author: Skeel, J.

text:
    Schoenmeyer, Appellee, v. Zahl, Appellant.

      (No. 23085
    Decided May 26, 1954.)

      Mr. Harry H. Elder, for appellee.

      Messrs. Arter, Hadden, Wykoff é Van Duzer, for appellant.
   Skeel, J.

This appeal comes to this court on questions of law from a judgment entered for the plaintiff in the Court of Common Pleas of Cuyahoga County. The action is one in tort in which the plaintiff claims to have been injured as a proximate result of the negligent operation of a motor vehicle operated by the defendant through her agent or servant. Judgment was entered for the plaintiff on a jury verdict.

From the judgment thus entered the defendant claims the following errors:

“1. The Court of Common Pleas erred in overruling defendant-appellant’s motion for a directed verdict made at the close of plaintiff-appellee’s evidence;
‘ ‘ 2. The Court of Common Pleas erred in overruling defendant-appellant’s motion for a directed verdict made at the close of all the evidence;
“3. The Court of Common Pleas erred 'n overruling defendant-appellant’s motion for judgment notwithstanding "the verdict of the jury, made before entry of the judgment;
“4. The Court of Common Pleas erred in overruling defendant-appellant’s motion for judgment notwithstanding the verdict of the jury, made after entry of the judgment;
“5. The Court of Common Pleas erred in entering judgment upon the verdict of the jury.”

The following facts are not in dispute.

On the morning of July 6, 1951, at about 10:45 a. m., a young man named Joseph D ’Amato was driving a Packard automobile on East 120th Street in the city of Cleveland in a northerly direction, and when passing through the intersection of East 120th Street with Gay Avenue it came into collision with a Ford automobile then being driven in an easterly direction on Gay Avenue by plaintiff’s husband. The plaintiff alleges that, as a proximate result of alleged acts of negligence of D’Amato in operating defendant’s Packard automobile, she sustained certain injuries for which she seeks damages.

The question of whether or not D’Amato was responsible for the collision and plaintiff’s injuries resulting therefrom is not raised in this appeal. The only question here presented is whether or not D ’Amato was at the time of the collision acting for the defendant as her agent and employee.

The Packard automobile was purchased in January 1951, and the certificate of title was taken in the name of the defendant. The motor vehicle license was also issued to the defendant. It is the claim of the defendant, however, that she bought the Packard automobile for her son, Lyle Zahl, who was then 18 years old, that he alone was to take care of all repairs and necessary services, and that he had the right to and did use the automobile as owner. It is the further claim of the defendant that at the time of the collision the Packard automobile was being operated by Joseph D’Amato, a friend of defendant’s son, Lyle Zahl, for his own purposes wholly without her knowledge, consent or direction, either express or implied.

The night before the accident, Lyle Zahl, together with his father (Joseph D’Amato going along but in his own car), went to the Markad G-arage at the intersection of Euclid and Superior Avenues, for a wheel alignment on the Packard automobile. The service man agreed that if the car was brought in the first thing the next morning (July 6, 1951) the work could be done and the car would be ready for delivery in the afternoon of the same day. There is some dispute as to whether or not the service man wanted them to leave the Packard at that time, but, because Lyle wanted to use it to get to work in the morning, and for that reason it was then agreed that Joseph JD ’Amato would drive Lyle to work and then return the car to the garage. In any event, they did not leave the Packard with the service man at that time.

The next morning (July 6,1951) Lyle Zahl drove the Packaru automobile to the residence of Joseph D’Amato at 14013 Bardwell Avenue, as was arranged the night before, so that D’Amato could drive Lyle to his work on a construction job located south of Nela Park on Noble Road. He was then directed by Lyle to return the Packard to the garage. After leaving Lyle at his place of work, D ’Amato drove home for a cup of coffee (which home was on the approximate route that would lie taken to get to the garage) and then (using the Packard instead of his own car) he drove to the house of a friend who lived south of Kinsman Road on East 124th Street to see about helping him paint his house. This trip took him a number of miles past and away from the location of the garage.

There is some suggestion in the record that he was given permission by Lyle Zahl to use the Packard for this trip, bnt there is not the slightest dispute that the trip was wholly and solely for the benefit of D’Amato and in no way concerned with any benefit or carrying out of any purpose of Lyle Zahl or his mother.

After leaving the house of his friend on East 124th Street (there is some evidence in the record that it was East 121 Street) Joseph D’Amato started back and after progressing only a few blocks was involved in the collision that caused injury to the plaintiff. The site of the collision was several miles away from any route which could be reasonably taken in going from Noble Boad to the intersection of Euclid and Superior Avenues in the city of East Cleveland.

There are just three questions which we need to consider.

First, is there any evidence to support the claim that Lyle Zahl was an agent acting in defendant’s stead with regard to the use and repair of the Packard automobile? The plaintiff’s contention on this subject begins with the undisputed fact that the defendant had the certificate of title and motor vehicle license issued in her name and argues from this fact that a person who assumes the obligation of repairs must, of necessity, be acting with regard thereto as the agent of the owner. But there is not one word of evidence that in making such repairs the son had the right or the power to bind the defendant for the payment of any of such obligations contracted for by him. The only evidence on this point is that the servicing and repair of the Packard automobile was the obligation of the son, for which the defendant assumed no responsibility. The son, Lyle Zahl, did not act as his mother’s agent in contracting for repairs that might be necessary in servicing the Packard automobile. There is not a word that could even suggest that, for any such contract which he might make, the repairman could look to this defendant for payment.

The fact that the record title of the automobile is in the defendant’s name does not, standing alone, establish her liability for its negligent use by another. She may deliver it in bailment or assume any other legal relation as owner of the legal title as would be possible with regard to any other property, so long as the title is not the subject of such agreement. Section 4505.04, Revised Code, a part of the Certificate of Title Act, and the cases which have interpreted it to mean that one cannot prove a right in or damage to a motor vehicle without showing ownership thereto by a certificate of title, as provided by law, have no application here.

The case of Garlick, Admr., v. McFarland, a Minor, 159 Ohio St., 539, 113 N. E. (2d), 92, dealt only with the title to an automobile as affecting an insurer of the vehicle, it being held that, even though a seller received full payment and made delivery of the vehicle to the purchaser, still, the insurer of the seller is liable for the negligence of the buyer in his use of the automobile before the certificate of title has been transferred under the particular terms of the insurance policy carried by the seller.

In the case of In re Estate of Case, 161 Ohio St., 288, 118 N. E. (2d), 836, it was held, in dealing with a claim o* a resulting trust where a father purchased a motor vehicle and put the certificate of title in the name of his daughter, although he used it as his own, yet she was the owner, and that an automobile under the certificate of title law of Ohio cannot be the subject of a resulting trust.

In the case of Kelley Kar Co. v. Finkler, 155 Ohio St., 541, 99 N. E. (2d), 665, it was held:

“5. One who claims a right, title or interest in or to a motor vehicle by virtue of a conditional sales contract executed in a state other than Ohio, which instrument purports to retain title in the claimant until the entire purchase price is paid, and which claimant does not possess an Ohio certificate of title covering such automobile and whose claim of right, title or interest under such conditional sales contract is not noted upon any Ohio certificate of title covering said automobile, cannot prevail in an action in replevin against one in Ohio who holds an Ohio certificate of title therefor and who purchased such automobile in good faith and for value from one in possession of said automobile and who held an Ohio certificate of title covering said automobile which did not bear on its face any notation of the right, title or interest claimed under such conditional sales contract so executed in a state other than Ohio." ’

And in the case of Mielke v. Leeberson, 150 Ohio St., 528, 83 N. E. (2d), 209, 7 A. L. R. (2d), 1342, it was held that a court cannot recognize the right, title, claim or interest in or to a motor vehicle without the production of a certificate of title issued under the Certificate of Title Act (Sections 4505.01 to 4505.19, Revised Code).

It is to be noted that these cases were all concerned with claims to the ownership or other rights by reason of the ownership of a motor vehicle and do not suggest that an owner is liable for the negligent use of a motor vehicle by another to which motor vehicle he has the certificate of title, where he does not direct the manner of its use through an agent or servant. The law of bailment has not been disturbed by these decisions dealing with the Certificate of Title Act.

There being no evidence in the record tending to establish that Lyle Zahl was, in the use and maintenance of the Packard automobile for his own benefit, either acting as defendant’s agent or servant or that he was acting for her or in her stead in any other capacity, there is, therefore, no legal basis upon which defendant can be held liable for any act of negligence on his part (when and if shown) in the nse of said automobile or the negligence of one using it at his direction and carrying out his purposes.

The second question presented by the record has to do with the place where the collision occurred, it being claimed by defendant that Joseph D ’Amato was then attending to his own business and that his conduct constituted a complete deviation from the purposes of any authority as an agent that might have been conferred upon him. Even if it should be considered that there is some evidence in the record upon which reasonable minds might differ as to whether Lyle Zahl, in having the Packard automobile serviced and repaired, did so as the agent or servant of his mother, and that he, as his mother’s agent, had the power to bind her in appointing a substitute, yet at the time and place of the collision the Packard automobile was being used by Joseph D’Amato for his own purposes and without the knowledge or consent of the defendant. There is little, if any, support in the record that Lyle Zahl knew that D ’Amato was going to use the Packard automobile to visit a friend on East 124th Street or East 121 Street south of Kinsman Eoad before returning it to the garage. The record shows clearly that it was Lyle Zahl’s expectation that the Packard was to be delivered to the garage early that morning. Lyle Zahl testified that the Packard was to be back at the garage at 8 a. m. or as soon thereafter as it possibly could be. There is some evidence that D ’Amato told Lyle Zahl that he was going to see a friend about a paint job, but there is no evidence that the Packard was to be used on such trip or that Lyle Zahl consented that it should be so used.

Whether D’Amato exceeded his authority in using the Packard instead of his own car in making the trip to East 124th Street is, however, not important, for the reason that it is clear from the record that such trip was completely disassociated from and an absolute deviation from D ’Amato’s authority to return the Packard to the garage. Any negligent act resulting in damage to another while thus engaged was Joseph D’Amato’s sole responsibility. Upon the undisputed facts, Joseph D ’Amato, at the time of the accident, was acting exclusively for his own purposes, and for his negligent conduct under these circumstances no possible liability can be charged against this defendant.

The final question to be considered is the ability of an agent (if and when such relationship is established) to bind his principal in appointing another to act in his stead. If it could be said that it was Lyle Zahl’s duty to see to the repairs of the Packard for his mother, he had no power to delegate such duty to another without his mother’s consent. The authority of the case of Cowley v. Bolander, 120 Ohio St., 553, 166 N. E., 677, makes it clear that, before a servant or agent is empowered to procure assistance in the discharge of his duties, such power must be expressly conferred or arise by implication or necessity. Providing or accommodating Lyle Zahl with a means of going to his own work as an excuse for seeking the help of another to take the automobile to the garage for repairs would not come within the rule thus stated.

For the foregoing reasons, the judgment of the trial court is reversed and final judgment is rendered for the defendant.

Judgment reversed.

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


source: Caselaw Access Project

author: Htjnsicker, J.

license: Public Domain

text:
    In re Estate of Mitchell: Mitchell, Appellant, v. Carter, Admx., Appellee.
    (No. 1313
    Decided June 2, 1954.)

      Mr. B. F. Vandemarh and Mr. John A. Weber, for appellant.

      Mr. Dan K. Cook, for appellee.
   Htjnsicker, J.

This is an appeal on questions of law from an order of the Probate Court of Lorain County, Ohio. There is no bill of exceptions, but, from the transcript of docket and journal entries, and the original papers filed in the trial court, we find the following matters revealed:

Roland Mitchell, a resident of the state of Florida, died in that state, possessed of personal and real property located in Lorain County, Ohio. Gladys Mitchell, the appellant in this action, a resident of the state of Florida, is the surviving spouse. Elizabeth Carter, the appellee herein, a daughter of the deceased Roland Mitchell, made application to the Probate Court of Lorain County for letters of ancillary administration, and was thereafter duly appointed ancillary administratrix of the estate of Roland Mitchell, deceased. The domiciliary administration is being conducted under the laws of the state of Florida.

An inventory and appraisement of the estate was thereafter filed by Elizabeth Carter. Gladys Mitchell, the surviving spouse of Boland Mitchell, deceased, filed her exceptions to the inventory, saying that the appraisers of the estate and the ancillary administratrix had not provided her a year’s allowance under the provisions of Section 10509-74, General Code, and that the appraisers and the ancillary administratrix had not, in such inventory, set aside to her the property exempt from administration under the provisions of Section 10509-54, General Code.

The Probate Court overruled the exceptions, and, from such order, an appeal is brought to this court.

Elizabeth Carter, by written motion, asks that the judgment of the trial court be affirmed, for the reason that no bill of exceptions has been filed in this case. We overrule this motion, because from the record it is possible to demonstrate errors of law, if such errors did occur in the course of the proceedings had in the Probate Court.

The basic issue herein is whether an allowance for property exempt from administration, as provided for under Section 10509-54, General Code, must be set off to a nonresident surviving spouse, in the local estate of a nonresident decedent.

By the terms of former Section 12102-31, General Code, and now by Section 2317.44, Bevised Code, “Every court of this state shall take judicial notice of the statutes of every state, territory, and other jurisdiction of the United States.” We hence must know that the laws of the state of Florida make provision for a personal property exemption to a surviving spouse as an allowance for a year ’s support.

The appellant herein, Gladys Mitchell, does not claim that she is entitled to a provision for a year’s support, but she does insist that she is entitled, under the terms of the statute, to an allowance, for property exempt from administration, in the amount of $2,500.

Section 10509-54, General Code (now Section 2115. 13, Revised Code), said:

“When a person dies leaving a surviving spouse, or a minor child or children, the following property if selected as hereinafter provided, shall not be deemed assets or administered as such, but must be included and stated in the inventory of the estate * * *, not exceeding in value twenty per centum of the appraised value of the property, real and personal, comprised in the inventory, but in no event is the value of the property not deemed assets to be more than twenty-five hundred dollars, if there be a surviving spouse, nor more than one thousand dollars if there be no surviving spouse, but surviving minor child or children, nor less than five hundred dollars in either case if there be so much comprised in the inventory and selected as herein provided; or, if the personal property so selected be of less value than the total amount which may be selected as herein provided, then such surviving spouse, guardian or next friend shall receive such sum of money as shall equal the difference between the value of the personal property so selected and such amount, and such sum of money shall be a charge on ail property, real and personal, belonging to the estate, prior to the claims of all unsecured creditors of the deceased or of the estate.”

Did the General Assembly, by the enactment of this legislation, mean that all surviving spouses are entitled to this exemption, or only those where the spouse who died is a resident of the state of Ohio ? If the latter, then the statute should read that, when a resident of the state of Ohio dies leaving a surviving spouse residing in the state of Ohio, the property exempt from administration shall be given to such surviving spouse. It might also be interpreted to read that, where the principal or domiciliary administration of an estate is in the state of Ohio, a surviving spouse shall be entitled to the exemption provided by law, if such spouse then resides in Ohio.

“1. In the construction of a legislative enactment, the question is not what did the General Assembly intend to enact but what is the meaning of that which it did enact.” State v. Stevens, 161 Ohio St., 432, 119 N. E. (2d), 616.

Is it possible for a surviving spouse to secure an exemption in every jurisdiction where a statute similar to the Ohio statute is in effect?

A review of the statutes and the decisions in other states indicates that the subject of exemption of property from administration and allowance of a year’s support depends upon the wording of the particular statute under consideration. New York, Pennsylvania, California, and other states, provide for a family allowance. In California, Washington, Iowa, and Minnesota, the fact that a surviving widow was a nonresident at the time of her husband’s death was deemed unimportant. In re Estate of Foreman, 16 Cal. App. (2d), 96, 60 P. (2d), 310; In re Estate of Pugh, 22 Wash. (2d), 83, 154 P. (2d), 308; Caldwell v. Caldwell, Exr., 192 Iowa, 1157, 186 N. W., 58; Barrett v. Heim, 152 Minn., 147, 188 N. W., 207.

In Kentucky (International Harvester Co. v. Dyer’s Admr., 297 Ky., 55, 178 S. W. [2d], 966), a nonresident widow of a resident decedent was decreed to be entitled to the exemption provided to a widow by the statutes of that state.

In Colorado, the statute provides for an allowance to a “ widow residing in ’ ’ the state. The courts of that state, therefore, say the widow must reside in the state at the time of the husband’s death. Lyons, Admx., v. Egan, Gdn., 110 Colo., 227, 132 P. (2d), 794.

In Arizona, it has been held that a nonresident widow cannot claim a probate homestead exemption, since such law exists only for the benefit of residents of that state. In re Graham’s Estate, 73 Ariz., 179, 239 P. (2d), 365. The position which Arizona takes, with reference to an allowance to a nonresident surviving spouse, is also the rule followed in Maine, Tennessee, North Carolina, Missouri, and South Dakota. Smith v. Howard, Admx., 86 Me., 203, 29 A., 1008, 41 Am. St. Rep., 537; Graham v. Stull, 92 Tenn., 673, 22 S. W., 738, 21 L. R. A., 241; Simpson, Admr., v. Cureton, 97 N. C., 112, 2 S. E., 668; Jaeglin v. Moakley, Admx., 236 Mo. App., 254, 151 S. W. (2d), 524; In re James’ Estate, 38 S. D., 107, 160 N. W., 525.

The theory adopted by the courts which refuse to grant a family allowance or a year’s support, is based on the view that the statutes of the state are enacted primarily with reference to and for the benefit of the resident citizens within such state. The theory adopted by the courts which grant a family allowance or property exempt from administration to a nonresident surviving spouse is based upon the words used in the statute then under consideration.

We have set out above the position taken by other jurisdictions in a situation similar to that which confronts this court, not for the purpose of conducting a poll of the authorities, but to show that there is no well defined general rule, and no uniformity in the reasons why one position is accepted and the opposing position rejected. Where we find such diversity, we must look to the terms of our statute, and seek to determine what the Ohio Legislature meant by the words it used in that statute.

A trial court in Ohio (In re Estate of McCombs, 52 Ohio Law Abs., 353) has determined that the statutes of Ohio do not create a right in favor of a widow of a nonresident decedent to a year’s allowance out of the personal property located in this state. The case of McCalla v. McCalla, Admx., 46 W. L. B., 280, although not fully reported, seems to be supporting authority for the position adopted by the trial court in the McCombs case, supra, although the terms of the statute then in effect (Section 6040, Revised Statute), which provided for a year’s support to the widow, has undergone a number of changes by legislative amendment.

The fact that a surviving spouse might be able to collect an exemption in many states if the deceased spouse held property in many states is not controlling. That which determines the question in the instant case is, what did the Legislature say, not what they ougnt to have said, or could have said. We must refrain from judicial legislation. That part of the statute (Section 10509-54, General Code) which we must consider said: “When a person dies leaving a surviving spouse, * * * the following property * * * shall not be deemed assets or administered as such * *

We are not dealing, in the instant case, with the question of an allowance to a widow of a year’s support. Such allowance was provided for by Section 10509-74, General Code (now Section 2117.20, Revised Code), but it is of interest to note again that by the terms of Section 10509-78, General Code (now Section 2117.23, Revised Code), the Legislature provided that when a nonresident decedent leaves property in Ohio, a Probate Court of the county in which property of the decedent is located may, in its discretion, set off a year’s allowance to the widow, but that no such allowance shall be set off if the laws of the decedent’s residence make provision for a year’s allowance. No similar provision of the law is found with reference to the exemption of property which was .called for by Section 10509-54, General Code. This is some indication that the Legislature did not intend that a nonresident surviving spouse should be deprived of the property deemed exempt from administration.

Although Section 10509-54, General Code, superseded a prior statute (Section 10654, General Code) dealing with property exempt from administration, it has been determined that:

“The present law (Section 10509-54, General Code) was enacted not as an amendment of the law (Section 10654, General Code) as it then stood, but as a new law. * * *
“We do not agree with counsel that the provision of Section 10509-54, General Code, took the place of Section 10654, General Code, as it stood before the new law was enacted. While it makes provision in some degree for similar items, it in no way should be construed as an amendment of the law as provided in Section 10654, General Code.” Jolley v. Brown, Admr., 15 Ohio Law Abs., 636.

We do not think it would be helpful to a decision in this case to discuss the doctrine of ancillary administration, for such administration is a local and subordinate administration of such part of the assets of a decedent as are found within a state other than that of his domicile. An approach to the instant case based upon the rules of conflict of laws, while it might be intriguing, does not provide the answer which the state of Ohio, through plain, unambiguous legislative language, has provided for the situation that confronts this court.

We do not know what prompted the Legislature to enact Section 10509-54, General Code, but we do know that many changes were made when this section was enacted and former Section 10654, General Code, was at that time repealed. These changes provided a more liberal allowance to the surviving spouse and made such allowance a charge on all property of the estate, real and personal. It provided, too, that such allowance is preferred over claims of unsecured creditors. The courts have said it is in the nature of a debt, which is owed to the surviving spouse and payable out of the deceased spouse’s estate. Raleigh et al., Admrs., v. Raleigh, 153 Ohio St., 160, 91 N. E. (2d), 241.

We also know that, when the Legislature enacted Section 10509-54, General Code, they, at the same time, also enacted Section 10502-1, General Code, by which statute vested dower was abolished in this state.

Section 10509-54, General Code, made no distinction between residents and nonresidents, and this court is bound by the language of that statute.

We, therefore, determine that the surviving spouse herein, though a nonresident, is entitled to have set off to her the property deemed exempt from administration, provided for by the statute in effect at the time her husband died.

The judgment is reversed, and the cause herein is remanded to the Probate Court, with instructions to direct the ancillary administratrix and appraisers to set off to Gladys Mitchell the property deemed exempt from administration.

Judgment reversed and cause remanded for further proceedings.

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


author: Hornbeck, J.

text:
    Heinze, Admr., Appellee, v. Eye et al., Appellants.
    (No. 5029
    Decided March 5, 1954.)

      Messrs. Brownfield, Ford & Douglas, for appellee.

      Messrs. Wiles & Doucher, for appellants.
   Hornbeck, J.

This is an appeal on questions of law from a judgment for the plaintiff and against the defendant, London Guarantee & Accident Company, Limited, in the sum of $5,914.40 and costs. The action was instituted by a supplemental petition filed by plaintiff-administrator against defendant insurance corporation, wherein it was averred that the plaintiff had recovered a judgment against defendant Harry W. Eye for $5,914.40 for damages for wrongful death of Frances Heinze by reason of an automobile accident which occurred on June 10, 1950, and that when the right of action accrued the defendant was insured against loss or damage, in the operation of the automobile involved in the accident causing death of plaintiff’s decedent, by the defendant company within limits of $5,000 for personal injury to or death of one person, plus certain costs and expenses of litigation. Defendant, by its answer, admitted its corporate capacity and generally denied all other averments of the petition.

The determinative question presented on this appeal is whether the defendant Harry W. Eye was on June 10, 1950, insured with the defendant company as alleged in the supplemental petition.

Although there are six assignments of error, all are encompassed in the issue just stated.

The facts essential to an appreciation of the question presented are that Harry W. Eye lived in Deer Run, West Virginia. In the spring of 1950, he had purchased a new Ford automobile and contemplated a trip. A George Sponaugle, an insurance agent living at Franklin, West Virginia, solicited insurance on the automobile. Because Eye was more than seventy years of age, Sponaugle was unable to obtain insurance for Eye in any one of the companies which he represented. In that situation, he made application to the state manager of what is known as the Assigned Risk Plan and the manager submitted the application to defendant company. This application was dated May 1950, and was signed by Eye. At the bottom of the application Sponaugle made the following certificate:

“I have read the Assigned Risk Plan for this state, have explained its provisions to the above applicant, and have included in this application all required information given to me by the applicant.”

Sponaugle was not a delegated agent of the defendant company, but a producer of the application for insurance,.

Under date of June 1,1950, in response to the reference from the manager of the Assigned Risk Plan and pursuant to the application of Eye, the defendant company wrote this letter to Sponaugle, with notation of a copy to Eye:

“Subject to our usual investigation, we are prepared to issue a policy for your applicant in the amount of $5,000 $10,000 B. I. and $5,000 P. D. to cover a 1950 Ford.
“The policy will be issued effective the date following receipt of your remittance by certified check, bank cashiers check or U. S. postal order in the amount of $45.20 'made payable to the London Guarantee & Accident Company. This remittance is based on a gross premium of $55.78 less a 10% commission to be retained by your office and less the $5.00 application fee. Please understand that this risk is not bound.
“If we do not hear from you within fifteen days, we shall assume that you are no longer interested in this assignment and shall close our records.”

On the 8th of June, Eye went to the office of Sponaugle and paid the premium on the policy for which he had applied. On that date Sponaugle wrote to defendant company, enclosing a- certified chéck for the sum of $45.20 for the automobile insurance of Eye. In the normal course of the mail, this letter would have reached New York City early on the morning of the 10th of June, and it would have been delivered to the company sometime during the morning of ihe 10th. ‘However, the defendant company did not open its offices for business on June 10, which was Saturday. On June 10, Eye had an automobile accident in the city of Columbus, which resulted in the death of plaintiff’s decedent. The accident occurred in the afternoon, about one or two o’clock. At the time, June 8th, Eye paid the insurance premium to Sponaugle, he was given this note:

“This is to advise that Harry W. Eye has insurance on his automobile with the London Guarantee & Accident Company, Ltd. of New York, 3, New York.
“The Pendleton County Insurance Agency
“By (Signed) George I. Sponaugle.”

The defendant company, in the course of business, marked the letter from Sponaugle of June 8, and remittance, as received on June 12, and, pursuant to the terms of its letter of June 1 to Sponaugle and the Assigned Risk Plan, issued its policy on June 13, 1950. Soon after the accident, Sponaugle was notified and. he in turn notified the defendant company which, after investigation, reported that the automobile was not covered and denied liability.

There are few disputed facts, and, as the judgment was entered by the trial judge after both parties had moved for a directed verdict, without any special findings of fact, we are required to indulge inferences most favorable to the plaintiff. In so doing, it may be said that Eye was not informed that the company would not issue the policy until one day after it had received remittance of the premium. Although it is testified that defendant company sent a copy of the letter of June 1 to Eye, he says he did. not receive it until after his accident; There is nothing in the application above his signature to require the conclusion that he knew of the provisions of the Assigned Risk Plan as to the date of the issuance of the policy.

It is the contention of appellant that the Assigned Risk Plan, its letter of June 1 to Sponaugle, and the date of the policy, as issued, definitely limited its obligation as to the effective date of the policy.

Plaintiff insists that the defendant company may not be heard to say that it had not issued a policy on the Ford automobile to the plaintiff because of the provision of Section 3410. [13], West Virginia Code of 1949, which is substantially the same as Section 9586 of the Ohio General Code. The West Virginia section provides:

‘ ‘ Any person who shall solicit an application for insurance shall, in any controversy between the assured or his beneficiary and the company issuing any policy upon such application, be regarded as the agent of the company, and not the agent of the assured.”

When Sponaugle assured Eye that he had insurance on his Ford, he had reason to believe that Sponaugle was authorized to make this statement and relied upon it. Although Sponaugle was not an appointed agent of the defendant company when it received the application and issued the policy, by force of law he became its agent, at least to the extent of the solicitation and the procuration of the policy. Although he had no authority from the company to make this written- statement to Eye, he had the apparent authority to do so and Eye was uninformed as to the limitation on that authority. In Sheppard, Admr., v. Peabody Ins. Co., 21 W. Va., 368, paragraph 10 of the syllabus reads:

“An insurance company, which establishes a local agency, is responsible for all the acts and declarations of its agent within the scope of his apparent authority. The question in such cases is not what authority he in fact has, but what were his apparent powers, that is, what powers had assured a right to believe were given to the agent.”

See, also, General Cartage & Storage Co. v. Cox, 74 Ohio St., 284, 78 N. E., 371, 113 Am. St. Rep., 959.

It is common knowledge, as is recognized in many of the cases, that it is the practice of insurance agents to bind their companies to the issuance of policies as of the date that the applicant makes formal or informal application to the agent.

Machine Co. v. Insurance Co., 50 Ohio St., 549, 35 N. E., 1060, 22 L. R. A., 768; Liberty Mutual Ins. Co. v. Houck, 32 C. C. (N. S.), 429, 35 C. D., 795; Hallauer v. Fire Assn. of Philadelphia, 83 W. Va., 401, 98 S. E., 441; Hall v. Franklin Fire Ins. Co., 149 Ohio St., 216, 78 N. E. (2d), 360.

Here there is no necessity to define any term in the policy except that which fixes the date when it must be said to have been issued. The company knew of the existence of the controlling statute by which, if it issued its policy, the solicitor would become its agent. It also knew, or should have known, that unless it made certain that the applicant was informed of the limitations on the solicitor’s authority he might believe that the agent could bind his company. The company could have made sure that the applicant was notified as to the extent of the authority of the solicitor.

Defendant cites and relies particularly on two federal cases and a late case from our own Supreme Court. They are Sun Insurance Office v. Scott, 284 U. S., 177, 76 L. Ed., 229, 52 S. Ct., 72, wherein it was held that our statute, Section 9586, General Code, does not define the scope of the agency but leaves it to be defined by applicable principles of common law.

The second case is Harter v. American Eagle Fire Ins. Co., 60 F. (2d), 245, which, in the fourth and fifth paragraphs of the headnotes holds:

“Where fire insurance policy limits scope of authority of insurer’s agent, written contract must control over statute defining authority (Gen. Code, Ohio, Section 9586).”
“Insured, relying upon waiver by local agent of conditions in fire policy, has burden to show agent’s authority (Gen. Code, Ohio, Section 9586).”

We believe that both of these cases may be distinguished from the instant cause, in that they were deciding the rights of both of the parties upon the terms of the policies which had been issued to them. In that situation, the insured could not be heard to say that he did not have knowledge of the limitations of the policy to which he was a party. Being put on notice by the express terms of his policy, he could not rely upon and bind the company by conflicting oral representations or conduct of its agent. In this case, in the most favorable aspect to the plaintiff it must be held that he did not know of any limitation upon the power of the agent tc bind his company. Had it appeared that Sponaugle informed Eye that in no event could his policy be issued until one day after remittance of the premium was received by the company, or that Eye had received a copy of the letter of June 1 from the Company to Sponaugle, the federal cases would be applicable — although it is a query whether they would control.

The Ohio case cited is Fay, Admr., v. Swicker, 154 Ohio St., 341, 96 N. E. (2d), 196, which is somewhat disconcerting upon the question whether Section 9586, General Code, has application to liability insurance. Judge Stewart, in the opinion, expresses some doubt on the matter, but his observation was not necessary to the judgment.. Whether the status of the West Virginia statute is similar to our Section 9586, General Code, as to legislative history has not appeared by oral argument or brief.

The judgment will be affirmed.

Judgment affirmed.

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


author: Griffith, P. J.

text:
    In re Estate of Coyle: Department of Taxation of Ohio, Appellant, v. Mizer, Exr., Appellee.
    (No. 202
    Decided March 4, 1954.)

      Mr. C. William O’Neill, attorney general, Mr. Jack R. Bertsch and Mr. Larry R. Snyder, for appellant.

      Messrs. Loomis é Jones, for appellee.
   Griffith, P. J.

This appeal is taken from an order of the Probate Court of Portage County, Ohio, overruling exceptions taken by the Department of Taxation, Division of Inheritance Tax, of the State of Ohio, to the determination of inheritance tax made in the estate of Edward A. Coyle, deceased.

The cause was submitted as an appeal on questions of law and pertains to the interpretation of items III and IV of the will of the deceased. Said items read as follows:

“Item III. All the rest and residue of my estate of every kind whatsoever, I give, devise and bequeath to Earl Mizer of Mantua, Ohio, in trust for the uses and purposes hereinatfer mentioned. The use and income of said property to be paid for the support and maintenance of my son, Clarence Coyle, with full power and authority on the part of said trustee to spend from the principal of said fund, if the use and income together with other property he'may have an interest in is not sufficient to support and maintain him. I further authorize and empower my said trustee to give to my said son any portion of the principal thereof which my said trustee may believe to be for the best - benefit of my said son. Said gift may, if my said trustee so elects, include all the remaining portion of said trust fund. It is the intent and purpose of this trust fund to provide for the support and maintenance of my said son, with power to consume the principal for his support and maintenance, and with the full power to give to said son any portion or all of said principal, in the event my said trustee shall determine that my son would not waste or foolishly expend said funds.
“Item IV. Whatever may be left, if any, in said ■ trust fund at the time of the death of my said son, I give, devise and bequeath to the heirs of his body. If-he shall not leave surviving him any heirs of his body, then 1 give, devise and bequeath whatever may be left in said trust fund, if any, to my blood nieces and nephews, share and share alike. If any of said nephews or nieces should die prior to the death of my said son, leaving surviving them heirs of Ms or her body, then said heirs shall receive the portion of said trust fund which said niece or nephew would have received, if living.” (Emphasis added.)

In the determination of the tax, it is the duty of the Probate Court, under the provisions of Section 5343, General Code, to take into account all possible contingencies set up in the will and to follow that line of succession which will yield the highest amount of tax.

The purpose of Section 5343 was stated as follows by our Supreme Court in the case of Wonderly, Gdn., v. Tax Commission, 112 Ohio St., 233, 147 N. E., 509:

“The frank purpose of the inheritance tax law seems to be to secure for the state the highest rate of taxation that any given succession is justly susceptible of in the legislative mind, and to secure the same to the state at the earliest moment, subject to such refunders as the Legislature has seen fit to allow.”

The court failed, in the determination of the tax, to take into account the interests of the heirs of the body of the nieces and nephews. It held that the remainder vested in the nieces and nephews at the death of the testator, subject to being divested if heirs of his body survived the son, and that the language used is that of an absolute bequest.

The controversy arises over the effect to be given to the concluding sentence in item IV, which reads:

“If any of said nephews or nieces should die prior to the death of my said son, leaving surviving them heirs of his or her body, then said heirs shall receive the portion of said trust fund which said niece or nephew would have received, if living.”

Clearly the nieces and nephews have a remainder which vested at the death of Edward A. Coyle. Is that remainder subject to divestment upon the happening of either of the following two contingencies'?:

1. The death of the testator’s son with heirs of his body surviving.
2. The death of the nieces and nephews prior to the death of the son with their heirs of the body surviving.

The first contingency was recognized by the Probate Court but not the second. The Tax Commissioner contends that the court should have taken into consideration this possible contingency in its determination. This the court did not do, holding that, the remainder having vested in the nieces and nephews, there could be no estate over to their “heirs of the body.”

The court felt that the provision at the end of item IV is of no legal effect or is at most precatory in nature, and that the blood nieces and nephews of the testator were given an indefeasible estate in fee simple of whatever may be left in the trust fund upon the death of the son if the son does not leave any heirs of his body.

It is a well established principle of law that an absolute power of disposition or alienation in the first taker defeats a limitation over by way of executory devise. A person cannot, in his will, give an absolute fee in one clause and then limit it or take it away in another clause of the will.

In the instant case, the fee which vested in the nieces and nenhews was subject to be divested if the contingency set forth in the last clause of item IV should occur and, if it should occur, then the fe° which was vested in the nieces and nephews became divested and vested then in the heirs of the body of the nieces and nephews.

At the time of the death of the testator, the nieces and nephews had no right to possession immediately upon the determination of the particular intervening estate for three reasons:

1. The son may, at his death, leave heirs of his body.
2. The trustee, Earl Mizer, may spend from the principal all the trust fund, so that such fund would be totally exhausted at the time of the death of the son.
3. The nieces and nephews may die prior to the death of the son leaving “heirs of his or her body.”

In the case of Norris, Exr., v. Beyea, 13 N. Y., 273, the court, in discussing the application of the principle of law that an absolute power of disposition or alienation in the first taker defeats a limitation over by way of executory devise, stated in the opinion, at page 284:

“But there is, in truth, no repugnancy in a general bequest or devise to one person, in language which would ordinarily-convey the whole estate, and a subsequent provision that upon a contingent event, the estate thus given should be divested and go over to another person. The latter clause, in such cases, limits and controls the former, and when they are read together it is apparent that the general terms which ordinarily convey the whole property, are to be understood in a qualified and not an absolute sense.”

The concluding clause in item IV clearly created a condition or contingency which may happen and which comes within the purview of Section 5343, General Code, and the court should have heeded it. This clause limits the fee in the nieces and nephews.

Under item III of the will, the trustee was clothed with authority to spend from the principal of the trust if the income thereof should not be sufficient to support and maintain the testator’s son who was the life beneficiary of the trust.

The largest tax in which any contingency the remaindermen may be required to pay requires the executor, in this case, to assume that the son will die without heirs of his body, and that all the blood nieces and nephews will die prior to the death of the said son leaving surviving them “heirs of his or her body” who would receive the portion of said trust fund which said nieces and nephews would have received if living.

The case of Cleveland Trust Co., Trustee, v. Andrews (unreported), No. 1278, Lorain County Court of Appeals, decided March 25, 1953, has been cited by the defendant.

In that case, the will provided for a life estate to the wife and then the estate was to pass to. the four children and to the children of testator’s daughter, Clara, absolutely and in fee simple, and then it provided that should any of his children in the meantime die leaving heirs of his body, such portion should go to their children in equal shares.

The court properly held that the remainder vested upon the death of testator. The provision in that will differs from that in the instant case in which it is provided :

“If any of said nephews or nieces should die prior to the death of my said son leaving surviving them heirs of his or her body, then said heirs shall receive the portion of said trust fund which said niece or nephew would have received if living. ’ ’

In the case before us, the will specifically provides a gift over to the heirs of the body of the nieces and nephews if said nieces and nephews ‘ ‘ should die prior to the death of said son, leaving heirs of the body surviving. ’ ’

Such being the case, the heirs of the body of the nieces and nephews do take a contingent interest under the will, and such interest being a possibility or contingency should be considered in the determination of the tax.

The court should take into account all the possible contingencies set up in items III and IV of the will and follow the line of succession which will yield the highest amount of inheritance tax.

It is our opinion, therefore, that the tax on the succession to Earl Mizer, in trust, under item III of the will of Edward A. Coyle, deceased, should be controlled by subdivision 3, Section 5335, General Code, which fixes the rate at 7 per cent on such portion of the value of the property transferred up to $25,000, and with no exemption.

For the reasons given, the judgment of the Probate Court is reversed, and the cause remanded for determination of the tax in accordance with this opinion.

Judgment reversed.

Phillips and Nichols, JJ., concur.


author: Per Curiam.

text:
    The Liberal Market, Inc., Appellant, v. The Main-Nottingham Investment Corp. et al., Appellees.

      (No. 2284
    Decided April 1, 1954.)

      Messrs. Froug £ Froug, for appellant.

      Messrs. Coolidge, Becker, Wall £ Wood and . Mr. Jerome Goldman, for appellees.
   Per Curiam.

This cause is submitted on motion of appellee for an order dismissing the appeal on questions of law and fact on two grounds, first, the action is not appealable on questions of law and fact, and, second, no proper appeal bond was filed as required by law.

The action was instituted requesting a declaration by the court as to the rights, duties and responsibilities of the respective parties with reference to a lease. A temporary restraining order was granted to prevent the defendant from erecting a building pending the final disposition of the action. The request for and the granting of the temporary restraining order did not convert the action into a chancery action. Wall v. Dayton Federation Co., 121 Ohio St., 334, 168 N. E., 847; Complete Building Show Company v. Albertson, 99 Ohio St., 11, 17, 121 N. E., 817. The primary relief sought as indicated by the pleadings and the prayer was legal. Nordin v. Coulton, 142 Ohio St., 277, 51 N. E. (2d), 717; Wall v. Dayton Federation Co., supra; Complete Building Show Company v. Albertson, supra; O’Leary, Exr., v. Burnett, 87 Ohio App., 70, 87 N. E. (2d), 897. The proceeding is in no sense a chancery action and is not appealable on questions of law and fact. 2 Ohio Jurisprudence, 138, Section 70.

The plaintiff, appellant herein, signed an appeal bond on Jannary 13, 1954, more than 20 days after the judgment was entered. However, a motion for new trial was filed, which was overruled by entry filed January 19,1954. On January 19,1954, notice of appeal on questions of law and fact was filed, and on the same day the appeal bond was filed. The appeal is taken from the judgment and, also, from the order overruling the motion for new trial. A motion for new trial having been filed, the time within which to perfect an appeal did not begin to run until the entry overruling the motion for new trial was journalized. Section 2505.07, Revised Code. Under Section 2505.06, Revised Code, the appeal bond must be filed at the time the notice of appeal is required to be filed, which was done. The fact that the bond was actually signed by the principal and surety before the entry overruling the motion for new trial was journalized did not invalidate the bond. The statutory requirement refers to the filing of the bond and not to the actual signing of the bond. Counsel for appellee cite Mullins v. Webb, 25 Ohio App., 352, 157 N. E., 815, and Wilson v. Holeman, 2 Ohio, 25C, in support of their contention that the bond was prematurely filed and therefore void. In the two cases cited the bonds were not only executed but were filed in court before the judgment was entered. In the case at bar, the bond was signed after judgment had been entered and was filed after the entry overruling the motion for new trial was journalized.

In the case of Mullins v. Webb, supra, on page 354, the court cited a Nevada case, where the facts were similar to those in the instant case and said:

“In Paul v. Cragnaz, 25 Nev., 293, 59 P., 857, 60 P., 983, 47 L. R. A., 540, the Nevada Supreme Court considered a cáse where the appeal bond was signed prematurely, but filed within the time prescribed by the statute. That court held that the filing was required by the statute only to be within the time fixed, but it added that, if it had been filed before the time, it would have been wholly nugatory.”

Under the Ohio statute, the- filing date of the bond is the vital factor in perfecting an appeal on questions of law and fact.

Defendants, appellees herein, contend that the bond is not a proper bond under the statute, as it was not approved by the trial judge or the clerk as required by Section 2505.10, Revised Code. The bond does not show approval by either the trial judge or the clerk. Plaintiff contends that Section 2505.10, Revised Code, applies only to a supersedeas bond given in an appeal on question of law, and that Section 2505.06, Revised Code, does not require the bonds approval by the trial judge or the clerk.

Section 2505.06, Revised Code, provides as follows:

“Except as provided in Section 2505.12 of the Revised Code, no appeal shall be effective as an appeal upon questions of law and fact until the order, judgment, or decree appealed from is superseded by a bond in the amount and with the conditions provided in Sections 2505.09 and 2505.14 of the Revised Code, and unless such bond is filed at the time the notice of appeal is required to be filed. ’ ’

Section 2505.12, Revised Code, has no application.

It will be observed that. Section 2505.06, Revised Code, provides that the judgment appealed from must be superseded by a bond “in the amount and with the conditions provided in Sections 2505.09 and 2505.14 of the Revised Code.” Section 2505.09, Revised Code, refers to the execution of a supersedeas bond and expressly provides that such bond shall be conditioned as provided in Section 2505.14, Revised Code. Section 2505.10, Revised Code, provides that before a bond mentioned.in Section 2505.09, Revised Code, shall opératelo stay,execution of the judgment it must -be approved by the trial court or the clerk. While it is true Section 2505.06, Revised Code, does not expressly refer to Section 2505.10, Revised Code, the reference to Sections 2505.09 and 2505.14, Revised Code, requires the appeal bond mentioned in Section 2505.06, Revised Code, to be executed, approved and conditioned as a supersedeas bond given in an appeal on questions of law. In our opinion, Sections 2505.06, 2505.09, 2505.10, and 2505.14, Revised Code, are in pari materia and must be construed together.

The appeal bond mentioned in Section 2505.06, Revised Code, serves a dual purpose, first, a compliance with the statutory requirement in perfecting an appeal on questions of law and fact, and, second, as a supersedeas bond. An appeal bond given in an appeal on questions of law and fact should be approved for the same imperative reason applicable to appeals on questions of law. The form of the bond and the sufficiency of the sureties should be approved by the trial court or the clerk to assure protection to the appellee, and this statutory requirement applies whether personal sureties or a surety company executes the bond.

This court has no power to permit the appellant to change, renew, amend or give a new bond in this case, since the time limit within which a proper bond may be filed has long since expired. See Mullins v. Webb, supra, at page 355, and Main v. Cummins Wild West Exhibition Co., 84 Ohio St., 462, 95 N. E., 1151.

The motion to dismiss the appeal on questions of law and fact is sustained on both grounds, and the the cause will stand as an appeal on questions of law. Appellant is granted leave to perfect the appeal on questions of law as provided in supplement to Rule VII.

Motion sustained.

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


author: Deeds, J.

text:
    Frederick A. Schmidt, Inc., Appellee, v. Brock, Appellant.
    (No. 645
    Decided April 13, 1953.)

      Messrs. Flynn, Py <& Kruse and Mr. Raymond N. Watts, for appellee.

      Messrs. Carpenter & Carpenter and Mr. Michael C. Lacinak, for appellant.
   Deeds, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Huron .County.

The action was commenced in that court by the appellee, Frederick A. Schmidt, Inc., as plaintiff, against the appellant, Mrs. Bryan Brock, as defendant, to recover a sum alleged due the plaintiff, a real estate broker, on account of the sale of a two-family residence owned by the defendant and her husband. The parties will be referred to in this opinion as plaintiff and defendant, as they appeared in the Court of Common Pleas.

The case was tried to a jury upon the petition of the plaintiff and the answer of defendant, resulting in a verdict in favor of the plaintiff, following which motions for a judgment notwithstanding the verdict and for a new trial on behalf of the defendant were overruled and final judgment entered for the plaintiff, which judgment is now before this court for review pursuant to notice of appeal on questions of law.

The pertinent allegations of the petition of the plaintiff are that the plaintiff is a duly licensed real estate broker engaged in business in Cincinnati, Ohio; that on and prior to April 13, 1949, the defendant was the owner of certain real property located at 1233 Beacon Street in the city of Cincinnati; and that on that date defendant listed such property with the plaintiff as sole agent to procure a purchaser therefor by virtue of a written agreement whereby plaintiff was given the exclusive agency for three months to sell said real estate for the sum of $18,900, for which sale plaintiff was entitled to a commission of 5 per cent of the selling price. A copy of the “selling agency contract ’ ’ was attached to the petition, marked exhibit A, and made a part thereof.

Here it should be noted that plaintiff omitted any allegations referring to a 30-day extension period appearing in the “selling agency contract,” but which will be considered later in this opinion.

The plaintiff alleged further in its petition that it secured a prospective purchaser for the property, that it was sold by the defendant for the sum of $17,500, and that defendant and the purchaser prevented the consummation of the agreement of sale until the expiration of the time limit under the listing contract, although the plaintiff was the procuring cause of the purchase of the property by the purchaser. Plaintiff prayed for a judgment for the amount of commission claimed due it by reason of the sale.

The answer of the defendant admitted that plaintiff was a duly licensed real, estate broker in the city of Cincinnati, that defendant was the owner of the real estate described by the plaintiff, and that the contract attached to the petition of the plaintiff was executed as alleged.

Defendant denied that the property was sold to a prospective purchaser furnished by the plaintiff, and further alleged that defendant sold the property to a person after the expiration of plaintiff’s selling contract for the sum of $17,500, and denied all other allegations of the petition.

Several assignments of error are relied upon by the defendant as grounds for a reversal of the judgment, including the refusal of the trial court to sustain the motion of defendant for a directed verdict, made at the close of the evidence. Nevertheless, in view of the conclusion which this court has reached after a consideration of all the evidence and the written contract existing between the parties it becomes unnecessary to consider separately the assignments of error.

The plaintiff has based its right to a recovery squarely upon the written “selling agency contract” attached as exhibit A and made a part of its petition. The terms of the contract are clear and unambiguous. Provisions of the contract having reference to price, dates fixing the time for expiration of the selling agency, and the specific obligations of the plaintiff as a broker are pertinent and decisive of the issues, in the light of the uncontradicted evidence as we consider it. The agency contract was prepared by plaintiff and executed by the parties at Cincinnati, Ohio, on April 13, 1949, and contained an introductory statement at the top of the printed form as follows:

“2864
“The printed and written contract on this page constitutes the entire agreement between the parties and no oral or verbal agreement or understanding shall bind either of them.”

A provision then appears in the following language:

“I/we hereby authorize and employ you as my/our sole agent to procure a purchaser for the following described real estate, situated in the city of Cincinnati, county of Hamilton, and state of Ohio and known as Anderson Township, — 1233 Beacon St.”

The price at which the property was to be sold is fixed as follows: “for the sum of eighteen thousand nine hundred dollars ($18,900.00).”

It is then expressly agreed, respecting the payment of a commission:

“In consideration of your efforts to procure a purchaser, I/we agree to pay you the rate of commission as established by the Cincinnati Real Estate Board, said commission to be paid when binding contract for the sale is executed, and further agree that you shall have the exclusive right to sell said real estate for a period of three months, and that you shall be entitled to your commission if the real estate is sold or exchanged by you, or the undersigned, or any other person, at any price acceptable to the undersigned, during the existence of this contract. ’ ’

What has been referred to as a 30-day grace period following the 3-month listing, is provided as follows in the contract:

“The sale or exchange of the real estate described above, to any person to whom the broker shall have offered the same during the term of this contract, if such sale or exchange is consummated within thirty days after its termination, shall be considered a sale effected by said broker and shall entitle him to the commission herein agreed to be paid.”

The agency relationship between the parties had come to an end pursuant to the terms of the contract on August 12 and, thereafter, a sale was consummated on August 15, 1949, under negotiations directly between the purchaser and the defendant, at a price substantially lower than had been contemplated under the terms of the brokerage agreement.

It is uncontradicted that the sale in question was consummated on August 15, 1949, as evidenced by purchase contract and copy of warranty deed appearing in the record, marked as exhibits A and 1 respectively, each bearing the date of August 15, 1949.

We find no evidence of a substantive character in the record concerning either bad faith on the part of the defendant or any unjustifiable conduct by the defendant preventing a sale of the property to the purchaser prior to the date of the expiration of the agency contract. The evidence introduced by the plaintiff relating to the considerable efforts exerted by it and the conflict as to how and by whom the purchaser was procured, become immaterial as no effective result was accomplished by plaintiff before the expiration of its contract with the defendant.

The rule of law applicable to written contracts where the terms are clear and unequivocal is firmly established and has been stated clearly by the Supreme Court of Ohio in the case of First National Bank of Van Wert v. Houtzer, 96 Ohio St., 404, 407, 117 N. E., 383:

“The parties under the issues in this case are presumed to have intended to contract in the manner and form in which they did contract. They are presumed to have intended to have given to the language of the contract the ordinary and usual meaning given to such language.
“True, this is a suretyship contract, and the rule has been well established for many years that such shall be strictly construed in favor of the surety. But that does not warrant a court in reading into a contract something that is not there by act of the parties, whether that something be a word, phrase or clause, varying the terms of the contract, or in reading into the contract doubt and ambiguity where the meaning is perfectly clear.
I ( # # *
‘ ‘ The language of the first bond ‘ he or either or any of them’ as well as the language of the second bond, ‘he, they and it,’ is so broad and comprehensive that it clearly includes not only the firm, but each member thereof as individuals, and it is quite manifest that the parties must have so understood it; at least the law presumes such understanding in the face of this simple and ordinary every-day language.
“The very foundations of business mate it obligatory that all parties shall fully and faithfully carry out the terms and conditions of each contract according to its spirit and purpose as shown by the four corners of the contract.”

The principles of law applicable to the right of compensation of an agent pursuant to an employment contract are stated in 2 Restatement of the Law of Agency, 1037, Section 445, as follows:

“Except where there is revocation in bad faith, in which case the rule stated in section 454 is applicable, an agent whose compensation is conditional upon the performance by him of specified services, or his accomplishment of a specified result, is not entitled to the agreed compensation unless he renders the specified services or achieves the result.”

The conclusion reached by this court is that the Court of Common Pleas erred in overruling the motion by defendant for a directed verdict at the close of all the evidence and in not granting the motion of defendant for a judgment notwithstanding the verdict, for which errors the judgment is reversed and final judgment will be entered for the defendant.

Judgment reversed.

Fbss and Conn, JJ., concur.


text:
    Roberts, Appellant, v. The Cincinnati Gas & Electric Co., Appellee.
    (Two cases.)
    (Nos. 7871 and 7872
    Decided May 24, 1954.)

      Mr. William Isaacs, for appellant.

      Messrs. Peck, Shaffer & Williams, Mr. C. S. Weakley, Mr. Richard H. Rhein and Mr. Arthur J. Daly, for appellee.
   Per Curiam.

These cases are appeals from the Industrial Commission which denied a claim for compensation because of the death of George Roberts, resulting from alleged injuries sustained by him in the course of and arising out of his employment by the defendant, a self-insurer at the time.

At the close of the plaintiff’s evidence, the defendant moved for an instructed verdict, which motion was sustained, and, thereafter, judgment was entered on the verdict. The sustaining of the motion for an instructed verdict is the first error assigned in these appeals.

At the hearing before the Industrial Commission, no such motion, or motion challenging the sufficiency of the plaintiff’s evidence, was made when she rested. It is asserted here that such omission precluded the making of any such motion at the trial on appeal. We cannot agree with this contention. The plaintiff had available for her purposes all the evidence contained in the record, as certified to the Common Pleas Court by the Industrial Commission, whether it had been introduced by her or by the defendant. She could have introduced it all before resting.

The procedure before the Industrial Commission in no manner sets the pattern for the trial in the Common Pleas Court. Section 1465-90, General Code (Section 4123.51, Revised Code), limits the evidence at the trial in the Common Pleas Court to that in the certified record, but does not prescribe the details of the trial procedure. Indeed, in Section 1465-90, in declaring the right to appeal, the method of appeal is described as the same as “in the ordinary civil cases.”

That the parties can bind themselves by stipulations made in the Common Pleas Court which were not made before the Industrial Commission was decided in Industrial Commission v. Kauffman, 119 Ohio St., 494, 164 N. E., 510.

Verdicts have been instructed in cases of this kind many times.

We think it is safe to say that, except to the extent modified by the express terms of Section 1465-90, the entire Code of Civil Procedure applies to the trial of Industrial Commission cases.

Next, it is urged that, even assuming that the defendant had the right to move for an instructed verdict at the close of the plaintiff’s evidence, the court erred in sustaining such motion. We have examined the evidence in the light of this claim and are of the opinion that the court did not err.

We are of the opinion that there is no substantial evidence that the employee’s death was caused or accelerated by an injury received in the course of and arising out of his employment and that such injury had a direct causal relation to his death. McNees v. Cincinnati Street Ry. Co., 152 Ohio St., 269, 89 N. E. (2d), 138.

For these reasons, the. judgment is affirmed.

Judgment affirmed.

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


author: Nichols, J.

text:
    The State of Ohio, Appellee, v. Hawkins, Appellant.

      (No. 912
    Decided November 27, 1954.)

      Mr. William H. Irwin, prosecuting attorney, and Mr. Joseph L. Liverno, for appellee.

      Mr. A. G. Lancione, for appellant.
   Nichols, J.

Betty Hawkins was convicted in the Court of Common Pleas, Belmont County, Ohio, of the crime of murder in the second degree and on November 26, 1954, she was correctly sentenced by Judge Ross Michener of that court to imprisonment in the Ohio Reformatory for Women until legally released. She was not sentenced to imprisonment in that institution during life, nor could the judge lawfully have done so.

On November 27, 1954, counsel for Betty Hawkins filed her notice of appeal on questions of law, and her appeal is now pending for hearing and decision in this Court of Appeals, whereupon she filed her application for suspension of sentence and for admission to bail pending the further order of this court upon such appeal.

Counsel for the state of Ohio and for the appellant are now before me, one of the judges of the Court of Appeals, counsel for the state objecting to the granting of the application, and particularly to the granting thereof by one judge only of this court. Altogether trustworthy and reliable counsel differ slightly as to what may have taken place in the Common Pleas Court after sentence was imposed by Judge Michener, counsel for the state representing that Judge Michener refused to grant suspension of execution and admission to bail, while counsel for the accused states that' Judge Michener, when the matter was informally discussed with him, merely suggested that notice of appeal be immediately filed and application made in the Court of Appeals, which has been done. The slight differences between counsel are immaterial, since an examination of the record in this case fails to disclose that any such application was made to Judge Michener and there is no entry on the docket or journal showing that Judge Michener refused to grant any suspension or bail, and since the court speaks only by itk journal I am not now faced with any question of reversal of Judge Michener. After the notice of appeal was duly filed herein the Common Pleas Court lost jurisdiction to make any orders in the case pending decision of the Court of Appeals upon final hearing herein.

' A further examination of the record in this case discloses that Betty Hawkins was originally charged with murder in the first degree and was admitted to bail on that charge upon giving recognizance in the sum of $6,000. The grand jury returned a “not true” indictment of Betty Hawkins on the charge of murder in the first degree but did return a true indictment charging her with murder in the second degreé. Upon arraignment on such true indictment she plead “not guilty,” and thereupon Judge Michener admitted her to bail in' the amount of $6,000 and the original bail recognizance was' cancelled.

Subsequently the case of the State of Oftio'against Betty RawTcins came on for trial before Judge Michener and a jury and the jury returned its verdict of guilty of murder in the second degree, after which Judge Michener continued her bail bond in effect, and that bond has never been released or discharged by any order of the Common Pleas Court, nor has it been can-celled or released by operation of law for the reason that Section 2937.29, Revised Code (formerly Section 13435-9, General Code), provides as follows:

“In all cases in which an indictment is returned * * * in the Court of Common Pleas, the court shall require the accused to enter into a recognizance in such amount as the court shall fix. [This provision was complied with, the only exception to bail being in cases of treason and murder in the first degree where the proof is evident or the presumption great.] It is not necessary to renew such recognizance at the end of the term or at any other time, except upon motion made to the court, but the court, upon its own motion, may renew * * * such recognizance. [This was accomplished by the order of Judge Michener continuing her bond.] Such recognizance, when so given, shall be conditioned that the defendant abide the order and judgment of the court, and appear from day to day and not depart without leave until such case is finally disposed of. It is not necessary, when such recognizance is so executed [and it was so executed in this case], for the accused to give another recognizance pénding proceeding in error, but such recognisance shall continue * * * throughout such proceeding in error. The court in in which such error is prosecuted * * * may increase or decrease such recognizance or remand the accused to the sheriff of the county in which such indictment was returned * * V’ (Emphasis supplied.)

Under the Appellate Procedure Act error proceedings are now instituted by the filing of a notice of appeal upon questions of law.

See Section 2953.11, Revised Code, authorizing suspension and bail pending decision on the appeal after commitment to the penal institution in all cases except murder in the first degree.

After the conviction of Mrs. Hawkins of murder in the second degree and the overruling of her motion for a new trial she appeared before Judge Michener for sentence and was sentenced to an indeterminate term in the women’s reformatory until legally released, in strict accordance with Section 5143.23, Revised Code (formerly Section 2148-5, General Code), which provides:

“All female persons over sixteen years of age, convicted of felony, except murder in the first degree without the benefit of recommendation of mercy, shall be sentenced to the reformatory for women in the same manner and for the same statutory penalties and subject to the same laws governing paroles and releases as are male persons now sentenced to the penitentiary and to the reformatory.” (Emphasis supplied.)

Section 5143.05, Revised Code (formerly Section 2132, General Code), provides:

“Courts imposing sentences to the reformatory shall make them general, and not fixed or limited in their duration. The term of imprisonment shall be terminated by the Pardon and Parole Commission, as authorized by Sections 2965.09 to 2965.18, inclusive, of the Revised Code, but the term of such imprisonment shall not exceed the maximum term, nor be less than the minimum term provided for such felony.” (Emphasis supplied.)

There is no minimum term of imprisonment for persons found guilty of murder in the second degree, as will be seen from the following quoted provisions of Section 2901.05, Revised Code (formerly Section 12403, General Code):

“No person shall purposely and maliciously kill another. Whoever violates this section, * * * [except murder in the first degree, murder by obstructing or injuring a railroad, killing a guard and tailing the life of a police officer] is guilty of murder in the second degree and shall be imprisoned for life.” (Emphasis supplied.)

Thus it is observed that the quoted section provides for a fixed penalty — not a maximum and minimum penalty. If a literal interpretation of the words of the section is given then such interpretation would do violence to, and run counter to, Sections 5143.05 and 5145.01, Revised Code, which provide that sentences for all felonies except treason and murder in the first degree shall be “general and not fixed or limited in their duration.”

It is a rule of universal acceptance that all criminal laws shall be interpreted most favorably to. the accused and against the state when interpretation is required.

. Hereinabove I have quoted the provisions of Section 5143.23, Revised Code, relating to imprisonment of females in the women’s reformatory and since that section states that females “shall be sentenced to the reformatory for women in the same manner and for the same statutory penalties and subject to the same laws governing paroles and releases as are male persons now sentenced to the penitentiary,” I now quote the provisions of Section 5145.01, Revised Code (formerly Section 2166, General Code), as follows:

“Courts imposing sentences to the penitentiary for felonies, except treason, and murder in the first degree, shall make such sentences general and not fixed or limited in their duration. All terms of imprisonment of persons in the penitentiary may be ended in the manner provided by law [meaning, of course, the law governing paroles and releases], but no such terms shall exceed the maximum term provided for the felony of which the prisoner was convicted, nor be less than the minimum term provided for such penalty.
i t * * *
“If, through oversight or otherwise, a sentence to the penitentiary should be for a definite term, it shall not thereby become void, but such person shall be subject to the liabilities of such sections and receive the benefits thereof, as if he had been sentenced in the manner required by this section.
“As used in this section ‘term of imprisonment’ means the duration of the state’s legal custody and control over a person sentenced as provided in this section.”

Thus we find that where it is a male person, courts imposing sentences to the penitentiary for murder in the second degree (a felony other than treason or murder in the first degree) shall make such sentences general and not fixed or limited in their duration, exactly as courts shall do in sentencing a female to the women’s, reformatory.

I am driven to the inescapable conclusion that the “punishment” of one convicted of murder in the second degree is not imprisonment for life but such imprisonment is only “until legally released,” as ordered by Judge Michener in this case. It necessarily follows that Judge Michener was not deprived of jurisdiction to admit Mrs. Hawkins to bail so that she might perfect her appeal to this court, and since the “inferior” court was authorized to so admit her to bail then this court “or any judge thereof” may admit her to bail as provided in Section 2953.10, Revised Code, which reads as follows:

“The Court of Common Pleas, Court of Appeals, the Supreme Court, or any judge thereof, to which court an appeal is taken from an inferior tribunal, has the same power and authority to suspend the execution of sentence during the pendency of such appeal and admit the defendant to bail as is provided for in respect to said inferior tribunal(Emphasis supplied.)

Section 2949.02, Eevised Code (formerly Section 13453-1, General Code), provides the authority of the so-called inferior court to suspend execution and admit to bail, the pertinent portions of such section being:

“When a person has been convicted of any bailable offense * * * and such person gives notice in writing to the trial judge or magistrate, of his intention to file * * * a petition to review such conviction, such judge or magistrate may suspend execution of the sentence or judgment for such fixed time as will give the accused time to prepare and file * * * such petition. In all bailable cases, except those in which the punishment is imprisonment for life, such judge may release the defendant upon a recognizance with sufficient surety to be approved by the judge or magistrate, conditioned that the accused will appeal without delay and abide by the judgment and sentence of the court.” (Emphasis supplied.)

The single exception is where the punishment is imprisonment for life, a fixed and determinate period, which is no longer permissible under the sections hereinbefore quoted.

I have not overlooked the decision in 1931 of the Supreme Court in the case of In re Halsey, 124 Ohio St., 318, 178 N. E., 271, 77 A. L. R., 1232, wherein that court held that the statute denying the right af accused persons to bail after conviction in trial court, where punishment is imprisonment for life, is not unconstitutional. There the court was concerned only with the question whether the Ohio Bill of Rights guarantees bail after as well as before conviction, and held that the Ohio Bill of Rights guarantees bail only before conviction in the trial court. The court did not consider or mention the correctness of the sentence imposed by the trial court of “imprisonment for life” but limited its decision to the sole question whether bail is guaranteed after conviction.

Demonstrating that there is now in Ohio no such thing as absolute, fixed and determinate punishment for life where one has been convicted of murder in the second degree, we look to the provisions of Chapter 2965, Revised Code, Sections 2965.01 to 2965.23, providing for paroles anc. releases. The statutes requiring sentences to be general and not fixed or limited, provide that all terms of imprisonment for murder in the second degree may be ended in the manner provided by law, Section 5143.23, expressly referring to paroles and releases.

Section 2965.17, Revised Code, provides:

“Subject to the limitations imposed by law, the pardon and parole commission may determine the time when, the period for which, and the conditions in accordance with which any prisoner confined in a state penal or reformatory institution may be allowed to go upon parole outside the building, enclosure, and premises of the institution to which he has been committed, assigned or transferred. When a paroled prisoner has performed all the conditions of his parole the commission shall finally release him.” (Emphasis supplied. )

The “limitations imposed by law” are cases of treason and murder in the first degree. It is observed that the last quoted section is a grant of power to parole and release, not a grant of right of the prisoner to parole and release. But Section 2965.23, Revised Code, is a-guaranteed grant of eligibility for parole, the pertinent language of the section being:

“A prisoner serving a sentence of imprisonment for life for a crime other than treason or murder in the first degree * * * shall become eligible for parole at the expiration of ten full years’ imprisonment.”

Here in Belmont County we have a concrete example of the discretionary power of the pardon and parole commission to parole and release under Section 2965. 17, Revised Code, showing the interpretation placed by the commission on that section. Etta DePaulis in 1948 plead guilty to murder in the second degree for killing her husband. Although ten years had not expired, Etta DePaulis has long since been paroled and released from imprisonment in the women’s reformatory to which she had been committed by Judge Belt “for and during her natural life or until legally released as provided by law.” The words “for and during her natural life” were superfluous and meaningless but did not make the sentence void; nevertheless, by Section 5145.01, Revised Code, there was preserved for her the benefits provided by law for ending her term of imprisonment and she received such benefit at the hands of the parole and pardon commission. Thus it is demonstrated that in dealing with the problem of crime Ohio has abandoned fixed determinate punishment in favor of what has been called the humane principle of correction and return to society in all cases except treason and murder in the first degree.

Whether action is taken by the commission under one or the other of these parole sections, it is seen that the punishment for murder in the second degree is not final and fixed imprisonment for life. There may be confusions and contradictions in the several statutes involved, but all were enacted into'law by the Legislature and any ambiguities and contradictions must be resolved most favorably to the imprisoned person.

The question presented here is not new in this Court of Appeals, In the case of the State v. Robinson, pending on appeal in Mahoning County, two of the judges of this court (Griffith and Phillips) suspended execution of sentence for murder in the second degree and admitted Robinson to bail. I did not sign that order but only because I was absent from Mahoning County at the time. I have no doubt I would have joined with my associates had I been present. Nor do I have any doubt now of the right of one or more judges, in the exercise of sound discretion, to so suspend sentence and admit to bail.

I think I should call attention to the fact that at the time of the decision of the Supreme Court in In re Halsey, supra, there was no statute except Section 13459-9, General Code, now Section 2953.11, Revised Code, authorizing the Court of Appeals to grant admission to bail after conviction of a felony. The same situation existed at the time of the decision of the Fifth Appellate District Court of Appeals in State v. Cook, 70 Ohio App., 1, 44 N. E. (2d), 474, but subsequent to both such decisions the Legislature adopted Section 13459-8a, General Code, now Section 2953.10, Revised Code.

Since I attach much importance to Section 2953.11, Revised Code, hereinbefore only briefly mentioned, I now quote the applicable provisions thereof:

“In cases of conviction of felony, except for murder in the first degree, where the defendant has been committed to the penitentiary and sentence is suspended, the clerk of the court in which the entry is made suspending such sentence under the seal of such court, shall forthwith certify such suspension to the warden of the penitentiary who shall cause such defendant to be conveyed to the jail of the county in which he was convicted and committed to the custody of the. sheriff thereof, unless admitted to bail pending the decision on the appeal or the termination of the suspension of sentence.”

Such quoted language is identical with the pertinent provisions of former Section 13459-9, General Code, except that there has been omitted from the Revised Code section the words “as hereinbefore provided” after the phrase “unless admitted to bail pending the decision on the appeal or the termination of the suspension of sentence.”

To me this omission in the Revised Code section is significant in that the authority of the Court of Appeals to admit to bail is no longer restricted to that of the Common Pleas Court. The authority of the Court of Appeals is broadened to include admission to bail in all felonies with the single exception of murder in the first degree, even if it be conceded that the punishment for second degree murder is imprisonment for life. I do not so concede.

I am not holding that either the judge of the Common Pleas Court or of this court is required to admit to bail or to suspend execution of sentence of one convicted of murder in the second degree. I am holding that the suspension of execution and admission to bail after conviction in accordance with statutory provisions rest in the sound discretion of the judge in the light of all the facts presented and the administration of justice, a strong consideration being that an accused should not suffer the penalty for crime until by the due processes of law it is determined that he has had a fair trial free from prejudicial error.

In the exercise of what I consider a sound discretion I am holding that Mrs. Hawkins is entitled to suspension of execution and admission to bail but that for the protection of the state recognizance shall be increased beyond that fixed before her conviction. It is therefore ordered that such recognizance be given in the amount of $10,000 instead of $6,000.

May I state that I believe the reason for the Legislature allowing one judge of the Court of Appeals to act in this matter is because the order is interlocutory only and not a final appealable order or decision requiring action by at least a majority of the judges.

Application allowed.


text:
    The State of Ohio, Appellee, v. Sheppard, Appellant.
    (No. 23400
    Decided January 19, 1955.)

      Mr. Frank T. Cullitan, prosecuting attorney, Mr. Saul S. Danaceau and Mr. Thomas J. Parrino, for appellee.

      Messrs. Corrigan, McMahon & Corrigan, Mr. Fred W. Carmone and Mr. Arthur S. Petersilge, for appellant.
   Per Curiam.

The defendant-appellant in the above entitled cause was found guilty of murder in the second degree upon the verdict of a jury, after trial on an indictment charging him with the crime of murder in the first degree.

The defendant is now prosecuting an appeal on questions of law, seeking to reverse the judgment and has filed this motion asking a stay of the judgment pending the hearing of the appeal on its merits and his release on bail during such period of time. This court has granted that part of the motion seeking to stay execution of the judgment during the appeal and will give consideration now to his request to be admitted to bail until the appeal is determined on its merits.

It is a well settled principle of law that after a judgment of guilty in a criminal action a defendant is not entitled to bail pending appeal, as a matter of right. In the case of In re Halsey, 124 Ohio St., 318, 178 N. E., 271, 77 A. L. R., 1232, the defendant had been found guilty of murder in the second degree and was seeking a review of the judgment in a proceeding in error. The trial court refused to suspend execution of the sentence or admit the defendant to bail. The Court of Appeals, upon motion, suspended execution of the sentence but refused bail. The Supreme Court held:

“1. Section.9 of. the Ohio. Bill-of Rights guarantees the right to bail only before judgment of conviction in the trial court.
“2. Section 13453-1, General Code, denying accused persons the right to bail after judgment in the trial court where the punishment-is imprisonment for life, is not unconstitutional.”

•.,, The authority of the Court of Appeals- to .suspend the execution of sentence and admit a defendant to bail after conviction in a felony case, and after notice of appeal has been given whereby this court acquires jurisdiction of the case, is to be found in two sections of the Revised Code, to wit, Section 2953.10 and Section 2949.02. These sections provide:

Section 2953.10. “The Court of Common Pleas, Court of Appeals or Supreme Court, or any judge thereof, to which court an appeal is taken from an inferior tribunal, has the same power and authority to suspend the execution of sentence during the pendency of such appeal and admit the-defendant to bail as is. provided for in respect to said inferior tribunal.”
Section 2949.02. “When a person has been convicted of any bailable offense, including the violation of an ordinance of a municipal corporation, in the Court of Common Pleas or by any court or magistrate inferior to the Court of Common Pleas, and such person gives notice in writing to the trial judge or magistrate, of his intention to file, or apply for leave to file a petition to review such conviction, such judge or magistrate may suspend execution of the sentence or judgment for such fixed time as will give the accused time to prepare and file, or to apply for leave to file such petition. In all bailable cases, except those in which the punishment is imprisonment for life, such judge may release the defendant upon a recognizance with sufficient surety to be approved by the judge or magistrate, conditioned that the accused will appeal without delay and abide by the judgment and sentence of the court.” (Emphasis ours.)

The crime of which this defendant has been found guilty is, under the Constitution of Ohio, a bailable offense. Section 9, 'Article I, provides:

“All persons shall be bailable by sufficient sureties, except for capital offences wheré the proof is evident, or the presumption great. Excessive bail shall not be required; nor excessive fines imposed; nor cruel and unusual punishments inflicted. ’ ’

It is clear, therefore, that where a defendant has been found guilty of a crime for.which the punishment provided is life imprisonment neither the trial court nor the appellate court can admit the defendant to bail pending appeal.

It is argued by the defendant that because of the indeterminate sentence law (Section 5145.01, Revised Code), which prohibits a trial court from fixing the duration or limits of a sentence to the penitentiary of one convicted of a felony, except in cases where the defendant was found guilty of treason or murder in the first degree, the court in this case could not impose a life sentence on the defendant and therefore Section 2949.02, Revised Code, is not applicable. This claim cannot be supported. Section 2949.02, Revised Code, is not concerned with the character of the sentence to to be imposed by the court in a particular case, but provides for the cases in which a defendant may or may not, at the discretion of the court (either the trial court or the court to which an appeal is taken) be granted bail after conviction and during pendency of an appeal.

As indicated above, the statutory law of the state prohibits either the trial court or the reviewing court to which an appeal is taken from extending the privilege of bail pending appeal to one found guilty of a crime for which the punishment provided by law is life imprisonment.

For this reason, the defendant’s motion seeking release on bail until the hearing of his appeal on its merits is overruled.

Motion overruled.

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