author: By CECIL, J.

text:
    MOON, Plaintiff, v. MAKOWSKI et, Defendants.
    United States District Court, S. D. Ohio, W. D.
    No. 1624.
    Decided August 14, 1953.

      Pickrel, Schaeffer & Ebeling, Dayton, for plaintiff.
    Curtner, Brenton & O’Hara, Dayton, for defendants.
   OPINION

By CECIL, J.

The plaintiff, Mrs. Willie Moon, filed a petition in Greene county, on August 12, 1952, to recover from defendants Walter J. Makowski and Harold F. Scudder, seventy-five hundred dollars ($7500.00) for damages alleged to have been sustained by the negligence of the defendants through the operation of a trailer-tractor. The defendant caused the case to be removed to this court on September 19, 1952, on ground of diversity of citizenship.

It is now before the court on a motion of plaintiff for an order dismissing the defendant’s petition for removal and remanding it to the Court of Common Pleas, Greene county.

The claim of the plaintiff is that the petition for removal was not filed within the 20 days prescribed by Section 1446 (b), Title 28 of U. S. C. A. This part of the statute reads as follows:

“The petition for removal of a civil action or proceeding shall be filed within 20 days after the receipt by the defendant through service or otherwise, of a copy of the initial pleading, setting forth the claim for relief upon which such action or proceeding is based, or within 20 days after the service of summons upon the defendant if such initial pleading has been filed in court and is not required to be served on the defendant, whichever period is shorter.”

The defendants were sued and served with process under and by virtue of §§6308-1 and 2 GC (§2703.20 R. C.).

Sec. 6308-1 GC (§2703.20 R. C.) provides generally that a non-resident of the state of Ohio, in return for the privilege of driving his motor vehicle on the highways of Ohio, makes the Secretary of State his agent for the service of process in any civil suit instituted in the courts of Ohio against the operator or owner of such motor vehicle, arising out of a collision within the state in which such motor vehicle is involved.

Sec. 6308-2 GC (§2703.20 R. C.) fixes the method of service, which is that process shall be served “upon the Secretary of State of the state of Ohio, by leaving at the office of said secretary at least fifteen days before the return day of such process a true and attested copy thereof and by sending to the defendant by registered mail, postage prepaid, a like, true and attested copy thereof with an endorsement thereon of the service upon said Secretary of State, addressed to such defendant at his last known address. The registered mail return receipt of such defendant shall be attached to and made a part of the return of service of such process.”

Summons was served on the Secretary of State, August 20, 1952. Thereafter notice to the defendant of such notice was posted on August 26, 1952. This notice was received by the defendant on September 2, 1952.

Counsel have not cited any cases in their briefs, nor has the court found any that are determinative of the question presented here. There are no reported decisions wherein the United States district judges of Ohio have interpreted the so-called “long arm statutes of Ohio.” Reference is made to a decision of The Honorable Robert R. Nevin, predecessor judge of this court, but there is no decision on record. The reported decisions in the district courts are in conflict: Helgeson v. Barz, et al., 89 Fed. Supp., 429; Merz v. Dixon, 95 Fed. Supp., 193; Welker v. Hefner, et al., 97 Fed. Supp., 630; Bohn v. Lester, 102 Fed. Supp., 261.

Statutes of a type now under consideration are not only derogatory of the common law but they are a modern innovation. The entire population has taken to wheels and moves with great rapidity from state to state. The automobile is potentially a dangerous machine if not operated with due care and it is a fair exercise of legislative authority in the interests of promotion of justice to require a non-resident motorist answer for damages caused by his negligence in a state whose highway he had had the privilege of using. Hess v. Pawloski, 274 U. S. 352.

The courts have held that in order to sustain these statutes there must be provision making it reasonably probable that notice of the service on the state official will be communicated to the defendants. Hess v. Pawolski, supra; Winchester v. Pizzutti, 27 U. S., 13.

The provision for notice to the defendant is as vital a part of the proceedings as service on the Secretary of, State. The Secretary of State is not the unqualified agent of the defendant. Service on the Secretary of State alone is not sufficient. He is the agent of the defendant when notice has been given to the defendant.

There is no adequate reason for fixing the time for removing as of the date of service on the Secretary of State. There is good reason for dating it from the day of notice to the defendant. The non-resident defendant is not brought into the state of Ohio on the basis of a penal liability against him but rather in the public interest.

In the public interest the state may make and enforce regulations reasonably calculated to promote care on the part of all, residents and non-residents alike, who use its highways. The measure in question operates to require a non-resident to answer for his conduct in the state where arise causes of action alleged against him, as well as to provide for a claimant a convenient method by which he may sue to enforce his rights. Under the statute the implied consent is limited to proceedings growing out of accidents or collisions on a highway in which the non-resident may be involved. It is required that he actually receive and receipt for notice of the service and a copy of the process. And it contemplates such continuances as may be found necessary to give reasonable time and opportunity for defense. Hess v. Pawloski, 274 U. 35-2-356, supra.

Cases arising by virtue of statutes like the Ohio statute, now under consideration, are diversity of citizenship cases in which the right to remove ought to be protected.

A non-resident defendant brought into the home state of a plaintiff may be faced with an unconscious prejudice which cannot be overcome in the state court. The Constitution of the United States (Art. 3, Sec. 2) gives the federal courts jurisdiction over such cases and the rights of defendants to avail themselves of this jurisdiction ought not be limited by state statutes. Under §6308-2 GC (§2703.20 R. C.), a notice cannot be mailed to the defendant until service has been made on the Secretary of State for the notice must carry an endorsement of such service. Half or more of the 20 days may expire before the defendant receives notice. This may make removal impossible. In the case at bar, the defendants had only 7 days to perfect their removal.

Mr. Justice Holmes, in McDonald v. Makee, 243 U. S., 90, said at page 91 “No doubt there may be some extension of the means of acquiring jurisdiction beyond service or appearance, but the foundation should be borne in mind. Subject to its conception of sovereignty even the common law required a judgment not to be contrary to natural justice * * * And in states bound together by a Constitution and subject to the fourteenth amendment great caution should be used not to let fiction deny the fair play that can be secured only by a pretty close adhesion to fact.”

The notice to the defendants was posted on August 26, 1952 and was received by them on September 2,1952. There is nothing to indicate that his notice was not received in due course. The court is of the opinion that where notice is received in due course of United States mail, the service of summon's is not complete until such notice is received by the defendants. In accordance with Sec. 1446 (b) of Title 28, U. S. C. A. twenty days after the service of summons should date from September 2, 1952.

The petition for removal was filed in time and the motion to remand will be overruled.


source: Caselaw Access Project

author: By WEBER, J.

license: Public Domain

text:
    MAINFORT, Jr., Plaintiff, v. GIANNESTRAS, Defendant.
    Common Pleas Court, Hamilton County.
    No. A-120123.
    Decided April 10, 1951.

      Robert E. Steman, Cincinnati, for plaintiff.
    Leo J. Brumleve, Jr., Cincinnati, for defendant.
   OPINION

By WEBER, J.

This matter comes before the court on the arguments and briefs of counsel for and against a motion to strike the second paragraph of the defendant’s second amended answer and a demurrer to the second and third defenses of the second amended answer.

The petition claims damage against the defendant, a physician and surgeon', caused by the negligent manner in which the defendant performed an operation to lengthen the plaintiff’s left leg which had shortened approximately one and one-half inches as a result of a previous accident. The first defense is a general denial of negligence.

The second paragraph of the amended answer sets forth facts which it is alleged were connected with said prior accident and previous treatment thereof by another physician and surgeon. The second defense sets forth that a suit was filed against the person who caused said prior accident and that in said suit an entry was filed reading in part: “The same shall be in full satisfaction and discharge of any and all claims for damages by the plaintiff which now exist or which hereinafter arise in any manner out of the accident complained of by the plaintiff in his declaration filed in this action”; and that said settlement was consummated in full June 10, 1948.

In support of said second paragraph and the second defense as proper pleadings, the defendant relies upon the case of Tanner v. Espey, 128 Oh St 82.

“1. If one who has suffered personal injuries by reason of another’s negligence exercises reasonable care in obtaining the services of a competent physician or surgeon, and such injuries are thereafter aggravated by the negligence, mistake or lack of skill of such physician or surgeon, such aggravation is a proximate result of the negligence of the original tort feasor, and he is liable therefor.

“2. If one has suffered personal injuries which thereafter were aggravated by the malpractice of an attending physician or surgeon, and then executes a valid, general and unconditional release to the original tort feasor, in full settlement for all present and future claims and causes of action, such release operates as a bar to an action against such physician or surgeon for such malpractice.”

Plaintiff claims that this rule applies only to the negligence of a physician or surgeon which occurred prior to the settlement and that, since the defendant was employed and performed the operation seven months after the release was executed and after the leg had shortened and all the consequences of the original injury had occurred, the release does not constitute a defense to the present action. The release given in this case is “of all claims now existing and hereinafter arising in any manner out of the accident complained of.” Although, in the case of Tanner v. Espey, supra, the negligence of the surgeon occurred prior to the execution of the release and the rule applied in that case uses the words “and then (that is, after the negligence of the surgeon occurred) executed a release,” it is clear the application of the rule is not limited to such a situation. The test is whether the injuries caused by the negligence of the surgeon are merely an aggravation of the original injury and are the proximate result of the negligence of the original tort feasor. The release pleaded comprehended not only the claims existing at the time of its execution but also all claims thereinafter arising in any manner out of the accident. The sole question is whether the negligence of the 'defendant surgeon aggravated the original injury or .created an independent injury, unassociated with the original wrong and not reasonably forseeable by the original wrongdoer as a natural sequence of his wrong. The facts set forth in the second paragraph are intended to show a succession of events so linked together as to make a natural whole. Said facts are a necessary foundation for pleading the second defense and are a part of it. They are admitted by the demurrer. If proven, they may present to the jury, under proper instructions, the question whether the negligence of the defendant, if any, merely aggravated the original injury or brought into existence an independent injury; in other words whether such consequences arise in any manner out of the accident originally complained of and as a proximate and natural result thereof in an unbroken sequence. The allegation that the release is a bar to this action, considered in connection with the facts stated in paragraph 2 of the amended answer, by necessary implication makes the claim that the injuries complained of are the proximate result of the original wrong. If said injuries are found to be the result of a distinct and independent wrong the release is no bar to this suit. See Purchase v. Seelye, 231 Mass. 434, 121 N. E. 413.

The motion to strike the second paragraph of the second amended answer is denied and the demurrer to the second defense in the second amended answer is overruled.

The plaintiff also demurs to the third defense of the second amended answer which alleges — “that defendant advised the plaintiff that due to his diabetic condition there was a risk that a bone infection might develop notwithstanding that said treatment and operation would be done in strict and full accord with approved and proper medical methods and practices, that with full knowledge and appreciation of such dangers the plaintiff consented to the operation.”

The plaintiff demurs on the ground that this plea of assumption of risk is not a sufficient defense to his claims of negligence on the part of the defendant. It is true that the doctrine of assumption of risk applies only with respect to the hazard of a situation already existing. If one has full knowledge of an open and visible condition, appreciates the dangers incident thereto, and voluntarily acts with reference thereto, he assumes the risks of the attendant dangers. It is a matter of full knowledge and intelligent acquiescence. But a person cannot voluntarily act with reference to a condition or situation created by the negligence of another unless that negligence has previously occurred; he cannot assume the risks of a situation created by subsequent negligence. Mudrich v. Standard Oil Company, 153 Oh St 31, 41 O. O. 117; Porter v. Toledo Terminal Railroad Company, 152 Oh St 463, 40 O. O. 485; Masters v. New York Central Railroad Company, 147 Oh St 293, 34 O. O. 223.

The petition sets forth specific acts of negligence having to do with the manner in which the operation was performed. The plaintiff could not have full knowledge of and assume the risks of such acts of negligence, which, if committed, were committed after he gave his consent to the operation. Furthermore, a contract which expressly or impliedly exempts a person from liability for injuries caused by his future negligence is against public policy and void.

However, in ruling on the demurrer, it must be noted that the third defense does not claim that the plaintiff assumes the risks involved in negligent acts in the manner in which the operation was performed. The claim of assumption of risk is strictly confined to the consequences growing out of the diabetic condition, which condition, and the risks it attached to the operation, is alleged to have been fully made known to the plaintiff by the defendant before the plaintiff consented to the operation. This claim is a direct and pertinent answer to the allegations in the petition that the defendant was negligent in that he attempted to perform the operation, knowing that the plaintiff was diabetic. If it is conceded, as it must be, that the allegations of this defense may confuse the jury into believing that the plaintiff could and did assume the risks of all the acts of negligence pleaded, nevertheless it is directed against a specific act of negligence claimed in the petition and as to that claim it constitutes a valid defense. There is no defect in the pleading of this defense which can be reached by a demurrer. The defect, if any, must arise only if the scope of the defense is not properly limited by instructions to the jury.

The demurrer to the third defense is overruled.


author: By MERRY, J.

text:
    STATE, Plaintiff, v. ELDER, Defendant.
    Municipal Court, Zanesville.
    No. 47295.

      Joseph W. McNerney, Pros. Atty. Richard E. Bridwell, Asst. Pros. Atty., Zanesville, for the State of Ohio.
    Charles S. Leasure, Frank Micheli, Zanesville, for defendant.
   OPINION

By MERRY, J.

On October 30, 1953, defendant Elder was tried before this court upon an affidavit filed by one Bobby Mock charging the defendant with the violation of §3773.21 R. C. (formerly §12817 GO. The affidavit recites that Elder “on or about the 26th day of September, 1953, in the County of Muskingum and State of Ohio, unlawfully and purposely did discharge a firearm, to-wit: a revolver, upon a public highway, to-wit: ü. S. Highway No. 22.” Sec. 3773.21 R. C. provides as follows:

“Prohibition against discharging firearms.
“No person shall discharge a firearm on a- lawn, park, pleasure ground, orchard, or other ground appurtenant to a school house, church, or an inhabited dwelling, the property of another, or a charitable institution, or upon or over a public road or highway.
“This section does not prevent or prohibit the owner thereof from discharging firearms upon his own enclosure.”

At the trial ten witnesses testified on behalf of the State, and the facts as found by the Court indicate that on September 26, 1953, Bobby Mock was operating an automobile in a southerly direction on Ü. S. Highway No. 22, known popularly as the Maysville Pike, at a point south of the corporation limits of the village of South Zanesville, Muskingum County, Ohio; that the defendant, Elder, the duly appointed, qualified and acting Chief of Police of the Village of South Zanesville, Ohio, was standing on the east side of said road at said point, and that when Mock’s automobile approached, the defendant Elder stepped upon this highway and waved his arms at Mock’s automobile; that Mock either ignored or failed to observe the defendant’s signal; that Mock continued to operate his automobile in a southerly direction on U. S. Highway No. 22; and that the defendant thereupon fired his revolver at or in the direction of Mock’s automobile, returned to his cruiser which was parked on the east side of the highway, and began pursuit of Mock’s automobile. Defendant Elder did not testify and no evidence in his behalf was offered, with the exception of a stipulation that Elder was the duly appointed, qualified and acting police chief of the Village of South Zanesville.

The question thus presented to the Court is simply this: Can a peace officer of a village, acting outside the boundaries of said village, be held criminally liable for discharging a firearm upon a public highway, when it does not appear that said peace officer is in the act of apprehending or pursuing a felon? The Court and Counsel for the State and the Defendant agree that the question is a novel one which has not been previously passed upon in the Courts of this State.

In Briefs submitted to the Court by both counsel for the State and the defendant the evolution of the statute involved, §3773.21 R. C., former §12817 GC, has been competently and thoroughly examined. Apparently, the ancestor of both these statutory provisions was an Acl passed by the Legislature on April 20, 1874, contained in 71 Ohio Laws 147, The title to this act indicated that this particular legislation ( to become known as §12817 GC) was “To protect certain game and birds, etc.’” Subsequently, on March 21, 1917, the Legislature passed another act “Amending §12817 GC relative to discharging fire-arms on or near a public highway.” 107 Ohio Laws 641. This latter enactment, insofar as the title to the Act is concerned, certainly does not limit the inclusiveness of the Act to violations of the game laws, but rather shows the specific intention of the Legislature to make unlawful the discharge of fire-arms on or near a public highway. At any rate the Court is not overly concerned with the problem of titles to legislation. The title to an act has been declared to be no part thereof in the sense that it is no part of the substantive law, especially where the words of the enacting clause are clear and positive. 37 O. Jur. 456, 7 Ohio, 80, 86. The wording of §3773.21 R. C. is plain and unambiguous in providing that “No person shall discharge a firearm * * * upon or over a public road or highway.” While criminal statutes are to be strictly construed in favor of the defendant, the courts are not authorized so to interpret them to defeat the obvious purpose and intent of the legislature. Woodworth v. State, 26 Oh St 196; Conrad v. State, 75 Oh St 52, 78 N. E. 957. It is clear that the rule of strict construction of penal statutes is applicable only for the purpose of determining the meaning of doubtful statutory provisions. There is no necessity for resorting to it when the language of the statute is clear and unambiguous. Andrews v. State, 3 Oh Ap 436. It would therefore appear to the court that §3773.21 R. C. is a penal statute of general and unrestricted nature, declaring unlawful the discharging of firearms in certain designated places.

Counsel for the Defendant urges the Court to read into §3772.21 R. C. an exemption for persons lawfully authorized to bear firearms when such persons discharge firearms upon public highways. This the Court cannot do in face of the plain language of the statute which limits the sole exemption from criminal liability thereunder to an owner discharging firearms upon his own enclosure. Without passing upon the question of when and under what circumstances a peace officer may lawfully discharge a firearm over or upon a public highway, the Court feels that it is the general rule that a peace officer may use a firearm, even to the extent of taking life, if necessary, to effect the arrest of a felon, but he may not do so, except in self-defense, to effect an arrest for a misdemeanor, such as travelling at a high rate of speed or reckless operation of an automobile, whether his purpose is to kill or merely stop the misdemeanant’s flight, even though the latter cannot be taken otherwise. 42 A. L. R. 1200. People v. Klein, 305 Ill. 141, 137 N. E. 145, People v. Scalisi, 324 Ill. 131, 154 N. E. 715, Green v. State, 189 S. 763, 238 Ala. 143. In this particular case, it was not shown by the defendant that he used a firearm in attempting to arrest a felon- or whether he had reasonable grounds to believe he was attempting to arrest a felon. On the contrary, the facts show that defendant discharged his firearm at or in the direction of the automobile driven by Mock while the latter was committing a misdemeanor, if he (Mock) were violating any statute at all. If the shot fired by the defendant had struck and killed Mock or any other person, it certainly could not be contended by the defense that defendant would be exempt from possible prosecution for murder, manslaughter or assault and battery. State v. Sells, 30 Abs 355 (Appeals, Fayette County, Ohio 1939). And in view of the court’s opinion that §3773.21 R. C. is a general penal statute, it follows that a peace officer can be prosecuted under this latter section when certain factual conditions exist.

Furthermore the evidence produced by the State showed that the defendant at the’ time of the alleged violation was standing upon U. S. Highway No. 22 at a point definitely beyond the corporation limits of South Zanesville, Ohio, the village in which defendant was the chief of police. The Court is of the opinion that as a general’ rule a peace officer has

no authority to make arrests without a warrant outside of

the territorial jurisdiction in which he is elected or appointed, unless specifically otherwise authorized by law. This view is thoroughly discussed in 5 C. J. 422, Section 57 and has been followed in the 1939 Ohio Attorney General Opinions No. 1076 (p. 1547). The Court is unaware of any statutory authority contrary to this genex-al view. It follows then that the chief of police of South Zanesville, Ohio, has no power or authority to make or arrest without a warrant outside the limits of South Zanesville for a violation of the laws relating to motor vehicles when such violation amounts only to a misdemeanor. The Court has dwelt on this particular point to further emphasize that the defendant in this particular case was acting without any authority whatsoever so as to lose any possible protection provided for police officers in avoiding criminal prosecution.

It is therefore the opinion of this Court that a peace officer of a village, acting outside and beyond the territorial limits of the village, can be held criminally liable under §3773.21 It. C. for discharging a firearm upon a public highway when it does not appear that said peace officer is in the act of arresting or pursuing a felon.

The Court finds the defendant guilty as charged in the affidavit, and the defendant will be fined fifteen ($15.00) Dollars and assessed the costs of this prosecution.'


author: By McClelland, PJ.

text:
    O’SHAUGHNESSY, Admr. of the Estate of Thomas C. Walsh, deceased, Plaintiff, v. STOFFT, Defendants.
    Probate Court, Franklin County.
    No. 147014.
    Decided October 20, 1953.

      Jack M. Parrish, for Thomas F. O’Shaughnessy, Administrator of Estate of Thomas C. Walsh, deceased.
    Guy V. Fridley, Columbus, for Maizie Walsh Stofft, defendant,
    Carl Fergus, John Fergus, Columbus, for Park Federal Savings & Loan Company, defendant.
    Clifford Southwick, Columbus, for Emma McGuire, et al., defendants.
   OPINION

By McClelland, PJ.

Decision on Competency of Maizie Walsh Stofft as a Witness

The question now before this Court arises in a proceeding for the determination of heirship of Thomas C. Walsh, deceased. Maise Walsh Stofft, a resident of Buffalo, New York, claims to be a sister of the decedent and therefore an heir of the decedent who died intestate. She was made a party defendant in the action but has not filed an answer. At the hearing of this matter her deposition was offered and objection was made to the admission of same on the ground that she was precluded by the provisions of §11495 GC, the first paragraph of which consists of the following language:

“A party shall not testify when the adverse party is the guardian or trustee of either a deaf and dumb or an insane person, or of a child of a deceased person, or is an executor or administrator, or claims or defends as heir, grantee, assignee, devisee or legatee of a deceased person.”

It is claimed by the objectors that the above named defendant is claiming as an heir of the deceased person. There is no claim on the part of anyone that the testimony of the deponent is admissible under any of the exceptions set forth in the above named statute. The question then is whether or not she is incompetent by reason of the fact that she claims to be an heir of the decedent.

The action in which the issue is raised is brought by virtue of §10509-95 GC, which reads as follows:

"Whenever property passes by the laws of intestate succession, or under a will to a beneficiary or beneficiaries not named in such will, proceedings may be had in the probate court to determine the persons entitled to such property.”

The following §10509-96 GC provides that the executor or administrator may file in the probate court where the estate is being administered, a petition signed by such executor or administrator or his attorney, which petition shall be duly verified, and that the surviving spouse and the legatees and devisees, or the heirs and distributees of the decedent, including those who are unknown, shall be made parties defendant. The petition shall contain a concise statement of the pertinent facts and shall conclude with a prayer for the determination of the heirs and distributees of such decedent or of the devisees or legatees not named in the will, as the case may be, and their respective interests in the estate.

At the outset we must direct our attention to the character of such proceeding. The proceeding must be brought by the fiduciary, unless it shall be necessary for some other person to bring it. The gist of the proceeding is to determine who are the heirs of the decedent. The statute of descent and distribution determines the descent of all property of an intestate. Neither the courts nor the parties may change the course of descent. When this decedent died, the law determines the course of descent of his property. If any one claims to be an heir of the decedent, it is his responsibility to prove that he brings himself within the classification of heirs under the statute. Such a proceeding is not one to establish the relation of debtor and creditor between the heir and the fiduciary, nor the relation of trustee and cestui que trust. This is not a proceeding by which the estate is diminished. It is simply to determine who may establish such relationship to the decedent as to bring him within one of the categories of the law of descent and distribution. If this action were one to establish a relation of debtor and creditor, or relation of trustee and cestui que trust, or any action which would diminish or deplete the estate, then the provisions of the statute might apply.

. We have made considerable investigation in attempting to determine this matter, and in doing so we have investigated the purpose of same. In Vol. 42 O. Jur., page 165, we find the following language:

“As to the second object, it was the apparent intention of the legislature to provide mutuality between the parties, the statute being intended to embrace that class of cases where, by the nature of the case, mutuality would be impossible. It is a general principle that if one of the parties to a transaction cannot give his version of it, the other party thereto should not be admitted to testify in his own favor, for where there is no mutuality, there should not be admissibility.”

At page 187 of the same volume, we find the following language:

“The parties must stand in an adverse position, in order for the statute to become effective to bar one of them as being adverse to the representative party. The statute has reference to the adverse character which the parties sustain toward each other as parties in the action at the time of the trial, and not necessarily to their relation as parties to the transaction which is the subject of the action or defense. The word ‘party’ in the connection in which it is used, is not to be understood as meaning one whose name merely appears upon the record of the case, either as plaintiff or defendant, and who, though a party to the action, has no interest in the event of the particular issue to which the administrator or executor is a party, or, if any, such only as is not adverse to that of the estate of such deceased person.
Whether parties are adverse to each other or not depends on the antagonism or identity of their interests, and not on their mere position as plaintiffs or defendants in the case. That is, the party disqualified and the adverse party must be adversely interested in the determination of the issues of fact, for the mere position in which a party may stand to the administrator upon the record does not necessarily make him an adverse party. This relation only arises between parties to a suit when their interests in the particular matter in controversy are adverse. The rule, therefore, is that in order to render a party incompetent as a witness on the ground that the adverse party is a guardian, trustee, executor, administrator, heir, grantee, assignee, or devisee, the parties must be adverse in interest, and not merely in their nominal status in the case as plaintiffs or defendants.”

In our examination of the law and the court decisions construing same, .we find that the purpose of the statute is to maintain mutuality between the parties. In this case certain persons claim to be heirs of the decedent. One claims to be the sole heir and impliedly the other defendants claim to be heirs of the decedent. Their interests are not adverse to each other. The gist of the action is to determine who can prove that they come within the classification set forth by the statute of descent and distribution. It is our opinion that any heir can testify for the reason that his claim is not adverse to the estate, nor is his claim adverse to any other heir.

Our attention has been called to the case Brawley, Appellant v. Thomas, Admr., et al., Appellees, reported in 82 Oh Ap page 400, in which case the court held that where the petitioner claims to be the common law wife of the decedent and the adverse parties defend as heirs and administrator of the estate of decedent, the petitioner is incompetent to testify, over objection, as to facts tending to establish the alleged common law marriage. In that case a certain woman claimed to be an heir by virtue of an alleged marriage to the decedent. That claim, if sustained, of course, would reduce the value of the interests distributable to the heirs, and therefore would render the parties adverse to each other. In the present case there is no attempt to reduce the value of the estate. The only question in this estate is to whom or between whom the estate should be distributed. By permitting all the heirs to testify, no one can be injured and we are serving the cardinal purpose of the statute, which is to put all witnesses upon the same basis.

Without any further discussion, we must announce that we have come to the conclusion that Maizie Walsh Stofft, if present in court, could testify, and that she would not be an incompetent witness to testify in this action, and that inasmuch as she is not present, her deposition may be admitted.

Inasmuch as we have reached this conclusion, this Court will now permit the case to be reopened and any heirs who may wish to testify will be permitted to do so.

An order may be drawn accordingly.


author: By THE COURT. By MILLER, J.

text:
    STATE, Plaintiff-Appellee, v. FARRAND, Defendant-Appellant.
    Ohio Appeals, Second District, Franklip. County.
    No. 4804.
    Decided September 23, 1952.

      Richard W. Gordon, City Atty., John L. VanDervoort, Asst. City Atty., Columbus, for plaintiff-Appellee.
    Milton L. Farber, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

Submitted on motion of the appellee seeking an order dismissing the appeal for the reason that the appellant’s brief was not filed with the notice of appeal and transcript, but was filed three days thereafter. It is urged that this is a violation of §13459-3 GC. All of the foregoing were filed within thirty days from the date of sentence and judgment, which meets all of the jurisdictional requiremments. This Court has held on numerous occasions that it is mandatory that the appellant’s brief be filed within said thirty days, and failure to do so was fatal. But here the brief was filed within said thirty days, but was not filed at the exact time of the filing of the transcript. We are of the opinion that the exercise of a sound discretion requires that the motion be overruled. Several cases have been cited wherein this Court has held the requirement to be mandatory, but upon examination it will be found that the brief was not filed within the required thirty days. See State, ex rel. Merrill v. Moore, 84 Oh Ap 49; State v. Jarcho, 65 Oh Ap 417.

The purpose of the statute, it appears, is to expedite the final determination of the rights of defendants and the State in criminal cases and to avoid unnecessary delay. The only delay we are able to observe from the facts presented has been occasioned by the appellee who has waited some four months before filing this motion.

It is our conclusion that all of the statutory requirements in this case have been met and the motion will be overruled.

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

Decided October 31, 1952.

Richard W. Gordon, City Atty., Glenn E. Kemp, John L. VanDervoort, Asst. City Attys., Columbus, for plaintiff-appellee.

Milton L. Farber, Columbus, for defendant-appellant.

STATE, Plaintiff -Appellee, v. FARRAND, Defendant-Appellant.

No. 4804.

OPINION

By MILLER, J.

This is a law appeal from the judgment of the Municipal Court finding defendant-appellant guilty of engaging in the practice of medicine before obtaining a .license so to do, in violation of §12694 GC. Because of the issue presented the charge in the affidavit is set forth in full as follows:

“That on or about the 17th day of March, 1952, at the City of Columbus, County of Franklin and State of Ohio, the said Jacob H. Farrand did unlawfully diagnose, examine, prescribe, recommend, administer and dispense medicine to one Dorothy Fisher, for a fee, for a disease, before he had obtained a certificate from the Medical Board of the State of Ohio so to do, in violation of §12694 GC * *

Sec. 12694 GC makes it an offense to engage in the practice of medicine or surgery in any of its branches before obtaining a license and fixes the penalty for its violation. A definition of the practice of medicine, et seq., is found in §1286 GC, which it will be noted is in several parts, one of which provides in substance that a mere holding out of one’s self as being-engaged in the practice of medicine shall be regarded as practicing the same. The other part provides that a person shall be regarded as practicing medicine who “examines or diagnoses for a fee or compensation of any kind, * * * ” it is the last quoted part of the statute that the defendant is charged with violating. Even though the evidence discloses a violation of the “holding out” part of the section a conviction may not be had on this alone for it is not charged in the affidavit. The material part of the affidavit charges the defendant with unlawfully practicing medicine -for a fee. The appellant urges that under the charges made the paying of a fee for the services rendered is one of the essential facts which must be proved before a conviction may be had, and that the prosecution failed to produce any evidence to show payment. We are in agreement with counsel to the extent that it was incumbent upon the State to prove that the services were performed for a fee, but differ as to the question of payment. An examination of the record clearly reveals, and it is not denied, that from August 20, 1951, to January 1, 1952, medical services were rendered to both a Mr. and Mrs. John Fisher, the Mrs. John Fisher being the same person as the designated Dorothy Fisher in the affidavit; that over the aforesaid period of time a total of 30 treatments were given to them for which a charge of $3.00 per treatment was made. The prosecution offered in evidence State’s Exhibit No. 7, which was admitted in evidence. This exhibit consists of five separate printed statements rendered to John Fisher, each of which provides as follows:

“In account with
Dr. J. H. Farrand
899 East Broad Street
Columbus, Ohio
For professional services rendered
* * *

These are itemized statements showing the dates the services were performed and charges made, also showing the dates of payments which total $55.00, leaving a balance on December 22, 1951, of $35.00. The appellant contends that since the affidavit charges the services were rendered on or about March 17, 1952, and the evidence does not disclose a fee was collected for these services, that there has been no violation of the statute. The question therefore presented is whether or not under the facts presented the services rendered at the time alleged in the affidavit were for a fee. We are of the opinion that this was a factual question for the determination of the trial judge, a jury having been waived, and if supported by any substantial evidence the judgment must be affirmed. A fee is a reward or compensation for services rendered or to be rendered. Crawford v. Bradford, 23 Fla. 404. It denotes compensation paid a professional man. Cochran v. Baker, 61 N. Y. S. 724, 5. A fee is earned when the services are compléted but by usage, custom or agreement it may not be due and payable until some future date. The record clearly shows the plan or system by which the defendant collected for his services, to wit, by monthly statements. These were admissible in evidence under §13444-19 GC for this purpose. We think that it was not incumbent upon the prosecution to prove the fee was actually paid, under the charge set forth in the affidavit, before there could be a verdict of guilty, but that it was sufficient to produce sufficient evidence to establish that the motive in the performing of the services was the earning of a fee. Whether or not it was paid is not material.

We find that the evidence supports the verdict and the Court did not err in its judgment, which is hereby affirmed,

HORNBECK, PJ, WISEMAN, J, concur.


author: By BARTLETT, J.

text:
    WILES, Plaintiff, v. MOTOR CLUB OF AMERICA, INC. et al., Defendants.
    Common Pleas Court, Franklin County.
    Nos. 184224, 185763.
    Decided April 15, 1953.
    Nelson Lancione, Bellaire, for plaintiff.
    Henry A. Reinhard, Martin Y. Reeves, Columbus, for defendants.
   OPINION

By BARTLETT, J.

THE DEMURRER TO THE SECOND AMENDED PETITION, IN BOTH CASES, ig SUSTAINED.

The facts in the first case, set forth in the second amended petition, briefly, were that the defendant, The Motor Club of America, Inc., operated a school devoted to teaching persons to drive motor vehicles upon the public highways, and the other two defendants were instructors of said school. Plaintiff, Mary Wiles, paid the school $28.00 for ten driving lessons, which were given by the two instructors; and, then, she paid for two more lessons, which were received. Plaintiff says that upon completing these lessons, the defendants led her to believve that she was capable of driving a motor vehicle safely upon the public highways. One of the instructors went with her to the State Highway Patrol for her driver’s examination. In the course of her driving examination, she drove south on Ohio Avenue, a public street of Columbus; and in making a left turn into Madison Avenue, another such public street, plaintiff says that due to the negligence of the defendants hereinafter set forth, the automobile she was driving struck a tree on the northeast corner of said streets, resulting in certain personal injuries to her, as the direct and proximate result of said negligence of the defendants, for which she prays judgment in the sum of $28,500.00.

The specifications of negligence set forth against the defendants were:

1. They permitted her to take the lessons, knowing or having reasonable cause to believe, that she could not attain sufficient proficiency to drive safely upon the public highways.

2. Defendants led plaintiff to believe she was capable of driving safely on said highways, when they knew or should have known she was not capable of so doing.

3. Defendants did not teach her to make left hand turns.

The second case is by the husband, in which the same facts are pleaded, and in which he seeks judgment for the loss of her services in the sum of $21,500.00.

The husband sets up an additional specification of negligence, that the defendants did not inform him that they were teaching his wife to drive. He, also, says he did not know she. was taking driving lessons; and that he was opposed to her taking such lessons, and she so informed the defendants.

To say the least, these two cases involve a most novel set of facts. No similar case has been found in which the liability of such a relationship has been determined; and there being no authoritative treatise on the duties and obligations of instructors in the art of driving automobiles, resort to legal principles governing other kinds of cases must be made in the hope of correctly deciding the issues here tendered.

The plaintiff was the sole arbiter of her action. She was under no obligation or compulsion, either to take the driving-lessons or to undertake to drive the car. She was not employed by anyone or subject to the control of any person. She was driving the car when it hit the tree, so the striking of the tree was her own act unless she can trace the fault for her injury to the defendants and the mere happening of an accident does not raise a presumption of negligence against them; and when negligence is the ground of an action, it devolves upon the plaintiff to plead and prove affirmative facts from which there may be a logical inference of negligence on the part of the defendants. Whart. on Neg. 2d Ed. Sec. 421, and cases there cited.

True, the petition recites the defendants knew or had cause to believe plaintiff could not attain sufficient proficiency to drive safely; but what operative or supporting facts are pleaded that justify such a conclusion? What are the facts, known to defendants or which put them on notice, that prevented her from learning to drive as other ordinary persons do? Were these facts known to her and did she communicate them to the defendants?

The petition, also, states the defendants led her to believe she was capable of driving safely when she was not. What are the facts as to why she was not capable of driving, after taking more than the usual lessons in driving? The petition further states the defendants did not teach her to make a left hand turn. As an adult person of ordinary intelligence, did she not have peculiar personal knowledge that she did not know how to make such a turn, and if not, what are the facts as to why she did not know?

Whether a particular pleading is merely the conclusion of the pleader, may be tested by the presence or absence of supporting or operative facts. Munn v. Herriff, 2 O. Supp. 401.

Mere conclusions of the pleader, not supported by such facts, are not admitted on demurrer, only proper and well pleaded facts being so admitted. 31 O. Jur., Pleading, Sec. 103, p. 661. Where flying school operator contracted to train pilots, the relation of teacher or instructor and pupil existed between the operator and flight trainee; and principles governing relationship of master and servant, governed operator’s liability for trainee’s injuries resulting from mid-air collision. Weadock v. Eagle Indemnity Co., et al. 15 So. (2d) 132.

“One who is so devoid of intelligence, as to be unable to apprehend apparent danger, and to avoid exposure to it, cannot be guilty of contributory negligence; because he is incapable of exercising care. Still, other persons are not bound to observe special precautions for the safety of such an incapable,. unless they have notice of his incapacity or mental deficiency.” Burdick’s Law of Torts, Negligence, Sec. 536, p. 499: Barrett v. Ry. Co., 2 Oh Ap 307, 310.

It is the duty of an individual to exercise ordinary, reasonable, or due care for his own protection and safety, 29 O. Jur., Negligence, Sec. 94, p. 543.

Where the nature and extent of the risk are fully appreciated and voluntarily incurred, there is assumption of risk. Hunn v. Windsor Hotel Co., 119 W. Va. 215, cited with approval in Englehardt v. Phillips, 136 Oh St 73, 81.

“If one is of mature age, or of sufficient age to know and appreciate the danger that attends his act, he cannot complain of an injury sustained by reason of a risk voluntarily assumed. He cannot go into a place of danger which he appreciates and understands, and recover if he is injured thereby.” Hart, J., Englehardt v. Phillips, supra, p. 82; Davis v. Somers-Cambridge Co., 75 Oh St 215.

An employee seeking damages for a disability resulting from an aggravation of heart disease induced by the hard manual labor required in his work, on the ground that the employer who required a physical examination when he was hired, knew of plaintiff’s heart condition and knew or should have known that the exertion required would endanger or shorten his life, “must show, not only that he did not know of his own condition, but that the employer knew or should have- known that he did not know of such condition; and in the absence of an allegation to that effect his declaration is defective.” (Emphasis ours.) Glidden v. Bath Iron Works Corp. 175 A. L. R. 976.

In the foregoing case the Supreme Court of Maine sustained a special demurrer because of such defect in the declaration. A very valuable and exhaustive annotation follows this Maine case on the liability of employer for injury to employee due to his physical unfitness for the work to which he was assigned.

Where the servant was as well aware of his unfitness as was the master, the master as a matter of law is not guilty of primary negligence. Knox v. Schomaker, 191 Okla. 337. The servant must determine for himself whether his health and strength are adequate for the performance of the labor agreed to be performed. Ward-Pullen Coal Co. v. Wallace, 176 Okla. 604.

“It has been stated in a number of cases that an employee who knows of his physical unfitness for the work assigned should, if he seeks to hold his employer liable for injuries sustained, have notified the latter of his incapacity.” 175 A. L. R. p. 990; 3 Labatt, Master and Servant, 2d Ed. 287, Sec. 1082.

The employer had the right to assume the employee to be in ordinary physical condition, if not advised to the contrary. L. and N. R. Co. v. Willhite, 300 Ky. 75.

In the absence of facts putting him on inquiry an employer is entitled to presume an employee is of sufficient mental capacity to undertake the work which he assumes. Sowers v. Virginia R. Co. 101 W. Va. 582.

His fall in the water must be regarded, under the circumstances, as the result of unfitness for the duty he undertook, and the folly of undertaking it. Phillips v. The Pilot, 82 F. 111.

Evidence of mental ineompetency on the part of an injured employee, cannot be used as a defense, if not set up in the complaint, employer has right to assume employee an adult of ordinary intelligence. Hill v. Smith and Son, 176 Mich. 151.

Mere complaint without any compulsion and with full knowledge of the risk involved is not enough to relieve the injured employee from the doctrine of assumption of the risk. 175 A. L. R. 1005 and numerous cases cited.

The weakness of the plaintiff’s case lies particularly in her failure to plead facts which establish that the negligence of the defendants, if any, was the proximate cause of the injuries incurred by the defendant.

“It is not enough to aver that a certain thing is the proximate cause of an injury. The pleading must disclose the facts which show that it is so.” 29 O. Jur., Negligence, Sec. 141, p. 615; Egan v. N. Y. C. & St. L. R. Co., 5 C. C. (N. S.) 482.

Reynolds, J., of this court, hit the nail on the head, when he said:

“There are no facts pleaded to show that even assuming these allegations (same four specifications of negligence set out in second amended petition) to be true, that there was any causal relation between the same and plaintiff’s loss of control of the automobile.”

(Or, as stated in the second amended petition, the striking of the tree.) For this reason, Reynolds, J., sustained a demurrer to the first amended petition, and for the same reason, the demurrer to the second amended petition must be sustained.

It is interesting to note that Harter, J., of this court, overruled the demurrer to the petition with some hesitancy; and on page 3 of his opinion says:

“There is another extremely serious point implicit in our consideration of this demurrer — i. e. were the defendant’s acts of negligence actually the proximate cause of plaintiff’s injuries. * * *”
“An instructor’s neglect to warn cannot, surely, be said to be the proximate cause of the injury where the person injured is fully aware of the danger which inflicted the injury. See 56 C. J. S. pp. 1053 and 1054.”

The reason for Harter’s, J., doubt lies in the weakness of the petition in that operative or supporting facts were not pleaded; but the pleader resorted to general allegations of negligence, as the proximate cause of the plaintiff’s injuries.

Demurrer to second amended petition, in both cases, sustained.


text:
    LEGANSHUK et, Appellant, v. DEPARTMENT OF LIQUOR CONTROL, Appellee.
    Common Pleas Court, Franklin County.
    No. 187390.
    Decided August 3, 1953.
    Herman Fishman, Cleveland, for appellant.
    C. William O’Neill, Atty. Geni., Columbus, for appellee.
   OPINION

By BARTLETT, J.

APPLICATION FOR REHEARING DENIED.

The so-called motion for a new trial will be considered as an application for a rehearing. No oral argument is permitted on a motion for rehearing. Hughes v. Roberts, 18 Abs 438, 439.

Sole office of such application is to direct Court’s attention to matters of fact or law that have not been given attention; not to merely rehash same matters. White v. Columbus, et al., 27 Abs 487, 496. However, the Court has given attention to the brief in support of rehearing and has reexamined its original decision.

Counsel for appellant urges that the Court’s decision interferes with free enterprise and unduly favors the competitors of the appellant in the grocery business. The difficulty with this contention, is that neither the General Assembly nor the courts have considered the sale of intoxicating beverages as properly belonging in the field of free enterprise. In fact, Ohio is one of the states which has taken a monoply on the sale of whiskey by the bottle, with rare exceptions, and entirely so in the wholesale field.

In any event, as this Court pointed out in its original decision, the Court of Appeals of this district in the Slaughter case upheld Regulation No. 12, See. Ill of the Board of Liquor Control directing the Department of Liquor Control to consider the number of permit premises in the immediate area, when determining whether to grant or refuse a permit. This certainly is not free enterprise.

In the case of Hermelin etc., v. Board of Liquor Control (Case No. 185,809), Harter, J., of this court among other things ruled, “that the state will not deprive one citizen of the right to earn his livelihood by means of a lawful calling while according that right to others similarly situated.” The Court of Appeals overruled Judge Harter’s decision in its case No. 4893. The Hermelin case involved an application for a C-2 permit (Carry-out) for premises within 500 feet of a church which objected that there were too many permits in the area, just as in, the instant case.

The Court feels constrained to adhere to its original decision, and accordingly overrules the application for a rehearing.

Entry accordingly with exceptions by counsel for appellant.


author: By VAN BUREN, J.

text:
    NOFZINGER, Appellant, v. LaCHOY FOOD PRODUCTS DIVISION OF BEATRICE FOODS CO., Appellee.
    Common Pleas Court, Fulton County.
    No. 13295.
    James L. Frey, James W. Williamson, Wauseon, for appellant.
    C. William O’Neill, Atty. Genl., John W. Hardwick, Asst. Atty. Genl., Columbus, for Bureau of Unemployment Compensation.
   OPINION

By VAN BUREN, J.

This is an appeal from a decision by the Board of Review of the State Bureau of Unemployment Compensation, affirming a decision by the referee of the bureau which held that claimant Nora S. Nofzinger, of Archbold, Fulton county, Ohio, appellant in this case, was not entitled to receive unemployment benefits.

The authority of the court to hear this appeal from that decision is found in §4141.28 R. C. (formerly §1346-4 GC) which reads in part 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 court has examined carefully all decisions referred to it by the assistant attorney general, representing the bureau, and argued before this court at the hearing on appeal November 30, 1953, namely: Stevens v. Industrial Commission, 145 Oh St 198, 30 O. O. 415; Olive B. Watson v. Bureau of Unemployment Compensation, Common Pleas Court, Lawrence County, Case No. 31243; DiPalma v. Board of Review, Bureau of Unemployment Compensation, Common Pleas Court, Jefferson County, Case No. 42974; Shannon v. Bureau of Unemployment Compensation, 155 Oh St 53, 44 O. O. 75.

We agree with all principles of law enumerated in these decisions, that the burden of proof is on the claimant and that claimant must prove reasonable effort to find suitable employment in addition to registration and reporting to the local office of the Bureau of Unemployment Compensation.

In the instant case, the referee made the following findings of fact:

“Claimant filed an application for determination of benefit rights on June 16, 1952, at Wauseon, Ohio. Both prior and subsequent to said date, claimant had employment with the La Choy Food Products Division of the Beatrice Foods Company, Archbold, Ohio. Claimant worked for this employer off and on for approximately seven years prior to December 12, 1952. She was separated from her employment due to lack of work on said date.
“During the week ending December 20, 1952, claimant reported to the Ohio State Employment Service and during the following week she filed a claim for the week ending December 20, 1952. After being separated from her employment on December 12, 1952, claimant contacted two employers each week. Claimant had been told that if she contacted two employers each week she would be eligible to draw unemployment compensation.”

In arriving at his decision denying benefits to claimant, the referee reasoned as follows:

“Sec. 1345-6a (4) GC (§4141.29 R. C.) requires that a claimant be actively seeking suitable work in order to be eligible to draw unemployment compensation. To be considered as engaged in an active search for work, a claimant must be making a reasonable, effort to secure employment. The claimant has testified that she contacted at least two employers each week for which she filed claims for unemployment compensation. This testimony was offered with the aid of a written list which claimant had in her possession. The list contained names of employers which claimant had reported she had contacted when she filed her claims for unemployment compensation. The names were listed according to week numbers and not according to dates. Without the aid of the list claimant was unable to enumerate the employers she had contacted. Even though claimant had reported to the Bureau office on the day before the hearing, she was unable to name the employers which she had purportedly contacted during the previous week.
“From all of claimant’s testimony, the referee is of the opinion that claimant was primarily interested in drawing-unemployment compensation. Claimant’s activities relative to seeking employment were not intended to result in employment for her, but rather to satisfy the eligibility requirements of the Ohio Unemployment Compensation Law. Such activities can not be considered as an active search for suitable work within the meaning of §1345-6a (4) GC (§4141.29 JR. C.). It must, therefore, be concluded that as of December 14, 1952, claimant was not actively seeking suitable work. Her benefit rights must be suspended as of said date and until such time as she establishes her eligibility for benefits. Her claim for the week ending December 20, 1952, must be disallowed.”
It is the last portion of paragraph two which finds that: “Claimant’s activities relative to seeking employment were not intended to result in employment for her, but rather to satisfy the eligibility requirements of the Ohio Unemployment Compensation Law,” to which this court has directed its inquiry in consideration of this appeal.

The transcript of testimony taken before the referee on February 17, 1953, at Wauseon, Ohio, in the opinion of the court does not justify the above conclusion or finding by the referee.

It will be noted that Archbold, Ohio, is a small town in an agricultural county; business is seasonal, and opportunity for regular employment at all times of year is definitely limited.

Claimant in this case is a housewife; married, with three children living at home, one son, just home from service, but in a veterans’ hospital, at the time the testimony was taken.

Claimant has been an employee of the LaChoy Company for some seven years, averaging about ten months employment a year. At the time of the lay-off in question, she made constant search for employment in Archbold. She testified that an average of two places were visited each week to find work. On two occasions she sought work at three places in one week. She said in her testimony:

“I have looked all over — even asked to take care of children— or washing and house-cleaning. That is beside the other places I looked.”

Claimant was examined and cross-examined at considerable-length by the referee. Assisting the referee was a representative of a firm of so-called “consulting actuaries” employed by the Beatrice Foods Company. This representative of the so-called “consulting actuaries” also participated in the examination and cross-examination of the claimant. Claimant was not then represented by counsel.

There was no testimony introduced to controvert in any manner the testimony of claimant.

A careful reading of this testimony seems to establish beyond doubt that claimant told the truth, and testified to the truth, to the best of her ability.

It is therefore the opinion of the court that the finding of the referee and the affirmation of that decision by the Board of Review, although one member of said board dissented, are against the clear, plain and manifest weight of the evidence, unreasonable, and therefore unlawful. Judgment will be entered accordingly for the appellant in this case.


author: By WOODS,

text:
    PONDER, In the Matter of: Bankrupt.
    IN THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION.
    No. 70880.
    Decided February 10, 1954.
   OPINION

By WOODS,

Referee in Bankruptcy

J. Perry Teeple, Trustee, filed his Application for Show-Cause Order on bankrupt to turn over unexempt earnings and the proceeds of a claim paid to him as a result of an automobile collision.

As to the first controversy, the schedules show that the bankrupt was employed by the Chevrolet Motor Co., and in Schedule B-5 as to property claimed exempt, recites, “Exemptions claimed under §2329.62 et sequi R. C. — $100.”

The pertinent statute §2329.66 R. C. (§11725 GC), is as follows:

“Every person who is the chief support of a family . . . . may hold property exempt from 'execution, attachment or sale for any debt, damage, fine or emercement, as follows;
F. Eighty percent of the first two hundred dollars and sixty per cent of the balance of the personal earnings of the debtor

From the facts as presented, it appears that in the month preceding filing of the petition, bankrupt was employed by the Chevrolet Cleveland Co. and received $400 for the 30 day period. For the period he was paid $50.40 on Nov. 13, 1953, $67.20 on Nov. 20, 1953, $113.93 on Nov. 27, 1953, $83.20 on Dec. 4, 1953, and $110.78 on Dec. 11, 1953. The Trustee alaims that under the statute as to exemptions, there should be set off to the bankrupt the sum of 80 % of the first $200 of these earnings of $160 plus 60% of the balance of said earnings or $120, so that the allowed exemptions of $160 plus $120 makes $280 of the $400 earned by bankrupt in 30 days prior to his adjudication which should be exempted.

This leaves $120 of the bankrupt’s earnings for the last 30 days as nonexempt which is the amount so claimed by the Trustee as nonexempt. However, bankrupt was paid before bankruptcy all except $110.78 which was paid on Dec. 11, 1953. Of course, the Trustee is not entitled to collect for wages paid to bankrupt before bankruptcy, and while the computation shows the Trustee would be entitled to $120 if such amount was still unpaid at bankruptcy, the amount unpaid in fact was $110.78 paid on Dec. 11, 1953, which should be paid by bankrupt to the Trustee since it was collected after bankruptcy.

Examination of the many authorities submitted by counsel for Trustee and counsel for bankrupt failed to present any case or authority which would justify different conclusions than that urged by the Trustee in this proceeding. Here is presented a question under the Wage Exempt Statute of the State of Ohio, and decisions of other states or of bankruptcy courts outside of Ohio are of little help in this situation.

As to the second controversy which arose out of an automobile collision in which a settlement was made by the bankrupt by payment of $401.53 to the finance company and bankrupt on Nov. 9, the finding must be that Trustee has not shown that he is entitled to such fund.

The voluntary petition of bankrupt was filed on Dec. 4, 1953, and thus the damage claim was settled and fund paid before bankruptcy. Bankrupt having received the fund before bankruptcy, no ground has been shown by Trustee upon which he has established that such fund became an asset for distribution in the bankrupt estate.

An order should be prepared requiring the bankrupt to pay to J. Perry Teeple, Trustee, the sum of $110.78, unexempt earnings collected by bankrupt after his adjudication, and further the trustee’s petition for the turnover of any fund paid to bankrupt before bankruptcy as a result of the automobile collision should be denied and dismissed.


author: By ZIEGEL, J.

text:
    SMITH, Estate of, In re.
    Probate Court, Preble County.
    No. 17672.
    Decided December 15, 1952.

      Spidel, Staley & Hole, Greenville, for Omar T. Smith.
    Dye & Ernst, Walter H. Earley, Eaton, for the Estate of Jennie Smith, Deceased.
   OPINION

By ZIEGEL, J.

A petition has been filed in this court under the provisions of §10509-105 et seq., GC, for the allowance of a claim of administrator against decedent’s estate. The court has appointed John E. Ernst, an attorney, to represent the estate. This cause now pends before this Court on a motion filed by Mr. Ernst to dismiss the petition.

The facts upon which this motion is based, as gleaned from the petition, are as follows: Sometime in the year 1944 Omar T. Smith, now one of the duly appointed and qualified co-administrators of the estate of Jennie Smith, deceased, received a signed written memorandum from his mother, the said Jennie Smith, as fpllows:

“The undersigned, Jennie E. Smith of West Manchester, Ohio, in consideration of the privilege and comfort of being cared for in the home of my son, Omar T. Smith, and of the care, nursing, maintenance and support rendered and furnished to me by my said son and his wife, Edith Smith, since the 8th day of February, 1944, the receipt of which is hereby acknowledged, and in consideration of any and all future care, comfort, nursing, maintenance and support rendered and furnished to me or on my behalf by my said son and his wife, hereby agrees and promises to pay to my said son and his wife the reasonable value of said services, it being my express intention that my said son and his wife be paid for all services rendered by them for me and on my behalf.”

Jennie Smith died May 31, 1952. Thereafter, Omar T. Smith and his brother, Clarence F. Smith, were appointed co-administrators of her estate. Within the time allowed by law the petition in question was filed. This petition is unusual in that its terminology is plural. It begins: “Your petitioners respectfully represent that they are husband and wife, etc.” The second paragraph begins: “Petitioners further represent that they are the owners and holders of a certain claim, etc.” The rest of the allegations of the petition including the prayer, concerning services performed and materials furnished throughout use the word “they” and are concluded in the plural. This petition is signed at the end thereof by Omar T. Smith and Edith Smith, his wife.

Movant contends that the petition should be dismissed for the reason that the Probate Court does not have any jurisdiction of any claim of Edith Smith, since she is not one of the administrators of decedent’s estate, and that as to her the provisions of §10509-105 et seq., GC, do not apply.

It appears that this contention presents a question of new impression in Ohio. Admittedly, the Probate Court has exclusive original jurisdiction over the claim of an administrator or executor against his decedent’s estate. Likewise it is conceded that other claimants must proceed under §10509-112 et seq., GC; and that if the claim or claims are rejected by the executor or administrator, an action must be commenced in a court of general jurisdiction under the provisions of §10509-133 GC. Thus, in the instant case, the Probate Court undeniably has jurisdiction over the individual claim of Omar T. Smith, one of the co-administrators, and definitely does not have any authority to entertain any action brought by his wife, .Edith Smith, for any individual claim which she might have against decedent’s estate. But — what is the situation if, instead of holding individual claims, they hold a joint claim?

The last paragraph of §10501-53 GC, provides that the “probate court shall have plenary power at law and in equity fully to dispose of any matter properly before the court, unless the power is expressly otherwise limited or denied by statute.” The second sentence of §10501-22 GC, provides that the “provisions of law governing civil proceedings-in the court of common pleas, so far as applicable, shall govern like proceedings in the probate court when there is no provision on the subject in this act.”

By §10501-53 GC, the Probate Court has full power to hear and determine any matter properly before it. By §10501-22 GC, the code of civil procedure applicable to the common pleas court governs like proceedings in the Probate Court. What is a “like proceeding”? The old Insolvency Court of Hamilton County passed upon this question many years ago in Railroad v. Cincinnati, 9 O. L. R., 105, and stated that the “limitation in this section to like proceedings must refer to character, as well as the form of the proceedings to which reference is made .... If the substance or character of the preliminary proceedings in this court is like that of any proceedings under the code of procedure it would be sufficient.” After reviewing' a decision of its own circuit court, Kittredge v. Miller, etc., 12 C. C., 128, where it was held that a contested application for the allowance of attorney fees in the probate court was a proper case for a separate finding of facts and law, a procedure not found in the Probate Court but contained in the code of civil procedure, such an application being in character and substance an action to recover for services rendered, the court concluded by stating that therefore “the provisions of said §11212 GC (now §10501-22 GC) extend beyond those cases in which the probate court and common pleas court have concurrent jurisdiction.”

More recently the Court of Appeals of Lucas County, in In re Estate of Harmon, 87 Oh Ap, 451; 43 O. O. 223, pointed out on page 454 of its opinion that the “phrase ‘like proceedings’ as used in the second sentence of §10501-22 GC, is not limited to proceedings of like character in the Common Pleas Court. The word ‘like,’ refers to ‘civil proceedings in the Court of Common Pleas.’ ”

The case at bar, although brought in the Probate Court because of the mandatory requirements of §10509-105 et seq., GC, involves an ordinary contractual action for services rendered; and as such, except for the fact that the claimant is an administrator, would normally be brought in the Court of Common Pleas. In view of the reasoning contained in the authorities cited above, I hold that this action is a “like proceeding” within the contemplation of §10501-22 GC.

Thus, two well known and much used sections of the Code of Procedure in Common Pleas Court answer the problem here presented. The first, §11254 GC, provides that “All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs except as otherwise provided.” This is the permissive joinder section and makes proper parties plaintiff all persons who come within its terms. The other section, §11256 GC, provides that .“Parties who are united in interest must be joined, as plaintiff or defendants . . . .,” and makes joinder of such persons not only proper but absolutely necessary. See Clark v. Brick Co., 100 Oh St 110, 125 N. E. 448.

The case at bar coming on to be heard on a motion to dismiss the petition because of improper joinder of parties, reference can be had only to that petition to determine the nature and character of the proceedings. A reading of that petition together with the agreement on which it is based seems to indicate that the interest of Omar T. Smith, the co-administrator, and of Edith Smith, his wife, in the claim against the estate of Jennie Smith, deceased, is joint or united; that the value of the services by one of them for the decedent during her lifetime cannot be separated from the value of similar service to the decedent during her lifetime which were performed by the other. In such a case, since it has already been determined that the Code of Procedure in Common Pleas Court applies here in the Probate Court, Edith Smith is not only a proper but is also a necessary party to these proceedings as provided in §11256 GC; and the motion to dismiss must be overruled.

On the other hand, even if it is concluded that the claim of one can be separated from the claim of the other thus making several claims, rather than a single joint claim, against decedent’s estate, nevertheless, under §11254 GC, while under such circumstances Edith Smith is not a necessary party, she is a proper party, since quite obviously both she and Omar T. Smith have “an interest in the subject of the action” (the agreement and services performed for decedent during her lifetime) and in “obtaining the relief demanded” (payment for those services). Thus, even here, the motion to dismiss must be overruled.

Counsel for the estate have argued that since the individual claim of Edith Smith, if rejected by the administrators, is cognizable in the Common Pleas Court, she might if not satisfied with the decision of the Probate Court in the instant matter, obtain a rejection of her claim and thereafter bring action on it in the Common Pleas Court. While this Court is not required to decide that problem in these proceedings, it is suggested, for the comfort of counsel, that since Edith Smith is a proper party in this action by virtue of §§10501-22, 11254 and/or 11256 GC; and since under §10501-53 GC, the Probate Court has full power to hear and determine any matter properly before it, in this case the Probate Court has concurrent jurisdiction with the Common Pleas Court as to the claim of Edith Smith; and a decision in this Court would be res adjudicata to an action brought on the same claim in the Common Pleas Court.

An entry in accordance with this opinion may be drawn by counsel for Omar T. Smith.


author: By PUSATERI, J:

text:
    SHARP, Estate of, In re.
    Probate Court, Clinton County.
    No. 10513.
    Decided February 18, 1954.
   OPINION

By PUSATERI, J:

This matter is before this court by virtue of an exception to the inclusion of certain real property in the determination of inheritance tax in the estate of Samuel Sharp deceased, which said exception was filed by Anna E. Smith, individually and as executrix of the estate of Z. T. Smith, deceased.

Samuel Sharp, decedent herein, conveyed by warranty deed, dated June 15, 1945 and filed for record the same date and recorded in Volume 129, Page 557, Deed Records of Clinton County, Ohio, to Anna E. Smith and Z. T. Smith. Grantor, Samuel Sharp, decedent herein, reserved unto himself a life estate in said real property, by the inclusion in said deed of the following phrases: “. . . reserving unto the grantor a life estate in said premises.” “Save and except the life estate reserved to the grantor.” There was a recitation of “. . . $1.00 and other good and valuable considerations.” However, there were no federal documentary transfer stamps on said deed and the parties herein readily acknowledge that the transfer was in fact an outright gift. Therefore, this transaction falls squarely within the phrase . . made without valuable consideration substantially equivalent in money or money’s worth to the full value of said property;” as contained in §5731.02 (C) R. C. Therefore, the matter before this court for consideration is as follows:

1. A transfer of real property by grantor to grantee.

2. No consideration whatsoever for said transfer, making it an outright gift.

3. A reserved life estate to grantor.

Do the facts as set forth in Items 1, 2 and 3 above, bring such a transfer within the meaning of the phrase “Intended to take effect in possession or enjoyment at or after such death;” as set forth in §5731.02 (C) (2) R. C.? (Sec. 5332-2 (b) GC.)

Exceptor herein has contended that the interest of the grantees vested immediately upon the conveyance of the real property and that therefore the gift does not come within the meaning of the phrase “Intended to take effect in possession or enjoyment at or after such death;” However, neither counsel for the parties herein nor this court could find any Ohio case or cases dealing directly with this question. There are Ohio cases dealing with situations wherein consideration did flow from grantee to grantor or where trusts were involved. But this court does not believe that said cases shed any light on the single question involved herein.

It is the opinion of this court that the question of title vesting is not the controlling factor. By the very terms of the statute involved herein the question is when did grantees have the right to “possession or enjoyment” and not when did title vest in them. That is to say, even though legal title may have vested in grantees as of the day of the conveyance, they did not in fact have the right to possess the property herein; they did not have the right to enjoy said property; in fact, they could do nothing with the property until the death of grantor herein. This court has given the terms “possession or enjoyment” the common, everyday layman’s connotation in considering this matter.

This court must therefore conclude that the exception taken by the above mentioned Anna E. Smith to the inclusion of the real property conveyed from Samuel Sharp to Anna E. Smith and Z. T. Smith, as above mentioned, in the determination of the inheritance tax in the estate of Samuel Sharp, deceased, by this court, is not well taken.

An entry in conformity with this opinion should be drawn.