author: Hildebrant, J.

text:
    Manning, Appellee, v. The Prudential Ins. Co. of America, Appellant.
    (No. 7721
    Decided June 8, 1953.)

      Messrs. Hoover, Beall, Whitman & Eichel, for appellee.

      Messrs. Marble & Vordenberg and Mr. Edward A. Burke, for appellant.
   Hildebrant, J.

The trial court overruled defendant’s motion for judgment non obstante veredicto, and entered judgment on the verdict for plaintiff for the amount of the death benefits contained in a certificate of insurance upon the life of one Taylor Manning, plaintiff being the named beneficiary, and the certificate having been issued pursuant to a contract for group insurance existing between The Baldwin Company and the defendant.

Defendant denied liability on the ground that, by the terms of the policy, the insurance had automatically ceased for the reason that the employment of the insured by The Baldwin Company had been terminated prior to his death.

The appeal is on questions of law.

The certificate of insurance provided:

“Irrespective of any other mode of termination the insurance upon the life of any person insured under said policy shall automatically cease and determine upon termination of the employment of such person with the employer, except that at the option of the employer employees temporarily laid off, on leave of absence or temporarily disabled shall during such periods be considered as being in the employ of the employer; provided, however, that if such cessation of the insurance on the life of any such person shall be due to termination of employment on account of total disability of such person and if the insurance on the life of such disabled person shall not have been converted in accordance with the provisions of said policy, the amount of insurance on the life of such disabled person in force at the time of such termination of employment shall be payable immediately upon receipt of due proof that the death of such disabled person shall have occurred before the attainment of sixty-five years of age and within a period, dating from such termination of employment, not longer than the time such person shall have been insured under said policy at the time of such termination of employment but in no event longer than twelve months; such payment of insurance, however, to be subject to the condition that the disability of such person shall have been total and continuous and that such person shall not have applied for or accepted any employment for compensation of financial value or engaged in any kind of business for profit from the date of such termination of employment to the date of such death, and also subject to said policy being in full force and effect at such date of death.”

Plaintiff contends that the termination of employment of the insured, if any, was only temporary and for reasons of disability; that, moreover, insured was totally disabled from and after his last work on March 22nd until the date of death, which occurred one week later on March 29th; and, further, that the company collected premiums up to March 26th, thereby exercising its option to still consider him as an employee.

To sustain the burden of proof, plaintiff offered herself as sole witness and testified, in substance, that the insurance under two certificates became effective on January 27, 1948, The Baldwin Company, paying the premiums direct to defendant and deducting 28 cents per week from the insured, allocated one-half to the certificate of life insurance here involved, and one-half to a certificate of health and accident insurance with which we are not here concerned; that the insured, late in January 1949, developed a cyst under his arm, requiring lancing, and became ill on March 11th at the close of his week’s work; that he was put to bed on telephoned advice of the family doctor on Monday, March 14th, and was unable to work that week; that he complained of being sick at his stomach, with pains in the chest, and had a discoloration of the face; that he returned to work on Monday, March 21st, and on Tuesday, March 22nd he returned home early from work; that, after March 22nd, he remained at home, complaining of a tired, worn-out feeling, of pains in Ms chest and down his left arm, and of being ill at times; and that on March 29, he collapsed and died.

The plaintiff was permitted to testify as follows:

“Q. And did he go to work on the morning of the 22nd of March? A. Yes.

“Q. What was his normal time to return home from work? A. The best I can recall 4:30.

“Q. And what time did he get home on Tuesday the 22nd of March? A. Somewhere around 4:00 o’clock.

‘ ‘ Q. That was earlier than the normal time ? A. Yes.

“Q. When he came in did you make any inquiry of him as to why he was there earlier?

‘ ‘ Mr. Marble: I objeet.

‘ ‘ The court: Overruled.

“Mr. Marble: Exception.

“A. I did.

“Q.What was his explanation of why he was home early?

“Mr. Marble: I object.

‘ ‘ The court: Overruled.

“Mr. Marble: Exception.

“A. He was temporarily laid off. He didn’t feel like working so he came home early.

“Mr. Marble: I move the answer be stricken.

‘ ‘ The court: Overruled.

“Mr. Marble: Exception.”

The above quoted testimony is claimed to be admissible as part of the res gestae.

In Stough v. Industrial Commission, 142 Ohio St., 446, 52 N. E. (2d), 992, it is stated in the first paragraph of the syllabus:

“A declaration or statement, to be admissible as part of the res gestae, is not required to be exactly simultaneous with the primary fact in controversy, but it must be a spontaneous or, an impulsive declaration or statement and not the mere narration of a past transaction. (Bake v. Industrial Commission, 135 Ohio St., 627, and Dugan v. Industrial Commission, 135 Ohio St., 652, approved and followed.) ”

Since-the insured’s statement was drawn from him by the inquiry of the plaintiff herself, it appears to be a narration of a past event and lacking in that spontaneity and impulsiveness required to bring it within the res gestae rule.

The above-quoted testimony also comes within the inhibition of Section 11494, General Code, wherein it is provided:

“The following persons shall not testify in certain respects:

Í ( # % %

“Husband or wife, concerning any communication made by one to the other, or an act done by either in the presence of the other, during coverture, unless the communication was made, or act done, in the known presence or hearing of a third person competent to be a witness. The rule shall be the same if the marital relation has ceased to exist * *

It was, therefore, error and prejudicial to the defendant to admit in evidence the plaintiff’s testimony concerning the insured’s statement.

In the absence of that statement, the testimony of the plaintiff is devoid of any substantial evidence tending to sustain the burden of proof, and it appears that defendant’s motion for judgment at the conclusion of plaintiff’s case should have been granted.

In addition, examination of all the evidence, both oral and documentary, conclusively shows that the insured was laid off on the -basis of seniority because of reduction in personnel in his department for business reasons, and that The Baldwin Company considered it a complete termination of employment.

The record conclusively shows also that the deductions for insurance shown on the last check issued to the insured were for the two weeks previous, and, hence, could not indicate the intention of the company to treat insured as an employee for any longer than the work week of March 21st.

For the reasons noted, we consider it error and prejudicial to the defendant to have overruled its motion for judgment non obstante veredicto.

The judgment is reversed, and final judgment is rendered for the defendant.

Judgment reversed.

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


source: Caselaw Access Project

author: Hornbeck, P. J.

license: Public Domain

text:
    Blackman, Appellant, v. Board of Liquor Control et al., Appellees.
    (No. 4707
    Decided April 29, 1952.)

      Mr. Simon L. Leis and Messrs. Cohen & Baron, for appellant.

      Mr. C. William O’Neill, attorney general, and Mr. Brown W. Pettit, for appellees.
   Hornbeck, P. J.

This is an appeal on questions of law from an order of the Common Pleas Court sustaining an order of appellee board suspending the C-l and C-2 permits of appellant because of a violation of Eegulation 3, Article 7 of Eules and Eegulations promulgated by appellee board. Hereinafter, we refer to the appellees as the board.

Appellant was charged with violating the regulation of the board fixing the minimum price for the sale of wine in that on two occasions he had sold wine below the established price. The sales are not disputed, but it is claimed that they were made with no purpose to violate the regulation. No claim of invalidity of the rule was urged before the board.

The contention of appellant here is twofold: One, that Section 6064-3a, General Code, upon which the board bases its authority to promulgate its Eegulation 3 of Article 7, is unconstitutional and void in that it delegates legislative authority to the board and sets up no standard by which such authority may be exercised; two, that the rule is invalid, because arbitrary and unreasonable.

Section 6064-3a, so far as applicable, provides:

“The Board of Liquor Control shall have the power to adopt, promulgate, repeal, rescind and amend rules and regulations to regulate the manner and method of dealing in and distributing and selling bottled wine within the state. The Board of Liquor Control may require out-of-state producers, shippers, bottlers and holders of federal importers’ permits shipping bottled wine into Ohio and holders of class A-2, B-5, B-3, and B-2 permits issued by the Department of Liquor Control engaged in distributing and selling bottled wine in Ohio, to file with the Department of Liquor Control a schedule of prices in which minimum prices are set forth for the sale of bottled wine at wholesale or retail, or both, in Ohio. * * *

“The Board of Liquor Control may determine and fix the minimum mark-ups at wholesale or retail, or both, for bottled wine, and fix the minimum prices at which the various classes of bottled wine shall be distributed and sold in Ohio either at wholesale or retail, or both.”

Section 10 of Article 7 of Regulation 3 of the board provides:

“The consent to import wine and/or the permit of any permit holder, salesman or representative who advertises, offers for sale, ships, sells or buys bottled wine at a price less than that fixed by the board or stipulated in an approved statement or price schedule, or who violates any provision of this regulation, may be suspended or revoked, by the board.”

Appellant insists that Section 6064-3a, General Code, expresses no legislative policy respecting the fixing of minimum prices for which wine may be sold in Ohio, but that this policy which is strictly legislative is delegated to the Board of Liquor Control and in contravention of Section 1, Article II of the Constitution of the state of Ohio.

The legislative purpose to require the fixing of minimum prices at which wine shall be sold in Ohio is implicit in the language of the section. It is evident that those who handle wine for sale in the course of business do so for the purpose of making a profit. To make a profit there must be a mark-up, whether the wine is sold at wholesale or retail. When, then, the Legislature provided that the Board of Liquor Control may determine and fix minimum mark-ups and minimum prices, it was tantamount to declaring the legislative purpose that there should be mark-ups and that there should be minimum prices for the sale of wine.

The next contention of the appellant is that the section of the Code under consideration did not fix standards and rules for the guidance of the board in fixing mark-ups and minimum prices. If it is requisite to the validity of the legislation that such standards be set forth in it, it must be conceded that they are not to be found in the section and it would, therefore, be unconstitutional.

In 1936, this court considered the case of Coady v. Leonard, unreported, and a majority of the court held that the defendants, members of the Ohio Liquor Control Board, should be enjoined from enforcing its Regulation No. 43 relating to advertising on the outside of premises operated by permittees. That case involved the construction of subdivision (f) of Section 6064-3, General Code (116 Ohio Laws, 510, 515), which provided, in part:

“The Board of Liquor Control shall have power:

“1. To adopt and promulgate * * * rules, regulations * * * necessary to carry out the provisions of this act, including the following:

6 ( # # #

“(f) Uniform rules and regulations governing all advertising with reference to the sale of beer and intoxicating liquor throughout the state and advertising upon and in premises licensed for the sale of beer or intoxicating liquor. ’ ’

The majority of this court, in the Coady case, held that the section did not set forth any declaration of policy by the Legislature on the subject of advertising. One member of the court dissented in a short opinion in which was cited Mutual Film Corp. v. Industrial Commission, 236 U. S., 230, 59 L. Ed., 552, 35 S. Ct., 387, Ann. Cas., 1916C, 296; annotation to State, ex rel. Makris, v. Superior Court (113 Wash., 296, 193 P., 845), in 12 A. L. R., 1428, at 1453; annotation to State, ex rel. Altop, v. City of Billings (79 Mont., 25, 255 P., 11), in 54 A. L. R., 1091, at 1115; and American Base ball Club v. Philadelphia, 312 Pa., 311, 167 A., 891, 92 A. L. R., 386, at 418. The Supreme Court, in Coady v. Leonard et al., Board of Liquor Control, 132 Ohio St., 329, 7 N. E. (2d), 649, reversed this court and supported the action of the Board of Liquor Control. Judge Williams, writing the opinion, after citing with approval, Matz, Admr., v. J. L. Curtis Cartage Co., 132 Ohio St., 271, 7 N. E. (2d), 220, said at pages 331 and 332:

“* * * it is apparent that according to the great weight of authority the Legislature may confer upon administrative boards power to adopt subordinate rules, administrative in character, where the Legislature in conferring the authority has fixed definite standards and rules of guidance. But the rule relaxes somewhat as to the necessity for such limitations and restrictions, where wide power is imperative in law enforcement; and many authorities have held that standards or criteria for guidance are not necessary in cases in which the discretion to be exercised by administrative officers relates to police regulations in the protection of the public morals, health, safety or general welfare.”

That the sale of intoxicating liquors comes within the category of a business the conduct of which, if not closely regulated, is inimical to good morals and the public welfare is not a debatable question. The note to State, ex rel. Makris, v. Superior Court, supra, in 12 A. L. R., 1428, at page 1453, under the heading “Discretion with respect to matters of mere privilege,” reads:

“It has been declared that where the discretion relates to a business the carrying on of which is a mere matter of privilege because of a character tending to be injurious, rather than an ordinarily lawful business the carrying on of which creates a property right or vested interest, such, for instance, as dealing in intoxicating liquors, arbitrary discretion as to the granting of licenses may lawfully be delegated to public officials, without prescribing definite rules of action.”

Then follows a number of cases supporting the headnote to the annotation. The other cases which we have cited are continuations of the annotations in 12 A. L. R. It is upon this principle that we rest our conclusion that the legislation under review is valid against the contention that no standards are set up by which it may be effectuated. This view is not in accord with the opinion in Levine v. O’Connell et al., State Liquor Authority, 275 App. Div., 217, 88 N. Y. Supp. (2d), 672.

Of course, the action of the administrative body in which is reposed discretionary power is always subject to the test of whether it is reasonable or unreasonable. If unreasonable, the action may be invalid or it may be unconstitutional.

Appellant relies heavily upon the case of Schwegmann Bros. v. Louisiana Board of Alcoholic Beverage Control, 216 La., 148, 43 So. (2d), 248, 14 A. L. R. (2d), 680, the judgment in which, as we read the opinion, was predicated mainly upon the proposition that the legislation under consideration was unreasonable under all the circumstances and that the means adopted by the Legislature in the exercise of its police power was not reasonably necessary and appropriate to the accomplishment of the object announced in the statute.

The justice writing the opinion, at page 182, says:

“From all of which we conclude that the provisions of Act 360 of 1948 which relate to the mandatory minimum mark-ups (Sections l[s], 24 and 26) do not tend, in a degree that is perceptible and clear, toward the accomplishment of the announced purpose of the statute, namely the regulation and control of the liquor traffic so that it ‘may not cause injury to the economic, social and moral well-being of the people of the state. ’ They, in other words, are inappropriate for the achievement of the legitimate object described in the statute. Accordingly, we hold that such provisions are manifestly unreasonable within the contemplation of the state’s police power, and, hence, are unconstitutional in that they violate the due process clauses of our state and federal constitutions.”

The court tested the purposes of the legislation upon the statement of appellants, strikingly similar to those asserted by the appellees in this case, “that the minimum mark-ups are designed, in the interest of temperance, to protect the people from the temptations of cheap liquor due to cutthroat competition; to eliminate execessive consumption of strong drink that results from price wars; and to prevent certain moral abuses brought about by low liquor prices,” and the court resolved them as we have heretofore indicated. As a matter of legislative policy, strong, moving reasons could be advanced to the effect that the removal of all price control on the sale of all intoxicating liquors and the permission to make and to sell such liquors at the lowest price which in competition could be afforded might do more to advance the cause of temperance than minimum price fixing. However, we have always understood the law to be that courts would not question the right of the Legislature to determine policy so long as, in its most favorable aspect, the legislation enacted bears some reasonable relation to the object to be accomplished.

With all deference to the majority opinion in the Schwegmann case, which is a strong presentation of the rules controlling the valid exercise of the police power within the concept of constitutional law, we are more in accord with the conclusion reached by the dissenting opinion of Justice McCaleb, wherein he concludes that the legislation involved in the action should be supported. Both opinions concede that the police power to be exercised by the Legislature may not infringe upon any of the inalienable constitutional rights secured by the state Constitution or by the 14th Amendment to the Constitution of the United States.

That the state may regulate rates or prices of a business affected with a public interest is held in German Alliance Ins. Co. v. Lewis, Supt., 233 U. S., 389, 58 L. Ed., 1011, 34 S. Ct., 612, L. R. A. 1915C, 1189; Olsen, Secy. of Labor, v. Nebraska, ex rel., 313 U. S., 236, 85 L. Ed., 1305, 61 S. Ct., 862, 133 A. L. R., 1500; Nebbia v. New York, 291 U. S., 502, 78 L. Ed., 940, 54 S. Ct., 505, 89 A. L. R., 1469.

In German Alliance Ins. Co. v. Lewis, Supt., supra, the court, in paragraph one of the syllabus, held:

“The business of insurance is so far affected with a public interest as to justify legislative regulation of its rates.”

Justice McKenna, writing the majority opinion, made some observations, at page 413, which are pertinent here:

“What makes for the general welfare is necessarily in the first instance a matter of legislative judgment and a judicial review of such judgment is limited. * * * ‘Whether the enactment is wise or unwise, whether it is based on sound economic theory, whether it is the best means to achieve the desired result, whether, in short, the legislative discretion within its prescribed limits should be exercised in a particular manner, are matters for the judgment of the Legislature, and the earnest conflict of serious opinion does not suffice to bring them within the range of judicial cognizance.’ Chicago, Burlington & Quincy Rd. Co. v. McGuire, 219 U. S., 549, 569.”

The statute under consideration was an act of the state of Kansas entitled, “An Act relating to Fire Insurance, ’? etc. The discretion vested in the Superintendent of Insurance was unusually broad. For instance, Section 3:

“When the superintendent shall determine any rate is excessive or unreasonably high or not adequate to the safety or soundness of the company, he is authorized to direct the company to publish and file a higher or a lower rate, which shall be commensurate with the character of the risk; but in every case the rate shall be reasonable.”

Counsel for appellant also rely upon Schwegmann Bros. v. Calvert Distillers Corp., 341 U. S., 384, 95 L. Ed., 1035, 71 S. Ct., 745, 19 A. L. R. (2d), 1119. This case involved the construction of the Louisiana Fair Trade Act which was held unconstitutional in so far as it undertook to enforce price fixing not only against parties to a contract so providing but also against non-signers. This opinion was strictly an adjudication of the validity of a fair trade act and if the instant case involved the application of the Ohio Fair Trade Act (Sections 6402-2 to 6402-9, General Code), we would have a different and a more serious question than is presented here.

We do not interpret the cited case as invading the field of the power of the state legislatures under enabling-constitutional provisions to fix prices in furtherance of the regulation of the traffic in intoxicating liquors. The cited case must be read in the light of the issue which was presented and decided.

It is finally urged that the rule of the board here under consideration is arbitrary and unreasonable in that the minimum wholesale price established is wholly arbitrary and artificial and bears no relation whatsoever to the cost of the wholesaler, nor does it differentiate between the varying costs of wholesalers engaged in the same business and that the minimum base cost is arbitrarily determined without consideration of vital factors incident to such costs. We do not find in the record any evidence to develop this aspect of the appeal.

The case of Serrer v. Cigarette Service Co., 148 Ohio St., 519, 76 N. E. (2d), 91, if it could be given full application to that aspect of Rule 3 which is sought to be urged by appellant might raise a substantial question as to the reasonableness of Regulation 3 of Article 7.

Counsel for the parties have filed voluminous briefs in which every aspect of this appeal is explored and developed. Many of the cases cited require no discussion because of the limit which we place upon the number of controlling questions presented. We are also mindful that, possibly, this case has but reached this court on its way to our Supreme Court and possibly to the federal courts. While this development in nowise lessens the obligation of this court to carefully consider and adjudge all determinative questions, it does argue strongly against' any prolonged opinion here. Although we pass on all questions briefed, we doubt if they are properly before this court. Village of Clarington v. Althar, 122 Ohio St., 608, 174 N. E., 251.

Indulging the presumption in favor of the validity and constitutionality of Section 6064-3«, General Code, and Regulation 3, Article 7, drafted pursuant to such statute (State, ex rel. Ach, v. Braden, 125 Ohio St., 307, 181 N. E., 138), and giving weight to the broad power granted to the Legislature to regulate traffic in intoxicating beverages, we affirm the judgment under review.

Judgment affirmed.

Wiseman and Miller, JJ., concur.


author: Wiseman, P. J.

text:
    Lambert, Admr., Appellee, v. Lambert et al., Appellants.
    (No. 2234
    Decided April 17, 1953.)
    No appearance for appellee.

      Messrs. Carson & Carson, for appellants.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of the Probate Court of Montgomery County. The action was one for a declaratory judgment to determine whether United States bonds, owned by the decedent, Jeanette Cohen, should be distributed under the provisions of Section 10503-5, General Code, commonly known as the half-and-half statute, or whether such bonds should escheat to the state of Ohio as provided in Section 10503-4, General Code.

The factual development is as follows: Edward G. Cohen and Jeanette Cohen, husband and wife, as co-owners acquired 27 United States war savings bonds. The evidence supports the contention that the husband purchased the bonds out of his own funds. On January 31, 1947, Edward G. Cohen died testate, leaving Jeanette Cohen as his surviving spouse. These bonds passed to Jeanette Cohen as the surviving co-owner under the provisions of the bonds and the regulations of the United States Treasury Department. On August 24, 1949, Jeanette Cohen died intestate, without heirs or next of kin, still possessed of 20 of the identical bonds which passed to her as sole and absolute owner upon the death of her husband. There are collateral heirs of the husband who will inherit under Section 10503-5, General Code, if the distribution of such bonds is controlled by that section. It is contended that the bonds came to Jeanette Cohen from her husband “by deed of gift” and, therefore, that one-half of such bonds should now be distributed to the husband’s sister and nephew, as provided for in Section 10503-5, General Code.

The probate judge, both in his written opinion, a copy of which appears among the papers, and in the judgment entry, found that such bonds escheat to the state of Ohio. In his opinion, the probate judge rejected the deed-of-gift theory and adopted and applied the contract theory. The sole assignment of error is directed to this ruling by the Probate Court.

The principal question for this court to determine is whether, under the facts in this case, the bonds came to Jeanette Cohen by “deed of gift,” as provided in Section 10503-5, General Code. We find no reported case in Ohio deciding this precise question. Several different theories — contract, gift or trust — have been advanced in the administration of estates as affecting joint and survivorship bank accounts and United States bonds.

With respect to joint and survivorship bank accounts, this state has adopted the contract theory. Cleveland Trust Co. v. Scobie, Admr., 114 Ohio St., 241, 248, 151 N. E., 373, 48 A. L. R., 182; In re Estate of Hutchison, 120 Ohio St., 542, 166 N. E., 687; Oleff, Admr., v. Hodapp, Gdn., 129 Ohio St., 432, 195 N. E., 838, 98 A. L. R., 764; Sage, Exr., v. Flueck, 132 Ohio St., 377, 379, 7 N. E. (2d), 802; Berberick v. Courtade, 137 Ohio St., 297, 28 N. E. (2d), 636; In re Estate of Hatch, 154 Ohio St., 149, 153, 93 N. E. (2d), 585. In the cases involving joint and survivorship bank accounts, the courts of this state have held that the transaction operates as a contract inter vivos, vesting in each owner a present joint interest, and that upon the death of one of the depositors, the survivor succeeds to the balance of the fund by virtue of the contract. A co-owned United States bond presents an analogous situation, and the same general principle of law is applicable.

In Berberick v. Courtade, supra, the court had before it the question as to whether a joint and survivor-ship bank account passed “by deed of gift” and became distributable under the provisions of Section 10503-5, General Code, or whether such bank account passed by contract. The court quoted with approval from In re Estate of Hutchison, supra, rejected the deed-of-gift theory, and applied the contract theory.

In 1942, the author of this opinion, while serving as probate judge of Montgomery county, in Laufersweiler, Exr., v. Richmond, 22 Ohio Opinions, 265, 8 Ohio Supp., 76, rejected the gift theory and applied the contract theory, where the bond was issued to A, payable on death to B. Under a similar state of facts, our Supreme Court, in the case of In re Estate of DiSanto, 142 Ohio St., 223, 51 N. E. (2d), 639, adopted the contract theory and held that the contract was entered into between the registered owner and the United States of America for the benefit of a third person, the designated beneficiary. The bond contract does not require consideration moving between the co-owners to support it. The bond contract is not executory, but executed, and needs no consideration. Cleveland Trust Co. v. Scobie, Admr., supra; Sage, Exr., v. Flueck, supra; Rhorbacher, Exr., v. Citizens Building Association Co., 138 Ohio St., 273, 34 N. E. (2d), 751.

The fact that the “donative” portion of a joint and survivorship bank account or United States bond is taxable under the provisions of the Ohio Inheritance Tax Law does not require the application of the gift theory. The right of the survivor to succeed to the interest in the account or bond is taxed by virtue of a specific provision contained in subdivision 5 of Section 5332, General Code.

We do not hold that in a proper case a co-owned United States bond may not be the subject of a gift. In such case, the evidence must show that the donor intended to and did make a completed gift. Some act or conduct on the part of the donor, independent of the contract provisions of the bond and the regulations controlling its payment, showing an intent to make a gift, must be proven. In the case at bar, no evidence of this character was presented. Where reliance is placed solely on the contract provisions of the bonds and the regulations, the bond passes to the surviving co-owner under the contract and not as a deed of gift under Section 10503-5, General Code; and this is true even though the surviving co-owner contributed nothing toward the purchase of the bond. The case of Speidel, Admr., v. Schaller, 73 Ohio App., 141, 55 N. E. (2d), 346, is distinguishable from the case at bar on the facts.

A complete answer to the gift theory lies in the fact that to create a valid gift, there must be a delivery in praesenti or during the life of the donor which takes effect immediately. The intention of the donor to retain dominion or control over the subject of the gift until his death, at which time it becomes the property of the donee, renders the gift incomplete and void. 20 Ohio Jurisprudence, 25, Section 17.

In the instant ease, the husband could have surrendered or converted the bonds or received payment upon his separate request without the consent of his wife as co-owner. Such right of dominion or control' renders a gift incomplete.

Our conclusion is the same as that of the trial court, namely, that the interest in the bonds passed to Jeanette Cohen upon the death of her husband, not by deed of gift but under the contract, and, therefore, the provisions of Section 10503-5, General Code, do not control.

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

Judgment affirmed.

Miller and Hornbeck, JJ., concur.


author: Matthews, P. J.

text:
    Addison, Appellee, v. Addison, Appellant.
    (No. 7741
    Decided June 29, 1953.)

      Mr. Fred W. Murphy and Mr. Arthur C. Fricke, for appellee.

      Messrs. Cowell é Flechter, for appellant.
   Matthews, P. J.

On April 11, 1952, a decree was entered in this cause granting a divorce to the defendant on her cross-petition. In this decree there was a finding that there was due the plaintiff $225, accrued and unpaid, on an award of temporary alimony and attorney’s fees theretofore made. This was subsequently paid. The decree continues as follows:

“It is, therefore, ordered, adjudged and decreed that the marriage relation heretofore existing between the parties be, and the same is, hereby dissolved, and both parties are released from the obligation of same; and judgment is hereby rendered in favor of the defendant, Lucy Addison, and against the plaintiff, Shelby Addison, for the sum of three thousand, two hundred and twenty-five dollars ($3,225), for which amount execution is hereby awarded to the defendant; and the defendant is awarded the furniture formerly in the possession of both parties but now in the possession of the plaintiff; and the plaintiff is ordered to pay the costs of this proceeding, taxed at.......”

On October 22, 1952, the defendant filed a motion for execution against the person of the plaintiff, supported by an affidavit charging that the plaintiff had removed or was about to remove his property out of the jurisdiction of the court with intent to prevent the collection of this judgment; that he had property which he concealed with like intent; that he was disposing of his property and converting it into money with similar intent; and that he had fraudulently contracted the debt upon which the judgment was rendered. On this affidavit, an execution was issued against the person of the plaintiff under which he was arrested and committed to jail.

On September 5, 1952, the plaintiff moved to vacate the proceedings under which he had been arrested, and on March 11, 1953, the proceedings were vacated on the sole ground that the plaintiff had not been accorded a hearing before his commitment.

On March 24, 1953, the motion for arrest was heard and overruled. This appeal is from the order setting aside the original order and the order overruling the defendant’s motion for arrest.

At the hearing on March 24,1953, the plaintiff, inter ■ alia, defended on the ground that he had been discharged in bankruptcy and asserted that his discharge was a complete bar to the enforcement of this judgment, or, at least, that as the defendant in this action had entered her appearance in the bankruptcy proceeding and filed objections to the plaintiff’s discharge, she was estopped to question its effectiveness.

Some discussion was had at the bar as to whether this judgment for $3,000 was an award of alimony, enforceable by proceedings in contempt. We think it clear that that is not its character.

In the annotation to Holloway v. Holloway (130 Ohio St., 214, 198 N. E., 579), in 154 A. L. R., 439, there is found at page 443 et seq., a thorough review of the cases dealing with the enforceability by contempt proceedings of the various provisions incorporated in divorce and alimony decrees. At page 468, ibid., it is stated that:

“While that general question is not within the scope of this annotation, it can be said that the more generally prevailing rule is that decrees requiring compliance with a property settlement are not enforceable by contempt proceedings, at least in so far as they call for the making of payments which are not deemed to be alimony or support.”

At page 475, ibid., it is said:

“The fact that the court’s award, made pursuant to or in accordance with the parties’ agreement, includes both alimony and a property settlement (or a settlement in lieu of dower, or other obligation not enforceable by contempt proceedings) commingled in such a way that it does not appear, from the provisions of the decree, what amount of the award is alimony and what amount property settlement (or other obligation), has been deemed to preclude the enforcement of such award by contempt proceedings. ’ ’

In Traylor v. Traylor, 46 Ohio App., 87, 187 N. E., 722, it was decided, as stated in the third paragraph of the syllabus:

“Where husband was granted divorce for wife’s aggression, his failure to pay taxes and assessments on realty as directed was not failure to pay ‘ alimony, ’ for which he could be committed as for contempt. ’ ’

We think it clear that the plaintiff’s arrest cannot be supported as a proceeding to enforce an alimony decree as for contempt. Indeed, that is not the form of this proceeding.

This is, rather, a proceeding under Section 11744 et seq., General Code, for the arrest and imprisonment of the plaintiff on grounds prescribed by Section 11745, General Code, until he pays the judgment, or is otherwise legally discharged.

The plaintiff asserts that he has been legally discharged and in proof thereof produced his discharge in bankruptcy, dated October 24, 1952. It was stipulated that the defendant had been listed as a creditor and had filed objections to plaintiff’s discharge in the bankruptcy proceeding, and that such objections had been overruled.

That the obligation created by this judgment is a mere debt enforceable by execution, and not an award of alimony, is made clear by what we have airead}said.

The only ground suggested for avoiding the effect of the discharge in bankruptcy is that the debt was fraudulently contracted. That was one of the grounds assigned in the affidavit in support of an execution against the person of the plaintiff. While the other grounds, if proven, would justify an execution against the person, not one of them would furnish a basis for excepting this judgment from the bar of the discharge in bankruptcy.

We fail to find any evidence of fraud in the creation of this debt. The record shows that the plaintiff and defendant had joint bank deposits and that plaintiff had the right to withdraw the entire deposits, which right he exercised. No matter what his motive may have been, his exercise of that right can not be classed as a fraud. It is true that the trial court recited in its findings that by reason of the plaintiff withdrawing the money from the bank without the defendant’s knowledge or consent, he thereby became a trustee. There was no finding of a pre-existing trust relationship. Whatever trust existed arose out of the wrongful act of withdrawal.

In 6 American Jurisprudence, 1018, Section 796, it is said:

“The term ‘fiduciary capacity’ relates to technical or express trusts, and not to those trusts which the law implies from a contract or the position of parties to a transaction. The term indicates a fiduciary relation existing previously to, and independently of, the particular transaction out of which the debt arises, the words ‘while acting’ being significant for that construction. In order that the debt be considered as having been created in a fiduciary capacity, the bankrupt must have been a fiduciary before the wrong and without reference thereto. It is not enough for the operation of the exception that by the very act of wrongdoing out'of which the debt arose, the bankrupt has become chargeable as a trustee ex maleficio.”

This action was instituted on October 4, 1951. The divorce decree was entered on April 11, 1952. The execution against the person of the plaintiff was issued on May 15, 1952, and the return of the sheriff on June 20, 1952, shows that the plaintiff was in his custody at that time.

There is no doubt that the plaintiff had $6,000 at the time this action was commenced. However, there is no finding that he had any part of it at the time the divorce decree was entered. Therefore, there was no trust res of which the plaintiff could be charged as the holder of the legal title in trust for the benefit of the defendant, and the court, therefore, rendered a personal judgment only in her favor. The plaintiff testified that after this action was instituted and before the decree was entered, he dissipated all his assets in various ways, principally by gambling, so that at the hearing of the orders appealed from he had nothing. In some respects he is corroborated, but in most respects his testimony is unsupported.

In 8 Corpus Juris Secundum, 1541, Section 578 b, on the subject of fraud avoiding the operation of a discharge in bankruptcy it is stated:

“To constitute a debt created by fraud such as is contemplated by the exception here under discussion, actual fraud must be present, constructive fraud alone being insufficient.

“A claim created by contract between the parties cannot be said to have been created by fraud. The fraud must have entered into the creation of the claim, not into its settlement.”

The trial court found that the defendant had failed to prove that the plaintiff was secreting assets. The burden was upon the defendant to prove a ground for issuance of the writ against the plaintiff’s person, and, after reading this record carefully, we are unable to say the court erred in its conclusion that there was a failure of proof.

We are of the opinion also that the discharge in bankruptcy was an effective bar to any proceeding for the enforcement of this judgment. If so, secreting assets would create no duty owing to the defendant.

In 8 Corpus Juris Secundum, 1586, 1587, Section 586 b, it is said:

‘ ‘ Accordingly, one seeking to avoid the operation of the discharge for the reason that the claim was of such a nature as to come within the exception specified by the act must prove facts bringing the claim within such exception, the bankrupt not being required to show that the claim or debt was provable in bankruptcy and not within any of the classes excepted from the operation of the discharge.”

This burden, the defendant also failed to sustain.

For these reasons, the judgment is affirmed.

Judgment affirmed.

Ross and Hildebrant, JJ., concur.


author: Hunsicker, P. J.

text:
    The State, ex rel. Randel, v. Scott, Auditor.

      (No. 4340
    Decided December 31, 1952.)

      Mr. Paul C. Laybourne, for plaintiff.

      Mr. Donald P. Kepple, city solicitor, for defendant.
   Hunsicker, P. J.

This is an action in mandamus, filed originally in this court, in which the state of Ohio, on relation of Thomas Randel, prays for the issuance of a writ against Raymond Scott, auditor of the city of Cuyahoga Falls, to compel the payment of the balance of relator’s full salary as a police officer of the city for a period of time during which he was on “sick leave” due to injuries received not in the line of duty.

The amount sought is one hundred and seventy dollars. The city admits in its pleading a legal obligation to pay eighty-seven dollars and eighty-three cents, by virtue of a city ordinance regulating pay for sick leave of city “employees.”

This court has heretofore determined that “A police officer of a municipal corporation is a public officer and his salary is an incident of the office itself.” Wright v. City of Lorain, 70 Ohio App., 337, at p. 340, 46 N. E. (2d), 325.

It is a fundamental principle of the law of public officers that the right of an officer to his salary does not depend upon contract, but exists as a creature of the law and as. an incident to the office. So long as one occupies his office, such officer is entitled to the compensation attached thereto, even if he is prevented by sickness from performing the duties of the office. This principle of law, however, is not operative in the face of valid statutory or ordinance regulations providing for the rate of compensation, if any, during an officer’s absence from his duties. See 43 American Jurisprudence, Public Officers, Section 379; 168 A. L. R., 476, annotation.

Tenure, dismissal, suspension, and related matters, concerning a police officer, are subject to state control. State, ex rel. Arey, v. Sherrill, City Manager, 142 Ohio St., 574, 53 N. E. (2d), 501. As a part of such state control, the Legislature of this state has enacted a civil service law (Section 486-la et seq., General Code), and has placed police officers within the classified service (Section 4378, General Code). Section 486-17c of this act provides for sick-leave payments to employees in governmental agencies. This statute reads in part as follows:

“Each full-time employee, whose salary or wage is paid in whole or in part by the state of Ohio and each full-time employee in the various offices of the county service and municipal service, and each full-time employee of any board of education, shall be entitled for each completed month of service to sick leave of one and one-fourth (lt4) work days with pay. Employees may use sick leave, upon approval of the responsible administrative officer of the employing unit, for absence due to illness, injury, exposure to contagious disease which could be communicated to other employees, and to illness or death in the employee’s immediate family. Unused sick leave shall be cumulative up to ninety (90) ivork days unless more than ninety (90) days are approved by the responsible administrative officer of the employing unit.” (Italics ours.)

The term “employee” is defined in Section 486-la (8), General Code, as follows:

“The term ‘employee’ or ‘subordinate’ signifies any person holding a position subject to appointment, removal, promotion or reduction by an appointing officer. ’ ’

. We therefore determine that, since the Civil Service Code defines the term “employee,” a police officer is an “employee” within the meaning of this act, even though a police officer is a public officer. A Legislature may properly define the terms it uses in the enactment of statutes.

There is nothing before us to show that the ‘ ‘ responsible administrative officer” of the police department, the director of public safety, approved more than 90 days of sick leave for the relator.

Thomas Randel comes within the purview of the sick-leave provisions of Section 486-17c, General Code, and is entitled to its benefits. The municipality would not have the power to reduce the allowance so provided, and, since it did not increase the allowance, either by appropriate action of the “responsible administrative officer” of his “employing unit” or by municipal legislation, he is subject to the limitations contained in the general laws of the state of Ohio.

The writ of mandamus may issue for the amount admittedly due him, $87.83. The journal entry shall be prepared by counsel for plaintiff, with costs assessed against the defendant as auditor of the city of Cuyahoga Falls.

Judgment accordingly.

Doyle and Stevens, JJ., concur.