text:
    Rabkin, Appellant, v. Calhoun, Appellee.
    (No. 4032
    Decided January 28, 1948.)

      Mr. B. B. Friedman, for appellant.

      Mr. L. P. Henderson, for appellee.
   Wiseman, P. J.

This is an appeal from a judgment of the Common Pleas Court of Franklin county, reversing a judgment of the Municipal Court of Columbus in favor of the plaintiff for $200 as broker’s commission for the sale of defendant’s property.

The contract of employment was oral and there is conflict in the testimony as to its terms. However, the plaintiff did take a prospective purchaser, one Claude Thompson, to view the property. Thompson testified that the plaintiff priced the property at $4,250. Thompson and his wife both testified that he, Thompson, told the plaintiff the price was too high and that he would not buy the property, requesting that they be shown another property, whereupon the plaintiff became angry and stated, “You don’t want no house no how,” and slammed the door of the automobile in which Thompson was sitting and walked away. This incident occurred in January or the early part of February, 1945. The plaintiff had no further contact with Thompson, took no prospective purchasers to the property and made no further effort to sell the property or secure another prospective purchaser. About two months later Thompson learned from another source of a house for sale at a certain number on East Fulton street. When he went to look at the house he observed that it was the same house shown to him by the plaintiff. He subsequently purchased the property for $4,000 through direct negotiations with the defendant. About four months later plaintiff learned of the sale when he passed the property and observed Thompson on the porch.

A real estate broker is not entitled to recover a commission unless he proves by a preponderance of the evidence that he was the procuring cause of the sale. 6 Ohio Jurisprudence, 211; 8 American Jurisprudence, 1087; 12 Corpus Juris Secundum, 207. The employment contract was not in writing and its terms are in dispute. The defendant contends that it was agreed that he was to net $4,000 for the property and that the-plaintiff would be required to get his commission on-the amount of the sale price over and above $4,000. This was disputed by the plaintiff. Whatever the employment contract may have been between the parties-it was terminated and abandoned by the act of the-plaintiff before the sale was consummated. From the-testimony of Thompson and his wife, which is supported by the testimony of the plaintiff, it clearly appears that when Thompson refused to purchase the property for $4,250 the plaintiff not only terminated his relationship with Thompson, but abandoned his employment-with the defendant.

Where the broker abandons his employment entirely and all negotiations are broken off, the broker is not entitled to a commission if his employer subsequently through his own efforts consummates a sale with the-same purchaser. The fact that a real estate broker finds a purchaser with whom the owner later consummates a sale without the aid of the broker does not give hifn a right to a commission unless he was the procuring cause of the sale. 6 Ohio Jurisprudence, 228,. 229; 8 American Jurisprudence, 1069, 1102; 12 Corpus Juris Secundum, 215, 217. There is no substantial evidence to show that the plaintiff was the procuring cause of the sale.

The gist of the contention of the plaintiff in his assignments of error is that the judgment of the Common Pleas Court is contrary to law. We cannot so find. The judgment of the Common Pleas Court reversing the judgment of the Municipal Court of Columbus is affirmed.

Judgment affirmed.

Miller and Hornbeck, JJ., concur.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    Campbell, Appellant, v. Johnson et al., Appellees.
    (No. 4058
    Decided February 9, 1948.)

      Messrs. Herbert & Dombey and Mr. Frank H. Ward, for appellant.

      Mr. Robert P. Duncan and Messrs. Vorys, Sater, Seymour & Pease, for appellees.
   Miller, J.

This is a will contest case brought by Joseph C. Campbell II contesting the will of his father, Samuel H. Campbell.

The record discloses that Samuel H. Campbell died on June 9, 1933. His will was admitted to probate on June 19, 1933. At that time, plaintiff, appellant herein, was a minor of about the age of nine years. He attained his majority on October 4, 1944, and filed his petition to contest the will on April 2, 1945, naming as defendants Barbara C. Johnson, formerly Barbara C. Duncan, Cynthia C. Duncán and Robert P. Duncan as executor and trustee. The defendant Robert P. Duncan was named'executor in the will and was also named testamentary trustee. The first two named defendants and the plaintiff were the only beneficiaries named in, the will. Service of summons was had upon the first two named defendants as individuals and upon Robert P. Duncan as executor and trustee. Robert P. Duncan fully performed and completed his duties as executor and was discharged on September 25, 1934. He then assumed his duties as trustee and has continued as such and is now trustee of the estate of the testator in accordance with the provisions of the will. Service of summons was duly had upon all these defendants prior to the tolling of the statute of limitations, Robert P. Duncan. having been served as executor and also as trustee.

A motion to strike was sustained and an amended petition was filed on October 14, 1946. Preparatory to trial an entry was journalized putting in issue the validity of a paper writing purporting to be the last will and testament of Samuel H. Campbell. On November 20, 1946, the 'defendants, appellees herein, filed an application for leave to file a motion to quash the service of summons on Robert P. Duncan as executor, submitting as proof in support thereof that according to the records of the Probate Court of Franklin county he had not acted in that capacity since September 25, 1934. The court granted leave to file the motion and it was sustained. Defendants then demurred to the amended petition on the ground of defect of parties, claiming that, as Robert P. Duncan as executor was no longer in the case, there was no representative of the estate and there was consequently a defect of parties defendant. An application for leave to file a second amended petition was granted. Thereupon Harry P. Nester was appointed administrator de bonis non. The second amended petition was filed and Harry P. Nester entered his appearance as a party defendant in the capacity of administrator de bonis non. The defendants demurred to the second amended petition on the ground of defect of parties defendant, and the court sustained this demurrer for the reason that the administrator de bonis non entered his appearance after the expiration of the time prescribed by the statute of limitations.

The questions the answers to which are controlling in this appeal concern the correctness of the ruling on the motion to quash the service of summons and of the order sustaining the demurrer to the second amended petition. It is admitted that the administrator was made a party after the tolling of the statute. Under this state of facts, two questions are presented. First, was the appointment of an administrator de bonis non required under Section 12080, General Code! Second, if required, was a member of his class united in interest with him served as required by Section 11230, General Code, prior to the tolling of the statute of limitations by the serving of summons upon the testamentary trustee? If so, then the administrator de bonis non could have been served after the required statutory period.

The answer to the first question is found in Section 12080, General Code, which provides:

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

It has been held, in numerous Ohio cases, that this section is mandatory. The word, “must,” connotes the idea of necessity, and it was held in Berg v. Merchant, 15 F. (2d), 990, that the word, “must,” as it is employed in Section 12080, General Code, is not construable as, “may.” Judge Donahue made the following observation:

“Section 12080 of the General Code of Ohio provides that ‘all the devisees, legatees and heirs of the testator, and other interested persons, including the executor or administrator must be made parties to the action.’ While, under the provisions of Section 10213 of the General Code of Ohio, the words of a statute are to be liberally construed, unless the context requires a strict construction, and the courts of Ohio have also held that the word ‘may’ shall be read ‘must,’ where public interest or rights are concerned, or where something is directed to be done for the sake of justice or public good, yet the word ‘must’ is so imperative in its meaning that no case has been called to our attention where that word has been read ‘may.’ Certainly there is no reason why it should be so read in this statute, which specifically provides that the heirs of the testator ‘must be made parties to the action.’ ”

The plaintiff has cited the case of Gurley v. Armentraut, 6 C. C. (N S.), 156, 17 C. D., 199, as being contra to the Berg case, supra. The Armentrant case, by. coincidence, was concurred in by Judge Maurice H. Donahue while a member of the Circuit Court for Wayne county and the same Judge Donahue, at a later date, decided the case of Berg v. Merchant, supra, while a member of the United States Circuit Court of Appeals. Evidently he had changed his opinion as to the mandatory character of Section 12080, General Code, when he decided the Berg case. This court held in the case of Hayes v. Peak, 18 Ohio Law Abs., 64, decided on June 28, 1934, that in an action contesting a will the executor is a necessary party and must be made a party as executor within the statutory time, although he has been sued as an individual within such time.

The case of Myers, Exrx., v. Hogue, 45 Ohio App., 330, 187 N. E., 127, presented the converse of the situation in the Berg case, in that the court held that although the executrix was made a party in her representative capacity she was not by virtue of that fact made a party as an individual. The court, after pointing out the mandatory character of Section 12080, ■General Code, at pages 335, 336, said:

“An executor, as previously pointed out, has interests in an estate not possessed by a beneficiary. When summoned into court in a will contest, it is these interests he would protect. * * * The heirs at law well .know the terms of Section 12080, General Code, and that an executor has a duty to perform, and interests “to protect, unlike those of a legatee or devisee.” See, also, Sours v. Shuler, 42 Ohio App., 393, 181 N. E., 908; Bailey v. Eakman, 12 Ohio Law Abs., 290; Machovina v. Machovina, 132 Ohio St., 171, 5 N. E. (2d), 496.

We are of the opinion that the imperative requirement of a statute may not be modified by a court through judicial decreer Any reading of exceptions into the statute is judicial legislation. The court must assume that the Legislature had a reason for requiring that the personal representative he made a party. We are, therefore, of the opinion that the administrator de bonis non was a necessary party defendant, and the court made no error in so ruling.

The next question for our consideration is whether the action against the administrator de bonis non was •commenced within the required statutory period. It is admitted that the service of summons was had upon him after the tolling of the statute, but the plaintiff is contending that a party united in interest with him was served within the required time, and, therefore, he could be served after the required statutory period.

Section 11230, General Code, provides when an action is begun, as follows:

“An action shall be deemed to be commenced within the meaning of this chapter, as to each defendant, at the date of the summons which is served on him or on a codefendant who is a joint contractor, or otherwise united in interest with him. When service by publication is proper, the action shall be deemed to be commenced at the date of the first publication, if it be regularly made.”

Under that section, the plaintiff is correct if the administrator de bonis non and the testamentary trustee are united in interest. The plaintiff contends that they are because of Section 10509-22, General Code, which provides:

“When a will is contested, the executor, or the administrator de bonis non, with the will annexed, or the testamentary trustee during the contest, may control all the real estate not specifically devised, included in the will, and all the personal estate of the testator, not duly administered before such contest; collect the debts, and convert all assets into money, except such as are specially bequeathed; pay all taxes on such real and personal property, and all debts according to law; if necessary to preserve the real property from waste, repair buildings and other improvements; insure them, upon an order therefor first obtained from the court having jurisdiction of such executor, administrator or testamentary trustee, and for such repairs, taxes and insurance, advance or borrow money on the credit of such estate, which shall be a charge thereon. They also may receive and receipt for a distributive share of an estate or trust to which such testator would have been entitled, if living. The Probate Court may require such additional bonds as from time to time seems proper.”

We do not think the interests of the administrator de bonis non and the testamentary trustee are united, even though they may perform similar duties during the contest. In general, the duties of an executor or administrator and a testamentary trustee are not similar or the same. The executor has charge of the entire estate and is responsible for the settlement of the entire estate, including collection of assets, payment of funeral expenses, costs of last illness, payment of debts, sale of real property, if necessary to pay debts, and to distribute the residue of the estate. The testamentary trustee has charge of only that portion of the estate which is willed in trust to him, which may be a large or a smaller portion of the estate. In a will contest case the .executor or administrator de bonis non with the will annexed has a definite duty and function. The testator had the right to have his interests protected and his desires and wishes as expressed in his will protected by a properly constituted legal representative of his estate.

Suppose in a contest case the heirs conspired to have the will collusively set aside. Certainly the decedent had the right to have his desires and wishes protected by a properly constituted legal representative of his estate. Heirs cannot be permitted to make a new will for the decedent or to ignoré his expressed desires. That is probably the reason the statute provides that the executor or administrator must be made a party. If the Legislature had intended that a testamentary trustee be made a party defendant to represent the estate in a will contest action in addition to the executor or administrator, it would have so stated in Section 12080, General Code. Where there is a will there is an executor, and the.statute by using also the word, “administrator,” contemplates the appointment of an administrator to represent the estate in a contest action if and when the executor no longer exists. The testamentary trustee and the administrator de bonis non are not of the same class and will not be similarly affected by the determination of the issues in this case. If the will should be set aside, the legatee-devisee trustee would immediately cease to exist since there would no longer be any trust, while the administrator cle bonis non would remain active and have charge of' the estate of which the testamentary trustee now has charge. One would benefit by the setting aside of the-will, the other, by the sustaining of the will. Therefore, it cannot be said that they are united in interest.

Counsel for the plaintiff concede that service upon any one class prior to the tolling of the statute does not authorize service upon a member of another class after the expiration of the statute. Since the testamentary trustee and the administrator are not of the-same class, service upon the testamentary trustee does-not support service upon the administrator after the statute of limitations has run. The defendants seem to rely chiefly upon the case of Draher v. Walters, 130 Ohio St., 92, 196 N. E., 884, the syllabus of which is as follows:

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

The facts in that case disclose that Florence Draher instituted suit in the Court of Common Pleas of Stark county on April 26, 1933, to contest the validity of the last will and testament of her father, William Archibald, which was admitted to probate on January 21, 1933. She named as defendants all the legatees and' devisees and the executor of the last will and testament. A precipe was attached to the petition requesting service upon all parties defendant. The clerk issued summons for only one of the defendants, Josey Palm, a legatee-devisee under the will, who was served ■on May 5, 1933, and return thereof was made on May 8, 1933. For some unknown reason the clerk failed to issue summons for the executor and the remaining •defendants. The failure was discovered by the plaintiff on October 25, 1933, and she immediately filed a precipe for alias service of summons upon the other •defendants, pursuant to which all were duly served with process on October 26, 1933. Those defendants were served after the required statutory period.

In its decision in that case, the court said:

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

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

The court then quoted from Bradford v. Andrews as follows:

“ ‘Where a proceeding for the contest of a will is commenced within the statutory period of limitation, although only part of the persons interested in the contest are made parties thereto, the right of action is saved as to all who are ultimately made parties, notwithstanding some of them are not brought into the case until after the period of limitation has expired. ’ ’r

In commenting on the Bradford case and others, Judge Reynolds of the trial court in the instant case said:

“It is interesting to note that in the case of Bradford v. Andrews the parties brought in after the limitation for bringing the suit to contest a will, were heirs, and therefore belonging to the same class as the legatees and heirs who were brought in within the statutory time, and further that the executor had been named as a party defendant and duly served with summons so that the court did not in that case hold that service on an heir or legatee, would save the running of the statute, as regards an executor later brought into the case.

“It is also of interest in the case of Draher v. Walters, supra, that plaintiff had done everything necessary or possible for her to do with respect to designating all the proper and necessary parties, and to set in motion the proper machinery to have them brought into the case by the service of summons. It was only the dereliction of a court official which enabled the question as to whether the suit had been timely commenced to be raised.

“The court sought to differentiate a former decision ■of the Supreme Court in the case of McCord v. McCord, 104 Ohio St., 274, the third syllabus of which is as follows:

“ ‘An executor named in a will is not “united in interest” with the heirs and devisees, and an action to contest a will is not commenced as to the heirs of ihe testator and the devisees under the will by the issuance of a summons for the executor, though duly •served upon him.’ .

“In that ease, Prank L. McCord filed suit to contest the will of James W. McCord, and named all the ■devisees, legatees and heirs of the testator and the ■executor of the will, but filed a precipe for service on the executor only. The will was probated on May 3, 1918, and the suit was brought May 1, 1919; at that time the statutory period for bringing such a suit was 'one year. On November 4, 1919, an affidavit for service by publication was filed and on December 11, 1919, .a motion was filed by the executor to dismiss the action on the ground that the suit had not been timely brought against the legatees and heirs, and this motion was sustained by the Common Pleas Court and •affirmed by both the Court of Appeals and Supreme Court.

“In its decision the court said:

“ ‘Counsel for plaintiff inerror urges that since # * ■the executor is a necessary jarty it must be concluded that he is a codefendant “united in interest” with the •various other defendants in,the action, therefore that the action was commenced as to all of saiu defendants at the date of the summons which was server the executor.

“ ‘This contention, however, ignores absolutely the •significance of the term “united in interest.” The issuance of summons for a defendant afterwards duly served does not operate to fix the time of commencing-an action as to all codefendants, for the statute has specifically provided that it has such effect only as to-a codefendant “who is a joint contractor, or otherwise united in interest with him.” Hence the mere-fact that one is a necessary party, made so by the statute, does not make him a party “united in interest” with other necessary parties defendant. * * * The word “united” means joined or combined, made one; allied. “United in interest” means identity of interest, and that can exist only as to parlies who would be similarly affected by the same general result of the litigation — in this instance, those benefited by the sustaining of the will, or those benefited by setting it aside. Codefendants are “united in interest” therefore only when they are similarly * * * affected by the determination of the issues involved in the action. The-only theory upon which it is claimed that the executor is “united in interest” with a devisee or legatee named in the will is that both are concerned in having the will-sustained, but of course that cannot- be true as to a devisee or legatee who is an heir and who as such would be more greatly benefited if the will were set aside. Unless it be conceded that the executor is interested in setting aside the will he has no “unity of interest” with an heir of the testator who is not named in the will, or who, though a legatee, will receive greater benefit if the will bo held invalid. * * *

“ ‘We do not ¿Mnk in this case the executor can be said to be "'united in interest” with either of the classes of defendants aboye referred to. ‘ ‘ An executor if, -ot bound to assume the burden of the defense of a contest of the will by the heirs at law, but may properly throw the same upon the legatees or devisees.” Executors of Andrews v. His Administrators, 7 Ohio St., 143.

“ ‘The management of the estate pending settlement and distribution thereof would not be affected by the result of the action to contest the will. The only ultimate question involved is the manner of the division of the property left by the testator, and, though the issue made and submitted is the validity of the will, the real purpose and actual result is the determination of the rights of the respective parties to the property left by the testator.

“ ‘The executor not being “united in interest” with his codefendants, action against the latter was not commenced by the issuance of summons for the executor. The motion to dismiss was, therefore, properly sustained. ’

“From-this decision, which was not attempted to be reversed by the court in the case of Draher v. Walters, supra, the test of unity of interest is, would the parties be similarly affected by the same general result of the litigation.

“It would seem clear that in the instant case the administrator and the other defendants would not be similarly affected by the same general result of the litigation. The administrator naturally would benefit by the setting aside of the will while the other defendants stand to benefit only by sustaining of the will.

“The following is quoted from the decision in Draher v. Walters, supra:

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

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

“To this court this is a strange process of reasoning and logic. On what theory can the court determine that in designating the necessary, parties in a will contest the Legislature made some of them substance, and some mere shadows, or in other words, some important and others unimportant and only incidental? It seems to be a clear case of judicial fiat, motivated perhaps by the fact that otherwise a litigant without fault on her’ part would be denied her day in court because of the mistake of an officer of the court. No place in the decision does the court discuss or point out in what way the executor was ‘united in interest’ with the other defendants, although stating that the key words in the governing statute are ‘united in interest’ and it is difficult to understand why the court could come to a logical conclusion that while the decision of the McCord case was correct, because there was not such a unity of interest between the executor and legatee-devisees, that service on the executor was insufficient to constitute commencement of action against the latter, but that service on a legatee-devisee is sufficient to bind the executor who is later served. It is a poor rule that doesn’t work both ways. Either there is such a unity of interest between these different classes that service on either is binding on the other, or, there is not such a unity that service on either is - not binding on the other.

“The executor is just as much substance as a legatee. He lives and moves and has his being and to denominate him a mere shadow which must follow the other classes of defendants is but a misnomer and a total disregard of the legislative provision, and a clear departure from established rules, in order not to work a hardship under the particular circumstances of the case.

“In the final analysis the court bases its decision not on the necessity of a unity of interest, but upon its reasoning that the executor is a mere shadow in the action, and that service on a legatee binds as to the commencement of the action, not alone the entire legatee-devisee class but binds also the executor, for the reason that the shadow follows the substance. In other words, the court has entirely lost sight of its earlier statement that the key words in the statute are ‘united in interest.’

“It is also interesting to note that there were three strong dissents in that case, and two of the dissenters are still members of the Supreme' Court and but one of the four who decided the case as above stated is still a member of the court.

“In the case of Case v. Smith, 142 Ohio St., 95, the court by the unanimous decision of those participating followed and approved the decision of the McCord case. Suit was brought to contest a will and E. Alice Smith as a beneficiary under the will and also as administratrix were made defendants along with other parties, heirs at law. Service was had only on E. Alice Smith as an individual and as administratrix. After the limitation had run other parties were made defendants and waived service.

“The question presented was whether the service on E. Alice Smith as an individual and as administratrix was such as would constitute a commencement of the action as against the othqr defendants served after the time within which suit might be begun had expired. The court held that there was not such a ‘ united interest’ as between E. Alice Smith, either as a beneficiary or administratrix and the other defendants as to constitute service on her in either capacity, a commencement of the action as to those other defendants who were served after the limitation had run. The syllabi of the McCord case are quoted in the court’s opinion and two of these are here repeated, as expressing the last pronouncement of the Supreme Court on the subject, and so being controlling now:

“ ‘2. Codefendants are “united in interest” within the meaning of the provisions of Section 11230, General Code, only when they are similarly interested in and will be similarly affected by the determination of the issues involved in the action.

“ ‘3. An executor named in a will is not “united in interest” with the heirs and devisees, and an action to contest a will is not commenced as to the heirs of the testator and the devisees under the will by the issuance of a summons for the executor, though duly served upon him.’

“In McVeigh v. Fetterman, 95 Ohio St., 292, the court said:

“ ‘No right exists to maintain an action to contest a will except as it is specifically provided by statute.’ “And the court in Case v. Smith, supra, held:

“ ‘The provisions of the statutes relative to an action to contest the validity of a will are mandatory; the enjoyment of the right is dependent upon compliance with the conditions and limitations therein contained.’

“If the party seeking to contest a will fails to comply with the mandatory provisions, with respect to the time of the bringing the action, the naming of the proper parties and securing proper service thereon he may not later complain that he has been deprived of his day in court. The path he must travel is clearly marked and if he deviates therefrom the court cannot aid him by granting rights or privileges not provided by the Legislature.

“This court agrees fully with the statement of the court in Bradford v. Andrews, 20 Ohio St., 208, to the effect that, ‘when the court obtains jurisdiction over an estate it does so in its entirety and not in fractions,’ but the court does not acquire that jurisdiction unless the mandatory provisions of the statute are complied with and no attempt to confer jurisdiction, or to assume it will clothe the court with jurisdiction without a strict compliance with those provisions.

“Solicitude for the rights of a plaintiff may have some weight with the court under circumstances such as were present in the Draher case, but circumstances should not be used as an excuse to change a statute by judicial fiat, and the rights of defendants should also be regarded.

“The action could well have been brought years before it was and it could have been brought six months before it was, after the plaintiff had reached his majority. He sought to wait until practically the last hour and then failed to comply with the provisions of G. C. 12080 with respect to making the necessary parties defendants. By what process of reasoning should these defendants be compelled to defend a suit not brought pursuant to statutory requirements?

“The law gave plaintiff every and ample opportunity of which he failed to properly avail himself.

“Not making a necessary party in the person of administrator a defendant until some two years after his right to bring the action had expired his action cannot be deemed to have commenced as to that party within the limitations fixed by statute and the court holds that the action was not commenced as against the administrator within the meaning of G. C. 11230 because the said administrator is not ‘united in interest’ with the other defendants, since he is not similarly interested in and will not be similarly affected by the determination of the issues involved in this action.

“This follows the law as laid down in the McCord case, supra, and followed and approved in the court’s decision in Case v. Smith, supra, and also in the case of Myers v. Hogue, 45 Ohio App., 330.”

We are in full accord with the observations made by Judge Reynolds.

The next assignment of error is that the trial court erred in considering and deciding the motion of the defendants to quash service of summons on one of them after the defendant had entered his appearance in the cause in the Court of Common Pleas and after the issues of the cause had been made up by order of the Court of Common Pleas and after all parties defendant had entered their appearance in the cause and the same was assigned for trial. The granting of the application for leave to file the motion was within the discretion of the court. The want of jurisdiction over the person of Robert P. Duncan, executor, clearly appears from the petition, and, not being an executor, he could not enter his appearance. If the service is a nullity and void the question may be raised by motion to quash at any time.

We feel that all the other assignments of errors have been fully discussed in this opinion.

We find no prejudicial error and the judgment is affirmed.

Judgment affirmed.

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


author: Hornbeck, J.

text:
    Schaeffer, Exrx., Appellee, v. Banker, Appellant.
    (No. 1956
    Decided December 16, 1947.)

      Mr. C. J. Stoecklein, for appellee.

      Mr. Clifford R. Curtner, for appellant.
   Hornbeck, J.

The error assigned on this appeal is that ‘£ the court erred in sustaining motion of plaintiffappellee to strike the answer of the defendant-appellant for the conditional order of revivor and rendering final judgment against defendant-appellant.”

The facts essential to an appreciation of the question presented are:

On December 7, 1931, plaintiff took cognovit judgment against the defendant. On August 26, 1946, a motion for conditional order of revivor was filed, conditional order entered and copy thereof served on the Third National Bank & Trust Company, as executor of the estate of Paul M. Banker, deceased. The conditional order carried the usual provisions that “unless sufficient cause be shown against said revivor within twenty (20) days after service of this order * * * the above judgment stand and be revived,” etc.

Within the 20-day period succeeding the entry of the conditional order of revivor, defendant, appellant herein, instituted an action to enjoin the plaintiff from reviving the judgment. Notice of the institution of the suit for injunction was filed in the instant action in the Common Pleas Court under date of September 6, 1946, within the 20-day period succeeding the conditional order of revivor. The injunction suit went to judgment after the sustaining of a general demurrer to the petition. Appeal was prosecuted to this court and the judgment was affirmed upon the proposition that plaintiff’s remedy was not in equity but at law. After the decision in the injunction suit, on April 28, 1947, defendant, appellant in the injunction suit, filed an answer in the instant action, the theory of which is that the bank, as executor, by its suit for injunction and its notice thereof filed in the instant cause, had taken the necessary and essential steps to support an entry setting aside the conditional order of revivor. On July 18,1947, a motion of plaintiff to strike the answer of the bank was sustained, and it is from that order that the appeal is prosecuted.

The question presented is one of procedure and requires consideration of the subject matter which was before the court during the 20 days following the service of the conditional order of revivor and upon which the court was required to act in determining whether the conditional order should be set aside. At that time there was nothing filed in the instant action except the notice that the injunction suit had been instituted. The bank did not elect to set forth in the action for revivor of the judgment its petition in the injunction suit or the subject matter thereof. And, if it could be considered as proper pleading, there was no prayer in the injunction suit for vacation of the conditional order of revivor. The sole relief sought in the latter suit was a permanent injunction which was instituted' by a separate suit. The procedural step to be taken to set aside the conditional order of revivor should have been by pleading in that action. We do not believe that the court, upon its own motion, was required' to consider the subject matter of the petition for injunction as a basis for the vacation of the conditional' order of revivor. No action of the bank indicated any purpose or desire that it be so considered during the-period when, if at all, it must have been asserted.

The language of the sections of the Code, Sections-11645 and 11647, G-eneral Code, clearly provides that a judgment stands revived upon the conditional order unless sufficient cause be shown why it should not remain revived. All the cases are to like effect: Welsh v. Childs, 17 Ohio St., 319; Van Nover v. Eshelman, 14 C. C. (N. S.), 348, 24 C. D., 210; Thompson v. Schnader, 16 C. C. (N. S.), 582, 27 C. D., 610.

In the Van Nover ease, it was held that a conditional order of revivor made on the 25th of January 1908’ would sustain an execution issued on January 27, 1908. And in Eshelman v. Van Nover, 89 Ohio St., 48, 105-N. E., 70, the court said that, upon the entry of the ■conditional order of revivor, “the judgment is then relieved of its dormancy and has all the attributes of a living judgment, subject, however, to the right of the judgment debtor to have the order of revivor set aside if sufficient cause therefor be shown within the time fixed in the order served upon him.”

When the temporary restraining order was issued, prohibitory in effect, the judgment had been revived. To vacate it, affirmative action showing cause must have been taken by the bank. If defendant’s contention here is accepted, defendant is in the anomalous situation of urging that the subject matter of the petition, which was not good as against general demurrer and the action in which it was filed had been ■dismissed, could be by judicial notice employed as ■showing cause why the conditional order of revivor ■should be set aside in that separate action.

Other cases of some interest upon the questions presented here and in the former appeal are Neracher v. Geier, 12 C. C., 259, 4 C. D., 559, and McAllister v. Schlemmer & Graber Co., 39 Ohio App., 434, 177 N. E., 841.

We find no prejudicial error in the action taken by the trial judge in sustaining the motion to strike the answer.

The order will be affirmed.

Order affirmed.

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


author: Matthews, P. J.

text:
    Craig, Appellee, v. Bureau of Unemployment Compensation et al., Appellants.
    (No. 6958
    Decided May 17, 1948.)

      Mr. John C. McCarthy, for appellee.

      Mr. Hugh 8. Jenkins, attorney general, Mr. John M. Woy and Mr. Roland B. Lee, for appellant Bureau of Unemployment Compensation.

      Messrs. Nichols, Wood, Marx é Ginter, for appellant The Capitol Barg Dry Cleaning Company.
   Matthews, P. J.

The Bureau of Unemployment Compensation denied benefits to the claimant. On appeal, the Court of Common Pleas reversed the bureau’s decision. This is an appeal from that decision.

In accordance with Section 1346-4, General Code, the appeal was heard by the Common Pleas Court on the record certified to it by the bureau.

The claimant was employed by The Capitol Barg Dry Cleaning Company from May 6, 1945, to March 16, 1946. On the last-named date, he quit, for the reason as stated in his claim for benefits, that “this was an unhealthy job. I had to go out and get rugs from homes and offices. I had to take them from the floor and deliver them to the plant. This was dusty work also real dirty. It kept my lungs full of dirt all the time. I was afraid I would get down sick so I quit. ’ ’

In his claim for benefits filed nine days after he quit, the plaintiff certified that on the day after he quit he was able to work and available for work. He reported regularly to the bureau, as required, until September 23, 1946, during which time his efforts to obtain employment were unsuccessful.

The referee summarized the claimant’s testimony as follows:

“Claimant stated that he had attacks of bronchitis off and on for a number of years. He stated that several years ago prior to his employment with Capitol Barg Dry Cleaning Company that he had driven a taxicab and that one of his attacks of bronchitis had occurred about this time and he found it necessary to quit the taxi-driving job until he recovered his health and at that time he returned to work as a taxi driver.

‘‘ Claimant states that his separation was due to the fact that he found the work to be dusty and unsanitary. He stated that after his first three months of employment he had a desire to quit but was persuaded to remain on and this occurred after another three months of employment but he did not quit at that time. Claimant stated that in the week prior to his actual separation, he noticed that his weight was declining, that he was feeling weak, that he had lost his appetite and did not rest well, and at that time decided that these circumstances were due to the job and that he would quit it. He informed the employer and it was agreed that he would remain until the employer got another driver. It appears that the employer obtained a driver within a week and that the new driver began work on the following Monday. A physician’s statement dated, April 15, 1946, is contained in the file and claimant stated that this was the only occasion on which he had seen the physician and that he had not seen a physician on occasion of the same illness prior to that time. It appeared that claimant’s chronic bronchitis existed although perhaps in a dormant state at the time that he undertook to drive a truck for the Capitol Barg Dry Cleaning Company.”

Analyzing the evidence, the referee said:

“The evidence in this case respecting claimant’s physical condition appeared to indicate that he suffered every once in a while from attacks of bronchitis which caused him to cough considerable and to be stopped up. The evidence indicates that at some previous time when claimant was operating a taxicab that he had an attack of bronchitis and was very choked up. It appeared then that he was forced to quit the taxicab company and that when he was again able to work, he returned to employment at the taxicab company. The evidence also indicated that claimant sought medical attention only one time on April 15,1946, and he stated that he did not consult this physician at any prior time during 1946.

“The evidence does not seem to sustain the company’s contention that claimant quit because he was dissatisfied with the rate of pay because there was evidence to indicate that claimant received more pay after a new agreement was effected than he had prior "to the effective date of the agreement.

‘ ‘ The evidence seems to indicate that claimant separated himself from the employment because he feared "that continued participation in the job might affect his health. His physician’s certificate was dated a month •after the date of his separation and it seems reasonable to believe that if claimant was actually ill at the time of his separation that he would have consulted a physician before a month passed. Although claimant contended that at the time of his separation he was weak and losing weight, that his appetite was poor and he did not sleep well, there does not appear to be any medical evidence which substantiates this condition. Although claimant contended that he frequently considered quitting the job because he felt that it was affecting his health on several previous occasions, the fact remains that he did not actually do so. There is no evidence to indicate that the conditions of work were any more difficult at the time of his 'separation than they were at the time he first undertook to perform the duties of the job. The facts indicate that when claimant decided to separate himself from the employment that he volunteered to remain at work until the employer had found a replacement. This appears to nullify his contention that he was unable to perform the work, if his separation was ■due to this reason, because had that been so, he would not have volunteered to remain until the employer found someone to replace him.

“The evidence indicates that claimant filed claiming benefits as of March 17, 1946, which is the date following the day he was separated. All of these facts seem to nullify claimant’s contention that the separation was due to inability to do the work. If claimant quit because of inabilitv to perform the work, he would not be able to work the next day on which he began to-claim benefit's. While a separation because of actual' illness would be a just cause, when a claimant was again able to work he would be bound to return to-the work he had left if it was available or he would' be ineligible for benefits, because in a similar circumstance the courts have held that a claimant in such a position is unable to work and unavailable for work in Ms usual trade or occupation.

“Accordingly, in this case it is believed that claimant voluntarily quit his job because of his fear that ill health would result from continuing to do the work. It does not appear that at the time of separation that claimant was in ill health. Consequently, it is believed that claimant voluntarily quit his work without just cause. Under the provisions of Section 1345-6 d (9) of' the General Code, the claim should be disallowed and benefits denied.”

The referee’s decision was that the plaintiff had voluntarily quit his work without just cause, and, therefore, the referee disallowed the claim and denied benefits. The board of review denied Ms application for a further appeal.

The jurisdiction of the courts on appeal from the board of review is limited by Section 1346-4, General Code, to a determination of whether the decision was “unlawful, unreasonable, or against the manifest weight of the evidence.” If the decision is found to offend in any one of the respects named, the court must reverse and vacate, or modify.

The question, then, is whether the decision that the claimant had voluntarily quit Ms work without just cause was unlawful, unreasonable, or against the manifest weight of the evidence.

We find no decision of the Supreme Court to guide us in determining the meaning of the phrase, “voluntarily quit his work,” as used in Section 1345-6 d (9), Genera] Code, before the amendment effective September 29, 1947, providing that the cause of quitting must be “in connection with his work” to be justified. Indeed, we find no case in any jurisdiction applying the phrase to facts identical with the facts in the instant case. We have been cited to two cases decided by Courts of Appeals of this state in which the meaning of the phrase was discussed and the phrase applied to a somewhat different situation.

In Brown-Brockmeyer Co. v. Board of Review, 70 Ohio App., 370, 45 N. E. (2d), 152, the claimant for benefits quit work because the conditions under which she. was required to work caused her to suffer constantly from colds. She filed her claim for benefits and reported that she was ready for work, but not for work where she would be subject to severe drafts, the weather still being cold. Her former employment, where she had been subjected to drafts, remained open for her at all times. The bureau allowed benefits. On appeal, the Court of Common Pleas reversed that decision, and this was affirmed by the Court of Appeals. The court quoted the following part of Section 1345-6, General Code (118 Ohio Laws, 266):

“(b) No individual shall be entitled to any benefits unless he or she

“(1) Is capable of and available for work;

“ (2) Is unable to obtain work in his usual trade or occupation or any other employment for which he is reasonably fitted including employments not subject to this act, or is suffering loss of remuneration by reason of involuntary partial unemployment (as defined in Section 1345-1).”

And then the court said:

“We think these two subdivisions must necessarily be considered together.

“In onr judgment subdivision one is applicable and determinative under the facts of the instant case. This means capable and available for work she had been doing. It is undisputed that the job was open, but claimant was not capable of or available to take the job.”

The court then discussed the meaning of the word, “fitted,” and reached the conclusion that it was not •synonymous with “suitable,” and, at page 377, said:

“Neither can we agree with counsel for appellant when they say that claimant’s physical condition should be taken into consideration in determining ■employment for which she was reasonably fitted. It would be correct to say that she was not fit to do the work for which she was fitted. A better rounded sentence would be to say that by reason of her physical •condition she was not fit to do the work for which through experience and training she was fitted. It necessarily follows that she was not available for work. This was due to her physical condition. We have no •difficulty in agreeing with the finding of the board of review that claimant was justified in leaving her employment, but when we consider that she left her •employment by reason of her physical condition, it can not follow that thereby she would be entitled to unemployment compensation. Nowhere in the chapter ■on unemployment is any reference made to justifiable retirement from employment.”

At no place in its opinion did the court in express terms take notice of the provision in Section 1345-6, ■General Code, denying benefits where employee had ■quit work only to instances of quitting voluntarily “without just cause.” From the tenor of the opinion, it would seem that that provision was not called to the .attention of the court.

The court seemed to say or imply that if the employee was unable to pursue her usual trade without impairing her health under the condition of her present employment, and quit because thereof, she would be ineligible for benefits, even though capable and available for work at her usual trade, under reasonably sanitary conditions. That, in our opinion, is not a correct interpretation of the law. The court seemed to assume the drafts were normal hazards of the work for which the plaintiff was fitted and, that, therefore, she was not capable and available. If the court was justified in making that assumption, we would concur in the conclusion. However, in the report of the case, we do not find any evidence to support this assumption.

The other Ohio case is that of Stevens v. Selby Shoe Co., decided by the Court of Appeals for Scioto county and numbered 510 upon its docket. The claimant in that case was employed on a bracing machine, running cement into shoe lining. The cement injured her hands by burning, drying and cracking them. She had been employed for two years and this effect had bothered her during the entire period. Treatment gave her no relief. A different cement was procured which made her condition worse. By reason of this the claimant quit and applied for unemployment benefits, but refused to go back to the work she had quit, but stated that she was willing to accept suitable employment. Her claim was disallowed by the bureau. On appeal, the Court of Common Pleas reversed that decision, and, in turn, the Court of Appeals reversed the judgment of the Court of Common Pleas and affirmed the decision of the bureau. The Court of Appeals reversed the judgment of the Common Pleas Court on the authority of Brown-Brockmeyer Co. v. Board of Review, supra, and did not discuss the question whether the claimant had “just cause” for quitting her work or the effect .upon her right to benefits in the event she had had just cause for so doing. The provision of Section 1345-6, General Code, on that subject was not mentioned. The opinion recites that she steadfastly refused to return to her former employment, but she expressed a willingness to accept “suitable” employment. We are not advised whether she was willing to accept other employment at her usual trade or occupation, or other occupation for which she was fitted under circumstances which would not be detrimental to her health.

In Hinkle v. Lennox Furnace Co., the Court of Appeals for Allen county reached a conclusion contrary to that reached in Stevens v. Selby Shoe Co., and certified the case to the Supreme Court, because of that conflict, where the case is now pending. .

However, we do find that other states have unemployment benefit statutes denying benefits to employees who have voluntarily quit their employment “without good cause,” the only difference being that the word, “just,” is used as the modifier of “cause,” which we do not think changes the meaning. One such state is Pennsylvania, whose statute makes ineligible for compensation any employee whose unemployment was due “to voluntarily leaving work without good cause.” And its statute, unlike the Ohio statute, does not specifically render ineligible for benefits an employee who “quit work to marry or because of marital * * * obligations.”

In Sturdevant Unemployment Compensation Case, 158 Pa. Super., 548, 45 A. (2d), 898, the claimant, Mabel Sturdevant, was employed in 1942 and 1943, as a skilled lathe operator by appellant which was manufacturing radio parts for the United States Army. Her husband was in the army at Columbia, South Carolina. She procured leave to visit him there and while she was visiting him she became sick and was confined to a hospital. She registered for work in Columbia, but did not obtain employment. She finally returned to her original employment and applied for benefits for the period while she was available for work in Columbia. The board allowed benefits. This decision was affirmed by the court in an unusually comprehensive and convincing opinion in which the meaning and connotations of “good cause” and “voluntarily” were discussed at great length. At pages 556, 557, the court said:

“ ‘Voluntarily’ and ‘involuntarily’ are antonymous and therefore irreconcilable words, but the words are merely symbols of ideas, and the ideas can be readily reconciled. Willingness, wilfulness, volition, intention reside in ‘voluntarily,’ but the mere fact that a worker wills and intends to leave a job does not necessarily and always mean that the leaving is voluntary. Extraneous factors, the surrounding circumstances, must be taken into the account, and when they are examined it may be found that the seemingly voluntary, the apparently intentional, act was in fact involuntary. A worker’s physical and mental condition, his personal and family problems, the authoritative demand of legal duties — these are circumstances that exert pressure upon him and imperiously call for decision and action.

“When therefore the pressure of real not imaginary,, substantial not trifling, reasonable not whimsical, circumstances compel the decision to leave employment, the decision is voluntary in the sense that the worker has willed it, but involuntary because outward pressures have compelled it. Or to state it differently, if a worker leaves his employment when he is compelled to do so by necessitous circumstances or because of' legal or family obligations, his leaving is voluntary with good cause, and under the act he is entitled to-benefits. The pressure of necessity, of legal duty, or family obligations, or other overpowering circumstances and his capitulation to them transform what is ostensibly voluntary unemployment into involuntary unemployment. ’ ’

And, at page 559, the court further said:

“It must be understood, and at this point we must underline it, that a determination that an employee has left his employment voluntarily with good cause does not of itself entitle the employee to compensation benefits. He must also meet the availability-for-work test provided by the statute. In many, probably in most, instances, the same cause that justifies an employee in leaving an employment will also prevent him from working, and disqualify him from receiving benefits. For instance, an employee who leaves employment because of ill-health; if his illness is severe enough to justify a voluntary leaving of employment, his illness will also, unless he speedily recovers or is readily adaptable to work of another type, justify a finding that he is not able to work.” •

See, also, Teicher Unemployment Compensation Case, 154 Pa. Super., 250, 35 A. (2d), 739, in which the same court had placed the same construction upon the phrase, “good cause.”

The application of the principle formulated in this opinion and its limitation are found illustrated in Felegy Unemployment Compensation Case, 158 Pa. Super., 567, 45 A. (2d), 906; Miller Unemployment Compensation Case, 158 Pa. Super., 570, 45 A. (2d), 908; Dames Unemployment Compensation Case, 158 Pa. Super., 564, 45 A. (2d), 909.

In Barclay White Co. v. Unemployment Compensation Board, 356 Pa. St., 43, 50 A. (2d), 336, the court said at page 48: “We are convinced that ‘good cause’ was intended to cover reasons which are personal to the employee and extraneous to the employment,” and quoted with approval from Sturdevant Unemployment Compensation Case, supra.

The Minnesota unemployment-compensation statute provides that if an employee “voluntarily and without good cause attributable to the employer” discontinues his employment, he shall be ineligible for benefits. It will be noticed that, unlike the Ohio statute in force when this cause arose, the “good cause” must be attributable to the employer to produce the disqualication. In Fannon v. Federal Cartridge Corp., 219 Minn., 306, 18 N. W. (2d), 249, 158 A. L. R., 389, the court had occasion to apply that statute to the case of an employee who had quit work because her health was impaired on account of the nature of the work, but through no fault of the employer. The court was required to construe the word, “voluntarily,” as used in the statute. The principle in Brown-Brockmeyer Co. v. Board of Review, supra, was relied on by the employer for a construction excluding all subjective reasons for quitting the work. The court rejected that construction and held as stated in the first paragraph of the headnotes in 158 A. L. R., 389:

“Where an employee is impelled to terminate his employment because continuance therein would endanger his health, such termination is involuntary rather than voluntary within the meaning of a provision of the unemployment compensation law that an individual shall be disqualified for benefits, and all wage credits earned in an employment shall be canceled, if such individual voluntarily and without good cause attributable to the employer discontinued his employment by such employer. ’ ’

We concur in the construction placed on the phrase, “voluntarily without good cause,” pronounced by the courts of Pennsylvania and Minnesota, and believe they indicate the proper construction of the phrase, ‘‘voluntarily quit his work without just cause,” as that phrase is used in the Ohio statute. We understand that is the construction' placed upon the phrase in Hinkle v. Lenox Furnace Co., supra, now pending in the Supreme Court.

With that conclusion in mind, we shall seek to determine whether the court can say that the decision of the bureau in denying the plaintiff benefits was unlawful, unreasonable, or against the manifest weight of the evidence.

Without repeating the facts, it is sufficient to' point out that the plaintiff had chronic bronchitis long before he was employed by The Capitol Barg Dry Cleaning Company. He had been employed as a driver of a taxicab and, while so employed, he suffered from an attack of bronchitis and was obliged to quit driving until he recovered, when he returned to that work. He worked for The Capitol Barg Dry Cleaning Company for more than ten months under continuous uniform working conditions, without any interruption on account of his health.

It would be difficult to find employment more free from dust and fumes than operating an automobile, taxicab or truck upon the streets and highways. The taxicab driver’s employment does not require him to be subjected to any dust or fumes other than that in the unrestrained atmosphere of the community, and the driver of a truck engaged in collecting rugs for a dry cleaner is subjected only to the additional dust emanating from rugs while he is engaged in taking them from the floor and loading and unloading them. That would be for only a small fraction of the total time of employment. And the added amount of dust cannot be believed to be great.

The claimant qualified his availability for work by the proviso that his work should be where “there is no dust or fumes.” When it is considered that he had found that driving a taxicab was injurious to his health, and that driving a truck under the circumstances of his last employment was also harmful to his health, it would seem that if the cause of his quitting was ill health, he would not be available for any employment. If he quit, not because of ill health, but just because he feared that continuance in that employment would injure his health, that fear would render him unavailable for any work for which he was fitted. His unavailability for such work would preclude awarding of benefits.

The referee weighed this evidence carefully and capably, as is indicated by the analysis which he made of it, and reached the conclusion that the claimant did not quit because of ill health, or any other just cause, and that he quit voluntarily without just cause.

The most that can be said contrary to the referee’s conclusion is that reasonable minds might have reached different conclusions. We are of the opinion that the referee’s conclusion is the correct one.

We are of the opinion that the conclusion of the referee was not unlawful, unreasonable, or against the manifest weight of the evidence.

For these reasons the judgment of the Court of Common Pleas is reversed, and the decision of the Bureau of Unemployment Compensation is affirmed.

Judgment reversed.

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


author: By the Court.

text:
    Leeman et al., d. b. a. Ideal Furniture Co., Appellants, v. Haggard, Appellee.
    (No. 4150
    Decided May 17, 1948.)

      Mr. Harry 8. Krahoff and Mr. Lytle G. Zuber, for appellants.

      Mr. George E. Tyack, for appellee.
   By the Court.

This is an appeal on questions of law from a judgment of the Municipal Court of 'Columbus. The action is one in replevin to recover possession of certain household furniture.

Plaintiffs, appellants herein, claim that on June 19,. 1947, the defendant called at their retail furniture-store and selected from the floor certain household furniture, the total cost of which was $1,292.91. Defendant made a cash payment of $600.06 and signed in blank a note and chattel mortgage for the balance due in the amount of $692.85. The balance due was to be paid in 14 equal monthly installments. The noto and chattel mortgage were later completely filled in by the plaintiffs. On the next day the items of furniture were delivered to the defendant’s residence. Upon failure of defendant to make payments on the note according to its terms, the plaintiffs brought this action to recover possession of the furniture.

The defendant filed an answer in the nature of a. general denial and a cross-petition in which she alleged that the furniture selected and purchased by her was represented by the plaintiffs to be new furniture; that the furniture delivered to her was not the furniture selected but was secondhand furniture in a defective condition; that she made complaint to the plaintiffs and demanded the matter be adjusted which the plaintiffs agreed to do but failed to comply with their agreement; and that the reasonable value of the furniture delivered was $400. She prayed for judgment in the amount of $200.06, such sum being the difference between the amount paid and the value of the furniture, and for cancellation of the chattel mortgage.

Plaintiffs in their reply denied that the furniture delivered was secondhand furniture and alleged that the complaints made relative to certain items of furniture were taken care of to the best of their ability.

The case was tried to a jury which returned a verdict, without interrogatories, finding the right of possession to be in the defendant, made no award of damages in favor of the defendant, and fixed the value of the property at $600. The court overruled a motion for new trial and rendered a judgment on the verdict. .

Plaintiffs claim the court erred in overruling their motion to dismiss the defendant’s cross-petition at the end of defendant’s case for insufficient evidence. There was evidence introduced supporting the allegations in the cross-petition, and the trial court very properly submitted the issue to the jury.

Plaintiffs contend the court committed prejudicial error in the admission of evidence. On cross-examination, Milton J. Leeman, one of the plaintiffs, was asked the question: “What are your gross sales at your place of business?” An objection was interposed which was overruled. The witness had testified in detail concerning the transaction with the defendant. A wide latitude is accorded counsel on cross-examination to test the credibility of the witness. The question was proper to test the witness’ ability to remember the details of one transaction out of many and the answer would have a tendency to affect his credibility.

Plaintiffs contend counsel for defendant was guilty of misconduct which was prejudicial to their case. The remark made by defendant’s counsel, which is claimed was highly prejudicial was addressed to the court in argument on an objection and was as follows: “No man is going to admit his own business is robbing the public, Your Honor.” Counsel promptly apologized and the court instructed the jury to disregard remarks of counsel. After an examination of the record we cannot say that the remarks of counsel, although improper, were prejudicial so as to require reversal.

Plaintiffs claim the court erred in its charge to the jury. The court charged that the defendant was required to prove the material allegations in her cross-petition by a preponderance of the evidence. It is claimed that since the defendant prayed for a cancellation of the chattel mortgage, the allegations in the cross-petition should be sustained by clear and convincing evidence. With this we do not agree. Replevin is a legal and statutory remedy. The defendant denied plaintiffs’ right to possession, and set up a counterclaim for damages. The issues raised were of a legal character. The cancellation of the chattel mortgage, although prayed for, was not a determinative factor in the case. Moreover, the cancellation of the chattel mortgage was not a matter to be submitted to the jury but to the court, which would require it to exercise its equity powers. The cross-petition was based on breach of contract, and the issues raised required the application of the preponderance rule.

Evidence of a substantial character was admitted in the support of the material issues in this case which required its submission to the jury. After an examination of the entire record, we cannot say that the verdict was against the manifest weight of the evidence.

As we find no prejudicial error in the record, the judgment is affirmed.

Judgment affirmed.

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


author: Wiseman, P. J. Hornbeck, J.,

text:
    Gratziano, d. b. a. Grandview Cab Co., Appellant, v. Grady, Appellee.

      (No. 4074
    Decided March 17, 1948.)

      Messrs. Williams, Williams & Reynolds, for appellant.

      Messrs. Stump, Wardlaio é Mitchell, for appellee.
   Wiseman, P. J.

The appeal is from a judgment of the Municipal Court of Columbus, in favor of the defendant on his cross-petition. The cause was submitted on an agreed statement of facts from which it appears that the plaintiff was driving an automobilewestwardly on Spruce street, which street extends in an easterly and westerly direction; and that the defendant was driving his automobile southwardly on Harrison avenue, which intersects with Spruce street at a right angle but does not cross it, forming what is, commonly known as a T intersection.

The petition charged negligence of the defendant in the following respects :

(1) In making a left turn without ascertaining that such movement could be made with reasonable safety ■to other users of the highway, including the plaintiff.

(2) In making a left-hand turn' without giving a signal of his intention so to do.

(3) In failing to have his automobile under control.

(4) In failing to yield the right of way to the plaintiff.

(5) In failing to make the left turn in such a manner so as to leave the intersection to the right of the ■center line of Spruce street.

(6) In approaching and entering the intersection -at a rate of speed that was greater than was reason.able and proper having due regard for the traffic, surface, and other conditions then existing, to wit, 25 miles per hour.

The defendant, answering generally, denied the aver•ments of negligence set out in the petition, and, by way •of cross-petition, alleged that the plaintiff through his .agent was negligent, as follows:

(1) In failing to yield the right of way to the defendant.

(2) In failing to have his automobile under control.

(3) In approaching and entering the intersection at .a rate of speed which was greater than was reasonable .and proper, having due regard for the traffic, surface, and other conditions then existing, to wit, 35 miles an 'hour.

The cause was submitted on an agreed statement of facts which, after describing the physical aspects of the junction of the streets involved, stated:

“It is further agreed that on May 14, 1946, at about '8:50 a. m., Paul Gr. Warner was driving the 1940 “Plymouth touring sedan owned by the plaintiff, west on Spruce street, that said automobile was being operated as a taxicab for hire at said time and place; that said Paul G. Warner entered said intersection of Spruce street and Harrison avenue and was proceeding west on Spruce street; that said defendant, Chester Grady, was driving a 1937 Chevrolet coach south on Harrison avenue, approaching said intersection; that the defendant entered said intersection, started to-make a left hand turn to go east on Spruce street, that said automobiles collided in said intersection.”

The trial judge found for the defendant and entered' the following judgment:

“Judgment is rendered for defendant on plaintiff’s-petition and for defendant on defendant’s cross-petition, $200 and costs. (Court’s decision based upon brief of defendant particularly Frey v. Buchseib, 22: Ohio Law Abs., 624, Court of Appeals of Franklin county, plaintiff failed to yield right of way.)”

“Intersection” is defined in Section 6307-2, General Code, as follows:

“The area embraced within the prolongation of the lateral boundary lines of two or more highways which-join one another.”

It may be conceded that the junction of Spruce street and Harrison avenue is an intersection. See Frey v. E. C. Buchseib, Inc., 22 Ohio Law Abs., 624, 33 N. E. (2d), 862; Dye v. Spohn, 34 Ohio Law Abs., 123, 36 N. E. (2d), 425; 2 Blashfield’s Cyclopedia of Automobile-Law and Practice, 170, Section 1006; 3 Berry Law of Automobiles (7 Ed.), 180, Section 3.107. But it is claimed that inasmuch as Harrison avenue came into-a dead end at Spruce street and the defendant was making a left turn, intending to proceed eastwardly into Spruce street, he no longer had the right of way-over the plaintiff,'but had lost it because Section 6307-40, General Code, defining th§ right of way at inter■sections, did not control the situation. It is urged that •Sections 6307-35 (h) and 6307-38, General Code, controlled the obligations and determined the rights of the defendant at the intersection and that such rights were inconsistent with any right conferred by Section 6307-40, General Code. It will be noted that the agreed statement of facts did not disclose when or where in the intersection the defendant began to make his. turn, or where in the intersection the collision occurred, although it was stated that defendant’s driver entered the intersection and started to make a left-hand turn to go east on Spruce street.

Section 6307-40, General Code, provides, in part:

“Excepting where otherwise provided the operator of a vehicle * * * shall yield the right of way at an intersection to a vehicle * * * approaching from the right.” (Emphasis ours.)

And “right of way” is defined in Section 6307-2, General Code, as follows:

‘ ‘ The right of a vehicle * * * to proceed uninterruptedly in a lawful manner in the direction in which it * * * is moving in preference to another vehicle * * * approaching from a different direction into its * * * path.” (Emphasis ours.)

It has been held in Morris v. Bloomgren, 127 Ohio St., 147, 187 N. E., 2, 89 A. L. R., 831, that these are cognate sections and must be construed together.

The fifth paragraph of the syllabus of that case is, in part:

‘ ‘ The driver of a vehicle lawfully approaching from the right has the right to assume that the driver of the vehicle approaching from the left will obey the law by yielding the right of way.”

It was further held that former Sections 6310-28 and 6310-28a, General Code (now Sections 6307-2 and 6307-40, General Code), conferred “an absolute right of way upon the vehicle approaching from the right, qualified only by the requirement that, in proceeding uninterruptedly, it must proceed in a lawful manner.”

The rule of law laid down in the case of Morris v. Bloomgren, supra, must be considered, in light of the facts. In that case, the streets crossed at right angles to make a complete intersection. Neither vehicle attempted to make a turn. The court was not required to give force and effect to the words, “in the direction In which it * * * is moving,” as used in Section 6307-2, General Code. However, it is important to observe that the court in its opinion stated that the right of way was conferred on the motor vehicle approaching from the right when it proceeded in the direction in which it was moving. A complete statement is found on page 156 as follows:

“* * # Sections 6310-28 and 6310-28a, General Code, confer an absolute right of way upon the motor vehicle approaching from the right, qualified only by the requirement that, in proceeding uninterruptedly in the direction in which it is moving [emphasis ours], it must proceed in a lawful manner.”

The preferential right of way given to a vehicle approaching from the right is an absolute right only when the factual situation presented requires the application of the statute. It must be noted that the statute (Section 6307-40, General Code) by its terms does not apply in every situation. It applies when the vehicle on the right proceeds “in a lawful manner” and continues to proceed “in the direction in which it * * * is moving.” Section 6307-2, General Code. It does not apply when the vehicle on the right changes direction.

In the instant case, it is agreed ‘ ‘ that the defendant entered said intersection, started to make a left-hand turn to go east on Spruce street, that said automobiles collided in said intersection.” It cannot be presumed that the defendant proceeded in the direction in which he was moving until he crossed the center- line of Spruce street before making the turn. The law did not require the defendant to continue driving in the direction he was moving until he had passed the center of the intersection before attempting to make a turn. The facts stipulated indicate that the defendant began to make a left turn immediately after entering the intersection.

Section 6307-35 (b), General Code, defining the obligations of a driver of a vehicle intending to make a left turn at an intersection, provides:

“Approach for a left turn shall be made in that portion of the right half of the roadway nearest the center line thereof and after entering the intersection the left turn shall be made so as to leave the intersection to the right of the center line .of the roadway being entered.”

Because of the presumption that a person is presumed to have observed the law, we must assume that the defendant, as he made the left turn in the intersection, conformed to that provision. However, in doing so, he drove his automobile across the path of plaintiff’s automobile which had not changed its direction. The defendant changed the direction of his automobile upon entering the intersection and in doing so was amenable to the provisions of Section 6307-38, General Code, which, in part, provides:

“(a) No person shall turn a vehicle * * * from a direct course upon a highway unless and until such person shall have exercised due care to ascertain that such movement can be made with reasonable safety to other users of the highway * * * or after giving an appropriate signal in the event any traffic may be affected by such movement.

“(b) A signal of intention to turn right or left shall be given in sufficient time in advance of the movement indicated to give ample warning to other users of the highway who would be affected by such movement.”

The statement of.facts does not disclose a failure on the part of the defendant to observe the provisions of that section. From the fact that a collision occurred in the path of plaintiff’s automobile, it may reasonably be inferred that both drivers claimed the right of way. Apparently, the agreed statement of facts was so drawn as to eliminate all other issues and to raise squarely the question whether the defendant, in making the left turn in the intersection was given the right of way under the provisions of Section 6307-40, General Code. After a careful search we have not been able to find a reported opinion in Ohio in which this precise question has been decided. In the case of Watt v. Feuerlicht, 35 Ohio Law Abs., 509, 41 N. E. (2d), 719, a factual situation was presented which would have permitted a decision on such question. However, in that case, as in the case of Morris v. Bloomgren, supra, the decision turned on whether the driver on the right was proceeding in a lawful manner.

Inasmuch as the trial judge relied upon the case of Frey v. E. C. Buchseib, Inc., supra, decided by the Court of Appeals for Franklin county, attention is called to the distinguishing feature of that case. In that case the plaintiff claimed that the collision did not occur in the intersection but beyond it. The defendant claimed that the collision occurred in such close proximity to the intersection that the law controlling the obligation of drivers of vehicles at intersections had application, and that the plaintiff failed to observe the provisions of Section 6310-24, General Code, now Section 6307-35 (b), as he turned to the left in the intersection. At the time the accident occurred, Section 6310-24, General Code, provided: “Vehicles turning to the left into another road or highway shall pass to the right of and beyond the center of the intersection before turning.”

It will be observed that under the statute at that time the driver of a vehicle making a left turn was required to proceed beyond the center of the intersection before turning. That provision would have required the driver to proceed in the direction in which he wa.s moving until he had crossed the path of the vehicle approaching from his left before making a left turn. As we have already pointed out, a left turn at an intersection is not required to be made in that manner under Section 6307-35 (b), General Code. In that case the factual situation required the application of the “right of way” statute, as it then existed and the court so held. The question presented in that case was not identical with the one before the court in the instant case.

The case of Mapp v. Holland, 138 Va., 519, 122 S. E., 430, 37 A. L. R., 478, is cited in support of the contention made by the defendant. The “right of way” regulation was quoted by the court in that case, as follows:

“All vehicles * * # shall have the right of way over others approaching in intersecting roads from the left, and shall give the right of way to those approaching from the right.”

Apparently the regulation of Virginia did not carry the limitations on the application of the regulation which limitations are found in the statutes of Ohio. The court in that case in its opinion made no mention of any qualifying statutory provisions to the “right of way” regulation.

On the question whether the preferential right of way given to the vehicle on the right is absolute, it is interesting to note the language of the Supreme Court of California in the case of Donat v. Dillon, 192 Cal., 426, 221 P., 193. The court in its opinion stated:

“Although a machine first reaching the intersection may have the right of way, it does not follow that one who changes his course at the intersection of a street is entitled to the full protection of this rule, for common sense tells us that he is bound to exercise great care to avoid colliding with machines that are on the street and across whose path he must travel.”

Sections 6307-2, 6307-35, 6307-38 and 6307-40, General Code, are in pari materia and must be given that construction which will harmonize and give effect to ail the provisions contained therein. To hold that the defendant had the right of way under the facts stipulated would require the court to give no effect to the words, “in the direction in which it * * * is moving,” used in Section 6307-2, General Code, and to entirely ignore the provisions of Section 6307-38, General Code, which controls the conduct of a driver in turning a vehicle from a direct course upon a highway. It will be observed that Section 6307-40, General Code, applies “excepting where otherwise provided.” In holding that the defendant lost the right of way in making a left-hand turn in the intersection, the court is giving meaning and effect to all such provisions., If this construction of the ‘ ‘ right of way ’ ’ statute was not intended by the General Assembly, then it should change the definition of “right of way” in Section 6307-2, General Code. • The Uniform Traffic Act was intended to expedite the flow of traffic, to eliminate traffic hazards and to prevent collisions. A careful consideration of the provisions of the act discloses a purpose to favor vehicles moving in a straight line over vehicles changing direction. Thus, traffic is kept moving and vehicles changing direction are not permitted to join the flow of traffic except upon observance of the controlling rules of safety.

The reason for the rule is obvious and is in the interest of safety. The driver of the vehicle on the left has a right to assume that the driver on the right will proceed in the direction in which he is moving. In making a left turn, the vehicle on the right cuts into the path of the vehicle on the left and thereby reduces the distance each vehicle may move before the paths of the vehicles cross. By changing direction the vehicle on the right loses the right of way. This rule applies with equal application whether the intersection be a complete intersection or a T intersection.

We are of the opinion that the defendant lost the preferential right of way given him under Section 6307-40, General Code, as defined in Section 6307-2, Genera] Code, when he began to make a left-hand turn in the intersection, and that the provisions of Sections 6307-35 (b) and 6307-38, General Code, controlled his movements and determined the care required.

The trial court decided this case on the sole issue of right of way, which was resolved in favor of the defendant.

The seven separate assignments of error of the plaintiff, appellant herein, in substance, are that the judgment of the trial court is against the weight of the evidence and is contrary to law. While we are of the opinion that the judgment is contrary to law, we cannot find that the judgment is against the manifest weight of the evidence as the defendant was controlled by the provisions of Sections 6307-35 (b) and 6307-38, General Code, in making the left turn, and the facts stipulated are insufficient to warrant a reversal on this ground. Because of the meager statement of facts and the controlling statutory provisions, we cannot render a final judgment.

The judgment is reversed and the cause remanded for a new trial.

Judgment reversed.

Miller, J., concurs.

Hornbeck, J.,

dissenting. I respectfully dissent from the conclusion of the majority and believe “right of way” as- thereby interpreted is unnecessary, impractical and contrary to an adjudication which is binding upon this court.

The majority opinion assures the right of way to an automobile only if it is moving into and through the intersection without change of direction, and, thereby, removes the privilege, at either type of intersection, from any motorist who turns to the right or left after entering the intersection. The definition of “right of way” in Section 6307-2, General Code, accords to a “streetcar” or “trackless trolley” the same privilege as is assured automobiles. This preferential right is removed by the majority if a streetcar is approaching or leaving the dead end of a T where the tracks turn either to the right or the left at the junction of the streets.

The first paragraph of the syllabus of Morris v. Bloomgren, 127 Ohio St., 147, 187 N. E., 2, 89 A. L. R., 831, after a consideration of both Sections 6310-28 (now 6307-2) and 6310-28a (now 6307-40), General Code, concludes:

“Construed together these sections confer an absolute right of way upon the vehicle approaching from the right, qualified only by the requirement that, in proceeding uninterruptedly [all above emphasis mine], it must proceed in a lawful manner.'”

The limitation upon the qualification is accentuated in the third paragraph of the syllabus, as follows:

“The phrase ‘in a lawful manner/ found in Section 6310-28, General Code, is a sine qua, non obligation placed upon the vehicle upon which the right of way is conferred. If such vehicle is not proceeding in a lawful' manner in approaching or crossing the intersection, but is proceeding in violation of a law or ordinance, such vehicle loses its preferential status and the relative obligations of the drivers of the converging vehicles are governed by the rules of the common law.” (Emphasis mine.)

Upon the agreed statement of facts it must be presumed that the defendant was proceeding into and1 was crossing the intersection in a lawful manner including the observance of the requirements of Section 6307-35 (b), General Code, and paragraphs (a) and (b) of Section 6307-38, General Code. This is the only qualification required by Morris v. Bloomgren, supra, to assure the right of way at and in an intersection to the vehicle approaching from the right. We should not write another exception into the application of the right-of-way statutes at intersections. • Section 6307-40, General Code, and “right of way,” as defined in Section 6307-2, General Code, apply not only to the entrance of vehicles into, but also to their movement through, intersections.

This cause having been submitted upon an agreed statement of facts, there is presented for determination a question of law only, and, as the defendant had the right of way as he proceeded in a lawful manner through the intersection and the collision occurred in the intersection, the judgment should be affirmed.


text:
    Turckel, Appellant, v. Archer, a Minor, Appellee.
    (No. 171
    Decided March 22, 1948.)

      Mr. Ben West, for appellant.

      Messrs. Nichols, Speidel & Nichols, for appellee.
   By the Court.

After the jury had returned a verdict for the plaintiff and judgment had been rendered thereon, the defendant filed a motion for a new trial and also for judgment notwithstanding the verdict. Upon hearing these motions, the court concluded that it had erred at the trial in overruling the defendant’s motion for an instructed verdict made at the close of the plaintiff’s evidence and renewed at the close of all the evidence, and for that reason set the judgment for the plaintiff aside and rendered judgment for the defendant. It is that judgment that is brought under review by this appeal.

The action is one to recover for damage done to the plaintiff’s automobile in a collision with an automobile operated by defendant.

When the evidence is construed most favorably to the plaintiff, as the trial court was required to do in passing upon the motion for judgment notwithstanding the verdict and as this court must do on this appeal, it shows that these two automobiles were approaching, from opposite directions, an abrupt turn (almost at a right angle) in a gravel road. The traveled portion of the road did not exceed ten feet in width with a narrow berm. There was, however, space for automobiles to pass one another. Owing to the presence of shubbery alongside the road, the view was obstructed, and, because 'of the bend, the forward view of a person entering the bend was limited to 15 feet.

Each automobile was going at from 20 to 30 miles per hour as it entered the turn and became visible to the operator of the other. The plaintiff was on his right side of the road and the defendant was on his left or wrong side.

The evidence is that the brakes on the plaintiff’s automobile were in normal condition, but there is no direct evidence as to the distance required to stop his automobile going at from 20 to 30 miles per hour. The occupants of the automobile were not injured.

The trial court found that the undisputed evidence in the case showed the plaintiff was guilty of negligence directly contributing to the collision and for that reason rendered judgment for the defendant, notwithstanding the verdict for the plaintiff.

In support of the action of the court, the defendant asserts that the undisputed evidence proves that the plaintiff was negligent as a matter of law, in that he violated that provision of Section 6307-21 (formerly Section 12603), General Code, by which it is provided that no person shall drive any motor vehicle in and upon any public road at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead. This statute has been construed in many cases, including the case of Smiley v. Arrow Spring Bed Co., 138 Ohio St., 81, 33 N. E. (2d), 3, 133 A. L. R., 960, and there is no doubt that its violation constitutes negligence as a matter of law.

But it must be conclusively proven or adjudged by the trier of the facts before a violation of the statute may be charged as negligence. In this case the jury was the trier of the facts, and it did not adjudge that the plaintiff had violated the statute. The action of the court can be supported only on the theory that the evidence conclusively proved a violation. Now is that position tenable? We think it is not.

As the plaintiff approached the bend in the road, he had a right to assume that no one would approach from the opposite direction on plaintiff’s side of the road and thereby cut down the distance within which he could stop his automobile. He, therefore, had' 15 feet as the assured clear distance in which to stop. He was going at the rate of from 20 to 30 miles per hour. There was no evidence that, going at that rate, he could or could not stop within that distance. We are, therefore, presented with a record which neither conclusively proves nor disproves a violation of the statute. Certainly, no conclusive inference of negligence arises from the evidence.

Assuming that the jurors were permitted to apply their general knowledge of the distance in which an automobile may be stopped (53 American Jurisprudence, 657, Section 913), that distance would necessarily vary according to differing conditions as determined by the jury. Certainly, it cannot be said as a matter of judicial knowledge that, under the circumstances, this automobile could not have been stopped within 15 feet.

The burden of proving contributory negligence rested upon the defendant, and, therefore, a failure of proof on the subject would not avail him.

For these reasons, the judgment is reversed, and the cause remanded with instructions to overrule the motion for judgment notwithstanding the verdict, and for further proceedings according to law.

Judgment reversed.

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


text:
    Bussard, Appellee, v. Kennedy et al., Appellants.
    (No. 1965
    Decided January 12, 1948.)

      Mr. Clarence J. StoecMein, for appellee.

      Mr. Drewey H. Wysong, for appellants.
   By the Court.

This cause is submitted on motion to dismiss the appeal because, first, the cause is not one in chancery, second, the only question raised is one at law and, third, appellants have failed to file assignments of error as required by Rule VII of this court.

In the notice of appeal it is stated that ‘ said appeal is on questions of law and fact.” This is a civil action, to recover a money judgment. Obviously this action is not appealable on questions of law and fact. The motion to dismiss the appeal on questions of law and fact will be sustained. Under Section 12223-22, General Code, this appeal shall stand as an appeal on questions of law.

The second ground of the motion is overruled as it raises a question of law.

The third ground of the motion is overruled, as the filing of assignments of error is not required so long as the appeal stands as an appeal on questions of law and fact.

When an appeal on questions of law and fact is ineffective and the case is retained as an appeal on questions of law, and no bill of exceptions has been filed, the reviewing court is required, under the provisions of Section 11564, General Code, to fix a time, which shall not exceed 30 days, for the preparation and settlement of the bill of exceptions.

The court orders the case to stand as an appeal on questions of law, and grants to appellants 30 days after the filing of the entry journalizing this decision within which to prepare and settle a bill of exceptions and file assignments of error and brief.

Judgment accordingly.

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