the face of a valid antenuptial agreement, the limitation of time fixed by the Legislature within which to attack such agreements is, at least, with .reference to the 20 per cent exemption, rendered meaningless.

We, therefore, conclude that the antenuptial agreement, found to be fair, reasonable and by the decedent fully performed for some 16 years, is sufficient to preclude the widow from receiving the exemptions provided by Section 10509-54, General Code, and is a •complete bar to setting them off to her.

For these reasons, the judgment is reversed and final judgment here rendered for the appellants.

Judgment reversed.

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


author: Metcale, J.

text:
    The State, ex rel. Kay, Appellant, v. Nixon, Appellee.
    (No. 228
    Decided May 14, 1947.)

      Mr. Charles U. Wilson, for appellant.

      Mr. James W. Lang, Jr., and Mr. Vernon L. Young, for appellee.
   Metcale, J.

Relator filed a petition in mandamus in the Court of Common Pleas of Adams county praying for a peremptory writ compelling the respondent to turn over to relator the office of clerk of the board of education of Monroe township in that county. The petition sets forth the election of the relator by the board of education, his qualifying therefor by taking the oath of office and furnishing bond and further alleges “that the defendant [respondent] herein has usurped and unlawfully held and exercised and still holds and exercises said office as such usurper, assumes to do and perform all and singular the duties pertaining to said office, and to receive the fees and emoluments therefor, but that said defendant [respondent] has refused to surrender said-office or any of the property belonging to the same to this relator.”

To such petition the respondent filed a general demurrer claiming that the petition does not state a cause of action.

The Common Pleas Court sustained the demurrer and, the relator not caring to plead further, judgment was entered dismissing the petition, from which judgment relator appeals on questions of law.

The only error complained of is that the court should not have sustained the demurrer and entered final judgment in favor of the respondent.

It is clear from that part of the petition herein quoted that the title to the office of clerk of the board of education in the instant case is drawn into question and under such.circumstances quo warranto and not mandamus is the proper remedy. 33 Ohio Jurisprudence, 955, Section 7.

Section 12303, paragraph 1, General Code, being the first section enumerated in the proceedings in the chapter on quo warranto, provides that a civil action may be brought in the name of the state ‘ ‘ against a person who usurps, intrudes into, or unlawfully holds or exercises, a public office * * *.”

We think the allegations in the petition bring the instant case within the provisions of that chapter and section. It has been repeatedly held in Ohio that quo warranto is the only proper proceeding by which to test the title to an office. Of course, mandamus will lie if the title is not drawn into question, such as the failure on the part of certain officials or parties to perform the necessary ministerial duties prerequisite to-the induction of the party entitled to the office.

It follows that the judgment of the trial court in sustaining the demurrer to the petition should be-affirmed.

Judgment affirmed.

Gillen, P. J., and McCurdy, J., concur.


author: Matthews, P. J.

text:
    The State, ex rel. Ruth, v. Hoffman, Judge.
    (No. 6779
    Decided February 24, 1947.)

      Mr. Francis T. Bartlett, for relator.

      Mr. Carl W. Rich and' Mr. Thomas Stueve, for respondent.
   Matthews, P. J.

By this proceeding, the relator seeks to invoke the original jurisdiction of this court to issue a writ of mandamus, directing the judge of the Court of Common Pleas of Hamilton county, Division of Domestic Relations, to enter upon its journal a decree of divorce.

It is alleged in the petition that the divorce case came on to be heard on September 16, 1946, before the late Frederick L. Iioifman, now deceased, one of the judges of the Court of Common Pleas of Hamilton county, Ohio; that at the conclusion of the trial the judge announced that a divorce was granted the parties on the cross-petition of the relator’s wife, and directed counsel to submit a statement of the property settlement which had been agreed to by the parties, as disclosed at the trial, and also entered “a memorandum or memorial upon the records ’ ’ of the Division of Domestic Relations as follows: “Divorce granted. Parties to bring in property settlement”; that after the death of Frederick L. Hoffman, the respondent, Charles W. Hoffman, as judge of the Court of Common Pleas, Division of Domestic Relations, assumed jurisdiction of the divorce case, to whom the relator applied for a hearing limited to a consideration of the property settlement, whereupon, Judge Charles W. Hoffman announced the case would be reset and retried “as he would not sign a decree for divorce granted by another judge. ’ ’

The'respondent demurred generally to the petition.

As the prayer of the petition is that the respondent, he ordered to enter a decree of divorce, it is manifest that the court has made no entry upon its journal. At the hearing of the demurrer it was explained by counsel for the relator that the records referred to in the petition upon which the memorandum or memorial was made were not official records required by law to-be kept, but were simply statistical records kept for the convenience and information of the judge.

It is not claimed that the record upon which the memorandum was made was a record required by law to be kept, and even if it had been such a record other than the journal, it would not necessarily he a judgment of the court, as for instance, an entry upon the trial docket. Krasny v. Metropolitan Life Ins. Co., 143 Ohio St., 284, 54 N. E. (2d), 952.

That a judge speaks as the court only through the journal of the court is well settled. “A decision is not the oral pronouncement of the judge made from the bench, as distinguished from the more deliberate decision of the court speaking through its journal entry.” 11 Ohio Jurisprudence, 758; Fountain, Recr.,. v. Pierce, 123 Ohio St., 609, 176 N. E., 444. See Will v. McCoy, 135 Ohio St., 241, 20 N. E. (2d), 371, and State, ex rel. Indus. Comm., v. Day, Judge, 136 Ohio St., 477.

Of course, if the circumstances disclose a nondiscretionary duty to speak through the journal, the judge-may be compelled to so speak. 25 Ohio Jurisprudence,. 1149; and '35 American Jurisprudence, 46.

The question presented by this demurrer is whether the mere oral announcement or a written statement of intention made at the conclusion of a trial ¡creates-a nondiscretionary duty to thereafter journalize such-intention. Is such a statement of intention unalterable ?

Prom time out of mind judges have been given compíete control over the journals of their courts, with full power in the exercise of a sound discretion to-make them speak the deliberate and settled intention of the judge. This control extends not only to determining what shall be entered on the journal in the first place but, also, during the term of court, to modifying or vacating entries already made. This control as to entries made is limited to the term at which they are made. On the expiration of the term they become fixed and the complete control, residing in the judge, no longer exists.

This power to enter or to vacate is fully recognized in Ohio. 23 Ohio Jurisprudence, 660.

In the case of State, ex rel. Curran, v. Brookes, Jr., 142 Ohio St., 107, 50 N. E. (2d), 995, the court saict:

“A ‘decision is rendered,’ within the meaning of Section 11578, General Code, when there is filed with* the clerk for journalization a finding which determines the issues submitted. (In re Estate of Lowry,. 140 Ohio St., 223, approved and followed.) ”

And it would be hard — impossible in fact — to maintain the position that while the judge who has announced his conclusion is free to change his mind at any time before journalization, another judge, upon whom his duties devolved upon his death, is not equally free:

Two cases recently decided by Courts' of Appeals are dispositive of this case — one, by the Court of Appeals of the Sixth Appellate District, and one by this court. Both cases dealt with the duty of a successor-judge to carry out the alleged intention of a judge-who had died without reducing such intention to a journal entry. íhe Sixth Appellate District case is that of State, ex rel. Van Stone, v. Carey, 76 Ohio App., 478, 65 N. E. (2d), 166. The court held, as stated in the syllabus, that:

“A judge of the Court of Common Pleas having died after making a notation 'Overruled. See J. E.’ on the motion docket of that court as to a pending motion for a new trial, his successor, or his surviving associates, cannot be compelled by mandamus to approve and file a formal journal entry overruling such motion and entering final judgment.”

The ease decided by this court is State, ex rel. Egbert, v. Leiser, Judge, 67 Ohio App., 350, 36 N. E. (2d), 874, in which we held, as stated in the syllabus, that:

“A writ of mandamus will not lie to compel a successor judge of a Probate Court to sign and place on the journal of the court an entry allowing attorney fees, where .the predecessor judge had appointed the attorneys in an action to construe a will, and had made a finding and rendered a written opinion adjudging the attorneys to be entitled to a bertain fee, but had died before preparing any journal entry allowing such fees.”

In the opinion in that case, we set forth fully the authorities and reasons upon which we relied and shall not repeat them here.

Counsel for relator relies chiefly upon Smith v. Smith and State, ex rel. Smith, v. Hoffman, Judge, 103 Ohio St., 391, 133 N. E., 792. Those cases require some study. As there is no syllabus, the statements of facts as well as the opinion of the court must be analyzed in order to disclose the ratio decidendi.

The proceeding in mandamus was commenced in the Court oh Appeals. In the petition it was alleged that the relator’s wife brought an action for divorce against him, that he was duly served with summons, but filed no pleading and offered no evidence at the trial, and at the conclusion of the hearing, the court '‘announced and rendered his decision, granting a decree of divorce to the plaintiff,” but that this decree was not spread upon the journal.

It is alleged also that the relator, relying upon the announcement, remarried.

It is then alleged that thereafter the relator filed a motion to have the decree of divorce entered and tendered such á decree, and that his motion came on for hearing at which the judge after hearing arguments, and over the protest of relator, ‘ ‘ dismissed and refused to enter said decree.”

The defendant judge by answer denied that he had announced or rendered a decision granting a decree of divorce and, as to the relator’s motion that a decree of divorce be entered, he alleged that it came on for hearing on June 23, 1920, and the court finding it not well taken overruled the motion.

The defendant then alleged that the relator’s wife made oral application on June 18, 1920 “to withdraw said cause No. 173511 from further consideration by the court and for leave to dismiss her action at her costs; that said motion so made came on for hearing and arguments by counsel, and the court being fully advised in the premises found the same to be well taken and granted same and that on the 29th day of June, 1920, the court ordered, adjudged and decreed that said cause * * * be, and the same was dismissed.'” At the trial of the mandamus proceeding in the Court of Appeals, the defendant judge moved for judgment on the pleadings. That motion was sustained. The relator prosecuted error to the Supreme Court from that judgment.

In the meantime the relator had prosecuted error proceedings in the divorce case, seeking a reversal of the judgment of the court dismissing the cause. The Court of Appeals affirmed that judgment. The relator prosecuted error to the Supreme Court from that judgment of affirmance.

If we keep in mind that the Supreme Court disposed of both the mandamus case and also the divorce case in one opinion, whatever uncertainty that might otherwise seem to exist, is dispelled.

As to the mandamus case the court stated that as it had been disposed of in the Court of Appeals on the defendant’s motion for judgment, the allegations of the relator’s petition must be accepted as true. The relator’s petition contained the allegation that “at the conclusion of the hearing on the evidence the judge ‘ announced and rendered his decision’ granting a decree of divorce to the plaintiff on said 19th of March, 1920.” That was one of the allegations which the court said must be considered as true. And the court said: “If the allegations of the relator are true then it was the duty of the court to cause an entry of the decree to-be made on its journal.” But the court also, pointed out that the defendant judge had denied that ■•allegation and thereby an issue of fact had been raised. Of course an issue of fact cannot be determined on a motion for judgment on the pleadings. The Court of Appeals should have overruled the motion for judgment and then decided the issue of fact. Whether the writ would have been awarded would have turned upon what was disclosed at the trial. If it should have appeared that the court had announced 'its decision and 'continued to be of that opinion, then, of course, the decision should be journalized, and a writ would issue requiring it, but the Supreme Court said: “Of course if new evidence were presented, or the court should on reconsideration arrive at a different conclusion, the decree would be made accordingly.”

Now, in the error proceeding in the divorce case, the only question was whether a party had a right to dismiss a case after its final submission and the court held that under Section 11586, General Code, as construed and applied in Turner v. Pope Motor Car Co., 79 Ohio St., 153, 86 N. E., 651, a litigant did not have that right.

The Supreme Court, therefore, reversed the judgment in the mandamus proceeding and in the divorce ease but did not award a writ of mandamus or direct that a decree of divorce be entered. Later the mandamus proceeding in this court was dismissed, and the divorce case retried in the Common Pleas Court, and a divorce granted after such retrial, but the decree was entered nunc pro tunc of the date of the prior pronouncement.

Prom that review of what was done in those cases, it is manifest that the divorce decree was not entered in obedience to a writ of mandamus, and from what was said it is manifest that the Supreme Court.had no intention of declaring that a writ of mandamus could be used'to compel the journalization of a decree unless and until the judge had reached a final, unaltered conclusion, leaving nothing to be done other than the nondiscretionary act of entering such unaltered conclusion upon the journal.

Because of the death of Judge Frederick L. Hoffman, the court cannot know that his announced conclusion continued to the time of his death or. that he would now entertain the same conclusion.

For these reasons, we are of the opinion that it rests in the discretion of the judge upon whom the duties of the deceased judge were cast to determine the course to be pursued in the progress of the case interrupted by the death of his associate, and that this discretion cannot be controlled by a writ of mandamus.

The demurrer to the petition is, therefore, sustained.

Demurrer sustained.

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


author: Metcalf, P. J.

text:
    Bockert, Appellant, v. Bockert, Appellee.
    (No. 193
    Decided May 10, 1945.)

      Mr. Ray W. Davis, for appellant.

      Mr. Tom A. Renick, for appellee.
   Metcalf, P. J.

On March 17, 1944, the last will and testament of Wallace Bockert, deceased, was admitted to probate in the Probate Court, Pickaway county, Ohio. This will named as executor and sole legatee and devisee a brother of the decedent, Gordon Bockert, the defendant, appellee herein.

On March 31, 1944, Hárry Bockert, plaintiff, appellant herein, a brother of the decedent and of the defendant, filed in the Common Pleas Court of Pickaway county, Ohio, a petition contesting the validity of this last will and testament, and, at the time the petition was filed, a praecipe was left for service upon Gordon Bockert. On April 14, 1944, the return of the sheriff was filed showing service on Gordon Bockert as devisee-legatee.

On September 30, 1944, a motion was filed on behalf of Gordon Bockert asking that the petition be dismissed for the following reasons:

•“1. The duly qualified, appointed, and acting executor of the estate of Wallace Bockert, deceased, has not, as required by statute, been made a party to this action within the time required by statute, to wit, six months.

“2. No praecipe for the issuance of summons for service on the executor of the estate of Wallace Bockert, deceased, has ever been filed with the clerk of this court by the plaintiff herein, nor has any summons been issued or service of summons had on said executor within the timé required by statute, to wit, six months.

“3'. The plaintiff’s cause of action to contest the will has not been' commenced within the statutory time, to wit, six months.”

While the motion was pending and the court was deciding the same, counsel for plaintiff left a praecipe for service of summons on Gordon Bockert as executor and return has been made showing service on October 9, 1944, on him as executor.

This appeal on questions of law is from the order and judgment of the Court of Common Pleas in sustaining the motion of the defendant and dismissing the petition of plaintiff.

The defendant, Gordon Bockert, is not named as executor in the caption of the 'petition, but the body of the petition does contain these significant allegations: “Letters testamentary thereon were issued by said court to the defendant, Gordon Bockert, as sole executor thereof, who thereupon qualified,” and “By the terms of said paper writing, the defendant, Gordon Bockert, was named as the sole devisee and legatee of said Wallace Bockert.” The petition alleges also that the plaintiff and defendant are the only heirs at law.

Section 12080, General Code, reads:

“All the devisees, legatees, and heirs of the testator, and other interested persons, including the executor or administrator, must be made parties to the action.”

Section 12087, General Code, provides that an action to contest a will or codicil shall be brought within six months after it has been admitted to probate.

Section 10504-32, General Cqde, provides that if no contest be made within six months, the probate shall be forever binding except as ■ to certain conditions therein set forth.

The questions here for solution may be summarized as follows: Does the fact that the executor is not included in the caption of the petition as such executor but individually as sole devisee and legatee and one of the heirs at law, where the petition shows that such devisee and legatee was appointed as executor, contravene Section 12080, General Code? And further, if service of summons is not made upon such, executor during the six months prescribed by Section 12087, General Code, may the same be made after the expiration of the six-month period? These questions áre not new in Ohio. One of the early cases, that of Bradford v. Andrews, 20 Ohio St., 208, 5 Am. Rep., 645, held that where a petition for such a contest is filed within the statutory period of limitation, although only a part of the parties interested are made parties thereto, the right of action is saved as to all who are ultimately made parties notwithstanding some of them are not brought into the case until after the period of limitation has expired.

The Supreme Court in the case of McCord v. McCord, 104 Ohio St., 274, 135 N. E., 548, which case is relied upon by defendant in the instant case, discusses the question of the limitation of action in reference to will contests wherein sex-vice of summons was had upon the executor only and not upon the deviseelegatee and heirs of the testator. The court referred to Section 11230, General Code, which, in effect, provides that an action shall be deemed to be commenced, within the meaning of this chapter, as to each defendant, at the date of the summons which is served on him or on a codefendant who is united in interest with him. And although the court stated that the executor was a necessary party, it was pointed out that he would not be united in interest with the other defendants, the heirs, legatees and devisees. It was, therefore, held that the service of summons on the executor did not toll the statute of limitation as to the deviseelegatee and heirs of the testator for the reason that they were not united in interest with the executor.

The Supreme Court again considered the question rathe case of Draher v. Walters, 130 Ohio St., 92, 196 N. E., 884, and it would seem that since the decision in-that case there should be no further difficulty with the-question presented in the instant case. However, there-seems to be a varied application of the rules laid down in the Draher case. In the Draher case the testator’swill was admitted to probate on'January 21, 1933. One of the defendants, a legatee-devisee, was served' ■on May 5, 1933, and the return thereof was made on May 8, 1933. The codefendants, also legatees, were not served until approximately nine months after the will was admitted to probate.

The defendants filed a motion for the dismissal of plaintiff’s petition on the ground that service was made on only one of the defendants within the time set by statute for the commencing of an action to contest the will. This motion was sustained by the trial •court and the petition was dismissed, .which judgment was affirmed by the Court of Appeals. The Supreme Court reversed the judgment. The syllabus reads:

“Service of summons upon one of the legateedevisee defendants, in an action to contest the validity of a will, is to be deemed commencement of the action as to each of the defendants of that class, and also the executor. Actual service of summons can thereafter be made upon the remainder of the defendants of that •class.” (Emphasis ours.)

The court, in the body of the opinion, reasoned as follows:

“Section 11230, General Code, provides: ‘An action shall be deemed to be commenced within.the meaning of this chapter, as to each defendant, at the date of the summons which is served on him or on a codefendant who is a joint contractor, or otherwise, united in interest with him. * * * ’

“In construing Section 11230, General Code, every reasonable presumption will be indulged and every •doubt will be resolved in favor of affording rather than denying a plaintiff his day in court. The key words in that statute are ‘united in interest.’ Wherever possible, these will be construed liberally in order that the right to sue may be maintained rather than denied.

“Accordingly we hold that in an action to contest the validity of a will, the legatee-devisee defendants ^are so united in interest as to render service of summons upon any one of them within the time set by statute sufficient to constitute commencement of the action against all of them, thereby giving the court jurisdiction over the entire estate; for when the court obtains jurisdiction over an estate it does so.-in its entirety and not in fractions. Bradford v. Andrews, 20 Ohio St., 208, 5 Am. Rep., 645. In such case the court acquires jurisdiction not only over the rem but also over all those who have, or claim to have, an interest therein, and the right of action is saved as to all who are ultimately served, including the executor, notwithstanding the fact that the rest of such defendants are served after the expiration of the period of limitation.” (Emphasis ours.)

The Court of Appeals of the Sixth Appellate District, in a case decided on March 17, 1941, Morisse v. Billau, 70 Ohio App., 215, 45 N. E. (2d), 798, a case squarely in point with the instant case, it seems to us, answered the questions with which we are concerned in the syllabus as follows:

“1. The petition, not the caption thereto, determines the parties necessary to the prosecution of an action, and the fact that an executrix-devisee is named in the caption of an action to contest a will merely as a devisee is not fatal under Section 12080, General Code,, where the petition shows that such devisee was appointed as executrix.

“2. Service of summons upon one of the devisees under a will in an action to contest the will constitutes a commencement of such action as to each of the devisees and the executrix, and actual service of summons upon the remainder of such devisees and the executrix may be made after the period of limitation ■for the commencement of snch an action has expired.”

Counsel for defendant, in his brief, cites the case of Willis v. Willis, decided by the Fifth District Court of Appeals (unreported) but being number 29358 on the docket of the Supreme Court where a motion to certify was overruled. The facts in that case were somewhat similar to those in the case at bar in' that there was but one legatee and devisee and this person was named executor. He was not carried in the caption of the petition to contest the will as executor but it was alleged in the body of the petition as in the instant case- that letters testamentary had be.en issued to him. However, in that case no attempt was made to serve the executor until after trial where the jury set aside the will. Then for the first time the question was raised that the executor had not been made a party defendant and that therefore the court was without jurisdiction. The appellate court stated in its opinion that the Draher case did hot overrule the McCord case, and with-that conclusion we are in complete agreement.. But that court seeks to distinguish the Draher case in that all necessary parties had been made party defendant in the caption of the petition ■and a praecipe issued for “service on all parties defendant.” The clerk mistakingly issued for only one ■defendant legatee-devisee. Therefore, the appellate court in the Willis case places the decision of the Supreme Court in the Draher case upon the dereliction ■of duty of the clerk of courts. We do not so find that the Supreme Court in any way decided the issue in the Draher case on such a premise. It was decided squarely upon the principle that service of one “united in interest” in the legatee-devisee class is deemed a commencement of the action as to each of the defendants of that class as well as the executor. For the executor, the shadow follows the legatee-devisee class, the substance.

It is true that there are three strong dissenting opinions in the Draher case but we do not find that either the majority or minority of the Supreme Court based'' their respective conclusions upon any dereliction of duty of the clerk of courts. The majority opinion, which we are bound to follow, is of sufficient importance in view of defendant’s reliance upon the McCord and Willis cases for us to sacrifice sufficient space to-further quote from page 96 thereof:

“This principle is not contrary to that laid down in the case of McCord v. McCord, 104 Ohio St., 274, 135 N. E., 548. In that case this court held that the members of the legatee-devisee class are not so united .in interest with the executor as to render service upon the executor sufficient to constitute commencement of action against them. In effect it holds that you cannot move the substance by attempting to move the shadow. This court does not therein hold that an action would not be deemed commenced if service were had on a defendant who is a member of the legateedevisee class, that question not having been before this court in that case and therefore not there decided. Consequently, the McCord case is not authority for the instant case.

“The instant case decides that service upon one of the legatee-devisee class binds, as to the commencement of the action, not alone the entire legatee-deviseeclass, but binds also the executor, for the reason that the shadow follows the substance.” (Emphasis ours.)

We think the court in the Willis case failed to recognize this distinction.

It is our conclusion that the failure to set forth in the caption of the petition the name of the executor is not fatal because the petition herein shows that Gordon Bockert was not only the sole devisee-legatee and an heir at law, but was appointed as executor;. that service of summons upon Gordon Bockert as one of the legatee-devisee class, within the six-month limitation, constituted a commencement of the action to contest the will in the instant case; that the actual service of summons upon Gordon Bockert as executor made after the period of limitation of six months is good; and that the motion herein should therefore have been overruled.

The judgment of the Court of Common Pleas is reversed and the cause remanded thereto with the direction to overrule the motion and for further proceedings according to law.

Judgment reversed and cause remanded.

Gillen and McCurdy, JJ., concur.


text:
    Beth Hachneseth Yad Charutzim Congregation, Appellee, v. Kesmo Del et al., Appellants.
    (No. 6899
    Decided January 26, 1948.)

      Messrs. Dolle, O’Donnell & Gash, Mr., Samuel Englender and Mr. Charles J. Armstrong, for appellee.

      Mr. Elmer L. Conway and Mr. M. C. Lacinah, for appellants.
   By the Court.

This'is an appeal on questions of law and fact from a decree of specific performance of a contract to convey real estate, and awarding damages as incidental relief.

The offer to bny contained the following provision:

“Providing, however, that this organization secures permission of the Court of Common Pleas, Hamilton county, state of Ohio, to purchase above mentioned real estate and to mortgage the same, otherwise this offer is null and void. ’ ’

The offer containing the above provision was accepted by defendants.

Within the period for performance, the plaintiff filed an action in the Common Pleas Court setting forth that it desired to purchase and mortgage this real estate and the court expressly granted the power to mortgage.

Some contention is made based on use of different names to designate the applicant in that case, but we do not regard the point as material. We are of the opinion that the proceeding and the order complied substantially with the terms of the offer.

But it is said that such provision in the offer prevented plaintiff from being bound, that, therefore, the defendants could not be bound for lack of corn sideration to support their promise, and that defendants withdrew before the provision preventing plaintiff from being bound had been removed.

We do not think the presence of such provision in the offer relieved the plaintiff from all obligation. It relieved it, at most, only after it.had used reasonable effort to have the court grant it the approval to buy aifd mortgage.

In 12 American Jurisprudence, 933, it is stated:

“In order that a party shall be excused from performing his contract obligation by an absolving clause contained in the contract, the excuse must not only-come within the terms of such clause, but also must be reasonably beyond the power of the party to prevent, that is, such clause will not give a party the power arbitrarily to refuse performance, but he is under a •duty to exercise a reasonable amount of care to prevent the happening of the contingency named. To excuse performance under an absolving clause in a contract, the cause relied on must also be the proximate -cause of the failure to perform.”

We, therefore, hold that the plaintiff’s promise, although provisional, was a sufficient consideration to ■support the defendants’ promise to convey.

Furthermore, as the plaintiff had full capacity to ■buy or mortgage without the approval of any court, any attempt on its part to rely on that provision would have been a subterfuge for failure to perform for some other reason, and would not have availed it.

It so happens in this case that the plaintiff, for whose benefit the provision was inserted, is not relying upon it, but is insisting upon specific performance. 'The defendants whose promise was absolute cannot appropriate such discarded proviso to the plaintiff’s promise and make it a proviso of their promise.

A decree of specific performance may be entered. The issue of the amount of damages is postponed for ■future consideration.

Decree accordingly.

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


text:
    Keifer, Admx., Appellant, v. Schuneman et al., Appellees.
    (No. 20758
    Decided February 25, 1948.)

      Messrs. Crossen dt Hurd, for appellant.

      Mr. A. F. Gallagher, for appellee Fred Schuneman.
   Matthews, P. J.

The plaintiff as special administratrix appointed under authority of Section 10509-14, General Code, to collect and preserve the effects of the decedent, filed this action to recover the amount of a deposit in the defendant South Side Federal Savings & Loan Association to the credit of the defendant Schuneman and $700 held by him, and also 33 shares of the common stock of the Duquesne Brewing Company, the certificate for which he held, all of which it was alleged constituted assets of the decedent’s estate. An injunction was also sought.

The trial court found in favor of the plaintiff to the extent of $130, held by defendant Schuneman, and also held in her favor as to the Duquesne Brewing Company stock, but found against the plaintiff as to the deposit in the South Side Federal Savings & Loan Association, and rendered judgment in accordance with its findings. The plaintiff appeals on questions of law from that judgment to this court.

It was admitted at the trial that the decedent had owned all those items of personal property shortly before her death, and that all of them were under the control of the defendant Schuneman at her death and at the time of trial. The plaintiff having established recent ownership, that ownership would be presumed to continue until such time as it appeared from the evidénce that the decedent had been divested of it by her own act or by operation of law. 17 Ohio Jurisprudence, 94 et seq.; 20 American Jurisprudence, 205 et seq. In the syllabus to In re Estate of Wohleber, 320 Pa., 83, 181 A., 479, as reported in 101 A. L. R., 829, it is said:

Ownership of personal property is presumed to continue unless a transfer by word or act is shown.”

The effort of the defendant Schuneman at the trial was to prove a transfer of title by the decedent in her lifetime, and by the plaintiff to disprove any such transfer.

There was introduced in evidence a document, dated December 9, 1946, in decedent’s handwriting, . captioned “hear is my will.” However, the decedent’s signature was not attested by' any witness and, of course, it could not be given effect as a will. In this document, the decedent wrote:

“Dec. 9 -1946

“Hear is my will

“I give my niece Amanda Heman Five Hundred dollars after I died

“I give my niece Hazel Pierona Five Hundred dollars'

“I give my nephew Fred Jr Schuneman Five Hundred dollars

“I give my sister Rosie Schuneman Five Hundred dollars for taking care of my that is wages

“I give Fred Schuneman S.R. my brotherlaw for taking care of everthing 1 hundred

“I give my nephew Fred Schuneman Jr. 33 shares of common stock Duquesne Brewing Co. of Pittsburg, Pa.

“If there is anything left devied the rest to my nieces children

‘ ‘ Anna Milliman. ’ ’

Having composed that document, the decedent placed it in an envelope, sealed it, endorsed on the back of the envelope “Rosie open this when I am dead” and then deposited it in her “strong” box, which she locked. Rosie, who was a sister of the decedent and wife of defendant Schuneman, knew nothing of this at the time and learned of it only after decedent’s death. Likewise, according to the evidence, the plains tiff, who also was .a .sister of decedent, and the defendant Schuneman learned for the first time of the existence of the document after decedent’s death. No one other than decedent knew of its existence during her lifetime.

On December 21,1946, on the same day that she was taken to a hospital, where she died three days later, the decedent prepared and signed the following document :

“Dec 21 - 1946

“I at the hospital sick and I want to close my account will you Please give my Brotherlaw my mony, Mr. Fred Schuneman

‘ ‘ Anna. Milliman

“Thank you.”

The decedent' immediately delivered this document together with her savings account book of the South Side Federal Savings & Loan Association to the defendant Schuneman, who, during decedent’s lifetime, had the amount of the deposit, which was $2,706.92, transferred to his credit upon the books of the South Side Federal Savings & Loan Association. He withdrew between $500 and $600, most of which he used to pay debts of the decedent. The balance remained to his credit at the savings association at the time this action was filed. The defendants were enjoined from distributing the deposit pending the action.

The defendant'- Schuneman claimed in his answer that the decedent had made a gift inter vivos of all this property to him. /

The trial court found against the defendant Schuneman as to the Duquesne Brewing Company stock and as to the money to the extent of $130 and rendered judgment therefor in favor of the plaintiff. The defendant Schuneman did not appeal from that judgment.

As to the deposit in the South Side Federal Savings & Loan Association, the court found that by her action on December 21, 1946, the decedent had divested herself of the legal title and vested the title thereto in the defendant Fred Schuneman, as trustee for the donees mentioned in the writing of December 9, 1946, captioned “hear is my will.”

To determine whether the court was justified in holding that the title to this bank deposit passed to Fred Schuneman on December 21, 1946, as trustee, it is necessary to analyze the actions and utterances of the decedent on that date to determine whether there was any such intent as found by the trial court.

The only item of .evidence coming from the decedent is the written document, quoted heretofore, which she prepared and signed on that date. That instrument purports to be a direction or authorization to the bank to deliver or hand over the money to Schuneman. It is true that the word “give” is used, but reference to any standard dictionary discloses that the word has many meanings other than-to make a donation, and a reference to “Words and Phrases” is sufficient to convince that its meaning is equally flexible under judicial interpretation. It is frequently used in the sense of “to deliver” or to “hand over” without any intent to transfer title. To determine its meaning in a given context the surrounding circumstances must be considered.

The evidence shows that the decedent had some sort of a stroke a year or so before her death. The plaintiff contended that her mind was affected, but whether it went to the extent of rendering her incompetent is not clear. It is clear that her speech was affected to such an extent that it was difficult at times for her to make herself understood.

On December 21, 1946, when she delivered the writing and the savings account book to Fred Schuneman, he and his daughter were the only persons present and their testimony is substantially the same. Schuneman testified that:

“I went in and she hands me the bank book with that note, and she mumbled, and went like that * * *.

“Q. At this particular time what impression did she leave with you when she gave you the book and that note? A. Just as I told you, she made that motion, and she gave me the bank book and the note. She done it three or four times. She smiled ‘That’s yours. That’s all I can say.’ ”

Then, on cross-examination, he.testified:

“Q. A few weeks 'after that when she handed you the book, she could not say anything? A. Absolutely not, I will be frank with you too, she could not. She was mumbling. You could get a word or two, but you couldn’t- understand her right.”

He also testified that after he learned of the existence of the document captioned “hear is my will” he concluded to carry out its provisions.

Sehuneman’s daughter testified as follows as to ■what was said and done when the bank book and writing were handed to Sehuneman:

“Q. Will you tell Judge Kovacky just what was ■said as you understood it? A. Well she wa¡3 sitting in — should I tell him all ? — She was sitting in the front room when she wrote the note, and I was sitting there, and she asked — mumbled to me to call my dad. I called dad and she handed him the note and the bank book.

“Q. What was said, if anything, between your aunt, now deceased, Anna Milliman, and your father? Did any conversation take place when she handed' it to him? A. No, just a mumble like ‘This is yours.’ ” ;

When that transaction took place, Fred Sehuneman knew nothing of the existence of the document captioned ‘ ‘ Hear is my will. ’ ’ His daughter who was present had never heard of it. Only the decedent knew ■about it and she said nothing on the subject.

Now accepting as credible the testimony as to the-actions and inarticulate or semi-articulate utterances-of Anna Milliman on that occasion, do they have any tendency to prove that she intended to make an immediate and irrevocable transfer of the title to the-bank account to Fred Schuneman, as trustee for the-benefit of those named in the document captioned' “Hear is my will”? Certainly, she said nothing indicating any such intent. Whatever else her actions and utterances on that occasion may show, there is nothing to indicate the creation of a trust. ■

It is claimed that because the decedent had stated in the document, dated December 9, 1946, captioned' '“Hear is my will” that “I give Fred Schuneman, Sr.,, my brotherlaw for taking care of everthing, 1 hundred,” it can be inferred that what she did on December 21, 1946, is referable to the same intent. As they emerge from this record, the two incidents are completely unrelated and independant. Assuming, however, that the trier of the facts would be justified in attributing to the decedent the same intent on December 21st that she had on December 9th, that would have-, no tendency to prove that on December 21st she had the intent to make an immediate and irrevocable transfer on that date because that was not her intent on-December 9th. The intent which she manifested on December 9th was to make a will to take effect on her death and revocable at any time during her life, and if that was her intent on December 21st, what she did on that date would be ineffective for failure to-comply with the legal requirements in the making of' a will, just as what, she did on December 9th was ineffective.

In effect the trial court found that Schuneman was the agent or trustee of the legatees named in the defectively executed will, without any evidence of any such intent. In O’Brien, Admx., v. O’Brien, 112 Ohio St., 202, 147 N. E., 4, the court stated in the second paragraph of the syllabus, that:

“Delivery of a paper writing, describing personal property, and indicating an intention to give such personal property to the alleged donee, to a third person by an alleged donor in the presence of the alleged donee, without any direction or instruction from either, does not constitute a delivery to the alleged donee.”

We find no evidence'to support the finding that the decedent intended' to transfer this bank account to Fred Schuneman, as trustee, and that the court erred in so finding. No other error appears in the record.

The issue was raised by the pleadings as to whether the decedent intended by her actions and utterances on December 21st to make a gift to Fred Schuneman personally. His claim in his answer was that the decedent had that intent and delivered the bank book to him in pursuance of that intent. That issue has not been determined by the trial court.

We are of the opinion that the record contains evidence from which conflicting inferences may be drawn as to the decedent’s intent, when she delivered the bank book to Fred Schuneman. She may have intended to constitute Schuneman as her agent to receive and account to her without any intent to transfer title. On the other hand, she may have intended to give the account to him, which, of course, would effect the absolute transfer of title to him.

The decision of that issue requires a weighing of the evidence, the determination of the credibility of witnesses, and the drawing of inferences, and whether the burden of proof has been sustained, all appropriately done by the court of first instance, rather than by a reviewing court.

For these reasons, the judgment is reversed; and the cause remanded for further proceedings according to law.

Judgment reversed.

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

Matthews, P. J., Ross and Hildebrant, JJ., of the First Appellate District, sitting by designation in the Eighth Appellate .District.


text:
    Reed, Appellee, v. Pearl Assurance Co., Ltd., Appellant.
    (No. 1961
    Decided December 4, 1947.)

      Mr. Mason Douglas and Mr. Maurice J. Leen, Jr.,. for appellee.

      Messrs. Beigel & Mahrt, for appellant.
   By the Court.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery county, which rendered judgment on the verdict in favor of the plaintiff. The plaintiff sued for $3,000, being the amount of fire insurance carried on plaintiff’s dwelling and household effects by the defendant company. The dwelling and household effects of the plaintiff including the policy of insurance' were completely destroyed by fire on March 27, 1942.

The evidence clearly, shows that the value of the dwelling and household effects exceeded the amount of insurance.

The defendant, appellant herein, contends that the court erred: In overruling the motion of defendant to strike certain allegations from plaintiff’s reply; in overruling the motion for judgment on the pleadings; in overruling the motion of defendant for judgment at the end of the opening statement of counsel for the plaintiff; in refusing to grant judgment to the defendant notwithstanding the verdict; in overruling the motion of the defendant to dismiss the proceedings when the cross-examination developed that plaintiff was not the sole and exclusive owner of the personal property destroyed; in overruling motion of the defendant for judgment at the close of plaintiff’s testimony and, also, at the close of all the evidence; that the verdict of the jury is not sustained, by sufficient evidence; that the verdict is contrary to law; in refusing to give seven interrogatories; and in refusing to clarify the general charge on Section 9583, General Code.

Most of the assignments of error may be considered together as they concern the issues of fact made by the answer and the reply. Briefly stated the answer ■sets up noneompliance with the provisions of the policy which required the insured to submit a sworn proof of losa within 60 days after the loss occurred and, also, to bring an action within 12 months after the date of the loss. The plaintiff in his reply controverted the allegations in the answer by alleging waiver and estoppel by reason of the conduct of the agents of defendant company.

On the issues of fact there is direct conflict in the evidence. The policy of insurance was destroyed by the fire and as a consequence the plaintiff was required to seek direction from the.defendant’s agent as to the course of action to pursue to collect the proceeds of the insurance.

There is evidence from which the jury could reasonably conclude that within a few days after the fire the plaintiff called on one Mitchell, the agent of the defendant company, who issued the policy; that the plaintiff gave notice of loss; that Mitchell directed "the plaintiff to see Mr. Wolfe of the Underwriters Adjustment Company, who would handle the matter thereafter; that the plaintiff did see Wolfe, and upon his request, furnished an itemized list of the household ■effects which were destroyed and the value of each item; that the plaintiff later upon the request of Wolfe furnished a statement as to the origin of the fire and an estimate or bids on the cost to replace the dwelling; that the plaintiff, upon the request of Wolfe, filled out a typewritten paper, the purpose or nature of which the plaintiff did not understand, and signed it, which ■signature was witnessed by Wolfe’s stenographer; that Wolfe stated the paper which the plaintiff signed was “the legal procedure;” and that Wolfe stated the matter would be taken care of and that he had complete information.

Evidence presented- on behalf of the plaintiff further tends to show that on several occasions Wolfe stated the insurance money would be paid. The matter was delayed and shortly after the 12-month period expired the file was closed. However, the evidence shows that.the claim was never rejected by the defendant company until a ‘short time before the suit was filed in 1945.

In his testimony Mitchell admitted that plaintiff called on him a few days after loss occurred and that he referred plaintiff to Wolfe, stating that Wolfe would thereafter handle the matter. Wolfe in his testimony admitted that he. knew the policy had been destroyed by the fire; and that plaintiff furnished an itemized list of the household effects, but denied that plaintiff furnished an estimate or bids on the cost to replace the dwelling or a statement as to the origin of the fire as he requested. Wolfe further denied that plaintiff submitted a sworn proof of loss or that he made the statement that the claim would be paid. Mitchell testified that Wolfe had authority to take a proof of loss, and had authority to deal with the plaintiff. Mitchell, also testified that he had no knowledge that the claim had ever been disputed or liability denied. Mitchell also testified that the sworn proof of loss is prepared by the agent of the insurance company when the claim is -ready for submission for payment; and that the proof of loss may be prepared by the adjuster after all other preliminary matters are completed. The evidence shows that a sworn proof of loss was submitted to the defendant company in 1945, which was immediately rejected and the suit was promptly filed.

There is nothing in the record to indicate, and no contention is made, that the defendant company suffered any detriment or was prejudiced in any manner by the failure of the plaintiff to strictly comply with the terms of the policy.

After a consideration of the entire record and in view of the direct conflict in the evidence, we cannot find that the verdict is against the manifest weight of the evidence; neither do we believe the court committed error in overruling the defendant’s motion to dismiss when the plaintiff’s former wife from whom he was divorced in 1945 testified she claimed an interest in the household effects; neither do we find the verdict contrary to law. There is sufficient evidence to support the verdict. See Ohio Farmers Ins. Co. v. Cochran, 104 Ohio St., 427, 135 N. E., 537; Hartford Acc. & Indem. Co. v. Randall, 125 Ohio St., 581, 183 N. E., 433; Lind v. State Auto. Mutl. Ins. Assn., 128 Ohio St., 1, 190 N. E., 138; Mechanics & T. Ins. Co. v. Himmelstein, 24 Ohio App., 29, 155 N. E., 806.

The defendant requested the court to submit to the jury a number of special interrogatories. Seven were rejected by the court and we think properly so. The court in its general charge quoted Section 9583, General Code, which refers to the extent of liability under a policy of insurance in case of total loss.

At the end of the general charge counsel for defendant requested the court to further charge the jury “that this statute did not and does not prevent the defendant from requesting any and all proofs of claim sanctioned by the policy of insurance.” The court refused to so charge. Inasmuch as the court in its special instructions and in the general charge fully covered the matter, we are of the opinion that the charge in relation to this statute did not require such an explanation or qualification.

The defendant contends that the court erred in overruling defendant’s motion for judgment notwithstanding the verdict; the contention being that the answers to the special interrogatories are not consistent with the general verdict. In determining this question we are not permitted to consider the evidence; neither is the court permitted to render judgment on the special findings of. fact as against the general verdict unless such special findings, when considered together, are-inconsistent and irreconcilable with the general verdict. Commissioners v. Deitsch, 94 Ohio St., 1, 113 N. E., 745; Prendergast v. Ginsburg, 119 Ohio St., 360, 164 N. E., 345.

The special interrogatories submitted to the jury and the answers given thereto are as follows:

“Interrogatory No. 1.

“Did the defendant waive the twelve months limitation? A. Yes.

“Interrogatory No. 2.

“If you find defendant did waive the twelve months limitation, in what manner and when did it do so ?. A. When the insurance company agent failed to furnish-the plaintiff with sufficient instructions for his procedure according to the arrangements in the policy. Monday, March 30,1942.

“Interrogatory No. 3.

“Did plaintiff ever complete proofs of loss within sixty days after the fire in accordance with the terms-of the policy? A. Yes, since plaintiff’s policy was destroyed such proof of loss was' furnished by the plaintiff to the concerned adjusting agency according to the instructions furnished him by adjusting agency.

“Interrogatory No. 4.

“Did defendant waive the requirement of complete proofs of loss within the sixty days after the fire?' A. No.

“Interrogatory No. 5.

“If defendant waived the sixty-day requirement for complete proofs of loss, in what manner did it "do so?" A. No answer.”'

The answers to special interrogatories Nos. 1, 3 and 4, are clearly consistent with each other and with the general verdict. In answering No. 4 the jury found that the company did not waive the requirements that proofs of loss be furnished within 60 days, and in answering No. 3 the jury found in effect that proof of loss was furnished as required by the adjuster. We can find no inconsistency with respect to Nos. 1, 3 and 4. In our opinion special interrogatory No. 2 requires an answer which relates to evidentiary facts, rather than ultimate, controlling or determinative facts, and was not properly submitted. 39 Ohio Jurisprudence, 1158. Interrogatory No. 1 required an answer relating to an ultimate, controlling and determinative fact. The answer as given was definite and consistent with the general verdict. Interrogatory No. 2 was intended to draw from the jury a statement as to the mental processes by which and the evidence upon which the jury based its answer to Interrogatory No. 1. ^

Without discussing the numerous cases in support of the principle that an interrogatory which calls for evidentiary facts and which requires the jury to disclose the mental processes by which it arrives at conclusions of fact is improperly submitted, reference is made to the numerous cases cited under Section 11420-17, General Code, in Page’s Ohio General Code Annotated. Particular reference is made to Mays v. Minnich, 19 Ohio Law Abs., 516; Clos v. Chapman, 33 Ohio Law Abs., 307, 34 N. E. (2d), 811; and Garber v. Chrysler Corp., 38 Ohio Law Abs., 405, 50 N. E. (2d), 416, which are decisions by this court. See, also, Devou v. Searles, 12 Ohio App., 329, 331; Electric Rd. Co. v. Hawkins, 64 Ohio St., 391, 397, 60 N. E., 558. An answer to a special interrogatory which is improperly submitted may not be considered by the court in ■determining whether the verdict is consistent and reconcilable with the special findings. Brier Hill Steel Co. v. Ianakis, 93 Ohio St., 300, 303, 112 Ni E., 1013; Mason Tire & Rubber Co. v. Lansinger, 108 Ohio St., 377, 384, 140 N. E., 770; Hadcke v. Lease, 35 Ohio Law Abs., 381, 385, 41 N. E. (2d), 590.

The court is not justified in setting aside or disregarding the general verdict on the ground of'inconsistency with the special findings unless the conflict is clear and irreconcilable. Davis v. Turner, 69 Ohio St., 101, 102, 68 N. E., 819; Commissioners v. Deitsch, supra.

We are of the opinion that theré is not such a clear and irreconcilable conflict and inconsistency between the special findings and the general verdict as would warrant this court to hold that the trial court erred in overruling defendant’s motion for judgment notwithstanding the verdict.

Finding no error in the record, the judgment is affirmed.

Judgment affirmed.

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