author: Phillips, J.

text:
    Bredenbeck, Appellant, v. Hollywood Cartage Co., Inc., Appellee.
    (No. 3465
    Decided January 9, 1952.)

      Mr. Morris Mendelssohn, for appellant.

      Mr. William E. Pfau, for appellee.
   Phillips, J.

Plaintiff appealed to this court on questions of law from a judgment of the Court of Common Pleas sustaining defendant’s motion for judgment to be entered in his favor notwithstanding the verdict of the jury in the amount of $30,000 returned for plaintiff, in his action instituted in that court to recover damages from the defendant for personal injuries sustained allegedly as the result of defendant’s carelessness and negligence.

In his petition plaintiff alleged that about 12:30 o’clock on the morning of October 26, 1948, he was operating a 1941 sedan automobile in a westerly direction on route 18, and had reached a point thereon approximately four miles west of Austintown, Mahoning county, Ohio, where his visibility ahead was limited to 30 or 40 feet, when a small animal attempted to cross his path; that to avoid striking the animal plaintiff operated his automobile sharply to the northerly, or right hand, side of that highway and came into collision with defendant’s unlighted, unguarded, tractor parked on the northerly side of that highway, without warning by defendant, in any manner, that his tractor was so parked on that highway; and that as the result of such collision plaintiff was injured.

By brief plaintiff contended:

íí* * * if the defendant had operated the said trailer at the time of the accident with lights and reflectors and/or had placed fusees and markers on said Route 18, directly behind said trailer, after it was parked, this plaintiff would have been warned of the location of the defendant’s vehicle and plaintiff would have been aware of the presence of that impediment on the roadway and so could have operated his vehicle so that he could have struck the animal that came in front of him or turned to the left and thus avoided defendant’s tractor and that had plaintiff known of the precise position and location of the defendant’s trailer in the right-hand lane it would not have been necessary for him to have veered as sharply to the right or to have traveled as far to the right as he did in order to avert striking the animal that darted in front of him, but that since the trailer was unlighted the plaintiff was wholly unaware of its position and had the right to assume that the righthand lane of traffic was free and unobstructed. He was justified in allowing himself a greater margin of safety in turning aside and avoiding the animal that had crossed his path.”

Plaintiff contends further that he was confronted with a sudden emergency and cannot be held to have violated the assured-clear-distance provision of Section 6307-21, General Code, in operating his automobile at the time and in the manner stated. Plaintiff endeavors to support his argument by citing the cases of Hangen, a Minor, v. Hadfield, 135 Ohio St., 281, 20 N. E. (2d), 715; Erdman v. Mestrovich, 155 Ohio St., 85, 97 N. E. (2d), 674; Shaeffer-Weaver Co. v. Mallonn, 45 Ohio App., 1, 186 N. E., 514; Farris v. City of Columbus, 85 Ohio App., 385, 85 N. E. (2d), 605; and Brown v. Wackman, 55 Ohio Law Abs., 159, 87 N. E. (2d), 271.

The following interrogatories were submitted to the jury, which they answered as indicated:

“1. How far could the plaintiff see a substantial object in front of his car just before the accident happened?

“Answer: 30 to 40 feet.

“2. Within how many feet could the plaintiff stop his car just before the accident happened?

“Answer: 40 feet.

“3. How fast was the plaintiff’s car traveling before he applied his brakes just before the accident happened?

“Answer: 25 to 30 feet.

“4. Was there any obstruction, other than darkness or fog, between the rear of the defendant’s trailer and the plaintiff which prevented the plaintiff from seeing the defendant’s trailer just before the accident happened?

“Answer: No.”

With reference to such interrogatories plaintiff contends that interrogatory No. 1 is ambiguous, “cleverly written” as “a catch question fully intended to confuse the jury,” and does not test the correctness of the verdict of the jury; that interrogatory No. 2 was submitted to the jury “with the full intent of confusing the jury”; that interrogatory No. 3 “entirely confused” the jury, and that its answer thereto was “unresponsive”; and that interrogatory No. 4 was answered correctly.

Further, plaintiff contends that “not one of the interrogatories submitted by the defendant elicited findings from the jury on a particular question of fact of an ultimate and determinative nature, but that the questions merely called for answers as to evidentiary or probative facts which simply amounted to a cross-examination of the jury”; and that the trial court erred in submitting interrogatories numbered 1, 2 and 3 to the jury. Plaintiff attempts to support this contention by citation of the cases of McFadden v. Thomas, Admx., 154 Ohio St., 405, 96 N. E. (2d), 254; and Bradley, an Infant, v. Mansfield Rapid Transit, Inc., 154 Ohio St., 154, 93 N. E. (2d), 672.

“To be proper, under Section 11420-17, General Code, interrogatories prepared and submitted by counsel must call for findings by the jury on particular questions of fact of an ultimate and determinative nature — such findings as will test the correctness of the general verdict returned and enable the court to determine as a matter of law whether such verdict shall stand.” Bradley, an Infant, v. Mansfield Rapid Transit, Inc., supra.

It is error to submit to a jury an interrogatory based upon an erroneous proposition of law.

“We are of the opinion that because answers to interrogatories given pursuant to Section 11420-17, General Code, do test the correctness of a general verdict returned by a jury and enable the court to determine as a matter of law whether such verdict shall stand, it is exceedingly dangerous to the administration of justice to submit interrogatories except in strict accordance with the statute.” McFadden v. Thomas, Admx., supra.

In our opinion the quoted interrogatories were submitted to the jury “in strict accordance with the statute” to which reference is made supra, and, accordingly, we believe the trial judge did not err prejudicially to plaintiff, as urged by him, in submitting such interrogatories to the jury. On the contrary, it was the duty of the trial judge in this case to submit such interrogatories to the jury, after presentation to him. See Section 11420-17, General Code.

“When a special finding of facts is inconsistent with the general verdict” (interrogatory No. 4), as in this case, ‘ ‘ the former shall control the latter, and the court may give judgment accordingly.” Section 11420-18, General Code.

Where the answer to a special interrogatory is inconsistent with the general verdict, as in the case we review, and cannot be reconciled with the general verdict “it is the duty of the trial court to sustain defendant’s motion to set aside the verdict of the jury.” McDermott v. Irwin, 148 Ohio St., 67, 73 N. E. (2d), 86, syllabus, paragraph 3.

See, also, Elio v. Akron Transportation Co., 147 Ohio St., 363, 71 N. E. (2d), 707; and Klever v. Reid Brothers Express, Inc., 151 Ohio St., 467, 86 N. E. (2d), 608.

“To comply with the assured-clear-distance-ahead provision of Section 12603, General Code, the driver of a motor vehicle must not operate it at a greater speed than will permit him to bring it to a stop within the distance between his motor vehicle and a discernible object obstructing his path or line of travel, unless such assured clear distance ahead is, without his fault, suddenly cut down or lessened by the entrance, within such clear distance ahead and into his path or line of travel, of some obstruction which renders him unable, in the exercise of ordinary care, to avoid colliding therewith.” Smiley v. Arrow Spring Bed Co., 138 Ohio St., 81, 33 N. E. (2d), 3; 133 A. L. R., 960.

The quoted syllabus of the case of Smiley v. Arrow Spring Bed Co., supra, announces the legal excuse for failure to comply with the provisions of the applicable statute which the Supreme Court uniformly has followed without exception or modification from the time of announcement up to and including the recent case of Erdman v. Mestrovich, supra.

In our opinion a study of the evidence submitted to us for review discloses no legal excuse for plaintiff’s failure or noncompliance with the assured-clear-distance-ahead rule announced in the second paragraph of the syllabus of Smiley v. Arrow Spring Bed Co., supra.

We agree with the contention of counsel for defendant that “the answer to interrogatory number 4- is a specific finding of fact which * * * is determinative of the question of whether or not there was any evidence of a legal excuse as set forth in the Smiley case for the noncompliance with the assured-clear-distance-ahead rule”; and that “the foregoing interrogatory is determinative of” the question presented “and was a proper interrogatory.”

Admittedly plaintiff operated his automobile on Ohio state route 18, in the night season, when his visibility in the direction he was proceeding by reason of darkness and fog was but thirty to forty feet, at the stated speed, under the conditions shown by the evidence to qxist, in violation of the statutory requirement governing lights, into collision with defendant’s “parked, unlighted, unguarded” tractor. His actions prevented him from knowing “of the presence, position and location of the defendant’s trailer” in the place it was parked, and in onr opinion created the argued and claimed sudden emergency in which he found himself, precluded recovery by plaintiff in this case, and would have justified the trial judge directing a verdict for defendant at the close of plaintiff’s case or at the close of all the evidence.

No error prejudicial to the plaintiff appearing in any of the respects urged by him, the judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

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

Griffith, J., concurs.


source: Caselaw Access Project

author: Wiseman, J.

license: Public Domain

text:
    Jolley, Appellant, v. Georgeff et al., Appellees.
    (No. 4705
    Decided March 14, 1952.)

      Messrs. Vorys, Safer, Seymour S Pease, Mr. Itha-. mar D. Weed and Mr. Junius Hoffman, for appellant.

      Mr. Alfred J. Henney, for appellees.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin County, reversing the judgment of the Municipal Court of Columbus rendered in favor of the plaintiff for $1,000 as liquidated damages growing out of a breach of contract.

Plaintiff, appellant, contends the Common Pleas Court erred in reversing the judgment of the Municipal Court and also erred in rendering final judgment for the defendants.

With the exception of the question of damages, the facts in the case are undisputed. On July 7, 1943, plaintiff and defendant Tony Georgeff entered into a written contract whereby plaintiff agreed to install an automatic phonograph or .“juke box” in the defendant’s place of business. The contract provided that plaintiff should have the exclusive right to install and .operate an automatic phonograph and other musical instruments in defendant’s place of business for a period of five years. In the event of the breach of the contract by the defendant, referred to as ‘ ‘ merchant, ’ ’ the contract provided: ‘ ‘ Should merchant fail to perform the terms of this agreement, merchant agrees to pay operator the price of the instrument stated above as damages to operator.” The contract provided that the phonograph and the attachments were priced at $1,000.

On November 4, 1947, or about eight months prior to the expiration of the five-year period, during which the contract was to be in effect, the defendant Tony Georgeff demanded in writing that plaintiff remove the instrument. On November 7, 1947, the plaintiff upon visiting defendant’s place of business found that plaintiff’s instrument had been disconnected and another instrument installed. The plaintiff promptly removed his instrument.

In his petition plaintiff prays for an award of damages in the sum of $1,000 against Tony Georgefl and Martha Georgeff, his wife.

There is no denial of the terms of the contract or that it was breached. The principal question presented is the amount of damages. The Municipal Court awarded damages in the amount of $1,000, which counsel agree was awarded as the price of the instrument. The Common Pleas Court reversed that judgment and held that the provision in the contract which stipulated the amount of damages in the event of a breach thereof was in the nature of a penalty and not liquidated damages. The Common Pleas Court did not order a remand but entered judgment for the defendants.

In our opinion the Common Pleas Court correctly held that the provision in the contract with respect to damages should be treated as a penalty and not as liquidated damages. In Jones v. Stevens, 112 Ohio St., 43, 146 N. E., 894, the court states the applicable principle of law in the syllabus as follows:

“1. To determine whether a sum named in a contract is intended as a penalty or as liquidated damages, it is necessary to look to the whole instrument, its subject matter, the ease or difficulty of measuring the breach in damages, and the amount of the stipulated sum, not only as compared with the value of the subject of the contract, but in proportion to the probable consequences of the breach, and also to the intent of the parties ascertained from the instrument itself in the light of the particular facts surrounding the making and execution of the contract.

“2. Where the parties have agreed on the amount of damages, ascertained by estimation and adjustment, and have expressed this agreement in clear and unambiguous terms, the amount so fixed should be treated as liquidated damages and not as a penalty, if the damages would be (1) uncertain as to amount and difficult of proof, and if (2) the contract as a whole is not so manifestly unconscionable, unreasonable, and disproportionate in amount as to justify the conclusion that it does not express the true intention of the parties, and if (3) the contract is consistent with the conclusion that it was the intention of the parties that damages in the amount stated should follow the breach thereof. ’ ’

In determining whether the sum mentioned in the contract to be paid in the event of a breach should be treated as a penalty or as liquidated damages, the court must construe the contract in light of the situation of the parties at the time of the execution of the contract. In Miller v. Blockberger, 111 Ohio St., 798, 146 N. E., 206, the first paragraph of the syllabus is as follows:

“In determining whether the sum provided in a contract to be paid in the event of its breach is liquidated damages, or a penalty, a court will construe the contract by its four corners in the light of the situation of the parties at the time of the execution of the contract, and from that position will determine whether the damages which would be sustained by reason of the breach could, at the time of the execution of the contract, by the process of computation and adjustment, have been easily and approximately ascertained; and, in determining whether they were so ascertained, will compare the amount stipulated with the amount of damages which would probably result from the breach, and if there is such discrepancy between the sum stipulated and the damages which would probably and naturally result from the breach as to indicate that the sum stipulated could not have been arrived at by a process of computation and adjustment, or if arrived at by process of computation and adjustment such process did not have for its purpose compensation, but was arrived at for some purpose other than compensation, the sum stipulated will be held to be ‘penalty’ rather than ‘liquidated damages.’ ”

In the instant case, the time of the breach is immaterial and is not to be considered in determining whether the stipulated sum is to be construed as a penalty or as liquidated damages. See Doan v. Rogan, 79 Ohio St., 372, 390, 87 N. E., 263, where the court rejects the time element as a factor. Jacobs v. Shannon Furniture Co., 13 C. C. (N. S.), 140, 142, 22 C. D., 51, 53.

In the case at bar there is no evidence that the parties attempted to ascertain the damage in case of breach and no negotiations were had in regard thereto. The damages in the case of breach were not difficult of ascertainment, as is shown by the evidence. The contract provided that the price of the instrument should be the measure of damages. It is rather difficult to see how the price of the instrument bears any reasonable relation to the amount of the damages. Furthermore, the contract provided that the defendant Tony Georgeff was obligated to perform about nine separate specific things in connection with the installation and operation of the instrument and the severance of the relationship, and a breach of any one of the separate covenants would have given rise to the application of the damage provision in the contract. If the defendant Tony Georgeff had failed “to provide proper electrical wiring and sockets,” to furnish the “electricity used in operating the same,” “to keep said instrument prominently displayed,” or to perform in several other respects, such failure would have constituted a breach and the damage clause would have been applicable. In Miller v. Blockberger, supra, the fourth paragraph of the syllabus is as follows:

“Where a contract contains several covenants, and the stipulated forfeiture is applicable alike to each covenant, and would become due on the breach of a single covenant, and is clearly a penalty as to any one covenant, it will be held a ‘penalty’ as to all covenants. ’ ’

It is our opinion that the damage clause provided for the payment of an amount in the event of the breach of any of the terms of the contract; that such amount was an arbitrary one and was not arrived at by calculation or adjustment by the parties in an attempt to determine what the damages would be in the event of a breach; and that the price of the instrument bears no reasonable relation or proportion to the damages which may be suffered as a result of the breach. By applying the tests enumerated in Jones v. Stevens, supra, we conclude that the sum stipulated was a penalty and not liquidated damages.

The Common Pleas Court rendered judgment in favor of both defendants. With respect to Martha Georgeff, the wife, the judgment was correct. Martha Georgeff did not sign the contract and had no part whatever in the transaction. The undisputed evidence is that she owned no interest in the business. The judgment of the Common Pleas Court with respect to Martha Georgeff is affirmed.

The rule is well established in Ohio that where a contract provides for stipulated damages in the event of the breach thereof, and such provision is construed to be a penalty and not liquidated damages, the party claiming damages may recover such compensatory damages as he may be able to prove. Miller v. Blockberger, supra, 809; Sheffield-King Milling Co. v. Domestic Science Baking Co., 95 Ohio St., 180, 115 N. E., 1014. See, also, Roderick Lean Manufacturing Co. v. Casebere, 18 N. P. (N. S.), 447, 456; Poinsettia Dairy Products v. Wessel Co., 123 Fla., 120, 166 So., 306, 104 A. L. R., 216.

In the instant case, the court took evidence on the question of actual damage sustained by the plaintiff. There was some conflict in the evidence. The cause is remanded with respect to the claim for damages against Tony Georgeff to the trial court to pass upon the weight of the evidence as to the actual damages sustained by the plaintiff by reason of the breach.

Jtidgment affirmed in part and reversed in part.

IToenbeck, P. J., and Miller, J., concur.’


author: Matthews, J.

text:
    Cook, Appellant, v. Williams et al., Appellees.
    (No. 7528
    Decided March 17, 1952.)

      Mr. Chester K. Gillespie and Mr. William N. Lovelace, for appellant.

      Messrs. Berry, McClain & White, for appellee Percy Williams.
   Matthews, J.

The notice of appeal recites that the appeal is on both law and fact, but as no appeal bond was filed, the appeal has been reduced to one on questions of law only. A bill of exceptions has been duly filed and the appeal now comes on for hearing upon a complete record of the proceedings in the trial court. The trial court rendered judgment for the defendants. It is claimed by the plaintiff that error intervened.

The plaintiff is the only child of Cora L. Williams, deceased. The defendant Percy Williams is her widower. They are her only heirs and next of kin. The other defendants were joined as parties because they have or claim an interest in the subject matter of the action.

The prayer of the petition is to have a certain deed conveying certain described real estate from Cora L. Williams to Percy Williams and a transfer of certain corporate stock in Play Bowl, Inc., set aside, and for other relief incident to the setting aside of those transfers. The basis for the relief sought as alleged in the petition is that Cora L. Williams on July 5, 1950, when these purported transfers were made, was mentally incapable of transacting any kind of business and particularly mentally incapable of understanding the nature and effect of this deed to the real estate and this transfer of the corporate stock, and that she was induced to execute such instruments of transfer against her will through the undue influence, fraud, and deceit of her husband, Percy Williams.

Neither the plaintiff, who is the daughter of Cora L. Williams, nor the defendant Percy Williams, who is her widower, testified in this case. However, the evidence shows that for some months prior to the execution of these transfers, Cora L. Williams was suffering from hardening of the arteries of the kidneys, causing high blood pressure and excitation of her mind and feelings, and that she had been hospitalized from May 20 to June 17, 1950, but had been returned to her home on the latter date, where she remained until July 6th, when she was returned to the hospital, where she remained until her death on July 9, 1950. While, perhaps, her condition varied from day to day, her general condition deteriorated, so that on July 6th, her physician directed that she be returned to the hospital, not for curative purposes, but in order that her remaining days might be made as comfortable as possible. There is no doubt whatever that on July 5, 1950, Cora L. Williams was very sick and was, perhaps, physically incapable of writing her name. At any rate her hand was guided by one of the witnesses when she signed the deed which the plaintiff seeks to have set aside.

The defendant Percy Williams admits that Cora L. Williams was very sick on July 5th, and that in retrospect, it could be said that she was dying. Notwithstanding this, he asserts that her act in making these transfers was the result of her own judgment and decision, freely made, with full knowledge and understanding of all the facts. In proof of his position, he produced five witnesses, apparently disinterested, who testified to various transactions with and observations of her during this period, indicating that she participated in business transactions and responded intelligently, and they expressed the opinion that she understood the nature and effect of the transfers and that they carried out her intention. Their testimony if believed proved that she arranged for these transfers, and that neither Percy Williams nor anyone else suggested that she do so. Some of these witnesses testified that Cora L. Williams was asked more than once whether she wanted her daughter, the plaintiff, sent for, and that she said she did not. While Percy Williams was in the room when the deed was executed, there is no evidence that he took any part in the transaction. There is evidence that her purpose was to transfer back to him this property which he had theretofore conveyed to her.

One of the grounds, and, perhaps, the principal ground, urged for the reversal of this judgment is that it is manifestly against the weight of the evidence. It is clear, in view of this array of witnesses testifying, that Cora L. Williams was of sound mind and that the transfers were her voluntary acts, free of any deceit or fraud, and this court would not be justified in disturbing the conclusion of the trial court on the ground that it is against the manifest weight of the evidence.

The plaintiff placed four witnesses upon the stand. The first was the attending physician. He testified that Cora L. Williams was very sick with the fatal malady already described. He saw her on July 3rd, and again on July 6th. The most that can be gleaned from his testimony is that she was very sick on both dates, but more critically so on the latter date, and that perhaps on the latter date she was somewhat confused. On both occasions, she was incapable of much physical exertion. He would not say she was mentally incompetent on July 5th. His testimony does not go beyond the admitted fact that she was very sick and suffering from an incurable disease.

The plaintiff placed two other witnesses — Gillespie and Jones — on the stand. These witnesses had known Cora L. Williams for about six months, during which they had resided in the same building and had seen her frequently. Each testified that she was very sick, but neither testified that she was of unsound mind.

The only other witness for the plaintiff was Beatrice Kennedy, who had known Cora L. Williams since 1944, had traveled with her some, and, during the intervening years, had visited her in her home. The witness lived in Knoxville, Tennessee. While Mrs. Williams was in the hospital, Mrs. Kennedy visited her there on June 11th. The next time she saw her was late on July 5th, perhaps between five and six o’clock p. m. Mrs, Kennedy came from her home in Knoxville on that date. We are of the opinion that a fair analysis of her testimony conld lead to the conclusion that Cora L. Williams was mentally incompetent a few hours after this deed was executed, although in parts of her testimony she testified to conversations and acts indicating rationality.

This was all the evidence introduced by the plaintiff. It certainly cannot be said as a matter of law to outweigh the evidence tending to prove that Mrs. Williams was of sound mind and free from restraint or deception.

The second assignment of error is that the court refused to allow Mrs. Kennedy to give her opinion as to Mrs. Williams’ mental condition. The record shows that she was permitted to testify fully as to the symptoms indicating mental condition. The question that confronts us is whether, under the circumstances, the court’s rulings, taken as a whole, were so prejudicial as to require a reversal of the judgment. Let us analyze the witness’ testimony to determine this question.

Mrs. Kennedy testified that she stayed at the Williams ’ home during the night of July' 5th-6th, that she and Mrs. Berry had to keep Mrs. Williams in bed, and that when they returned to the room on one occasion they found that Mrs. Williams had gotten out of bed and was in a semi-sitting position on the floor and had soiled her bed. This would seem to indicate that she had tried to reach the bathroom, and would indicate physical, rather than mental weakness. The witness testified further that they later assisted Mrs. Williams to make a useless trip to the bathroom at her request; that ‘‘she couldn’t walk very well”; that between June 11th and July 5th, she had telephoned- to the Williams’ residence, but did not talk to Mrs. Williams; that medicine was administered to Mrs. Williams during the night of July 5th-6th; that Mrs. Williams was quite restless and complained of pain in her head during that night; that she had not had much experience in observing the mental condition of people; and that some things Mrs. Williams said “I couldn’t understand them very well and what she said was said incoherently if that is any indication of her mental condition.” Thereupon, the witness was asked this question: “In your opinion when you arrived there on July 5th, was she rational or irrational?” The court sustained an objection to this question. The plaintiff excepted to the ruling, but made no proferí.

All the foregoing testimony was developed on direct examination. It was also developed that Mrs. Williams asked Mrs. Kennedy for a glass of water and that her hand trembled so much that Mrs. Kennedy steadied her hand while she drank a small amount.

On cross-examination, Mrs. Kennedy testified that when she arrived at the Williams home late on July 5th, Mrs. Williams recognized and talked to her: that Mrs. Williams had false teeth, but that she did not have them in her mouth at the time she was talking to her; that she asked Mrs. Williams if she wanted her daughter — the plaintiff — notified, and she answered that she did not; that she refused to change her mind about it, although Mrs. Kennedy urged her to do so; and that on the night of July 5th-6th, she read from the Bible to Mrs. Williams.

Although Mrs. Kennedy’s testimony discloses that Mrs. Williams was physically very sick and weak on July 5th, there is very little indication of mental disorder other than that naturally resulting from physical weakness. She conversed with Mrs. Kennedy, seemed to have positive views, and answered responsively when asked whether she wanted her daughter notified. The strongest statement indicating mental condition is that she could not understand Mrs. Williams very well and that what she said was incoherent. Her inability to understand Mrs. Williams perhaps resulted from the absence of the latter’s teeth. Her statement that what Mrs. Williams said was incoherent was not elaborated upon, and there are varying degrees of incohereney or inconsistency. There certainly is as much in Mrs. Kennedy’s testimony indicating mental capacity as otherwise. We say this because we doubt very much whether a sufficient foundation was laid for the expression of an opinion by the witness. The witness herself seems to have doubted her qualifications to express an opinion on the decedent’s mental condition. However, we are not called upon to determine whether a proper foundation was laid.

As already noted, the plaintiff made no profert of the expected answer. The law is well settled that in the absence of a profert, a reviewing court is in no position to determine whether the error, if any, is prejudicial.

In 2 Ohio Jurisprudence, 339, Section 169, it is said:

“Furthermore, where evidence offered in chief is excluded, the party offering it must show what he expects to prove by the witness in order to enable the reviewing court to see if there has been error on account of the refusal of the court to receive the evidence.”. See, also, Pace v. Buck, 86 Ohio App., 25, 85 N. E. (2d), 401.

It certainly is not at all clear how this witness would have answered this question. We would not be justified in assuming that the answer would have tended to prove the plaintiff’s allegations, especially in the absence of such a profert. We, therefore, hold that no prejudicial error appears on the record in this regard.

The plaintiff offered no expert opinion evidence in chief and the defendants offered none in defense. In rebuttal, the plaintiff placed upon the stand a psychiatrist who testified that he had seen and studied the hospital records relating to Mrs. Williams and had an opinion as to her physical and mental condition. The court sustained an objection to the question as to his opinion of her mental condition, and counsel proferred that, if permitted to answer, the witness would have said that on July 5th Mrs. Williams was totally confused mentally and wholly incapable of transacting any business. The reason given by the court for sustaining the objection was that the plaintiff should have offered this evidence in chief rather than in rebuttal. This ruling of the court is the last assignment of error.

Both by statute (Section 11420-1, G-eneral Code) and at common law, orderly trial procedure requires that a plaintiff shall produce in chief all the evidence in support of the issues upon which he has the burden of proof, unless the court for good reasons, in furtherance of justice, allows him to reopen his case. 39 Ohio Jurisprudence, 594, 644, 645, Sections 24, 71, 72. In other words, the trial judge is vested with discretion, and his exercise of that discretion cannot be disturbed by a reviewing court in the absence of a manifest abuse of his power. In this case, the plaintiff rested her case in chief without mentioning an intention to offer this expert’s opinion, and without asking the court to permit its introduction out of order, and the defendants introduced their evidence and rested their defense on the assumption that the plaintiff would be confined to rebuttal evidence. This court cannot say that the court abused its discretion in refusing to permit her to reopen her case in chief for the purpose of offering this expert testimony.

For the reasons given, the judgment is affirmed.

Judgment affirmed.

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


author: Per Curiam.

text:
    The State of Ohio, Appellee, v. Hamilton, Appellant.
    (No. 3489
    Decided October 29, 1951.)

      Mr. William A. Ambrose, prosecuting attorney, and Mr. Harold H. Hull, for appellee.

      Mr. N. D. Davis, for appellant.
   Per Curiam.

Defendant having waived trial by jury, a judge of the Court of Common Pleas found defendant guilty of “making a false statement to obtain unemployment benefits,” upon an indictment laid under Section 1345-6 d, General Code (123 Ohio Laws, 576) which provides, inter alia:

“* * * no individual may serve a waiting period or be paid benefits for the duration of any period of unemployment with respect to which the administrator finds that such individual: * * *

i ( # # #

“(2a) advocates, or is a member of a party which advocates, the overthrow of our government by force. Every person filing a claim for benefits in accordance with Section 1346-4 of the General Code shall attach to such claim his written affidavit stating whether he advocates or does not advocate, and whether he is or is not a member of a party which advocates, the overthrow of our government by force. In the absence of such affidavit no claim shall be valid. ’ ’

Defendant appealed to this court on questions of law from a judgment of conviction by the trial court.

Defendant executed the following affidavit contained in a prescribed printed application for such benefits:

“I do hereby solemnly swear (or affirm) that I do not advocate the overthrow of our government by force and that I am not a member of a party which advocates the overthrow of our government by force.”

Defendant contends that the trial judge erred to his prejudice in overruling defendant’s demurrer to the indictment, which demurrer was bottomed on the ground that the section of the Code under which the indictment was laid “is unconstitutional and violative of the defendant’s rights in a number of fundamental ways”; and erred in “overruling the defendant-appellant’s motion for discharge at the close of all the evidence.” Defendant contends further that the “finding of guilt by the lower court is not sustained by sufficient evidence” and “is contrary to law”; and that there are “other errors of law appearing on the face of the record, prejudicial to the defendant-appellant.”

Further, defendant contends that even though the record is sufficient to show beyond a reasonable doubt that some years before the date he executed the affidavit in question he was a member of the Communist party, the record does not disclose that the affidavit when made was false because the defendant may have abandoned the Communist party and advocacy of its principles before the affidavit was made.

The state contends that “all the assignments of error and constitutional questions raised in the instant case have been fully and ably answered in the case of Dworken v. Collopy, Admr., 56 Ohio Law Abs., 513.”

That was a suit by Jack B. Dworken against Frank J. Collopy, Administrator of the Bureau of Unemployment Compensation, to restrain the enforcement of a provision in the Unemployment Compensation Act that an individual who advocates, or is a member of a party which advocates, overthrow of government by force shall not be eligible for benefits. The Court of Common Pleas held that the provision in question was valid, and dismissed the action. No appeal was taken therefrom.

We cannot discuss all the “fundamental ways” in which defendant was allegedly deprived of his constitutional rights by being indicted under Section 1345-6 d (2a), General Code, except to state that he argues that that section of the General Code ‘ ‘ emerges in all its nakedness as an unwarranted discrimination against unemployed workers, as in the nature of a bill of attainder,” and as such is unconstitutional; that it violates the freedom of speech, press and assembly ; that it is repugnant to the due process clauses of the Constitutions of the United States and of the state of Ohio “by adopting the obnoxious principle of guilt by association,” which is “directly involved in both the language and meaning of” such section; that it is “violative of the defendant’s right to equal protection under the laws (14th Amendment, United States Constitution, and Ohio Constitution, Article I, Section 2) ” in that “the affidavit in this case distinguishes between persons who belong to a party (political party, presumably) which advocates forceful change in government and those who do not”; and that the Legislature “has used its power arbitrarily and hysterically.”

While defendant contends that “the record in this case is completely bare of any proof that the defendant herein personally advocates the overthrow of our government by force,” yet there is convincing and undisputed evidence, photographic and otherwise, to the contrary.

In our opinion, there is sufficient evidence of the required degree to support the finding and judgment of the Court of Common Pleas, thus freeing the trial judge of the charge of commission of prejudicial and reversible error “in overruling defendant-appellant’s motion for discharge at the close of all the evidence,” and the claims that “the finding of guilt by the lower court is not sustained by sufficient evidence, is contrary to the weight of the evidence, and is contrary to law.”

With reference to defendant’s contention as to present membership in the Communist party, it is sufficient to say that the defendant did not take the stand to deny membership in that party, or that at the time of the execution of the affidavit in question he had ceased to be a member of the Communist party, or had ceased to advocate the overthrow of the government by force. In other words, defendant did not refute the evidence showing membership in such party, or offer any evidence of abandonment of such party affiliation before execution of such affidavit.

Also, see Dworken v. Cleveland Board of Education, 63 Ohio Law Abs., 10.

Defendant’s counsel has failed to call our attention to “other errors of law appearing on the face of the record, prejudicial to the defendant-appellant,” as alleged as a ground of error, or to comply in respect thereto with the provisions of Rule VII of this court that his briefs ‘ ‘ shall contain a statement of the questions presented and a succinct statement of so much of the cause, referring to the pages of the record, as is necessary to show how the questions arose, together with a statement of the authorities relied upon.” Accordingly, we will not pass upon this assigned ground of error.

The judgment of the Court of Common Pleas is affirmed.

Judgment affirm,ed.

Phillips, P. J., Nichols and Griffith, JJ., concur.


text:
    City of Cincinnati, Appellant, v. Meier et al., Appellees.
    (No. 7506
    Decided December 10, 1951.)

      Mr. Ilenry M. Bruestle, city solicitor, Mr. Frank Shafer and Mr. James W. Farrell, Jr., for appellant.

      Messrs. Paxton & Seasongood and Mr. Thomas M. Stanton, for appellees.
   Matthews, J.

This is an appeal from an order entered on July 27, 1951, by the Municipal Court of Cincinnati, dismissing a proceeding in aid of execution and releasing the garnishee. The notice of appeal was filed on August 7, 1951. Thereafter, on September 14, 1951, on the motion of the plaintiff, the court made an order in which it was recited that the entry of July 27, 1951, did not correctly set forth the decision of the court and that the actual finding and decision of the court was as follows:

“This matter came on to be heard on the motion of the Central Trust Co., garnishee herein, to discharge the attachment and release the garnishee and on stipulation of counsel filed herein and was argued by counsel, upon consideration whereof the court finds that the garnishee is not holding any property of the defendant, Charles Meier, which is subject to garnishment and that therefore the attachment should be discharged and the garnishee released.

“It is therefore ordered, adjudged and decreed that the Central Trust Co., the garnishee herein, is hereby released and the attachment discharged.

“It is therefore ordered, adjudged and decreed that this entry be journalized nunc pro tunc as of July 27,1951, to replace the judgment entry of said date.”

So far as the orders are concerned, the two entries are identical.

No appeal was taken from this order.

The only difference in verbiage of the entries is that in the later entry the court set forth the proceedings and findings upon which the order was made including a recital that the motion to discharge came on to be heard “on stipulation of counsel filed herein.” The court ordered this entry of September 14th journalized nunc pro tunc as of July 27, 1951 “to replace the judgment entry of said date. ’ ’

So far as we are informed, the only purpose of the nunc pro tunc entry was to show that the cause came on to be heard on the stipulation of counsel filed in the cause. We are not advised as to the importance of this recital unless it was intended to use it and the stipulation as a substitute for a bill of exceptions, as provided in Section 11571, General Code The recital in this entry fails to satisfy the requirements of that section. The judgment entry does not show that the case was “tried on an agreed statement of facts” as required by that section. Nor is there any agreed statement filed with the papers in the case as also required by that section.

We have been furnished with a “stipulation” and have been told that it is the stipulation referred to in the nunc pro tunc entry, but there is no filing mark on it and the transcript of the docket and journal entries fails to show the filing of any stipulation. W e are not permitted to consider this stipulation as a part of the record in this case. However, our examination of the stipulation has caused us to conclude that if we were so permitted, our conclusion would be the same.

This stipulation recites that a certain trust agreement, a copy of which is set forth, was all the evidence introduced at the trial. It is dated August 16, 1949, and recites that cash and bonds listed in ‘ ‘ Schedule A ’ ’ were delivered to the garnishee to hold in trust for the judgment debtor. No schedule was attached to the stipulation. We, therefore, do not know what, if any, property was delivered to the garnishee-trustee, upon which the trust agreement could operate, or what remained in the trust at the time the notice of garnishment was served upon it. In the absence of any evidence of the existence of a trust fund or of the trustee’s duties with relation to any existing fund, no order should or could be made directing the trustee as to the disposition of any such fund.

Assuming existence of the trust fund, it was argued by the appellant that notwithstanding the title of the judgment debtor thereto was equitable, it could be subjected to an order in this ancillary proceeding, authorizing and justifying but not compelling the trustee-garnishee to pay, and that this order would require the trustee-garnishee to decide at its peri] whether to comply, and, further, that the judgment creditor has the right to use the proceeding in aid as a means of discovery of assets, even though assets discovered could not be subjected to the judgment in the proceeding.

On the other hand, the trustee-garnishee contended that if the trustee is amenable to any process to subject assets in its hands to a judgment against the cestui, it is only in a plenary action under the provisions of Section 11760, General Code, or a creditor’s bill in accordance with the usage and practice in chaneery. The record suggests these interesting questions, but furnishes no basis for an application of them. There is no suggestion that any limitation was imposed upon the inquiry into the property of the judgment debtor as was the case in Peoples Bank & Savings Co. v. Katz, 146 Ohio St., 297, 65 N. E. (2d), 708, and, as already shown, the evidence is insufficient to support any kind of an order.

No error appears in the record.

For these reasons, the judgment is affirmed.

Judgment affirmed

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


text:
    In re Estate of Barnes.
    (No. 458
    Decided November 15, 1951.)

      Mr. Leo E. Faust, for appellees.

      Mr. Merritt E. Schlafman, for appellants.
   Wiseman, J.

This cause is submitted on motion of the exceptors-appellees to dismiss the appeal for the reason that the cause is not appealable on questions of law and fact.

In a proceeding involving exceptions to an inventory and appraisement filed in the administration of an estate in the Probate Court, which is certified to the Common Pleas Court for hearing, under Sections 10501-9 and 10501-10, General Code, an appeal on questions of law and fact from the order of the Common Pleas Court cannot be taken to the Court of Appeals. Squire, Supt., v. Bates, 132 Ohio St., 161, 5 N. E. (2d), 690; In re Estate of Gurnea, 111 Ohio St., 715, 146 N. E., 308; In re Estate of Stevenson, 79 Ohio App., 413, 69 N. E. (2d), 424; In re Estate of Shafer, 77 Ohio App., 105, 65 N. E. (2d), 902; In re Estate of Green, 35 Ohio Law Abs., 422, 41 N. E. (2d), 586. See, also, 2 Ohio Jurisprudence, 120, Section 48. The appeal on questions of law and fact will be dismissed.

The cause itself will not be dismissed, but will be retained as an appeal on questions of law only and the appellants will be granted the right to file a bill of exceptions, assignments of error and briefs in conformity to supplement to Rule VII of this court.

Judgment accordingly.

Hornbeok, P. J., and Miller, J., concur.


author: Guernsey, J.

text:
    Roof, Appellant, v. National Surety Corp. et al., Appellees.
    (No. 931
    Decided April 16, 1952.)

      Mr. Roy Warren Roof, for appellant.

      Mr. Samuel Luper, for appellee.
   Guernsey, J.

This cause is submitted to this court upon the motion of the appellee National Surety Corporation to dismiss the appeal.

The reason assigned in appellee’s motion is that:

“The order of the lower court dated November 26, 1951 ordering the ‘ petition filed herein be stricken from the files and held for naught and that the restraining order issued on the 16th day of July, 1951 be dissolved and held for nanght’ is not a final order from which an appeal can be taken.”

The order appealed from, being the order referred to in said motion, is in the words and figures following, to wit:

“This day this cause came before the court upon the motion of the defendant, National Surety Corporation, for an order to strike the petition to vacate judgment from the files and for an order to dissolve the temporary restraining order heretofore issued on the 16th day of July, 1951.

“The court being fully and duly advised in the premises finds said motion in each of its branches well taken and the same is hereby sustained.

“It is the order of the court that the petition filed herein be stricken from the files and held for naught and that the restraining order issued on the 16th day of July, 1951, be dissolved and held for naught.”.

Section 12223-2, General Code, in part, provides:

“An order affecting a substantial right in an action when in effect it determines the action and prevents a judgment, * * * is a final order which may be reviewed, affirmed, modified, or reversed, with or without retrial. ’ ’

The question raised by the motion to dismiss is, therefore, whether the order appealed from is an order affecting a substantial right in an action which in effect determines the action and prevents a judgment.

In his petition which was stricken from the files, the plaintiff attempts to plead a cause of action in equity to vacate and set aside a judgment on two cognovit notes rendered against him and one Forrest E. Roof in the Court of Common Pleas of Franklin County, Ohio, and the judgment based on said judgment of the Court of Common Pleas of Franklin County rendered against him by the Court of Common Pleas of Logan County, Ohio, upon the ground that the judgment creditor, defendant herein, had procured said judgments by fraud practiced upon plaintiff and the courts rendering the judgments. The fraud relied upon by the plaintiff for the relief asked is that although plaintiff did not appear as a surety on said cognovit notes he was in fact surety for the said Forrest E. Roof thereon, which was known to the payee who was also the holder thereof and the one who procured the judgment on said notes in the Court of Common Pleas of Franklin County, and that prior to the rendition of said judgment the plaintiff had been discharged as such surety by extensions of the time of payment of the indebtedness evidenced by said cognovit notes without the knowledge or consent of the plaintiff as such surety, and by other acts and conduct on the part of the payee of said notes in derogation of plaintiff’s rights as surety thereon; and furthermore that subsequent to the rendition of said judgment by the Court of Common Pleas of Franklin County the judgment creditor, the defendant herein, caused execution to be issued on said judgment to the sheriff of Miami county, Ohio, and levied upon real estate standing of record in the names of Forrest E. Roof and Marguerite Roof, his wife, and later and prior to the commencement of its action against the plaintiff in the Court of Common Pleas of Logan County, Ohio, based on said judgment, “did settle the judgment obtained by the” judgment creditor “against the said Forrest E. Roof and Marguerite Roof in full for the sum of eleven hundred ($1,100) dollars, plus the payments that had been made upon each of the two said notes by the said Forrest E. Roof and Marguerite Roof,” the aggregate amount thereof being less than the amount then owing on the judgment; the plaintiff asserting that by reason of the facts mentioned he was not indebted to the defendant in any amount whatsoever at the time either of said judgments was rendered against him and that the procuring of said judgments, as aforesaid, constituted a fraud practiced upon him and the courts rendering said judgments.

The statutory remedies for the vacating and setting aside of judgments are cumulative to the equitable remedies so that if the facts pleaded in the petition are sufficient to constitute a fraud practiced upon the courts and upon the plaintiff, as asserted by plaintiff, a cause of action in equity for the vacating and setting aside of said judgments is pleaded in said petition.

We will therefore consider whether the facts pleaded, as above mentioned, are sufficient to charge fraud warranting the vacating and setting aside of either or both of said judgments.

Under the Negotiable Instruments Act, in effect at the time the cognovit notes in question were executed and at all times subsequent thereto, a surety, in reality', is an accommodation maker and he becomes primarily liable to any party lawfully holding the paper, his liability to pay being absolute, such liability of the surety not being affected by the fact that the holder for value thereof knew him to occupy the position of surety. 29 Ohio Jurisprudence, 1056, Negotiable Instruments, Section 301. See, also, Section 8134, General Code.

“One who signs a note as an apparent maker and principal debtor, can not subsequently assert the contrary and thus affect his liability on the instrument, and a defense based on the privileges of suretyship, as they existed prior to the Negotiable Instruments Act, is open to demurrer.” Paragraph one of syllabus, Franklin Bank Co. of Newark, Ohio, v. G. E. Howell Provision Co., 17 N. P. (N. S.), 561. See, also, City Trust & Savings Bank v. Schwartz, 68 Ohio App., 80, 39 N. E. (2d), 548.

Under Section 8134, General Code, and the authorities mentioned the plaintiff in the instant case was precluded from asserting that he was surety on the cognovit notes in question and was not entitled to any of the rights of a surety. Consequently, the extension of time of payment by the payee of said notes without the knowledge and consent of the plaintiff and the other acts and conduct of the payee relied upon by the plaintiff as discharging him from the payment of said indebtedness did not in any manner affect plaintiff’s liability therefor and plaintiff was not thereby discharged from the payment thereof and no fraud was practiced upon him or upon the Common Pleas Court of Franklin County, Ohio, in procuring judgment against plaintiff on said cognovit notes.

We will next consider whether the alleged settlement made by the judgment creditor with the said Forrest E. Roof and Marguerite Roof had the effect of releasing or discharging the plaintiff from the payment of said judgment so that, as claimed by plaintiff, nothing remained owing thereon by plaintiff at the time judgment was rendered thereon against him by the Court of Common Pleas of Logan County.

Under the provisions of Sections 8079 to 8084, inclusive, of the General Code, as interpreted and construed by the Supreme Court in the cases of Good v. Buckeye Mutual Fire Ins. Co., 43 Ohio St., 394, 2 N. E., 420, and Walsh v. Miller, 51 Ohio St., 462, 38 N. E., 381, settlement by a joint judgment debtor of his liability on such judgment, such settlement being less than full satisfaction of the debt, as in the instant case, does not have the effect of releasing or discharging the liability of others jointly liable on the judgment. Consequently, the settlement by Forrest E. Roof and Marguerite Roof of their liability on the judgment of the Common Pleas Court of Franklin County did not have the effect of releasing or discharging the plaintiff from liability thereon and no fraud was practiced by the judgment creditor upon the plaintiff or the Common Pleas Court of Logan County in procuring the judgment in said court based on the judgment of the Common Pleas Court of Franklin County.

For the reasons above mentioned we conclude that the facts pleaded in plaintiff’s petition are not sufficient to state a cause of action for the relief asked in said petition, or any other relief.

As the petition did not state a cause of action the order striking the same from the files, appealed from, did not affect any substantial right of the plaintiff in the action and did not in effect determine the action and prevent a judgment and was therefore not a final order from which an appeal may be taken.

Furthermore, as the petition did not state a cause of action the order dissolving the temporary injunction allowed thereon did not affect any substantial right of the plaintiff in the action and did not in effect determine the action and prevent a judgment and therefore did not constitute a final order from which an appeal may be taken.

The practice of courts in treating motions to strike as a means of testing the sufficiency of pleadings has been condemned by the Supreme Court. Finch v. Finch, 10 Ohio St., 501, 505; Robinson, Jr., v. Fitch, 26 Ohio St., 659, 662.

However, as the petition in this case did not state a cause of action, the action of the court in so treating the motion was not in any way prejudicial to the plaintiff.

As the order appealed from did not constitute a final order, the motion to dismiss the appeal is sustained and the appeal dismissed at the costs of the appellant.

Motion sustained.

Middleton, P. J., and Ahl, J., concur.


text:
    General Motors Corp., Appellee v. Baker, Appellee; Board of Review, Bureau of Unemployment Compensation, Appellant.

      (No. 2167
    Decided April 8, 1952.)

      Messrs. Cowclen, Pfarrer £ Crew and Mr. E. V. Gilliland, for appellee General Motors Corporation.

      Mr. C. William O’Neill, attorney general, Mr. James W. Hardwick and Mr. Robert A. Clair, for appellant.
   Wiseman, J.

This is an appeal on questions of law by the Board of Review, Bureau of Unemployment Compensation, State of Ohio, from an order of the Common Pleas Court of Montgomery County, reversing and vacating a decision of the Board of Review which allowed unemployment compensation to Opal Edgar Baker, a resident of West Virginia.

Claimant, a native of West Virginia, during the period from April 24, 1947, to March 28, 1949, was employed by the General Motors Corporation, Frigidaire Division, located at Dayton, Ohio. On March 28, 1949, he was granted a leave of absence due to illness. He immediately returned to West Virginia where he still resides. Claimant made no effort to return to work at the Frigidaire after March 28, 1949.

On February 24, 1950, claimant filed a claim for benefits under the Ohio Unemployment Compensation Act through the Department of Employment Security of the state of West Virginia, naming the Frigidaire as his last employer. The application by a nonresident is authorized by Section 1346-4, General Code. The application was forwarded to the Ohio administrator for determination, as required by Section 1346-4, General Code.

On April 17, 1950, the administrator allowed the claim. On April 19, 1950, Frigidaire filed its appeal to the Board of Review. On May 24, 1950, the Board of Review issued notice that an appeal had been filed as'provided in Section 1346-4, General Code. On June 2, 1950, the Board of Review requested the Department of Employment Security, Board of Review of West Virginia, to assign a referee to hold a hearing-near claimants ’ residence in the state of West Virginia and take his testimony in support of his claim. Under date of June 28,1950, the Ohio Board of Review wrote the claimant advising him of the hearing in West Virginia, in order to afford him an opportunity to submit his evidence. He was advised to appear personally and offer his evidence and, also, to appear personally and submit his evidence at a hearing to be held in Ohio at a later date. Claimant did not appear at the hearing which took place in the state of West Virginia and offered no evidence in support of his claim. On August 2, 1950, the Ohio Board of Review notified claimant and the Frigidaire, advising them of a hearing at Dayton, Ohio, on August 14, 1950. Claimant failed to appear and no evidence was offered by him in support of his claim. The Frigidaire submitted evidence opposing the allowance of the claim. On October 3, 1950, the decision of the referee of the Ohio Board of Review affirmed the action of the administrator. An application for further appeal before the Board of Review was disallowed on December 26,1950. On appeal to the Common Pleas Court the decision of the Board of Review was reversed.

The Common Pleas Court found that the claimant did not appear at any stage of the hearing before the referee; that claimant did not offer any evidence in support of his claim; that claimant did not sustain the burden of proof resting upon him; that the employer was not afforded a fair hearing as required by Section 1346-4, General Code; that the findings of the referee were contrary to the only evidence adduced; and that the decision of the referee was unlawful, unreasonable, against the manifest weight of the evidence, and contrary to the undisputed evidence adduced. The appellant claims that the Common Pleas Court erred in this ruling.

Under Section 1346-4, General Code, if the Common Pleas Court finds that the decision was ‘ ‘ unlawful, unreasonable, or against the manifest weight.of the evidence” it is required to reverse and vacate the same. Thus, the finding of the Common Pleas Court complies with the statutory provision. The question for this court to determine is whether the judgment of the Common Pleas Court to the effect that the decision of the referee was unlawful, unreasonable and against the manifest weight of the evidence can be sustained.

The burden of proof rests on the claimant. Shannon v. Bureau of Unemployment Compensation, 155 Ohio St., 53, 97 N. E. (2d), 425. Did the claimant sustain the burden? The question presented is one of first' impression. The courts in other jurisdictions have ruled that the filing of an application for benefits is not sufficient to sustain the burden resting on the claimant to prove his claim. Huiet v. Schwob Mfg. Co., 196 Ga., 855, 27 S. E. (2d), 743; Ashford v. Unemployment Compensation Commission, 328 Mich., 428, 433, 43 N. W. (2d), 918. In the Huiet case, the court, on page 859,said:

“The second question in case No. 14653 relates to evidence, and is in effect whether, in the absence of other evidence, the applicant’s act of registering for work and the signing and filing of a claim for unemployment benefits, in which the applicant states, ‘I am unemployed, able to work and available for work and registered for work,’ would be sufficient to authorize the commissioner of the Department of Labor to find that the applicant is ‘able to work and available for work,’ within the meaning of section 4, relating to eligibility. We answer this question in the negative. The filing of some kind of claim is essential to recovery of unemployment benefits, and the statements contained therein should be proved in some way.”

In that case it was claimed that under the unemployment compensation act the commissioner, in the conduct of hearings and appeals, was not required to conform to the common-law or statutory rules of evidence and other technical rules of procedure. In commenting on this question, the court, on page 860, said:

“ * * * it is insisted by the commissioner that under this provision such statements in an application for benefits may be treated as evidence, in determining the rights of the parties. We cannot agree that this is a proper interpretation of the quoted provision. Any such construction would render the provision unconstitutional as an attempt by the General Assembly to delegate its authority to declare by legislation what may be considered as evidence, whereas a statute should he construed consistently with the constitution if it can he reasonably so interpreted. * * * Accordingly, in our opinion, what this provision means, and all that it means, is that the department need not observe the niceties of pleading, or follow the technical rules as to method of producing and hearing evidence or the examination of witnesses. * * * It would not permit the commissioner or any tribunal in the department to sanction as evidence something which clearly is not evidence, in that it is wholly without probative value, as the statements referred to by the Court of Appeals appear to be. Such statements alone would not authorize a finding that the applicant is ‘able to work and is available for work,’ within the purview of Section 4; and so, as we said above, question 2 in case No. 14653 must be answered in the negative.”

In the Ashford case, the court, on page 433, said:

“Nothing in the statute indicates an intention to establish a rule contrary to all ordinary court proceedings. Plaintiff filed a claim. Introduction of that claim or application into evidence did not operate to establish it. The claim does not prove itself. Neither do the determinations by claims examiners prove it. In the Dwyer case we expressed our disapproval of ‘the contention that the mere filing of a claim for benefits and thereafter registering and reporting for work at an employment office establishes that the claimant is “available” for work.’ ”

The reasoning and ruling in these two cases appeal to this court as both reasonable and logical.

The appellant to some extent rests its claim on the fact that the claimant satisfied the referee in the state of West Virginia. The finding of the referee in West Virginia has no legal effect. The referee in West Virginia was to take testimony and transmit it to the referee and Board of Review in Ohio, after which the decision is made by the Ohio authorities. The appellee herein contends that under Section 1346-4, General Code, a “fair hearing” must be accorded the parties by the referee, and that according to the record a fair hearing was not held. Appellee also points out that to implement the requirement of a fair hearing the Board of Review has adopted rules under Section 1346-3, General Code, and that these rules (Rules 905.1, 905.2, 905.3, and 964) contemplate the taking of sworn testimony and the examination and cross-examination of witnesses, which was not done in this case. The appellee contends that a hearing as contemplated by the statute and rules was not held in this case and cites in support thereof Interstate Commerce Commission v. Louisville & Nashville Rd. Co., 227 U. S., 88, 57 L. Ed., 431, 33 S. Ct., 185; Ohio Bell Telephone Co. v. Public Utilities Commission of Ohio, 301 U. S., 292, 81 L. Ed., 1093, 57 S. Ct., 724; and Morgan v. United States, 304 U. S., 1, 82 L. Ed., 1129, 58 S. Ct., 773.

In the case of Interstate Commerce Commission v. Louisville & Nashville Rd. Co., the court, on page 91, said:

‘ ‘ But the statute gave the right to a full hearing, and that conferred the privilege of introducing testimony, and at the same time imposed the duty of deciding in accordance with the facts proved. A finding without evidence is arbitrary and baseless.”

In the Ohio Bell Telephone case, Justice Cardozo writing the opinion, on page 304, said:

“Regulatory commissions have been invested with broad powers within the sphere of duty assigned to them by law. Even in quasi-judicial proceedings their informed and expert judgment exacts and receives a proper deference from courts when it has been reached with due submission to constitutional restraints. * * * Indeed, much that they do within the realm of administrative discretion is exempt from supervision if those restraints have been obeyed. All the more insistent is the need, when power has been bestowed so freely, that the ‘inexorable safeguard’ * * * of a fair and open hearing be maintained in its integrity. * # # The right to such a hearing is one of ‘the rudiments of fair play’ * * * assured to every litigant by the Fourteenth Amendment as a minimal requirement. * # * There can be no compromise on the footing of convenience or expediency, or because of a natural desire to be rid of harassing delay, when that minimal requirement has been neglected or ignored.”

In the Morgan case, Chief Justice Hughes wrote the opinion and, on page 19, said:

“Congress, in requiring a ‘full hearing,’ had regard to judicial standards, — not in any technical sense but with respect to those fundamental requirements of fairness which are of the essence of due process in a proceeding of a judicial nature.”

The court in continuing the discussion on page 22 said:

“The maintenance of proper standards on the part of administrative agencies in the performance of their quasi-judicial functions is of the highest importance and in no way cripples or embarrasses the exercise of their appropriate authority. On the contrary, it is in their manifest interest. For, as we said at the outset, if these multiplying agencies deemed to be necessary in our complex society are to serve the purposes for which they are created and endowed with vast powers, they must accredit themselves by acting in accordance with the cherished judicial tradition embodying the basic concepts of fair play.”

We.are of the opinion that the provision in-Section 1346-4, G-eneral Code, providing for a “fair hearing” contemplates the taking of sworn testimony with the right of cross-examination assured to the adverse party and the rendering of findings of fact supported by the evidence. When an administrative officer acts without regard to the evidence, after holding what purports to be a hearing, but which in actuality is no hearing at all, it cannot be said that the parties have had a “fair hearing” within the meaning of the statute. A finding without evidence to support it is arbitrary and unlawful.

The appellee contends that due process of law was not accorded the employer. Although proper notice of a hearing was given and an opportunity afforded to present evidence, there were certain requirements of due process which were not adhered to. The record discloses not only a denial of due process of law, but, also, a failure of proof.

Reverting to the original question, this court specifically holds that the mere filing of a claim for benefits carries with it no presumption of its validity. No evidence was presented by the claimant in support of the claim at either hearing. There was no competent evidence adduced to support the finding of the referee. The decision of the referee was unlawful, unreasonable and against the manifest weight of the evidence, and no prejudicial error was committed by the Common Pleas Court in reversing the decisions of the referee and the Board of Review.

As we find no error in the record prejudicial to the rights of the appellant, the judgment is affirmed.

Judgment affirmed.

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


text:
    Royal Industrial Bank of Louisville, Appellant, v. Klein, Appellee.

      (No. 7510
    Decided January 28, 1952.)

      Messrs. Peterman, Calhoun & McPherson, for appellant.

      Mr. Saul M. Greenberg, Mr. Sidney C. Brant and Mr. J oseph M. Rheins, for appellee.
   Matthews, J.

This is a controversy between two innocent parties over the right of possession of a Cadillac automobile. They trace title to a common source, one Rosenblatt, and each dealt with him in the usual course of business and paid value. The only difference is that the plaintiff dealt directly with Rosenblatt — the wrongdoer — and his name is a link in the chain of title. The defendant did not deal with Rosenblatt and his name does not appeaf in his title. This results from the fact that the original purchaser from the manufacturer, who was located in Indiana, gave Rosenblatt an Indiana certificate of title, with a blank space for the insertion of the name of the vendee, and Rosenblatt sold the automobile to Mike Albert-Autos, Inc., whose name was inserted in the blank space in the certificate of title by Rosenblatt, and Mike Albert Autos, Inc., presented said certificate to the clerk of courts of Hamilton county, who issued to it an Ohio certificate of title. Mike Albert Autos, Inc., sold the automobile to the defendant, to whom a new certificate was issued. This appeal is from a judgment for defendant.

The plaintiff’s chattel mortgage does not appear in the defendant’s chain of title at any place. However, it appears that the original purchaser from the manufacturer took this automobile to Kentucky, where he sold it to Rosenblatt and delivered to him the automobile and the certificate of title with the blank space for the insertion of the name of the buyer, and while Rosenblatt had possession of the automobile and before he sold it to Mike Albert Autos, Inc., he borrowed $3,100 from the plaintiff and gave a mortgage on this automobile to secure its payment. Rosenblatt told the plaintiff that he had purchased the automobile at auction in Kentucky and was not asked to and did not display to the plaintiff any bill of sale or other evidence of title. The mortgage was duly filed in the proper office in compliance with the law of Kentucky.

Nothing else appearing, it would seem clear that the defendant, being an innocent purchaser for value in possession, with muniments of title, has a superior right. The plaintiff seeks to avoid this conclusion by pointing out what it contends is a fatal defect in the description of the automobile in the defendant’s chain of title.

As is usual in title papers relating to automobiles, required by Section 6290-13, General Code, and the directive of the registrar, there are headings and blank spaces in defendant’s title papers to show various descriptive data, such as model, designated by a numeral, the year, the serial number, motor number, weight, make, and other identifying characteristics, all in conformity to such section.

The record shows that the first four digits of the motor number are a repetition of the year and model number elsewhere appearing under the proper heading. In the defendant’s chain, it appears that in inserting the motor number, the scrivener failed to insert the model number. Instead, in the midst of the serial number, where the digits 6 and 2 would normally appear as a repetition of the model number, there is what more nearly resembles the letter L than anything else.

It is uncontradicted that the letter L is never stamped on any Cadillac automobile by the manufqcturer as a part of or in connection with any identifying number.

Under these circumstances, it seems to us we are presented with a case in which the scrivener, after inserting the model number in its proper place under the proper heading, failed to carry it forward in another place, where it was repeated. The question is whether such failure invalidates the certificate of title under the laws of Ohio and requires a finding in favor of the plaintiff that has made no attempt to comply with the Ohio law, where no confusion of the subject matter of the certificate could result from the error and the certificate carries on its face sufficient to place any one dealing with the property upon inquiry, which if reasonably pursued would have identified the property.

The defendant’s certificate of title complied in all other respects with the requirements of Section 6290-13, General Code. Does the error in not incorporating the model number in the serial number and inserting in its stead between the year number and the balance of the motor number the letter L (an identifying mark entirely foreign to any Cadillac automobile) invalidate it?

There is no statutory provision applicable to the situation. It is true that by Section 6290-4, General Code, it is provided that a purchaser of an automobile acquires no title until there is issued to him a certificate of title and that no estoppel or waiver shall operate in favor of such purchaser against a person having possession of such certificate for a valuable consideration. But there is no statute declaring the effect of errors in such certificate. In any event, as the defendant has the only certificate of title for this automobile, that section can have no application to the facts of this case.

We find no cases dealing with, errors in certificates of title and have been cited to none. There are many cases involving the sufficiency of descriptions in mortgages upon automobiles. These would seem to furnish an analogy and serve as a guide to a decision in this case.

Of course, it is a general rule applicable to all conveyances that the subject matter must be identified, and when the law requires the conveyance to be evidenced by a written instrument, the identification must be found in the writing.

As to chattel mortgages, it is said in 10 American Jurisprudence, 751, Section 53:

“In general, the description should be so certain that the property mortgaged can be segregated from other similar articles. * * * Generality and indefiniteness of description will not avoid a mortgage if the uncertainty caused thereby is such as will be removed when the instrument is read in the light of the circumstances surrounding the parties at the time it was entered into and their manifest design is considered.” And, at page 752, Section 55, ibid, it is said: “To be sufficient against a third person, the description of the mortgaged property must be definite enough to enable him, aided by inquiries which the instrument itself suggests, to identify the property.”

Speaking of the sufficiency of descriptions in conditional sales contracts, it is said in 47 American Jurisprudence, 53, Section 861:

“Although a mistake in a serial number of an article or one of its parts may nullify a description where the number is the only method of distinguishing between articles of the same type, it is generally held that a mistake in the serial number will not vitiate the description, where there are other facts given in the description by which the property can be identified.”

In the case at bar under our statutes the certificate of title is required to have many identifying marks, other than the serial number, and these were all correctly stated. By these, and the distinctive digits of the serial number, the automobile could be identified and the insertion of the letter L did not produce any ambiguity, either patent or latent. It pointed to no other automobile. Any attempt to apply the description to any other automobile would have resulted in failure. Under such circumstances, we must hold that the defendant’s certificate of title substantially complied with the letter of the statute and fully with its spirit.

It is urged that the failure of the Indiana certificate to include the name of the purchaser renders it ineffective.

There seems no doubt that when Rosenblatt purchased this automobile from Scott County Motor Company, and the automobile and certificate of title were delivered to him, he was given implied authority to insert the name of the buyer in the space provided for such insertion. The trial court found as a matter of fact that there was such authority and we are not disposed to disturb such finding.

Under the statute law of Indiana, in order to secure a certificate of title, it is necessary to accompany the application with a bill of sale or other muniment of title. Under the statute law of Kentucky, automobiles must be registered and a license plate obtained. In order to register the automobile a bill of sale or certificate of title is required to be filed with the application. The plaintiff must be charged with knowledge of this requirement of the law of Kentucky. Notwithstanding, the plaintiff made no inquiry whatsoever as to the nature of Rosenblatt’s title. It asked for the production of no bill of sale or certificate of title. If it had done so, it would have been disclosed that his name had not been inserted in the certificate of title. Had it done so, and insisted on the insertion of a name, it would have deprived Rosenblatt of the power to perpetrate the fraud upon Mike Albert Autos, Inc., and the defendant. The Indiana certificate of title contained no data of any sort that would have suggested a search of the records of Jefferson County, Kentucky.

The plaintiff must rely on the strength of its own title. If its title is insufficient, it cannot recover no matter how defective the defendant’s title may be. Possession is sufficient for the defendant’s purposes until the plaintiff establishes a superior right under the law.

We believe this case is controlled by the case of Kelley Kar Co. v. Finkler, 155 Ohio St., 541, 99 N. E. (2d), 665, the fifth paragraph of the syllabus to which is as follows:

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

As the plaintiff’s chattel mortgage is not noted on any Ohio certificate of title, it cannot prevail against the defendant, who has possession and a certificate of title.

For these reasons, the judgment is affirmed.

Judgment affirmed.

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


text:
    The State, ex rel. McKay, Judge, v. Grossman, Aud.

      (No. 327
    Decided February 27, 1952.)

      Messrs. Spitler & Flynn, for relator.

      Mr. Webb D. Tomb, for respondent.
   Per Curiam.

This is an action in mandamus brought by the state of Ohio, ex rel. C. C. McKay, probate and juvenile judge of Seneca county, Ohio, against A. B. Grossman, auditor of said county, in which the relator prays that a writ of mandamus be issued commanding said A. B. Grossman, as such auditor, to issue and deliver his warrant on the treasurer of Seneca county, in favor of the relator in the sum of $258 which the relator alleges is due him as the balance of his compensation as juvenile judge of said county for the months of June to November 1951, both inclusive.

The cause was submitted to this court upon the petition of the relator and the answer of the respondent, A. B. Grossman, auditor of said county.

The following facts appear from the pleadings:

The relator is the probate and juvenile judge of said county, his term of office in such capacities commencing February 9, 1949, and extending for six years thereafter. That in 1947, the Legislature enacted Section 1639-7«, of the Ohio General Code, effective September 18, 1947, and thereafter re-enacted said section, effective February 5, 1949 (123 Ohio Laws, 3), and that said section since said latter date has been continuously in effect, in the following words:

“In all counties where the state is not paying a salary direct to the judge exercising the powers and jurisdiction conferred in this chapter the state shall pay into the county treasury of the county, wherein such judge was elected, the sum of fifteen hundred dollars annually. The juvenile judge in such counties shall receive as his annual compensation fifteen hundred dollars. Provided that the combined salaries, allowances and compensation, of the probate judge and juvenile judge of said county shall not exceed the total salary provided by law for a common pleas judge in said county. Said limitation, however, shall be restricted only by the formula established by law for the total salary of a common pleas judge in said county whose term of office has begun, or will begin, subsequent to September 18, 1947. Any unusued portion of said fund shall remain in the county treasury to be used in the maintenance and operation of the juvenile court. ’ ’

The annual compensation of relator as probate and juvenile judge of said county is fixed by statute as follows: Section 2992, General Code, the sum of $3,435; Section 5348-10a, General Code, the sum of $1,170; Section 1639-7a, General Code, the sum of $1,500; the total compensation being the sum of $6,105, subject, however, to the limitation contained in Section 1639-7a, that the combined salaries, allowances and compensation of the probate judge and juvenile judge shall not exceed the total salary provided by law for a common pleas judge in said county.

As relator’s compensation for his services as juvenile judge of said county for the months of June to November 1951, both inclusive, the respondent auditor, for each of said months, issued and delivered to him his warrant on the treasurer of said county, in the sum of $82.

The relator demanded that the respondent auditor issue and deliver to him a warrant upon the treasurer of said county, in the amount of $258, representing the difference between the aggregate amount of the warrants so issued to him, and compensation for said services at the rate of $125 per month, which the relator claimed to be due him.

The maximum total annual compensation for a common pleas judge of Seneca county, as authorized by Sections 2251 and 2252, of the Ohio General Code, from the 20th day of September 1947, to the 31st day of December 1949, was $5,454.97; for the year 1950, as the result of the increase of population in said county, which increase became effective as of April 1, 1950, was $5,578.08; and was $5,619.12 for the year 1951.

Sections 2251 and 2252 were amended, effective September 18, 1951, and September 14, 1951, respectively, to provide a formula for determining the annual compensation, which, if applied to the then existing population of Seneca county, would fix it at $8,678.68.

In support of his claim for the relief prayed for in his petition the relator makes the following contentions :

1. That the incumbent probate and juvenile judge may receive an increase in compensation equal to the increase allowed to a common pleas judge by reason of an increase in county population as ascertained by the 1950 federal census, effective April 1, 1950.

2. That the total of the combined salaries, allowances and compensation upon which the limit is placed by Section 1639-7a does not include the compensation received in inheritance tax cases as provided in Section 5348-10a of the General Code of Ohio.

3. That the incumbent probate and juvenile judge, whose term of office commenced February 9, 1949, should receive an increase in compensation during his present term of office by reason of the increase in salary provided for a judge of the Common Pleas Court by tbe amendments to Section 2251 and Section 2252 of the G-eneral Code of Ohio, which amendments became effective September 18, 1951, and September 14, 1951, respectively.

These contentions will be discussed in the order mentioned.

1. In the case of State, ex rel. Mack, Judge, v. Guckenberger, Aud., 139 Ohio St., 273, 39 N. E. (2d), 840, 139 A. L. R., 728, it was held that as the formula for the increase in compensation of a common pleas judge by reason of increase in population was in effect at the time such judge commenced his term of office, an incumbent judge was entitled to receive such increase during his term of office and the payment of such increase to him during his term of office did not violate the provisions of Section 14, Article IV of the Constitution of Ohio, providing that the compensation of judges of the Common Pleas Courts shall not be diminished, or increased during their term of office. ’ ’

As such increase under the decision mentioned constitutes a portion of the compensation of a common pleas judge, it must be so considered in determining the application of the limitation prescribed by Section 1639-7a, as amended, upon the combined salaries, allowances and compensation, of the probate judge and juvenile judge. So applied, such limitation operates to give the probate judge and juvenile judge the benefit of such increase effective at the same time the increase of the compensation of a common pleas judge is effective. The first contention of relator is, therefore, well grounded.

2. In support of hi's second contention the relator cites Vol. 2, Opinions of Attorney General (1921), 1027, No. 2569, and Opinions of the Attorney General (1925), 43, No. 2181. An examination of these opinions discloses that they relate to the question as to whether the allowances to a probate judge prescribed by statute in inheritance tax cases may be paid to him in addition to the salary prescribed by statute, and do not reflect in any way upon the interpretation or construction of the limitation prescribed by Section 1639-7a of the General Code. The phrase, “combined salaries, allowances and compensation, ’ ’ by its express terms was clearly intended by the Legislature to include the statutory allowances to a probate judge provided in Section 5348-10a, General Code. The second contention of relator is therefore without merit.

3. We come now to relator’s third and final contention. When relator commenced his present term of office on February 9, 1949, the annual compensation of a common pleas judge of Seneca county was $5,454.97. This compensation, as we have heretofore held, was subject to an increase during the term of the incumbent common pleas judge and also during the term of the relator to the sum of $5,578.08 during the year 1950, and to $5,619.12 during the year 1951 and each year thereafter. There was no change prescribed in the compensation of a common pleas judge for Seneca county until the amendments of General Code Sections 2251 and 2252, effective September 18, 1951, and September 14, .1951, respectively.

The incumbent common pleas judge is precluded from having benefit of this increase during his present term of office by reason of the inhibition contained in the provision of Section 14, Article IV of the Constitution of Ohio, hereinbefore mentioned.

The question then arises as to whether the probate judge and juvenile judge is also precluded from having the benefit of this increase by reason of said constitutional provision.

The formula prescribed by Section 1639-7& of the General Code, as amended, relating to the compensation to be received by a probate judge and juvenile judge, unlike the formula prescribed by Sections 2251 and 2252 of the General Code, relating to the compensation to be paid a common pleas judge, under consideration in the case of State, ex rel. Mack, Judge, v. Guckenberger, supra, is a formula prescribing the maximum limit of compensation and not a formula for determining the amount of such compensation.

Consequently, the maximum amount to be paid relator during his current term of office for his combined salaries, allpwances and compensation is governed by the statutory limitation in effect at the commencement of his current term of office which was then not to exceed the sum of $5,454.97 per annum, being the then annual compensation of a common pleas judge of said county, subject to being increased to the sum of $5,578.08 during the year 1950, and to being increased to $5,619.12 during the year 1951, and each year thereafter.

As the combined salaries, allowances and compensation of relator during his term of office are subject to the statutory limitation in effect at the commencement of his current term, the increase in compensation of a common pleas judge of said county, prescribed by amended Sections 2251 and 2252 of the General Code, enacted and becoming effective during relator’s current term of office, does not, under the provisions of Section 14, Article IV of the Constitution of Ohio, inure to the benefit of relator in determining the maximum combined salaries, allowances and compensation to be paid him during his current term of office.

Relator’s third contention is therefore without merit.

As the combined salaries, allowances and compensation the relator was entitled to receive during the year 1951 amounted to the sum of $5,619.12, it appears that he was entitled to receive $84.51 per month during said year as his compensation for his services as juvenile judge, being at the rate of $2.51 per month in excess of the amounts for which the respondent auditor issued his warrants to the relator upon the treasurer of said county for the months of June to November, both inclusive, of said year. However, the petition of relator discloses that prior to June of said year the respondent auditor had issued warrants to him for his compensation as juvenile judge in the amounts of $125 per month, being $40.49 per month in excess of the amounts he was entitled to receive per month. The aggregate amount of such excess payments being greater than the aggregate amount of the underpayments during the months of June to November, both inclusive, the relator is not entitled to receive from said auditor warrants for any further amounts for his compensation as juvenile judge.

For the reasons mentioned, we find on the issues joined in favor of the respondent auditor and against the relator, and dismiss relator’s petition at his costs.

Writ denied.

Middleton, P. J., Jackson and Guernsey, JJ., concur.