author: Carpentee, J.

text:
    The State of Ohio, Appellee, v. Berkman et al., Appellants.
    (No. 4053
    Decided December 11, 1944.)

      Mr. J. H. Nathanson, director of law, and Mr. J. J. McCarthy, for appellee.

      Messrs. Hackett & Lynch and Mr. Frank M. Hackett, for appellants.
   Carpentee, J.

In the Municipal Court of Toledo, it was charged that on April 6, 1943, defendants “Sam Berkman & Jacob Berkman, did keep a room to be used for gambling at 248 Superior St., Toledo, 0., contrary to Section 13054, General Code.” On demand of defendants, trial by jury was had-in which the’ state sought to prove that the type of gambling charged was “numbers game.” The verdict was guilty and sentences were imposed which were affirmed by the Court of Common Pleas.

On appeal on questions of law, several assignments of error are presented.

1. On the voir dire, several prospective jurors stated that they had fixed opinions that “numbers game” was gambling and that they would have to be shown it was not, others that they belonged to church 'organizations which were opposed to gambling. Defendants exhausted their peremptory challenges, and some of those persons, over defendants’ objections, were sworn as members of the jury, but just before that was done the court asked each member of the panel if in spite of his opinion he could hear all the evidence and instructions as to the law and render an impartial verdict and the answers were “yes”; then the further question “I will ask each and every member of the jury if there is any reason whatsoever that will prevent you from rendering an impartial verdict after hearing all of the evidence and after having been instructed by the court as to what the law is” and the answers were “no.”

Section 13443-10, General Code, imposed on the court the duty to make such examination, and the fact that it admitted those jurors indicates it was satisfied they could render an impartial verdict. Goins v. State, 46 Ohio St., 457, 21 N. E., 476 (paragraph two of the syllabus); Sections 13443-8 and 11419-53, General Code, invest the trial court with a very broad discretion as to qualifications of jurors. Lindsey v. State, 69 Ohio St., 215, 69 N. E., 126, paragraph two of the syllabus; State v. Huffman, 86 Ohio St., 229, 240, 99 N. E., 295, Ann. Cas. 1913D, 677.

2. Over the objection of defendants, a police officer testified that he had played the numbers game, had watched it played by others and was .familiar with it, and, in detail, described it to the jury. In substance, it is a game wherein the players bet that a certain combination of numbers will appear in the total bond or stock sales for the day on the New York Stock Exchange.

In Fields v. State, 4 N. P. (N. S.), 401, 17 O. D. (N. P.), 16, a gambling game called “craps” was involved in the charge and Judge Dillon concisely stated the law regarding this type of evidence as follows:

“Laymen who are called to serve as jurors are not presumed to be familiar with the various games of chance which are by law made unlawful, and therefore the subject is not one of such common occurrence as would preclude expert testimony. In all such cases the state has a right to call those who are familiar with such games to explain what acts are embraced in and constitute the particular game complained of.”

The evidence also meets the requirements laid down by this court in City of Toledo v. Johnson, 72 Ohio App., 46, 50 N. E. (2d), 675, in which it was decided that “number game” not being one enumerated in the statute as gambling, it was incumbent on the state charging it to be so, to prove it.

3. It is urged that “numbers game” is not “gambling” as the term is used in Section 13054, General Code, but is a lottery and as such can be prosecuted only under Section 13064, General Code. The material part of Section 13054, General Code, is:

“Whoever keeps a room * * * to be used or occupied for gambling * * * shall be * * *.”

The word “gambling” is used here in its broad or generic sense. Gamble means “To stake money or any other thing of value upon an uncertain event.” Webster’s New International Dictionary. A lottery is a specific type of gambling. This charge is not that the defendants gambled, but that they “did keep a room to be used for gambling.”

4. Over the objection of defendants, the state offered evidence tending to prove that from January 1943 to April 1, 1943, the individual defendants and their clerks in their news stand and magazine store at 24§ Superior street, had been arrested numerous times and had pleaded guilty to charges of violating the gambling laws in their store. That charge involves the question of the “motive” or “intent” with which they kept the room in question, and also their “scheme, plan or system in doing” so, and such evidence came within the provisions of Section 13444-19, General Code, and was competent for that purpose, and its use by the jury was so limited by the court in its charge.

5. By timely motions, defendants asked for directed verdicts at the close of the state’s evidence and at the close of all the evidence. This raised the question whether there was any evidence of the crime charged to submit to the jury. (It is not claimed that the verdict was against the weight of the evidence.)

As stated above, there was evidence that over a period of nearly three months prior to and including April 1, 1943, these defendants operated a newspaper and magazine store at 248 Superior street, that during such time they and their clerks had plead guilty to numerous separate charges of gambling by means of the numbers game, and that they had in the store advertising, literature, stationery and records used in that connection.

That charge had reference to the status of the store room in question in respect to gambling therein, and there was much evidence that prior to April 1st it was so used. Under the principle of evidence stated in Industrial Commission v. Carden, 129 Ohio St., 344, 195 N. E., 551, that when a state of things is once established it continues for a reasonable time thereafter unless the contrary is shown, it may well be inferred that on April 6, 1943, the day on which' the charge was laid, the same condition existed that did exist on April 1,1943, and for weeks before that. The defendants did not testify and offered no evidence to show the contrary to such inference.

A large number of exhibits were received by the trial court which are not now in the récord. Counsel have restored part of these, but from all of the record it is apparent that error was not committed by the overruling of the motions to direct verdicts.

6. Objection was made to some of the prosecutor’s closing argument about a possible witness, Mr. Gray. Only a fragment of that argument appears in the record, and from what is there, it appears that the prosecutor’s remarks were in answer to something that had been said by defense counsel in their argument which is not in the record; hence, it is presumed that the court was right in overruling the objection.

Finding no prejudicial error, the judgment is affirmed.

Judgment affirmed.

Lloyd and Stuart, JJ., concur.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    The Ohio Edison Co., Appellant and Cross-Appellee, v. Warner Coal Corp., Cross-Appellant; W. H. Warner & Co., Inc., Appellee, et al.
    (No. 20335
    Decided December 5, 1946.)

      Messrs. Burgess, Fulton & Fullmer and Messrs. Slabaugh, Guinther, Jeter & Pfhieger, for The Ohio Edison Company.

      Mr. Carl G. Bachmann, for the trustee for Warner Coal Corporation.

      Messrs. Bulhley, Butter & Pillen, for W. H. Warner & Company, Inc.
   By the Court.

The plaintiff has appealed from a judgment entered against it at the close of the plaintiff’s evidence, and the defendant A. Spates Brady, as trustee in bankruptcy of the Warner Coal'Corporation, has cross-appealed from a judgment dismissing his cross-petition, entered at the same time.

In this action the plaintiff is seeking to charge W. H. Warner & Company, Inc., with responsibility for debts ostensibly incurred by the Warner Coal Corporation, a distinct legal entity.

A reading of the record discloses that for a considerable period before the happening out of which this action arose, W. H. Warner & Company, Inc., acted as selling agent for certain West Virginia coal mines and as such selling agent sold coal to the plaintiff. For reasons unimportant here the owners of the mines desired to sell them. The plaintiff was interested in preserving a source of coal supply and W. H. Warner & Company, Inc., was interested in continuing its relation as selling agent for the mines. They set themselves to the task of devising some plan to accomplish their respective desires. At first, they considered the plan of having the plaintiff buy the mines and employ W. H. Warner & Company, Inc., to supervise their operation. That plan was abandoned because of the unwillingness of the plaintiff to proceed. Then a plan was devised and executed, whereby the Warner Coal Corporation was organized. Its entire capital stock of $50,000 was subscribed and paid for by W. H. Warner & Company, Inc., and the plaintiff advanced $100,-000 as a prepayment on coal to be delivered. Another corporation, The Cleveland Cliffs Iron Company, advanced $50,000, also for coal to be delivered.

After the Warner Coal Corporation was duly organized it entered into a contract with W. II. Warner & Company, Inc., to act as selling agent and perform most of the management of the corporate affairs.

It is clear from the record that the purpose of W. H. Warner & Company, Inc., was to continue the relation of selling agent for the coal mines and not to become the owner thereof with its attendant responsibilities. That purpose must have been fully understood by the plaintiff. There is no doubt that all the forms of law were complied with at all times to accomplish that purpose, unless the .fact that W. H. Warner & Company, Inc., owned all the stock of the Warner Coal Corporation and, the two corporations had the same officers defeats that purpose.

While it is claimed that W. H. Warner & Company, Inc., usurped complete control of all the corporate functions of the Warner Coal* Corporation, we find that in the contract between the two corporations the ultimate authority of the board of' directors of the’ Warner Coal Corporation was expressly stipulated.

This is not a case of a mere mask behind which W. H. Warner & Company, Inc.,# was conducting its own business. The Warner Coa’l Corporation held the mines as lessee. It operated the business of mining the coal and had a substantial capital reasonably regarded as adequate to enable it to operate its business and pay its debts as they matured. Various unforeseen economic factors intervened to defeat this expectation.

It is undoubted law that a corporation may be formed, and usually is, for the specific purpose of avoiding liability and loss beyond the contribution to its capital. That is not a fraudulent intent. On the contrary, the law recognizes it as a purpose in conformity to sound public policy. In the case at bar, no other intent is disclosed and that intent was fully understood by the plaintiff at the time.

Of course, if the record disclosed facts showing that, through this parent corporation and wholly-owned subsidiary, W. Hi Warner & Company, Inc., was in fact the lessee of the mines and was operating them, that the wholly-owned subsidiary was simply its agent in the ostensible ownership and operation of the mines, and that W. H. Warner & Company, Inc., was the.undisclosed principal, a case of liability would be presented even in the absence of an*y other consideration. But no such case is presented here. The existence of the two corporations as distinct entities was preserved at all times. Nor were their properties, capital or business commingled.

As the law authorizes the creation of corporations for the purpose of limiting liability and as the Warner Coal Corporation was organized and conducted in conformity to such law, we are of the opinion that the Common Pleas Court was correct in holding that no case was presented for the disregard of the corporate entity and holding W. H. Warner & Company, Inc., liable for the debts of the Warner Coal Corporation.

We are of the opinion that the case of North v. Higbee Co., 131 Ohio St., 507, 3 N. E. (2d), 391, is dis-positive of this case on the point of disregard, of the corporate entities and precludes such disregard. There is nothing in the record indicative of any relation between these corporations other than that shown by the documents which preserved the corporate identity of each. Treating them as distinct entities, we find nothing in the evidence tending to prove that W. H. Warner Company, Inc., intended to or did incur a liability to the plaintiff.

We find no error in the action of the court in directing a verdict for W. H. Warner Company, Inc., and in entering judgment on the verdict. The judgment is, therefore, affirmed.

The bill of exceptions shows that, at the time the court sustained the motion of W. H. Warner Company, Inc., for a directed verdict, the court dismissed the action of The Ohio Edison Company against the Warner Coal Corporation and its trustee in bankruptcy, without prejudice, and particularly without prejudice to its right to proceed in the bankruptcy proceeding against the Warner Coal Corporation or its trustee in bankruptcy, to which The Ohio Edison Company did not except; and that the court dismissed the cross-petition of the trustee in bankruptcy against The Ohio Edison Company, to which the trustee in bankruptcy excepted. The trustee by his cross-appeal seeks to have that judgment of dismissal reversed.

The plaintiff had been given full opportunity to prove its cause of action against the defendants and had failed. That was the justification for the court’s action in entering judgment against it. The Warner Coal Corporation and its trustee had been given no such opportunity to prove their cross-petition. The trial of the issues raised by the cross-petition and the answer thereto had not begun. That fact seems to have been overlooked by the trial judge.

No reason was assigned for the dismissal, blit we get the impression from what was done that the court was of the opinion that no cause of action was stated in the cross-petition. However that may be, the fact remains that the effect would be to adjudge the merits of the claim without trial and without the opportunity to invoke the discretion of the court to allow an amendment to' the cross-petition, should it be determined that the cross-petition does not state a cause of action.

For these reasons, the judgment on the cross-petition of the trustee in bankruptcy is reversed and the cause remanded for further proceedings thereon.

Judgment accordingly.

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

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


text:
    Mowen, Appellee, v. De Dario, Appellant.
    (No. 4013
    Decided April 1, 1947.)

      Mr. Richard T. Savage,-for appellee.

      Mr. David T. Keating, for appellant.
   By the Court.

This cause is submitted on motion by the appellee for an order either (a) to dismiss this appeal, which is not from a final order or (b) that appellant be required to file a new bond in sufficient amount in accordance with the provisions of Section 12223-16, General Code.

The record discloses that on February 27, 1947, an entry was signed in the Common Pleas Court dismissing the appeal for want of prosecution. On March 3, 1947, the appellant filed a motion for a rehearing, which we consider is a motion for a new trial. To that application the appellee made reply asking the Court of Common Pleas to deny the application and to award damages to the appellee in accordance with the provisions of Section 12223-35, General Code. Such application and reply thereto are still pending in the Court of Common Pleas and have never been ruled upon. The notice of appeal is directed to the order of dismissal under date of February 27.

Since the motion for a rehearing is still pending-in the Common Pleas Court, the order of dismissal of February 27 has not become a final order, and the notice of appeal was prematurely filed. See Section 12223-7, General Code.

The motion to dismiss is sustained and the costs of this appeal are to be taxed against'the appellant.

Motion sustained.

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


author: Doyle, J.

text:
    Harris, Appellant, v. Harris et al., Appellees.
    (No. 3740
    Decided December 28, 1945.)

      Messrs. Brouse, McDowell, May £ Bierce, for appellant.

      Messrs. Foust £ Holden, for appellees Alice Harris, Stanley B. Harris, a minor, and W. E. Holden, guardian ad litem.

      Messrs. Wise, Roetsel £ Maxon, for appellees First-Central Trust Company, trustee, Dudley W. Maxon, executor, and Dudley W. Maxon, trustee.

      Messrs. Slabaugh, Guinther, Jeter £ Pflueger, for appellee Austin D. Harris.

      Messrs. Carson £ Roderick, for appellee Mary Dailey.
   Doyle, J.

This cause involves the right of a widow to a distributive share under the laws of descent and distribution in personal property conveyed by a husband in a trust inter vivos to a designated trustee, and the remainder at his death to persons other than his wife of 39 years marital status, in which the husband had retained certain rights and poweys, including the income thereof and the power of control, modification and revocation.

Stanley W. Harris died in 1942, leaving a wife (the petitioner herein) surviving. There were no children. His will, executed in 1940, directed an annual income of $5,000 to be paid to his wife out of the net income of a testamentary trust fund consisting of the residue of his estate. The corpus of the fund was to remain intact, and upon the death of the wife was to be “divided and paid in equal proportions, share and share alike,” to a nephew and a niece.'

Shortly after the death of the testator, it became apparent that the income from this testamentary trust would permit payment of but a small fraction of the designated annual income. The widow then elected to take under the laws of descent and distribution and forego the provisions of the will, as was her legal right under the provisions of Section 10504-55, General Code.

In addition to a share of the property of which the testator died actually seized, it is the claim of the widow that she is also entitled to a distributive share in about $75,000 worth of property or its cash equivalent in the hands of and in the name of a trustee, appointed through the medium of a trust inter vivos executed in 1939 and prior to the time of the execution of his will.

Under the • provisions of this trust, the settlor assigned and conveyed 100 shares of the capital stock of the McNeil Machine & Engineering Company to D. W. Maxon as trustee, and powers were given the trustee to enter into an agreement with all of the other stockholders of the company (four in number), whereby all of the stock in the company would be assigned to the five holders of the legal title thereof (the trustee and the four other stockholders), who would act as trustees, with a single certificate evidencing such ownership. The indenture further provided for the voting of the stock by the trustees and for the remitting to the settlor of all dividends paid on his proportionate share, as well as the right to call upon the said settlor for any contributions required.

Directions were given for the receipt of the settlor’s stock, together with any monies, securities or other property payable, by the trustee — Maxon—in the event of the termination of the trust otherwise than by the settlor’s death. Upon the death of the settlor, the trustee was given various directions, among which was a direction to pay one Mary Dailey $100 a month for the remainder of her life, the amount to he taken “first from income and then from principal, if the income is insufficient,” and after the death of Mary Dailey to give the balance of the estate to a nephew and a niece, with specific directions for the distributon of the property in the event of the death of either one or the other.

The. instrument then continued with the following reservation of power to the settlor: •

“At any time or times during my life to revoke the settlement hereby evidenced, either in whole or in part, as well as the right to modify in any respects the terms of such settlement. Any modification or revocation, however, shall be by written instrument signed by me and delivered to the trustee, and to whatever extent this settlement may be so revoked, the trustee shall thereupon surrender and deliver, 'to me such portion or all of the property as may he the subject of such revocation.”

In conformity to the terms of the foregoing trust, a second ‘agreement was entered into between Maxon, the trustee, and the other stockholders, each of whom owned the same number of shares as did Harris — to wit, 100. Under this agreement each placed in trust his shares, and one certificate for all outstanding stock (500 shares) was issued to them jointly. The stockholders became trustees of all of the stock. This indenture further provided for the termination of the trust established upon the death of any one of the trustees or the death of Stanley Harris.

This agreement, with certain modifications, remained in effect until the death of Harris, and Harris acted until his death as the president of the company and received a substantial salary in payment for his services.

While there are many paragraphs devoted to the duties of Maxon, the trustee, in connection with the affairs of the settlor, the record shows that Harris, the settlor, engaged in the business of operating the company, along with the other stockholders, and that the activities of his trustee were of a minor character.

Although the foregoing recitation of facts is but a short and incomplete summary, we believe it is sufficient for the. purposes of this opinion, and attention is now directed to the question of the wife’s right, if any, to participate, under the laws of descent and distribution, in the approximate $75,000 worth of property now in the hands of the trustee Maxon and held by him for distribution under the indentures heretofore mentioned.

The trial court held that the wife was not entitled to participate in the corpus of the trust, and this appeal on questions of law and fact was then perfected.'

It is a rule of law of long standing that a husband during his lifetime has the right to entirely dispose of his personal estate without the consent of his wife. And it may be accomplished through the meditan of a trust inter vivos as well as by an outright gift. It arises as a consequence of that absolute power which a person possesses over his own personal property and the accompanying right or power of disposition, unless the rights of creditors intervene.

What effect, if any, upon this right does a reserved right to all income, as well as a reserved unrestricted right of revocation or modification of the entire trust, have?

The Ohio statute (Section 8617, G-eneral Code) provides :

“All deeds of gifts and conveyance of real or personal property made in trust for the exclusive usé of the person or persons making the same shall be void, and of no effect, but the creator of a trust may reserve to himself any use of power, beneficial or in trust, which he might lawfully grant to another, including the power to alter, amend or revoke such trust, and such trust shall be valid as to all persons, except that any beneficial interest reserved to such creator shall be subject to be reached by the creditors of such creator, and except that where the creator of such trust reserves to himself for his own benefit a power of revocation, a court of equity, at the suit of any creditor or creditors of the creator, may compel the exercise of such power of revocation so reserved, to the same extent and under the same conditions that such creator could have exercised the same.”

The Supreme Court of Ohio, in its latest interpretation of the effect of this statute upon a wife’s interest, states:

“1. A husband may dispose of his personal property during his lifetime without the consent of his wife; but a husband may not bar his widow of her right to a distributive share of any property which he owns and of which he retains the right of disposition and control up to the time of his death.

“2. Section 8617, G-eneral Code, which provides that a revocable and amendable living trust ‘shall be valid as to all persons’ except creditors, does not deprive the settlor of all dominion over the trust res so that a widow electing to take under the statute of descent and distribution is barred from claiming a distributive share of the property in such trust.

“3. The transfer of property to a trustee under an agreement whereby the settlor reserves to himself the income during his life with the right to amend or revoke, is valid by virtue of Section 8617, General Code, but under such a trust agreement settlor does not part absolutely with the dominion of such property and his widow electing to take under the statute of descent and distribution may assert her. right to a distributive share of the property in such trust at settlor’s death.” Bolles v. Toledo Trust Co., Exr., 144 Ohio St., 195, 58 N. E. (2d), 381, 157 A. L. R., 1164.

The rationale of this decision is that, in this state, a husband cannot, through the medium of a trust inter vivos, cut off his wife from participating, under the laws of descent and distribution, in personal property transferred to a trustee under an indenture of trust in which he reserves to himself the income from the property and the right to control, amend or revoke it; and that, insofar afe his widow’s rights are drawn into issue, the settlor has not parted with such dominion over his property as to preclude her from claiming and receiving a distributive share out of the corpus of the trust.

In addition to being ruled in this decision by the sufficiently parallel Bolles case, supra, and the propositions of law therein set forth in thé syllabus, and independently of the arguments advanced by Judge Turner in support of the decision in that case, the members of this court are of the opinion that there is a public policy involved in protecting a wife’s interest- in personal property over which a husband has retained substantial dominion and control, the legal title to which has been conveyed by a trust inter vivos. (The term “public policy” is used in the sense of that which harmonizes with the morals of the time and with the established interests of society.)

The wife’s interest is not an interest in property which a husband possesses during his lifetime, but, as against cestuis que trustent, is a paramount right, growing out of the marital contract, which a wife possesses, that her husband shall not deprive himself of ownership of his personal property so as to shear her of the benefits thereof upon his death, while at the same time securing to himself, during his lifetime, the enjoyment of the income, dominion and the right of control; and, under circumstances where this right comes into conflict with the provisions of a trust of the kind presented in this case, the provisions of the trust must yield to the right of the wife to participate in the property in the trust; as to the remainder of the trust property, it will be administered under the terms of the indenture.

We do not deem it necessary to analyze or attempt to reconcile various decisions of the Supreme Court of this state on the subject involved. For the benefit of anyone interested in such analysis, we cite some of them as follows:

Worthington, Admr., v. Redkey, Exr., 86 Ohio St., 128, 99 N. E., 211; Union Trust Co. v. Hawkins, Admr., 121 Ohio St., 159, 167 N. E., 389, 73 A. L. R., 190; Cleveland Trust Co., Trustee, v. White, 134 Ohio St., 1, 15 N. E. (2d), 627, 118 A. L. R., 475; Schofield, Trustee, v. Cleveland Trust Co., 135 Ohio St., 328, 21 N. E. (2d), 119; Woodside Co. of Nevada v. Narten, 138 Ohio St., 469, 35 N. E. (2d), 777; Central Trust Co. v. Watt, 139 Ohio St., 50, 38 N. E. (2d), 185; Bolles v. Toledo Trust Co., Exr., supra.

See, also, Hayes, Admx., v. Lindquist, 22 Ohio App., 58, 153 N. E., 269; 16 University of Cincinnati Law Review, 194; 27 Cornell Law Quarterly, 411.

Decree accordingly.

Washburn, P. J., and Stevens, J., concur.


author: HtrRD, J.

text:
    Bayer, Appellee, v. The American Ship Building Co., Appellant.
    (No. 20383
    Decided November 4, 1946.)

      Mr. Abram M. Kaplan, for appellee.

      Mr. F. M. Secrest, for appellant.' '
   HtrRD, J.

The plaintiff, appellee herein, applied for an award under the Workmen’s Compensation Act for injury, due to “exposure to a very severe and cold rain,” alleged to have been sustained in the course of and arising out of his employment while working for the American Ship Building Company, a self-insuring employer under the Workmen’s Compensation Act. The claim was disallowed by the Industrial Commission which held on rehearing:

“That the claim be denied on rehearing because proof of record fails to show that the disability suffered by the claimant after Feb. 16, 1942, was the result of an accident sustained in the course of his employment within the meaning of the Workmen’s Compensation Act. ”

Upon appeal to the Common Pleas Court of Cuyahoga county, a jury being waived, a favorable judgment was secured by the plaintiff, which was in effect a reversal of the holding of the Industrial Commission.

The case is now before this court on appeal on questions of law.

It appears from the bill of exceptions that in the performance of his work, the plaintiff was engaged as a “chipper” in which work he used an air hammer and chisel to chip off metal “lugs” while working on a boat being constructed in the docks of the defendant company, appellant herein, in the city of Cleveland. This work was done in the open air. On the morning of February 16, 1942, plaintiff checked in at 7:58 a. m. When he commenced work in the morning it was cloudy and during the course of the morning it started to rain. He described the rain as a “hard rain and very cold.” According to a weather report in evidence there was on that day a rain fall of .79 during the 24 hours ending at midnight February 16, 1942, and the mean temperature was 42 degrees.

The plaintiff testified that in order to do this work it was necessary for him to lie down on a piece of iron and that in'doing so he became “wringing wet plumb all the way through. ’ ’ He testified that as a result of the condition of the weather he began to ache all over and wanted to go home and he finally did go home, checking out at 3:34 p. m.; that when he arrived home he went to bed and sent for a doctor who called on him and prescribed some medicine and instructed him to stay in bed; that the next morning he returned to work at 7:50 a. m. and, not feeling well, he left again at 8:13 a. m. and returned home and to bed; and that he was away from work from February 17 to March 2, 1942, on which latter date he returned to work and worked regularly until March 18, 1942, a period of something-over two weeks, during which time he worked eight hours a day. He was absent from work again for about three days and then worked eight hours a day on March 23, 24, 25 and 26, and on the next day, March 27, 1942, he worked only until 10 o’clock.in the morning at which time he went back home and to bed where he remained for a period of two weeks. On April 20, 1942, he was taken to a hospital.

The attending- physician, Harry L. Bard, testified in substance that he first attended the plaintiff about the middle of February 1942, and that the patient then gave him a history of “working down at the shipyards and it was very severe weather and he caught cold.” At that time the physician made a diagnosis of “pluerisy with possible pneumonia” contracted because of “exposure and cold.” Although Dr. Bard did not attend plaintiff at the hospital, it appears from the record that it became necessary to perform an operation known as a “thoracotomy” which necessitated the removal of several ribs from the plaintiff’s back in order to operate on his lungs and remove an abscess that had formed there. The record shows that the plaintiff was then unable to work until some time in October 1942.

As part of the cross-examination of plaintiff, the defendant produced weekly claim-reports made to the Washington National Insurance Company of Chicago for claims under a health insurance policy. Those reports were signed by Dr. Bard who stated therein that the patient quit work on March 28, 1942, and was first confined to his bed March 29, 1942. In two other reports Dr. Bard fixed the date of the first treatment as March 23, 1942, and stated that the patient was first confined to his bed on March 24, 1942.

In answer to a hypothetical question, Dr. Bard gave as his opinion that there was a causal relationship between the manner and conditions under which the plaintiff was required to work and the medical findings made by Dr. Bard, and that plaintiff’s condition was due to exposure.

Another physician who was called upon to give expert testimony, in answer to a hypothetical question gave as his opinion that the exposure to the wet and cold was certainly a precipitating fdctor in the onset of plaintiff’s illness which later resulted in empyema and necessitated the “thoracotomy.” Such physician further testified on cross-examination that where a person develops an infection in the chest due to germs, the question of resistance of the individual is an important factor.

We think the foregoing statement of facts is sufficient for an understanding of the decision in this case.

Despite some doubt naturally arising from the apparent discrepancies in the testimony of the attending physician as to when the illness of pleurisy first developed, we are constrained to give to plaintiff, as the trial court undoubtedly did, the benefit of a most favorable construction of the evidence. In so doing we think that the question fairly presented is whether a disability, arising because of exposure to a hard, cold rain, resulting in surgical treatment, constitutes an injury within the scope of the Workmen’s Compensation Act. The section (Section 1465-68, General Code) applicable to the facts is in part as follows:

“The term ‘injury’ as used in this section and in the Workmen’s Compensation Act shall include any injury received in the course of, and arising out of, the injured employee’s employment.”

That provision of the statute has been construed a number of times by our Supreme Court and Courts of Appeals.

From an examination of the authorities, we conclude that there is a line of demarcation between cases where there is merely a health hazard and cases where' there is a physical or traumatic injury, accidental in origin and character in the sense of' being a sudden mishap occurring by chance and not in the usual course of events. The first-mentioned cases are not compensable unless made so specifically by statute. The latter are compensable in keeping with the intention and purposes of the Workmen’s Compensation Act. People are exposed to the elements, particularly rain, in many ways and in all walks of life, and under varying conditions. Unless persons are protected by proper clothing, Such exposure may result in illness and disease. Because of such exposure people may develop a common cold which in turn may lead to sore throat, tonsilitis, bronchitis, pleurisy, pneumonia or other serious respiratory diseases.

The record in this case clearly shows, by the testimony of experts, that the presence of germs in the system may, because of lowered bodily resistance, result in illness to one person whereas another person because of a higher bodily resistance may suffer no ill effects. Can it be said that, in the case of the one person whose resistance may be low and who lacks the capacity effectively to combat the presence of germs in the body, illness may be considered accidental or traumatic? We think not. For the court to extend the Workmen’s Compensation Act to insure against general health hazards or to allow to employees benefits commonly allowed to beneficiaries under policies of health insurance would be, we think, tantamount to amending the statute by judicial interpretation and decision, thus violating the age old principle that the duty of courts is “jus dicere et non jus dare,” “to interpret the law and not to make law.” To enlarge the scope of the statute is exclusively the province of the General Assembly. It is our conclusion, under the state of facts in this case, resolving every doubt in favor of plaintiff, and the law as applied thereto, that the illness or disease suffered by plaintiff, being neither accidental nor traumatic in origin, is not compensable.

For this conclusion we believe there is unquestioned authority set forth in the cases of Malone v. Industrial Commission, 140 Ohio St., 292, 43 N. E. (2d), 266; Reynolds v. Industrial Commission, 145 Ohio St., 389, 61 N. E. (2d), 784; Industrial Commission v. Armacost, 129 Ohio St., 176, 194 N. E., 23; Industrial Commission v. Cross, 104 Ohio St., 561, 136 N. E., 283; Paxton v. Spicer Mfg. Co., 45 Ohio App., 359, 187 N. E., 193.

In the Malone case, at page 300, the court said:

“To restate the rule under the present statute, the term ‘injury’ as used in the Workmen’s Compensation Act, comprehends a physical or traumatic damage or harm, accidental in its origin and character in the sense of being the result of a sudden mishap occurring by chance, unexpectedly and not in the usual course of events, at a particular time and place.

“This court is still committed to the proposition that a compensable injury under the Workmen’s Compensation Act must be accidental and traumatic in character. This is necessary to differentiate compensable injury from diseasé which is not compensable unless caused by an injury, and except occupational diseases for which, special provision has now been made tinder the law. ’ ’

In the Reynolds case, the court, after quoting the first paragraph of the syllabus in the Malone case, said :

“* * * we must perforce recognize that the Workmen’s Compensation Act does not afford the same protection as a general health and accident insurance policy, and that a workman claiming compensation under the act must show a situation bringing him within its terms.”

In the Paxton case, the court held that death from pneumonia was not compensable under the Workmen’s Compensation Act unless proximately caused by physical injury within the course of the employment.

In the Armacost case, the court held there' was a distinction between medical and legal trauma, and that the medical trauma produced by a microbe coming in contact with an uninjured mucous membrane of the body was not such trauma as was contemplated by the Workmen’s Compensation Act.

_ In the instant case we find neither physical nor traumatic damage .or harm accidental in origin and character. Therefore it is the view of this court that the illness for which surgical treatment became necessary was not such as would entitle plaintiff to participate in the workmen’s compensation fund.

We conclude that the finding of the Industrial Commission was correct and that the judgment of the Common Pleas Court was prejudicially erroneous. The judgment of the Common Pleas Court is, therefore, reversed and final judgment is entered for the defendant.

Judgment reversed.

Skeel, P. J., and Morgan, J., concur.


author: Sherick, P. J.

text:
    Perkins et al., Appellants and Appellees, v. Trustees of Monroe Avenue Church of Christ, Appellees and Appellants.
    (Nos. 3926 and 3934
    Decided October 30, 1946.)

      Messrs. Davies & Davies, for appellants and appellees Fred C. Perkins and others.

      Mr. Frank C. Shearer and Mr. D. D. White, for appellants and appellees trustees of Monroe Avenue Church of Christ.

      Mr. Milton L. Farber, Mr. Stanley D. Robinson, Jr., Mr. Arthur Garfield Hays, Mr. Osmond K. Fraenkel, Mr. John D. Connor and Mr. Robert N. Gorman, for American Civil Liberties Union, amicus curiae.

      Mr. Edmund R. Paxton, amicus curiae.

      Mr. David Clayman, for Columbus Council for Democracy, amicus curiae.'

      Messrs. Pretsman $ Dilldn, for Eastwood Civic Association and others, amici curiae.

   Sherick, P. J.

The original action appealed by both plaintiffs and the defendant trustees of the church, hereinafter referred to as church, ivas to enjoin the church from selling or conveying the premises, over which the controversy rages, to any person other than a Caucasian, to evict one Lloyd L. Dickerson, the negro pastor of the church, therefrom, and to forbid the future occupancy and use of the premises, now occupied as the church parsonage, by any person other than a Caucasian.

It is at once apparent that plaintiffs’ complaint is twofold.

It, first, involves ownership and future sale and, second, present occupancy and future use.

The suit is grounded and relief sought upon a certain restrictive covenant appearing in the church’s chain of title. The trial court concluded that that portion of the covenant, dealing with sale and conveyance, was against public policy, contrary to law and was, therefore, void and unenforceable, and the court disallowed an injunction. However, the court held that that portion of the restrictive covenant, which dealt with occupancy and use, was in accordance with law. It ordered eviction of Dickerson and enjoined subsequent use and occupancy of the church by any one other than a person of the Caucasian race.

The defendant church answers the complaint and sets up some seven defenses. It asks for no affirmative relief, but requests that plaintiffs’ petition be dismissed. It is well to note at this point that plaintiffs do not plead that defendant church contemplates or threatens a subsequent sale of the premises to any person other than a member of the Caucasian race. The ultimate facts, as shown by the pleadings and evidence, are as follows:

In 1926, the owners of 29 lots on Ohio avenue in Columbus, Ohio, being all the lots within certain bounds, mutually agreed upon a plan to restrict the sale, use and occupancy of their properties. They quitclaimed their respective holdings to The Guarantee Title & Trust Company, which thereafter reconveyed to each owner his respective lot. Each of those deeds of reconveyance was duly recorded. The deeds contain the following covenant:

“Said grantee, as a part of the consideration for this conveyance, and for the mutual benefit of all’ of the owners of the lots on the east and west sides of North Ohio avenue, between the first alley south of East Broad street and the first alley south of East Long street, and of every other present and subsequent owner of a lot or lots in the territory above described for himself and his heirs, hereby covenants and agrees with the said grantor herein, its successors and assigns, that at no time prior to January 1, 1960, shall any lot or part of a lot, or interest in any of the premises located on Ohio avenue, as aforesaid, be leased, rented, sold or conveyed to any person or persons of any race other than Caucasian, nor shall any such person or persons other than Caucasian be permitted to occupy the same during that period, except as a servant of the occupant of any of said premises.

“And it is expressly agreed that if said grantee, his heirs, executors, administrators or assigns, or anyone holding or claiming by, through or under any of them, shall violate this condition, then these presents and this conveyance shall become null and void, and all the right, title, interest and estate in said premises shall immediately revert to and be revested in the grantor hereof, its successors and assigns, and it shall be seized as of its former estate herein as if these presents had never been executed, and may immediately re-enter, repossess and hold said premises as of a good estate in fee simple, and the grantor hereof hereby gives and grants to the present owners of any or all of the other lots in the location fronting on Ohio avenne in the territory above described, their heirs, executors, administrators and assigns, on a violation of the condition or restriction aforesaid, the right by proper legal proceedings to enforce the above condition, restriction and reversion. And the grantee hereof, by accepting this deed agrees to and with any or all of the owners of the other lots or parcels fronting on Ohio avenue in the territory above described, their heirs, administrators, executors and assigns, that they or anyone or more of them may enforce by proper legal proceedings the aforesaid condition, restrictions and reversion; and the above condition and restriction shall until January 1, 1960,-be considered as running with the aforesaid real estate hereby conveyed and shall be made a part of all deeds and conveyances, instruments, leases, transfers, assignments and agreements made by the said grantee, his heirs, executors, administrators or assigns, or any of them of said premises.”

“This deed has been executed pursuant to a general plan for the establishment of a highly restricted neighborhood and for the improvement and betterment of all the lots hereinbefore described and the covenants in this deed are entered into as a part of a general plan for the benefit of each lot owner, therefore the grantor and grantee herein covenant, with all deeds, conveyances and contracts of sale for said lots shall recite the conditions and restrictions herein contained. ’ ’

On or about June 29, 1945, lot No. 6, having thereon a single residence, was owned and conveyed by Amelia Cipriano to Constance Conners, who on the same day conveyed it to a realty company which in turn conveyed it to the defendant church, an Ohio corporation not for profit. The church congregation is largely made up, but not entirely, of colored people. Dickerson took part in the purchase negotiations and knew of the deed restrictions. The church and its negotiating agents had at least constructive notice of the restrictions fróm the recorded deeds in the church’s chain of title.

First, we shall consider'the claim of plaintiffs that the trial court erred in holding plaintiffs were not entitled to an injunction restraining the church from selling and conveying lot No. 6 to any person other than a Caucasian..' It is the judgment of this court that the trial court did err in passing upon that question and in its failure to dismiss that branch of plaintiffs’ case in accordance with the prayer of defendant church’s .answer, for the reason that a declaratory judgment was not asked for and, under the state of the pleadings and the proof, the question was not made. As previously pointed out there was no threatened sale in the offing contra to the restrictive cove-' nant, and the church’s uncontroverted fourth defense was a complete and sufficient answer to plaintiffs’ claimed impropriety in the church’s purchase and ownership of lot No. 6: Such fourth defense reads:

“Defendants further answering say that the corporation, defendants herein, has no racial identity because the corporation is an entity separate and apart from the members thereof. ’ ’

Whether a corporation for profit or not for profit is the creature of fact or fiction, as said in 1 Fletcher Cyclopedia Corporations (Perm. Ed.), 84, Section 25, “artificial personality is a corporate attribute * * *. It is generally accepted that the corporation is an entity distinct from the shareholders or members and with rights and liabilities not the same as theirs individually and severally.”

That authority further states, ibid., 105, Section 28, that “ ‘its members, as natural persons, are merged in the corporate identity,’ ” and at page 111, Section 31, it is further observed that “the property of the corporation is its property, and not that of the stockholders, as owners,” even though such shareholders or members may have some' equities in it.

The high court of this state has recently quoted in Voeller v. Neilston Warehouse Co., 136 Ohio St., 427, 432, 26 N. E. (2d), 442:

“'A stockholder and the corporation of which he is a member, are separate and distinct persons in law, and their interests are always distinct and sometimes adverse.’ ”

Shareholders and members of most corporations are constantly changing. The entrance and exit of new and old members or shareholders in no wise affect the title or ownership of corporate property. It ought to be clear that a corporation as a legal entity can have no racial identity. The defendant church has a mixed congregation. The church was not non-Caucasian or negro within contemplation of law. Nowhere in the restrictive covenant do we find that it contemplated nonsale of restricted property to a corporation composed in whole or in- part of non-Caucasian shareholders or members. We believe it well settled that it is not the policy of courts of either íaw or equity to enlarge restrictive covenants to embrace matters therein which are not specifically contemplated or clearly stated. We do not perceive wherein the realty company or defendant church violated any provision of'the restrictive covenant. Neither do we find any fact that should cause a court of equity to disregard the theory of separate entity.

The case of Peoples Pleasure Park Co., Inc., v. Rohleder, 109 Va., 439, 61 S. E., 794, is directly in point. The park company was a corporation organized and controlled by negroes for the purpose of operating a place of amusement for colored people. It purchased a tract of ground which bore a restriction that it could not be sold to' colored persons. In an action to enforce the covenant, the court held:

“A restriction in the conveyance of land to tbe effect that ‘the title of this land is never to vest in a person or persons of African descent, ’ or ‘ colored persons’ is not violated by a subsequent conveyance of the land to a corporation, organized ‘to establish and develop a pleasure park for the amusement of colored people.’ The contemplated use is not prohibited by the restriction nor is,the title conveyed to a forbidden person.”

The English case of Continental Tyre & Rubber Co., Ltd., v. Daimler Co., Ltd. (1915), 1 K. B., 893, is of passing interest. In that case, a company was incorporated in England and carried on business in London. It was subsidiary to a German corporation. All shares of the English company, save one, were held by German subjects residing in Germany. It was held that war did not change the character of such company, even though all its shareholders were nonresident alien enemies; that having been created in accordance with law, it remained an English corporation.

We cite that case to show to what length English courts have gone even in times of war to hold that “a stockholder and the corporation of which he is a member, are separate'and distinct persons in law,” as was held in the Voeller case, supra.

We now come to that feature of the instant case, of which the church complains in its appeal. Is the covenant against use and occupancy by non-Caucasians invalid, either in that it is contrary to law and antagonistic to federal or state constitutional provisions, or repugnant to public policy?

This state has long held to the rule, as expressed in Anderson v. Cary, 36 Ohio St., 506, 38 Am. Rep., 602, that a restriction against alienation, even for a limited time, is void as repugnant to the grant and contrary to public policy. That case concerned a limitation found in a devise of property. The principle is the same as that found in tbe leading case of Mandlebaum v. McDonell, 29 Mich., 78, 18 Am. Rep., 61, wherein that illustrious court of the three C’s, Cooley, Campbell and Christiancy, held that restrictions upon alienation for any length of time are void, principally for the reason that they are repugnant to law and settled public policy.

Other jurisdictions hold that a certain limitation in point of time cures the evils of such restrictions.

These remarks, of course, pertain to alienation and not to user, between which there is a marked distinction. One may own property and convey it away, yet he or his grantee may be limited in its use. It may be that the sale of liquor is forbidden on the premises; that a structure placed thereon shall not be of a lesser value than a specified sum; that any such building shall not be closer than so many feet from the lot or street line; or that improvements shall not be of a certain character. All such restrictive covenants are matters of individual contract which the parties carry into their conveyancing, prompted of course by financial caution or social security as they see it. Many such instances are found in reported Ohio cases, and the courts have consistently held such restrictions to be valid, recognizing the principle that, even if one does own property, he may not put it to any use that suits his fancy to the detriment of his neighbor with whom he or his predecessors in title have contracted otherwise. Although our highest court has never passed on the question of racial occupancy-restrictions,' it is a matter of common knowledge that such restrictions are frequent and extensive practice throughout the state.

Ohio has no statute on the subject. The court, in State, ex rel. Weaver, v. Bd. of Trustees, Ohio State University, 126 Ohio St., 290, 185 N. E., 196, voiced, what ought to be a self-evident truth, the following:

“The purely social relations of our citizens cannot be enforced by law; nor were they intended to be regulated by our own laws or by the state and federal Constitutions. ’ ’

The distinction must not be lost sight of between those rights and duties that exist by virtue of private contract and those which grow out of specific statutory recognition of public relationships. Examples of the latter are found in laws requiring innkeepers and restaurant proprietors to accommodate the public^ irrespective of race or color. See Sections 12940 and 12941, General Code.

Comparisons are odious; none are intended. Only for the purpose of developing that which is glaringly obvious do we inquire: Would anyone gainsay that one allotting and selling property for strictly residential purposes may not legally write into a conveyance, for the benefit of the purchasers and their assigns, a restrictive covenant against permitting the property to be occupied and used as a house of prostitution? The absurdity of an affirmative answer negates it. Yet even prostitutes are a class of our citizenry. If one class may by contract be denied the privilege of use and occupancy, why not another? White may exclude black. Black may exclude white.

It is written in 14 American Jurisprudence, 618, Section 208:

“All courts agree that a condition or covenant that property shall not be occupied by persons of certain races is not invalid as a restraint upon the alienation-of the property ***.'” ,

Even the Supreme Court of Michigan, which pioneered in Mandlebaum v. McDonell, supra, held in Schulte v. Starks, 238 Mich., 102, 213 N. W., 102, that although a restrictive covenant against alienation to a person of color is void, a restraint upon use and occupancy by a colored person is valid and enforceable. In the earlier case of Parmalee v. Morris, 218 Mich., 625, 188 N. W., 330, 38 A. L. R., 1180, the court quoted:

“ ‘The law is powerless to eradicate racial instincts or to abolish distinctions which some citizens do draw on account of racial differences in relation to their matter of purely private concern. For the law to attempt to abolish these distinctions in the private dealings between individuals would only serve to accentuate the difficulties which the situation presents.’ ”

To the same effect, see Ridgway v. Cockburn, 296 N. Y. Supp., 936, 163 N. Y. Misc., 511, wherein it is said in the ninth paragraph of the syllabus:

“It is not contrary to public policy for any group of individuals to contract among themselves for the exclusive enjoyment of their own private property.”

The Ohio Supreme Court, in P. C. C. & St. L. Ry. Co. v. Cox, 55 Ohio St., 497, 515, 45 N. E., 641, 35 L. R. A., 507, has taken a like stand. The court there stated:

“The liberty of contraqt, being one of those rights secured by our Constitution, is not to be restrained upon any insufficient or mere fanciful conceit of what may possibly happen. The citizen who is sui juris has a right to make a contract beneficial to himself when neither immoral, fraudulent nor illegal, and he should not be restrained,-in the exercise of such right unless the public welfare clearly compels it. ” '

We well recognize that vociferous minorities of our citizens, instigated by politicians not statesmen, clamor for judicial denial of private rights under the guise of public welfare which is to say public policy. However, the courts ought to be and are ever mindful of that basic thought which underlies representative democracy: “Hive all power to the many and they will oppress the few,, give all power to the few and they will oppress the many, so that each should retain within themselves the power for their own self-preservation.” That reservoir of protection is to be found in our guaranty, of constitutional rights, for example, the right to private contract, and in the hesitancy of the courts to be swayed by that which is seemingly popular for the moment but which finds little or no sound reason or precedent, either in law or equity.

Without gathering all the cases supporting the holdings of the Supreme Court of Michigan in their last two cases cited,-we direct attention to some few authorities *

White v. White, 108 W. Va., 128, 150 S. E., 531, 66 A. L. R., 518; Wayt v. Patee, 205 Cal., 46, 269 P., 660; Los Angeles Investment Co. v. Gary, 181 Cal., 680, 186 P., 596, 9 A. L. R., 115; Meade v. Dennistone (Maryland Court of Appeals), 196 A., 330, 114 A. L. R., 1227.

The church urges that the restriction against use and occupancy violates Article XIY, Amendments, United States Constitution, and Section 1, Article I of the Ohio Constitution. The case of Corrigan v. Buckley, 271 U. S., 323, 70 L. Ed., 969, 46 S. Ct., 521, ought to and does dispose of this oft asserted and indefensible claim. Paragraph four of the syllabus, of that authority unequivocally announces:

“The prohibitions of the Fourteenth Amendment have reference to state action exclusively, and not to any action of private individuals. Individual invasion of individual rights is not the subject matter of the amendment. ’ ’

Section 1, Article I of the state Constitution encompasses the right of private cotítract. A holding to the contrary would in fact place it in direct conflict with the federal guaranty of the right of private contract.

We are told that plaintiffs failed to prove the existence of a contract supported by a consideration; that privity is lacking; that conditions have changed; that the contract is vague and uncertain; and that there was a failure to plead or prove damages. Numerous well reasoned authorities may be found denying the efficacy of such arguments and claims all of which we find futile and of no avail. ■

Although the church appeals on questions of law and fact, its appeal has been treated, argued and presented as one at law. We shall so consider it. The decree of the trial court as to the restriction on sale is reversed. We enter the judgment that the trial court should have entered, that is, dismissal of that portion of plaintiffs’ complaint. The decree of the trial court as to use and occupancy is affirmed. If the church would have it otherwise, the same judgment may be entered as was done in the trial court. Judgment is rendered accordingly. Costs are assessed against the appellants in their respective appeals.

Judgment accordingly.

Putnam and Montgomery, JJ., concur.

Sherick, P. J., Putnam and Montgomery, JJ., of the Fifth Appellate District,' sitting by designation in the Second Appellate District.


text:
    The State of Ohio, Appellant, v. Earl G. Smith, Inc., Appellee.

      (No. 3950
    Decided March 7, 1947.)

      Mr. Hugh 8. Jenkins, attorney general, Mr. M. L. Schellenger and Mr. John M. Woy, for appellant.
    Mr. Walter J. Mackey, for appellee.
   By the Court.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin county. The action was brought by the Bureau of Unemployment Compensation of the state of Ohio against Earl G. Smith, Inc., to collect contributions, under the Unemployment Compensation Act, alleged to be due for the years 1937 to 1944, inclusive,, in a total amount of $1,258.83, with interest at eight per cent from various due dates.

In the' petition it is alleged that the defendant corporation was an “employer” as defined in the Unemployment Compensation Act (Sections 1345-1 to 1345-35, inclusive, General Code) and is liable for the contributions set out in the petition, which the defendant refused to pay.

The defendant in its answer denies that at any time during the calendar years from 1937 to 1944, inclusive, it was subject to the Unemployment Compensation Act, and avers that during such period defendant had only two employees who performed services which were covered by the act, and that, therefore, defendant was not an “employer” as defined in Section 1345-1 b (1), General Code.

The defendant in its answer specifically alleges the following:

“During the entire period above referred to, it had only two regular employees in addition to one individual who, during this period, was compensated on a commission basis, and who, in the performance of his work, was master of his own time and efforts and that the remuneration payable to him was wholly dependent on the amount of effort he chose to expend, and that by virtue of the nature of this work- any services performed by such individual is exempt from the unemployment compensation law under General Code Section 1345-1 c D (8).”

The issue presented is clear. Was the defendant an “employer” of three or more employees during the period in question, as contemplated by the act? The plaintiff introduced the findings of the Bureau of Unemployment Compensation showing the amounts alleged to be due from the defendant and rested. Under the provisions of Section 1345-28, General Code, the plaintiff made out a prima facie case. It was stipulated that the compensation paid to employees and the amount of contributions due are correctly set forth in the petition, if the defendant were liable under the act. It was further agreed that the sole issue in the case is whether the services performed by Earl G. Smith for the corporation came within the exclusion clause in Section 1345-1 c D (7), formerly 1345-1 c D (8), General Code. The trial court found that Earl G. Smith was compensated on a commission basis, was master of his own time and efforts and his remuneration was wholly dependent on the amount of effort he chose to expend; and that as a consequence the defendant was not an “employer” under the act. Judgment was rendered for the defendant.

Plaintiff has assigned four separate grounds of .error, all of which hinge on the failure of the court to find that the services of Earl G. Smith were included within the term “employment” as defined in the act.

To be amenable to the provisions of the act, the employer must have employed within a calendar year three or more individuals. Section 1345-1 b (1), General Code. The defendant admits that it employed two individuals, but denies it employed three employees, as alleged. Was Earl G. Smith an employee within the meaning of the act? The section defining “employment” (Section 1345-1 c, General Code) was amended several times during the period in question, but those amendments did not change the provisions of the exclusion clause applicable to the issue presented. The determination of this issue is controlled by Section 1345-1 c D (7), General Code, which provides:

“D. The term ‘employment’ shall not include: * * *

“ (7) service performed by an individual for one or more principals who is compensated on a commission basis, and who in the performance of the work is master of his own time and efforts, and whose remuneration is wholly dependent on the amount of effort he chooses to expend; * *

In order to exempt services under such section, it must be established, first, that the employee is compensated on a commission basis; second, that the employee is master of his own time and efforts; and, third, that the remuneration is wholly dependent on the amount of effort that such employee chooses to expend.

The evidence clearly shows that Earl G. Smith, Inc., was a corporation engaged in the business of selling-real estate and insurance in Akron, Ohio; that Earl G. Smith held a substantial part of the stock' and was president and general manager of the corporation; that the corporation employed a secretary and an office assistant; that the corporation employed several salesmen who were compensated solely on a commission basis; and that the business of the corporation was under the exclusive direction and control of Earl Gr. Smith.

Was Earl Gr. Smith an employee within the meaning of the act, or did his services and relationship with the corporation meet the test of the exclusion clause?

First, was he compensated on a commission basis? A part of the minutes of the board of directors of the defendant, under date of February 4, 1936, relates to the method used by the corporation-in compensating Earl G. Smith for his services and reads as follows:

‘ ‘ The president suggested that the directors should, in accordance with the bylaws of the company, fix the compensation of the officers of the company.

“Whereupon, it was duly moved, seconded and carried that the provisions hereto adopted regarding compensation of officers be amended to provide that the president be paid on a drawing account basis, chargeable against commissions earned for brokerage, loan and insurance business and that the secretary and treasurer be paid a salary of $1,800 per year, all other provisions to remain as previously written. ’ ’

That method of compensating Earl G. Smith for his services never changed. He was compensated on a drawing-account basis, chargeable against commissions. He drew as he needed the money and was not confined to a minimum or maximum amount. He was limited only by the amount in his commission drawing-account. He received no salary and derived all his compensation on the basis of commissions earned. We are of 'the opinion that the evidence clearly showed he was compensated solely on a commission basis.

Second, in the performance of his services was he master of his own time and efforts? It is contended that Earl G. Smith, being president and general manager of the corporation, acted under the direction of the board of directors of the corporation, and that with respect to such services he was not master of his own time and efforts. The evidence does not support that contention. On such matter Smith testified as follows:

“Q. In performing your services for the company, are you directed to go any particular place or perform any particular duties by anybody in the company? A. No, never.

“Q. Well, then, are you entirely on your own so far as your time is concerned? A. Yes.

“Q. You mean you go and come as you will? A. That is right.

“Q. And so far as clients or people with whom you do business, does anybody direct you as to whom you should see or whom you should interview or anything of that kind? A. No, I am the master of my fate.

“Q. What was that? A. As the poet says, ‘I am master of my fate.’ ”

Earl Gr. Smith, Inc., in truth and fact, was a one-man corporation. It was Smith’s business, and in the performance of his services he acted under the direction of no one. True, Earl GL Smith, Inc., is a corporation, organized under the laws of the state of Ohio and, as such, is a distinct entity. Under the law its board of directors is given authority to give directions to its officers and employees. The evidence does not show that the board of directors exercised its prerogative. This issue must b.e decided on the basis of the factual situation and cannot rest on a mere fictional relationship which existed between the corporation and its officers and employees. Whether Earl Gr. Smith was master of his own time and efforts is a factual matter. The undisputed evidence in this case shows that he was master of his own time and efforts.

Third, did his remuneration wholly depend on the amount of effort he chose to expend? It is contended that in addition to receiving commissions on his own sales he derived remuneration from the company for sales made by other salesmen. It appears that the defendant kept two accounts, a company commission account and a separate commission account for Earl G-. Smith, against which his withdrawals were chargeable. An effort was made to explain the bookkeeping system used by the defendant, which appears to be rather complicated. The evidence is not clear that Smith derived any remuneration from any other source except his personal commission account. On such matter he testified clearly and definitely that no part of the commissions earned on sales made by other salesmen was credited to his personal commission account. After' a careful consideration of all the evidence on this issue, we are not prepared to hold that the trial court was unjustified in finding that Smith’s remuneration was wholly dependent on the amount of effort he chose to expend.

The contributions paid under the act, being in the nature of a tax, we recognize and apply the rule which requires the court to construe the aGt, as it relates to liability for such contributions, most strictly against the state and in favor of the taxpayer. The cases cited by the state do not involvé the interpretation and application of an exclusion clause, which is the issue presented in the instant case, and, therefore, are not persuasive in the determination of this issue.

We have been furnished a copy 'of the well considered opinion of Judge Randall, in which he discusses very ably all the issues presented. We might well adopt it as our own.

We are of the opinion that Earl Gf. Smith was not an employee of the defendant, within the meaning of the act; that the defendant was not an employer of three individuals within the meaning of the act; and that, therefore, defendant was not required to make contributions as prescribed by the act.

As we find no error in the record, the judgment of ,the trial court is affirmed.

Judgment affirmed,.

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


author: Putnam, J.

text:
    The State, ex rel. England, Appellant, v. Trustees of Franklin Twp., Morrow County, Appellees.
    (No. 419
    Decided September 21, 1945.)

      Mr. T. B. Mateer, for appellant.

      Mr. Leon McCarty, for appellees.
   Putnam, J.

This appeal on questions of law is from a judgment of the Common Pleas Court refusing to grant a writ of mandamus for which the relator prayed and dismissing the petition at the relator’s costs.

We are confronted at the outset with a motion by the respondents to dismiss the appeal for the reason that the same was not properly perfected. To this question we shall first address our attention.

The complaint is that the notice of appeal referred to the order overruling the motion for a new trial which was not a final order, rather than to the judgment of the court on trial of the case. The chronology of events was as,follows: March 23, 1945, journal entry of decision of the court filed; motion for a new trial filed; March 29, 1945, journal entry overruling motion for new trial marked filed by the clerk but containing this notation in the handwriting of relator’s attorney, “April 5th/45 O. K. T. B. Mateer, Atty. for Relator”; April 5/45 notice of appeal and praecipe for transcript filed; April 6,1945, assignment of errors and brief of relator (appellant) filed.

It is thus evident that the notice of appeal was filed within the statutory time whether the motion for a new trial was considered filed either on March 29th or April 5th. Indeed it was within the time limited from the date of decision, March 23rd.

The notice of appeal is as follows, omitting the caption:

“The relator appellant gives notice of appeal to the Court of Appeals of the Fifth District of Ohio from the judgment rendered by the Court of Common Pleas of said county in the above entitled cause on the 5th day of April, 1945. Said appeal is upon question of law and fact.”

The appeal of course, must be considered one on questions of law. The respondents (appellees) rely upon the following cases as supporting their position: Covington Bldg. & Loan Assn. v. Yost, 31 Ohio Law Abs., 672; Haines v. Peffer, Admr., 31 Ohio Law Abs., 675.

Both of those cases were decided by the Second Appellate District Court of Appeals in May 1940. They were rendered obsolete by the decision of the Supreme Court in the.case of Mosey v. Hiestand, 138 Ohio St., 249, 34 N. E. (2d), 210, which fact was recognized by the same Court of Appeals in the case of State v. Brown, 68 Ohio App., 335, 37 N. E. (2d), 434, and later in the case of Fifty West Broad, Inc., v. Poulson, 41 Ohio Law Abs., 212, 57 N. E. (2d), 687.

In the case of Capital Loan & Savings Co., v. Biery, 134 Ohio St., 333, 16 N. E. (2d), 450, in which the judgment of this court was affirmed, the notice of appeal was incorporated in the judgment entry- overruling the motion for a new trial. The notice, while not commended, was held sufficient as no one was prejudiced thereby, there being only one court from which and to which an appeal could be taken. The same holding was made in the case of Bank of Elmore Co. v. Damschroder, 69 Ohio App., 15, 42 N. E. (2d), 781, wherein Judge Carpenter, speaking for the court, said that the notice of appeal which referred to the overruling of the motion for a new trial instead of the judgment of the court at the close of the trial, was not fatally defective and could be amended. In the instant case the appellees were not prejudiced, they had seasonable notice of this appeal and were granted two extensions of time in which to file briefs.

In view of the above considerations, we hold that the notice of appeal in this case is not fatally defective and is amendable under the provisions of Section 12223-5, General Code. Leave is granted so to amend and same is considered done.

This brings us to a consideration of the merits of the case on the errors assigned.

This was a suit by the relator in which he sought a writ of mandamus to compel the township trustees to comply with Sections 3370, 3374-2, 3375 and 7146, General Code, by cutting brush and briers and dragging and graveling a portion of a certain township road adjacent to his property. A demurrer to the petition having been interposed and overruled, the respondents, by answer, set up three defenses:

(1) That the relator had never filed a petition, signed by 51 per cent of the landowners along the road, with the trustees asking for its improvement and that same was jurisdictional;

(2) Lack of sufficient fund; and

(3) That the road had been abandoned.

The court, after full hearing of testimony, made the following findings of fact which are conceded to be correct as far as they go:

“1. The road in question is a township road located in Sections 16 and 17, Franklin township. Said road begins at state route 95 in Franklin township and continues west through Franklin, Gilead and Carding-ton townships.

“2. All of said road has been improved except for» a portion about one mile in length in Franklin township, which mile lies west of the relator’s farm, buildings. Starting at state route 95 and continuing west said' road is improved to the point where the relator’s farm buildings are located, is then unimproved for a stretch of approximately one mile to the point where the next residence on said road is located, there being no residences or buildings along said unimproved stretch. Said road is then again improved from the point where said next buildings are located on west through Franklin and into Gilead and Cardington townships.

“3. There has been no attempt to improve said road for many years. Very seldom has a car attempted to go through this stretch of road and it has for some time been practically impassable by reason of brush, briars, trees and its mud condition. The relator’s means of ingress and egress has been on the improved road going from his house east to state route 95 and the means of the other residents has been by use of the improved road from their houses west.

“4. The relator is the owner of land in Section 16, Franklin township, which he purchased on July 26, 1943, and is a taxpayer, householder and property owner along said road.

“5. There was no testimony of the trustees having been requested by any previous owner to improve said road; however, the relator has requested of the trustees that they improve said road and was told by them that they do not have sufficient funds.

“6. The defendants are the duly elected qualified active trustees of Franklin township.

“7. Said road is in need of improvement, maintenance, repair, dragging, and the cutting of brush, briars and weeds.

“8. There are also other roads in Franklin township which are in need of improvement, maintenance, repair, dragging and of having the brush, briars and weeds cut.

“9. The trustees of Franklin township received in 1944 the following amounts:

Road and bridge tax ..................$ 156.73

Gasoline tax........:................. 1950.00

State surplus from sales tax............ 747.94

and have received nontax money to date in 1945. All of said funds have been spent upon the roads of Franklin township. The township has no surplus road fund and while the trustees could repair and maintain the road in question they could do so only by their failure to care for other roads, since the funds received are not sufficient to meet all of the requirements of the statutes as to all of the township’s roads, nor to give the township roads the attention that they should have were the funds sufficient.

“10. The present tax rate in Franklin township is above the ten mill limitation.”

From these findings of fact the court found as a conclusion of law that the respondents, not having sufficient funds available with which to meet the requirements as to all roads in the township, could not be compelled by mandamus to fulfill their statutory duty as to that section of road when in their discretion they find it to be more necessary and expedient to spend the available funds elsewhere. The court held that in spite of the mandatory terms of the statute the matter was discretionary with the trustees. The court relied upon the following authorities: State, ex rel., v. Commissioners, 49 Ohio St., 301, 30 N. E., 785; Bd. of Trustees of Mifflin Twp. v. State, ex rel. Tucker, 38 Ohio App., 51, 175 N. E., 618; Garlinghouse v. Jacobs, 29 N. Y., 297.

The error complained of is that the judgment is contrary to law.

The record shows that the findings of fact need however to be supplemented in some respects as to detail such as :

(a) The unimproved roads of the township which have not been improved to the standard which permits gas tax money to be used thereon do not exceed five miles, including the segment in question.

(b) The road in question has been improved to such standard except the one mile segment herein involved which is between the improved portions.

The broad general statements of the law as outlined in the opinion of the lower court are generally sound. Their application to the facts in question, however, needs to be further examined.

It is first to be observed that the language of the statutes involved is mandatory in character. The word “shall” is used in all of them.

It is true that a writ of mandamus cannot be used to control the discretion of administrative bodies where such discretion is allowed by law. It is, however, likewise true that this writ is intended to control the abuse of that discretion. It is true that where a positive duty is imposed upon an administrative body by statute and the performance of that duty is rendered impossible by lack of funds or by a situation under which the performance of the duty would cause a violation of another law, the performance is not required. (See 46 A. L. R., 257, at page 267.)

Of all the defenses set up by the respondents none need here be considered except the one of lack of funds. The first is clearly no defense; the one of abandonment is contrary to the facts, as the road is now and has been for many years a legally established and existing township highway including the segment in question. The defense of a lack of funds, if maintainable under the law would be a good defense. Consequently an inquiry must be directed to the question as to whether under the law there is and has been such a lack of funds as to render the performance of this duty impossible and if not impossible whether the continual diversion of funds which were available for the performance of the duty was an abuse of discretion such as should be corrected by the use of this writ. Inasmuch as the use of gasoline tax funds on township highways is subject to the approval, to a certain extent, of the county engineer and he is not a party to this suit, the consideration of that source of revenue will be eliminated from this controversy. This leaves us to the application of other funds available within the limitations allowed by law. It must be remembered that this one mile segment of road is situated between improved segments on both sides and has deteriorated into its present condition through gradual neglect over many years so it is now impassable and requires the relator to travel seven miles to get to his neighbor one mile distant.

During the year in question the funds available for the five miles of road of the type of this segment were about $900. In previous years and in years to come possibly there may. be available one-fourth that amount. However, it is entirely possible for the respondents, if proper arrangements are made with the county engineer, to make available more funds from gasoline tax money.

Coneededly, the money presently available is inadequate but it is sufficient to do something. Fifty dollars a mile each year would trim some brush and fill in some holes, but no money has been spent here for many years. Just because the funds are inadequate to fix this neglected road properly all at one time does that justify the respondents in their course of action of diverting those funds continuously year after year to other roads for which other funds are available to the end that the segment in question has become obstructed with brush and eroded so as to become impassable?

We think it does not; and so to do in the face of the positive requirements of the statute constitutes an abuse of discretion on their part. If this road is useless, it should be abandoned according to law but as long as it remains a part of the township highway system the respondents have a duty under the law as to its care. The funds available should be used for that purpose proportional to the mileage of roads of that type bearing in mind the requirements of the statute.

If we were confronted with a situation where in a particular year the brush was not cut or a road graveled due to lack of funds the problem would be different. It is probable that some deviation from the letter of the law due to necessity would not constitute an abuse of discretion. But where, as in the instant case, over a long term 'of years a persistent course of conduct shows an. absolute disregard of a statutory mandate to the detriment óf an individual landowner and enhancement of others, that constitutes not the exercise of discretion, where allowable, but an abuse of the same.

It is no answer to say, as is argued in this case, that if this writ be" allowed, all other property owners in the township would be entitled to a writ commanding the exact compliance with these statutory duties. All that the law requires is a reasonable performance of a statutory duty within the means at hand. What the law will not permit is an utter disregard of mandatory statutory requirements where any means are available to comply therewith.

That was in substance the holding of this court in State, ex rel. Ohio Public Service Co., v. City of Alliance, (unreported, Stark county). In that case the city owed a certain judgment which it failed and refused to pay. It also had other obligations of equal validity. Funds were not available to meet all obligations and from year to year it was paying the other obligations to the exclusion of the judgment. The defense was the same as in this case, lack of funds. This court ordered the city to pay but to pay yearly a proportional amount as the amount of the judgment bore to the total debt of equal priority under the law. The same -principles run through the decisions found in the annotation in 46 A. L. R., 257. We think that position is sound and is applicable to the case at bar. To deny it would deprive the relator of any adequate remedy at law and permit the continuation of the present situation indefinitely.

"We have no quarrel with the authorities cited by the lower court or by counsel for the respondents. However, they are not in point or conclusive. The case of Bd. of Trustees v. State, ex rel., supra, involved the construction of a foot bridge on private property. The case of State, ex rel., v. Commissioners, supra, involved the construction of a statute in which the word “necessary” was used in connection with the word “shall.” That is not the present case.

It is our judgment that the funds available and permissible for use on this type of road be expended thereon each year in the future proportional to the mileage which this road segment bears to the total mileage of road of this type in the township which is one-fifth, until such time as the road is improved to the standard which makes it eligible for other' funds in conformity to law and until the segment attains the standard of other improved township roads.

It follows that the judgment of the court below is reversed and this cause is remanded to that court for further proceedings not inconsistent with this opinion.

Judgment reversed.

Sherick, P. J., and Montgomery, J., concur.


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    In re Hiles.
    (No. 3956
    Decided March 12, 1947.)

      Mr. Francis K. Cole and Mr. George T. Tarbutton, for petitioner.

      Mr. Hugh S. Jenkins, attorney general, and Mr. C. G. L. Tearick, for respondent.
   By the Court.

This is a proceeding in habeas corpus, originating in this court. The case is submitted upon stipulation of counsel, whereby it is agreed that the accompanying stipulation and affidavits may be considered as evidence. The question before the court is whether upon this evidence the court should deny the writ or, on the contrary, take some further action to obtain additional evidence.

The*affidavits and stipulated testimony disclose that William Hiles, the petitioner, was found guilty of robbery by the Common Pleas Court of Scioto county, he having plead not guilty and having waived a jury trial under direction of counsel appointed for him by the court; and that the finding of the trial court was against the manifest weight of the evidence and contrary to law. The weight of the evidence cannot be considered in a habeas corpus proceeding, and can be raised only in error proceedings. So that question will not be further considered. The general jurisdiction of the trial court is not questioned, but the petitioner is contending that he was denied due process of law because of the conduct of his counsel in requiring petitioner to waive a jury trial, in failing to ask the proper questions of the various witnesses and in his counsel’s failure to file a motion for a new trial and prosecute error proceedings in petitioner’s behalf. The case of Johnson v. Zerbst, 304 U. S., 458, 82 L. Ed., 1461, 58 S. Ct., 1019, 146 A. L. R., 357, is cited. In that case the court held that the conviction of one who did not effectively waive his constitutional right to the assistance of counsel for the defense was void as having been rendered without jurisdiction, and that habeas corpus is an available remedy. Upon the record in the instant case, the claim of the petitioner goes only to the extent of questioning the judgment of his counsel'as to the conduct of his defense. The record does not support the conclusion that counsel was incompetent or inefficient. The material parts of the stipulated testimony on that subject are as follows: “That counsel came to his cell and told him that he had better' plead guilty to assault; that he informed this counsel that he was not guilty, of any assault or robbery and would not so plead; that this counsel then said that he would waive jury trial, in order to save time; that petitioner stated that he protested against this waiver and that counsel told him he would not act for petitioner, and that petitioner would have to get other counsel if he insisted on a jury trial; that in consequence petitioner went in and signed a waiver of jury trial when the time came, believing that he would, be left without counsel if he did not do so, and not receiving any further advice or information concerning the matter from the court; * * *.

“That there was a total failure and refusal on the-part of petitioner’s counsel to offer or to strive to-elicit testimony which was available, to the following-effect :

“(1) That the parties had all been drinking considerably and that they went to the place where the alleged robbery occurred for the purpose of indulging-in intimate or at least amorous relations with the-young women.

“ (2) That, as bearing on petitioner’s intent, in driving to the place of the alleged robbery, petitioner had to use nearly the last gasoline available to him for the-ration period which was by no means over at that time in order to drive to the place where the crime-occurred.

“(3) That, as bearing on his probable intent and her credibility, said witness who offered evidence damaging to petitioner had been a maid in petitioner’s household and had previously had intimate relations-with petitioner.

“(4) That, as bearing upon any significance petitioner would attach to a later altercation between Sagowitz and Gillum, at the time of leaving the tavern Gillum, the victim, offered petitioner $2 to induce the young woman accompanying Sagowitz to have intimate relations with Gillum, which offer petitioner refused; and while in the automobile before reaching the scene, Sagowitz told Gillum to stop something he was doing, which remark petitioner supposed to have reference to some gesture of Gillum toward the girl. # # #

“That petitioner’s counsel stated to petitioner, after the finding by the court, that he would get petitioner a .new trial and that petitioner in reliance on this statement and believing that his counsel, who was appointed by the court, was taking all necessary measures to do so, refrained from active measures to obtain a new trial or to appeal, having in fact no opportunity to take such measures as he was .permitted by prison authorities to correspond only with two members of his family. * *

It will be noted that the petitioner admits that he •signed the waiver. We are of the opinion that he may 'have signed the waiver upon the advice of counsel, but find that he was not coerced in doing so. If his ■counsel retired from the case petitioner should have known that the court would appoint other counsel upon 'being advised of the facts.

The failure to elicit the testimony which the petition•er claimed was available is not of such a nature as to prove the incompetency of hi’s counsel. To support petitioner’s contention we are referred, to the case of State v. Cocco, 73 Ohio App., 182, 55 N. E. (2d), 430, where the court held that an accused is entitled to representation by efficient counsel. In that case ■counsel for the defendant made various statements to the jury which were definitely prejudicial to the defendant, and it was for that reason the court found counsel to be inefficient. Those facts are not similar to the facts in the case at bar.

As to the claim of the petitioner that he was denied the right to have a motion for a new trial filed or an -appeal prosecuted, we find the stipulation does not support that conclusion. It does contain the allegation that counsel told petitioner that he would get a new trial, but that the motion was never filed. The failure of ■ counsel to voluntarily file the motion for a new trial cannot be proof of incompetency of counsel and tbe record does not sbow tbat tbe petitioner ever requested that tbe same be done or tbat an appeal be prosecuted.

Tbe trial court must bave considered counsel efficient when it made tbe' appointment and we find tbe affidavits and stipulated testimony are insufficient to find otherwise.

Tbe writ is denied.

Writ denied.

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


text:
    Booher, Appellee, v. Lowe et al., Appellants.
    (No. 1925
    Decided February 20, 1947.)

      Mr. Jerome T. Miller, for appellee.

      Mr. Chester J. Graham, for appellants.
   By the Court.

This cause is submitted on motion •of the plaintiff, appellee herein, to dismiss the appeal •and remand the case to the Court of Common Pleas, on the ground that the defendants,- appellants herein, have not complied with the order of the Court of Common Pleas fixing the appeal bond.

The action was one in forcible entry and detainer filed in the Municipal Court of Dayton, wherein judgment was rendered for the plaintiff. An appeal on questions of law was taken to the Court of Common Pleas, which court affirmed the judgment of the trial -court.

The appeal to this court is “ on questions of law, and ■on questions of law and fact..” Without determining the question whether this appeal can stand as an appeal •on questions .of “law and fact,” the court proceeds to •determine the motion on the state of the record. The pertinent part of the entry of the Court of Common Pleas fixing the appeal bond is as follows:

“It being further made to appear to the court that •said defendants-appellants are desirous of appealing from the action of this court to the Court of Appeals of Montgomery county, Ohio, and upon motion of said •defendants-appellants to fix an appeal bond, the court upon consideration finds that a bond in the sum of $150 is sufficient as an appeal bond. ’ ’

The court further makes an order as follows:

“It is further ordered by the court that defendants-•appellants post bond in the sum of $150 with good and sufficient surety and that upon compliance with this •order all further proceedings are stayed in the court until further order. ’ ’

In the same i entry the court makes'a further order ■as follows:

“The court further orders defendants-appellants to pay monthly, the sum of $18 on or about the 25th day •of each month beginning with the month of December, 1946, said sum into the office of clerk of courts to be applied on the monthly installments of rent for the premises in question until further order of court.”

The plaintiff contends that the defendants have not paid $18 each month to the clerk of courts as provided by the court order. It is urged that the order requiring-the defendants to pay the $18 per month to the clerk of courts was a condition of the appeal bond; that since that order has not been complied with the appeal should be dismissed. It is true that under the provisions of Sections 12223-6,' 12223-9 and 12223-14, General Code, the court fixing the bond may also stipulate the conditions thereof. However, the record in this case does not disclose that the Court of Common Pleas, in fixing the appeal bond, made the payment of $18 per month a condition of the bond. It will be observed the court' found that a bond in the sum of $150 was ‘ ‘ sufficient as an appeal bond.” The court further ordered the posting of an appeal bond in the sum of $150 and ordered that “upon compliance with this order all further proceedings are stayed in the court until further order.”

It not' appearing that the payment of $18 per month was a condition of the appeal bond, the failure of the defendants to make the payment as ordered does not operate as a breach of the conditions of the appeal bond.

The motion to dismiss will be overruled.

Motion overruled.

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