text:
    The State of Ohio, Appellee, v. Williams, Appellant.
    (No. 3640
    Decided June 7, 1954.)

      Mr. Felix Mika, law director, Mr. Frank J. Battisii and Mr. Irwin J. Kretser, for appellee.

      Mr. R. B. Crumpler and Mr. Joseph P. Sontich, for appellant.
   Per Curiam.

A jury in the Municipal Court of Youngstown found defendant guilty of operating an automobile on the streets of Youngstown while under the influence of intoxicating liquor in violation of the provisions of Section 6296-30, General Code (Sections 4507.34, 4507.37, 4507.99, Revised Code). The trial judge fined defendant $500, sentenced him to serve six months in the Mahoning County Jail, and revoked his license to operate a motor vehicle in Ohio “outright” for one year, and, thereafter, until he complied with the “financial responsibility laws of the state of Ohio.”

Defendant appealed from the judgment of conviction and sentence to the Court of Common Pleas, which affirmed the judgment of the trial court, and appealed to this court on questions of law from the judgment of the Court of Common Pleas.

About two o’clock in the afternoon of August 23, 1952, in response to a call received by radio in the police car in which he was riding, the arresting officer arrested defendant in a parking station booth at the corner of South Walnut and Front Streets in the city of Youngstown, where he was sitting on a stool, slumped forward with his head buried in his hands. Defendant admitted when arrested that he was the driver of an automobile which had collided with two utility poles situated in that vicinity. The arresting officer, and other officers of the Police Department of the City of Youngstown who accompanied and assisted him, had difficulty “loading” defendant into the police cruiser because, as they testified, of his drunken condition. An independent witness identified defendant as the operator of the automobile that collided with the utility poles.

There is evidence that defendant could not stand unassisted, could not walk unassisted into the police station, and could not walk straight on the white line in the police station; that his breath smelled of liquor, his eyes were dilated and red, and his face was flushed; that the routine tests to determine intoxication were positive, and the diagnosis of his condition made by an assistant Youngstown city physician was that defendant was intoxicated when he arrived at the police station.

By assignments of error, oral argument, and brief, defendant contends “that the court (trial) erred in refusing to direct a verdict for the defendant at the close of state’s evidence”; erred “in its refusal to charge the jury as requested by defendant”; erred “in refusing defendant’s counsel to argue to the jury certain facts elicited at the trial”; erred in refusing to direct a verdict for the defendant “at the end of all evidence”; and finally “that the defendant’s rights to a fair trial were prejudiced by statements of witnesses, the prosecutor and the court.”

Counsel for defendant state by brief that:

“Shortly after 2 p. m. on the 23rd day of August, 1952, defendant left his place of business on Boardman Street and proceeded in an easterly direction to Walnut Street and turned right on said latter street and proceeded in a southerly direction to go to his (public parking) lot at the corner of Walnut and Front Streets. That as he approached said latter intersection, he was seized with cramps in his hands and leg and proceeded through said intersection unable to control his car so as to turn into his lot and in doing so, proceeded south on Walnut Street, struck a pole, and severely damaged his automobile. The defendant suffered personal injuries to his left side, head and knees.”

Counsel for defendant state further by brief that “defendant had been treated for spasms on previous occasions by the late Dr. Jones, who had passed awaj approximately two weeks before this trial.”

Neither the arresting officer, who was called from police headquarters and arrested defendant without a warrant, nor any other officer of the Youngstown Police Department witnessed the operation by defendant of the automobile which he was charged with operating illegally.

Defendant waived his right to rely on the claimed error that the trial judge erred to his prejudice in overruling his motion for a verdict to be directed in his favor when he accepted the ruling of the court and proceeded with his defense and introduced evidence in his own behalf. Halkias v. Willcoff Co., 141 Ohio St., 139, 47 N. E. (2d), 199.

The trial judge refused to permit defendant’s counsel to argue during final argument the manner in which defendant was arrested without warrant, and said:

“Now, I don’t think there is any question that Mr. Williams did come in here on the 25th day of August and enter a plea of not guilty to this offense, and by so doing he has waived any defenses that might appear in the execution of the arrest and in matters that might be attacked by a motion to quash, but this jury has nothing to do with anything of that kind, and I can’t permit argument of counsel or questioning of witnesses that leads to that point.
“Now, that is one reason why I sustained the objection raised by the prosecutor to the questioning of these officers about how the arrest was made, not necessarily how it was made, but if they knew that they had to have a warrant and things of that kind.”

It is settled law that the arresting officer was authorized in arresting defendant without a warrant, whom he “found violating the law,” and hold him for a reasonable time, as he did, until a warrant for his arrest could be procured. See State v. Marshall, 61 Ohio Law Abs., 568, 105 N. E. (2d), 891; and Columbus v. Glenn, 60 Ohio Law Abs., 449, 102 N. E. (2d), 279.

In failing to file a motion to quash the warrant for arrest and in proceeding to plead to the affidavit, defendant waived any error due to his arrest without first obtaining an affidavit.

The trial judge did not err to defendant’s prejudice as urged in the assignment of error under discussion. In the general charge the jury was told:

“You will have appropriate forms of verdict to make the conclusion that may be readied under the evidence and the law. One form provides for a finding of guilty, and the other form provides for a finding of not guilty. You will select the form of verdict that expresses the conclusion to which you have come, and you will have your form signed. It requires a unanimous agreement in a criminal case to return a verdict, so that you must have unanimous agreement in that respect.”

Defendant contends that the charge of the trial judge “as a whole was vague and indefinite and more especially the above portion” thereof because:

“1. It left the jury no alternative but to bring out a verdict of guilty or innocent.

“2. It placed undue emphasis on a return of guilty.

“3. That the court should have instructed the jurors that any one of them should not yield a well-grounded conviction because it was not in accord with the conviction of his fellow juror, but under the above charge it left him no alternative.

“4. That the court said nothing regarding disagreement among the jurors, leaving the impression among the jurors, who are laymen, that the verdict must, by the court’s own words, be one or the other.

“5. That the charge regarding the jury findings left any jurors having a possible minority view, to consider in addition to the law and the evidence the opinion of the majority of the jurors, in light of the charge, to bring in a verdict of guilty.

“6. That the above charge was not a proper cautionary instruction urging the jury to agree, and was further imbued with the element of coercion.”

As a whole the evidence presented questions for the determination of the jury thus freeing the trial judge of the charge of commission of prejudicial error “in refusing to direct a verdict for the defendant at the end of all the evidence.”

Reviewing the charge as a whole we conclude that defendant was not prejudiced thereby.

Defendant contends that since he “was of the colored race” the following testimony admitted over his objection and “statements made during trial by witnesses, the prosecutor and the court” subjected him to ridicule, was prejudicial and prevented him from having a fair trial, especially since the trial judge did not admonish the jury to disregard it, “for it is common knowledge that large numbers of the colored race live in and about the east end area described by the prosecutor.”

Dr. Colla testifying was asked:

“Q. And, Dr. Colla, do muscle spasms and knee injuries and housemaid’s knee and dandruff take on the smell of alcohol? A. No, sir.
“Mr. Sontich: Now, I object, he is casting my
client to ridicule in front of this jury, and he is entitled to a fair trial.”

Officer Masi testifying was asked:

“Q. And in some cases the individuals involved (in an accident) are very highly nervous? A. Yes, he could have been one of them. He isn’t excluded from the human race.”

We find nothing prejudicial in this, although the remark was not called for.

Officer Masi testifying further was asked:

“Q. Have you ever worked the east end beat of Youngstown?
“Mr. Sontich: I object.
“The court: Well, I think maybe you are going a little far astray, Mr. Prosecutor; sustained.
“Mr. Sontich: Very far.”

We find no error here.

The record submitted to us indicates no misconduct on the part of plaintiff’s counsel.

The judgement of the Court of Common Pleas is affirmed.

Judgement affirmed

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


source: Caselaw Access Project

author: Hurd, P. J.

license: Public Domain

text:
    Hite, Appellant, v. New York, Chicago & St. Louis Rd. Co., Appellee.

      (No. 22950
    Decided March 3, 1954.)

      Messrs. Harrison,.Spangenberg é Hull, for appellant.

      Mr. D. W. Hornbeck, for appellee.
   Hurd, P. J.

This is an action for personal injuries tried to a'jury in the Common Pleas Court, resulting in a verdict for defendant, upon which judgment was entered by the court. The injuries complained of were due to a railroad crossing accident at E. 75th Street and the Nickel Plate tracks, where there was a collision between plaintiff’s automobile and an engine and tender operated by the defendant.

There is one assignment of error, namely, “that the trial court erred in refusing to give special requests Nos. 2 and 4 which were submitted in writing before argument.”

We have examined the special requests in relation to the issues in this case and have concluded that refusal to give them did not constitute prejudicial error.

Special request No. 2, which was refused, reads as follows:

“In this case, the plaintiff has the burden of proof with respect to certain issues, namely, the issues as to the defendant’s negligence, proximate cause and the nature and extent of his damage and injury.
“Upon each of these issues, the burden of proof is upon the plaintiff to establish his claims by the preponderance or greater weight of the evidence. This does not mean, however, that the plaintiff is required to prove all or any of these issues by clear and convincing evidence, nor by the greater number of witnesses, nor to a mathematical certainty, nor by such a weight of evidence as removes all doubt from your minds.
“In civil cases of this character, the law deals with probabilities rather than with certainties. If, therefore, you find upon a consideration of all the evidence, in the case, that it is more probable than not that the defendant was negligent in one or more of the respects charged in the petition and submitted to you for your consideration, and that plaintiff suffered damage and injury as a direct and proximate result of such negligence you would regard such issues proved by a sufficient degree of proof to support the plaintiff’s claims; and this would be true even though there remains vn your mind a substantial doubt upon one or the other or all of said issues.” (Emphasis added.)

Special request No. 4, which was refused, reads as follows:

‘ ‘ One of the claims of the defendant, in this case, is that the plaintiff was guilty of contributory negligence in failing to see and observe the approach of the defendant’s engine, in season to have avoided the accident.
“In considering this issue, you will bear in mind that the negligence of the plaintiff (if you should find that in fact he was guilty of negligence) would not affect his rights in this case, unless you find further by the greater weight of the evidence that his negligent conduct was a direct and proximate cause of his injury. In other words, the negligence of a plaintiff does not prevent him from recovery unless it directly and proximately causes or directly and proximately contributes to cause his injury.
“Furthermore, you can not find the plaintiff guilty of contributory negligence merely because a person of unusual prudence might have seen or would have seen and observed the approaching train.
“The question is whether a person of ordinary care would and should have seen its approach in time to have avoided the accident.
“If, therefore, you find by a preponderance of the evidence that the defendant was negligent in one or more of the respects charged in the petition and submitted to your consideration, and that plaintiff suffered injury and damage as the direct and proximate result of such negligence; and that the plaintiff, in the exercise of ordinary care, relied upon the defendant’s warning lights to give seasonable warning of the approach of its engines and trains, and that said lights were not burning or flashing when he approached the crossing, and that persons of ordinary eare would have relied upon that fact to indicate that no engines or trains were approaching, and that in his manner of approach to the crossing the plaintiff exercised as much care as would ordinarily be exercised by ordinarily careful persons under the same or similar circumstances, then and in such event your verdict must be for the plaintiff; and this would be true even though you also find that some other person of unusual care, prudence and caution might or would have seen and observed the approach of the engine in time to avoid the collision.”

In a civil action, the mandatory duty devolves upon the court to give a special written instruction to the jury before argument which correctly states the law applicable and pertinent to one or more of the issues of the case which have not been covered by other special instructions. See Bradley, an Infant, v. Mansfield Rapid Transit, 154 Ohio St., 154, 93 N. E. (2d), 672 (fifth paragraph of syllabus).

However, it is not the mandatory duty of a court to give a special instruction before argument which tends to negative or exclude every possible element or conceivable rule of law which, although correct in the abstract, is not pertinent or applicable to any issue in the case and which, being surplusage, may tend to mislead or confuse the jury.

Considering charge No. 2, it will be noted that after the rule of law is correctly stated to the effect that the burden of proof is upon plaintiff to establish his claims by the preponderance or greater weight of the evidence, other issues are injected dealing with degrees of proof in other types of cases, such as instructing the jury that “this does not mean clear and convincing evidence” or “such weight of the evidence as removes all doubt from your minds.” This is a civil case at law for money only. No issue of fraud or other issue is involved which requires instructions upon the rule of clear and convincing evidence. Likewise, there is no issue requiring instruction upon the rule requiring evidence beyond a reasonable doubt as in criminal cases.

In Pickering v. Cirell (Ninth District Court of Appeals, 118 N. E. [2d], 414), decided December 30, 1953. the court found no prejudicial error in the refusal to give a similar instruction before argument “because the same did not comply with the accepted rules pertaining to charges before argument.”

Stevens, J., while discussing the general principles applicable to special requests to charge, said:

“There was no issue requiring mention of proof beyond a reasonable doubt, by clear and convincing evidence, to a mathematical certainty, or by such a weight of evidence as removed all doubt from the minds of the jury * * * The second paragraph of the requested charge is surplusage, had a tendency to mislead the jury, and is not in proper form because it dealt with what did not need to be established, and thus warranted the trial court in refusing to give the charge.”

That was an action in negligence for personal injuries, growing out of an automobile collision while this action is for personal injuries growing out of a collision between a railroad engine and an automobile. The issues there were essentially the same as the issues here except that in that case, negligence, which is usually the issue to be proved, was admitted by the defendant. We think the reasoning of the court, by Stevens, J., in that case is sound and has equal application to the issues of this case.

Appellant here relies primarily upon Solanics v. Republic Steel Corp., 142 Ohio St., 567, 53 N. E. (2d), 815, a case originating in the Court of Common Pleas of Cuyahoga County, where a charge similar to requested charge No. 2 herein was given at the request of plaintiff. The judgment for plaintiff was modified and, as modified, affirmed by this court, and the Supreme Court affirmed the judgment of this court. It is argued that because the Supreme Court affirmed the judgment in that case it thereby upheld the charge requested here and, therefore, it was prejudicial error to refuse to give the charge in the instant case.

However, the Solanics case must be distinguished from this case on the facts. While that case sounded in tort, it was not a negligence action and the doctrine of respondeat superior was not involved. Plaintiff’s claim for damages for injuries to his person was based solely on the. theory of conspiracy among three defendants, the corporation, its superintendent of police, and its captain of police.

The plaintiff charged in that case that the defendants made a concerted attack upon the pickets and strikers, as a result of which plaintiff suffered serious injuries, and that all this was in furtherance of a conspiracy by defendants to prevent unionization and to bring the strike to an end by violence.

In other words, there was involved in that case an assault and battery which would subject the parties to a criminal as well as a civil action. Under such circumstances, it is understandable that such instruction would be considered applicable to the facts and circumstances of that case. Also, the Supreme Court may have considered that substantial justice was done the party complaining as there is no discussion of the charge in the opinion. However that may be, we recognize a clear distinction between such a case and a railroad crossing accident founded solely upon negligence, where no conduct of a criminal nature is claimed or involved.

What we have said with respect to requested charge No. 2 is equally applicable to requested charge No. 4. This charge, after correctly stating the rule with respect to proof of contributory negligence, injects a further issue by adding the element of what a person of “unusual prudence” might have seen or observed. The conclusion of this requested charge is particularly objectionable where it is stated: “and this would be true even though you * * * find that some other person of unusual care, prudence and caution might or would have seen and observed the approach of the engine in time to avoid the collision.” (Emphasis added.) This charge, instead of clarifying the issues, has a tendency to confuse the jury.

The jury might receive the impression that it was required to find what a person of unusual prudence and caution might do under similar circumstances. At best the charge is a mere abstract statement, there being no issue here concerning a person of unusual prudence, care or caution.

Concerning this subject, see 4 Ohio Jurisprudence (2d), 377, Appellate Review, Section 1048, which reads, in part, as follows:

‘ ‘ The refusal of the trial court to charge a mere abstract proposition of law having no practical application to the issues and facts of the case on trial is not ground for reversing the judgment; and this is so even though the proposition may be perfectly sound in itself.”

See, also, 4 Ohio Jurisprudence (2d), 380, Appellate Review, Section 1050, which reads, in part, as follows:

“What has been said as to the harmlessness of the refusal of abstract and inapplicable instructions applies with even greater force to the refusal of instructions which not only are inapplicable to the case made by the pleadings and evidence but also tend to divert the attention of the jury from the real issues before them by injecting into the case questions and issues which are wholly foreign thereto.”

The text in each instance is supported by a long list of authorities.

In addition, see 39 Ohio Jurisprudence, 947, 949, Trial, Section 265; page 1031, Section 313; page 1036. Section 318.

In conclusion, we are satisfied from an examination of the entire record of this case that substantial justice has been done the party complaining and that under all the facts and circumstances it was not error prejudicial to the rights of plaintiff to refuse the special requests for charges before argument.

Judgment affirmed.

Kovachy and Skeel, JJ., concur.


author: Per Curiam.

text:
    State, ex rel. Engelman, Appellant, v. Gertz, Mayor, et al., Appellees.
    (No. 7946
    Decided September 7, 1954.)

      Mr. Robert G. McIntosh, for appellant.

      Mr. Benjamin S. Schwarts, for appellee Harvey Boileau.
   Per Curiam.

Relator filed his petition in the Court of Common Pleas of Hamilton County, seeking a writ of mandamus directed against the Civil Service Commission of the City of Reading and the appointing authority, consisting of the mayor and director of public safety, to require them to certify relator as having the highest rating among an eligible list of five taking the promotional examination for the position of chief of police, to appoint him to such position, and to remove defendant Boileau, now holding the provisional appointment, for the reason that a mistake in addition oh relator’s grade sheet reveals, upon correction, that he received a higher grade than Boileau and, hence, is entitled to the appointment.

Prom the record, the trial court stated it was unable to find that relator was the sole person eligible for appointment and denied the writ. The appeal is here on questions of law.

Consistent with Section 143.24, Revised Code, the city sought to fill the vacancy in the office of chief of police in the classified service by competitive promotional examination. That section provides in part:

“The method of examinations for promotions, the manner of giving notice thereof, and the rules governing the same shall be in general the same as those provided for original examinations, except as otherwise provided in Sections 143.01 to 143.48, inclusive, of the Revised Code.”

Section 143.16, Revised Code, provides that examinations for positions in the classified service shall be written, or written and oral, but provides otherwise for promotional examinations, in that promotional examinations “shall be in writing.”

Reference to the five exhibits consisting of the civil service grade sheet for each of the five persons taking the examination and forming the eligible list shows that the examination as conducted was both written and oral, and a credit for oral examination appears on each exhibit.

It is therefore certain that the civil service commission violated the plain and mandatory provisions of Section 143.16, Revised Code, with reference to promotional examination, “which shall be in writing.”

We, therefore, consider the examination as held here to be null and void, that no eligible list was created thereby, and that any certification and appointment made pursuant thereto is of no force and effect in law.

For the above reasons, the relator is not entitled to the relief prayed for.

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

Judgment affirmed.

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


text:
    McCants et al., Appellants, v. Chenault, Appellee.
    (No. 7948
    Decided December 20, 1954.)

      Messrs. McCaslin, Imbus S McCaslin and Mr. Wm. J. Keating, for appellants.

      Mr. Myron Bush, for appellee.
   Per Curiam.

Plaintiff McCants, appellant herein, sought to recover for property damages to his automobile, which, while being operated by his minor son, came into collision with an automobile owned and operated by the defendant. Both drivers were guilty of negligence proximately causing the collision.

Plaintiff joined in the application for a driver’s license for his minor son, so that Section 4507.07, Revised Code, applies to him. Section 4507.07, Revised Code, reads in part:

“Any negligence or willful misconduct of a minor under eighteen when driving a motor vehicle upon a highway shall be imputed to the person who has signed the application of such minor, which person shall be jointly and severally liable with such minor for any damages caused by such negligence or willful misconduct. ’ ’

That section then provides for release of the parent from the imputation of negligence if the minor proves financial responsibility as required by the law.

Plaintiff’s contention is that the sole purpose of the statute is to fix financial responsibility for the minor’s torts and nothing more, and that, since the record shows the minor was on business of his own and not on any errand for the plaintiff, the relationship of bailor-bailee existed, so that under the settled law the negligence of the bailee could not be imputed to the bailor. With that contention this court cannot agree. The statute says any negligence of the minor shall be imputed to the person signing the application and does not limit that statement, although specifically providing for joint and several liability. We believe the Legislature intended joint and several liability in all its implications not only in money damages to an injured third party, but that, having placed a potentially dangerous instrumentality in the hands of a minor, the person responsible therefor should stand in exactly the same position as the minor and be clothed with the imputation of negligence for all purposes. To permit recovery for plaintiff would be tantamount to compensating plaintiff for damages proximately caused by his own negligence, and that is incompatible with any conception of substantial justice.

The judgment is affirmed.

Judgment affirmed.

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


author: Matthews, P. J.

text:
    Kelling Nut Co., Appellee, v. Barrow, Appellant.
    (No. 7950
    Decided December 20, 1954.)

      Mr. Bernard L. Rosenberg, for appellee. .

      Mr. John C. McCarthy, for appellant.
   Matthews, P. J.

This appeal, on questions of law only, involves the interpretation and application of Section 1335.03, Revised Code (Section 8619, General Code), by which it was enacted that:

“When goods and chattels remain for five years in the possession of a person, or those claiming under him, to whom a pretended loan thereof has been made, such goods and chattels become the property of such person, unless a reservation of a right to them is made to the lender in writing,- and the instrument recorded within six months after the loan is made, in the office of the county recorder of the county where one or both of the parties reside, or unless such instrument is filed as provided in Sections 1319.01 to 1319.05, inclusive, of the Revised Code.
“A loan of goods and chattels made to an art museum association within this state may have such reservation of a right to them made and recorded at any time within five years from the date of the loan.”

The bill of exceptions is limited to statements of counsel in narrative form and one exhibit upon which the Municipal Court of Cincinnati.rendered the judgment for the plaintiff, from which this appeal was taken by the defendant.

Prom the bill of exceptions it appears that the plaintiff’s method of doing business of selling nuts included the utilization of vending machines which it leased to customers. On April 18, 1939, it entered into a written lease agreement with one Kinross, whereby in consideration of the payment of $60, it agreed to and did deliver and lease to him one 1939 6 Part Model Twin Shelf 26%-inch Nut Machine. The lease contained many provisions defining the rights and duties of the parties. As to the terms of the lease it was provided that, “this agreement shall continue for the period of five years from the date of its acceptance by lessor and shall remain in effect from year to year thereafter until such time as lessee shall have given lessor 30 days written notice or lessor shall have given lessee six months notice of intention to terminate it.”

This lease was not filed or recorded in any public office.

This machine remained in the possession of the lessee until February 28, 1948, when he sold and delivered it to the defendant, Barrow, who likewise operated a pharmacy. For some time immediately after the machine was delivered to Kinross, he used it as intended, but later finding that the demand among his. customers for the kind of nuts supplied by plaintiff was not sufficient to justify the display of the machine, he told a salesman of the plaintiff thereof and requested him to remove the machiné* and, Upon plaintiff’s failure to do so, he stored the machine in his basement. This took place less than five years from the signing of the lease. It is not claimed that any written notice of the intent to terminate the lease was given, as required by its terms.

At the time Kinross transferred his interest in the machine, the plaintiff took notice of the transfer and notified Kinross that the machines were never sold, that they were leased for the sale and display of the plaintiff’s product — Double Kay Nuts — and that it was glad to transfer the right to use the machine without charge. Finally, the plaintiff learned that the defendant was using the machine to display and sell nuts furnished by competitors under the plaintiff’s name. Thereupon, the plaintiff demanded possession, and, upon refusal, this action in replevin was filed.

The question presented by this record is whether the transaction between these parties, whereby this machine was delivered to Kinross and later delivered by him to the defendant, comes within the meaning of the phrase, ‘ ‘ pretended loan, ” as it is used in Section 1335.03, Revised Code, hereinbefore quoted.

Appellant’s counsel relies exclusively upon the case of Richter & Phillips Co. v. Queen City Mfg. Co., 156 Ohio St., 143, 101 N. E. (2d), 291. It is true that there are features of similarity in the two cases, but on the matter of the relation between the parties, the cases are entirely dissimilar. The court quoted from the testimony of the plaintiff’s secretary to show that the parties themselves considered the transaction as a loan. In contrast, we find that at all times the plaintiff in the case at bar always insisted that the arrangement was a lease. And the evidence justified the plaintiff in that insistence. It was a lease for a definite term, renewable and terminable upon certain stipulated conditions for a cash consideration and the promise to replenish the machine with nuts purchased from plaintiff.

There is no evidence of fra ad or that the transaction was other than what it purported to be.

Upon the subject of the construction and application of former Section 8619, General Code (now Section 1335.03, Revised Code), see 21 Cincinnati Law Review, 308.

We, therefore, conclude that the title to this machine was never parted with by the plaintiff, that Section

1335.03, Revised Code, did not apply to the transaction, and that the law did not require any writing to evidence such transactions and, of course, did not require the writing that does evidence this transaction to be filed or recorded.

For these reasons, the judgment is affirmed.

Judgment affirmed.

Ross and Hildebbant, JJ., concur.


author: Hornbeck, J.

text:
    Langdon, d. b. a. Right Spot Cafe, Appellee, v. Board of Liquor Control of the State of Ohio et al., Appellants.
    (No. 5085
    Decided September 24, 1954.)

      Mr. Charles T. Kaps, for appellee.

      Mr. C. William O’Neill, attorney general, and Mr. Kiehner Johnson, for appellants.
   Hornbeck, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court reversing an order of the Board of Liquor Control which affirmed the action of the Department of Liquor Control .suspending the permit of appellee for thirty days.

The charge against the permittee which the director and the board found to have been established was:

“That on July 10, 1953, you and/or your agent or employee did sell and furnish in and on the permit premises spirituous liquor, to wit, whiskey, by the bottle, for consumption off the premises in violation of the provisions of the Liquor Control Act and the regulations of the Board of Liquor Control.”

The facts disclose beyond question that the bartender in the place of business of the permittee sold a fifth of whiskey to one Bekemeir, and that such sale was in violation of the Liquor Control Act and the regulations of the board. The defense of the permit-tee was that his agent was entrapped into making the sale. The department and the board held against this contention but upon the review in the Common Pleas Court it was sustained and the order of the board reversed.

Appellants assign three grounds of error which are to be determined upon two contentions which are asserted by appellants:

(1) That the doctrine of entrapment is confined to defenses in criminal charges; and

(2) That entrapment is not established.

If either contention is established the other is not controlling.

If the doctrine has application to these cases, we feel bound by our decision in State v. Gutilla, 94 Ohio App., 469, 116 N. E. (2d), 208, wherein we held that the defense of entrapment to a criminal charge was not established. The facts in the, Gutilla case are of sufficient similarity to those in the instant appeal to constitute the pronouncement in the Gutilla case a precedent. In the cited case a policewoman applied to the defendant for treatment representing that she was ill when she was not, and by this means secured the evidence upon which the defendant was convicted. We find no sufficient reason to change our view as expressed in the Gutilla case.

In the Gutilla case we adopted the principle controlling as stated in 12 Ohio Jurisprudence, 80, Section 38:

“Where the doing of a particular act is a crime regardless of the consent of anyone, the courts are agreed that if the criminal intent originates in the mind of accused, and the criminal offense is completed, the fact that an opportunity is furnished, or that the accused is aided in the commission of crime in order to secure the evidence necessary to prosecute him therefor, constitutes no defense.”

This quotation is taken from an annotation in 18 A. L. R., 146.

There are many reported cases on entrapment in liquor violations and the holdings vary widely. It would serve no good purpose to cite and discuss these cases because the judgments in many cannot be reconciled.

Applying the text set forth in the above citation, let us see whether the director and the board were required to say that the intent to sell the liquor in violation of the law and a rule of the board did not originate in the mind of the permittee’s bartender. The purchaser of the liquor, operating for an investigator of defendants, and the bartender had been acquainted for a number of years, which we assume was a friendly relation. The purchaser stated to the bartender that he was going fishing, with the implication that he wanted to take the liquor with him, and if he did not get it his trip would have to be postponed. He also said that it would be O. K., that is, that the bartender would not get caught in the improper sale. It appears also that the bartender said he would not like to do it, vis., make the sale.

Certainly, the friendship, the fact that the purchaser wanted to take the liquor with him on a fishing trip, and his statement that he would not report the violation, were not sufficient to justify a known violation of the law by the bartender or to overcome any improper purpose or intent that he must have had when he made the sale. The; sale was completed and the purchase price paid, which netted a substantial profit to permit-tee.

The role of an informer is not ordinarily looked upon with approval, and was understandably condemned by the judge on the appeal to the Common Pleas Court. However, we must recognize that the Department of Liquor Control is charged with the obligation of regulating the traffic in intoxicating liquors and with keeping within proper bounds the activities of permittees. Certainly the department would have no part or take no satisfaction in inducing permittee to violate the law solely to entrap him and would only resort to such practice as appears here if it had some reason for believing that he was exceeding his rights under his permit.

It appears in the testimony that the police officer and the investigator for the Department of Liquor Control, on the night of the occurrences as disclosed in the record, were of the opinion that there were some spots that were violating the law and it is probable that this information, in part, at least, explains the fact that the purchase was made by an individual other than an officer of the law. St. Clair v. United States (C. C. A., 8, 1927), 17 F. (2d), 886; Reyff v. United States (C. C. A., 9, 1924), 2 F. (2d), 39; People v. Amort, 60 Cal. App., 29, 212 P., 50.

It is obvious that the friendship between the bartender and the purchaser of the liquor, that he had expressed his desire to go fishing, that the trip might have to be postponed if he did not get the whiskey, and the assurance that nobody would learn of the sale, all had some influence on the bartender to prevail upon him to complete the transaction, and that he could safely do so, but the department had the right to find that it was insufficient to overcome his volition or to exonerate him of his purpose to violate the law when he completed the sale.

Certain observations in the opinion in Board of Commrs. of Excise v. Backus, decided many years ago, 1864, 29 How. Pr. (N. Y.), 33, at page 42, are pertinent here:

“Even if inducements to commit crime could be assumed to exist in this case, the allegation of the defendant would be but the repetition of the plea as ancient as the world, and first interposed in Paradise: ‘ The serpent beguiled me and I did eat. ’ That defense was overruled by the great Lawgiver, and whatever estimate we may form, or whatever judgment pass upon the character or conduct of the tempter, this plea has never since availed to shield crime or give indemnity to the culprit, and it is safe to say that under any code of civilized, not to say Christian ethics, it never will.”

Defendants did not err in holding that entrapment was not established.

We hold against the appellants upon their contention that entrapment, if established, may not be employed as a defense to a charge preferred against a permittee by the Director of Liquor Control.

The judgment will be reversed and the cause remanded.

Judgment reversed.

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


author: Hildebrant, J.

text:
    Magee et al., Appellees, v. Kiesewetter, Appellant.

      (No. 7928
    Decided January 17, 1955.)

      Mr. Paul A. Eoldt and Mr. Robert Q. McIntosh, for appellees.

      Mr. Stewart S. Cooper, for appellant.
   Hildebrant, J.

Plaintiffs claim to be entitled to a one-fourth interest in certain rents collected by the defendant over a period of years, and pray for a money judgment following an accounting of the rents collected.

The trial proceeded before a jury and, at the close of all the evidence, the court apparently misconceived the ultimate relief prayed for, dismissed the jury, and decided the. case upon the merits by rendering judgment for plaintiffs for one-fourth the gross rentals involved. No citation is necessary to point out the prejudicial error in that procedure. Since the principal relief prayed for was a money judgment the case is clearly an action at law, triable to a jury.

At the trial the court excluded testimony proffered by the defendant as to expenditures for taxes, necessary improvements, and repairs. This likewise was clearly error, since the claimed rights of the plaintiffs stem from a tenancy in common. In Airington v, Airington, 79 Okla., 243, 192 P., 689, 27 A. L. R., 182, the syllabus is:

“A tenant in common in possession of the common property, who has received more than her just proportion of rents from third persons, but who is not holding the premises adversely or to the exclusion of her cotenants, is not liable to account to them for their proportion of the rental value of said premises, but must account to them for their proportion of the rents actually received from third persons, after deducting the sums expended for taxes and necessary improvements. ’ ’

See annotations in 27 A. L. R., page 184 et seq.

Despite repeated opportunities to do so, plaintiffs neither made nor filed any reply to defendant’s answer either before or during the trial.

The pertinent part of Section 2309.27, Revised Code, reads as follows:

“Excepting averments as to value or the amount of damage, for the purposes of an action * * * every material allegation of new matter in an answer not controverted by the reply, shall be taken as true.”

In her answer, duly verified, the defendant alleged in part:

“This defendant further says that said real estate was purchased with money provided by her mother, Katherine Kiesewetter, and that the title was placed as a matter of convenience in the name of her sister, Anna M. Kiesewetter, for the purpose of providing income for the support and maintenance of her mother, Katherine Kiesewetter, and of her sisters, Anna M. Kiesewetter and Lena Kiesewetter during their lifetimes. This defendant says that with the knowledge and consent of her mother and her sister, Anna M. Kiesewetter, she collected the rents from said real estate, paid the expenses in connection therewith, and applied the net income over and above said expenses for the support of her mother, Katherine Kiesewetter, and of her sisters, Anna M. Kiesewetter and Lena Kiesewetter, who had no personal incomes. Defendant further says that she at no time has received any personal compensation for the management of said real estate.”

In the absence of any reply, this court is required to accept the above allegations contained in the answer as true. Benson v. Lamb, Admr., 89 Ohio App., 248, 101 N. E. (2d), 235; Fewster v. Goddard, 25 Ohio St., 276.

Those allegations coupled with testimony that the sister, from whom the plaintiffs’ rights stemmed, knew of those arrangements and agreements, acquiesced therein, and that her estate was settled without any claim of interest in the subject real estate being made, provide clear, certain and conclusive proof of an oral trust being engrafted on the deed otherwise absolute and made contemporaneously therewith. The conduct of the parties as revealed by the record further fortifies the above conclusion. See: Hill v. Irons, 160 Ohio St., 21, 113 N. E. (2d), 243, wherein Bussell v. Bruer, 64 Ohio St., 1, is approved and followed.

It therefore follows that defendant’s motion for judgment non obstante veredicto should have been granted.

The judgment is reversed and final judgment is entered for the defendant.

Judgment reversed and final judgment for defendant.

Matthews, P. J., and Boss, J., concur.


author: Younger, J.

text:
    In re Estate of Hammer.
    (No. 336
    Decided March 19, 1955.)

      Mr. Francis M. Marley, for appellant.

      Mr. Paul A. Flynn, for appellee.
   Younger, J.

This is an appeal from the Common Pleas Court of Seneca County. It arises by reason of the sustaining of a motion in the Probate Court to set aside the order of probate of the will of Mary Hammer. Because no record was made of the proceedings in the Probate Court, the executor appealed to the Common Pleas Court so that a record could be made as provided for in Section 2101.42, Revised Code. After a hearing was had the Common Pleas Court dismissed the appeal from the Probate Court, and from that order the executor appeals here.

The application for the probate of the will, filed February 6, 1952, showed a large number of nieces, nephews, grandnieces and grandnephews, about forty of whom were listed therein as residents of Ohio. All these were eventually served with notice of probate or waived notice, except Earl Wagner, who was listed in the application by the proponent of the will — a lawyer who was named as executor in the will — as a nephew residing at Coldwater, Ohio. The summons issued for him to the sheriff of Mercer County was returned to the court on February 15, 1952, with the notation by the sheriff, “Unable to locate the within named Earl Wagner within our bailiwick. Have information he may be living in Akron, Ohio. ’ ’

Among the nephews of the decedent is Orrin Hammer, one of the appellees in this case. He was represented in the probate proceedings, the Common Pleas Court and this appeal by the same attorney. He and his attorney co-operated with the proponent of the will in locating several of the heirs, and the attorney, on March 8, 1952, wrote the proponent of the will that Earl Wagner’s mother, Henrietta, was deceased and that her two sons Erwin and Earl had both died, leaving no issue, according to the information given him by his client, Orrin Hammer. Later, on March 15, 1952, in another letter, the statement is again made that Orrin Hammer had information that Earl Wagner was deceased and a notation to that effect should be made on the record. The application now bears the notation, after the name of Earl Wagner, printed in ink, “deceased.” By whom it was placed there is not shown. Later, on March 27, 1952, in still another letter to the proponent, this attorney states that Orrin Hammer had been told by at least a half dozen people that Earl Wagner was deceased and left no children, and if a note of that fact “is made in the proceeding, it will obviate the necessity of pursuing that phase of the matter any further.” He suggested further that unless the proponent proceeded with “all possible diligence” he would be compelled to file a motion to dismiss the application for probate for failure to prosecute it within a reasonable time. On April 28, the attorney wrote a letter to the acting probate judge, with a carbon copy to the proponent, advising the judge that some additional waivers had been procured and “that all parties are before the court.”

Hearings had been held before the acting probate judge previously, on April 14, at which time the same attorney had cross-examined the two subscribing witnesses to the will. Further proceedings were thereafter had, and on May 16, 1952, the will was admitted to probate and the executor appointed.

The evidence shows further that the executor had no knowledge that Earl Wagner was alive and living in Akron at the time of the probate of the will, but that he relied upon the representation of the appellee made through his attorney that Earl Wagner was deceased and left no heirs at law.

The evidence shows further that about two months after the will was admitted to probate, a niece of the decedent contacted Earl Wagner at Akron, through a neighbor who was working in Akron, and that at a family picnic held a short time thereafter the death of Mary Hammer and the administration of her estate were discussed with Earl Wagner.

■ Thereafter, on September 16, 1952, a petition was filed in the Common Pleas Court to contest the will, in which action Earl Wagner and Orrin Hammer, the appellees herein, were plaintiffs, together with a number of other heirs.

The evidence shows further that Earl Wagner died on August 8,1953, leaving a widow and three daughters as his only heirs at law, who, on September 15, 1953, sixteen months after the probate of the will, filed the motion in the Probate Court to set aside the order of probate, upon which this case arises.

After hearings were held on the motion, the Probate Court, on January 6, 1954, set aside the order of probate for the reason that Earl Wagner was a resident of Ohio at the time of the probate and had not been served with notice thereof.

Prom that order, the executor has appealed, and we are immediately met with a motion to dismiss the appeal on the ground that the executor is not a proper party to prosecute the appeal. This motion is strongly argued by counsel, with scant authority for or against the question.

We hold, however, that in a case such as this, where the will has been admitted to probate and the executor has accepted the trust and entered upon the discharge of his duties thereunder, the executor is not only a proper party, but he is under a duty to his decedent, whose personal representative he is in carrying out the terms of the will, and to the legatees and devisees who are not parties to the probate of the will and whose rights would otherwise be jeoparized, even without their knowledge, to perfect and prosecute an appeal from an order of a Probate Court which sets aside the probate of a will, and which order is absolutely void.

The Supreme Court of Ohio, by Bradbury, J., says, in Feuchter v. Keyl, 48 Ohio St., 357, at page 366, 27 N. E., 860:

“It is said that notice to the individual, who had been named in the will as the executor thereof, was by relation notice to all the devisees therein. It is no doubt true that an executor, after he has accepted the trust and entered upon its execution, is in many respects the representative not only of the estate, but of all the persons interested therein. ’ ’

Such a void order clearly adversely affects and aggrieves the executor in his representative and fiduciary capacity.

The order of the Probate Court in setting aside the order of probate is void for three reasons.

In the first place, the record before this Court shows by the transcripts of both the Probate Court and the Common Pleas Court proceedings that there is included therein by reference the pleadings and original papers in Case No. 28304 in the Seneca County Common Pleas Court, which is a will contest case involving the will of Mary Hammer and the parties to this case, duly filed within the six-month period and undisposed of. Upon the filing of this case the Probate Court, following the statute, duly certified the will, order of probate and other necessary papers to the Common Pleas Court.

Upon the certification of the will and related papers to the Common Pleas Court and until the return to the Probate Court of the certificate from the Common Pleas Court as to the result of the case, that is, whether the paper writing is or is not the last will of the decedent, the Probate Court is without any jurisdiction to entertain a motion to set aside the order of probate.

In the second place, the Probate Court, in setting aside the probate of the will, relied upon the case of Scholl v. Scholl, 123 Ohio St., 1, 173 N. E., 305, which held that the requirement of Section 10507, General Code, that upon the application for the probate of a will notice shall be given to the widow, husband and next of kin of the testator, resident of the state, is mandatory and jurisdictional and that an order of probate of a will without such notice is void and subject to direct attack by those who neither received notice nor waived notice thereof.

The decision of the Supreme Court in the Scholl case was made on October 29, 1930, and the statute in force at that time (Section 10507, General Code) provided that “no will shall be admitted to probate without notice to the widow or husband and next of kin of the testator, if any, resident in the state * * ”

However, this statute was subsequently amended by adding the words, “known to be residents of the state” (Section 10504-17, General Code), and this amendment was in effect at the time of the probate proceedings herein involved. The question presented in construing the amendment is, “known by whom to be residents of the state.”

We have no difficulty in holding that this knowledge must be had by those whose duty it is to give the notice in the first place, that is, either the proponent of the will or the court.

There is nothing in the record to show that the court had any knowledge that Earl Wagner was alive and in Akron, except that the return of the Sheriff of Mercer County states that he had information that “he may be living in Akron.” This is very indefinite, no street address is given and it is not a positive statement. On the other hand, the court was informed by Orrin Hammer, one of the appellees, through his attorney, that “all parties are before the court.” The evidence is uncontradicted that the executor of the will was not related to the decedent or any of the heirs at law, and of necessity had to depend to a large extent upon the heirs living in Fostoria, whom he knew, to supply him with information as to the whereabouts of. the remaining heirs.

There is no evidence whatsoever in the record tending to show that Eárl Wagner was known to be a resident of the state at the time of the probate, either by the proponents of the will or the court, or, for that matter, by any of the sixty or more heirs at law in the case. Orrin Hammer testified that the first he knew Earl Wagner was alive and living in Akron was on July 8,1952, some two months after the order of probate.

Lastly, the order of the Probate Court is void because Earl Wagner elected his remedy and joined with several other heirs as plaintiffs in the will contest case. He knew of the probate of the will for thirteen months before his death. He never contacted the executor nor filed any objections with the Probate Court. By bringing the will contest case he definitely admitted the probate of the will and was barred from making any attack upon the regularity of the order of probate or the authority and jurisdiction of the court that made it. His heirs at law have no greater rights than he had and are bound by his election.

The Supreme Court, in Stacey v. Cunningham, 69 Ohio St., 176, 68 N. E., 1001, has held:

‘ ‘ 3. By the bringing of an action to contest the validity of a will, under the statute, plaintiffs admit the probate of the will so put in contest, and will not, therefore, on the trial of said cause, be permitted to question or deny either the regularity of the order of probate, or the authority and jurisdiction of the court that made it. ’ ’

Finally, if we grant, for the purpose of argument, that the Probate Court did have jurisdiction to entertain the motion, we are of the opinion that the court had neither a statutory right nor the inherent power to set aside the order of probate upon a mere motion, filed sixteen months after probate, at a different term of court and without notice to any of the heirs at law, legatees or devisees. The administration of an estate, especially with a will involved, affects too many substantial rights of the widow, heirs at law, legatees, devisees and creditors, the enforcement of which are regulated by rigid time schedules, to indulge in such off-again, on-again procedure.

The motion to set aside the order of probate should have been dismissed and the action of the Common Pleas Court in sustaining the Probate Court in this action is reversed. The cause will be remanded for further proceedings in accordance with this opinion.

Judgment reversed.

Quatman, P. J., and Middleton, J., concur.


text:
    Armstrong, Appellee, v, Armstrong, Appellant; General Motors Corporation et al., Appellees.

      (No. 7826
    Decided March 8, 1954.)

      Mr. Walter K. Sibbald, for appellee.

      Messrs. Gorman, Silversteen & Davis, for appellant.
   Matthews, P. J.

The defendant Raymond C. Armstrong, in this appeal, challenges the validity of a judgment for alimony rendered in favor of the plaintiff. The plaintiff, by her cross-appeal, challenges the validity of the court’s judgment denying a divorce to her.

The trial took place on the plaintiff’s amended petition and the defendant’s answer.

In the amended petition, the plaintiff alleged that the defendant had been guilty of gross neglect of duty and extreme cruelty which forced her to separate from him in October 1950, and that in April 1951 he filed an action in the Circuit Court of the Eleventh Judicial District in and for Dade County, Florida, in which action he falsely charged that she was wholly without business training at and prior to their marriage; that during all their married life of 34 years she had never shared in any business activities with him; that she had contributed nothing to the enhancement of his material assets; that she had an ungovernable temper and had shot at him with a revolver; that as early as 1943 she began to plan leaving him; that she had wrongfully induced him to place bank accounts and safe deposit boxes in their joint names for the purpose of thereafter taking them into her exclusive possession and did on their separation on a later date take certain amounts of money and bonds and stocks into her exclusive possession and sought to convert them to her own use; that, upon a reconciliation in 1948, she had promised to return the money and other property to him, but had not done so, with the exception of about $7,000 which she returned to their joint bank account; that the reconciliation failed wholly because of her wrongdoing; and that in October 1950 she left their residence in Miami, Florida, and refused to disclose where she was living thereafter.

She alleged also that the defendant Armstrong made oath to the foregoing allegations knowing them to be false and that the prosecution of the action based thereon would perpetrate a fraud upon the court, and that nevertheless he appeared before a special master in said cause and testified falsely as aforesaid, and the special master reported to the court that he was entitled to a divorce after an agreement had been reached between the defendant Armstrong and the special master setting the amount of the special master’s fee.

The plaintiff alleged also that, without service of summons upon her and without her appearance therein, the action came on for hearing upon the complaint of the plaintiff (defendant Armstrong herein) and the report of the special master, and that thereupon the court entered a decree on October 2, 1951, granting a divorce to Armstrong, the defendant herein.

In her amended petition, the plaintiff alleged that in 1914 she and the defendant Armstrong started a business in which she furnished the greater part of the capital, which business was continued through their joint efforts before and after their marriage, resulting in the accumulation of property in their ownership, a part of which consisted of certificates of stock, specifically described, in six corporations issued in the name of defendant Armstrong, which certificates the plaintiff has in her possession in Hamilton County, Ohio, but which are unendorsed by the defendant Armstrong. She alleged also that the defendant corporations which issued the certificates will not cancel them and reissue them without the order of a court and, for that reason, they are made parties, so that the court may award to her such alimony as the court may deem reasonable and proper. Her prayer was for divorce and alimony.

The defendant Armstrong by answer denied that the allegations in his complaint and the testimony he gave in his action in the Eleventh Judicial Circuit in and for Dade County, Florida, were false; denied that defendant therein was not served with summons; and alleged to the contrary that the defendant was duly served in accordance with the law of Florida, and that, by reason thereof, the Florida court had full jurisdiction over both the subject matter and the persons of the plaintiff and defendants.

The defendant Armstrong denied that he had been guilty of gross neglect of duty or extreme cruelty; denied that plaintiff had been a dutiful and faithful wife; denied that she had assisted in any way in the accumulation of property; but asserted that such property was accumulated by his own efforts; that much of the property had been placed in their joint names solely because of the plaintiff’s insistence; and that in various ways from such properties in their joint names she has received and will receive substantial sums. He alleged also that the withdrawal by the plaintiff of his property from the safety deposit box constituted embezzlement under the laws of Florida, of which laws he asked the court to take judicial notice.

The defendant’s answer contained a general denial of all plaintiff’s amended petition of good conduct on her part and misconduct on his part and concluded with a prayer that her amended petition be dismissed and that she be required to deliver to him all the certificates of stock and jewelry in her possession, and that the court make an equitable division of the money withdrawn from their joint bank accounts.

A reply placed in issue all the affirmative allegations of the answer.

At the trial of these issues, evidence was introduced from which the conclusion could reasonably be deduced that the plaintiff in this action had been guilty of gross neglect of duty and extreme cruelty and that the Florida decree granting a divorce to the defendant herein was supported by sufficient evidence. On the other hand, evidence of equal cogency was introduced from which it could be deduced that he had been guilty of gross neglect of duty and extreme cruelty, and that the decree awarding a decree to the plaintiff herein outweighed the evidence of the defendant and would have justified a divorce in her favor. At any rate, this court would not be justified in reversing the decree in her favor on the ground that it was manifestly against the weight.

The complete record of the action in which the divorce was granted to the defendant herein by the Florida court was introduced at the trial in this case. This record includes the bill of complaint, the amendment to the bill, a complete transcript of the testimony taken before the special master, the special master’s report, and the final decree. From this record, it is manifest that the plaintiff in that case sought to vest the court with jurisdiction not only over the marital status, so that it might be dissolved, but also endeavored to bring all the property and property rights, both real and personal, wherever located, within the court’s jurisdiction. The decree that was entered was equally broad. By it, the plaintiff in that action (Raymond C. Armstrong) was granted a divorce on the ground of gross neglect of duty and extreme cruelty and was awarded title to all the real estate and personal property within the territorial jurisdiction of the court. The defendant (Mary R. Armstrong) was found to have forfeited all right to alimony, was ordered to return all property she had taken from the bank accounts and safety deposit vaults, and was enjoined from interfering with plaintiff’s right to such property. The court recited that it took notice that some property was located in Ohio, and, for that reason, the Ohio courts would determine the rights in such property. In view of that situation, the court made a specific finding that both parties were and had been for many years citizens and residents of the state of Florida, that the matrimonial domicile was in the state of Florida, that the plaintiff herein left the matrimonial domicile without right in 1950 and had no right to establish a legal domicile elsewhere, and that in law and fact her domicile was still that of her husband in the state of Florida.

The record shows — and it is admitted — that this decree was entered upon constructive service alone. The defendant was not served with any process within the territorial jurisdiction of the court, and she did not enter her appearance in any way. The decree was entered pro confesso on her failure to appear or answer.

In the decree in the case at bar, the court expressly stated that it gave full faith and credit to the decree of divorce of the Florida court, and, for that reason alone, denied to the plaintiff a divorce to which she would otherwise have been entitled. The court then found that the plaintiff was entitled to alimony, as prayed for, and awarded to her all the money and bonds taken by her from their joint accounts and vaults, all the jewelry, and 1,250 shares of stock in General Motors Corporation. It would appear that the court divided their property in equal shares between them.

It is manifest that the attack upon the judgment here under review results from divergent views as to the force and effect of the judgment of the Florida court under Section 1, Article IV of the Constitution of the United States, commonly referred to as the “Full Faith and Credit Clause,” which requires each state to give full faith and credit to the public acts, records, and judicial proceeding of every other state. The plaintiff’s contentions are that the Florida decree was obtained by fraud and perjury, which rendered it voidable by a decree of a court of chancery, and, that, therefore, it is equally vulnerable in an Ohio court of general jurisdiction; and the Florida decree, after giving it all the force and effect accorded to it by the law of that state, is no bar to a judgment awarding her a divorce in this action. In the next place, she contends that even assuming that the divorce decree dissolved the marriage tie and is invulnerable to attack in this action it is, nevertheless, no bar to her action for alimony.

On the other hand, the defendant contends that as the divorce was granted to him by a court of the matrimonial domicile, from which domicile the plaintiff had departed in violation of her marital duties, as found by that court, the decree completely and finally dissolved the marriage ties, including also all the rights and duties of the parties incident thereto, and that the decree entered by the Florida court expressly so provided by barring the plaintiff of all such rights.

In support of her position that the Florida divorce is no bar to the plaintiff’s action for divorce, plaintiff’s counsel relies upon certain Florida cases indicating that a decree of divorce by a Florida court obtained by fraud may be vacated, perhaps by the court granting it, by invoking the common-law writ of cormi nobis or some statutory variation of that writ, or by an independent suit in chancery. It is not suggested that any such proceeding has been instituted. In our opinion, the mere existence of such a remedy does not deprive the divorce decree of that quality of finality, entitling it to full faith and credit by the courts of other states, enjoined by the Constitution of the United States. Even the fact that this judgment might be subject to an appeal or that the time for filing a motion to vacate or for a new trial had not expired would not affect its finality or deprive it of the right to full faith and credit. 31 American Jurisprudence, 167, Section 558. The judgment of the Florida court is, nevertheless, a final decree for divorce within the jurisdiction of the court granting it, to which full faith and credit must be given so long as it remains unreversed, unmodified, and uot vacated by the courts of the state in which it was awarded. It should be noted that the trial court made no express finding that the Florida decree had been obtained through fraud and deceit.

We, therefore, hold that the trial court did not err in refusing to enter a decree of divorce for the plaintiff.

The question remains as to the effect of this Florida judgment upon the right of the plaintiff to a decree awarding her alimony. The Florida court not only assumed to grant a divorce but also to enter a decree barring the plaintiff from all rights based on the marital relation. And, as already noted, this was done without personal service or an entry of appearance in the action by the defendant. We are of the opinion that this attempt to deprive the defendant of a right to alimony could add nothing to the jurisdiction of the court. It is an attempt to render a personal judgment upon constructive service. Unless the dissolution of the marriage tie had the effect of destroying all rights incident to. the marriage relation, express recitals certainly would not accomplish that effect. The detailed- findings, that the plaintiff in this action had been, and was, a recreant wife and of no help, but a hindrance, to the plaintiff in the accumulation of his wealth, made by the Florida court to serve as a predicate for the mandatory and prohibitory injunctions expressly made enforceable by contempt proceedings which were decreed, can have no greater validity than the writs by which they were enforceable. As no court has jurisdiction to enjoin and punish for contempt in the absence of personal service upon the person enjoined, this decree so far as it attempted to exercise such jurisdiction is null and void.

But defendant’s counsel contend that this Florida decree, shorn of all provisions relating to alimony, is a bar to the plaintiff’s claim for alimony. They assert that a decree for divorce granted on constructive service by a court of the matrimonial domicile has that effect. It is said that it has been so decided in Atherton v. Atherton, 181 U. S., 155, 45 L. Ed., 794, 21 S. Ct., 544, and Thompson v. Thompson, 226 U. S., 551, 57 L. Ed., 347, 33 S. Ct., 129, and that the latter case was cited with approval in Estin v. Estin, 334 U. S., 541, at 547, 92 L. Ed., 1561, 68 S. Ct., 1213, 1 A. L. R. (2d), 1412. While attempts have been made to distinguish and limit the effect of the cases of Atherton v. Atherton, supra, and Thompson v. Thompson, supra, we are of the opinion that they support the proposition for wiiich they are cited. But we are also of the opinion that it is more accurate to say that Thompson v. Thompson, supra, was distinguished rather than approved in Estin v. Estin, supra.

To give to the court of the matrimonial domicile jurisdiction greater than that acquired elsewhere by one spouse, it was necessary to invoke the common-law fiction that the wife’s identity was merged in that of her husband and that the domicile of his choosing was her domicile. Relaxing this rule, as was done in some cases, so as to permit the wife to change her residence so as to confer jurisdiction elsewhere of her divorce action would permit the husband, remaining at the “matrimonial” domicile, to compel her to return to that jurisdiction to defend her conduct in leaving, or allow a default; and if that jurisdiction determined that her leaving was unjustified, it could proceed to bind her by a personal judgment. This monolithic conception of the relation between husband and wife has long since ceased to be valid. By statutes and court decisions, the relation has been so altered as to give the wife almost as much freedom of action as that of the husband. In Ohio and in most other states, for the purpose of jurisdiction to entertain her action for divorce and alimony, her right is not affected by the residence of her husband. Section 3105.04, Revised Code. This development of the law, without doubt, influenced the Supreme Court in cases subsequent to Thompson v. Thompson, supra, to review the subject of matrimonial domicile in its relation to the “Full Faith and Credit Clause” of the United States Constitution and to conclude that there was no distinction in that regard between matrimonial domicile and domicile acquired by either husband or wife acting separately.

This trend became manifest with the first case of Williams v. North Carolina, 317 U. S., 287, 87 L. Ed., 279, 63 S. Ct., 207, 143 A. L. R., 1273, in which the court said at page 301, that: “Moreover, so far as state power is concerned, no distinction between matrimonial domicil and a domicil later acquired has been suggested or is apparent. ’ ’ That the statement was made after due deliberation is manifest from the statement of the court in the second case of Williams v. North Carolina, 325 U. S., 226, 89 L. Ed., 1577, 65 S. Ct., 1092, 157 A. L. R., 1366, at 230: “In view of Williams v. North Carolina, supra, the jurisdictional requirement of domicil is freed from confusing refinements about ‘matrimonial domicil.’ ”

And in the more recent case of May v. Anderson, 345 U. S., 528, 97 L. Ed., 1221, 73 S. Ct., 840, an action originating in Ohio seeking custody of children, the court reviewed and reversed the judgment of the Ohio court giving binding effect against the wife to a judgment rendered, upon constructive service only, by a Wisconsin court, which state was the matrimonial domicile of; the husband. At page 533 the Supreme Court of the United Stales- said:

“In Estin v. Estin, supra, and Kreiger v. Kreiger, supra, this court upheld the validity of a Nevada divorce obtained ex parte by a husband, resident in Nevada, insofar as it dissolved the bonds of matrimony. At the same time, we held Nevada powerless to cut off, in that proceeding, a spouse’s right to financial support under the prior decree of another state. In the instant case we reeognize that a mother’s right to custody of her children is a personal right entitled to at least as much protection as her right to alimony.”

From this it would seem that the Supreme Court of the United States regarded it as settled in that court that an ex parte decree is effective to dissolve the marriage tie, and that to that extent other states must accord to it full faith and credit. Beyond that, the power of the court to adjudicate property and personal rights is dependent upon seizure of property, or personal service of summons within the territorial jurisdiction of the court.

Certainly the Ohio courts understand that this is the doctrine of Williams v. North Carolina, supra, as is made manifest by the case of Slapp v. Slapp, 143 Ohio St., 105, 54 N. E., (2d), 153. In that case, it appeared that the husband had obtained an ex parte decree of divorce in Nevada while an action for alimony was pending in Ohio, the state of their last residence before separation. After the divorce was granted, the wife filed an amended petition adding a cause of action for divorce to her action for alimony. The trial court found that the Nevada divorce was null and void, and, thereupon, granted both divorce and alimony to the wife. On appeal by both parties, the Court of Appeals “gave full faith and credit” to the decree of divorce in Nevada, and reversed that part of the judgment of the Common Pleas Court which awarded a divorce to the plaintiff Ruth E. Slapp. On the other hand, the Court of Appeals affirmed that part of the judgment of the Common Pleas Court which awarded an equal division of the property to the plaintiff. The Supreme Court affirmed the judgment of the Court of Appeals.

It is true that the divorce decree under consideration in Slapp v. Slapp, supra, was not granted at the domiciliary residence. It is also true that in Anderson v. May, supra, the Ohio courts gave full faith and credit to a divorce decree of the domiciliary residence awarding custody of children, but they did so not because the decree was at the plaintiff’s domicile, but because they decided that the children were technically present within that jurisdiction, and, for that reason, within the power of the court. And, as already pointed out, the Supreme Court of the United States expressly declined to place its reversal on any disagreement with the Ohio Courts on that point, preferring to place it on the fundamental proposition that the full faith and credit required of other states by Section 1, Article IV of the United States Constitution to an ex parte decree was limited to the dissolution of the marriage status and did not extend to an adjudication or destruction of personal and property rights incidental to the marriage relation.

We, therefore, conclude that the Court of Common Pleas did not err in its holding that the ex parte decree in the Florida case was not a bar to the plaintiff’s action for alimony.

The court divided the property of these parties in substantially equal shares between them. We have examined the record as to the manner of its accumulation, the contribution of each of the parties thereto, and the facts and circumstances of their respective situations and needs. We find no error of the court in this regard.

We find no prejudicial error in the record,

For these reasons, the judgment is affirmed.

Judgment affirmed.

Ross and Hildebbant, JJ., concur.


author: Ross, J. Hildebrant, J.

text:
    Hotze, Kuntzler & Co., Appellant, v. Erskine et al., Appellees.

      (No. 7765
    Decided February 8, 1954.)

      Mr. John R. Gehrig and Mr. R. Edward Tepe, for appellant.

      Messrs. Kunkel & Kunkel and Mr. John H. Heilker, for appellees George J. Hare and Raymond F. Hare.

      Mr. E. R. Heisel and Mr. Chauncey Pichel, for appellee James Erskine.
   Ross, J.

After the plaintiff, appellant herein, had effected an appeal on questions of law and fact, he filed an amended petition in this court, to which the defendants filed demurrers on the ground that such amended petition did not contain facts constituting a cause of action.

The causes of action sought to he stated in such aménded petition were for specific performance of a verbal contract to sell real estate, and, conditionally, for reformation of a memorandum of such alleged verbal contract.

Disposing of the latter cause of action first: It seems obvious that there can be no reformation or. change of the terms of a memorandum, for if the parties who signed such memorandum failed to write into it what they intended, then the court can not do so. Section 1335.05, Revised Code, prohibits an action upon a contract to convey real estate, unless the same or “some memorandum or note thereof, is in writing and signed by the party to be charged therewith. ’ ’

Under the statute it is not what the parties intended to do; it is what they did.

The demurrers, through the inherent admission of facts alleged in the amended petition, cannot be employed to create a writing, in whole or in part, which was not executed by the parties. So there can be no reformation of the memorandum. It must stand or fall as it exists. If it fails to meet the requirements of the statute, a court can not alter or add to it. 45 American Jurisprudence, 593,. “Reformation of Instruments,” Section 19.

As to the first cause of action for specific performance of a verbal contract to sell the" real estate, the demurrer, of course, admits not only the well-pleaded allegations of the amended petition, but also the fair, reasonable, and favorable intendments and inferences arising therefrom. Guardian Life Ins. Co. of America v. Veser, 128 Ohio St., 200, 190 N. E., 405; Parletto v. Industrial Commission, 140 Ohio St., 12, 42 N. E. (2d), 153; Gugle v. Loeser, 143 Ohio St., 362, 55 N. E. (2d), 580.

The amended petition contains allegations of the several specific conditions, provisions, and stipulations of a valid contract to sell and purchase a definitely described parcel of real estate. Such allegations are sufficiently complete to warrant a decree of specific performance, with one possible exception, which will be discussed later. It is this oral contract which is sought to be enforced, not the memorandum thereof, which is merely the evidence of the verbal agreement entered into before the memorandum was signed and executed.

The sole problem here presented then is whether there is sufficient compliance with the statute; that is, whether there is a note or memorandum evidencing the necessary terms of the verbal contract. This compliance, as stated, is not admitted by the demurrer. It has been held generally that such memorandum must contain, as a minimum requirement, statements showing who are the parties to the verbal contract, what real estate was to be conveyed, and the terms of payment.

In 37 Corpus Juris Secundum, 666, “Frauds, Statute of,” Section 181, it is stated:

“To be sufficient as a memorandum under the statute, a writing must be complete in itself, leaving nothing to rest in parole. It must contain all the essential elements or material parts of the contract evidenced by it.”

A copy of the memorandum relied upon by plaintiff to show compliance with the requirements of Section 1335.05, Revised Code, is attached to the amended petition as an exhibit and is in the following terms:

“Memorandum of Sales Contract — Erskine Property.
“The price of the Erskine property is $85,000 to be paid as follows:
“$1,000 to be paid when this memorandum is approved by both the seller and the buyer, with the understanding that complete contract will be drawn up acceptable to all concerned, at which time the balance of $14,000 will be paid constituting the first payment on this property.
“It is understood that the subdivision will be called Erskine Subdivision.
“The sale of the property will be made on a land sales contract and lots will be released and deeded free and unencumbered and the buyer will pay at the rate of $35 per front foot, and the property released must be paid for at the rate of $14,000 per fiscal year and interest will be paid on the balance of the purchase price at the rate of 3% per year, and this to be paid semi-annually. The seller will pay all taxes and assessments that are payable in June 1951, and the buyer to pay them thereafter.
“The seller will have the privilege to live in the present residence with an acre of ground as long as he lives or chooses to remain on this property. This privilege is not transferable.
“It is understood that the seller may farm any or all of this tract of land without paying rent, with the full understanding that it can be taken over by the buyer whenever he may require it for development purposes.
“If there should be any restrictions on account of declared war or otherwise by the government and the buyer cannot build houses to cost more than $24,000, the annual payments will be reduced 50%, which automatically will extend the final payments.
“Date June 5 51 (Sgd.) James Erskine
“Hotze, Kuntzler & Co.
“(Sgd.) A. J. Hotze, Treas.
“Witness
“(Sgd.) E. W. Townsley.”

We have before us the per curiam opinion in the ease of Sanders v. McNutt, 147 Ohio St., 408, 72 N. E. (2d), 72. In a per curiam opinion, the law pronounced by the court is found in the opinion, there being no syllabus. We note that the decision was by a divided court, and that the dissenting opinion is in conformity with the general law. In the majority opinion, to which judicial subordination requires our acquiescence, certain definite principles applicable to the instant problem are announced. The memorandum as evidence of the verbal contract involved in Sanders v. McNutt, supra, is set out on page 409, and is as follows:

“3/5/45
“Received deposit of $300 on property located at 4228 New Portage road as binder on sale totalling $12,500, balance to be paid at time of transfer of clear title.
“(signed) J. R. McNutt.”

The terms of such memorandum are, in our opinion, much more meager than in the one involved in the instant case. In the majority opinion in the Sanders case, it is stated, on page 410:

“There can be no dispute upon the proposition that the memorandum must contain a description of the property. However, we are not prepared to hold that the property must be described with the particularity used in a deed or a formal contract. To so hold would render nugatory the provision of the statute that ‘unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged therewith. ’
“Keeping in mind that the instant case has not been tried and that we are now called upon to determine only the sufficiency of the amended petition as against a general demurrer, our consideration is not limited to the memorandum alone but to all the averments of such petition.”

It will be noted that authority is thus given to employ the admitted allegations found in the text of the amended petition to identify the description of the property used in the memorandum.

In the instant case the property in the amended petition is described by metes and bounds and alleged to be that “known as the Erskine property.” So that under the ruling in Sanders v. McNutt, supra, the designation in the memorandum of “the Erskine property” would be sufficient. On page 412, it is stated:

“In view of the facts and circumstances (alleged and admitted by the demurrer to be true) preceding the making of the paper writing and the signing thereof by defendant, we conclude that the terms of the contract to sell are reasonably set forth; that the property is sufficiently identified as against a general demurrer; and that under the averments of the amended petition evidence may be adduced to prove that it was the plaintiffs and the defendant who entered into the agreement for the purchase and sale of the property involved.”

If the court so concluded as to the memorandum there considered, we think we are bound to extend to the memorandum now considered by this court equal latitude of construction in favor of qualifying such memorandum within the requirements of the statute.

There are two matters involved in the memorandum here considered which require some comment. It will be noticed that the memorandum makes provision for “a complete contract” to be “drawn up acceptable to all concerned.”

In the amended petition it is alleged “$14,000 [to be paid] upon the signing by said parties of a paper writing to be prepared, or caused to be prepared by said agent, containing the terms and conditions of said oral agreement in technical language, in form acceptable to both parties.” It is apparent, therefore, that the later draft of the contract “in technical language” was to embody the terms of the oral agreement “concluded and entered into,” and that it was the mere form and not the substance of the contract which was to be “acceptable to both parties.” 12 American Jurisprudence, 522, “Contracts,” Section 25.

The allegations of the amended petition are clearly to the effect that a verbal contract, now sought to be specifically enforced, was “concluded and entered into,” and that the written memorandum and the contract in technical language were to be merely evidence of such oral agreement.

It is alleged in the amended petition that the contract was drawn up in technical form and presented to the seller, who failed to sign it as agreed. No valid reason for refusal to sign appears in the allegations of the amended petition.

The memorandum also mentions an option in the seller to choose an acre of ground for his personal use in connection with his occupation of the residence or the real estate involved.

The defendants claim such acre must be specifically described, in order to permit a decree. We think not. If the seller did not exercise such option within a time specified in the decree, he could be foreclosed from that privilege, or the right of determination could be extended to the purchaser. 81 Corpus Juris Secundum, 525, “Specific Performance,” Section 46.

As noted in Sanders v. McNutt, supra, consideration of the case is limited to action on a demurrer to the amended petition.' A court of equity will take into consideration the finality of a decision adverse to the plaintiff upon the demurrer as compared with the privilege of answer and trial accorded the defendant upon action favorable to the plaintiff on the demurrer.

The demurrer will be overruled and the defendants given 15 days to plead further.

Demurrer overruled.

Ross and Hildebrant, JJ., concur.

Matthews, P. J., concurs in result of opinion.

(Decided December 6, 1954.)

On The Merits.

Hildebrant, J.

This appeal on questions of law and fact is now presented to this court upon the evidence and exhibits offered at the trial, together with certain depositions.

The ultimate relief prayed for in the second amended petition filed in this court is for specific performance of an alleged oral agreement for the sale of real estate, and, if necessary, reformation of the memorandum in writing upon which the plaintiff relies to take the case out of the statute of frauds.

The memorandum relied upon is in the words and figures following:

“Memorandum of Sales Contract — Erskine Property
“The price of the Erskine property is $85,000 to be paid as follows:
“$1,000 to be paid when this memorandum is approved by both the seller and the buyer, with the understanding that complete contract will be drawn up acceptable to all concerned, at which time the balance of $14,000 will be paid constituting the first payment on this property.
“It is understood that the subdivision will be called Erskine Subdivision.
“The sale of the property will be made on a land sales contract and lots will be .released and deeded free and unencumbered and the buyer will pay at the rate of $35 per front foot, and the property released must be paid for at the rate of $14,000 per fiscal year and interest will be paid on the balance of the purchase price at the rate of 3% per year, and this to be paid semi-annually. The seller will pay all taxes and assessments that are payable in June 1951, and the buyer to pay them thereafter.
“The seller will have the privilege to live in the present residence with an acre of ground as long as he lives or chooses to remain on this property. This privilege is not transferable.
“It is understood that the seller may farm any or all of this tract of land without paying rent, with the full understanding that it can be taken over by the buyer whenever he may require it for development purposes.
“If there should be any restrictions on account of declared war or otherwise by the government and the buyer cannot build houses to cost more than $24,000, the annual payments will be reduced 50%, which automatically will extend the final payments.
“Date June 5 51 . (Sgd.) James Erskine
“Hotze, Kuntzler & Co.
“(Sgd.) A. J. Hotze, Treas.”

With reference to the ancillary prayer, for reformation of the memorandum, the court adheres to its former conclusion upon the reasoning and authority expressed through Ross, J., in its opinion on demurrer to the amended petition herein, that no reformation of the memorandum here may be had.

The applicable portion of the statute of frauds, Section 1335.05, Revised Code, provides: “No action shall be brought whereby to charge the defendant * * * upon a contract or sale of lands, tenements, or hereditaments, or interest in or concerning them, * * * unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith * * *."

It is fundamental that the minds of the parties must have met in a completed oral agreement before any memorandum thereof could be effective against the statute of frauds. It is therefore essential that the memorandum show such agreement with reasonable completeness, definiteness, and certainty as to the subject matter and essential provisions of the alleged contract. If it fails to describe the subject matter sufficiently or shows that there are essential provisions yet to be agreed upon, it is too indefinite and uncertain to be specifically performed.

On its face, the memorandum here fails to show completeness of assent to an existing oral agreement, but rather negatives assent by providing that a complete contract would be drawn acceptable to all concerned, and that the sale will be (in the future) made on a land sales contract.

That all of the essential provisions of the land sales contract were not agreed upon is clearly shown in the record by plaintiff’s own evidence, by plaintiff and defendant Erskine going on the land after signing the memorandum and discussing alternative plans of a sale of only a portion of the premises with the remainder to be acquired after the death of Erskine. Nor was any agreement on the location of the one acre to be withheld ever completed.

It is stated in 12 American Jurisprudence, 519, Section 23:

“A contract is not made so long as, in the contemplation of both parties thereto, something remains to be done to establish contract relations. The law does not make a contract when the parties intend none, nor does it regard an arrangement as completed which the parties thereto regard as incomplete. A binding contract is not made by a memorandum which shows upon its face that the minds of the parties have not met and that it does not express a completed agreement, but states terms which, if accepted, would be the foundation of further treaty between the parties with reference to essential particulars which, when agreed upon, would form part of a contract. ’ ’ We construe this memorandum rather as an agreement to reach an agreement which imposed no obligation on the parties thereto. Rosenfield v. United States Trust Co., 290 Mass., 210, 195 N. E., 323, 122 A. L. R., 1210.

It appears also upon its face that no sufficient description or location of the land is contained in the memorandum. In 19 Ohio Jurisprudence, 605, Section 78, the text is:

“The memorandum must contain a description of the subject matter; an omission thereof is a fatal defect. If an insufficient description is given or there is no description, oral evidence is not admissible in aid of the memorandum, because the court will never receive such evidence both to describe the land, and then to apply the description.”

Upon Ohio authority in support of the foregoing conclusions found in Kling, Admr., v. Bordner, 65 Ohio St., 86, 61 N. E., 148; Schmidt v. Weston, 150 Ohio St., 293, 82 N. E. (2d), 284; and Sherman, a Minor, v. Johnson, 159 Ohio St., 209, 112 N. E. (2d), 326, the relief prayed for must be and it is denied.

In view of the foregoing, the court finds it unnecessary to consider other contentions made in the case.

A decree similar to that entered in the Court of Common Pleas may be presented.

Judgment accordingly.

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