author: By FISHER, J.

text:
    SMITH, Plaintiff, v. FIRST NATIONAL BANK OF AKRON, Executor and Trustee et, Defendants.
    Common Pleas Court, Tuscarawas County.
    No. 31414.
    Decided July 12, 1954.

      Lucas & Lucas, Columbus, for plaintiff.
    Edward E. Edmiston, Cleveland, for defendants Blanche Peoples, Margaret Gifford and Carla Gifford.
    Allan Johnson of Buckingham, Doolittle & Burroughs, Akron, for defendant, First National Bank of Akron, Executor and Trustee under the will of the decedent William G. Smith.
   OPINION

By FISHER, J.

This is a suit in equity by Avaline Smith, surviving spouse of the late William G. Smith, in which plaintiff seeks to have the election made by her in the Probate Court of this county on March 31, 1953, to take under the statute of descent and distribution and against the will of the late William G. Smith, set aside and vacated upon the ground that plaintiff did not have full knowledge of the effect of her said election upon her property rights under the will. The case was submitted to the Court upon the pleadings, the exhibits, an agreed statement of facts, the evidence and the arguments and briefs of counsel for the respective parties to the suit.

The estate of the said William G. Smith, according to the inventory and appraisement, amounts to over $309,000.00, and it appears that part of said property consisting of shares of stock and cash was transferred and delivered to the First National Bank of Akron as trustee under a certain revocable living trust agreement on April 17, 1951, at which time the said William G. Smith made and executed his last will and testament. By this will the balance of testator’s estate was directed to be placed in said trust, and certain dispositions were then made by testator out of said trust property to his widow and other beneficiaries.

When plaintiff made her election in the Probate Court, she appeared with her attorney who advised her before the Probate Judge that it would be to her best financial interest to take at law and against the will of her late husband. When asked by the Probate Judge whether she understood her rights under the will and her rights under the law, she replied that she did, whereupon the Probate Judge did not attempt to explain said will and her rights thereunder. At this point it should be made clear that this Court is not necessarily required to determine in these proceedings how much more profitable it would be to the plaintiff under the will than at law. Suffice it to say that the parties have agreed, and evidence was introduced in support of that agreement, that the plaintiff would receive at least $11,000.00 more under the will than she would get at law, thereby showing conclusively that plaintiff’s election to take at law was made without adequate, complete and full information as to her relative property rights. She had the inventory before her and thereby knew the nature, extent and amount of the estate in which she would participate, but the mistake was made in trying to determine under which election she would benefit the most. The question is whether under these circumstances this is such a mistake of law and fact against which a court of equity will grant relief. No fraud is involved and no rights of innocent parties have intervened.

There is no question as to the Court’s jurisdiction in the matter. It is well recognized that this is the type of case that courts of common pleas will take cognizance of. In Davis v. Davis, H Oh St 386, it was held: “Such election, when made and recorded, can be vacated only on petition to the court of common pleas, or other court having general equity jurisdiction.”

The contesting defendants assume the position that the plaintiff, having relied upon the advice of her attorney in making her election, is now irrevocably bound thereby, notwithstanding the fact that she was misled by his advice to her detriment. They also assume the position that when she made her election she expressly waived the explanation enjoined by statute upon the Probate Judge with respect to the provisions of the will and her rights under it, and by law in the event of a refusal to take under the will. They further assume the position that this mistake is one of law and that equity may not be invoked to grant relief with respect thereto.

Before proceeding further with an analysis of the legal questions involved, it should be pointed out that under paragraphs 18, 19, 20 and 22 of the agreed statement of facts, the essential material facts are set forth which briefly are as follows: 1.—The plaintiff personally appeared in the Probate Court with her attorney and in the presence of the Judge made her election to take at law. 2.—The Judge, upon being advised by her and her attorney that she understood her rights under the will and at law, stated that he would not then attempt to explain the will to her and her rights thereunder and at law, and thereupon entered her election to take at law. 3.—The difference between what she would receive at law and under the will is $11,000.00—, that is, she would receive at least $11,000.00 more under the will than she would get at law.

The election of a widow to take at law or under the will of her deceased spouse is controlled by §10504-55 et seq, GC, §2107.39 et seq, R. C., and §10504-59 GC, §2107.48 R. C. provides: “When the election is made in person the court shall explain the provisions of the will, the rights, if any, under it and by law, in the event of a refusal to take under the will.” One thing is therefore certain from the agreed statement of facts and the evidence introduced:—the plaintiff in making her election relied upon incorrect advice of her counsel as to what she would receive under the will, or at law, and the Probate Judge did not make any further explanations of her rights, so we are now confronted with the question—will a court of equity permit her to rescind her election under such circumstances.

It is a general rule that equity will permit an election to be rescinded if made without full knowledge of the elector’s rights and the condition of the estate. There are not many Ohio authorities bearing on this proposition and the Court has been unable to find any Ohio authority with an identical factual situation, but in the case of Mellinger v. Mellinger, 73 Oh St 221, the Supreme Court followed the general rule that elections involve choice and intelligent choice involves a knowledge of both the facts and the law applicable thereto. On page 229 the Court stated as follows: “Before making her election she was entitled to fullest information as to the provisions of said will,—her rights under it, and under the law, in the event of her refusal to take under the will; and it was the’ imperative duty of the probate court to advise and inform her touching these matters. Election necessarily involves choice, and intelligent choice involves a knowledge both of the facts and the law applicable to the subject-matter, with reference'to which a choice is to be made. And where, as in the present case, an election is made by the widow, without full knowledge of the condition of the estate, and of her rights, but in ignorance of both, it can not, as matter of fact, be asserted that she has made any choice or election.”

In Millikin v. Welliver, 37 Oh St 460, it was held on page 466 that: “In order that acts of a widow shall be regarded as equivalent to an election to waive dower, it is essential that she act with a full knowledge of all the circumstances and of her rights, and it must appear that she intended, by her acts, to elect to take the provision which the will gave her. These acts must be plain and unequivocal, and be done with a full knowledge of her rights and the condition of the estate. A mere acquiescence, without a deliberate and intelligent choice, will not be an election. It is believed no case can be found where the facts are held sufficient to amount to an election to waive the widow’s rights under the law, unless they are of such a marked character and of such long duration as will clearly and distinctly evince a purpose to take the provisions of the will, and to operate as an effectual equitable bar to dower.”

Can it be said that the plaintiff acted in this case with a full knowledge of all the facts and circumstances, and the law applicable thereto? Neither she nor her attorney were cognizant of the fact at the time of her election that she would receive $11,000.00 less than if she had taken under the will. Of course, had she known this at the time of her election, equity would hardly grant her the relief sought. It was so held in Bell v. Henry, 121 Oh St 241, but this case also recognizes the general rule that an election may be set aside where it is shown that the widow has not been made fully cognizant of her rights in case she takes under the provisions of the will, or under the law, in the event of her refusal to take under the will.

While it is a well known maxim that ignorance of the law excuseth no one, there are, nevertheless, certain exceptions to this rule, one of which could very well have application in this case. In Vol. 1, Section 172, Story’s Equity Jurisprudence, it is stated that where a widow acted under the erroneous impression that she was entitled to half of the real estate left by her husband, whereas in fact she was entitled to dower in only one-third, she would be allowed to withdraw her election upon the real facts being made known to her as to what property she would legally take. The general rule is then stated as follows: “It is a general rule that a mistake of law pure and simple is not adequate ground for relief. But there are well-defined exceptions to this rule. A mistake by a party as to his antecedent existing legal right, as distinguished from a mistake as to the legal import of the act done, is one which should be and is recognized as a ground for equitable relief from the consequences of such mistake, where the mistake can be rectified without injury to others.” In Pomeroy’s Equity Jurisprudence Section 512, the author states the rule in the following manner: “It is a well-settled rule of equity that a person bound to elect has a right to become fully informed of and to know all the facts affecting his choice, and upon which a fair and proper exercise of the power of election can depend. To this end he has a right to inquire into and ascertain all the circumstances connected with the two properties,—that is, his own and the one conferred upon him, and especially their relative condition and value; and he will not be compelled to elect until he has made, or at least has had an opportunity to make, such an examination as enables him to learn the truth. It follows that where an election has been made in ignorance or under a mistake as to the real condition and value of the properties, or under a mistake as to the real nature and extent of the party’s own rights, such a mistake is regarded as one of fact, rather than of law; the election itself is not binding, and a court of equitable powers will permit it to be revoked, unless the rights of third persons have intervened which would be interfered with by the revocation.” Also in Section 349a, supra, it is stated: “Wherever a person is ignorant or mistaken with respect to his own antecedent and existing private legal rights, interests, estates, duties, liabilities, or other relations, either of property or contract or personal status, and enters into some transaction the legal scope and operation of which he correctly apprehends and understands, for the purpose of affecting such assumed rights, interests, or relations, or of carrying out such assumed duties or liabilities, equity will grant its relief, defensive or affirmative, treating the mistake as analogous to, if not identical with, a mistake of fact.” '

The contesting defendants insist, however, that because the plaintiff appeared in open court with her attorney who assumed to be familiar with the facts and the law and advised her to take at law and against the will of her deceased husband, the case does not come within the rules above stated, but that she is now irrevocably bound by her election. As stated before, no Ohio authority has been found which bears directly upon this particular point, .but in Hanson v. Clark, 246 111. App. 496, we find a situation similar to the instant case. On page 501 of the Court’s opinion the question is stated whether a widow who, after advice of counsel, has duly filed her renunciation to take under her husband’s will is entitled to have the same set aside because of the fact that she was mistaken and misapprehended the legal rights and effects which would result from such renunciation, no rights of innocent third parties having in the meantime intervened. The Court, after reviewing a great number of authorities, and cases from other states and jurisdictions, came to the following conclusion on page 511: “The record before us discloses that no rights of third persons have here intervened; that the widow was well advised as to her rights; that no fraud or misrepresentation of any kind entered into her election; that she was not in any respect negligent; that she made a choice or an election which clearly must have been the result of misapprehension on her part, not alone of law but of the result which would in fact be brought about by the choice. The rights of widows and orphans are favorites of the law. The ruling of the trial court means the widow will be deprived of $18,000 which her husband desired she should have and that it will be distributed to others whom he did not intend should have it. We think the court erred in entering the order and in denying the motion to continue the hearing on distribution until such time as the widow might present her request to the probate court to have her renunciation and election set aside. For this error the judgment is reversed, and the cause remanded.”

In re McFarlin, 9 Del. Ch. 430, 75 Atl. 281, we have another case where a widow, acting upon the advice of her attorney, made an election under a misapprehension of her antecedent legal rights, and the Court stated the rule as follows: “Where an election is made under a misapprehension of the law as to her right of dower, even although the mistake resulted from the erroneous advice of her counsel, a widow so electing to take the provisions made by law in lieu of that made for her under her deceased husband’s will may be allowed to retract her election, where no rights of third persons who would be injured by a revocation have intervened. Precedents for the application of even a more liberal rule are frequent, for in many cases a retraction is allowed where the mistake of the person electing was to the amount of property affected.” * * * “The fundamental idea of an election is that of a designed choice or election of one thing rather than another, and the selection cannot be made satisfactorily when there is at the time a misconception of the rights between which the choice is made.” Blakeman v. Blakeman, 39 Conn. 320: Macknet v. Macknet, 29 N. J. Eq. 54; In re Woodburn’s estate, 136 Pa. 606, 21 Atl. 16.

After having reviewed all the authorities cited herein, together with the authorities cited in the briefs of counsel for the several parties in the case, it is the conclusion of the Court that the plaintiff, at the time of making her election, was not fully or correctly informed as to her respective rights at law under the will of her deceased husband; that she was not negligent, but acting upon such advice and information as she then had she made a mistake in taking at law rather than under the will of her deceased husband which would nave given her at least $11,000.00 more in property and money than she would get at law; that there are no intervening rights of other persons which could in any manner be adversely affected by a change in her election; and that plaintiff is entitled to the equitable relief prayed for.

It will therefore be the order of the Court that plaintiff’s election to take at law and against the will of her deceased husband, William G. Smith, be set aside, vacated and held for naught.


source: Caselaw Access Project

author: By MILLER, J.: By THE COURT:

license: Public Domain

text:
    TOULMIN, Jr., Plaintiff-Appellant, v. BECKER, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County
    No. 2191.
    Decided February 1, 1954.

      Pickrel, Schaeffer & Ebeling, Dayton, William H. Selva, of Counsel, for plaintiff-appellant.
    Landis, Ferguson, Bieser & Greer, Dayton, Robert K. Landis, Jr., Charles S'. Bridge, of Counsel, for defendant-appellee.
   OPINION

By MILLER, J.:

This is a law appeal from the judgment of the Common Pleas Court rendered in favor of the defendant-appellee, Walter Becker, who will be referred to hereafter as defendant, and the plaintiff, Harry A. Toulmin, as plaintiff.

The relief sought was an injunction restraining the defendant from violating the terms of his employment agreement with the plaintiff, who for many years has been engaged in the practice of patent law and patent soliciting under the firm name of Toulmin and Toulmin, with clients throughout the United States and many foreign countries. The case was submitted by stipulation upon the record made in the lower court and also upon additional testimony taken before a referee appointed by this Court. It was his conclusion that the injunctive relief should be denied and that the defendant should recover on his cross-petition for the sum of $1690.63, which amount was found to be due under the contract.

The plaintiff has filed exceptions to the referee’s report, and has also moved that the same be modified or vacated, while the defendant seeks an affirmance of the same. The conclusions of the referee are fully set forth herein and are as follows:

“FINDINGS OF FACT
“Said referee reports his Findings of Fact as follows:
“1. The original written contract between Toulmin and Becker reads as follows:
TOULMIN & TOULMIN Attorneys at Law Patent and Corporation Law Dayton, Ohio
“Walter Becker, Esqr.,
214 West 92nd Street,
New York, N. Y. C.
“Dear Sir:
“This letter, when signed by you in duplicate, a copy for yourself and one for our files, will constitute the business arrangement incident to the position we have offered you, and you have accepted.
“1. Your compensation will be as follows:

(a) A drawing or salary account of $2400.00 per year. You may draw this salary monthly or weekly, as you may prefer. This salary covers your work as a patent solicitor in amending cases, United States and foreign, passing on preliminary examination reports, interviewing the Patent Office Examiners on amending of cases, etc. We work from eight to twelve and one to five on week days and eight to twelve on Saturdays.

(b) A commission of 10% of our personal fee for preparing the specifications and claims constituting an application ready to be filed in the Patent Office. This refers to United States patent applications. Whatever accumulates to your credit on this basis during, say, the month, will be added to your monthly salary check.

(c) A per diem of $10.00 a day, and in proportion to parts of days, based on the office hours of 8:00 A. M. to 5:00 P. M. for Monday through Friday and 8:00 A. M. to 12:00 noon on Saturday (making a 44-hour week) for such work as we may assign to you to do, other than what may be called patent-soliciting work. The per diem rate applies to those matters on which we charge a per diem rate to the client such as validity and infringement opinions, litigation, arguments before various tribunals, and the like. This per diem is in addition to the other compensations above mentioned, and will be paid as and when we are ourselves paid our charge or per diem for such work.

(d) As further compensation, a commission of 5% of our personal fee will be paid to you for all amendments prepared by you, both United States and foreign. This will be paid as and when we are ourselves paid our charge for such work.

(e) As further compensation you will be entitled to a yearly vacation of two weeks during the summer period, during which you will be entitled to your drawing account just the same as if you were not on vacation, so the vacation will not operate to curtail in any manner the drawing account. .

(f) You will further agree that, in order not to seem to compete with any clients or their employees, any invention which you may think of applicable to any client’s business will be turned over to that client gratuitously, your compensation from this firm being your compensation for so doing.

“2. In consideration of the confidential and professional relations you will have with us, and the intimate knowledge you will acquire with respect to our clients, and the manner in which we conduct our practice, you, by accepting this position, agree not to go into the practice of patent law or patent soliciting, directly or indirectly, as a practitioner or an employee, in the event your relations with us are severed, whether by you or by us, or by mutual consent, in the States of Ohio and/or Michigan within a period of five (5) years, ensuing from the severance of yoür relations with us; and agree not to deal with any of our clients that we have while you are with us at any time, or after you leave us. Any client that comes to you while employed by us will become clients of this firm.

This provision does not mean that we think you wouid make any improper use of your knowledge of our affairs, b.ut is a provision the other lawyers here in the office have all assented to as an act of goodwill on their part. .

We understand that you wish to start with us on November 20th, 1939, which is agreeable to us. Your acceptance will indicate when you will so start, and we will hold the position open for you.

We look forward with great pleasure to having you associated with us over a long period of years and to join the others here who have been with us many years.

Very truly yours,

(S) TOULMIN & TOULMIN

I hereby accept and agree to the terms and conditions as set forth in the above letter and will enter upon my relationship with you accordingly on the 20th day of November, 1939, in consideration of your holding the position for me until that date.

(S) WALTER BECKER

Dated the 4th day of November, 1939.

“2. Subsequently, Toulmin wrote letters to Becker, advising him of increases in his compensation, which, since July 30, 1948, was to be $5,000 per year for his base salary (described as ‘Drawing or Salary Account’) in 1 (a) of the original contract; 15% on new patent applications in 1 (b) of the original contract; and 20% on amendments in 1 (d) of the original contract.

“3. In addition to the compensation set forth in the original written contract and the subsequent letters of Toulmin- to Becker, Becker was paid commissions on other work done by him, such as on copyrights, trade-marks, foreign patent applications and annuities. This additional compensation was allowed by Mrs. Arthur Knowles, who had complete authority for and was in charge of the computation of compensation due Becker. She was the Executive Secretary of Toulmin.

“4. The contract of Becker’s employment was terminated by Becker resigning and Toulmin accepting his resignation on May 11, 1951.

“5. Becker was not, and is not, a patent attorney. He has never been admitted to the bar.

“6. On May 11, 1951, Becker wrote a Mr. Oedekoven, a German patent agent who was an old friend of Becker, for whom Toulmin, through Becker, had been performing services, telling him of the termination of his employment with Toulmin and that he, Becker, was opening an office of his own and that he would handle U. S. Patent applications to be filed in Washington ‘on behalf of German correspondent attorneys.’ Similar letters were written to other German patent agents, a number of whom were old personal friends of Becker, and for whom he had handled matters for Toulmin while in Toulmin’s employ. Shortly thereafter, he sent letters to a number of other foreign patent agents with whom he had had dealings while in Toulmin’s employ, advising them that he had set up his own office and soliciting their business. Several weeks later, a client of one of these foreign agents revoked his powers of attorney previously granted to Toulmin and gave similar powers of attorney to Becker. Becker also wrote a letter to The Dayton Rubber Company as to his availability for handling foreign patent applications for that company, which had formerly been a client of Toulmin. This letter was sent to The Dayton Rubber Company’s patent attorney, who was then handling that company’s patent matters, rather than Toulmin.

“7. The ‘patent soliciting’ that Becker, since the termination of his employment, has done, or threatens to do, has not and will not result in great damage or cause great or irreparable injury to Toulmin.

“8. Toulmin’s total professional business grossed between $400,000 and $700,000 annually in recent years and his net income therefrom has averaged $100,000 or more. Sixty per cent of his gross income was from patent work and forty per cent from corporate legal practice. There is no testimony as to the exact value of his foreign patent work, but it was of comparatively small value to Toulmin.

“9. If Becker is entitled to the contractual rate of commission, on amendments prepared for U. S. clients to be filed abroad, on the whole of the Toulmin’s bill to such U. S. clients, there is still due and unpaid to Becker the sum of $657.24 There is also due and unpaid to Becker a net amount of $1,033.39, assuming that all of Toulmin’s invoices covering work done by Becker are paid by Toulmin’s clients, which was agreed to by counsel for Toulmin.

“CONCLUSIONS OF LAW

“Said Referee reports his conclusions of law as follows:

“1. There was a valid, oral amendment to the written contract of employment by the parties accepting and acting upon the allowance and payment of additional compensation to Becker for work done by him on copyrights, trademarks, foreign patent applications and annuities.
“2; Becker has not engaged in the practice of patent law, as forbidden by the contract. Becker, since the termination of his employment, has sought business as a ‘patent solicitor,’ He has not sought such business in Ohio or Michigan (although he has continued to reside in Ohio), but he has sought such business solely from foreign countries, with one exception, i. e., from The Dayton Rubber Company, in one instance.
“3. The German and other foreign patent solicitors, or agents, were not ‘clients’ of Toulmin.
“4. ‘Our fee’ in the employment contract includes the charge added to bills for Toulmin’s services.
“5. The terms of the employment contract are not clear and unambiguous as to the restrictive provisions, and their violation has not been clearly shown; neither has it been shown by Toulmin that these restrictive provisions are clearly reasonable.
“6. There is still due from Toulmin and unpaid to Becker the sum of $657.24 for Becker’s contract commissions on Toulmin’s bills which included an added charge for Toulmin’s personal services. There is also due Becker, and not paid, the' sum of $1,033.39 for Becker’s work on matters for which,- formerly, Toulmin had not been paid by his clients.
“CONCLUSION
“In view of the foregoing Findings of Fact and Conclusions of Law, the Referee is of the opinion that the prayed for injunction should not be granted and that Becker should recover from Toulmin the sum of $1,690.63 and the costs of this suit.
(Signed) Alfred Swift Frank
Referee
September 30, 1953.”

The plaintiff first urges that the referee failed to include and consider certain admitted and uncontradicted facts which materially affected his legal conclusions. We have given this assignment careful consideration and are of the opinion that the additional facts set forth in the plaintiff’s exceptions are evidential in character and not in conflict with the ultimate facts as found by the referee.

The plaintiff next urges that the referee erred in his legal conclusion No. 3, which is: “The German and other foreign patent solicitors, or agents, were not ‘clients’ of Toulmin.” This conclusion is of no consequence, for as will be later explained, we think the restrictions relating to the plaintiff’s clients are illegal and void. However, should we be wrong in this conclusion', we would be compelled to agree with the referee and will state our reasons for so doing: First, in the interpretation of any contract the language must be construed strictly against the person who used it who, in this case, is the plaintiff. See 9 O. Jur. 429 and 430. Second, this contract is in restraint of trade, which is not looked upon with favor and must be “strictly construed and enforced only in clear cases where material damage to the plaintiff is apparent and no irrevocable hardship will result to the defendant and others.” 9 O. Jur. 432, Sec. 203.

It appears that these foreign patent agents or solicitors were not acting as principals in their dealings with plaintiff, but merely as agent of the person or legal entity seeking the patent. It will be noted that their title alone indicates that they are acting as “agents.” A “client” in the usual sense of the word is the one who needs professional help and who ultimately pays for the same. The term is defined in Webster’s New International Dictionary (2d Ed.) as:

“One who employs the services of any professional or business man as a customer; also loosely a patron or customer of any business establishment, shop, store or the like.”

In Bouvier’s Law Dictionary we find the term defined as:

“One who employs and retains an attorney or counselor to manage or defend a suit or action to which he is a party, or to advise him about some legal matter.”

A like definition is found in Black’s Law Dictionary, Third Edition.

In Haden v. Lovett, 65 S. E. 853, decided by the Supreme Court of Georgia, an interpretation of the term “client” arose between two attorneys, one being employed to recover certain property on a 50% fee basis. The first attorney employed a second one to assist him, and agreed to pay him his fee. The first lawyer collected the fee from his client but refused to pay the second, who attempted to recover under the Georgia Civil Code of 1895, Section 4416, which provided as follows:

“Where attorneys retain in their hands the money of their •clients after it has been demanded, they are liable to rule (and otherwise) as sheriffs are, and incur the same penalties and consequences.”

The Court here said:

“It was never intended that the word ‘client’ as used in this section should embrace one attorney who employed another to assist him in rendering services in litigation in which the former was- no party and was only interested by reason of his having a fee in such case contingent upon his winning it. The section is penal in its nature, and must be strictly construed.”

We therefore conclude the foreign agents or patent attorneys contacted by the defendant after the termination of his employment were not clients of the plaintiff.

The third specification of the plaintiff’s exceptions is directed to the referee’s finding that “patent soliciting” is not forbidden by the contract as found in the second conclusion of law. Our interpretation of this conclusion is not in accord with that of the plaintiff, for we do not think that the referee has so decided. He merely makes the determination that the defendant has not engaged in the practice of patent law, but that in several instances he had sought business as a “patent solicitor.” Such solicitation is clearly included in acts attempted to be prohibited by the contract.

The next exception is taken to the 5th conclusion of law, which is:

“The terms of the employment contract are not clear and unambiguous as to the restrictive provisions, and their violation has not been clearly shown; neither has it been shown by Toulmin that these restrictive provisions are clearly reasonable.”

We agree with the exceptor in this instance as to some of the findings set forth in this specification. It will be noted first that the restrictive covenant is divisible, the first part having application only to the states of Ohio and Michigan, and the other, to clients of the plaintiff wherever they may be situated. The first part we hold to be valid and enforceable, and the other to be ambiguous, unreasonable, illegal and in restraint of trade. Lange v. Werk, 2 Oh St 519, 531; Thomas v. Miles, Admr. of Miles, 3 Oh St 274; 17 C. J. S. 676, and cases cited in the footnote; Briggs v. Butler, 140 Oh St 499. The first part of the covenant forbids the defendant “to go into the practice of * * * patent soliciting, directly or indirectly as a practitioner * * * in the State of Ohio and/or Michigan within a period of five years.” When the defendant opened offices in Dayton, Ohio, for the sole purpose of patent solicitation, he committed a substantial breach of the covenant for which plaintiff is entitled to complete injunctive relief. The defendant holds himself out and advertised himself in directories of the City of Dayton, as a patent solicitor. It is not enough for the defendant to say that he will not solicit clients in Ohio or Michigan but limit his solicitation to the territory outside these two states. The opening of an office for the purpose of conducting the business of patent solicitation in the designated territory is forbidden by the covenant, regardless of the residence of the prospective clients. The practice of patent solicitation involves the rendering of services to local clients who have business elsewhere, and to clients who reside beyond the boundaries of the States of Ohio and Michigan in which local services would be required. The Ohio law with respect to such covenants is quite lengthily discussed in the case of Briggs v. Butler, 140 Oh St 499, the syllabus of which provides:

“1. A contract between an employer and. employee whereby the latter agrees that subsequent to the termination of such employment he will not engage in a competitive business within a reasonably limited time and space is valid and enforceable where the restraint is not beyond that reasonably necessary for the protection of the employer’s business, is not unreasonably restrictive upon the rights of the employee and does not contravene public policy.
“2. A contract between an employer and employee may hot unduly restrict the activities of the employee subsequent to the termination of the employment or limit the same to a greater extent than is reasonably necessary for the protection of the business of the employer, and the determination of such necessity is dependent upon the nature and extent of the business and the nature and extent of the service of the employee in connection therewith and other pertinent conditions.
“3. Where the contract involved is one for personal service in advertising and solicitation of patronage and the restrictive provisions thereof relate only to the ‘same kind or similar business, in competition with’ the employer and do not undertake to otherwise restrict or limit the trade, occupation, profession, business or activities of the employee, the contract is not unreasonably restrictive upon the rights of the employee and does not thereby contravene public policy.”

The referee made no factual finding of the territories in which the plaintiff practiced his profession; hence, we may look to the record for this information. In so doing we find that his firm has been engaged in this type of business for more than half a century with a very large part of the same coming from Ohio and Michigan, and the remainder of his business coming from the other states as well as many foreign countries. For the latter, a special department was set up in his office of which the defendant was the head. In giving consideration to these facts it would appear that the restrictions applicable to the states of Ohio and Michigan for a period'of five years is reasonably necessary for the pro-, tection of the plaintiff’s business and is not unreasonably restrictive upon the rights of the defendant. He still has the remaining states and territories of the United States as well as the remainder of the world for the practice of his profession. This would constitute only a limited restraint of trade and would not be in contravention of public policy.

The covenant was reasonable as to time and space and when measured by the nature of plaintiff’s practice and adequate protection to be afforded, the requirements are not unreasonable.

The defendant cites the case of Gates-McDonald Co. v. McQuillan, 33 Abs 481, but which we find is distinguishable on the facts from those relating to the first part of the covenant, and which distinction was well pointed out by Judge Beery of the trial court.

In considering Part 2 of the covenant it will be noted that there is no restriction as to the time during which he will not deal with any of the plaintiff’s clients. In other words, it would be applicable during the entire lifetime of the defendant. And since this is indefinite as to time we cannot say that it is reasonable. In the case of Kex Mfg. Co. v. Plu-Gum Co., 28 Oh Ap 514, Judge Vickery at page 519 well states the rule with reference to the time limitation in such covenants when he says:

“In other words, the contracts have been sustained when it was necessary to do so to preserve the business which was sold, and, if that covered a broader area than a local trade, a contract for that purpose for a reasonable time would be upheld, but no contract has been upheld where it is for all time, or where the time is so unreasonably long that it would necessarily forever prohibit the vendor from engaging in a like business.”

This part is also ambiguous for it does not specify the time the status of a “client” relationship shall be determined. It is a matter of common knowledge that such a relationship is not static but is subject to constant change, such as the loss of old clients and the acquiring of new ones.

We therefore hold Part 2 of the covenant to be ambiguous, unreasonable, illegal and void.

In giving consideration to the cross-petition of the defendant we find that the defendant deliberately violated the restrictive covenant relating to engaging in the practice in the states of Ohio and Michigan and committed substantial breach of the same and for which equity will not permit a recovery. The plaintiff’s motion to modify the conclusion of the referee will be sustained in accordance with this opinion, and the defendant’s motion to confirm will, with the aforesaid modifications, also be sustained. The plaintiff will be granted a permanent injunction against the defendant preventing him from conducting his patent business in Ohio and Michigan and/or from soliciting clients in Ohio or Michigan, for a period of five years from the termination date of employment, to-wit: May 11, 1951.

Judgment will also be rendered for the plaintiff on the cross-petition and for costs of suit.

WISEMAN, PJ, HORNBECK, J, concur.

Decided March 29, 1954.

TOULMIN, Jr., Plaintiff-Appellant, v. BECKER, Defendant-Appellee.

No. 2191.

OPINION

By THE COURT:

Submitted on motion of defendant for an order requiring plaintiff to increase his bond to an amount adequate to secure to the defendant the damages he may sustain if it be finally decided that the injunction ought not to have been granted. Plaintiff filed an action to enjoin the defendant from violating a restrictive covenant in a contract of employment. The defendant cross-petitioned, claiming an amount due him as commission under the employment contract. The Court granted a temporary restraining order and fixed plaintiff’s bond at $2,500.00, which was afterwards increased to $5,000.00. The judgment of the Common Pleas Court denied any relief to the plaintiff or the defendant, and dissolved the temporary restraining order.

Plaintiff appealed to this Court on questions of law and fact. Plaintiff posted an appeal bond in the amount of $200.00. While the action was pending before the referee appointed by this Court both parties were ordered to and each posted cost bond in the amount of $1,500.00. This Court rendered judgment in favor of plaintiff, and granted a permanent injunction against the defendant from engaging in business in Ohio or Michigan, and dismissed defendant’s cross-petition.

The motion of defendant for an order to increase the bond is directed to the appeal bond in the amount of $200.00 posted by plaintiff at the time he gave notice of his intention to appeal on questions of law and fact. An order increasing the bond may have been proper pending the hearing and final disposition of the case in this Court, but the fact is that defendant was not temporarily restrained by an order of this Court while the matter was pending. Now this Court has rendered final judgment in favor of the plaintiff. The defendant contends that he should have protection while this matter is pending on appeal to the Supreme Court. This Court has granted a permanent injunction to the plaintiff. If defendant appeals from this order to the Supreme Court, and desires protection against the enforcement of the order of this Court, he will be required to file a stay bond. Under the state of the record plaintiff is not required to give bond to protect the defendant.

Motion overruled.

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


author: By HURD, PJ.

text:
    KOENIGSHOFF, Incompetent, In re.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23128.
    Decided May 19, 1954.

      Saul S. Danaceau, Asst. County Pros., Cleveland, for plaintiff-appellee.
    Owen C. Neff, Cleveland, for defendant-appellant.
   OPINION

By HURD, PJ.

This is an appeal on questions of law from a judgment of the Probate Court, overruling a motion to strike and expunge from the files all proceedings relating to the appointment of a guardian of Dr. John A. Koenigshoff, a physician and surgeon, who had been adjudicated an incompetent and from a judgment denying the application of the guardian to terminate the guardianship.

On August 21, 1953, Kathleen Koenigshoff, the wife of said Dr. Koenigshoff, filed the original application in Probate Court alleging that her husband was an incompetent and that by reason thereof she requested appointment as guardian of his person and estate. At the same time, an application was filed to have Dr. Koenigshoff adjudged a person mentally ill. Both matters were set for hearing and were heard on August 28, 1953, on which date, on the basis of the application and a letter from a certain Dr. Ferrari, and on a hearing before a court deputy, Dr. Koenigshoff was adjudged an incompetent person and his wife, Kathleen Koenigshoff, was appointed guardian, by the court. The files at that time showed that Dr. Koenigshoff had been personally served by a deputy sheriff of Cuyahoga County on August 24, 1953, within three days prior to the hearing of the application, at which time Dr. Koenigshoff was at Marymount Hospital, having been admitted to that hospital on August 10, 1953, under the care of said Dr. Ferrari, where he voluntarily submitted to psychiatric treatment. His condition was then diagnosed as a nervous breakdown due to overwork. Previous to and at the time of admission to the hospital he had been taking certain drugs and sedatives. After about a week Dr. Koenigshoff began to talk about leaving the hospital. It appears that Dr. Ferrari believed that further treatment would be required, and believing that it would be impossible to keep Dr. Koenigshoff in the hospital without his consent, he advised his wife to go to Probate Court where she made the application above described. Dr. Koenigshoff was discharged from Marymount Hospital in about two weeks and thereafter was transferred to a private rest home where he remained another two weeks, after which he learned of the guardianship proceedings. Thereafter, in his own name, he filed a motion to strike from the record and expunge from the files all of the proceedings above described, on the ground that he had not been personally served with summons and that the proceedings were void ab initio. His wife, Kathleen, also filed an application to terminate the guardianship on the ground that “the said John A. Koenigshoff is now and always has been a person competent to care for his person, manage and control his estate and provide for his family.” Attached to her application is an affidavit which, in part, reads as follows:

“Kathleen Koenigshoff, being first duly sworn according to law, deposes and says that on or about the 28th day of August, 1953, she applied for and received letters of guardianship over the person and estate of her husband, John A. Koenigshoff; that at the presentation of said application she did not have the advice and assistance of counsel; that said application was presented under the mistaken belief that a guardianship was necessary, when in fact it was not; that no sufficient reason existed for said guardianship; that although she signed the application she was not aware of its significance nor did she fully realize the import of said guardianship.
“Affiant further says that John A. Koenigshoff is now and always has been a person fully competent to manage and control his person and his property and to provide for his family.” t

Both the motion of Dr. Koenigshoff and the application of his wife were set for hearing in Probate Court at which time a complete record was taken, as shown by a bill of exceptions filed in this appeal.

The Probate Court denied the motion on the ground that the movant had received actual notice and on the further ground that he had entered a general appearance by filing the motion, which, in the opinion of the Court, related back to the time of the original order and judgment and thereby he waived personal service of notice on the original hearing of August 28, 1953.

The application of Kathleen Koenigshoff was denied on the ground that Dr. Koenigshoff, at the time of the hearing, was an incompetent person. Motions for new trial were filed and overruled.

The sheriff’s return on the Application for Letters of Guardianship was signed by deputy sheriff, Lewis V Shram, who. when called as a witness by the movant, testified that he had never personally served notice of summons on Dr. Koenigshoff. Thereafter, Frank LoSchiavo, a deputy sheriff in charge of the district in which Marymount Hospital is located, was called as a witness, who also testified that he had never served notice of summons on Dr. Koenigshoff. Dr. Koenigshoff testified further in great detail as likewise did his wife, Kathleen Koenigshoff, who gave testimony directly substantiating the affidavit attached to her application to terminate the guardianship heretofore set forth. She further testified that when the application was presented, she at no time appeared before the Probate Judge; that the only appearance made was before a deputy clerk, lasting only a few minutes, and that she had been advised by a certain Dr. Hunter to bring her husband home, the latter having fully recovered.

Error is assigned as follows:—

“1. The court erred in holding that the movant had actual notice of the hearing within three days of August 28, 1953.
“2. The court erred in holding that actual notice is equivalent to personal service as required by the statute.
“3. The court erred in failing to strike the letter of Dr. Ferrari as incompetent and privileged.
“4. The court erred in failing to sustain the motion to quash service and in failing to grant the motion to strike from the files and expunge from the record.
“5. The court erred in holding that the movant had made a general appearance by filing the motion and application and that this general appearance related back to August 28, 1953 and gave the court jurisdiction over the person of John A. Koenigshoff, thereby waiving the requirement of personal service.
“6. The court erred in failing to grant the application to terminate the guardianship.
“7. The order of the court is clearly against the manifest weight of the evidence.
“8. Other errors apparent on the face of the record.”

In our opinion, the principal questions may be stated as follows:

(1) Where, upon an application filed with the Probate Court alleging a person to be mentally ill, and incompetent, a hearing is had inquiring into the status of such person’s incompetency, before a deputy clerk, and the Probate Court thereafter adjudges such person incompetent and thereafter it is conclusively shown that no notice was personally served upon such person, informing him of the application and the hearing, and no opportunity was given him to be heard, is the judgment of the Probate Court, declaring such person incompetent, void for lack of due process? And,

(2) Where a person having been adjudged incompetent under the facts and circumstances herein delineated, flies a motion to vacate such entry of incompetence,-does such action constitute an entry of appearance relating back to the time of notice of the original adjudication and in effect give the court jurisdiction over the person of the alleged incompetent, thereby waiving the requirement of personal service of notice required by statute?

We shall consider these questions in the order named.

The record of the hearing in this case to terminate the guardianship and to vacate the judgment of incompetency clearly shows by uncontradicted evidence that personal service of notice was never had or made upon the person of the alleged incompetent, nor is there any record that consent was given in writing by the alleged incompetent.

Sec. 10507-4 GC, then in force (comparable §2111.04 R. C.) so far as pertinent, reads as follows:

“Notice: No guardian of the person or of- the estate, or both shall be appointed until at least three days after the probate court has caused written notice, setting forth the time and place of the hearing, to be served upon the following persons:

* *
“(b) In the appointment of the guardian of an incompetent
“1. Personal service of such written notice upon the person for whom such appointment is sought.” (Emphasis supplied.)

Sec. 2111.04 R. C. is to the same effect, providing:

“1. Upon the person for whom such appointment is sought by personal service.”

A somewhat analogous question to that presented here, was under consideration in the case of In re Guardianship of Irvine, 72 Oh Ap 405, wherein the court held, as indicated by the syllabus, as follows:

“1. Rule 27 of the Uniform Rules of Practice in the Probate Courts of Ohio, adopted pursuant to §10501-13 GC, and providing that ‘in applications for the appointment of guardians for * * * incompetents * * * the notice to the proposed ward must be served by the sheriff or some other disinterested person,’ is reasonable and salutary, supplements §10507-4 GC, and does not contravene §10501-21 GC.”
“2. The spirit and purpose of the provisions of §10507-2 GC ‘that if the incompetency’ of an incompetent, ‘be due to physical disability or infirmity, the consent of the incompetent’ to the appointment of a guardian ‘must first be obtained,’ require that ‘the consent’ should be in writing or made in open court by the proposed ward who is mentally competent,”
“3. Where a guardian, the next of kin of the ward, was appointed by the Probate Court after hearing of an application of the guardian reciting that the named ward ‘is competent by reason of advanced age and physical disability’ notice of which hearing has been given the ward by such guardian only, the guardian, upon application of the ward must be removed and the ward restored to full control of her undiminished estate.”

The opinion concludes:

“It follows that the order and judgment of 'the probate court are reversed and the cause is remanded with instructions to the probate court to remove the guardian and to restore the appellant to full custody and control of her undiminished estate. It is further adjudged that appellee shall pay all oosts of suit, and all costs and charges of administering the purported guardianship, including her own attorney fees.”

In the recent case of In re Wertz, decided by the Court of Appeals of this District (No. 22978, March 10, 1954), it was held that the Probate Court erred in overruling appellant’s petition to vacate its order adjudging applicant mentally ill, where statutory requirements in respect to service of notice had not been complied with. While the original proceedings to secure a judgment of mental illness were instituted under §§11890-23 to 11890-27 GC (now §§5123.18 to 5123.23 E. C.) the same principles of law therein set forth are applicable here. This Court held that service of such notice was an essential element of such proceedings and that the commitment made without such notice was illegal and void. In the course of the opinion, Hunsicker, J., of the Ninth District, sitting by designation, speaking for a unanimous court, cited the case of State ex rel Parsons v. Bushong, Supt. etc., 92 Oh Ap 101, and stated that the Court was in agreement with the reasoning and conclusions of that case. In the latter case it was held, as appears by paragraphs 4 and 5 of the syllabus, as follows:

“4. In a proceeding' instituted in the probate court pursuant to §11890-23 GC, for the detention of a person thought to be mentally ill, such court exercises purely statutory jurisdiction and its record must show affirmatively the observance of all requisites to the exercise of such jurisdiction.

“5. In such proceeding, where the record fails to show compliance with the provisions of subdivision 1 of §11890-25 GC, requiring the giving of notice, the Probate Court is without jurisdiction.”

It is our conclusion, therefore, in the instant case, that the alleged incompetent not having been personally served with notice, as provided by law, and that upon such fact appearing upon the application to terminate the guardianship and upon the motion to vacate the entry of incompetency, the Probate Court erred prejudicially to the rights of the appellant in refusing to grant the motion and application.

We come now to consider the second question posed above, namely, the argument that the appellant entered his general appearance in Probate Court on November 4, 1953, by filing therein his motion to strike from the files and expunge from the record all proceedings and whether such appearance related back to the time of original hearing. We think this argument assumes a false premise and is therefore untenable. It assumes that the court having, without knowledge of failure of due process adjudged a person as incompetent, that such person, although incompetent in the judgment of thé court, waived a right peculiarly personal to him under the law, in seeking by the only means available to vacate such adjudication.

In the case of In re Guardianship of Irvine, supra, it was held inter alia that upon such an application to vacate an entry of incompetency, for want of jurisdiction due to failure of due process in compliance with statute, the applicant was not thereby attempting to relitigate the issue made and decided in the original application to appoint a guardian. This accords with sound reason and good logic.

Whichever horn of the dilemma is considered, the court is without jurisdiction to relate the issues to the original hearing. Either the person is competent, or incompetent. If he is, in fact, competent the court may not proceed to declare him incompetent. If he is incompetent, it is fundamental that he is not sui juris and the court may not then adjudicate his rights personal to him on the theory that he is competent, to waive such rights. Certainly, nothing could be done which would clothe the court with jurisdiction to re-adjudicate the original issue and to declare the person incompetent without due process.

The judgment having been void ab initio, not anything done thereafter can cure the initial defect, except by commencement of new proceedings.

It is fundamental that in a proceeding such as here under consideration, statutory requirements must be strictly adhered to and, in the important matter of service of process, compliance therewith is mandatory before the Court acquires jurisdiction.

In the case of Shaman v. Roberts, 87 Oh Ap 328 (1950) the Court of Appeals for Franklin County held:

“1. A judgment obtained without service of process on the defendant is void ab initio.
2. The provisions of §11631 to §11643 GC, inclusive, apply to voidable judgments only and have no application to void judgments.”

To the same effect see also:

Snyder v. Clough, 71 Oh Ap 440; Levy v. Foley, 75 Oh Ap 220.

For authorities of other jurisdictions which uphold the principle that notice is an essential element in such proceedings as are now before us, see also:

Simon v. Craft, 182 U. S. 427.

Barry v. Hall, 98 Fed. 2d 222.

In re Masters, 216 Minn. 553.

In re Application of Wellman, 3 Kan. App. 100.

In view of our* decision on these questions, we think it unnecssary to consider other grounds of error assigned. Nevertheless, we are of the opinion that whatever may have been the condition of the appellant at the time of the original hearing, the finding that he was incompetent at the time of hearing to vacate and terminate the guardianship is, in our opinion, clearly against the manifest weight of the evidence.

For the reasons stated, the rulings and judgment of the Probate Court are reversed and the cause is remanded with instructions to grant the motions to terminate the guardianship and to restore the appellant to full custody and control of his estate, in conformity with this opinion. A journal entry may be drawn with appropriate orders in conformity herewith. Exceptions noted.

KOVACHY, J, SKEEL, J, concur.


author: By CASE, J.

text:
    MECUM, Plaintiff, v. BESHORE, Defendant.
    Common Pleas Court, Fayette County.
    No. 21412.
    Decided April 26, 1954.

      Stephen M. Young, Cleveland, John C. Fontana, Columbus, for plaintiff.
    Otis B. Core, Washington C. H., for defendant.
   OPINION

By CASE, J.

On December 3, 1953, Plaintiff filed her third amended petition herein; and on December 15, 1953, Defendant, Earl R. Beshore, filed his motion thereto which reads:

“Now comes the defendant and moves the court for an order striking from plaintiff’s third amended petition the specifications of negligence either severally, separately, or parts thereof, beginning with the third paragraph on page 1 of the petition and running through the second specification on page 2 thereof.
“The defendant further moves the court to strike from said petition the last paragraph thereof pertaining to interrogatories immediately preceding the prayer.”

Those portions of Plaintiff’s third amended petition so objected to read:

“Plaintiff further says that the Defendant Earl R. Beshore was negligent in the operation of said Ford truck in the following particulars, to-wit:
“FIRST: That he was careless and negligent in operating said truck at a greater speed than was reasonable and proper in the following manner, to-wit:
“(a) That he operated said truck at a rate of speed that was greater than was reasonable and proper having due regard to the traffic, surface and width of the highway and of the conditions then and there existing, to-wit: At a rate of speed of at least 55 miles per hour.
“(b) That while the defendant operated his truck upon the southerly half of said highway, to-wit: upon the same side that the automobile in which plaintiff was riding, was being operated; that he operated the same at a speed greater than would permit him to bring said truck to a stop within the assured clear distance ahead and on the south side of said highway, the rate of speed being about 55 miles per hour.
“SECOND: That the defendant operated said truck from the north or right hand side of the highway onto the south or wrong side of said highway and failed to yield the right of way thereon to the automobile in which plaintiff was riding; that the defendant failed to keep a lookout as he approached the automobile where this plaintiff was riding and failed to exercise any care whatsoever to avoid striking the automobile occupied by the plaintiff.
“Plaintiff further says that she has no information concerning the circumstances surrounding the operation and ownership of the automotive truck involved in the collision, all of which is material to the Plaintiff’s cause of action herein set forth, and has no means of obtaining said information except by annexing to this petition interrogatories pertaining thereto and directed to the Defendant to be answered by him.”

Defendant’s memorandum in support of said motion to strike reads:

“I
“In the second paragraph of plaintiff’s third amended petition the plaintiff attempts to set forth operative facts. However, the petition goes on in the third, fourth, fifth, sixth and seventh paragraphs to hash the matter over again and again by the use of redundant words prejudicial to defendant’s rights before a court and jury.
“The defendant objects to the following words:
“1. In the third paragraph ‘was negligent in the operating of said Ford truck.’ Repeated in the fourth paragraph ‘was careless and negligent in operating said truck.’
“2. In the fourth paragraph ‘than was reasonable and proper’ repeated in the fifth paragraph ‘than was reasonable and proper.’
“3. In the fifth paragraph the words ‘at a rate of speed of at least 55 miles per hour’ repeated in the sixth paragraph ‘the rate of speed being about 55 miles per hour.’
"4. In the second paragraph of the petition it is set forth that the plaintiff was going in the general easterly direction and the defendant was going in the opposite direction on U. S. Route 22 and the defendant veered onto the wrong side of the road; in the sixth paragraph it is said ‘that while the defendant operated his truck upon the southerly half of said highway, to-wit; upon the same side that the automobile in which this plaintiff was riding was being operated.’ This is again repeated under the second paragraph on the second page where the petition says ‘that the defendant operated said truck from the north or right hand side of the highway onto the south or wrong side of said highway and failed to yield the right-of-way.’
“The pleading is replete with conclusions, repetitions and surplusage. This is certainly not concise language.
“ ‘The first pleading shall be the petition by the plaintiff which must contain: a statement of facts constituting a cause of action in ordinary and concise language . . . .’ Sec. 2309.04 R. C. (formerly §11305 GC.).
“See also McCune v. Industrial Nucleonics Corp., 63 Abs 449.
“See also Harris v. Webb 22 O. N. P. (ns) 359.
“II
“The defendant also objects to that part of the first specification worded as follows:
“1. ‘At a greater speed than was reasonable and proper.’
“2. ‘That he operated said truck at a rate of speed that was greater than was reasonable and proper having due regard to the traffic, surface and width of the highway and of the conditions then and there existing, to-wit: at a rate of speed of at least 55 miles per hour.’
“No operative facts are made whatever as to the traffic, surface and width of the highway and of the conditions then and there existing. What were their conditions? Since speed is not 'of itself negligence per se, all or part of this paragraph should be stricken. See Swoboda v. Brown, 129 Oh St 512.
“ ‘It is a fundamental principle that a pleading should state facts and only facts, and not mere legal conclusions or the conclusions of the pleader. It is the duty of the court to declare the conclusions and of the pleader to state the premises.’ 31 O. Jur., 552-3.
“III
“In the first specification of negligence labeled (b) it is attempted to bring in the principle of ‘assured clear distance ahead.’ It is well established that §4511.21 R. C. (formerly §6307-21 GC) has no application to this situation.
“See Thompson, Admx v. Kerr, 39 Abs 113.
“ ‘The assured clear distance ahead provision of §12603 GC is intended solely for the protection of persons, vehicles and objects in the same lane of traffic and has no application where a vehicle properly in a lane of traffic departs suddenly therefrom and crossed the highway ahead of and into the proper lane of traffic of an approaching vehicle; an instruction on it in the latter case constituted reversible error.’
“See also Erdman v. Mestrovich, 155 Oh St 85.
“These authorities clearly hold that ‘assured clear distance ahead’ has no application to approaching vehicles from the opposite direction.
“IV
“In the specification labeled Second there is again a rehash of repetition and irrelevant matter charging the defendant drove on the wrong side of the highway; failed to yield the right-of-way; failed to keep a look-out; and failed to avoid striking the automobile occupied by plaintiff.
“ ‘A pleader should allege only material and issuable facts, and those facts only, which constitute his cause of action or defense. Immaterial facts should not be alleged, and if alleged, may on motion be stricken out.’ (31 O. Jur., 546.)
“Under the essential facts alleged in the petition there was but one actionable negligent act of the defendant—not four. That negligible act consisted of the breach of duty which defendant owed to the plaintiff not to drive his truck upon the left half of the highway where the plaintiff had the right to be.
“PART 2
“The last paragraph immediately preceding the prayer of the petition attempts to explain the reason for attaching interrogatories. Such allegations can not be material or issuable facts such as may only be included in the pleading. They are immaterial and irrelevant. This paragraph has no place in the petition according to the most rudimentary elements and principles of pleading.”

The contra memorandum filed by Plaintiff herein, in so far as it opposes Defendant’s aforesaid motion and memorandum, reads:

“The third amended petition is we believe in the from ordinarily used in all courts and we think that the motion to strike should be overruled. * * *”

Coming now to consider that portion of Défendant’s motion, which seeks to have the above quoted specifications of negligence stricken from Plaintiff’s third amended petition, this Court is of the opinion that the authorities cited and arguments set forth in Defendant’s memorandum are appropriate and sufficient to sustain and warrant the granting thereof.

Although it does not appear that further citations and discussion are necessary or required, it is pertinent to note the following comments of Judge Bell in grainting a similar motion in the case of Brown v. Pollard, 51 O. O. 214, 66 Abs 253, 112 N. E. (2d) 692:

“Counsel for plaintiff has stated in his memorandum that ‘it has long been a form of good pleading to separately state and number different specifications of negligence.’ This court cannot agree that it constitutes good pleading. I realize that due to the tolerance by courts, both trial and review, of the practice of setting out specifications of negligence they have received some measure of respectability in pleading, to the extent even that they are included in some of the form books. But I am also firmly convinced that in the vast majority of cases in which they are used they are unnecessary and in many cases improper. Such specifications can be intended for but one of two reasons: either they are designed to influence perhaps prejudice, a jury; or they are intended to inform the court of what he is expected to charge. If for the former reason, they are improper; if for the latter, they are in most cases unnecessary.
“Specifications of negligence such as appear in this petition (although no more so here than in the vast majority of cases) are an open invitation to opposing counsel to move to strike them. And thus they become a gateway through which enters much of the criticism of ‘too much delay’ that is often directed, with considerable justification, at the legal profession.”

This Court is in accord with and subscribes to the comments and reasoning of Judge Bell as quoted and set forth above.

The Court comes now to consider that portion of Defendant’s motion which seeks “to strike from said petition the last paragraph thereof pertaining to interrogatories” and PART 2 of defendant’s memorandum in support thereof which reads:

“The last paragraph immediately preceding the prayer of the petition attempts to explain the reason for attaching interrogatories. Such allegations can not be material or issuable facts such as may only be included in the pleading. They are immaterial and irrelevant. This paragraph has no place in the petition according to the most rudimentary elements and principles of pleading.”

The paragraph which Defendant seeks to have stricken reads:

“Plaintiff further says that she has no information concerning the circumstances surrounding the operation and ownership of the automotive truck involved in the collision, all of which is material to the Plaintiff’s cause of action herein set forth, and has no means of obtaining said information except by-annexing to this petition interrogatories pertaining thereto and directed to the Defendant to be answered by him.”

Sec. 2309.43 R. C. (formerly §11348 GC), reads:

“A party may annex to his pleading, other than a demurrer, interrogatories pertinent to the issue made in the pleadings, which interrogatories, if not demurred to, shall be plainly and fully answered under oath by the party to whom they are propounded, or if such party is a corporation, by the president, secretary, or other officer thereof, as the party propounding requires.”

Such statutory authority, to attach interrogatories to a pleading, is clear and specific. No explanatory contingency or condition precedent is indicated as a prerequisite to the exercise thereof. By the express provisions of the statute, the pleader is thereby granted the absolute and positive right to so attach such interrogatories without being required to state or specify any reason or explanation for attaching same.

It is equally clear that any objection with respect to the relevancy, materiality, pertinency and propriety of all or any portion of such interrogatories can be raised and objected to only by the filing of a demurrer to said interrogatories.

Therefore, in order to comply with approved and established rules of good pleading, the pleader, in exercising such statutory authority, should confine his statements, concerning the attachment of interrogatories to such pleading, to simple and unembelished assertions that such interrogatories have been so attached to his pleading together with an equally simple request that the opposing party be required to answer same plainly and fully under oath.

When the pleader goes beyond the ordinary and usual meaning of the language set forth in §2309.43 R. C., by stating in his pleading some reason or explanation for such attachment, it is clear that the pleader seeks to prematurely raise issues which are properly and solely confined to determination upon demurrer to such interrogatories as specifically provided for in the statute. Therefore, such reasons and explanation, so set forth in his pleading, are contrary to the express intent and purpose of said §2309.43 R. C.

It is also clear that such reasons and explanation might be motivated with desire and intent on the part of the pleader to influence or prejudice a jury or to inform the court, in advanee of an anticipated demurrer thereto, of justification for the information so requested. Obviously, any such desire or intent to influence or prejudice a jury is highly improper; and such advance reasoning to the court, upon the issues that might be raised by subsequent demurrer, are equally improper and unnecessary.

The contra memorandum filed by Plaintiff herein, in so far as it opposes Defendant’s aforesaid motion and Part 2 of Defendant’s memorandum, reads:

“* * * the case of Deckbrader v. New York Central Railroad, 64 Abs 586, there seems to be some decision of the court on it. Sec. 2301-7 R. C. seems to indicate the propriety of the Interrogatories which we think is sufficient to eliminate the objection to them. * * *”

The report of that case sets forth the entire petition of plaintiff therein and the only portion thereof pertaining to attachment of interrogatories reads as follows:

“Plaintiff attaches hereto certain interrogatories and requests that an officer of defendant corporation be required to answer same plainly and fully under oath.”

The above quotation from plaintiff’s petition in the Deckbrader case, supra, is clear and concise in purpose and intent. It is in complete accord with approved and recognized rules of good pleading and properly exercises the statutory authority to attach interrogatories; and it does so without appearing to abuse such right for it refrains from the insertion of allegations or argumentative assertions which could be designed to influence or prejudice a jury, or which could be designed to prematurely urge upon the court some argument or justification for sustaining such interrogatories upon the anticipated and subsequent filing of a demurrer thereto by defendant.

In the case at bar, however, the allegations and assertions contained in that paragraph of Plaintiff’s petition, pertaining to interrogatories attached thereto, are clearly a violation of the rules of good pleading and constitute an abuse of the express purpose and intent of §2309.43 R. C. Therefore, it appears that Defendant’s motion, in so far as it seeks to strike said paragraph from Plaintiff’s petition, is well made and should be sustained.

For the reasons and upon the grounds above set forth and discussed, this Court finds that:

1. That Defendant’s motion, in so far as it seeks an order to strike the FIRST and SECOND specifications of negligence from Plaintiff’s third amended petition, is well made and should be sustained; and

2. That Defendant’s motion, in so far as it seeks an order to strike from said petition the paragraph thereof pertaining to interrogatories, is well made and should be sustained.

The Court further finds that Counsel for Defendant should prepare an entry accordingly with appropriate notation therein of exceptions on behalf of Plaintiff and thereupon submit same within fifteen (15) days to Counsel for Plaintiff and to this Court for approval; and that said entry should also grant leave for Plaintiff to file an amended petition on or before June 1, 1954.


author: By THE COURT.

text:
    HARPER, Plaintiff and Relator, v. FRANKLIN COUNTY CHILD WELFARE BOARD et, Defendants.
    Ohio Appeals, Second District, Franklin County.
    No. 4825.
    Decided March 3, 1954.
    Isadore L. Margulis, Columbus, for plaintiff and relator.
    Frank H. Kearns, Pros. Atty., Earl W. Allison, Jr., Asst. Pros. Atty., Columbus, for defendants.
   OPINION

By THE COURT.

This is an original action in mandamus wherein the relatrix is seeking restoration to her former position of “Housekeeper” in the Franklin County Children’s Home, and seeking further that the respondents recognize her as the lawful incumbent of the position. The respondents to the action are the members of the Franklin County. Child Welfare Board and the Franklin County Commissioners, the names of whom do not become pertinent.

The petition alleges facts showing that the relatrix was regularly appointed to the position of “Housekeeper” in said Children’s Home; that the position is held under the Civil Service laws of this state; that on April 25, 1949, the relatrix and the Civil Service Commission were notified by letter from Carl T. Melvin, Superintendent of said Home, that the aforesaid position of “Housekeeper” was being abolished as an economy measure due to a deficit in funds for the institution; that said order of removal was void and of no effect for the reason that it was issued in bad faith and for political reasons and that it was issued without the authority of the Welfare Board.

The answer admits the capacity of the defendants as pleaded, the employment of the relatrix as housekeeper, the abolishment of the position without the authority of the Board, and denies all other material allegations set forth in the petition.

The answer further provides that,

“On or about the 9th day of July, 1949 the Court of Common Pleas of Franklin County, Ohio, in an action for a declaratory judgment therein pending, being case No. 177538, wherein the relator, Mabel Harper, was the plaintiff and the Child Welfare Board, and Carl T. Melvin, then Superintendent of the Children’s Home, were defendants, and wherein was requested the Court’s determination of the question as to where was reposed the authority for the creation of jobs such as was held by relator, and for the hiring and firing of personnel in such jobs, a decision was rendered to the effect that the sole authority for creation of such jobs, and the hiring and firing of personnel in such jobs, was in the Superintendent of the Children’s Home exclusively. The decision was based on the same facts stated by relator in this action, and is decisive of the question of the authority and responsibility of the respondents in this action.
“Respondents further say that said decision is a full and complete bar to relator’s cause of action herein.”

The first question for consideration will be whether the prior action set forth in the answer is. a bar to the present proceeding. In this case, which is No. 177,538 in the Court of Common Pleas for Franklin County, the petition, after setting forth the capacity of the various defendants, provides;

“Plaintiff says that she was in the employ of the defendant, Superintendent Carl T. Melvin, of the Franklin County Children’s Home, up to and including May 1, 1949. That she was employed for said position and functioned in that capacity from on or about the first day of September, 1946, to and including said May 1, 1949.
“The plaintiff says that she has not resigned from said position, nor have any charges been filed against her before the proper authorities for incompetency, or any other cause, and that the Civil Service Commission of Ohio has no record up to date of any resignation by plaintiff from said position.
“Plaintiff says that under the present circumstances she does not know whether the defendant, the Superintendent of said institution, Carl T. Melvin, or the Child Welfare Board of said institution has the power and control and supervision of said institution, because said Superintendent and said Board have been in dispute for the past several weeks as to matters of jurisdiction and power in the operation of said institution. Plaintiff says that this condition has prevailed for the past several weeks and is the cause of uncertainty and confusion among the employes of said institution and has not been good for the morale of those operating and working in said institution nor the inmates thereof. That said situation has not been good for the institution in its service to the orphan children of Franklin County, Ohio. Plaintiff says that this is a matter of first public interest and that a court of competent jurisdiction should be respectfully asked to interpret the law under which defendant parties herein operate, to the end that a proper instruction can be given to the respective defendant parties as to their powers and responsibilities in serving the public in this important and necessary beneficient service, and especially in the employment and control of employes of said institution.
“Plaintiff says that she was notified by the defendant Superintendent in writing that her position was abolished by said defendant Superintendent as of May 3, 1949, and said plaintiff is now properly on the list of the Civil Service Commission of Ohio, as required by law, and that her position as housekeeper in said institution being abolished, no such position can be re-created in fact or in name within one year without restoring her to that service. Plaintiff says that the defendant Superintendent refuses to re-establish said abolished position of housekeeper in said institution.
“Plaintiff further says that the defendant board has indicated to her through its various members that her position is not abolished, because it was not done by Mr. Melvin with the consent and approval of said defendant Board. Plaintiff now knows only that she is not working at that institution, -and she also knows that the defendant Superintendent refuses to reinstate her and that the Board up to the present time has not been willing or able to effect her reinstatement in said position or effect re-creation by the Superintendent.
“Plaintiff also says that there has been and still is a wide difference of opinion between the defendants herein as to their jurisdiction and power in this matter and that they have disagreed as to the right of the Board to compel testimony in some kind of investigation a few weeks ago, and that plaintiff through the President of the Board and the notification by the Executive Secretary of the Board, appeared and gave testimony. The Superintendent immediately thereafter refused to permit said plaintiff to return to work, and he thereafter, as aforesaid, abolished her position.”

The answer to the petition admits the capacity of the parties, the employment of the relatrix, and for want of information denies all other allegations in the petition.

It further avers that the Welfare Board never received the resignation of the relatrix nor has it taken any action toward the abolition of the said position. It also asks that the rights and powers of the respective defendants be determined by the Court.

The defendant, Carl T. Melvin, demurred to the petition upon the grounds that a cause of action was not stated. The judgment of the Common Pleas Court in this case was “* * * that at the time the defendant Carl T. Melvin, Superintendent of the Franklin County Children’s Home abolished the position of plaintiff as housekeeper at said Home, he had sole authority so to do and that such action did not require any prior authorization from or subsequent approval by the Child Welfare Board.” This judgment was never appealed and therefore is res adjudicata as to all issues raised by the pleadings as well as to all other questions which might have been properly litigated in the case. Quinn v. State, 118 Oh St 48. We think it clear that the rights’of the relatrix could have been determined in the action set forth as a defense in the answer. In case No. 4802 in this Court and reported in 64 Abs 502, the action was one by the relatrix herein to recover a money judgment for her services while wrongfully discharged. In this case Hornbeck, J., at page 506 said:

“At this juncture, it is obvious that unless and until this judgment was reversed or modified the plaintiff was foreclosed thereafter in asserting in any court, in any proceeding, between herself and any party to the judgment, that her former position had not been legally abolished, if that judgment was properly set up as a bar.
“This principle of law is elementary and none is better established. As early as Babcock & Co. v. Camp, 12 Oh St 11, it is held:
“ ‘any matter regularly determined, in whatever form, by a competent tribunal, is now open to inquiry in any other proceeding by the same parties.’
“And later, that a judgment is ‘entitled to full faith and credit until reversed or modified, Fishman v. Bricker, 19 Abs 528, whether the facts before the Court warranted the judgment or not.’ Hill v. Buchanan, 6 O. Supp. 230; 21 O. O. 24.
“Although there was ample time for plaintiff to perfect and prosecute an appeal from the declaratory judgment even after the trial on her second action had begun no such step was taken.”

It is therefore our conclusion that the judgment set forth in the answer is a complete bar to this action.

The defendants urge further that the action should be dismissed because there is a misjoinder of parties defendant in that the Superintendent of the Franklin County Children’s Home has not been made a party to the action. By virtue of §3070-13 GC he has sole authority to appoint all employees of the Home. Judge Leach so held and we think properly so in the declaratory judgment action which was pleaded as a defense to this action. It would therefore follow that an order of mandamus restoring relatrix to her former position would necessarily have to be directed to the Superintendent of the Home. For failure to make him a party to this action, the same should also be dismissed. We regret that the relief here sought is not now available to this plaintiff, for it appears to us from a study of the entire record that her discharge was occasioned by an abuse of discretion exercised by the Superintendent of the Home. As previously indicated, this issue should have been presented in the original action.

The writ will be denied.

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


author: By GABEL, J.

text:
    SPIELDENNER, Extrx., Plaintiff, v. SPIELDENNER et, Defendants.
    Probate Court, Sandusky County.
    No. 23704.
    Decided April 20, 1954.
    Leo W. Kenny, Fremont for plaintiff.
    John D. Starn, Fremont, for guardian ad litem.
   OPINION

By GABEL, J.

Rita M. Spieldenner, as executrix of the estate of Robert S. Spieldenner, deceased, filed a petition in this Court asking the Court's determination of the rights of a posthumous child under the last will and testament of the decedent.

Under date of June 19, 1953, Robert S. Spieldenner executed his last will and testament. Item 1 thereof provides for the payment of debts. Item 2 is as follows: “All the property, real and personal, of every kind and description, wheresoever situate, which I may own or have the right to dispose of at the time of my decease, I give, bequeath and devise to my wife, Rita M. Spieldenner, absolutely and in fee simple.” Item 3 nominates Rita M. Spieldenner executrix and authorizes her to compound and compromise claims and to sell any or all of the estate as she deems best and to execute and deliver instruments of conveyance therefor. At the time of executing the will, Robert S. Spieldenner was in ill health. He had six children, ranging in age from 1% years to 11 years, and his wife was pregnant six months with the seventh child. The seventh child was born three months after the execution of the will, to-wit, September 18, 1953. The testator died 38 days after the execution of the will, to-wit, July 27, 1953.

Sec. 10504-49 GC (§2107.34 R. C.) provides as follows: “If, after making a last will and testament, a testator has a child born alive, or adopts a child, or designates an heir * * * or if a child or designated heir absent and reported to be dead proves to be alive, and no provision has been made in such will or by settlement for such pretermitted child or heir, or for the issue thereof, the will shall not be revoked; but unless it appears by such will that it was the intention of the testator to disinherit such pretermitted child or heir, the devises and legacies granted by such will shall be abated proportionately or in such manner as is necessary to give effect to the intention of the testator as shown by the will, so that such pretermitted child or heir will receive a share equal to that which such person would have been entitled to receive out of the estate if such testator had died intestate.”

The above quoted portion of §10504-49 GC is the portion thereof affecting the rights of the after-born child. This section of the code, as amended, became effective January 1, 1932. Prior to January 1, 1932, the old statutes with reference to pretermitted children provided as follows: Sec. 10561 GC: “If the testator had no children at the time of executing his will, but afterward has a child living, or born alive after his death, such will shall be revoked, unleSs provision has been made for such child by some settlement, or he is provided for in the will, or in such way mentioned therein as to show an intention not to make such provision. No other evidence to rebut the presumption of revocation shall be received.” Sec. 10563 GC provided as follows: “When, at the time of executing his will, a testator has a child absent and reported to be dead, or having a child at the time of executing the will, afterwards has a child not provided for therein, the absent child, or child born after executing the will, shall take the same share of the estate, real and personal, that he would have been entitled to if the testator had died intestate.”

Old §10563 GC would be controlling if it were still in effect. It will be noted that under the old statute, as set out above, the provision for an after-born child was mandatory. There are no exceptions provided for in this statute and there is no escape from the obligation to an after-born child except where the will clearly and definitely provides for said child. In other words, the old statute placed a definite limitation upon the right of a testator to dispose of this estate where an after-born child was involved. Under §10504-49 GC (§2107.34 R. C.), the language “unless it appears by such will that it was the intention of the testator to disinherit such pretermitted child or heir” leaves the door open to interpretation and construction.

Does the language “unless it appears by such will that it was the intention to disinherit such pretermitted child or heir” limit the Court to an expressed intention or may such an intention be implied from the facts and circumstances surrounding the testator at the time of the execution of the will? I can find no decided case in Ohio that construes this language. The Court must therefore resort to the statutes and decisions of other states having statutes of similar language. Illinois, Kentucky, and Tennessee have statutes of a similar nature and all of these states hold in their decisions that the intention to disinherit a pretermitted child may be implied from the language of the will and from the circumstances surrounding the execution of the will. A complete annotation of this question is found in 170 A. L. R. beginning at Page 1317. The case of Carl A. Hedlund, et al v. Lois Sweet Miner decided by the Supreme Court of Illinois on November 20, 1946 and reported in'395 111. 217 has a complete analysis of this question as it has been decided by the Courts of Illinois under a statute that has the exact language of the Ohio statute. Syllabus 3 of said case holds as follows: “Under a statute giving an afterborn child not mentioned in the will of its parent a child’s "share of the parent’s estate, unless it appears by the will that it was the intention of the testator to disinherit the child, a testator’s intention to disinherit an after-born child need not be declared in express terms, but may be drawn from the language of the will construed in connection with the facts and circumstances surrounding the testator when the will was made.” This ease further holds that under a statute providing for after-born children, where at the time of execution, testator has living children whom he disinherits, little short of an express provision in the will for an after-born child will be construed as sufficient to give said child a share and by the same token, where a testator provides for living children and fails to provide for an after-born child, nothing short of an express disinheritance will cut off a pretermitted child.

The will submitted for construction in this case leaves the entire estate to the surviving spouse, makes no provision whatever for six living children and makes no mention of an after-born child of whom the testator was fully aware at the time he made his will. There can be no conjecture about the father’s intention in this case. He was aware of his six living children. He was aware of the child in the womb of his wife and, still, in definite and express language left his entire estate to his spouse. Can any other intention be drawn from the language of the will other than an intention to leave nothing to any child born or unborn? It is the opinion of the Court that testimony may be taken as to extrinsic circumstances surrounding the execution of the will. In this case, the testimony revealed that the testator was in ill health, that he was the owner of a 100 acre farm with equipment and livestock thereon, that he was the father of six living children, that his wife was pregnant at least six months with the seventh child, and that he had discussed his intention with his wife to give to her his entire estate so that she would have adequate means to provide for and support the children living and the child yet unborn. He undoubtedly concluded that by leaving everything to his wife, the living children and the child enceinte were as fully disinherited by the provisions of his will as if it had been done by particular reference to each child.

It is evident from the wording of our present statute and with particular reference to the language “unless it appears by such will that it was the intention of the testator to disinherit such pretermitted child or heir” that the controlling factor is the testamentary intent of the testator and in order to remove the will from the operation of the statute the intention to disinherit must appear by the will. It is always the duty of the Court in construing a will to determine the intention of the testator. Of course, this intention must be determined by the language of the will interpreted in view of the facts and circumstances surrounding the testator at the time of execution. Hedlund v. Miner, 395 111. 217, uses the following language in discussing a situation similar to the one involved in this case: “The object of the statute is not to control the intention of the parent or to restrict his absolute power to disinherit any child, whether living or subsequently born, but only to provide for such after-born children as were neither provided for nor disinherited in the will. The rule laid down in the cases involving the application of the statute is, that although the testator’s intention to disinherit after-born children must be drawn from the will itself, it is not essential that such intention be declared in express terms, but the same may be drawn from the language of the will when construed in connection with the proved facts and circumstances surrounding the testator when the will was made.” Other cases making a similar holding are as follows: Fleming v. Phoenix, 162 Tenn. 511; Leonard v. Enochs, 92 Ky. 186; Hawhe v. Chicago and W. I. R. Co., 165 111. 561. All of these cases cited above refer to a situation similar to the one cited in this opinion.

It is, therefore, the holding of this Court that, where a testator at the time of the execution of his will has six living children and his wife is six months pregnant with a seventh child and the evidence reveals that the testator was fully aware of the prospective birth of the seventh child within a few months time, and, under these circumstances devises his entire estate to his spouse without reference to the living children and the child yet unborn, an intention to disinherit said after-born child may be implied from the language of the will and the' after-born child has no interest in the estate.

Entry will be drawn by attorney for the executor in accordance with this opinion.


author: By BARTLETT, J.

text:
    McCOMAS, Appellant, v. BUREAU OF UNEMPLOYMENT COMPENSATION OF OHIO et, Appellees.
    Common Pleas Court, Franklin County.
    No. 188231.
    Decided May 7, 1954.

      Lewis M. Levinson, Columbus, for appellant.
    C. William O’Neill, Atty. Geni., John W. Hardwick, Asst. Atty. Geni., Columbus, for appellees.
   OPINION

By BARTLETT, J.

This is an appeal to this court from the decision of the Administrator and of the Board of Review of the Bureau of Unemployment Compensation of Ohio, under §4141.28 R. C. (formerly §1346-4 GC), the pertinent part of said section providing as follows:

“If the court finds that the decision was unlawful, unreasonable, or against the manifest weight of the evidence, it shall reverse and vacate such decision or it may modify such decision and enter final judgment in accordance with such modification; otherwise such court shall affirm such decision.”

“The burden of proof is upon the claimant to establish the right to unemployment benefits under the unemployment compensation law of Ohio.” Shannon v. Bureau of Unemployment Compensation, 155 Oh St 53.

“The decision of purely factual questions is primarily within the province of the referee and the Board of Review. The Courts reverse such decisions only when found to be contrary to law or against the manifest weight of the evidence.” Brown-Brockmeyer v. Roach, 148 Oh St 511, 518.

“It is the duty of a party on whom the burden of proof rests to produce evidence which furnishes a reasonable basis for sustaining his claim." Stevens v. Industrial Commission, 145 Oh St 198.

This court hearing the matter on appeal in the light of the record, cannot say that the decision is unlawful or unreasonable, and, most certainly, there is not sufficient evidence in the record, to warrant a finding by the Court that the decision is against the manifest weight of the evidence.

The court, therefore, affirms such decision, and denies the appeal therefrom.

Entry accordingly with exceptions by counsel for appellant.