author: By BIRRELL, J.

text:
    MAYBORN, Plaintiff, v. CONTINENTAL CASUALTY COMPANY et, Defendants.
    Common Pleas Court, Trumbull County.
    No. 58918.
    Decided August 11, 1953.
    Hoppe, Day & Ford, by Mr. Day, for plaintiff.
    Evans, Chanson & Gentithes, by Mr. Gentithes and Mr. Meermans, for defendants.
   OPINION

By BIRRELL, J.

The Plaintiff, L. L. Mayborn in this case, secured a contract with the U. S. Government for the construction of “damtenders” dwellings at Mosquito and Berlin Dams, which is dated May 5th, 1949. Previous to making his bid for this contract, he had submitted copies of the specifications to various contractors, including Defendant William M. Bushnell, for the construction of the plumbing work required under said contract. Bushnell had given him a written bid for the construction of such plumbing at $6,500.00. After receiving the notice that he had been awarded the general contract Mayborn advised Bushnell of such fact and that Bushnell’s was the lowest bid for doing the plumbing work. He therefore requested Bushnell to enter into a sub-contract. Dispute was had between Mayborn and Bushnell as to the extent of the plumbing work, Bushnell claiming that he should not be required to do any excavating or back-filling other than within five feet of the building, Mayborn claiming that the plumbing work included both excavating and back-filling. On the refusal of Bushnell to sign a contract including excavating and back-filling, Mayborn secured an employee of Bushnell to sign the contract, and without further discussion with Bushnell on this particular point urged Bushnell to enter upon the job and proceed with the plumbing work which Bushnell did. At the same time Mayborn continued with the excavating and back-filling.

Bushnell’s bid on the sub-contract included the requirement that bond in the amount of $6,500.00 be furnished. Although Bushnell proceeded with the work, he delayed the giving of bond until he desired the payment of a substantial amount ($2,500.00) on the contract. May-born had already paid Bushnel on the contract some $710.04 but refused to make further payment until bond was furnished. On August 6th„ the parties, with Bushnell’s attorney, met at the office of W. C. Gamble, agent for Defendant Continental Casualty Company of Chicago, and a bond was prepared, signed and presented to Mayborn whereupon May-born paid the $2,500.00 to Bushnell, and the contract continued. It appeared that Mayborn had been advised by the Government engineer on the job to secure a bond from his sub-contractor, and had urged Bushnell from tlie beginning to furnish a bond which Bushnell had delayed doing. After the bond was given the work on the contract continued and further substantial payments were made to Bushnell.

The contract required completion within 180 days from May 26th, 1949, which term would expire November 22nd., 1949. Delays on the part of Bushnell in completing various items of his work and in failing to do certain parts thereof in accordance with specifications, which delinquencies were pointed out by the Government engineers, caused May-born to fear that his completion of the contract would be delayed beyond the due date, and subject him to the penalty of $25.00 per day provided in the contract for failure to complete the job on time. This fear caused Mayborn to urge Bushnell to complete his work more rapidly, and ultimately caused Mayborn on October 25th to cancel Bushnell’s contract, secure another plumber and go forward with the completion of the job.

Notice of the delinquencies of Bushnell was given to Continental Casualty Company as early as August 31st., 1949, which Company denied liability upon their bond, and refused to take over and complete the contract. This notice, the conferences and refusal, all occurred before Mayborn himself dismissed Bushnell and undertook the completion of Bushnell’s sub-contract.

This lawsuit was brought for the purpose of securing judgment against Bushnell and enforcing the liability for his delinquencies against the Bonding Company. The pleadings, among other matters, raise three points:

Who was the sub-contractor heretofore referred to as Defendant “Bushnell.”

What was the contract between Plaintiff and said sub-contractor.

Should the bond which had been written to “United States of America” instead of to “Mayborn” be reformed as requested in the petition to change the obligee from the United States of America to Mayborn.

With reference to the identity of the sub-contractor during the period of this contract Defendant “Bushnell,” used various names, or forms of names, in his proceedings all of which are set forth in the pleadings. There is no dispute that some sort of contract was entered into and was partially performed by the person known as “William M. Bushnell.” William M. Bushnell claims and admits in his Answer that he was operating as the president of a corporation known as “The William M. Bushnell Plumbing and Heating Company.” Proof was offered in evidence of the incorporation of such a company under date of December 31st, 1948, and it appears that such a company was in existence at the date of the offering of the bid to Mayborn by Bushnell, which bid was signed “William Bushnell, pres. Bushnell Plumbing and Heating Company” although not on corporation stationery. When Mayborn prepared his contract which he requested Bushnel to sign, this contract was prepared to “William Bushnell” but signed by the employee of Bushnell as “William Bushnell Plumbing Company, by Byron E. Mills,” which signature (whether valid or not) was accepted by Mayborn without objection. The first checks of Mayborn to Bushnell, including the check of August 8th., for $2,500.00 were written to William Bushnell. After the bond was given the checks of September 15th., for $1,500.00 was written to William Bushnell Plumbing Company, and the last check of October 10th was written to William Bushnell and the Trumbull Plumbing Company. The Bond of Continental Casualty Company was written to the corporation under the name of “William M. Bushnell Company.”

The carelessness of the parties with respect to title and proper designation of the capacity in which Bushnell appeared is very evident. There is no dispute respecting the fact that there was a contract, and that there was only one Corporation operated by Bushnell. This corporation was entitled “The William M. Bushnell Plumbing and Heating Company.” The attorney for Bushnell, in the preparation of Bushnell’s bond, saw fit to give the name as “The William M. Bushnell Company,” indicating likewise to the Bonding Company that the Corporation which gave the Bond and which had the contract was incorporated March 2nd, 1949. The check of August 8th for $2,500.00 was deposited in a so-called “special account” in The Union Savings and Trust Company bank under the name of “William Bushnell Plumbing and Heating Company, special account.”

While there had been some misunderstanding apparently among the directors of the Corporation, and while the corporation had taken away from Bushnell the power to make withdrawals from the corporation account, it would appear that Bushnell still understood that he was transacting his business in the capacity of the Corporation. As far as the Plaintiff is concerned he was doing business with the man named “William M. Bushnell;” whether as an individual, or as president of a corporation known as “The William M. Bushnell Plumbing and Heating Company,” or as President of a corporation known as the “William Bushnell Company” was not important to the Plaintiff. It is proper, however to designate “Bushnell” in his rightful capacity. The Court is inclined to the belief that the use of the name “William Bushnell Company” in the bond furnished by the attorney for the Company was as careless a designation as appears to be other of the designations used throughout the proceedings in this case. It should be noticed also that William M. Bushnell files an Answer personally claiming that he was acting in the capacity as, and that the contract was given to, “The William M. Bushnell Plumbing and Heating Company.” The William M. Bushnell Plumbing and Heating Company fails to answer in this case, probably because its franchise was cancelled on October 25th, 1949 by the Secretary of State for failure to pay its franchise fee. Probably the fact of cancellation of its franchise was unknown to Mayborn at the date that he cancelled the subcontract. But the fact of the “decease” of said company may well have become a cause for such cancellation. It is difficult to explain the careless information given by this corporation’s attorney at the time of securing of the bond. Further discussion on this point however will be noted hereafter. The conclusion of the Court is that the Corporation known as “The William M. Bushnell Plumbing and Heating Company” held the sub-contract in this case.

The second point for determination is the extent of the subcontract. As noted above, Bushnell refused to sign the subcontract for the plumbing work as long as it included excavating and backfilling. The fact that one of his employees, without authority from the Corporation, did sign such contract, does not necessarily bind the Corporation. It would seem, although denied by Bushnell, that he must have known of this signing by his employee for he admits that the copy of the paper so signed was in the files of the Corporation. And if he had knowledge, it would further seem that the entering upon and the continuing with the work of the subcontract raises the probability that the Corporation approved and endorsed the signature of this employee. It should be possible for a Corporation to adopt an unauthorized act of an employee by consenting and undertaking the work thereby contracted and the Corporation thereby be estopped from denying its liability thereunder. But considering the many careless and unreliable actions shown to have occurred and to have been habitual with “Bushnell” in this case, the Court has no better basis on which to assume that he did know of his employee’s signature than that he paid no attention to it, or if he did know of it, knew also that it was made without authority.

On this subject, however, Bushnell may as readily claim that he went forward with the contract under the urging of Mayborn, supposing and believing that Mayborn was accepting and acceeding to his interpretation, that he had offered to do the plumbing work but not. the excavating and backfilling. In fact he would have just as much right to believe that Mayborn was agreeing to his terms in urging him to go forward with the work, as Mayborn would have the right to believe that Bushnell was agreeing to Mayborn’s terms as set forth in the written contract. Mayborn, however, should have known that a mere employee of a corporation, or even an employee of an individual, could not necessarily bind the corporation or the individual to some contract outside of the scope of the employment or authority of the employee. And with the refusal of Bushnell to agree to do the excavating and backfilling ringing in the ears of Mayborn, Mayborn could hardly claim that the minds of these parties had met merely because an employee who knew nothing, presumably, of his employers statements, and who signed without opportunity to consult his “boss,” had been induced to sign a paper under the representations made by Mayborn alone. On this point I do not think that the position of Mayborn is any better or stronger than the position of Bushnell.

In fact the minds of these parties on that day had not met, and either of them in going forward with the contract had the right to believe that each was proceeding under his own offer. Since the burden rests upon Mayborn to prove his claim by a preponderance of the evidence, granting that the Court believes both of the parties statements to be of equal weight, I believe that Mayborn must fail for lack of preponderance of the evidence.

It may be assumed, of course, that both of these parties knew and understood the language of the government contract, and also the language of Bushnell’s proposal, and of the suggested contract submitted by Mayborn to Bushnell. While the government contract includes the plumbing, drain, sewer and water supply systems under Sections 10 and 11, it is to be noted that the general requirements of the excavating and backfilling are included under Part 2 General Conditions 1 to General Conditions 16. And wherever reference is made to the manner in which certain portions of the sewer, drain or water supply systems are described, reference is always made to the General Conditions 1 et seq for the method of excavation and backfilling. The government specifications do not separate and define the duties of any one of the subcontractors. It sets forth the requirements of the general contractor in all respects. Should the general contractor desire to sublet portions of his responsibility it is for him, and not the Government, to determine what portions have been sublet. In the absence of a specific contract between the general contractor and his subcontractor there may be a very bonafide dispute between them as to what responsibilities the subcontractor accepted. The offer of Bushnell under date of April 21st, mentions “confirming plumbing bid * * * according to specifications.” This leaves the determination of what a plumbing bid is to, possibly, the customs of the trade. Here Bushnell, a plumber, testifies as to the customs, stating that they do not include excavations and backfilling, more than 5 feet from the buildings. There is no other testimony on this subject. The Court is not expected to know the customs and usages of the various plumbing contractors of this vicinity. Bushnell could have read the Government specifications, interpreted them in the light of the customs and usages of the plumbers, without understanding that it was his duty to accept the job of excavating and backfilling for installations. Under these circumstances the Court likewise feels that Bushnell’s interpretation of the specifications with reference to excavating and backfilling must be accepted in the absence of a specific written subcontract on that point.

On the important question of reformation of the Bond, as previously mentioned, Bushnell had agreed to give a Bond. Mayborn had been so urging him and refused further payment until the Bond was furnished. In order to secure the payment Bushnell secured and delivered the Bond. The Bond was written to the United States of America instead of to Mayborn. Mayborn, upon receipt of the Bond, paid the money and continued to make further payments to Bushnell.

It is almost needless to state that Bushnell had no contract with the United States of America. It is also apparent that Bushnell had no other contract than the contract with Mayborn, a subcontract for the performance of certain work under Mayborn’s contract with the United States of America. It is also apparent that the only contract mentioned to the Bonding Company and for which the Bonding Company was requested to give Bond was Bushnell’s contract with Mayborn. It is also clear that Mayborn would not pay Bushnell until Bushnell complied with his offer to furnish the Bond, and that the Bond was given in compliance with Bushnell’s offer to Mayborn, and for the purpose of securing payment upon the contract. All of the foregoing propositions are shown by clear and convincing evidence. It is also apparent that the Bond was arranged for and the information given to the Bonding Company by Bushnell’s attorney, an officer of the Corporation, an attorney skilled in legal knowledge and versed in matters of contracts and Bonds. By some error the Bond was not made to Mayborn as it should have been made. No reason is indicated why it should not have as readily been written to Mayborn as to the United States of America, other than that Mayborn had suggested that he desired mention of his Government contract to be made in the Bond. This request on his part was, no doubt, important in so far as it designated the work in connection with the Bond and the subcontract as part of his general Government contract. It is apparent, therefore, that a mistake was made in the name of the obligee, and that such mistake is shown by clear and convincing evidence.

The question arises whether such a Bond may be reformed. That reformation of a surety Bond by Courts of Equity may be had has been determined in Ohio by the case of Neininger v. States, 50 Oh St 394 which is frequently referred to as authority on this question.

Granting, therefore, that Courts of Equity have the power to reform such written instruments, the next question for consideration is whether such reformation may extend to the correction of the name of the obligee. Such reformation has been made in the following cases:

Gayle v. Hudson (1846) 10 Ala. 116: 14 Ala Reports 43 Name of “Hudson & Jones” may be reformed to “Hudson & James.”

Bell v. Tangery (1847) 46 Ind. 49 Constable’s name of Banning, reformed to Plaintiff’s name of Bell, et al.

Archer v. McClure (N. Car. 1914) 81 S. E. 1081: Ann. Cas. 1916 C. 180.

2 Syl. “Reformation of Instruments — Mistake—Wrong name it being intended that a bond should be to the Plaintiffs in an action, with whom contract therefor was made, and by mutual mistake it being made to one who was their active agent in prosecuting the action, it will be reformed, though the loss has occurred, and the surety’s principals have become bankrupt.”

Wilson Supply Co. v. Fidelity & Casualty Co. (Ky. 1937) 110 S. W. 2d 1075.

Partnership’s name reformed to individual’s name.

Neininger v. State (1893) 50 Oh St 394 at pp. 402-3.

Collection of cases authorizing reformation of names of obligees, which are not unlike the present case.

Defendant, The Continental Causalty Company however claims that no reformation should be had because it intended to write the Bond to The United States Government and that reformation may be had only where the mistake is mutual. There is no question that Continental Casualty Company did write the Bond to The United States Government which was done without thought or clear understanding of the contract for which the Bond was given. Were the misunderstanding determinative of this question, among the foregoing authorities, no one would have prevailed in Court, because in each case the Sureties had made the same claim as does the casualty Company in the present instance. The examination of these various cases indicates that those Sureties had signed instruments to various named obligees who were not the parties to whom the obligations should have been given. Yet the Courts in each instance have found that a mistake, an obvious mistake, had occurred and granted relief.

Authorities for reforming other portions of Surety Bonds are as positive and certain of the right and duty of a Court of Equity to make such reformation as are the above specific Courts of their right to reform the names of the obligees to conform with the intention of the parties, and generally mention in their “dicta” that the Court’s authority also extends to the reformation of the names of the parties.”

Chapman v. Allen (Conn. 1788) 1 Am. Dec. 24; Smith’s Admr. v. Wainwright’s Admrs. (1852) 24 Ver. 95; Standard Oil Co. v. Century Indemnity Co. (1952) 105 F. Supp. 284.

In explaining “mutuality of mistake” in the case of Archer v. McClure, supra, the Court says at p. 1084:

“It would not be creditable to the indemnity company should we assume that it was engaging in so important a business transaction as the giving of a bond of indemnity in a suit without knowing what suit it was, and where it was pending. And again it may be said that it is immaterial to a defendant, who was named as obligee by mistake, as its main and only reliance for reimbursement was upon its co-obligors or the principals in the bond, and in that respect the bond is not changed. The defendant owes the money, and it would not be right if we should permit it to escape upon a mere technicality, or an inadvertence of the draftsman, or mistake of the parties as to the real name of the Plaintiff. The law is strongly against any such view. It does not regard the name of persons so much as it does the substance and actual identity of the agreement.”

It must be assumed that the agent for Continental Casualty Company knew what he was doing when he bound his Surety Company as bondsman on the contract of Bushnell. Further evidence of carelessness or inattention on his part is shown by dating the contract the day before it was actually given, which does not recommend the agent's carefulness.

Of course Mayborn was careless in taking this sort of Bond when it was given to him. On the other hand he was not an attorney nor one skilled in reading or interpreting Bonds. Such a situation was met by the remarks of Judge Lynne in the case of Standard Oil Company v. Century Industrial Co. supra, at p. 291 with citation of cases:

“Reformation of the bond made Exhibit 3 to the complaint is not barred by negligence on the part of Alabama-Tennessee or anyone acting in its behalf. Great A. & P. Tea. Co. v. Engel Realty Co. 241 Ala, 236, 2 So. 2d 425: Snell v. Insurance Co., 98 U. S. 85, L. Ed. 52: Griswold v. Hazard, 141 U. S. 260, 11 S. Ct. 972, 35 L. Ed. 678.”
and by Justice Harlan in the case of Snell v. Insurance Company, 98 U. S. 85; 25 L. Ed. 52: at p. 91 (55) (see p. 551):
“He trusted the insurance agents with the preparation of a written agreement which should correctly express the meaning of the contracting parties. He is not chargeable with negligence, because he rested in the belief that the policy would be prepared in conformity with the contract. As soon as he had a reasonable opportunity to consult Counsel, he discovered the mistake, and insisted upon the rights secured by the original agreement. A court of equity could not deny relief under such circumstances, without enabling the Insurance Company to obtain an unconscionable advantage, through a mistake, for which its agents were chiefly responsible.”

Defendant, Continental Casualty Company, cites the cases of Stewart v. Gordon, 60 Oh St 176, and Mulby v. Dunham, 29 Oh Ap 51, which at 1 Syl and at 3 Syl respectively, approve the holding of the Neimnger case that the evidence must be “clear and convincing” and “satisfactory.” Such statements as are also adhered to in the more recent cases of Bellish v. C. I. T. Corp., 142 Oh St 36, 5 Syl and Greenfield v. Aetna Casualty v. Surety Co., 75 Oh Ap 122.

The cases of Wilson Machinery & Supply Co. v. Fidelity & Casualty Co. (Ky. 1937) 110 S. W. 2d 1075; Scaramone v. DeMatteo (Conn) 68 A. 2d 167: and Kelly-Dempsey Co v. Century Indemnity Co. 77 Fed. 2d 85: clearly explain the refusal of each Court to be convinced by “clear and convincing” evidence of the right of claimants to reformation.

In the Wilson case, Gordon and Green a partnership, of which Gordon knew the business, and Green had the money, made the bid, Green pulled out of the partnership before the bid was accepted. The contract was let to Gordon who in order to secure the Bond forged Green’s name. The Court found this was not the act or Bond of the partnership.

In the Scaramone case the claimant desired reformation to interpret the Bond to guarantee payment, of $1000.00 upon an attached car regardless of the amount for which it would sell at Sheriff’s sale. The Court says at p. 169:

“The clause quoted above (p. 198 note 1) from the bond must be read as meaning that the Plaintiff attached as property of Diglio, a Dodge sedan of the value of $1,000.00, not as an agreement of the parties that the value of the interest of Diglio in the car amounts to that sum.”

And in the Kelly-Dempsey case the property had already passed out of control of the principal of the Bond and the reformation contended far exceeded the regular conditions included in the usual terms of the policy.

It is evident that in no one of the foregoing citations was the evidence sufficiently “clear and convincing” to move the Court to reform the contracts.

In considering all of these matters including the presence of May-born at the time of the preparation and writing of the Bond, the absence of discussion with Mayborn by the Insurance agent to learn the fact of the subcontract, and likewise the absence of any representative of the United States of America which would indicate that the agent did not know or care to whom the Bond was written, there can be no question in the mind of the Court that it has been shown by clear and convincing evidence that a mistake has been made, that the Bond should have been to L. L. Mayborn, and that reformation should be granted.

The Continental Casualty Company is losing no more by being responsible upon a Bond to Mayborn that it would have lost had Bushnell’s contract been to “The United States Government” for the reason that the evidence of Bushnell’s default is the statements and inspections made by the engineers of the United States of America. They would have as unhesitatingly required completion of the contract in accordance with government specifications from Bushnell as they did require them from Mayborn.

While reforming the name of the obligee on this Bond, it is as “clear and convincing” also that the name of the principal should have been written as “The William M. Bushnell Plumbing and Heating Co.,” instead of “The William M. Bushnell Company,” and that such reformation should also be granted. Probably in a minimum of cases could such a maximum of carelessness in comparatively obvious matters have occurred on the part of the principal and the Casualty Company.

As to the amount of the default of Bushnell the Court, in examining the claims of Mayborn on this point, has deducted from the general claim (plf. Ex. 32) made to the Continental Casualty Company the amounts therein charged by Mayborn for excavating and backfilling, leaving a balance of $5,929.12 as the amount which Mayborn has been damaged by reason of the default of Bushnell. Judgment may be rendered in such amount, and reformation granted as above set forth.


source: Caselaw Access Project

author: By THE COURT.

license: Public Domain

text:
    WEINLEIN, Plaintiff-Appellee, v. BEDFORD et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 5249.
    Decided February 7, 1956.
    Luther L. Liggett, Marysville, for plaintiff-appellee.
    Barnhart & Wehr, William C. Irish, Columbus, for defendants-appellants.
    (CONN, J, of the Sixth District sitting by designation in the Second District.)
   OPINION

By THE COURT.

This is an appeal from a judgment of the Common Pleas Court finding that the plaintiff is the owner of an undivided one-third interest of the real estate described in the petition and decreeing partition of said real estate. It is not necessary to re-state the facts in this ease as they are familiar to counsel and are fully set forth in the written opinion of Judge Gessaman of the Common Pleas Court. He very properly states the issues for adjudication in the trial court:

1. Did the deed executed by Norman Bedford, Sr., to Marilyn Bed-ford Weinlein et al., constitute a valid conveyance of the property; and

2. Did the plaintiff confirm her deed to Alice Walton dated April 29, 1948, by subsequent action?

He answered the first issue in the affirmative and the second in the negative.

The principal question in this case relates to the delivery of the deed of date March 25, 1943, from Norman Bedford, Sr., to the plaintiff. Inasmuch as it was duly Sled for recording and recorded with the Recorder of Franklin County, Ohio, this act standing alone raised a presumption of delivery of the deed and the burden of overcoming this presumption was upon the defendant-appellant. This was a factual question which the trial judge resolved against appellant. In so doing, we may not say that the evidence did not support the conclusion reached. Likewise, the effect of the signing of a waiver in Probate Court upon the notice of the filing of the Will of Alice Walton for probate was resolved against the contention of appellant and in so doing, the trial judge was clearly within his province, if indeed there was any factual issue in the matter.

No sufficient reason appears requiring a reversal of the judgment in any of the particulars set out in the assignments of error. The opinion of Judge Gessaman is sound in all particulars and we adopt it as a part of the opinion in this Court.

The judgment will be affirmed.

MILLER, PJ, HORNBECK and CONN, JJ, concur.


author: By HORNBECK, J.:

text:
    WEBER, Plaintiff-Appellee, v. SPROAT, Defendant-Appellant.
    Ohio Appeals, Second District, Miami County.
    No. 495.
    Decided October 31, 1955.
    Robert P. Fite, Piqua, for plaintiff-appellee.
    Forrest L. Blankenship, Troy, for defendant-appellant.
   OPINION

By HORNBECK, J.:

This is an appeal from a judgment in favor of the plaintiff and against the defendant in the sum of $549.00 with interest and costs. The judgment was entered upon an action to reduce to a lump sum the accumulated arrearage in payments due plaintiff on an order of the Municipal Court of Miami County, Ohio, made after the defendant had been adjudged the putative father of a child, for whose support and maintenance $9.00 per week was ordered to be paid. The defendant, by answer, denied generally the averments of the petition, and in a second defense asserted that the judgment in the bastardy suit was void for want of jurisdiction in the Municipal Court, Piqua, Ohio, to try and determine the issues.

It is the contention of appellant that the judgment in the bastardy suit is void because the act granting jurisdiction to the City of Piqua Municipal Court is unconstitutional in that it is repugnant to Article II, Section 26 of the Constitution of Ohio, providing that all laws of a general nature shall have uniform operation throughout the state and, also, that the legislation empowering the Municipal Court of Piqua, Ohio, to adjudicate bastardy cases, 122 O. L. 484, being legislation effecting substantive rights, and having become effective after plaintiff’s cause of action arose, was ineffective to grant jurisdiction to the court in this ease.

The nine errors assigned are based principally on the foregoing contentions, with the further claim that the court erred in taking judicial notice of the bastardy action and proceedings and record thereof. The bastardy case and this action were tried in the same court.

Coming then to the Constitutional question. Characteristically, counsel for appellant has briefed this question fully and capably. It would serve no good purpose for us to engage in an extended discussion of this assignment inasmuch as, in our judgment, it has been determined contrary to the contention of appellant. The Municipal Court of the City of Piqua is a local court of special and limited jurisdiction. Therein lies the difference between it and the Common Pleas Court, which is u court of general jurisdiction, although both courts are creations of statute under the Constitution. We are content to cite the following authorities as dispositive of the question urged. Kelley v. State, 6 Oh St 270; State, ex rel. Fox v. Yeatman, et al., State, ex rel. Thompson v. Bundenthal, et al., 89 Oh St 44, 47; State, ex rel. Attorney General v. Bloch, 65 Oh St 370, and particularly State, ex rel. De’Alton v. Richie, 97 Oh St 41; Hess v. Devou, et al., 112 Oh St 1; State, ex rel. Ramey v. Davis, et al., 119 Oh St 596; Schadt Motor Truck Co. et al. v. Dengenhart, 10 Oh Ap 100.

The sixth assignment of error is based upon the action of the trial judge in taking judicial notice of the proceedings in case No. 514 in the Municipal Court, the bastardy action, as a basis for the judgment entered in the case here on appeal.

The authorities in Ohio do not support the action of the trial judge. While it is generally stated that a court will take judicial notice of its own records, this is not exact in specific situations. In Burke, Exrx. v. McKee, 30 Oh Ap 236, the first syllabus, it is held:

“Courts do not take judicial knowledge of their own records except the record of the case under trial.”

At page 238 of the opinion, Mauck, J., says:

“The common pleas seemed to resort to that judgment (that is, a prior judgment in the same court), on the theory that a judge takes judicial knowledge of all the records of the court in which he is presiding. This is erroneous. * * * courts do not take judicial knowledge of their own proceedings, but only of their own proceedings in the immediate case under consideration.
“ ‘The rule with regard to notice of the pendency of. or record in, other causes or proceedings, as already indicated, is quite the reverse of that requiring notice of the record of former proceedings in the case at bar. Both reason and authority establish the rule that, in a given case, the court has no knowledge of the pendency of proceedings in other causes in the same court, much less of those in other courts.’ I Jones on Evidence (2d Ed.), Section 432.
“The rule in this state is in entire harmony with the rule generally obtaining, even though the trial judge may have presided in the very case of which he assumes to take judicial notice. Myers v. State, 46 Oh St 473.”

See also Foltzer v. City of Cincinnati, 70 Oh Ap 128, 4th syllabus, and Wigmore on Evidence, Par. 2579.

This assignment of error is well made.

All other assignments are overruled.

Judgment reversed and cause remanded for a new trial

MILLER, PJ, HORNBECK, J, concur.

WISEMAN, J, not participating.


author: By MERRICK, J.

text:
    CARRINGTON, Estate of, In re.
    Probate Court, Cuyahoga County.
    No. 520663.
    Decided July 23, 1956.

      John J. Brown, Cleveland, for John J. Brown, Executor of the Will of Mary Belle Carrington, deceased.
    Arter, Hadden, Wykoff and Van Duzer, George P. Bickford, Cleveland, Frank Harrison, Cleveland, for Trinity Cathedral.
    Seth Taft, Cleveland, for The Church Home.
    Joseph M. Poe, Cleveland, for The Eliza Jennings Home.
   OPINION

By MERRICK, J.

Item One of the will of the testatrix provides:

“All my just debts, taxes, and costs of administration shall first be paid out of my estate. I request that my last rites shall be simple and conducted as may be specified by the Dean of Trinity Cathedral, with my suggestions that cremation of the body and burial services held at the family plot in Riverside Cemetery would be sufficient, and that any open coffin visiting would be contrary to my wishes. I direct that no inventory of my personal effects and household goods be made if such inventory may be legally omitted.”

The question presented is whether or not the language of the first sentence of said item shifts the burden of the Ohio inheritance tax from the successors ordinarily liable under the law to the residuary legatees.

The following statement is contained in 15 A. L. R. (2d) 1224, Section 3:

“A decedent’s intent to shift the burden of an estate or succession tax from where it is placed by law must clearly appear or else the court is bound to obey the law’s mandate in this respect. Directions found solely in testamentary instruments are generally construed strictly by the courts, and language of doubtful import or language referable only to property passing under the will is not, in the absence of attending circumstances showing a contrary intent, sufficient to change the burden.”

At Page 13 of 37 A. L. R. (2d) the following statements are made:

“A testator who desires to shift the burden of taxation from the person or fund which is liable under the law to some other person or fund is free to employ any words or combination of words that he desires. A few simple words may suffice to indicate his intent and effectuate his purpose.
“Nevertheless a good tax clause should expressly state (1) what gifts or beneficiaries are freed of the burden of taxes, (2) what taxes are affected, and (3) where the burden of taxes is shifted. While a tax clause may be effective even if it does not expressly cover these three elements, the use of a vague clause invites a lawsuit.
“It is often said that an intention to shift the burden of taxation must clearly appear in a will, and that in case of doubt as to the meaning of the will the tax burden will be left where the law places it. A strong reason for requiring that an intention to alter the burden of taxation be clearly expressed lies in the fact that the practical effect of freeing a testamentary gift or benefit from the burden of taxation is to increase that gift or benefit while at the same time the burden of taxes is cast elsewhere and cuts downs some other gift.”

As stated on Page 306 of 74 Oh Ap, former §5336 GC (now §5731.17 R. C.) casts the primary burden of the tax upon the successor, unless the testator by appropriate language shifted the burden elsewhere. Said §5731.17 R. C., provides in part as follows:

“* * * Such taxes shall be, until paid, a lien upon the property passing, and the successor and the executors or administrators of the general estate of the decedent, and the trustees of such property shall be personally liable for all such taxes, with interest as provided by §5731.19 R. C., until they have been paid. * * *”

As has been stated many times “the cardinal rule of interpretation of a will is to ascertain and give effect to the intention of the testator.” 74 Oh Ap 306.

At Page 308 of the Opinion in 74 Oh Ap, the Court said:

“The court finds no fault with the rule referred to in the cited cases, which is substantially that as the practical effect of making a legacy or devise, or other gift, tax free, is to increase the gift and shift the burden of taxation to other or residuary legatees, the intent of the testator to do so must be clear and will not be drawn from vague or uncertain language.”

Although the problem involved therein does not relate to the Ohio inheritance tax, the Gatc-h case 153 Oh St 401 indicates the strict attitude of the Ohio courts in interpreting a tax clause of a will. In said case Item I of the will provided:

“I direct that all my just debts and funeral expenses be first paid out of my estate, and I further direct that all taxes, both state and federal shall be a charge against the principal of my estate and shall be paid therefrom and shall not be charged against the interest of any distributee.”

The Court held that the word “distributee” did not include an insurance beneficiary, and it, therefore, refused to shift the burden of the estate tax from the insurance beneficiary to the estate. The first syllabus of the case reads:

“1. Where there is no specific direction in a testator’s will that the Federal estate tax on such part of the federally computed estate as properly arose from proceeds of policies of insurance on the life of the decedent is to be paid out of the decedent’s estate, such portion of the tax due to the inclusion of the proceeds of life insurance is not a debt of the decedent or his estate in computing the net Ohio estate under the Ohio Inheritance Tax law.”

It would, appear quite obvious from a study of Item One of the will of Miss Carrington that no undue attention was given to the matter of the impact of death taxes, federal or state. The first sentence of said Item is similar to the language customarily found in a will. It is very similar to the language contained in the will in the ease of Delvina A. Grondin Estate (1953), 98 N. H. 313; 100 Atl. (2d), 160, said language being as follows:

“after the payment of my just debts, funeral charges and expenses of administration, taxes, I dispose of my estate as follows.”

In said case the Court observed:

“Furthermore the word ‘taxes’ appears in the usual and ritualistic preamble of the will along with debts and expenses that the executor would be required to pay even if no such provision were inserted in the will. It is doubtful that either the testatrix or the scrivener gave any specific thought to the legacy and succession tax but in any event the will uses no language sufficient to show an intention to change the statutory incidence of the tax---. No special word, phrase or formula is required to shift the payment of the taxes from the legatee to the residuary estate but an intention to do this cannot be inferred from the ambiguous expression used in the will.---. The probate court is advised that each legatee and devisee takes under the will subject to the deduction for the legacy and succession tax.”

After what appears to be the ordinary “boilerplate” reference to payment of debts, taxes and costs of administration, the testatrix in the case at bar gave more than usual attention to arrangements in connection with her last rites. The third sentence of said Item One is another “boilerplate” provision, the same providing that an inventory of the personal goods of the decedent be dispensed with.

The dearth of Ohio authorities on this subject is indicative of the fact that the point has been raised infrequently. Nearly all wills have stock language of varying types requiring the payment of debts, taxes and costs of administration.

The Ohio inheritance tax laws show clearly the intent to impose a tax on the right to receive property and that the successor is liable for the tax on his succession. If it is the testator’s intent to shift such burden such intent “must be clear and will not be drawn by vague or uncertain language.”

If the testator employs such required language, his intention will be carried out. In re Estate of Bingham, 60 Abs 202 (1951).

The language employed in the will of Miss Carrington does not show a clear intent to shift the burden of the Ohio inheritance tax from the successors where the law places it to other or residuary legatees.

As the Ohio law provides that the burden of the Ohio inheritance tax does not shift from the successors to other or residuary legatees nnipsH the testator shows a clear intent so to do, and as the language employed by Miss Carrington in her will does not evidence such clear intent, it is concluded that the general rule of law applies to the payment of inheritance taxes imposed herein and that each successor shall bear the burden of the tax imposed on his succession. A journal entry may be drawn accordingly.


author: By THE COURT:

text:
    SOCONY-VACUUM OIL CO., INC., Plaintiff-Appellant, v. MARSHALL et, Defendants-Appellees.
    Ohio Appeals, Second District, Greene County.
    No. 550.
    Decided April 21, 1955.
    John C. Fontana, Joseph P. Kinneary, Columbus, for plaintiff-appellant.
    Smith & Smith, Xenia, By George H. Smith, of Counsel, for Ralph Marshall.
    John Gibney, Xenia, for Ray E. Harrison, Defendant-Appellee.
   OPINION

By THE COURT:

This is an appeal on questions of law from the Municipal Court of Xenia.

Plaintiff brought an action on an account for merchandise sold and delivered, and prayed for judgment in the sum of $605.53. The defendant, Marshall, answered denying any liability; the defendant, Harrison, filed a general denial and by way of a cross-petition alleged that by reason of the business transactions between the parties there was due him from the plaintiff the sum of $1527.90. Plaintiff filed a reply in the nature of a general denial.

The cause was tried to a jury, which returned a verdict in favor of defendant, Harrison, on his cross-petition in the sum of $900.00. Judgment was entered on the verdict and a motion for new trial was overruled.

Plaintiff-Appellant assigns as error: Error in striking from the record Exhibit B, and in failing to provide the jury with the proper forms of verdicts.

The original bill of exceptions disclosed an apparent error in the submission of the forms of verdict. The bill was corrected by the trial judge, and as the record now stands we find no error in the submission of the verdicts.

An employee of plaintiff company, Mr. Evans, who was in charge of credits, while testifying in chief identified what was marked as Plaintiff’s Exhibit B. He testified that Exhibit B “is a reflection of the ledger of the transactions of the purchases and payments.” The exhibit was introduced into evidence without objection. On cross-examination, Evans testified as follows:

“Q: Exhibit ‘B’ is made up from the ledger and is supposed to be a complete record, is it not?
“A: Yes.
“Q: This attachment on the pleadings is reflected in the summary of the ledger sheets, is that correct?
“A: Yes.”

It was later developed on cross-examination that Exhibit B did not contain all the credits. The defendant contended that Exhibit B was at variance with the itemized statement of debits and credits, attached to and made a part of the petition, and suggested that plaintiff amend its petition; but plaintiff determined to stand on its petition and the itemized statement attached thereto. Thereupon, the court struck Exhibit B from the record.

Plaintiff contends that in striking Exhibit B the court deprived the plaintiff of proving its cause of action founded on an account, and further deprived plaintiff of offering a defense to the cross-petition. After the exhibit was stricken, counsel for plaintiff made no effort to make up the record and to save the question for the reviewing court. Exhibit B is not in the record by proffer. It does not definitely appear from the testimony from what records Exhibit B was taken; whether it consisted of a book of original entry, as counsel now contends, or whether it was made up from the ledger, or a reflection of the ledger, as Evans testified. The question as to the admissibility of Exhibit B is not properly presented. Because of the state of the record the presumption attends that the court acted correctly.

Assuming without deciding that the court erred in striking the exhibit from the record, it does not appear to be prejudicial Counsel for defendant repeatedly stated during the trial that the defendant accepted the figures in the itemized statement attached to the petition on which plaintiff elected to stand. The question as to the amount due the plaintiff, if any, or the amount due the defendant on his cross-petition, if any. hinged on the testimony presented by both plaintiff and defendant, respecting certain credits and whether plaintiff had not struck a balance on the account on February 28, 1949. If the jury accepted the evidence presented by the defendant, a verdict in favor of the defendant was properly rendered. We are not here concerned with the amount of the verdict. The evidence would have warranted a verdict for a larger amount, but the defendant is not complaining.

Finding no error in the record prejudicial to the rights of the appellant, the judgment is affirmed.

MILLER, PJ, HORNBECK and WISEMAN, JJ, concur.


text:
    HELLE, Plaintiff, v. MARKOTAN, Defendant.
    Common Pleas Court, Trumbull County.
    No. 64217.
    Decided April 15, 1955.
    Harrington, Huxley & Smith, by Mr. Wright, for plaintiff.
    Dennison & Loomis, by Mr. Loomis, for defendant.
   OPINION

By BIRRELL, J.

Sometime prior to the year 1928 The Brook Park Development Company dedicated an allotment in Liberty Township known as Church Hill Gardens of which the lots owned by the Plaintiff and the Defendant are a part. In 1928 the house which the Plaintiff now owns was built. A tile drain was, or had been, constructed along the rear of Plaintiff’s lot which generally followed the rear line of adjoining lots in the allotment southward. It was of sufficient depth to drain the basement of Plaintiff’s present house, and carried away both rain water from the roof, wash water and toilet water. This tile drain likewise served a house which about the same time had been constructed on a lot to the north of Plaintiff’s lot, and drained southerly for some distance before emptying on the surface of the Development Company’s land at a point where the land was lower, and its water could continue to run on the surface along the rear line of the lots and away to the south and out of the allotment. Nothing was placed on record regarding this drain. The deed to Plaintiff’s predecessor contained no mention thereof except the usual warranty of title to the described property “together with appurtenances thereto.”

On February 17th 1930 this property was reconveyed to the Brook Park Development Company subject to the mortgages which the owner had placed thereon. On October 10th, 1934 the mortgagee commenced foreclosure proceedings and purchased this property at Sheriff’s sale (deed dated February 20th, 1935), which it later sold and conveyed by Warranty deed to one of Plaintiff’s predecessors in title. This title, by various mesne transfers came to the present owner.

In due course, likewise, The Brook Park Development Company failed to pay taxes upon lots remaining unsold in the allotment which included the lots south of Plaintiff’s property on both sides of the rear boundary of the lots along which the drain ran and along which it opened on to the surface as above mentioned. In due course, likewise the Defendant requested the County authorities to foreclose the tax lien upon all of these lots, and purchased them at tax sale, receiving a tax deed therefor, dated March 26th, 1954. In due course, likewise Defendant commenced constructing two houses on the two lots next south of Plaintiff’s property, installed septic tanks for each of said houses, and in digging the leeching beds therefor crossed over and blocked the drain from Plaintiff’s property. The blocking of this drain caused flooding of Plaintiff’s basement.

This action is brought to secure an order requiring Defendant to unblock this drain. Defendant refuses to un-block the drain, claiming that Plaintiff has no easement for the same, and that he had no knowledge of said drain at the time he purchased his lots. His first claim is that if Plaintiffs had acquired a right by prescription to use this drain, such right has been lost by merger of the dominant and survient estate in The Brook Park Development Company when it re-acquired the ownership in 1930 and held the same until 1935. Since 1935 insufficient time has elapsed to perfect an easement by prescription.

Without disputing this fact Plaintiff bases her claim upon the theory of implied grant which theory is clearly and definitely defined in the case of Ciski v. Wentworth, 122 Oh St 487, as follows:

“While implied grants of easements are not favored, being in derogation of the rule that written instruments shall speak for themselves, the same may arise when the following elements appear: (1) A severance of the unity of ownership in an estate; (2) that before the separation takes place, the use which gives rise to the easement shall have been so long continued and obvious or manifest as to show that it was meant to be permanent; (3) that the easement shall be reasonably necessary to the beneficial enjoyment of the land granted or retained: (4) that the servitude shall be continuous as distinguished from a temporary or occasional use only.”

This theory has been touched upon in earlier Ohio cases:

Baker v. Rice, 56 Oh St 463; Shields v. Titus, 46 Oh St 528; Weber v. Miller, 9 C. C. 674; Mosher v. Hibbs, 1 C. C. ns 49; Keyler v. Eustis, 13 N. P. ns 601; Society v. Huntington, 15 N. P. ns 481; Brewing Co. v. Fasse, 11 O. Dec. Rep. 16.

It is clear that each of the elements of an implied grant of easement exist in our case. There has been a severance of unity of ownership; the use of the drain at the time of this separation had been long continued, and was clearly intended to be permanent; its use was reasonably necessary to the beneficial enjoyment of this home; and the servitude was continuous. The necessity of this drain was apparent from the fact that no other method existed for draining the basement of the house although rain water and surface water could naturally drain away because this house was situated upon the highest spot of ground in the allotment. The basement, however, was lower than the surface of the surrounding lots, and could not be drained without a drain extending some considerable distance from the lot on which the basement was constructed. The opportunity for such drainage existed along the rear of Plaintiff’s lot and along the rear of the adjoining lots which coincided with the line of an old railway grade that passed through a “cut” in the surface of the land at the rear of Plaintiff’s lot. This grade furnished a level line along which the drain had been constructed without the necessity of excessive excavation because either by accident or design the rear line of the lots fronting on Kay Court passed along the westerly side of this old approximately-level railroad right of way. Thus the drain of Plaintiff’s basement was made possible. Since the evidence and conditions were such as to bring into existence all of the elements designated by the Supreme Court to imply a grant of a right to use this drain, and since the owners of the allotment were, no doubt, anxious to sell their lots, and were desirous of furnishing the appertunances including drainage for new homes to be built in their allotment, it appears to the Court that there was, without doubt, an implied grant to Plaintiff’s predecessors of the use of an easement along the rear of the lots for Plaintiff’s drain.

The owners of the allotment did not disturb this easement as long as the lots remained in their possession. While merger of title may have extinguished an easement acquired by prescription, adverse possession for twenty-one years is not necessary to create an easement by “implied grant,” and it has even been held that after “union of seizen,” “a new way is granted by implication if the necessity continues.” Bates v. Sherwood, 5 CC ns 63.

Since the date (1930) of the Ciski v. Wentworth case, our Supreme Court has approved the theories therein set forth in the case of Trattar v. Rausch, 154 Oh St 286, thereby confirming the soundness of the law of “implied grant of easement” without specific mention thereof in the conveyance. Likewise relying upon that theory the Court of Appeals of Hamilton County decided the case of Freiden v. The Western Bank and Trust Company, 72 Oh Ap 471, which determined (3 syl) that

“The owner of an entire tract * * * may so use a part thereof as to create an apparent servitude or quasi-easement in favor of another portion to which the use becomes appurtenant, and upon the severance of the tract by a conveyance of the quasi-dominant portion with no express reference in the instrument of conveyance to such servitude, an implied easement may be held to have been granted.”

Similarly recognition has been given in the case of Blanchet v. Ottawa Hills Company, 63 Oh Ap 177, by the Appellate Court of Lucas County.

This Court therefore believes that Plaintiff in our case acquired an easement by implication to the use of the drain along the rear of the lots in the Church Hill Gardens Allotment of the Brook Park Development Company.

■ Cases wherein permission to use was granted without intention of creating a permanent easement and clearly distinguishable, are

Grau v. Kramer, 41 O. O. 332; Rex v. Hartman, 16 Abs 573; Church v. Clark, 37 Oh Ap 200. as are also the cases wherein ignorance of the existence of an easement is proven by the purchaser of the servient tenemant.

Brooks v. Massey, 4 O. Dec. Rep. 136; Bates v. Magennis, 19 C. C. ns 67; Keyler v. Eustis, supra.

The defendant in our case claims that he had no knowledge of this easement when he purchased his lots at the tax sale. He relies upon the authority of Wright v. McCullough, 56 Oh Ap 153, which holds that such a buyer has “a right to rely upon the verity of judicial records, and if there is no actual or constructive notice of defects therein, occupies the position of a purchaser in good faith for a valuable consideration, and is protected as such.”

But, defendant fails to consider the extent of the title which a tax sale can convey. The deed which may be given in conveyance of lands forfeited to the State for taxes is defined at §5723.32 R. C., as follows: anee of such real estate by the Auditor shall extinguish all previous title and invest the purchaser with a new and perfect title, free from all liens and encumbrances, except taxes and installments of special assessments and re-assessments not due at the time of such sale, and except such easements and covenants running with the land as were created prior to the time the taxes or assessments, for the non-payment of which the land was forfeited, become due and payable.”

“When a tract of land has been duly forfeited to the State and sold under such sections (§§5723.01 to 5723.19 R. C., inclusive), the convey-

If the right to the continued use of the drain be conceeded to have ripened into an easement by implied grant, and that its ripening either in 1928 when it was constructed or in 1935 when the severance in unity of ownership occurred, was “prior to the time the taxes or assessments, for the non-payment of which the land was forfeited, become due and payable” then the tax deed which excepts such easements, is of no validity to protect this defendant in obstructing the easement. While such deeds have been held to grant “a new and perfect title free from all liens and encumbrances,” the Statute expressly excepts therefrom “such easements and covenants running with the land as were created prior to the time the taxes * * * for the non-payment of which the land was forfeited became due and payable.”

Ross v. Franko, 139 Oh St 395; LaRue v. Taylor, 19 Oh St 376; DeSeife v. Oil Co., 61 Abs 72.

part of former §5762 GC, by the amendment of 1943 (120 O. L. 154 at p. 164). Previous to such amendment an opinion of the Attorney General at 1939 O. A. G. Vol. 1 No. 572, pp. 717-722 reviews the many cases and the general rule under previous Statutes, that the conveyance in a tax sale did not divest the property of such covenants running with the land as building restrictions, which indicate that this comparatively new exception is not an innovation in limitation of the extent of titles conveyed by tax deeds.

The absence of a conveyance of fee simple title to the defendant differentiates his position in our case from that of the owners of servient estates in the cases of:

Keyler v. Eustis, supra; Brooks v. Massey, supra, and Bates v. Magennis, supra.

for in each of those cases the aggrieved owner was shown to be a bona fide and innocent purchaser for value. Even were this difference in titles not a bar in each such case it was apparently impossible to learn of the existence of the underground easement.

In our case the defendant could have learned of the easement had he inspected the property carefully before purchasing. Although he lived at the south side of the rectangle of roads bounding the portion of the allotment wherein all the lots lay and had lived in this vicinity since boy-hood he claims to have never learned of the source of the small stream which arose at the end of the tile drain. This same stream passed through his own lands just east of his home and had he driven around the rectangle of roads above mentioned he must have known that it arose within the lots enclosed thereby. Had he made an inspection he would have discovered the end of the tile from which he now claims wash and toilet water in nauseous proportions issues, and would thereby have learned that a drain existed. In the purchase of a tax title surely the purchaser is bound to know what he is buying. The warning “Caveat emptor” applies in such cases. “The apparent signs of servitude which will pass as easements on severance of a heritage include not only those which must necessarily be seen, but those which may be seen or ascertained on a careful inspection by persons ordinarily conversant with the subject. Hence, it is that underground drains may pass by implied grant, even though not visible from the surface.”

Freiden v. Bank & Trust Co. supra, at p. 476. Defendant bought lots in an allotment which was partially settled. Knowing of the restrictions imposed by the Development Company against “outside toilets” and “nuisances,” he should have anticipated that there would be drains of some kind for inside conveniences, and was bound to inspect the premises therefor, before he can cl-aim the privileges of an innocent purchaser for value (which he is not in this instance).

In the decision of this Motion for a temporary restraining order, and of the Demurrer to the Petition, the Court has taken some time and made a rather extended examination of authorities as the foregoing will indicate. The conclusion is that the demurrer should be Overruled, and the application for a temporary Order requiring the Defendant to unblock and open the drain should be granted. Acknowledgment should be made of Defendant’s attempt to comply with Plaintiff’s request before this decision has been announced. AN ORDER MAY BE DRAWN ACCORDINGLY.


text:
    STATE, Plaintiff-Appellee, v. COOPER et, Defendants-Appellants.
    Ohio Appeals, Second District, Montgomery County.
    No. 2345.
    Decided November 17, 1955.

      Mathias H. Heck, Pros. Atty., John R. Hoover, Asst. Pros. Atty., Dayton, for plaintiff-appellee.
    Stewart & Cromer, Dayton, by Clarence J. Stewart, of Counsel, for defendants-appellants.
    (COLLIER, J, of the Fourth District sitting by designation in the Second District.)
   OPINION

By THE COURT:

This is a law appeal from a judgment of the Common Pleas Court rendered upon the verdict of a jury finding the defendants guilty of the charge of cutting with intent to wound. The errors assigned are:

1. That the verdict of the jury and the judgment of the court is manifestly against the weight of the evidence.

2. The court erred in its charge to the jury in its general charge and its supplemental charge, given while said jury was in process of deliberation.

With reference to the first assignment of error we have examined the entire record and find that the complaining witness. Gene Confer, operated a cigar store and smokery in the City of Dayton, in which cards were played by the patrons. There is substantial evidence in the record to establish that Velton Cooper, one of the defendants, was at the place of business at about seven P. M. and was refused permission to enter the game by Confer, the complaining witness; that an argument ensued and then Cooper left, saying that he would come back later; that about nine-thirty P. M. he returned, and was again refused permission to play cards. At this time Cooper called Confer vile names, dared him to step outside and fight; that he grabbed a pair of ice tongs from under the counter, placed them against the abdomen of Confer, and threatened to do violence to him. He left again saying he would return and get Confer later. He returned about 11:15 P. M„ accompanied by the co-defendant, Charles Nickell. Several witnesses testified that these two men rushed in the place of business, knocked Confer from the stool on which he was sitting to the floor, and in the scuffle that ensued Nickell cut Confer with a knife; then Cooper seized the ice tongs and inflicted four lacerations upon the complainant, all of which required three hours of surgery. Counsel for the appellant urges that the ice tongs were back of the counter, and that since no one saw Cooper go behind the counter and get the tongs, that the State failed in its proof that the tongs were used by Cooper. However, several witnesses testified that they saw the tongs in the hands of Cooper, and saw him inflict blows with them upon the body of Confer. We find substantial evidence in the record which tends to establish that these defendants were the aggressors in the fight, came back to the premises at eleven P. M. with the sole purpose of engaging in a fight with Confer, which they did. In the light of all this testimony we cannot say that the verdict is against the manifest weight of the evidence.

With reference to the second assignment of error, counsel for the appellant only has the following remark to make in his brief with reference to the same, to-wit: “The Court will further understand by reading a copy of the court’s charge, that it was misleading and did not fully explain the elements of assault and battery or accident to the jury and is therefore prejudicial to the defendants-appellants.” We have examined the entire charge and find that it correctly states the law applicable to the factual situation presented. If the court did not fully explain the elements of assault and battery or accident, as urged by counsel for the appellant, clearly this would be an act of omission and not commission, and would not be prejudicial. See State v. Tudor, 154 Oh St 249.

We find no prejudicial error in the record and the judgment will be affirmed.

MILLER, PJ, HORNBECK and COLLIER, JJ, concur.


author: By STEVENS, PJ.

text:
    MATHEWS, Appellant, v. BERTSCH et, Appellees.
    Ohio Appeals, Ninth District, Summit County.
    No. 4542.
    Decided May 18, 1955.

      Clyde B. MacDonald, for appellant.
    Matz, Petersilge & Weimer, for appellee Mary Louise Bertsch.
   OPINION

By STEVENS, PJ.

By her amended and supplemental petition, filed in the Court of Common Pleas, plaintiff alleged:

That she furnished services, and advanced money, for one James R. Carter, to the reasonable value of $2000.

That, in recognition of said services and advances, said Carter, on March 22, 1949, designated plaintiff as the beneficiary of his group life insurance policy in the sum of $2500.

That thereafter, on August 5, 1949, said Carter, without informing plaintiff, and without otherwise providing for the payment of plaintiff’s services, advancements and expenses, changed the beneficiary under said policy from the name of plaintiff to the name of his daughter, Mary Louise Bertsch.

That thereafter, on August 31, 1953, said Carter died, without leaving any estate and without making provision for payment for plaintiff’s services, advancements and expenses.

That said conduct of decedent constituted a fraud upon plaintiff, and upon plaintiff’s rights as a creditor of decedent; and that plaintiff has, and is entitled to, an equitable interest in the proceeds of said insurance policy to the extent of the value of her services, advancements and expenses.

Wherefore, plaintiff prayed that she be decreed an interest in the proceeds of said policy, and for judgment in her favor on her claim herein.

Defendant demurred generally to said amended petition, which demurrer was overruled.

Answer was then filed, which, after certain admissions, among which was that the defendant was the daughter of decedent, denied generally the allegations of the petition.

A reply, in the nature of a denial of the allegations of the answer, was filed.

Upon hearing, at the conclusion of plaintiff’s opening statement, the trial court ordered a judgment for defendant to be entered, for the reason that the petition, supplemented by the opening statement, was “insufficient in law to entitle the plaintiff to relief.”

From the judgment so entered, plaintiff has appealed on questions of law and fact.

While no motion to dismiss the appeal on questions of law and fact has been filed, the appeal has been prepared and submitted as an appeal on questions of law, and will be so considered.

It is the claim of appellant that the judgment is contrary to law.

The question presented is simply this: Giving to the allegations of the amended and supplemental petition, and to the opening statement, the most favorable intendment of which they are susceptible, does the petition, supplemented by the opening statement, state a cause of action against defendant?

It appears to us that the petition, plus the opening statement, claims that plaintiff was a creditor of decedent, by reason of services, advances and expenses, furnished and incurred by plaintiff on behalf of decedent, Carter; that to provide payment to plaintiff, decedent named her as beneficiary under his group life insurance policy, reserving to himself, however, the right to change the beneficiary therein; that subsequently the decedent did change the beneficiary under said policy — naming his daughter as such beneficiary — and this without notice to, and without the knowledge of, plaintiff; that thereafter, on August 31, 1953. the insured died, and, at the time of his death, his daughter, the defendant herein, remained the beneficiary named in said policy.

It is asserted by appellee Mary Louise Bertsch that, by reason of the provisions of §3911.10 R. C., the proceeds of decedent’s policy, payable to his daugter, are exempt from claims of creditors, of whom this appellant is one.

That section, in so far as applicable, provides:

“All contracts of life * * * insurance, * * * or any interest therein, which mature, and which have been taken out for the benefit of or made payable by change of beneficiary, transfer, or assignment to the wife or children, or any relative dependent upon such person, or any creditor, * * * shall be held, together with the proceeds of such contracts, subject to a change of beneficiary if desired, free from all claims of the creditors of such insured person * * (Emphasis ours.)

It is apparent that plaintiff is, as she is claimed by her counsel to be, a creditor of decedent.

There is no provision in the above statute (§3911.10 R. C.) for the creation of an equitable interest in favor of a creditor who was previously named a beneficiary under a policy of life insurance upon the life of the insured.

The statute expressly provides for a change of beneficiary in favor of a child, if the insured so desires, as was done in this case, and further provides that the proceeds of such policy shall be held free from the claims of creditors of the insured, of whom this plaintiff was and is one.

We are unanimously of the opinion that the trial court did not err when it stated that plaintiff’s amended petition, supplemented by plaintiff’s opening statement, did not state a cause of action, and dismissed said petition.

Judgment affirmed.

HUNSICKER, J, DOYLE, J, concur.


text:
    TUMA, a. b. a., etc., Appellee, v. BOARD OF LIQUOR CONTROL OF THE STATE OF OHIO, etc. et, Appellants. HERMELIN, d. b. a. R. & H. FOOD MARKET, Appellee, v. BOARD OF LIQUOR CONTROL OF THE STATE OF OHIO, etc. et, Appellants. ROBINSON, Appellee, v. BOARD OF LIQUOR CONTROL OF THE STATE OF OHIO etc. et, Appellants. GODIE, Jr., Appellee, v. BOARD OF LIQUOR CONTROL OF THE STATE OF OHIO, etc. et, Appellants.
    Ohio Appeals, Second District, Franklin County.
    Nos. 4892, 4893, 4765 and 4897.
    Decided January 16, 1953.
    Leonard J. Stern, Isadore Topper, Columbus, Rees H. Davis, Cleveland, for appellee in case No. 4892.
    Leonard J. Stern, Columbus, for appellees in cases Nos. 4893, 4765, 4897.
    Hon. C. William O’Neill, Atty. Geni., Ralph N. Mahaffey, Asst. Atty. Geni., Columbus, for appellants.
   OPINION

By THE COURT.

In each of the above-styled cases the appellees have interposed a motion to dismiss the appeal for the reason that §154-73 GC does not confer a right of appeal on the Board of Liquor Control or the Department of Liquor Control.

This Court has held that the Department has the right to an appeal in the following cases:

Barn Cafe & Restaurant, Inc., v. Board of Liquor Control, No. 4637; D. E. Corn v. Board of Liquor Control, No. 4662; Anna J. Y. Socotch v. Board of Liquor Control, No. 4781 (OA 72 Abs 475).

The appellees cite the recent case of DiCillo & Sons v. Chester Zoning Board of Appeals, 158 Oh St 302, which case is in accord with the holding of the case of Minnis v. County Board of Zoning Appeals, 89 Oh Ap 289, which was considered by this Court in the Barn Cafe case, supra.

We are still of the opinion that the Department of Liquor Control may prosecute the appeals.

The motions will be overruled.

HORNBECK, PJ, WISEMAN and MILLER, JJ, concur.


author: By HUNSICKER, J:

text:
    STATE, Plaintiff-Appellee, v. ALLEN, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23723.
    Decided March 21, 1956.
    Frank T. Cullitan, Pros. Atty., Merle M. McCurdy, Asst. Pros. Atty., for plaintiff-appellee.
    Joseph Trivisonno, William B. Saunders, for defendant-appellant.
    (STEVENS, PJ, HUNSICKER, J, DOYLE, J, of the Ninth District, sitting by designation in the Eighth District.)
   OPINION

By HUNSICKER, J:

This is an appeal on questions of law from a judgment rendered on a jury verdict of guilty of murder in the first degree without recommendation of mercy.

Joseph Allen, on the afternoon of December 22, 1951, shot and killed one, Willie Arnold, and shortly thereafter shot and killed another man, one, Berry Joiner. These shootings occurred in the vicinity of 30th Street and Woodland Avenue, in the city of Cleveland, Ohio. Allen, after the second shooting, fled from the scene of the crime and was not apprehended until the year 1955, in Baltimore, Maryland.

The indictment of first degree murder, in the instant case, was predicated upon the killing of Berry Joiner. The defense was based upon a claim of self-defense, and Allen, as well as his counsel, readily admitted the shotgun slaying of both Arnold and Joiner.

The parties were gambling, in rooms occupied by Allen, during the night of December 21, 1951, and early morning of December 22, after which they went to a place to drink liquor. The parties then separated. Allen testified that Arnold and Joiner came to him at a restaurant, robbed him at the point of a gun, and struck him. Allen said he later went to a locker he rented at the Union Terminal on the Public Square and got some clothes, which he pawned to buy the shotgun and shells, with which he later killed the two men, Arnold and Joiner.

At the conclusion of the trial, the trial judge instructed the jury fully on the subject of first degree murder, mercy, second degree murder, self-defense, and all related matters. The trial judge did not include an instruction on the subject of manslaughter.

The jury returned a verdict of guilty without a recommendation of mercy. From the judgment rendered thereon, an appeal is lodged in this court by counsel for Allen, who say that the trial court committed error prejudicial to the substantial rights of the appellant, Allen, as follows:

“1. The trial court erred in refusing to incorporate the crime of manslaughter, first degree, as an included offense in the general charge to the jury.
“2. The trial court erred in admitting, over objection of counsel, gruesome and ghastly photographs to illustrate a similar act.
“3. Misconduct of prosecutor.”

In our consideration of these claims of error, we have read the testimony adduced at the trial, examined the exhibits, and studied the briefs of counsel.

As to assignment of error number 2, we find no prejudicial error. It is true, counsel for Allen admitted the killing of Arnold, but one of the questions bearing on the credibility of Allen was the position of Arnold at the time he was admittedly shot by Allen. There could be no error in admitting the pictures of Arnold, taken at the place where he was shot.

As to the claim of misconduct of the prosecutor, set out in assignment of error number 3, we find no merit in this claim of error.

The principal error relied upon and most strenuously urged by counsel for Allen, concerns assignment of error number 1. Was it the duty of the trial judge to instruct the jury on the subject of manslaughter?

Counsel for Allen urged the judge to do so, but he refused, and sent to the jury only four forms of verdict: murder in the first degree, murder in the first degree with recommendation of mercy, murder in the second degree, and not guilty.

A discussion of the underlying requirement of instruction in the lesser and included offenses of homicide is found in a number of Ohio cases. Bandy v. State, 102 Oh St 384, is considered a leading case on this subject. The court there said, at page 390:

“A careful examination of the record in this case clearly confirms the holding of the trial judge and of the court of appeals, that there was an entire absence of evidence tending to show any other grade of homicide than that of murder in the first degree committed in the perpetration of a robbery. If there was a failure of proof in this behalf as to murder in the first degree, touching the robbery, there was under the evidence in the record a like failure of proof as to the evidence necessary to establish any other grade of homicide. “Now the one question remaining to be determined is this, Does the abstract, literal charge made in the indictment, in and of itself, and wholly apart from the question of evidence in the case, require under our legal procedure, as modified by the statutes and interpreted by the courts, a specific charge upon the lesser grades of homicide? If such charge be required, then the judgments below must be reversed.”

The court then, in its first syllabus, determined as follows:

“1. Murder in the first degree, literally considered, necessarily includes murder in the second degree and manslaughter. Whether in an indictment for murder in the first degree in the perpetration of a robbery, a charge is warranted as to murder in the second degree, or manslaughter, depends, however, not merely upon whether or not these are literally included in the formal charge, but upon whether or not there is any evidence tending to support a charge of murder in the second degree, or manslaughter.”

The latest pronouncement of the Supreme Court on this subject is found in State v. Kuchmak, 159 Oh St 383, at pages 366 and 367, wherein the court said:

“* * * T]ae £eS£ jor determination of this problem is that, if all the elements of a separate offense are present with others in an offense charged in an indictment, such separate offense is a lesser included offense; or, where all the elements of an offense are included among the elements of a charged offense, the former is a lesser included offense. But to warrant a conviction of such lesser included offense, another limitation must be taken into consideration. A court may not charge upon, and a defendant may not be found guilty of, a lesser offense, unless the evidence tends to support each of the necessary elements of such offense. Bandy v. State, 102 Oh St 384, 131 N. E., 499, 21 A. L. R., 594.

“Typical examples of lesser included offenses are to be found within the offense of murder in the first degree, i. e., manslaughter, assault and battery, and assault. All the element of each are included in the elements of murder in the first degree. Under the statute, murder in the second degree is also included within murder in the first degree, as an offense ‘including different degrees.’ ”

See also: 15 O. Jur. 2d, Criminal Law, Sec. 585, and authorities there cited.

The evidence in this case shows none of the elements of manslaughter. Ten hours elapsed between the time Allen claims he was robbed by Arnold and Joiner, and the killing of these two men. Allen, by his own statement, crossed over from one side of Woodland Avenue to the side upon which Joiner was walking. Allen says this was for the purpose of surrendering to the police after killing Arnold, but he nevertheless said he reloaded his gun. He also said that, after he shot Joiner, he fled from the scene, disposed of the gun, and left town.

The testimony of Allen, without the testimony of any other witness, clearly dispels any question of evidence of manslaughter. Where there is, as here, no evidence of manslaughter in the trial of an indictment for murder in the first degree, it is not incumbent upon the trial judge to give to the jury an instruction on such subject.

Sec. 2945.74 R. C., does not require, in the face of no evidence, that instructions be given as to all included offenses.

The judgment in this case is affirmed.

STEVENS, PJ, DOYLE, J, concur.