author: By KOVACHY, J:

text:
    CZECH CATHOLIC UNION, Plaintiff, v. SATLA REALTY CORPORATION et al, Defendants.
    Common Pleas Court, Cuyahoga County.
    No. 608345.

      Harold K. Bell, Spieth, Spring & Bell, Cleveland, for plaintiff.
    John Lansdale, Jr., Squire, Sanders & Dempsey, Cleveland, for defendants.
   OPINION

By KOVACHY, J:

In this memorandum the Atlas Savings & Loan Company will be referred to as Atlas and the Satla Realty Corporation as Satla.

The Atlas went into voluntary dissolution in 1930 and continued liquidation of its assets under and by virtue of applicable sections of the General Code of Ohio.

In March of 1935 its directors applied to the Common Pleas Court of this County for the right to accept balances due upon pass books towards the purchase of real estate and towards the payment of rents under a special formula.

From that time until September of 1939, the Common Pleas Court of Cuyahoga County adjudicated many problems presented to it by said directors in connection with the liquidation of said company. In September, 1939, this Court issued an order which in effect wound up the affairs of the Atlas Savings & Loan Company and authorized the formation of a new company, incorporated under the General Corporation Laws of the State of Ohio, to be known as the Satla Realty Corporation.

At the first meeting of the Board of Directors of Satla on December 11, 1939, the following resolution was unanimously adopted:

“It is not only the intent of the board to liquidate the assets of Satla as speedily as possible but they are duty bound to do so to enable the present shareholders, who are mainly the former depositors, to obtain their funds as speedily as possible. Furthermore, it is the formal declaration of the present directors, even though the Satla Realty Corporation was organized as a going concern, to consider it only as a liquidating medium.”

Pursuant to such resolution, the directors proceeded to liquidate the assets of said Satla and to pay off the claims of the former depositors of Atlas.

On June 1,1950, when all the claims of said former depositors had been paid, an amendment to the Articles of Incorporation was passed at a meeting of the shareholders of Satla by a vote in excess of two-thirds (2/3) of the shareholders of said corporation empowering Satla to carry on a mortgage investment business, and in some instances before said amendment the company did engage in and deal with new business in the form of mortgage loans on real property.

The plaintiff in its amended petition in this cause, and the defendant, Charles J. Hronek, in his cross petition, pray that the defendant company, Satla, and its board of directors “be enjoined from operating said defendant corporation as a mortgage investment corporation; that the action taken at the said shareholder’s meeting on June 1, 1950, be declared illegal and void; that the defendants be enjoined from investing any accumulations held by the defendant corporation, The Satla Realty Corporation, in any mortgage or other investment; that said directors be ordered to pay out $60,000.00 of the defendant corporation’s cash accumulations in distribution to the shareholders of the defendant corporation; that the defendants be restrained from doing all acts other than the continued liquidation of the remaining assets of the defendant corporation, Satla Realty Corporation; that the defendant directors be ordered to continue said liquidation in as efficient, economic, and rapid manner as possible; that defendants be ordered to sell or otherwise dispose of the remaining assets of defendant corporation so as to permit a cash distribution to the plaintiff and other shareholders of defendant corporation; that plaintiff be awarded reasonable attorney’s fees and the costs of this suit; and for such other and further relief as may be deemed just and equitable and necessary for the protection of plaintiff and all other shareholders of the defendant corporation.”

The Court has studied the full history of the dissolution phase of Atlas as well as the records of the operation of Satla to date and it seems to it that, the issues raised in the cause can be narrowed down to one paramount issue:

WAS SATLA ORGANIZED AS A GOING CONCERN WITH POWER TO ENGAGE IN BUSINESS ACCORDING TO ITS GENERAL “PURPOSES” ARTICLE OR WAS IT ORGANIZED ONLY AS A MEDIUM TO LIQUIDATE THE REMAINING ASSETS OF ATLAS?

A thorough and careful analysis of the application filed June 7, 1939 in cause No. 423646 of the Common Pleas Court of Cuyahoga County, the Journal'Entry in the same cause filed September 5, 1939, and the Articles of Incorporation of Satla was necessary to resolve this issue. The “Plan,” as set forth in said application, it appears, was a proposal to settle the claims and rights of all parties having any interest whatsoever in the liquidation of Atlas. Its fundamental objective was to terminate the jurisdiction of Common Pleas Court in the liquidation of Atlas by winding up all of its affairs by means of the formation of a new corporation, to which all assets remaining ih Atlas would be transferred and which was to be controlled in the main by the depositors of Atlas ($50.00 or more) through the issuance of common stock to them in proportion to their claims against Atlas. The consent of all to the plan was necessary for fruition. Such consent was obtained and the “Plan” thereupon became an agreement binding upon one and all when formalized in said Journal Entry.

“That all stockholders, depositors and other creditors of said dissolved corporation, and all other parties in interest, are properly before the court.” J. E. Case No. 423,646, P. 10.

“That no stockholder, depositor or other creditors of said dissolved corporation, other than Josephine Houska, a depositor, has filed herein any pleading, and that all other stockholders, depositors, and other creditors are in default for motion, demurrer, answer or other pleading to said application, and that the objection filed by the said Josephine Houska was withdrawn at the hearing.” J. E. Case No. 423,646, P. 10.

The backbone of the “Plan” was the formation of Satla. It embraced these provisions as to Satla:

1. Incorporation as a new company under the General Corporation Laws of the State of Ohio.

2. Authorized capital stock of a sufficient number of shares to permit a distribution of one share for each $20.00 of the remaining depositors’ claims, and one share for each twenty shares of stock of Atlas, 4300 in all.

3. Par value of $1.00 per share.

4. Transfer of all Atlas assets to it.

5. All of its capital stock to be turned over to the directors of Atlas.

6. Inclusion of provisions in its Articles and Regulations, which will permit the stockholders of said new corporation to exchange capital stock to be delivered to them for real estate to be acquired by said new corporation at prices not less than 120% of the appraised value of such real estate, and authorize the board of directors of said new corporation to accept the stock of said new corporation in the payment of rentals, upon such basis as the board of directors may deem proper and reasonable.

7. Directors of Atlas to serve as directors of Satla until the first annual meeting of stockholders.

8. Assumption and agreement to pay all indebtedness of the claims, made or assessed against said dissolved corporation, the officers, or directors thereof, whensoever arising.

(The claims of the depositors of Atlas were the only ones remaining.

“We don’t owe anyone with the exception of our depositors.” J. E. Case No. 423,646, P. 3.

Upon the adoption of the plan, some $45,000.00 was to be borrowed by the defendant Atlas to pay the depositors’ claims of $50.00 or less, which of course was to become a lien upon the assets of Atlas.)

9. Under the control of the depositors of Atlas.

“This Court is a believer in the system that the control of all companies as far as possible should be out of the hands of the Court. The Court wants to see, wherever it is possible, a company to go along on its own power, on its own motion, if it can do so. This company should be in the hands of the depositors. The Court should be divorced of these matters.” J. E. Case No. 423,646, P. 7.

“Coming to the first proposition about the Court retaining control, the Court is very glad to relinquish control. The Court feels it is about time. The Court feels that this company is now in a position where it can stand on its own feet. It doesn’t need the help of the Court any longer.” J. E. Case No 423,646, P. 8.

“The company should go back where it belongs. The Court will relinquish control of it. These people should take charge of their own institution. It is in perfectly liquid form. It can carry on.” J. E. Case No. 423,646, P. 9.

Upon holding the first annual meeting of stockholders of Satla on the 4th day of December, 1939, every provision required by the “Plan” with respect to Satla enumerated above was carried out. The purposes of Satla and its powers with respect to such purposes were now to be found in the charter given it by the State of Ohio as prescribed in its Articles of Incorporation.

“It is said that the power of a corporation depends on its charter, and the laws of the state where it is organized; * * *.” 10 O. Jur 814, Sec. 605.

“The rights of a corporation under its charter are such only as are conferred explicitly by its terms.” 12 Amer. Jur. 218.

“The powers of a corporation are dependent upon the grant of the sovereign power, and it is well settled that a corporation has only such powers as are expressly -granted in its charter or which are necessary for the purpose of carrying out its express powers and the purpose of incorporation. A corporation has no natural rights or capacities * * * and if a power is claimed for it, the words giving the power or for which it is necessarily implied, must be found in the charter or it does not exist.” 7 R. C. L. Sec. 512.

Whether Satla, therefore, was organized as a going concern with powers to engage in business according to its general “purposes” article, or was organized only as a medium to liquidate the remaining assets of Atlas, must be determined from the wording of its Articles of Incorporation.

“The rule has been repeatedly stated by Ohio Courts to the effect that a private corporation can exercise no powers except such as are expressly given it by its charter, or such as are necessary to carry into execution those powers conferred by express provision, and that they cannot legally enter into transactions which require the exercise of other powers, but may legally do only those acts set forth in its articles of incorporation as constitute its authorized purposes; that the enumeration of these powers implies the exclusion of all others. No court in this country, it has been declared, has been stricter in enforcing this principle, that corporations have only powers which are expressly conferred upon them by their charter and such as are fairly incidental to those powers, than the Supreme Court of Ohio.” 10 O. Jur. 816, Sec. 606.

The articles of incorporation of a private corporation, together with applicable laws of the state, constitute a contract between the state, the corporation and the holders of stock.

“The charter of a corporation constitutes a contract between it and its stockholders, and also between the stockholders inter se * * *.” 10 O. Jur. 164, Sec. 95.

The same rules of interpretation and construction therefore apply to the language used in it as are applicable to similar words in any contract.

“Ohio courts * * * have * * * applied, in the construing of corporate charters precisely the same rules of construction that would be applied to similar words and language in any other contract or statute, construing them according to plain reason, and giving to them their natural meaning.” 10 O. Jur. 163.

“Courts, in construing deeds and like written instruments, must be guided by the intention of the parties to them, and this must be determined by the language used in the instrument, the question being not what the parties meant to say, but the meaning of what they did say, as courts cannot put words into an instrument which the parties themselves fail to do.” 8 Oh Ap 360.

Article Third of the Articles of Incorporation of Satla stated that “The purpose or purposes for which it is formed are purchasing, and otherwise acquiring, holding, owning, mortgaging, pledging, selling, transferring and in any other manner disposing of, and dealing in and with, real property and interest therein, and goods, wares, merchandise and other personal property, of any and every class and description and where-ever situate, and doing any and all things incident thereto.”

Article Sixth defines, limits, and regulates the powers bestowed in Article Third with respect to certain enumerated matters:

1. Shares authorized under Article Fourth to be issued to the directors of Atlas.

2. Satla to assume all claims against Atlas.

3. Permissive right to the board of directors to purchase its outstanding shares and to pay for same by transfer of real property owned by the corporation.

4. Permissive right to the board of directors to accept outstanding shares in payment for rent of real property owned by it.

5. Subject to limitations upon the corporation to purchase its own shares set forth in the articles of incorporation or from time to time provided by law, a shareholder, subject also to reasonable regulations of the board, shall have the right to purchase real property and pay for same by transferring and assigning to the corporation, any of its outstanding shares.

6. Formula for determining the value and price of any such shares involved in transactions of the nature and kind mentioned.

Article Sixth also refers to the decree in cause No. 423,646, but said decree is not incorporated as a part of the article. The purpose of such reference, by the clear language used, is to identify and also to disclose the inclusion within these articles of provisions specifically required by the mandate of said decree.

The wording of Article Sixth is unequivocal, unambiguous and definite. It requires no interpretation or construction for its meaning is clear. The general powers of the corporation are limited only with respect to the matters specified. The general powers set forth in Article Third have not suffered impairment except as to the things set forth in Article Sixth.

The word liquidation does not appear anywhere in the articles of incorporation. Article Sixth provides that Satla acquire all the assets of Atlas “subject to all indebtedness of, all claims or asserted against said dissolved corporation * * Moreover, the par value of a share was made $1.00.

“The par value of a share is simply an amount fixed as the nominal value of the interest so specified, which amount likewise indicates the sum of money or value of property or services which a subscriber is represented as having contributed to the corporation in exchange for such share in its ownership.” 13 Amer. Jur. 301, Sec.. 176.

“Stockholders are not creditors of a' corporation as that word is generally understood.” 254 Michigan, 242 Syl. 81.

“A share of stock is not a credit nor a debt owing by the corporation to the stockholder in the sense in which the term is generally used.” Fletcher Cyclopedia Company, V. 11 P. 84.

“The corporators in the aggregate own the stock according to their respective shares and portions, and it can no more be said that the share of a corporator constitutes a credit, a debt due to him by the corporation, then it could be said that the joint owners of a house or a ship are the debtors of each for his share.” Smith v. Crescent City Line Stock Landing and Slaughter House Company. 30 LA Annual 1380.

If only liquidation was in mind would the depositors have been put in full control of a new company as well as been assured payment of their original claims against Atlas? It is more logical to believe that the depositors in that case would have had Certificates of Participation issued to them as was done in the Shuster Case, 139 Oh St 315.

It should be noted in passing that Article Seventh inferentially assumes the right of Satla to issue “shares of any class.” Such power is not consistent with the thought of liquidation.

It seems to this court that the over-all object of the formation of Satla was to build a new company upon the ruins of the old, and to permit the depositors, who with their money furnished the life-blood of the old organization, to reap whatever benefits they could from such a transformation since equitably whatever remained of Atlas rightfully belonged to them.

“Term ‘deposit’ or ‘depositor’ used in connection with savings and loan association, must be considered in sense of separation of association, since depositors furnished sole capital.” In Re: Pudget Sound Savings & Loan Association. 49 F. 2d 922, Syl. 2.

With the conclusions arrived at, as set forth above, it becomes unnecessary to resolve the other questions raised in the amended petition of the plaintiff and the cross petition of defendant Charles J. Hronek.

Therefore the Court finds for defendant Satla Realty Corporation, Frank E. Jankovsky, Henry J. Cisar, Alex J. Grabski, August Uhl, John R. Weizer, Jr., Anthony T. Jesionowski on plaintiff’s amended petition and for the same named defendants on defendant Charles J. Hronek’s cross petition.

A Journal Eentry may be drawn accordingly with exceptions noted for plaintiff Czech Catholic Union and defendant Charles J. Hronek.


source: Caselaw Access Project

author: By MATTHEWS, J.:

license: Public Domain

text:
    LESTER, Plaintiff-Appellee, v. ALBERS SUPER MARKETS, INC., Defendant-Appellant.
    Ohio Appeals, First District, Hamilton County.
    No. 7638.
    Decided November 17, 1952.

      Paul A. Holdt, Harvey A. Schultz, Cincinnati, for plaintiff-appellee.
    Harmon, Colston, Goldsmith & Hoadly, Henry B. Street, Douglas G. Cole, Cincinnati, for defendant-appellant.
   OPINION

By MATTHEWS, J.:

In her amended petition, the plaintiff alleged two causes of action — one, for false imprisonment, and the other for slander. In submitting the case to the jury, the court withdrew the cause for, slander from the consideration of the jury on the ground that there was no evidence of all the essential elements of that cause of action. The issues raised by the pleadings as to the cause of action for false imprisonment were submitted to the jury resulting in a verdict for the plaintiff for $800.00, upon which judgment was rendered. It is from that judgment that this appeal was taken.

The defendant-appellant assigns as errors the giving of certain special charges requested by the plaintiff and the refusal to give a charge requested by it, error in the general charge, error in sustaining the motion of the plaintiff to strike certain allegations alleged as an affirmative defense, and error in overruling its motions for an instructed verdict, and for judgment.

In view of the conclusion we have reached that the court erred in overruling the defendant’s motions for an instructed verdict and for judgment, we find it unnecessary to pass upon the other assignment. In reaching our conclusion, we have confined ourselves to an analysis of the plaintiff’s testimony alone.

The incident which the plaintiff characterizes as a false imprisonment took place in the defendant’s store called a “Super Market” of which she had been a patron for several years, visiting it to make purchases as frequently as twice a week. She was thoroughly familiar with the premises and the system of operation of the store. She saw the signs that were posted to indicate the entrance and exit. She knew that the merchandise was toward the rear of the store and that customers served themselves and after obtaining what they wanted, they carried or hauled their purchases by means of carts toward the front passing through aisles or lanes where their purchases were checked by an attendant and paid for and in the process all bags carried by the customer were inspected and their contents checked. There was a notice posted that all bags and packages would be checked and the plaintiff was aware of the notice and the practice.

It is clear that she had on many prior occasions gone through the process and would have done so without protest on the occasion in question had she not been in a hurry as will appear later.

On this occasion the plaintiff had gone to another store where she had bought some rolls which she had in a small bag within a paper marketing bag of the usual kind with handles for convenience in carrying. When she left the other store she took a bus or street car and obtained a transfer with which she intended to board another bus or car in front of defendant’s store. While waiting for the other bus or car she noticed a can of “cocktail fruit” in the window of defendant’s store and concluded to buy a can and entered the store for that purpose. She obtained the can and then “started to the line, through the line, — to cash it out, to pay for it. Well, the line —I was watching for my street car outside, I can see it coming from the window. Finally I was in two lines. The first line was too long, then I stepped over to the next line, then finding I could not get waited on, I sat the can of cocktail fruit on the table and turned to go out, turned from the checking line which was there just a few feet from the checking line and then I — then the manager he came to me.”

She was asked to tell what happened after she left the second check-out line, to which she responded: “Right there from the check-out line I saw I didn’t have time to go back there and put the fruit, the can where I had gotten it so then I sat it on the bread stand and turned to go out. I got in the middle of the floor, not very far from the checking line when the manager said to me ‘That bag will have to be searched’ I told him, I smiled, I said to him T haven’t bought anything in the store today. There is your goods on the counter.’ He stopped and he looked. He says ‘Lady that bag will have to be searched’ with a nasty rough voice. — Then he says to me again — I said; ‘Well, I haven’t time to have my bag searched.’ I told him I was on the transfer, my car was out there. He said: ‘Lady, that bag will have to be searched.’ With that I said: T haven’t time to have my bag searched, my car was out there.’ He said to me this last time, he said ‘Lady, the bag will have to be searched.’

“Well, I didn’t know what to do. He was still standing there. He is right in front of me all the time, right in front of me. I couldn’t get around. He said: ‘Lady, that bag will have to be searched.’ I said: ‘Well, all right, go ahead and search it.’ ”

Thereupon, the bag was searched, the contents removed, nothing was found that belonged to the defendant, the contents were returned to the bag and she was told: “Everything is all right now. You may go.” And she then passed through the checking line and left the store.

The plaintiff also testified that there were many customers in the store at the time and that the incident attracted the attention of several, to her embarrassment.

The plaintiff was asked whether anyone placed a hand upon her and she said no one touched her. She said that she was in the store about Í5 minutes. Other witnesses called by her said the incident did not last more than five minutes. She also said there were other exits and neither she nor any other witness testified that the defendant ordered her to stay or refused to allow her to leave.

The authority of a private citizen to make an arrest was discussed at the bar. That subject is irrelevant to this inquiry. Nothing was said or done indicating that the defendant was assuming to exercise any such authority. It thought its private right of property was being violated, which it was resisting. It was not assuming to vindicate any public right. The plaintiff was not accused of any crime. Nothing was done to indicate that she was being taken into custody, or that she was being held for delivery to a peace officer to answer a criminal charge. Under such circumstances there is no basis for the suggestion that this is a false imprisonment, initiated by a false arrest. In 3 O. Jur., 128, it is said: “Nor is there any arrest where a person is forcibly seized without pretense of taking him into legal custody.” Much less is there basis for a charge of arrest where no force of any sort is used. In 4 Corpus Juris Secundum, 571, it is said: “To constitute an arrest there must be an intent to arrest under a real or pretended authority, accompanied by a seizure or detention of the person which is so understood by the person arrested.”

As we view the record, it raises the fundamental question of what is imprisonment. Before any need for a determination of illegality arises there must be proof of imprisonment. In 35 Corpus Juris Secundum, 512, 513, it is said: “Submission to the mere verbal direction of another, unaccompanied by force or the threats of any character, cannot constitute a false imprisonment, and there is no false imprisonment where an employer interviewing an employee declines to terminate an interview if no force or threat of force is used and false imprisonment cannot be predicated on a person’s unfounded belief that he was restrained.”

Many cases are cited in support of the text. We indicate the facts of a few. In Sweeny v. Woolworth Co., 247 Mass. 277, 142 N. E. 50, 31 A. L. R. 311, the manager of a store accused a boy of larceny, and on the manager’s demand the boy turned his pockets inside out under a threat that if he did not do so an officer would be called to arrest him. Notwithstanding the boy’s testimony that the manager would not let him leave the store which the court said was a mere conclusion of fact without evidence of any action of the manager upon which to base it, the court held that the trial court should have sustained the defendant’s motion for an instructed verdict, saying: “There were no words or conduct which could have induced a reasonable apprehension by the plaintiff, notwithstanding his tender years, that he could not leave the defendant’s premises without interference if and when he desired to do so.”

In Great Atlantic & Pacific Tea Company v. Billups, 253 Ky., 126, 69 S. W. (2d.) 5, a customer was falsely charged with not paying for a bar of candy after she had left the store and was proceeding along the street. Except for the place it occurred and the fact that the customer paid again rather than go back to the store to continue the inquiry, the facts are very similar to the facts in the case at bar. Speaking of the conduct of the manager, the court at page 7 of the Southwestern Reporter said: “There is nothing in his conduct or words indicating an intention on his part to take Mrs. Billups into his custody, or to subject her to his control, or reasonably calculated to lead Mrs. Billups to believe that she was deprived of her liberty or placed under restraint.” The court held that the jury should have been instructed to return a verdict for defendant.

See: Weller v. Hersfeld, 189 Wis., 554, 208 N. W. 599.

In Fenn v. Kroger Grocery & Baking Co., 209 S. W. 885 (Mo.) the court said:

“A case was not made out for false arrest. The plaintiff said she was intercepted as she started to leave the store; that Mr. Krause stood where she could not pass him in going out. She does not say that he made any attempt to intercept her. She says he escorted her back to the desk, that he asked her to let him see the change . . . She does not say that she went unwillingly . . . Evidence is wholly lacking to show that she was detained by force or threats. It was probably a disagreeable experience, a humiliating one to her, but she came out victorious and was allowed to go when she desired with the assurance of Mr. Krause that it was all right. The demurrer to the evidence on both counts was properly sustained.”

The result of the cases is epitomized in 22 Am. Jur., 368, as follows:

“A customer or patron who apparently has not paid for what he has received may be detained for a reasonable time to investigate the circumstances, but upon payment of the demand, he has the unqualified right to leave the premises without restraint, so far as the proprietor is concerned, and it is false imprisonment for a private individual to detain one for an unreasonable time, or under unreasonable circumstances, for the purpose of investigating a dispute over the payment of a bill alleged to be owed by the person detained for cash services.”

The defendant’s answer included a general denial and also what is described as a second defense which was that if plaintiff had been detained that such detention did not exceed five minutes and was no longer than a reasonable time within which to investigate the plaintiff’s conduct. The court, on plaintiff’s motion, struck these allegations from the answer. We are of the opinion that the court did not err in so doing, for the reason, that if time became material it was a part of the plaintiff’s case, upon which she had the burden of proving that the time consumed was unreasonable. No burden rested upon the defendant.

Appellant’s counsel urges error in that the court failed to qualify the restraint that would constitute false imprisonment by the adjective “unlawful” or “illegal.” The court used the qualifying phrase “against her will” and it is asserted that any restraint of one private person by another is unlawful or illegal, and, therefore, the expressions have the same meaning. We are not prepared to concur with appellee in this position, but in view of our conclusion that in no true legal sense could the plaintiff be said to have been either unlawfully restrained or restrained against her will, it becomes unnecessary to decide the point.

For these reasons, the judgment is reversed and final judgment entered for the 'defendant-appellant.

HILDEBRANT, PJ, MATTHEWS, J, concur.


author: By ALLEN, Circuit Judge.

text:
    UNITED STATES v. ABRAMS et.
    United States Court of Appeals, Sixth Circuit.
    No. 11469.
    Decided May 19, 1952.
    Jerome C. Fisher, Cleveland, on the brief, for appellee.
    Holmes Baldridge, Edward H. Hickey, Washington, D. C., Donald C. Miller, Cleveland (John S. Mudri, Asst. U. S. Atty., Cleveland, George W. Spangler, William J. Holloway, Jr., Washington, D. C., of Counsel), for appellant.
    Before SIMONS, Chief Judge, ALLEN and MARTIN, Circuit Judges.
   OPINION

By ALLEN, Circuit Judge.

This is an appeal from the judgment of the District Court entered upon a complaint filed by the Government to recover a sum found by the War Contracts Price Adjustment Board to be due as excessive profits under the Renegotiation Act, 50 U. S. C. App. §1191, 550 U. S. C. A. Appendix, §1191. Notice of the unilateral order and determination of the Board was sent to the appellees October 15, 1945. The complaint was filed February 13, 1950. On June 2, 1950 and prior to the decision of the District Court, appellees paid $50,152.72, which the court found was the principal sum due. The Government had prayed for judgment of interest at six per cent, but the District court allowed three per cent interest on the principal from May 15, 1946 to June 2, 1950. The appeal is prosecuted from that part of the judgment which allowed interest at three per cent instead of six per cent.

The Government contends (1) that under valid regulations it was entitled to recover six per cent interest; and (2) that even in the absence of regulations the trial court should have awarded six per cent.

We think the judgment of the District Court was correct as to its authority to fix the interest. It is in accord with the weight of opinion as expressed by the Courts of Appeals and by the District Courts, and we think is necessitated by the provisions of the Renegotiation Act. United States v. Bonnell, 9 Cir., 180 F. 2d 145, 148; United States v. United Drill & Tool Corp., 87 U. S. App. D. C. 236, 183 F. 2d 998; United States v. Star Construction Co., Inc., 10 Cir., 186 F. 2d 666, 669; United States v. Clark, D. C., 72 F. Supp. 393; United States v. American Metal Co., D. C., 86 F. Supp. 533; United States v. Hopkins, D. C., 95 F. Supp. 14.

The applicable statute is the Renegotiation Act of 1942. It fixed no rate of interest and delegated to the War Contracts Price Adjustment Board no power to fix the rate of interest. In addition, the War Contracts Price Adjustment Board was given no general authority to issue regulations for the enforcement of the Act. The amendment of March 23, 1951, included such a provision authorizing the Board to make such rules, regulations and orders as it deems necessary or appropriate to carry out the provisions of the title, §§1211-1223 of the Appendix. 50 U. S. C. App. §1219, 50 U. S. C. A. Appendix §1219. In this enactment of March 23, 1951, the Congress also established a rate of interest on the amount of excessive profits to be four per cent per annum, and provided that when the Tax Court of the United States redetermines the amount of excessive profits received by a contractor, interest at the rate of four per cent shall be paid. Section 1215 (b) (2) (A) (B) and (C).

The regulations which the Board was authorized to make under the Regulation Act of 1942, 50 U. S. C. App. §1191, 50 U. S. C. A. Appendix, §1191, covered certain limited subjects only. The Board was authorized to prescribe- by regulation the financial information required of contractors, (c) (5) (A), to establish by regulation the character of cases to be conducted by the Board and its agencies, (d) (5), to interpret and apply the exemption provisions of the Act, (i) (2), and to interpret and apply one specific definition, namely, that of “standard commercial article” (a) (7).

However, in 1944 the Board promulgated a regulation which established the rate of interest to be recovered on excessive profits as six per cent, and this was reiterated in later promulgations.

The Government contends (1) that the Congress intended that the Board should implement the Renegotiation Act by appropriate regulations and (2) that a regulation establishing the rate of interest recoverable upon excessive profits is such an appropriate measure calculated to facilitate rapid collection. But the intent of the Congress must be shown in the statute. The circumstance that the power to issue regulations was conferred for such limited purposes as those specified in the applicable statute emphasizes the fact that the Congress intended to give this administrative agency no general power to promulgate regulations.

Since the statute is unambiguous, the Board has “no power to amend it by regulation.” Koshland v. Helvering, 298 U. S. 441, 446-447, 56 S. Ct. 767, 770, 80 L. Ed. 1268. In the regulation the Board attempted to confer upon itself an authority not granted by the statute and thus “beyond the permissible limits of administrative interpretation.” Social Security Board v. Nierotko, 327 U. S. 358, 66 S. Ct. 637, 643, 90 L. Ed. 718. In this case the ruling of the Bureau of Internal Revenue and of the National Labor Relations Board that back pay was not subject to social security tax was held by the Supreme Court to go beyond the boundaries of administrative routine although the administrative boards interpreted a term actually included in the statute. In the instant case no words of the applicable statute authorize the imposition of interest under the Renegotiation Act. However, it is settled law that interest may be recovered on money due the Government. Billings v. United States, 232 U. S. 261, 286, 34 S. Ct. 421, 58 L. Ed. 596.

The fact that the Congress amended the Act at various times after the Board promulgated the regulation, without taking action upon the fixing of interest does not give binding effect to the regulation. The exact point was raised in United States v. Bonnell, supra [180 F. 2d 148], The court declared: “This contention is without merit because the regulations are not an administrative interpretation or construction of provisions in the Act. The Act is silent as to the allowance of interest on the recovery of excessive profits. The most that can be said for congressional reenactment in the face of these regulations is that it indicated congressional approval of the 6% rate as an administrative guide to the courts in the allowance of interest in the absence of more controlling factors.”

Since the applicable Act establishes no interest rate, and since the regulation is unauthorized and invalid, the court is required to set a rate of interest compensating the Government for the loss of use of money due. This is the long-established rule of the federal courts. As stated in Royal Indemnity Co. v. United States, 313 U. S. 289, 295, 61 S. Ct. 995, 997, 85 L. Ed. 1361:

“A suit upon a contractual obligation to pay money at a fixed or ascertainable time is a suit to recover damage for its breach, including both the principal amount and interest by way of damage for delay in payment of the principal, after the due date. And in the absence of any controlling statutory regulation the trial court is as competent to determine the amount of interest for delay as any other item of damage * * *. Interest upon the principal sum from the date of default, at a fair rate, is therefore an appropriate measure of damage for the delay in payment.”

The court also declared: “In the absence of an applicable federal statute, it is for the federal courts to determine, according to their own criteria, the appropriate measure of damage, expressed in terms of interest, for non-payment of the amount found to be due.”

The rule was explained at some length in Board of Commissioners v. United States, 308 U. S. 343, 60 S. Ct. 285, 288, 84 L. Ed. 313, which involved an action brought by the Government on behalf of an Indian to recover sums paid by the Indian as taxes to Jackson County, Kansas. The Supreme Court held that since no federal statute existed requiring the exaction of interest the allowance of interest should be governed by the principles of equity and reversed a judgment allowing interest. The court said:

«* * * in ordinary suits where the Government seeks, as between itself and a private litigant, to enforce a money claim ultimately derived from a federal law, thus implying a wish of Congress to collect what it deemed fairly owing according to the traditional notions of Anglo-American law, this Court has chosen that rule as to interest which comports best with general notions of equity. United States v. Sanborn, 135 U. S. 271, 281, 10 S. Ct. 812, 815, 34 L. Ed. 112; Billings v. United States, 232 U. S. 261, 34 S. Ct. 421, 58 L. Ed. 596. Instead of choosing a rigid rule, the Court has drawn upon those flexible considerations of equity which are established sources for judicial lawmaking.”

The Government further contends that since the Ohio statute requires six per cent interest the court abused its discretion in awarding three per cent interest. We think this contention is not established by the record. The Government has not shown that it is not adequately compensated. In the face of this record the Government’s contention that interest must be set at six per cent in order to aid rapid recovery of excessive profits is seriously weakened by the fact that the Government delayed more than four years in filing the complaint and that the principal claim was paid within four months after suit was brought. It is not denied that the Government during this period had adequate sources of credit through which it could obtain money at three per cent interest. As the amount of interest was discretionary with the court, the fact that no specific reason for its action is given is immaterial. Cf. Morrison v. Regus, 5 Cir., 22 F. 2d 804, 805; Pulaski-Lonoke Drainage Dist. v. Missouri Pacific Ry. Co., 8 Cir., 44 F. 2d 899, 901. See also Young v. Potts, 6 Cir., 161 F. 2d 597, 601, in which this court held that the fixing of the interest rate at less than the statutory rate of six per cent established in Ohio, §8305 GC, did not amount to an abuse of discretion. Bearing in mind the “flexible considerations of equity” which were declared by the Supreme Court in Board of Commissioners v. United States, supra, to be the test as to the amount of interest fixed in absence of applicable statute, we think the judgment of the District Court on this point must be sustained.

This conclusion is contrary to that reached in United States v. Philmac Mfg. Co., 3 Cir., 192 F. 2d 517. An opinion of the Emergency Court of Appeals in Wilson & Co. v. Reconstruction Finance Corporation, Em. App., 194 F 2d 1016, is also relied on by the Government. We consider this case not in point in view of the distinction between the statutes involved and the different factual situation presented. The Emergency Price Control Act of 1942 expressly authorized the administrator to make terms and conditions for the payments involved. 50 U. S. C. App. §902 (e), 50 U. S. C. A. Appendix, §902. He is empowered to enforce payment “in such amounts and in such manner and upon such terms and conditions as he determines to be necessary to obtain the maximum necessary production thereof.” No such power was granted the War Contracts Price Adjustment Board in the Renegotiation Act. Moreover, the Emergency Court of Appeals held that the acceptance by Wilson & Co. with knowledge of the condition established by the administrator that any overpayment would be returned with four per cent interest constituted an implied agreement upon the part of Wilson & Co. to pay interest for the use of the overpayment. No such circumstance is presented here.

The judgment is affirmed.


author: By MILLER, J.

text:
    COMBS, Plaintiff-Appellant, v. KOBACKER STORES, INC., d. b. a. THE BOSTON STORE, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4877.
    Decided February 3, 1953.
    Coughlin, Ogier & Lloyd, Ben Ogier, of Counsel, Columbus, for plaintiff-appellant.
    Wiles & Doucher, Arthur W. Wiles, of Counsel, Columbus, for defendant-appellee.
   OPINION

By MILLER, J.

This is a law appeal from the judgment of the Common Pleas Court sustaining the defendant’s motion for a directed verdict at the close of the plaintiff’s case. Although not separately stated and numbered, the petition sets forth two causes of action for which damages are sought:

1. False imprisonment.

2. Assault and battery.

The record reveals that the plaintiff offered evidence showing that on or about the 13th day of March, 1950, she entered the defendant’s store upon its invitation- for the purpose of making certain purchases, including some shoes which had been advertised in a Columbus newspaper by the defendant doing business under the name of “Boston Store,” the Boston Store being designated as the advertiser.

The evidence further reveals that after purchasing said shoes they were left in the shoe department, which is located in the basement of the Boston Store, for the purpose of going to the defendant’s office and arranging a charge account; that after making the proper arrangements and signing the proper charge slips she returned to the basement where the shoes were given to her by a clerk, but not the one who sold them to her; that she then attempted to leave the store by the front entrance on High Street and as she stepped out of the store she was grabbed with great force and violence by the clerk who had waited on her, taking hold of her by the right arm and shoulder, and twisted her around to face him, thereby causing serious injuries, and that he then began to examine the contents of her packages. She was then ordered into the store and taken to the office and later sent home in a taxicab.

The evidence disclosed further that the Boston Store had rented the shoe department to the Epko Shoes, Inc., and that they were the owners of the merchandise in the shoe department and that the clerk who waited upon her and who later was alleged to have assaulted her was an employee of Epko Shoes, Inc. The plaintiff testified that she had no knowledge that the shoe department was owned by Epko Shoes, Inc., until after the suit was filed.

The first question presented is whether or not the defendant can deny that the clerk was its agent by showing that he was employed by the Epko Shoes, Inc., the lessee of the shoe department. This question, it seems, must be answered in the negative, the same having been decided in the case of Rubbo v. Hughes, 138 Oh St 178, the first paragraph of the syllabus of which provides:

“1. Where the proprietor of a provision market advertises an article for sale in his market and a purchaser, in reliance that he was buying from such proprietor and without knowledge to the contrary, buys such advertised article at a counter in the market which the proprietor had leased to another, which counter was the only place in the market where the article in question was to be found, the doctrine of agency by estoppel applies, and in an action against such proprietor for injuries resulting from such sale, the proprietor will not be heard to deny that the lessee of the counter space was proprietor’s agent.”

The rule is also well stated in 1 O. Jur., page 676, Section 34:

“If a person holds out another to the public as his agent, he is bound by the acts of that individual, whether he in fact be such agent or not, and the public dealing with the agent is not required first to determine the nature and extent of the authority. It is sufficient if the alleged principal has by his conduct induced the public to deal with such person as his agent, and this inducement may be by overt acts or. words, or by long-continued course of business transactions in ratifying, indorsing, and fulfilling contracts of such person, made on behalf of such principal.”

The next question presented is whether the records disclose any evidence tending to establish that the clerk was acting within the scope of his employment at the time the alleged wrongful acts were committed. In determining this question it is necessary and proper to inquire whether he was at the time serving his master. The inference may well be drawn from the evidence presented by the plaintiff that at the time of the alleged asáault and detention the agent was engaged in an attempt to protect the master’s property. We think this was an implied duty imposed upon him and he therefore may have been acting within the scope of his employment at the time.

In Biddle v. New York Central Railroad Company, 43 Oh Ap 6, the Court says at page 8:

“Under certain circumstances the duty of the employee to protect the property of his master may be inferred. West Jersey & Seashore Rd. Co. v. Welsh, 62 N. J. Law, 655, 42 A., 736, 72 Am. St. Rep., 659; McDermott v. American Brewing Co., 105 La., 124, 29 So., 498, 52 L. R. A., 684, 83 Am. St. Rep., 225; Brown v. Boston Ice Co., 178 Mass., 108, 59 N. E. 644, 86 Am. St. Rep., 469.”

In Cooley on Torts, Fourth Edition, Volume 3, p. 68, Section 396, it is said:

“ ‘In determining whether a particular act was done in the course of a servant’s employment, it is proper to inquire whether he was at the time serving his master. The test of liability in all cases depends upon the question whether the injury was committed by the authority of the master, expressly conferred, or fairly implied from the nature of the employment and the duties incident to it; and, in determining the question of authority, we are to regard the object, purpose, and the end of the employment.’ * * * ‘The question is: Was the act done by virtue of the employment and in furtherance of the master’s business? And it is sufficient if such act merely incidentally or indirectly contribute to the furtherance of such business.’
* * * *
And where clerks in stores arrest or retain persons on the charge of theft committed on the spot, the proprietor is liable, it being part of their duty to protect the master’s goods, and ‘when one places his property in the possession and under the control of another, the right to protect that possession, as well as the right to prevent any interference with its immediate use, springs out of the possession and out of the duty to control and manage it,’ and the master is liable for the manner in which the servant exercises this authority and for errors of judgment in so doing. ‘If property be intrusted to an agent or servant for sale or safe-keeping, there is clearly an implied authority to do all such things as may be proper and necessary for the protection of that property; or, if a servant be assigned to a position requiring the performance of certain duties, he has implied authority to do all such things as may be required to enable him to perform those duties. And for all acts done within the scope of the employment and the limits of the implied authority, the master is liable, however erroneous, mistaken, or malicious such acts may be.’ ”

Now the trial court appears to have overlooked this implied duty of protecting the master’s property, saying as follows:

“Now, considering that rule, was this individual, this clerk, while he was on High Street, performing services peculiar to the defendant’s business or affairs on and about the latter’s property? The court feels that there is no évidence in the case as to whether he was or not. I believe that is what I indicated yesterday. For some reason he had left the building and gone out on to the sidewalk, and regardless what he might have had in his mind when he stopped the plaintiff and her daughter-in-law, there is no evidence that he was attempting to perform any business on the part of his master; in fact, the evidence, as far as the court’s opinion is concerned, shows whatever it was out there was some private enterprise on his part, and the court feels that that conclusion is fortified by the fact that he had sold the shoes, he had directed them to go to the credit department to have their sales slip approved and then he voluntarily left the department to have the shoes delivered to the plaintiff by some other clerk in the department. He .has severed his relationship with the transaction, and for some reason had gone out of the building. So that it appears to the court that whatever he did on High Street was his own enterprise, and nothing —not even from what was said — do we have any indication that he was performing any service with respect to his master’s business.”

In view of the authorities cited we are of the opinion that an inference may be drawn that the agent was protecting the master’s property which had been entrusted to his care and keeping. Although he was not on the premises at the time, being just outside the entrance door, he was so near that the jury could have found that he was about the premises, which meets the requirements pronounced in the case of Hozian v. Casting Co., 132 Oh St 453, paragraph 1 of the syllabus:

“In an action wherein defendant’s liability depends upon proof of a master-servant relation, such relation is prima facie established by showing the alleged servant was performing services peculiar to the defendant’s business or affairs on and about the latter’s property, and acts done in the rendition of such services may be found to be within the scope of employment. (White Oak Coal Co. v. Rivoux, Admx., 88 Oh St, 18, 102 N. E., 302, and Sobolovitz v. Lubric Oil Co., 107 Oh St, 204, 140 N. E., 634, distinguished.)”

It does not appear to us that the case of The Little Miami Railroad Co. v. Wetmore, 19 Oh St 110, cited by the trial court is on all fours with the case at bar. In the cited case the court found that the assault was in no way calculated to facilitate or promote the business for which the servant was employed.

' The court further said on page 132:

“It is not a case of excess of force and violence in executing the authority of the master, but rather an act beyond such authority and foreign to the objects of the employment.”

In the instant case the inference is permissible that the alleged wrongful acts were committed while endeavoring to protect the master’s property which was under the agent’s control. Under such facts the master would be liable, the first paragraph of the syllabus of the case cited, supra, providing:

“A master is not responsible for the wrongful act of his servant, unless that act be done in execution of the authority, express or implied, given by the master. Beyond the scope of his employment, the servant is as much a stranger to his master as any third person, and the act of the servant not done in the execution of the service for which he was engaged cannot be regarded as the act of the master.”

It is our conclusion that the evidence offered by the plaintiff was sufficient to establish a prima facie case and that the court erred in instructing the jury to return a verdict for the defendant at the close of the plaintiff’s case.

The judgment will be reversed and cause remanded for further proceedings according to law.

HORNBECK, PJ, WISEMAN, J, concur.


author: By DAVIES, J.

text:
    FREIBERG, Exr., Plaintiff, v. SCHLOSS et, Defendants.
    Probate Court, Hamilton County.
    No. 3677.
    Decided January 23, 1953.

      Leonard H. Freiberg, Cincinnati, for plaintiff.
    Carl L. Meier, Cincinnati, amicus curiae.
   OPINION

By DAVIES, J.

In his petition asking for a declaratory judgment, Leonard H. Freiberg, executor of the estate of Celia Dreyfoos, deceased, has requested the court to determine and declare that Alice Seeman predeceased said testatrix and that Sigmund Schloss, Betty Schloss and Emma Goldman are entitled to divide the residue of decedent’s estate in equal thirds. The last three named persons, together with the said Alice Seeman, if alive, were nieces and nephew and the sole next of kin of Celia Dreyfoos, and all were made parties defendant in the plaintiff’s action. Service by publication has been made upon Alice Seeman, and proper service made upon other defendants in the case.

The will of Celia Dreyfoos, who died on July 25, 1949, provided in part as follows:

“Item I. All of my property, real, personal and mixed, of every kind and description, of which I may die seized and possessed and have the right of disposition, I give, devise and bequeath in four (4) equal shares to Emma Goldman and Betty Schloss, both of 897 Clinton Springs Avenue, Cincinnati, Ohio, Sigmund Schloss of 38 Landon Court, Cincinnati, Ohio, and Alice Seeman formerly of Wurzburg, Germany, share and share alike. In the event any of these shall predecease me, then the share of such decedent shall be divided equally between the survivors.”

Emma Goldman, Betty Schloss and Sigmund Schloss survived the testatrix, but Alice Seeman, whose last known address was in Wurzburg, Bavaria, Germany, has not been heard from since September 21, 1942, when, according to the evidence, she was deported from her home in Germany to Poland by the Nazis under circumstances which convince the court, by a preponderance of the evidence, that she was executed, together with other prisoners, within a few months after the date of her disappearance.

The court, under these facts, is asked to declare that Alice Seeman predeceased the testatrix, Celia Dreyfoos, and to decide that the other named defendants, Sigmund Schloss, Betty Schloss and Emma Goldman, under the terms of Celia Dreyfoos’ will, be permitted to divide in equal thirds the estate set forth in Item I above.

It has been suggested that the plaintiff should have brought his action under the Presumed Decedents’ Act, rather than under the Declaratory Judgments’ Act.

It is true that the plaintiff, in his capacity as executor, could have instituted proceedings under the Presumed Decedents’ Act to have this court decree that the legal presumption of Alice Seeman’s death was made out under the facts of this case, but, as hereinafter set forth, the presumption of her death would be regarded as having arisen as of the date of such decree. In this event, it would have-been legally presumed that Alice Seeman survived Celia Dreyfoos and, under the terms of the above will, would be entitled to one-fourth of the decedent’s estate. This would have necessitated the issuance of letters to an administrator upon the estate of the presumed decedent, Alice Seeman; would have required the giving of bond by the persons entitled to receive the distribution of proceeds of the presumed decedent’s estate; and would have forced the administrator to follow in detail the procedure of administration set forth in §10509-31 et seq GC.

Under the Presumed Decedents’ Act in Ohio, whenever any person shall be presumed to be dead on account of seven or more years’ absence from the place of his last domicile, the court, after following the prescribed procedure, hears evidence concerning the alleged absence of the presumed decedent and the circumstances and duration thereof. (Sec. 10509-25 GC.)

If satisfied, upon such hearing, that the legal presumption of death is made out, the court so decrees, and the presumption of death shall be regarded as having arisen as of the date of such decree. (Sec. 10509-28 GC.)

The plaintiff instituted proceedings under the Declaratory Judgments’ Act, rather than under the Presumed Decedents’ Act, for the obvious purpose of establishing, if possible, Alice Seeman’s death prior to the date of Celia Dreyfoos’ death.

Before considering whether this court has jurisdiction to render the declaratory judgment sought by plaintiff, we believe it will be helpfull to review certain cases involving proof of deaths under Presumed Decedents’ Act.

In the case of In re Estate of McWilson, 155 Oh St, 261, 44 O. O. 262, the court held that “at common law the seven years unexplained absence of a person gives rise only to a presumption of his death and not to the date thereof,” which “must be fixed by the court upon evidence.” The case also held that the date of the decree would fix the date of the presumed death, pointing out that the presumption of death cannot arise before the lapse of seven years of unexplained absence, and, under the provisions of §10509-28 GC, the arising of the presumption is postponed until the date of the decree. It will be noted, however, that the court (on page 268) held that “although it is true that the presumption of death may be rebutted by proof that the presumed decedent is living, the burden of proving that such decedent is alive, or died at a different time from the date when the presumption of death would ordinarily arise, is upon the one asserting such fact.” (Emphasis ours.) In the McWilson case, there was no evidence except the unexplained absence of decedent from his domicile for more than seven years.

In an article entitled “When is a Presumed Decedent Dead According to Law,” found in 45 O. O. 221, by Frances J. Eberly, the author, in commenting on the McWilson case, points out that the Presumed Decedents’ Act (§10509-25 to §10509-28 GC), applies only to a case in which the presumed decedent has an estate in his own right, upon which administration is sought for the purpose of making distribution thereof to his heirs or beneficiaries, and does not apply to a case in which a “presumed decedent” leaves no estate. We agree with Mr. Eberly’s conclusion that the sole purpose of the Ohio Presumed Decedents’ Act is to provide a statutory method for the administration of the estate of one who, because of unexplained absence of seven years, is, as at common law, presumed to be dead. The Presumed Decedents’ Act is a procedural statute and is confined by its terms to the administration of the known estate of a presumed decedent. Morrissey, Admr., v. Smith, et al., 39 O. L. R., 329.

The common law rule as to the presumption of " death arising seven years after the time of disappearance has not been abrogated by the Presumed Decedents’ Act in Ohio. Blythe v. Vail, Admr., 11 O. O. 339.

A person who for seven years has not been heard of by those who, had he been alive, would naturally have heard of him, is presumed to be dead, under the common law; but the law raises no presumption as to the time of death. The triers of fact may infer that he died before the expiration of seven years, if it appears that within that period he encountered some specific peril, or came within the range of some impending or imminent danger which might reasonably be expected to destroy life. He who asserts that the time of death was on a day prior to the expiration of seven years carries the burden of proof. 1 Greenleaf on Evidence (16 ed.), Sec. 41; Davie v. Briggs, 97 U. S. 628; 17 C. J. 1166 — 2a; Fidelity Mutual Life Ass’n. v. Mettler, 185 U. S. 305; 253 Ill. 179; Wig-more on Evidence, Vol. IX, Sec. 2531a; Young et al v. Young, 10 Oh Ap, 351; 13 O. Jur. 372; 1 Jones on Evidence (4 ed.) 112; 16 Am. Jur. 30, Sec. 35; 25 Corp. Jur. (2d) 1064.

In a case decided under common law principles before the passage in Ohio of the Declaratory Judgments’ and Presumed Decedents’ Statutes, it was held, where one was seen on a steamer in mid ocean at ten o’clock at night and not found the next day when diligent search for him was made and he was not seen since either living or dead, that it was a necessary conclusion that the man was dead, when proven by a preponderance of the evidence. Travelers’ Ins. Co. v. Rasch, 3 O. C. C. (ns) 156.

To establish the date of death at a particular time within seven years, special facts and circumstances should be shown reasonably conducing to that end. The evidence need not be direct or positive; it may be indirect or inferential, but it must be of such a character as to make it more probable that he died at the particular time than that he survived. 16 Am. Jur., Sec. 35, p. 30, et seq. The same text outlines a variety of circumstances in which courts have declared the death of absent persons before the expiration of seven years, taking into consideration exposure to a probably fatal danger; improbability of, or lack of motive for, a mere abandonment of his home; the character, habits, conditions, affections, attachments, prosperity, and objects in life of the absentee, which usually control the conduct of men, and in view of which no reasonable explanation can be given for his absence; the age, occupation or prospective journey of a given individual or by circumstances indicating suicide. See also 61 A. L. R. 1321; Brownlee v. Mutual Benefit Health and Accident Ass’n., 29 Fed. (2d) 71.

Death may be proved by circumstantial evidence alone. Veseleky v. The Bankers Life Company, 248 Ill. App. 176; Harvey v. Fidelity and Casualty Company, 200 F. 925.

It is our opinion that the Presumed Decedents’ Act (§10509- - 25 et seq GC) is not intended to apply when a presumed decedent leaves no estate to be administered, but is confined, by its terms to the administration of the known estate of a presumed decedent.

Said Act will not apply to the case under consideration if the plaintiff can prove by a preponderance of the evidence, and if the court has authority to declare, that Alice Seeman died before her aunt, Celia Dreyfoos, because in such event, Alice (taking no part of Celia’s estate and having no other estate as shown by the evidence) would have no estate to administer in Ohio.

The plaintiff could not obtain the relief sought under determination of heirship proceedings because §10509-95 GC, providing for such proceedings, reads that “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.” No property passes by the laws of intestate succession in the instant case and no property passes under a will to a beneficiary or beneficiaries not named in such will.

We come finally to a consideration of plaintiff’s request that the court, by a Declaratory Judgment, determine that Alice Seeman predeceased Celia Dreyfoos.

The Declaratory Judgments’ Act, enacted by the legislature under authority of Article IV, Section 8, of the Ohio Constitution, provides, in part, as follows:

“Sec. 12102-1 GC. Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed * *
“Sec. 12102-2 GC. Any person interested under a * * * will * * may have determined any question of construction or validity arising under the instrument, * * * and obtain a declaration of rights, status or other legal relations thereunder.”
“Sec. 12102-4 GC. Any person interested as or through an executor, administrator, trustee, guardian or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trustee in the administration of a trust, or of the estate of a decedent, an infant, lunatic, or insolvent, may have a declaration of rights or legal relations in respect thereto:
(a) To ascertain any class of creditors, devisees, legatees, heirs, next of kin or others; or
(b) To direct the executors, administrators, trustees or other fiduciaries to do or abstain from doing any particular act in their fiduciary capacity; or
(c) To determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.”
“Sec. 12102-12 GC. This act is declared to be remedial; its purpose is to settle and to afford relief from,uncertainty and insecurity with respect to rights, status and other legal relations; and is to be liberally construed and administered.”

It is well established in Ohio that both the Common Pleas Court and the Probate Court have concurrent jurisdiction to determine heirship by declaratory judgment under §§12102-1 and 12102-4 GC. Kane v. Kane, 146 Oh St, 686, 33 O. O. 166, 67 N. E. (2d), 783.

It is equally well established that an action for a declaratory judgment may be alternative to other remedies in those cases in which the court, in the exercise of sound discretion, finds that the action is within the spirit of the Uniform Declaratory Judgments’ Act and a real controversy between adverse parties exists which is justiciable in character and speedy relief is necessary to the preservation of rights that may be otherwise impaired or lost. Schaefer, Appellee v. The First National Bank of Findlay, Ohio, 134 Oh St 511, 13 O. O. 129, 18 N. E. (2d) 262; Radaszewski v. Keating, Exrx. et al., 141 Oh St, 489, 26 O. O. 75, 45 N. E. (2d) 147.

In the case of Thompson, Admr. v. Parrett, et al,. 82 Oh Ap 366, 38 O. O. 42, (decided March 1, 1948), the court reviewed a case in which a Probate Court, in an action to determine heir-ship, had decided that an alleged decedent had died at or near the “date of his disappearance,” rather than seven years after the date of his disappearance, which latter date the court accepted as the legal date for the presumption of death under the Ohio Presumed Decedents’ Act. The reviewing court stated that “under the Ohio law, unexplained absence for seven years raises a presumption of the fact of death,” but “raises no presumption as to the precise time of death. The presumption is,” the court reasoned, “in absence of definite evidence to the contrary, that such person is dead at the end of seven years.” The court, however, realizing that, in a suit to determine heir-ship, it could be proven that a decedent died prior to the expiration of seven years from the date of his absence, held specifically that “to raise a presumption of death at a date within the seven years, special facts and circumstances should be shown reasonably supporting such conclusion,” and held that “he who asserts that the time of death was on a day prior to the expiration of seven years from the date of his absence carries the burden of proof,” and “where the evidence is insufficient to warrant a finding that the decedent died on a date prior to the expiration of seven years, the court is required to rest the case upon the legal presumption that death did not arise until the expiration of seven years from the date of his disappearance,” — now, under the McWilson case, supra, at the date of the decree.

The Ohio cases support the general proposition of law that when it can be proven that a missing person died on a certain date, either within seven or more years absence from the place of his last domicile, his date of death shall be regarded as having arisen on such proven date, rather than on the date of the decree when he is merely presumed to be dead under the provisions of §10509-25 et seq GC.

Under the provisions of §12102-1 et seq GC, an executor, in the administration of an estate, when doubtful as to the distributive rights of devisees named in a will, may obtain from the Probate Court in which the estate is being administered a declaration of said devisees’ rights. When necessary, in determining such distributive rights, the Probate Court, in an action brought by an executor for a Declaratory Judgment, where a devisee has been missing from the place of his last domicile, may declare and decree, when proven by a preponderance of the evidence, that said devisee is in fact dead, may fix the actual date of his death, and may determine what rights, if any, he has under a testator’s will. The court may fix the date of said devisee’s death, when proven by a preponderance of the evidence, at any time between the date of the devisee’s disappearance from his last domicile and the date of the court’s decree.

Although the question involved in the present action for a Declaratory Judgment depends largely on a determination of the fact of whether Alice Seeman is dead or alive, the court, in the exercise of its sound discretion, may entertain, as it has determined to entertain, such action. Smith v. Municipal Civil Service Commission, 158 Oh St, 401, 49 O. O. 227; Ohio Farmers Ins. Co. v. Heisel, 143 Oh St, 519, 28 O. O. 460, 56 N. E. (2d) 151: Coshocton Real Estate Co. v. Smith, 147 Oh St 45, 33 O. O. 241, 67 N. E. (2d) 904; American Life & Accident Ins. Co. v. Jones, Adm., 152 Oh St 287, 40 O. O. 326, 89 N. E. (2d) 301; and Travelers Indemnity Co. v. Cochrane, 155 Oh St 305, 44 O. O. 302, 98 N. E. (2d) 840.

Applying these principles to the instant case, the court declares and decrees that Alice Seeman died in 1942, and takes nothing under the provisions of the Will of Celia Dreyfoos who died on July 25, 1949. Accordingly, Sigmund Schloss, Betty Schloss and Emma Goldman are each entitled to an undivided one-third share of Celia Dreyfoos’ estate.


author: By PHILLIPS. J.

text:
    MATTEO, Plaintiff-Appellee, v. MATTEO and FIRST NATIONAL BANK OF AKRON, Gdn., Defendants-Appellants.
    Ohio Appeals, Seventh District, Ashtabula County.
    No. 502.
    Decided September 9, 1952.
    Howard M. Nazor, Ashtabula, for plaintiff-appellee.
    Brouse, McDowell, May, Bierce & Wortman, Akron, for defendants-appellants.
   OPINION

By PHILLIPS. J.

In May, 1951, the Probate Court of Summit County (where the parties Matteo last lived together as husband and wife) overruled plaintiff’s motion to be appointed guardian of her husband, defendant, Gus A. Matteo, an adjudged mentally incompetent person.

Thereafter the judge of that court suggested to defendant, First National Bank of Akron, that it make application for appointment as guardian of the defendant, Gus A. Matteo.

On May 11, 1951, defendant bank was appointed guardian of the estate of defendant Matteo, an incompetent.

At the time of such appointment defendant Matteo had been confined in the psychiatric ward of the Crile Veterans Hospital at Cleveland since April 15, 1950.

On September 28, 1951, the court of common pleas of Ashtabula County granted plaintiff a divorce from defendant Matteo on the ground of extreme cruelty, awarded her custody of the three minor children of the parties, and ordered defendant bank to pay her $100.00 each month for the support of herself and her children from the monthly income being paid to it for and on behalf of defendant Matteo by the Government of the United States, and to pay the costs of the divorce action.

Defendants appealed from the judgment of the court of common pleas to this court on questions of law.

As its principal ground of error defendant contends “that the plaintiff, Mary C. Matteo was prevented from testifying to all facts which occurred prior to the bank’s appointment, as the guardian of Gus A. Matteo, by reason of the express provisions of §11495 GC.”

On trial of her action for divorce in the court of common pleas plaintiff was interrogated on direct examination concerning facts which transpired prior to defendant bank’s appointment as guardian of the estate of defendant, Gus Matteo. Counsel for defendants objected to the introduction of such testimony. The trial judge overruled defendants’ objection, and permitted plaintiff to testify to such facts. At the conclusion of plaintiff’s testimony counsel for defendant bank moved the trial judge to strike such testimony. The trial judge overruled that motion.

Under the heading “General Observations as to the Law” defendants contend that “mental incapacity or insanity, whether temporary or permanent in character, is no ground for divorce. Insanity is not ground for divorce.”

Defendants support their contention by the cases of Heim v. Heim, 35 Oh Ap 408; Clowry v. Clowry, 16 C. C. (n. s.) 302; and §11979 GC.

Also defendants contend that “where there is known mental incapacity or insanity, a court cannot enter a decree unless the incompetent is represented by (a) his guardian if he has one, or (b) by a trustee appointed by the court if he has nó guardian,” and cites as authority §11249 GC.

Further defendants contend that “the guardian must be made a party and must be served with process”; that it is the express duty of the guardian to defend all suits brought against his ward; that the guardian can not make admissions prejudicial “to such person of unsound mind”; and that the word “guardian” is statutorily defined as including a guardian of both person and estate. Defendants support their respective contentions by §11249 GC; Wiegand v. Wiegand, 29 Oh Ap 76; §10507-15 GC; and §11322 GC.

Plaintiff contends that the sole question presented to this court by defendants’ appeal is whether the trial judge erred prejudicially in permitting plaintiff to testify, in violation of the provisions of §11495 GC, to facts, or with respect to facts, which occurred prior to May 11, 1951, the date of the appointment of defendant bank as guardian of defendant, Gus A. Matteo; that the words “insane” or “insane person” are not used any place in the part of §10507-1 GC, upon which defendant bank relies; that rather the word “incompetent” is used therein; that “there is a wide difference between an “incompetent person” and an “insane person”; that had the legislature “intended that in cases where a guardian had been appointed for an incompetent, the adverse party could not testify, the legislature would have so stated in §11495 GC”; and that since the word “incompetent” was not used it “apparently was purposely left out by the legislature.”

Arguing this claimed distinction by brief further plaintiff quotes the following provision of §10507-1 GC, which defendant bank stressed in its argument:—

“The term ‘incompetent’ means any person, who by reason of advanced age, improvidence, or mental or physical disability or infirmity, is incapable of taking proper care of himself or of his property or neglects or fails to provide for his family or for other persons for whom he is charged by law to provide.
“* * * The terms ‘insane’ and ‘lunatic’ include every species of insanity or mental derangement.”

Further arguing this claimed distinction by brief plaintiff states:—

“Had the legislature intended the latter paragraph to apply to the former, it would have used the words ‘mental disability’ or ‘infirmity’ and not the words ‘insanity or mental derangement.’ Insanity or mental derangement is a far call from ‘mental disability or infirmity.’ The statute should be strictly construed and nothing should be read into the second paragraph above quoted that is not there.”

The testimony is undisputed that at the time of trial in the court of common pleas defendant Matteo was confined behind steel bars in the psychiatric ward of the Crile Veterans Hospital in Cleveland, and so mentally disabled as to be unable to converse rationally, and so disordered, deranged, and deficient mentally as to “be unable to manage his affairs and perform his social duties.”

In our opinion defendant Matteo is an “insane” person as defined by statute and Webster’s unabridged dictionary, and clearly is the type of person to whom reference is made in §11495 GC, which as applicable provides:—

“A party shall not testify when the adverse party is the guardian of an insane person * * *, except:
“1. The facts which occurred after the appointment of the guardian * * *.*’

The terms “insane” and “lunatic” include every species of insanity or mental derangement. Sec. 10507-1 GC.

The third syllabus of Torrance v. Torrance, 147 Oh St 169, discussed by brief by counsel for both the parties, holds:—

“A plaintiff in a divorce action may testify in his own behalf where the action is defended by a trustee for the suit appointed pursuant to §11249 GC, requiring that, in the absence of a guardian or in case of his disability, the defense of an insane person be by a trustee for the suit appointed by the court in which the action is pending.”

The case of Torrance v. Torrance, supra, is not authority, as urged, for permitting plaintiff to testify in the case we review in her own behalf to facts other than those “which occurred after the appointment of the guardian” for the reason that the defense in the case was made by a guardian and not by a trustee.

Obviously we conclude that the trial judge erred prejudically to defendants in permitting the plaintiff to testify to facts occurring prior to the appointment of defendant bank as guardian of defendant, Gus A. Matteo.

While it is contended by the plaintiff that there is evidence in the bill of exceptions other than her testimony warranting the trial judge granting her a divorce we find no such evidence.

As to defendant bank’s “general observations as to the law” there is no allegation in the petition basing the right to divorce on the ground of the insanity of defendant Matteo, nor mention of his insanity made therein.

The judgment of the trial court must be and hereby is reversed and the cause is remanded to that court for further proceedings to be had in accordance with law.

NICHOLS, PJ, GRIFFITH, J, concur.


author: By CROSSLAND, J:

text:
    FOX, Plaintiff, v. INDUSTRIAL COMMISSION, Defendant.
    Common Pleas Court, Muskingum County.
    No. 38334.
    Decided March 25, 1953.
    Thomas Joseph, Martins Ferry, Harold Gottlieb, Zanesville, for plaintiff.
    Chalmers Wylie, Asst. Atty. Genl., Columbus, for defendant.
   OPINION

By CROSSLAND, J:

Upon defendant’s motion, at the conclusion of plaintiff’s evidence, to direct the jury to return a verdict for the defendant Commission, the Court is required to deny the same if substantial evidence or proof has been offered by the plaintiff covering all material averments required to prove his case, involving an admission or assumption of the truth of the evidence supporting the facts essential to his claim as well as an admission of all the facts which the evidence proves or tends to prove or support and of all reasonable inferences which a jury might draw therefrom, indulging in every possible consideration in favor of the submission of the case to the jury. (39 O. Jur. 796-804, Sections 181-2-3).

As was said in the body of the opinion of Wilkeson v. Erskine, 145 Oh St 218, on page 227,

“It is the settled law of this state that a motion for a directed verdict involves an admission of all the facts which the evidence tends to prove. The weight of the evidence is not involved. The inquiry is to be limited to the question of whether there is any substantial evidence in this case to support the claims of plaintiff’s petition.”

To the same effect as the foregoing, although differently stated, is the first sentence of the third syllabus in Hamden Lodge v. Gas Company, 127 Oh St 469, to-wit:

“Upon motion to direct a verdict the party against whom the motion is made is entitled to have the evidence construed most strongly in his favor.”

Said syllabus then continues, however:

“But if, upon any essential issue, after giving the evidence such favorable construction, reasonable minds can come to but one conclusion and that conclusion is adverse to such party, the judge should direct a verdict against him.”

As stated in the opinion of Judge Bevis on page 482,

“Before the judge is required to send the case to the jury, there should be in evidence something substantial from which a reasonable mind can draw a logical deduction. If reasonable minds may draw different inferences, or reach different conclusions, a jury question is presented. But, if reasonable minds can-reach only one conclusion, the jury should not be allowed to speculate upon the matter. To do so is to allow them .the opportunity of returning a wholly unreasonable verdict.”

Let us look then to a consideration of plaintiff’s evidence, pursuant to the pleadings, plaintiff’s petition alleging an injury on November 15, 1943, from turning his ankle when stepping on a stone, as a proximate result of which he was disabled therefrom and compensation paid thereon to October 14, 1946, following which allowance and judgment, to-wit, July 13, 1948, application was filed for additional compensation, wherein plaintiff set forth osteoporosis of the left foot, arthritis of the left ankle joint, congestive heart failure, orthopnea and edema, as proximately caused by said November 15, 1943, injury. The record shows an award of $21.00 weekly for one hundred weeks for permanent partial disability of forty percent, although previous to application therefor and allowance thereof plaintiff had worked uninterruptedly and regularly eight hours-per day as a plant guard up until August 21, 1944, over nine months, without loss of any time due to injury of November 15, 1943, and thereafter engaged in his former vocation of barbering, to which he returned the next week after he quit employment as an Ohio Power Company plant guard, and which he has followed since to the extent of two or three days a week, a man now in his early sixties.

Plaintiff’s claim, aside from former allowance and payment by defendant, is that he is short of breath, left leg remains swollen and the foot is “cold and it’s swollen and just thumps like a toothache,” that he can only work two or three days a week because “my foot swells and doesn’t allow me.” Mr. Pox further states on page 13, in answer to the question on line 13 as to whether “This discoloration that you have told us, being black and blue, is that the condition of your leg at the present time?” answered “No, the foot,” establishing his statement in line 24 of page 12, that “It is black and blue” as having reference to his foot, the question beginning in line 20 referring to the ankle as well as the leg.

Remembering that plaintiff worked continuously and regularly for over three-quarters of a year after the date he turned his ankle and that his work consisted of guard duty, largely performed on and with his feet, what is there factually that directly relates any present or recent complaint to the specific date and occurrence of November 15, 1943? Certainly nothing whatever in any testimony or evidence of plaintiff himself.

Plaintiff offered two medical witnesses in behalf of his claim, neither of whom knew him or his condition nor attended him in connection therewith at any time, until and except as called upon to examine him for the sole purpose of testifying as experts in his behalf before the Commission. The hypothetical question to each contains the assertion as a fact that “he has discolored veins in his legs now” (Dr. Rusoff, page 30 and Dr. Minthorne, page 42), for which there is not only no warrant but explicit contradiction (Fox, page 13, line 16).

The testimony of Dr. Rusoff, page 25, lines 10 through 13, that “There is some osteo-porosis of the left foot as compared with the right. The picture here is essentially that of arthritis of the left ankle joint.” is further explained as not being solely of the left or injured foot but only as more so than that of the right foot, as evidenced by his testimony on pages 28 and 29; on page 28, lines 22, 23, and 24, the answer to the question: “The new bone formation as found in both feet indicated what to you pathologically, Doctor?” being answered: “The presence of hpyertrophic osteoporosis arthritis.” Then also and further, in answer to the question page 28, lines 28 and 29: “I note you say there is some osteoporosis of the left foot as compared with the right. What do you mean by that?” Dr. Rusoff answered as follows; page 28, line 30, and page 29, lines 1 and 2; “That, in order to make that diagnosis, I had to compare one foot with the other by x-ray and I found that there was less calcium in the left foot than the right.”

Proceeding to the hypothetical question put to Dr. Rusoff, beginning page 29, line 9 and concluding page 30, line 28, beginning with line 23, page 30, he was asked “do you have an opinion as to whether or not there is a causal relationship between the injury to the ankle and the symptoms which followed as described in this question and the heart involvement which you found at the time of your examination?” The inquiry and answers and testimony of Dr. Rusoff then and thereafter given did not relate to proximate or direct causal relationship, and objections to such questions should have been sustained and the answers not permitted. Not being restricted to proximate causal relationship the answers were highly speculative, as, for example, page 31, lines 26 to 29: “I do not say the heart failure was caused by the injury but I believe that the factors subsequent to the injury are factors in the precipitation of the heart failure and perhaps hastened it.” What heart failure? Fox not only lived but his other expert, Menthorne, page 39, line 24, and page 46, lines 21 to 24, said he found no cardiac involvement, no evidence of heart decompensation, and no evidence of shortness of breath. What factors subsequent to the injury? and what have subsequent factors to do with direct causal relationship to November 15, 1943? And was heart failure “perhaps” hastened, when it actually never occurred? And what possible, even remote, much less proximate, connection or causal relationship existed .between a so-called heart involvement, if any, of April 23,1948, and Fox turning his left ankle November 15, 1943? The Court can only conclude that Dr. Rusoff was undertaking to strain a layman’s credulity for the sake of attempting to obtain a legal result.

The opinion in Aiken v. Industrial Commission, 143 Oh St 113, page 117, sets forth a Supreme Court view of the necessity of establishing proximate causal relationship.

“The definition and determination of ‘proximate cause’ in the field of torts is applicable here. While the determination of the proximate cause of an ultimate result sometimes presents a difficult problem in a particular case, general principies controlling the settlement of such questions are well established. Briefly stated, the proximate cause of an event is that which in a natural and continuous sequence unbroken by any new, independent cause, produces that event and without which that event would not have occurred.”

Again, more recently, in McNees v. The Cincinnati Street Railway Company, 152 Oh St 269, on page 278 of the opinion by Judge Taft, it was said that:

“the language used by the General Assembly is construed, as this Court has construed it, so as to require that the consequences of an injury have a proximate causal relationship to the injury.”

Plaintiff’s only other witness is Dr. Minthorne, who examined Fox October 10, 1950, slightly less than seven years after the injury complained of as the proximate cause of whatever conditions may have existed at the date of examination. The essential substance of his examination in chief is that Fox was experiencing some circulatory disturbance of the lower extremities, more pronounced in the left than right. On page 39, line 13, he answered: “I would say he had a disability in his lower extremities more marked in the left than the right.”

As to Dr. Rusoff’s testimony of an unrelated heart condition, while it may be considered laudable in some medical circles for Dr. Minthorne to attempt to get Dr. Rusoff “off the hook,” it is not for Dr. Minthorne to attempt to offer as conclusion or opinion of his own whether Dr. Rusoff is on or off the hook, nor to attempt to conclude from Dr. Rusoff’s own testimony what the latter did or did not find, nor whether their examination results were inconsistent. That is an attempt to invade the province and function of the jury, if it is a case for the jury and otherwise to invade the province and function of the Court. In any event, it is patently incompetent and demonstrates nothing more than a willingness of one medical expert to try to come to the rescue of another, in which neither is judge nor jury.

Ordinary witnesses usually confine themselves to what they know to be true. An expert witness, being in a superior position to comply honestly with his oath, is expected to do so no less rather than to appear to be the hired vassal of whoever pays him to testify, as in the flagrant instance of Dr. Rusoff and only less so of Dr. Minthorne.

The contrariety of fact with reference to the assumption that Fox “has discolored veins in his legs now,” in the hypothetical question to Dr. Minthorne, as heretofore explained, and the assumption, page 43, line 30, and page 44, line 1, that “There was some osteoporosis of the left foot as compared with the right,” plainly implying that there was no osteoporosis, of the right foot at all, contrary to Dr. Rusoff’s own testimony page 28, lines 22, 23, 24 and 30 of “The presence of hypertrophic osteoporosis arthritis” in both feet, clearly disqualifies any answer thereto or to subsequent questions predicated thereon. Furthermore, Dr. Minthorne is asked to assume shortness of breath, although he himself, upon examination, found no evidence whatever thereof.

Referring back to the necessity of inquiring of a medical witness, offered as an expert, as to whether or not he has an opinion as to proximate causal relationship between injury and disability before such expert may be permitted to answer, it becomes clear why an answer given should be so qualified in and by the question put to him.

He is in a highly technical field, whose testimony the jury is expected to consider, weigh and evaluate intelligently and, in this type of case, virtually rely upon almost exclusively.

Unless the jury knows at the very outset of his opinion testimony that such testimony is already made competent and proper for it to act upon, if believed and accepted by it, from the .strict legal correctness of the question asked under the principle of law of which it is later charged to take account, any jury is completely at the mercy of and wholly subservient to medical testimony, which is not healthy or wholesome jurisprudence. There should be no occasion for a jury to have to flounder in a sea of guess and speculation when a proper question can apprise its members, in effect: “This is competent testimony, if you believe it.”

The vice and abuse of expecting a jury of laymen to analyze the speculative processes of an expert medical witness in order to determine whether his answers are within or without the province of their proper consideration is well illustrated in this case as having the effect of characterizing such testimony as that of Dr. Rusoff as legally reputable and trustworthy and as further telling the jury that it may believe and accept anything he elects to tell them simply because he happens to be a medical witness.

A proper question will at least impose only reasonable restraint to a scrupulous- witness.

Moreover, in so far as Dr. Minthorne’s own findings are concerned, on page 47, lines 8 to 12, in answer to the question as to whether the circulatory disturbance was either inflammatory or traumatic, the doctor testified it could be either, testifying “It could be. I’d say either one. Yes.”

“When there are two or more possible causes of an injury, for one or more of which defendant is not liable, and the evidence in the case leaves it just as probable that the injury was the result of one cause as of the other, the plaintiff cannot recover.” (Yeagle v. Allen, et al., 48 N Y S 827, 2 syl., page 828.)

The Court concludes, as a matter of law, that there is no substantial evidence whatever that tends to establish proximate causal relationship between plaintiff’s injury of November 15, 1943, and any admissible evidence offered either by him or by either of his medical experts, one of whom examined him April 23, 1948, and the other on October 10, 1950, and that the Court is therefore required to sustain defendant’s motion and accordingly instructs and directs the jury to return a verdict for the defendant. Exceptions are noted for and in behalf of the plaintiff.