author: By MATTHEWS, J.:

text:
    ALBERS, Plaintiff-Appellee, v. CONTINENTAL CASUALTY COMPANY, Defendant-Appellant.
    Ohio Appeals, First District, Hamilton County.
    No. 7172.
    Decided December 5, 1949.
    Nichols, Wood, Marx & Ginter, Cincinnati, Leonard D. Slutz, for plaintiff-appellee.
    Long & Bloom, Cincinnati, for defendant-appellant.
   OPINION

By MATTHEWS, J.:

The plaintiff-appellee recovered a judgment in the Municipal Court of Cincinnati upon an insurance policy, providing for indemnity for loss resulting from bodily injury effected through accidental means. The specific provision of the policy upon which the plaintiff-appellee relied read as follows:

“ ‘Injury’ as used in this policy means bodily injury which is the sole cause of the loss and which is effected solely through accidental means while this policy is in force.” As the result of an injury described as a pneumo-thorax, he required medical attention which cost him the amount for which he was awarded judgment. This appeal is from that judgment.

The trial was conduct without the intervention of a jury and the trial judge made a specific finding of facts and conclusions of law, upon which the judgment was based. However, we have before us a bill of exceptions containing all the evidence by which the soundness of the finding of facts must be tested.

The defendant-appellant asserted that the plaintiff-appellee had failed in two respects essential to his recovery in this case. The first was that there was no evidence of injury effected through accidental means. The second was that the plaintiff-appellee had failed to make proof -of loss within the time required to fix liability under the terms of the policy, or proof of waiver of such notice. The special finding of the trial court was adverse to the defendant-appellant’s contentions in both respects.

We have examined the bill of exceptions and are of the opinion that the finding on the subject of waiver of notice is supported by the evidence.

The only issue left for consideration is whether there is any substantial evidence to support the finding that the plaintiff-appellee sustained a bodily injury, effected solely through accidental means.

Two medical experts testified — one called by the plaintiffappellee, and one by the defendant-appellant. While the injury was described in the bill of particulars as a spontaneous pneumo-thorax, these experts differed sharply on the distinction between a spontaneous pneumo-thorax and a traumatic pneumo-thorax. They seemed to agree that a pneumothorax consists in a rupture or lesion of the walls of the lungs resulting in the escape of air from the lungs into the thoracic cavity, in which the lungs are suspended. The expert called by plaintiff-appellee testified that the two phrases were not mutually exclusive, that spontaneous pneumo-thorax may be either traumatic or non-traumatic. He placed the injury to the plaintiff-appellee in the traumatic class. In view of this testimony, the finding that the plaintiff suffered a bodily injury is supported by sufficient evidence and narrows the issue before us to the single question of whether that injury was effected solely through accidental means.

The answer to that question depends on the proper interpretation of the plaintiff-appellee’s own testimony.

Shortly before December 22nd, 1947, the plaintiff-appellee had been found in good health by a competent physician who had subjected him to a general physical examination. On that day he attended a luncheon of the Knights of Columbus at the Metropole Hotel in Cincinnati. It was at that luncheon that the event happened which is the basis of the plaintiffappellee’s claim. We quote his description of the occurrence:

“A. Well, on that particular day I was preparing myself for the chairmanship of a program which we were to disclose the following week, and naturally I was busying myself about the luncheon room, and I left my table, after I had sat down to eat my luncheon, and I hadn’t yet started when the thought came to me that I hadn’t approached several gentlemen at the table adjacent concerning the program we were to have the following week. I went to that table. Inasmuch as the luncheon was already under way I stooped down from my standing position to speak to these men who were seated at the table and I placed my arms around two of them so I would get my head down so that—

“Q. Who were these men, so you remember?

“A. Frank Ramacher, Ed Waldvogel and Ed in a humorous kind of way, in response to my request made a joking kind of statement and we all got a big kick out of it at the table. It caused me to laugh heartily, harder than I usually do and as I laughed I had my arms stretched out, in a stooping-position. I began to straighten up and I felt a terrible pain in my back between my shoulders. I didn’t know whether I had a sudden attack of heartburn or what, or what the pressure was, but I felt terrible pressure like that. I didn’t ■want to make a show of myself so I went back to my table and sat down, Vincent Ruthemeyer sitting to my left I said to him—

“A. Well, Vincent Ruthemeyer was sitting to my right and I began getting weaker and under more severe pressure. I couldn’t imagine what was wrong and with this pressure began to cramp and get nauseated, and it went up through my neck and the side of my face. I felt like I was getting paralyzed.”

He consulted two doctors who were present. After leaving the luncheon meeting, he consulted a chiropractor on the same day and when he reached his home he called his physician who attended him during the resulting disability. No issue is made as to his disability or as to the reasonableness of the medical expense incident thereto.

Perhaps it will clarify the issue some by excluding two categories. We are not considering the terms of an health insurance policy. If we were, we would have no difficulty in affirming this judgment. It is not sickness that creates liability under the policy which we are considering. It is not injury generally, but bodily injury effected solely through accidental means that creates that liability.

Nor are we concerned with a policy that limits liability to injuries effected by external means or violence. If it appears that the injury was occasioned by accidental means, the absence of external violence does not preclude a recovery.

Nor are we helped by cases construing the provision in the Constitution empowering the legislature to provide for compensation to workmen “for injuries occasioned in the course of their employment,” and the statutory provisions for compensation for injuries or death “in the course of employment.” Neither the Constitution nor the statute expressly limits compensation to injuries caused by accidental means, and the courts have not so construed them. In such cases the courts are called upon to distinguish between “injury” and “disease” and whether the disability — injury or disease — has a causal relation to the employment. As the Court said in Malone v. Industrial Commission, 140 Oh St, 293, at 300: “And this

Court takes the further position that accidental and traumatic injuries, having the other essential elements of a compensable injury, are compensable whether they are the result of accidental means or the result of the mishap itself proximately causing the harm or damage.”

We are concerned here with the interpretation of the language of a contract and applying the disclosed meaning to the facts. As this contract was prepared by the defendant-appellant, it must be construed most strongly against it.

Before considering the precedents on such contracts, let us analyze the plaintiff-appellee’s testimony.

We find him in attendance at a luncheon incidentally engaged in arranging a program for a meeting the following week and in doing so going from table to table in the dining room. After these visits he sat down at a table and was about to start eating his lunch when he discovered he had overlooked visiting one table at which certain gentlemen were seated. Thereupon, he left his table and went to that table to talk to those gentlemen who were at that time engaged in eating lunch. Now up to this time, surely nothing unforeseen, unexpected, or accidental had occurred. As the gentlemen to whom he wished to talk were seated eating their lunch, he stooped down to get his head on an appropriate level with theirs and further to place himself in a still better position to hear and be heard over the din of the dining room, he placed an arm around two of the men with whom he intended to engage in conversation. It is not suggested that there was anything in this that was involuntary or unintentional. Now when the three men were in that position, the plaintiff made a request of one of the men, who in response “in a humorous kind of way — made a joking kind of statement” which caused all of them to laugh; the plaintiff harder than he usually did. The plaintiff was accustomed to laughing at jokes and his reaction in this case was not unexpected. Certainly, up to this point nothing unexpected or out of the natural course of things had transpired. The humor seems to have been invited and there is no suggestion that the humor produced a paroxysm, or that the laughter was uncontrollable. The mirth may have been uncontrolled, but not uncontrollable. While he was still laughing he started to straighten up. However, right at this point he felt a terrible pain in his back between his shoulders., As later disclosed the pain resulted from a pneumo-thorax produced by a lesion or rupture of the lung membrane.

It is impossible to reach airy conclusion other than that the injury to the lung was the only accidental occurrence in this whole recital. It was not produced by any prior happening of an accidental nature. There was nothing abnormal— nothing unusual in what had taken place. It was the effect that was unusual.

Defendant-appellant’s counsel rely confidently upon New Amsterdam Casualty Co. v. Johnson, 91 Oh St, 155, in support of its position. The plaintiff-appellee’s counsel frankly admits liis difficulty because of that case, but seeks to distinguish it. In our opinion he has failed. We can see no distinction and the case has been frequently cited with approval. We quote the syllabus of that case:

“Where an insured holding an accident policy indemnifying him against bodily injuries which independently of all other causes are effected solely and exclusively by external, violent and accidental means, suffers an injury due to the dilation of the heart following the voluntary taking of a cold-water bath, it will not be considered as the result of an accident where under the circumstances attending the dilation, there is no evidence that anything occurred which the insured had not planned or anticipated, excepting the dilation and its consequences.”

In Burns v. The Employers’ Liability Assurance Corp., 134 Oh St, 222, the Court considered a policy insuring against bodily injury caused solely by accidental means. Drinking-water had become infected by the breaking of a sewer pipe and as a result the plaintiff’s husband had died of amebic dysentery. While the case,could,.perhaps, have,been,.decided, on the sole ground that decedent had died from disease rather than bodily injury, the court took occasion to consider generally the requirement for recovery under an accident policy, quoted with approval from New Amsterdam Casualty Co. v. Johnson, supra, and in its own language said: “The element of accident must be found to exist in the means or cause which produced the bodily injury rather than in the result.”

The Supreme Court was called upon again to apply the language of an accident policy similar in all material respects to the policy here under consideration in Mitchell v. New York Life Insurance Co., 136 Oh St, 551. It appeared that the plaintiff’s husband had died as the result of a ruptured sigmoid caused by a self-administered enema by connecting a rubber tube to a faucet in a bathtub. The trial court found for the plaintiff and the court of Appeals affirmed. The plaintiff claimed that the city water pressure was suddenly increased, and that this supplied the accidental means by which the sigmoid was ruptured. The Supreme Court found that there was no evidence of any increase in the water presure and no evidence that the decedent did not exercise control over the flow of water which caused his injury. Thereupon, the Supreme Court reversed the judgment on the authority of New Amsterdam Casualty Co. v. Johnson, supra. The court also cited and commented on several other cases construing policies insuring against injury caused by accidental means and while recognizing a conflict in the authorities in other jurisdictions reached the conclusion that New Amsterdam Casualty Co. v. Johnson was in accordance with, the great weight of authority. Judge Hart handed down a. dissenting opinion in that case, but he agreed that to recover on this kind of a policy, the proof must show not only an. accidental result, but also that that result was caused by accidental means.

In Hassay v. Metropolitan Life Ins. Co., 140 Oh St, 266, a policy insuring against bodily injury or death caused solely through external, violent, and accidental means, was before the court. There was no doubt that the insured’s death had been caused by external and violent means. The insured’s wife owned a house which was wrecked by a terrific explosion. After the explosion the insured’s body, badly burned and mangled, was found near the wrecked building. A rag smelling of gasoline was lying near his body. The court held that upon proof of death by external and violent means, the law raises a prima facie presumption that it was accidental, and that when the evidence is susceptible of different interpretations, a jury issue is presented. The jury had found for defendant and the judgment for it was affirmed. New Amsterdam Casualty Co. v. Johnson, supra, was approved again. Judge Hart delivered a dissenting opinion, but he wrote into it an approval of New Amsterdam Casualty Co. v. Johnson.

It should perhaps be noted that there is no requirement of external and violent means in the policy here under consideration, but there is the requirement of bodily injury effected solely by accidental means. There was no proof of external and violent means in this case and, therefore, no presumption arises that the means of injury was accidental. The burden of so proving was on the plaintiff and he was not aided by any presumption.

In the presence of these pronouncements by the Supreme Court, we find it unnecessary to inquire into the state of the law in other jurisdictions on the subject, or to resort to any original reasoning.

For these reasons, the judgment is reversed, and the cause reminded, with instructions to enter final judgment for the defendant.

ROSS, PJ, HILDEBRANT & MATTHEWS, JJ, concur in syllabus, opinion & judgment.


source: Caselaw Access Project

author: By MILLER, PJ.

license: Public Domain

text:
    SATA, d. b. a. FRIENDLY INN, Appellant, v. BOARD OF LIQUOR CONTROL et, Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4332.
    Decided March 7, 1950.
    Gregory C. Karas, Dayton, Joseph J. Poorman, Columbus, for appellant.
    Hon. Herbert S. Duffy, Atty. Geni., Charles T. Kaps, Asst. Atty. Geni., Columbus, for appellees.
   OPINION

By MILLER, PJ.

This cause comes before this Court on an appeal from the judgment of the Court of Common Pleas affirming a ruling of the Board of Liquor Control suspending a D-5 liquor permit of the appellant for a period of 45 days for the sale of intoxicating liquor to a minor eighteen years of age.

The record discloses that on or about the 22nd day of February, 1948, the appellant was engaged in the retail liquor business: that one Dessie Dean Shoun, a minor of the age of 18 years, in company with three adult friends visited the plaintiff’s tavern on said date. It was around midnight and the place was crowded. On one side of the room was a long bar. There was insufficient room for the entire party to stand up to the bar, hence the minor in question stood immediately to the rear of those in the party who were able to get up to it. After conversing for sometime the other female adult member of the party purchased four drinks of whiskey and handed one to her, which she consumed. The appellant admits the sale of the liquor, but denies that the sale was made to the minor or having any knowledge that it was to be consumed by her. There is nothing in the record to indicate that the minor requested that the liquor be purchased for her. The question involved is whether under this state of facts the appellant is in violation of §6064-22 GC, which provides as follows:

“No beer shall be sold to any person, unless he shall have attained the age of eighteen years; and no intoxicating liquor shall be sold to or handled by any person, unless he shall have attained the age of twenty-one years.”

The Common Pleas Court found that there was substantial evidence before the Board tending to show a violation and, since it was only a reviewing court, it could not weigh the evidence, citing Farrand v. State Medical Board, 151 Oh St 222. We think this is a correct interpretation of the law applicable and therefore the only question for our determination is whether there was sufficient evidence before the Board to sustain the finding.

In giving consideration to this question it becomes necessary to examine the definition of the word “sell” as defined by §6064-53 GC, which provides:

“ ‘Sale’ and ‘sell’ include exchange, barter, gift, offer for sale, sale, distribution and delivery of any kind, and the transfer of title or possession of beer and intoxicating liquor either by constructive or actual delivery by any means or devices whatsoever.”

Now the record discloses that neither the appellant nor any of his agents had knowledge that the intoxicating liquor was to be consumed by Dessie Dean Shoun, and such knowledge may not be reasonably inferred from all.of the surrounding facts and circumstances there existing. In order that there be a sale violation under §6064-22(1) GC it is incumbent that the one charged have either actual or constructive knowledge that the liquor sold was to be transferred or given to the minor.

Finding no evidence to support this charge the judgment of the Common Pleas Court is ordered reversed as well as the ruling of the Liquor Board. The cause is ordered remanded with instructions that the charges be dismissed.

HORNBECK and WISEMAN, JJ, concur.


author: By McALLISTER, CJ.

text:
    HABER et al., v. BOND STORES, INC.
    United States Court of Appeals, Sixth Circuit.
    No. 10829.
    Decided December 2, 1949.
    Albert D. Cash, John R. Hahn, Cincinnati, Morris Berick, Cleveland, for appellants.
    Robert S. Marx, Frank E. Wood, Jr., John J. Luhrman, John Wood II, Cincinnati, Monroe L. Friedman, New York City, for appellee.
    Before ALLEN, McALLISTER and MILLER, Circuit Judges.
   OPINION

By McALLISTER, CJ.

Appellant real estate agents brought suit against Bond Stores to collect compensation for services rendered in a real estate transaction. The case was tried before a jury, which returned a verdict for defendant. Appellants filed a motion for a new trial, which was denied, and they appeal.

Appellants claim that they were employed by appellee company on December 3, 1943, to find a location in Cincinnati for a store to replace the one which appellee at that time occupied, as well as to survey and check all possible locations which might be available in Cincinnati. They contend that after considerable work, they found various locations suitable for -appellee including the southwest corner of Sixth and Vine Streets, called the Emery site, and the northeast corner of Fifth and Vine Streets, called the Mabley and Carew site, and advised the Bond Stores of these locations; that while waiting for Bond Stores to inspect the sites, the latter deliberately refrained from an examination thereof, wrongfully terminated appellants’ authority, and proceeded to handle the transaction through someone else; that the Bond Stores then negotiated for the same corners above mentioned and entered into arrangements for the leasing of both places; that they afterward rejected one of the locations and concluded a deal for the Emery site at the southwest corner of Sixth and Vine Streets for a term of twenty years, based upon a guaranteed minimum rental of $75,000 per year, plus a certain percentage of sales. Appellants claim that the customary real estate commission at the time on this transaction was $46,500, plus a percentage of sales, and that the reasonable value of their services was the same as the customary real estate commission on this deal.

It is the contention of Bond Stores that they did not enter into any contract with appellants in which they agreed to pay them for their services, but that the understanding was that they would pay a commission only if the appellants presented the right kind of site, and the kind of a proposition which they would accept, and that appellants never fulfilled these requirements.

For an understanding of the issues in the case, an outline of the relations between the parties may be helpful. Appellants had a general method they followed with chain stores. They submitted by letter proposed locations all over the country, stating that they had investigated the sites in question, that the locations were the best for the chain in question, and that they desired to have the executives of the chain come and investigate them. They commenced this method with Bond Stores in 1935, submitting various locations. They wrote appellee company a great number of letters about store sites in more than a score of cities in different states. In many instances, .these letters were accompanied by a street plat of the city involved, with various locations indicated in red crayon. In one of these letters, dated December 16, 1937, appellant David Haber wrote to Bond Store that appellants had been advised that Bond had given another real estate agent authority to represent it with regard to a store location in Richmond, Virginia, and that the result was most embarrassing to appellants because of the fact that they had already secured the information on the properties in Richmond which the other agent had offered, and that appellants had so’advised Bond. Haber went on to say that he and his brother were “shocked;” and that he had just written a letter about a situation in Memphis concerning which he would appreciate Bond’s “clearing up.” He stated that he had spent considerable time and had gone to a great deal ■of expense during prior months, after the matter of store locations had first been discussed with Bond; that his brother had also discussed the same matter with appellee company the previous week. He requested that Bond write him promptly, and emphasized that he hoped appellants would “receive the proper cooperation and encouragement covering the towns and cites in which we have already procured data to meet with your requirements;” that they had already “corralled” information on ten southern cities, which he named, and that he and his brother were proud of their business record for fair and square dealing and had held the Bond Company in high esteem, which they had evidenced by making a very substantial investment in its stock. He continued: “As I have advised on many, many occasions, I stand ready and willing to meet with you, at your convenience, in order to make an inspection of the locations upon which we have information in the various cities already brought to your .attention. It was your wish and desire that I not send complete information until you advised me that you would take a trip to make these various inspections. All of the data, which I now hold, can be compiled and I therefore await your further advices and instructions.”

The foregoing letter seemed to indicate that Bond had been under an agreement or an obligation to negotiate its real ■estafé deals through the Habers. But Bond had not asked for any of these submissions by the Habers, and promptly let the latter know that the Habers’ assumptions that they were Bond’s representative were entirely unjustified, and that Bond was not bound to appellants in any way. In order to avoid any misunderstanding, Bond, therefore, on the same •day on which it received David Haber’s letter, December 17, 1937, replied, as follows: “If you have corralled any information, you have done so on your own, as a matter of good business, for I wrote you that you were doing it of your own volition and that we would avail ourselves of this information if we wanted to, but up to date we have not.”

Sometime in 1941, during a routine call on Bonds in New York, David Haber learned that the company would need a new location in Cincinnati. Two years later, in January or April, 1943, Haber again called on Bonds, showing them a map of different locations in Cincinnati. From certain statements made by Bond officials during this call, which appellants say were repeated in numerous other interviews, as well as various negotiations resulting therefrom, appellants based their claim for remuneration.

Appellants’ claim as to what constituted the agreement, as set fourth in the pleadings and appellants’ brief, is susceptible of some confusion. In their petition, appellants set forth that they were employed by Bond “to represent it in Cincinnati to deal with prospective lessors for the purpose of obtaining for defendant a new location in Cincinnati * * * and also to survey and check all possible locations which might be made available for defendant in Cincinnati; and defendant knew that plaintiffs were in this business and expected to be paid for their services.” They further set forth that they had “found” the two corner locations heretofore mentioned, about which Bond was fully advised, but that Bond itself negotiated the deal for the Emery location. Appellants then set forth that the reasonable value of their services was the same as the customary real estate commission for a deal of this type, and asked judgment for such amount. This is clearly a claim of quantum meruit on implied contract to pay for the services rendered. In their brief filed in this court by appellants’ counsel, there seems some uncertainty as to the nature of the claim. It is set forth in the brief that “The plaintiffs (appellants) asserted that they were employed by the defendant (Bond) to find a location for it in Cincinnati and defendant expressly and impliedly promised to pay for the services which were rendered.” However, as above mentioned, nothing in appellants’ petition, filed as commencement of suit, justified the claim that it was based upon express contract.

Prom the above statement in the brief of counsel, it would appear that appellants are now basing their claim on both express and implied contract. Moreover, it appears from the testimony of appellant David Haber, when he first appeared as a witness for the taking of his deposition preliminary to the trial, that he was asked whether he had ever been authorized in writing to represent Bond Stores in obtaining a location, to which he answered “No.” He further testified that he inferred that he had the authority to represent Bond from his correspondence with them; and, further, that such authority was “all by inference with respect to activities.” While these statements are not clear as to meaning, they probably could be interpreted to mean that appellant was attempting to show that he was employed by Bond under an implied contract.

The controlling consideration in this case is whether the agreement between the parties was an express contract or an implied contract; and that if it were an express contract, what constituted its terms.

An indicated above, counsel for appellants rely on both an express and an implied contract. In- this regard, it is the law that where there is an express contract, none can be implied; and a suit in quantum meruit on an implied contract for services rendered can not be supported by proof of an express contract to pay for the services. Creighton v. City of Toledo, 18 Oh St, 447; Cale v. Kiner, 44 Abs 407, 63 N. E. 2d, 839; Williams v. Goodyear, 84 Oh Ap, 113, 39 O. O. 126, 85 N. E. 2d, 601. See Pullen v. Baltzer, 243. Mass., 419, 137 N. E., 926. If, therefore, there was an express contract between the parties to this case, there could be no implied contract, and there could be no quantum meruit recovery. It is necessary, then, to ascertain from the proofs what the nature of the agreement was. What appellants claim as to the terms of the contract is found in the testimony of defendant David Haber, and because it determines our decision in this case we refer to it in some detail. With respect to the agreement, Haber testified that as early as 1941, he discussed the expansion plans of Bond Stores with an official of that company who said “that some day in the near future they would have to look around for a desirable store lay-out in Cincinnati; he said keep your eyes open, don’t work too hard, but we are going to be ready, and I said, I would like to handle it when you are ready.”

“Q. What did he say? A. I wouldn’t want anybody better than you to handle it; * * *

“Q. Was anything said about commission at that time? A. At that conference, no sir.”

Haber then testified that he had another conference with Bond Stores in January or April of 1943, and in reply to a question as to what conversation took place at that time, he stated: “At that conference a map of Cincinnati was laid out on Mr. Friedman’s desk. I showed what in my opinion would be the logical locations * * * He (said) * * * well suppose you go ahead and get busy now, we are about ready, our lease expires in a little over three years time, — it is not too soon to get busy. I said, have you given me authorization to go ahead? He said you have got authorization to go ahead, and from that time on I started out scouring the town.

“Q. Was anything said about commission? A. Never worry about paying commission with Bonds. — you deliver us the right deal and we will pay you.”

On cross-examination, he was asked:

“Q. What deal did Bond promise to pay you a commission on in 1941? A. Mr. Friedman disclosed the whole circumstances, — bring us good deals, don’t worry about commission, we will take care of you.

“Q. Did he say that in 1941? A. Yes sir.

“Q. I thought you said here yesterday that he said that in 1943? A. He did say that in 1943.

“Q. Your testimony yesterday was that they said keep your eyes open but nothing was said at the time amout commission? * * * I would like to give you the opportunity at this time to change your evidence in any particular that you want to change it. A. As the questions come out, as they are presented to me, if they require changing, I will change them.

“Q. Change them to meet the circumstances? A. Change them to meet the truth.

“Q. Weren’t you giving us the truth yesterday? A. Yes sir.

“Q. Well now, what is the truth as you now conceive it as to what Mr. Friedman said? * * * talking of 1941, in March or April? A. In March or April, Mr. Friedman said then we never had to worry about commissions, just give them good locations — they wanted good locations.

“Q. Now, in 1941, you spoke of that again about commissions? A. I just got through saying it; I will be glad to repeat, it; that he said, you don’t have to worry about commissions; if the locations are right and the propositions are right, if we take them, you will get paid by our Bond stores.

“Q. I want to ask you if this is not the first time that you have ever said that anybody has said to you that Bond stores would pay you a commission? A. No; I don’t think this is. the first time.

“Q. Yesterday, even, in the 1943 meetings, all that you purported to quote any body as saying is, don’t worry about commissions, wasn’t it? A. Yes sir.

“Q. You never up to this second have quoted anybody as having said to you Bond will pay you commissions, have you? A. No, I don’t think I have, but I amplified it this morning.

“Q. How does it come that you suddenly this morning for the first time in your life have created that story? A. I didn’t create that; that was a promise all the time.”

It required a persistent and artful cross-examination to elicit these statements from appellant David Haber and to> bring him to committing himself in such detail as to the ■terms of the agreement.

From the foregoing, it is clear that according to Haber’s own ¡testimony, there was an express contract between the parties; ■that according to the terms of this contract, it was agreed that Bond Stores would pay the Habers commissions on any ■deals securing sites for them where the locations were right, the propositions were right, and where the Habers delivered ■the “right deals,” if Bond Stores took them. Appellants did not deliver to Bond any deal where the proposition was right, ■or which Bond accepted. This testimony of appellant Haber removed from the case all right to recover on implied contract in quantum meruit for the value of the services rendered, and disposes of all contentions of appellants that they were entitled to be remunerated for their efforts in finding a site even though unsuccessful.

With regard to recovery on the contract as testified to, appellant David Haber admitted that he knew that Bond would ■be interested in Cincinnati only in a building either to be 'built or remodeled by the owner for it, and appellants never presented Bond with a proposition from any owner who was willing to build or remodel for Bond. From 1941 up to July 18, 1944, the date on which Bond itself made the deal for the Emery location, appellants presented no proposition to Bond which they were authorized to present by the owner of any building. As to the location at the corner of Sixth and Vine Streets, Bond dealt directly with the Emery Estate for this site, and in the deal that was finally concluded, the Emery Estate entered into an agreement to build a large, .modern store building on that location for Bond. Appellants had nothing to do with the delivery of this deal to Bond. They had presented.no proposition on a site that was “right,” and had presented nothing that Bond accepted. Under the terms of their contract with Bond, as testified to by Haber, .appellants were not entitled to a commission or remuneration for services.

The trial court, in giving every consideration to appellants, .allowed the case to go to the jury. Under the proofs, how■ever, appellee company was entitled to a directed verdict on its motion made at the conclusion of the proofs, and, accordingly, it becomes unnecessary to consider appellants’ claims as to errors in the trial court’s charge and special instructions to the jury. Contentions argued in the briefs as to the claimed fraud of appellee company in wrongfully terminating appellants’ employment and double-dealing in its relation with appellants, and which might be pertinent if a claim in quantum meruit were before us, or if the terms of the express contract were different, are unnecessary to consider in view of the fact that under the contract as proved by appellants, Bond was not obligated to do more than pay a commission if the right site and the right proposition were submitted to it by appellants, if Bond accepted it. Bond was, therefore, the judge of the site and of any proposition submitted. No proposition having been submitted by appellants, or accepted by Bond, no-liability arose- under the contract as a result of Bond’s closing the deal themselves directly with the owner of the Emery location.

Other contentions advanced by the parties are unnecessary to pass upon in view of our determination of the case.

The judgment of the district court is affirmed.


author: By GILLEN, J.

text:
    RAY v. JONES.
    Ohio Appeals, Fourth District, Lawrence County.
    Decided January 18,1950.
    Wayne L. Elkins, Ironton, for plaintiff-appellee.
    O. E. Irish and Hudson Jefferys, Ironton, for defendant-appellant.
   OPINION

By GILLEN, J.

Plaintiff’s petition sets forth three causes of action; first, an .action in ejectment, second, a claim for rents and profits in the sum of $300 and third, an action to quiet title. All three causes require a determination of the ownership of ■certain real estate described in the petition and the right to possession thereof. The trial court found in favor of plaintiff and from that judgment an appeal on questions of law and fact has been perfected.

The record discloses that on the 19th day of August, 1938, ■defendant purchased the property in question for the sum ■of $300 from the Superintendent of Building & Loan Associations of Ohio in charge of the liquidation of the Home Building & Loan Company of Ironton, Ohio. He did not present his deed for record until the 4th day of November, 1946, which was subsequent to the time plaintiff recorded his deed to the same property. The property on the tax duplicate remained in the name of the Home Building & Loan Company until it was .sold by the County Auditor at a tax sale to Virgil Jarrell on the 25th day of July, 1946. The valuation appearing on the Lax duplicate from 1938 to 1943 was real estate $50 and building $180. In 1943 all real estate in the county was reappraised and the valuation of the property in question was thereafter carried on the tax duplicate as real estate $50 .-and no reference to building. At no time did defendant pay any taxes on this real estate. In 1939 the property was certified as delinquent and thereafter carried as delinquent until 1946. Jarrell conveyed the property to plaintiff on the 23rd ■day of October, 1946, on which day the deed was recorded. ’The description of the property is as follows: Lot No. 46, Range 16, Township 1, Section 27, — 50' on road to river. Defendant claims that he spent approximately $2,000 improving the property and that its value at the time of trial was $3,000.

On the 5th day of November, 1943, the Board of Revision adopted a resolution designating certain parcels of real ■estate as the omitted list from foreclosure proceedings. The •secretary of the board was instructed to submit the list of omitted lands to the Prosecuting Attorney and Clerk of ■Courts for proper action.

On the 2nd day of May, 1946, a petition was filed in the -office of the Clerk of Courts of Lawrence County, seeking to have certain lands, lots or parts of lots forfeited to the .'State of Ohio for nonpayment of taxes. The petition described the property theretofore approved by the Board of Revision as the property omitted from the foreclosure proceedings and included the property in question. Due notice-of the pendency of this action was given by publication in two newspapers of opposite politics, pursuant to the provisions of §5718-lb GC. A decree of forfeiture was made May 13, 1946. Thereafter the county Auditor duly advertised the forfeited lands for sale and sold the parcel in question to-plaintiff’s predecessor in title.

It is urged that the Board of Revision did not exercise proper discretion at the time it placed the property in question on the omitted list since a personal view of the-premises was not made. It is admitted that the board relied on the information obtained from the tax duplicate in respect to this matter. The duty of the board in this regard is defined by the provisions of §5718-1 GC. This statute was-amended in 1943 and the words “after investigation” were-omitted. It would seem, therefore, that the board after that date was not required to investigate the property under consideration by visiting each parcel of land and that it could rely upon the information obtained from the records in the Auditor’s office. This seems to be a logical deduction in view of the fact that the legislature in 1943 amended the-statutes regulating the forfeiture of delinquent property to the state. The procedure now requires that the matter be submitted to the Court of Common Pleas for adjudication. Sec. 5718-la GC provides: “After such list of omitted lands; has been prepared by the county auditor, the prosecuting attorney, in the names of the members of the board of revision, shall prepare and file an application in the common pleas court of such county. Lands which have been previously omitted and forfeited to the state and are not disposed of may be included in the application. The application shall recité the date or dates on which such board met to consider the list of delinquent lands, the action taken by such board with respect to such lands, and such other facts as may be-pertinent; it shall conclude with a prayer asking for an order fixing a day for the hearing of objections to the action of such board and, after such hearing, and order confirming the action of such board and forfeiting such lands to the-state of Ohio. The list of omitted lands may be incorporated in or attached to such application and such application need not be verified.”

The procedure to be followed thereafter is prescribed by the subsequent code provisions. The manner in which notice-shall be given, the manner of hearing and all other steps are-outlined. Applying these provisions to the steps taken in the instant case we find no irregularity. All notices were duly given as required by the statutes. Defendant’s difficulty is directly attributable to his own neglect. After he acquired title to the property he did not present his deed to the county auditor to have the title transferred to his name and did not have his deed recorded in the office of the County Recorder. The fact that the title was continued on the tax duplicate in the name of the Home Building & Loan Company is defendant’s own fault. The statutes prescribing the procedure to be followed in the sale of land for delinquent taxes require only that notice be given in the name of the owner as such name appears on the tax duplicate. Defendant not only failed to protect his interest in this regard but also neglected to pay any taxes on the property. While he claims to have spent about $2,000 improving the premises he admits that such improvements were not reported for tax purposes. Under such circumstances he is in no position to complain. The fact that the auditor sold the property at public sale for the stun of $16 when the true value thereof was much greater than that amount does not alter the situation. The county auditor complied with all requirements of the code and the procedure in the Court of Common Pleas constituted a judicial determination of the issues presented. The code also provides that from such judicial determination an appeal may be taken, but in the instant case this relief has not been sought. “It is the duty of the owner of land to see that it is properly listed, and it is also his duty to pay the taxes. If he neglects this duty, the State cannot be deprived of its lien upon the land.” Gwynne v. Niswanger, 15 Ohio 367.

We are of the opinion that defendant was afforded ample opportunity to protect his interest and that by his own neglect he is now estopped to assert his claim. It has been said in the case of State ex rel. City of South Euclid v. Zangerle, 145 Oh St 433, 62 N. E. 2d 160, 161 that: “1. Under §§5752 and 5762 GC, which are in pari materia and must be construed together, the sale of land forfeited to the state for the nonpayment of taxes and assessments invests the purchaser with a new and perfect title free from all liens of special assessments and reassessments.”

A question has been raised in regard to the description of the property involved in this litigation. There can be no doubt about the identify of the property since it is apparent that the parties are claiming ownership of the same tract of land.

The case has been thoroughly briefed and the trial court in a written opinion considered the issues clearly and correctly. We have examined the entire record and find no prejudicial error contained therein.

Judgment is, therefore, rendered for plaintiff in all three causes of action. He is adjudged to be the owner of the premises and to have the right of possession thereof. Title to the property will be quieted and plaintiff will be awarded the sum of $15 per month as rental for the premises since the date he acquired title. An entry may be prepared accordingly.

McCURDY, PJ, and METCALF, J, concur.


author: Per CURIAM:

text:
    TURMAN etc., Plaintiff-Appellant, v. UNITED INSURANCE COMPANY, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21624.
    Decided February 13, 1950.
    Franklin A. Polk, Cleveland, for plaintiff-appellant.
    H. A. Gillis, Cleveland, for defendant-appellee.
    (GUERNSEY, PJ, of Third District: HUNSICKER, J, DOYLE, J, of Ninth District sitting by designation in Eighth District.)
   OPINION

Per CURIAM:

In this appeal on questions of law from an order sustaining the demurrer of the defendant appellee, United Insurance Company, to the amended second amended petition of the plaintiff appellant Marie Turman, this court upon examination of the pleadings and exhibit attached thereto, filed herein, finds that the said exhibit which plaintiff appellant claims constitutes an insurance contract is in reality merely a receipt for the payment of money as a premium for a policy of insurance which may be issued at a later date.

The pleadings filed herein show that plaintiff appellant claims a contract of insurance was entered into for her benefit as a result of an application filed by her son with the defendant appellee company. The action against the insurance company is not based upon the application and its acceptance and/or a policy of insurance issued pursuant thereto, but based upon a written receipt which constitutes merely evidence of the payment of money and not a contract of insurance. Nor does this receipt meet the legal requirements or have the legal effect of those instruments known as “binders” in the law of insurance.

Furthermore, plaintiff’s petition does not show any right of recovery on the part of plaintiff under the pleaded instrument. The demurrer was properly sustained.

Judgment affirmed. Exceptions noted. Order see journal.

GUERNSEY, PJ, HUNSICKER, J, DOYLE, J, concur.


author: By THE COURT. By HORNBECK, J.

text:
    CAMPFIELD, Petitioner, v. ALVIS et, Respondent.
    Ohio Appeals, Second District, Franklin County.
    No. 4264.
    Decided November 29, 1949.

      Decided November 29, 1949.
    Cecile J.,Shapiro, Columbus, for petitioner.
    Hon. Herbert S. Duffy, Atty. Geni., Alan E. Schwarzwalder, Assist. Atty. Geni., Columbus, for respondent.
   OPINION

By THE COURT.

This is an action seeking a writ of habeas corpus. The petitioner alleges that he is being held in the Ohio Penitentiary under a sentence of one to fifteen years, which was imposed upon him on March 22, 1934, by the Court of Common Pleas for Gallia County, Ohio, and that he is being unlawfully detained under this sentence.

The record discloses that the respondent has filed a return writ in which he states that he has the petitioner in his custody and has had since October 24, 1947, by virtue of a certain mittimus issued by the Court of Common Pleas of Lawrence County, Ohio. As the return of the writ discloses that the petitioner is not being detained as alleged in the petition there is no justiciable question at issue. The record discloses that the petitioner is being detained upon the sentence imposed by the Court of Common Pleas of Lawrence County, Ohio:

The application will be denied.

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

APPEAL ON QUESTIONS OF LAW

No. 4345.

By HORNBECK, J.

This is an appeal on questions of law from an order of the Common Pleas Judge denying a writ of habeas corpus to the relator.

Five errors are assigned.

The record consists merely of statements of counsel. There is no testimony and although it is stated in the Judge’s opinion that by agreement communication was had with the Prosecuting Attorney of Lawrence County, this is not brought onto the record.

The case seems to have been decided upon the motion of counsel for respondent for a judgment upon the opening statement of counsel for relator. In this Court it is urged that the indictment does not state an offense but we cannot find that this was made the subject of consideration or claim in the trial court and is not brought onto the record in any way. There are some statements to effect that the indictment had at no time been served upon the defendant until the day of his trial although he had requested many times that a copy be served upon him. It also appears, incidentally, that he was represented by counsel. In view of the many uncertainties in this record and because the obligation of making proof of his right to the writ was upon the relator we cannot say that the trial judge committed prejudicial error in dismissing the relator’s petition.

Some contention is made that there was a denial to the relator of his rights under Article VI of the Federal Constitution and Article I, Section 10 of the Ohio Constitution. It will be noted that there is a difference in the language of the Sixth Amendment to the Federal Constitution and Article I, Section 10 of the Ohio Constitution in that the former provides that the accused must have a copy of the indictment in ample time to enable him to prepare for trial, whereas our Constitution merely provides that the accused may demand the nature and the cause of the accusation against him and have a copy thereof. Inasmuch as it appears that defendant had counsel and may have been represented for a considerable period of time prior to his trial, it must be presumed that counsel would have had full opportunity and means of securing a copy of the indictment. If the relator had been more specific and if it had appeared that neither the defendant nor his counsel could secure copy of the indictment prior to trial, although requested, we would have a different question.

Although there is suggestion that the relator may have had ground to support the relief sought, if developed, the record is so scanty and so unsatisfactory that we cannot say that any of the errors assigned is established. The judgment must be affirmed.

MILLER, PJ, and WISEMAN, J, concur.


author: By CRAMER, J.

text:
    STATE v. GORDON et al.
    Common Pleas Court, Butler County.
    No. 13678.
    Decided September 27, 1948.
    Paul A. Baden, Pros. Atty., Hamilton, for State.
    Theodore Weiss, J. Joseph Marr, Hamilton, for Gordon.
   OPINION

By CRAMER, J.

This cause is now before the court upon the separate motions for new trial of each of the defendants herein.

The defendants were jointly indicted and jointly tried on an indictment charging them, with murder in the first degree. The jury returned separate verdicts as to each of the defendants and found the defendant Cyril Gordon guilty of murder in the first degree with a recommendation of mercy and found the defendant Marie Abbott guilty of murder in the second degree.

The court will first take up for consideration the motion for new trial of the defendant Marie Abbott.

Numerous grounds are set out in support of the granting of such motion. In the oral argument on the motion but two of such grounds were urged with any degree of seriousness. The first of which was the action of the court in granting the Prosecuting Attorney’s motion for a joint trial and refusing to order separate trials. At the close of the State’s case and again at the close of the entire case, this defendant again raised the question of error in the granting of the Prosecuting Attorney’s motion.

Before passing upon the State’s motion for a joint trial, prior to the commencement of the trial, the Court considered this question at length. The Court concluded after a thorough examination of the authorities that the State’s motion for a joint trial should be allowed. In view of the court’s examination of this question at the time originally raised and further in view of the fact that counsel for Marie Abbott have submitted no law since the original ruling which would indicate that the court was in error in granting the motion, the court adheres to the holding previously made that there was no error in ordering a joint trial.

The second ground relied upon by counsel for Marie Abbott in her motion for a new trial is that the court erred in failing to confine and limit its charge in reference to the defendant Marie Abbott to first-degree murder. It is the claim of the defendant that the court erred in charging the jury as to the lesser degrees of homicide in respect to her case, namely second-degree murder and manslaughter in the first degree.

The theory which Marie Abbott advances is that she admittedly did not do the manual act of killing Morris Abbott and that her guilt therefore depended upon it being proved by the State that she was an aider and abettor and conspired with her co-defendant in the killing of Morris Abbott. That if the State proved that she conspired with Cyril Gordon to kill her husband then the homicide, in so far as she was concerned, was necessarily committed purposely and with premeditated and deliberate malice. That therefore she was guilty of first-degree murder or not guilty and that the evidence as to her, admitted of no lesser degrees of homicide. In substance it is her claim that there was no evidence whatever as to any lesser degrees of homicide and that to permit the jury to convict her of any offense less than murder in the first degree was prejudicial to her.

Considerable weight is given by her counsel, in support of this claim, to the case of Bandy v. State, 102 Oh St 384, 131 N. E. page 499, 504, 21 A. L. R. 594. The syllabi of that case are as follows:

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

“2. If the indictment charges murder in the first degree in the perpetration of a robbery, under §12400, GC, and there is no evidence tending to support a charge of murder in the second degree, or manslaughter, as distinguished from murder in the first degree, then the defendant, upon the failure of proof as to murder in the first degree, is entitled to an acquittal, and, in such case, it is not error for the court to refuse to charge either murder in the second degree or manslaughter.”

In our opinion the Bandy case, supra, is merely a reiteration of what has long been the law of Ohio. That case by no means, in our opinion, supports the claim of the defendant made in this case. The court had under consideration a case of murder in the first degree in the perpetration of one of the enumerated felonies, namely, robbery. Under our statute, §12400 GC, where a homicide is purposely committed in the perpetration of one of the enumerated felonies, deliberate and premeditated malice are not essentials of murder in the first degree and need not be proved. All that need be proved is the commission of such a felony, or an attempt to commit it, and the homicide resulting therefrom.

It is to be noted that the first syllabus of the Bandy case, supra, holds that “murder in the first degree, literally considered, necessarily includes murder in the second degree and manslaughter.” In that case, Judge Wanamaker at the conclusion of the opinion states the following: “So far as generalizations are possible in case of murder in the first degree, it may fairly be said that in murder in the first degree, where there is charged an unlawful killing, intentionally done, with deliberate and premeditated malice, the general rule would be that the lesser degrees would not only be included in the formal charge, but suggested or supported by some of the evidence in the case, and that therefore a refusal to charge upon the lesser degrees should be the exception. Whereas, in cases of murder in the first degree, where an intentional killing was charged in the commission of some felony enumerated in the statute, there would doubtless be a more equal division as to whether or not the evidence showed any lesser degree than the one literally charged. Probably in this class of cases it might be said that the lesser degrees would be the exception.”

At this point it might be well to observe that if Marie Abbott’s position in respect to this claim is tenable, she is entitled to an outright discharge rather than a new trial. The jury’s verdict of second-degree murder necessarily implied acquitting her of murder in the first degree. Therefore, if there was no evidence respecting murder in the second degree or manslaughter on which a jury could base its verdict in respect to either of these offenses, then an outright acquittal and discharge of Marie Abbott would be in order.

Let us assume that murder in the first degree committed with premeditation and deliberation does not necessarily include the lesser degrees of second-degree murder and manslaughter. Let us further assume that there is no evidence which shows or tends to show any offense less than murder in the first degree and further assume that under such circumstances it is prejudicially erroneous for the court to submit verdicts to a jury wherein they are permitted to find a defendant guilty of such lesser offenses. Our next inquiry, in that event, should be: Was there any evidence in the case at bar which showed or tended to show Marie Abbott guilty of an offense less than murder in the first degree?

The answer to this question is found in the law of this state respecting the criminal liability of the aider and abettor, the conspirator.

Sec. 12380 GC, provides as follows: “Whoever aids, abets, or procures another to commit an offense may be prosecuted and punished as if he were the principal offender.”

Aiding, abetting or procuring a crime to be committed is under this statute a substantive and independent offense. It is, however, a substantive and independent offense only in the sense that the offender may be tried and convicted without the trial and conviction of the principal' offender. 12 O. Jur., page 86.

A consiprator under our law is regarded in much the same light as an aider and abettor and the courts have treated conspirators, in conspiracies to commit crime, as aiders and abettors. See Volume 8, O. Jur., pages 54 and 57; also State v. Doty, 94 Oh St 258, 113 N. E. 811.

Under our law where two persons agree and conspire to commit an offense amounting to a crime, each of the parties to such conspiracy is equally and fully responsible for the acts of the other in carrying out the common purpose of the conspiracy. The conspirator is equally guilty with the perpetrator of the crime committed. Under the aider and abettor statute the conspirator is not only made liable to like punishment as the principal offender, but he is declared to be guilty of the same offense. His act is declared, equally with the act of the principal offender, to be a crime. See State v. Doty, 94 Oh St 258, 113 N. E. 811; Haas v. State, 103 Oh St 1, 132 N. E. 158, 17 A. L. R. 1164; 12 O. Jur., pages 93, 94, 95, 96, 97; also Goins v. State, 46 Oh St 457, 21 N. E. 476.

The sta/tute defining the offense of aiding and abetting makes the existence of that offense dependent upon the actual perpetration of a crime by the person who is aided and abetted. The offense of a conspirator or an accessory before the fact does not rest alone upon instigation or aiding and abetting. Dual elements must occur; first, the aiding and abetting or conspiring, and second, the consummation by the principal offender. It is only when the principal offender has acted that the aider and abettor becomes amenable to the law. See 12 O. Jur., page 96; also Moore v. Lowe, 116 W. Va. 165, 180 S. E. 1.

Either — the principal or aider and abettor — may be tried and convicted independent of the other. It is not essential that the principal be prosecuted for the crime but the jury must be satisfied that he is guilty in order to arrive at a verdict against the aider and abettor. See 12 O. Jur., pages 96, 97; also Searles v. State, 6 Ohio Cir. Ct. R. 331.

It has likewise been held that the aider and abettor cannot be convicted in the same proceeding by the same jury that acquits the principal. See State v. Nowak, 16 Ohio Cir. Ct. R., N. S., 596.

A case which well illustrates the principle discussed is that of Haas v. State, 103 Oh St 1, 132 N. E. 158, 17 A. L. R. 1164, In that case the court held that evidence which supported a charge of burning one’s own building for the purpose of prejudicing an insurance company, under §12434 GC, will not warrant a conviction of arson under §12433 GC. It further held that where the owner procures another to burn the owner’s building, or consents to the burning thereof, such burning is not a malicious burning of the property of another in violation of §12433 GC.

In the course of the opinion the court, in commenting on the aider and abettor statute, §12380 GC, stated as follows:

“This is but declaratory of the long-recognized principle that generally what one may do in person he may do through the agency of some one else, and in so far as its application to the criminal law of Ohio is concerned, and in so far as it is a departure from the common law, it simply obviates the necessity of specifically charging such person as an aider and abettor, and enables the prosecution of a principal or an aider, or both, under the same or a like indictment.”

“It is but the application of ordinary logic to say that if the aider and abettor is guilty of the same crime as the principal, and may be prosecuted as a principal, that the principal is guilty of the same crime as the aider and abettor; that in law the action of the one is treated as the action of both, and that the actions of both are no different than though the separate acts of each were performed by one person.”

The court charged the jury in substance that before Marie Abbott could be convicted of any offense charged or included in the indictment the State had to prove that she conspired with Cyril Gordon to kill her husband and that unless such conspiracy was proved, she was to be acquitted, and that the State had to further prove that pursuant to that conspiracy Cyril Gordon committed a crime. The court defined the various degrees of homicide and what was required to be proved by the State before Cyril Gordon could be convicted of any of such degrees. The court also charged that if a conspiracy had been proved and that Cyril Gordon committed an offense under the indictment, in furtherance of that conspiracy, then Marie Abbott would be equally guilty with him of the crime so committed.

Since there was evidence which, if believed by the Jury, would have sustained a finding by the j'ury that Cyril Gordon was guilty of murder in the second degree, and since, as we have seen, Marie Abbott’s guilt was dependent upon Cyril Gordon having committed an offense, it certainly follows that there was evidence, in respect to Marie Abbott, upon which the jury’s verdict of second-degree murder could be sustained. The fact that the jury found Marie Abbott guilty of a lesser degree of homicide than that of which they convicted Cyril Gordon, the perpetrator, by no means determines that there was no evidence respecting the lesser degree of homicide. Such a verdict as to Marie Abbott might be attributable to the caprice of the jury. To say that there was no evidence upon which to base a conviction against Marie Abbott is to say that there was no evidence upon which the jury could have returned a verdict of second-degree murder as to Cyril Gordon. And as we have already stated, it is our opinion that there was evidence which, if believed by the jury, would have sustained the verdict of second-degree murder as to the defendant Gordon.

If we follow this defendant’s contention to its logical conclusion, we would be required to hold that where a conspiracy to kill is proved and a homicide results, the conspirator is guilty of murder in the first degree irrespective of whether the actual killing constituted a crime. • An example of the fallacy of such a contention is found in the case of Harper v. State, 83 Miss. 402, 35 So. 572. In that case the court charged the jury that if they believed that the perpetrator “shot and killed” the deceased and that the defendant aided and abetted the perpetrator in killing the deceased, then the aider and abettor was guilty of murder. The appellate court in passing on that charge held that the error in such an instruction was glaring and manifest since it made the aider and abettor guilty of murder if the perpetrator shot and killed the deceased and the defendant aided and assisted therein, without regard to whether the perpetrator had committed any offense in shooting the deceased.

It should be remembered that homicide as such is a crime in this state only if it is either murder in the first degree, second degree or manslaughter, each of which offenses is a separate crime.

In our opinion this defendant’s position is further untenable in view of the fact that her contention assumes that the mere conspiring by one with another to kill must necessarily be with deliberate and premeditated malice. This does not follow in view of the fact that an instigator may act in hot blood, in which case he will be guilty only of manslaughter, while the perpetrator may act coolly and thus be guilty of murder. The converse also may be true; the instigation may be cool and deliberate, the execution in hot blood by a person whom the instigator finds in a. condition of unreasoning frenzy:' See Wharton’s Criminal Law, 12th Ed., Sections 269 and 276.

There was evidence in this case from which the jury could find that the conspiring by Marie Abbott was done purposely and maliciously to kill her husband, thus characterizing her conduct as constituting murder in the second degree. At any rate the evidence is not such in this respect that it admits of no other conclusion than that the conspiring was with deliberate and premeditated malice.

It is our conclusion that under the evidence and the law no error was committed in submitting to the jury the lesser degree of homicide, namely, second-degree murder as to Marie Abbott; to the contrary we are of the opinion that to have restricted the jury in its finding to first-degree murder or not guilty would have been invading the province of the jury and imperatively requiring a verdict of guilty, and would have been prejudicial error.

In passing, we simply comment upon the fact that counsel for Marie Abbott at no time requested the court to so restrict its charge, nor did they specifically except to the submission of the second-degree murder and manslaughter forms of verdict to the jury. General exceptions only were taken.

Although not material, in view of our conclusion, we pose the question whether verdicts of lesser degrees of guilty in homicide cases will be upheld where the evidence establishes a higher offense and does not present any elements of the lesser.

In returning a verdict of guilty of murder in the second degree the jury in this case necessarily found beyond a reasonable doubt, that Marie Abbott conspired with Cyril Gordon to kill her husband; the court charged the jury that she could be convicted of no offense unless they first found that she conspired. We assume, as we must do, that the jury followed the instructions so given. Having found that she conspired and aided and abetted Gordon, and there being ample evidence to sustain a verdict of first-degree murder, she was benefited instead of injured by the failure of the court to instruct that the verdict must be first-degree murder ' or acquittal, in which event of course no error intervened prejudicial to her. See Kansas v. Yargus, 112 Kan. 450, 211 P. 121, 27 A. L. R. 1093. Also Cases and Annotations collected in Volume 21 A. L. R. 603, and Volume 27 A. L. R. 1097.

The Bandy case, supra, makes an acquital — in a case where there is no evidence to support the lesser degrees of homicide in a first-degree murder case — contingent upon the failure of proof as to murder in the first degree.

It is our conclusion that the verdict returned in this cause against Marie Abbott is in no sense illegal. We further conclude that no error intervened in the trial of this cause prejudicial to this defendant. We therefore find that her motion for a new trial is not well taken and will therefore be overruled.


author: By SKEEL, PJ.

text:
    FINLEY et, Plaintiffs-Appellees, v. DUFFY et, Defendants-Appellants.
    Ohio Appeals, Seventh District, Columbiana County.
    No. 671.
    Decided May 19, 1950.

      Tobin & Tobin, East Liverpool, for plaintiffs-appellees. Brookes & Lynch, Woll, Glenn & Thatcher, East Liverpool, for defendants-appellants.
    SKEEL, PJ, HURD, J, of 8th District: DOYLE, J, of 9th District sitting by designation in the 7th District.
   OPINION

By SKEEL, PJ.

This cause comes to this Court on appeal on questions of law and fact from a decree and judgment of the Common Pleas Court of Columbiana County, granting an injunction as prayed for by the plaintiffs against the defendants on the 28th day of June, 1948, and in its final form on the 29th day of December, 1948.

The trial before this court being de novo, the fact that the decree was entered before the defendants were afforded the opportunity to submit evidence to substantiate by proof the affirmative allegations of their supplemental answer, filed by leave of court, need not be considered.

The plaintiffs are members of the National Brotherhood of Operative Potters. The defendants are likewise members and are the national officers of such union. The membership of said union is composed of operative potters belonging to separate local unions located throughout the United States and Canada, which unions, about 114 in number, are affiliated with and under the jurisdiction of the National B. O. P. The home office of the N. B. O. P. is at East Liverpool, Ohio.

The issues presented by the pleadings and the evidence are, first, as to the power of the convention of the Brotherhood to amend the constitution and by the force of such amendment increase the salaries of its national officers; second, the power of the executive board to translate an hourly wage increase into a percentage increase for the national officers; and third, the power of a court to interfere with the internal affairs of the Brotherhood.

The officers, under the terms of a resolution amending the constitution of the Brotherhood passed at the regular convention of the Brotherhood in 1944, amended Sec. 75 of the constitution in part authorizing changes in the compensation to National officers. This convention upon the authority of Sec. 75 as amended and upon advice of the finance committee then fixed the following salaries for national officers:

President: . 12,000.00

Secretary: 8,500.00

1st Vice Pres.: 7,500.00

2nd Vice Pres.: 7,500.00

Organizers: 5,000.00

Members of National Comm.

Members of National Comm. Work $15.00 per day

Thereafter on the occasion of the national convention of 1946 the constitution as then amended provided by Sec. 77 as follows:

“Sec. 77. Whenever the general ware and china ware trade is granted an increase in wages, the same amount of increase shall also be passed along to the President, Secretary-Treasurer, First Vice-president, Second Vice-president and National Organizer and whenever the trade takes a decrease, said decrease shall apply to the President, Secretary-Treasurer, First Vice-president and Second Vice-president and National Organizer. Any salary increase or reduction for said officials which may be proposed in the future, other than as stated above, shall conform to Sec. 75.”

Also Section 33 of the 1946 Constitution provided:

“The Third, Fourth, Fifth, Sixth, Seventh and Eighth vice-presidents shall constitute the board of trustees and together with the president, first and second vice-presidents and secretary-treasurer shall constitute the national executive board. The third vice-president shall be chairman of the board of trustees.”

In June, 1946, an 18-% cent per hour raise was granted the general ware and china ware trade. This was a totally different method of increasing the wages of the members of the union. Theretofore all raises had been on a percentage basis. This necessitated developing a formula under the provisions of Sec. 33 of the constitution, supra, to apply such raises to the officers’ salaries. This was accomplished by computing the 18-% cents per hour increase on a sixty-hour week basis. The increases of eight and one-half cents per hour granted on Feb. 1, 1947 and six cents per hour as of September 17,1947, wij;h regard to officers’ compensation were treated in like manner. Thereafter the national executive board translated the cents per hour increases into percentage increases for the officers as follows:

The increase of 18-% cents per hour was changed to 12-%% increase

The increase of 8-% cents per hour was changed to 7-%% increase

The increase of 6 cents per hour was changed to 5% increase

As thus figured, the increases to the officers were somewhat greater than the cents per hour increases to the trade generally. Prior to the filing of this action the convention of the union in 1946 and 1947 approved the national officers’ salaries as then being paid.

At the 1948 convention, after notice to all local unions, the subject of the national officers’ compensation was again brought up for consideration. This action was then pending. Upon consideration a resolution was-adopted'fixing the national officers’ compensation as follows:

National President $294.09 per week

National Secty-Treas. $207.57 per week

This was the same rate of compensation as had been paid since the last revision.

The resolution also provided that all deductions in salary suffered by the national officers because of this lawsuit should be restored to them and that “this proposition (the subject of the national officers’ compensation; be submitted to a referendum of the trade.”

A canvassing committee was appointed who counted the votes and found that a majority of those who were legally entitled to vote and who had voted in a legal manner approved the resolution.

It is the claim of the plaintiffs, as the basis for the injunction, prayed for, that the increases granted as in 1944 and the percentage increases in place of the cents per hour increases of 1946 and 1947 were unauthorized and in violation of the constitution and that the canvassing committee erroneously found that the resolution of the 1948 convention had received a majority vote when in fact more votes were cast against it than in its favor.

In considering the issues presented by the pleadings and the evidence it is well to remember that courts will not assume to act in place of those authorized to interpret the constitution and by-laws of a voluntary association unless those upon whom the duty is placed act in an arbitrary and unreasonable manner. This is also true with respect to the determination of all questions of policy and internal management.

Oaks on “Organized Labor and Industrial Conflicts.” Sec. 91 p. 93.

The basic question here involved comes clearly within the sphere of the internal management of the Brotherhood. The compensation of the national officers in no wise effects a property right of any of the members. The continued course of conduct upon this or any other subject of internal policy comes under the complete control of the membership, either by action at the convention of the members or by a referendum. The record discloses that after the amendment to Sec. 75 of the Constitution of 1941 by the 1944 Convention, the subject of the change in compensation of the national officers came up for consideration in each of the conventions of 1946, 1947 and 1948 and in each instance the opposition to the basic increases granted by the convention of 1944 and those subsequently given because of wage increases obtained by the trade generally, failed to obtain the support of the membership. If, in fact, the desire of the Brotherhood is to revoke on the one hand or approve on the other, what has heretofore been done on this subject, the convention of 1950 has full power and authority to make whatever order seems just, no matter what this court does in the instant case. The matter is therefore one which, there being no claim of fraud, the court should leave to the regularly constituted tribunals of the Brotherhood.

Sec. 3 of the Constitution of 1941 provided as follows:

3. “The Convention of the National Brotherhood of Operative Potters shall have power and authority to make or repeal any laws deemed necessary. It may also tax the members for the maintenance of the organization.”

Section 26 provides:

26. “All resolutions adopted by the Convention which do not specify the time they shall become effective — excepting resolutions affecting the wage scale — shall take effect on the first day of the month following the adjournment of the Convention.”

Section 255 provides:

255. “These laws shall not be altered or amended except at a stated meeting of the National Union or by referendum vote of the National Brotherhood of Operative Potters.”

Section 257 provides:

257. “Should any doubt arise respecting the true intent and meaning of any article or section of this constitution, the question shall be referred to the President and Officers of the National Brotherhood of Operative Potters.”

The Convention of 1944 upon the authority of the foregoing sections and within the general powers conferred by §8623-105 GC proceeded to amend Sec. 75 of the Constitution of 1944 which then provided:

“75. Resolutions calling for changes in the salaries of the National Officers may be introduced in Convention or in Local Unions, but such resolutions must be referred to the trade for adoption or rejection, and each officer shall be voted upon individually; resolutions pertaining to National Officers’ salary is permitted only on the off year.”

The amendment struck out the last part of the provision, that is, the words “but such resolution must be referred to the trade for adoption or rejection and each officer shall be voted upon individually; resolutions pertaining to National officers’ salary is permitted only on the off year.” (It is suggested in the record that by “off year” was meant odd number years.)

Upon the adoption of such amendment the convention proceeded as above indicated to increase the national officers’ compensation. They interpreted their constitution as amended, as conferring upon them the right to do so. This duty was imposed on the officers by section 257, supra. (Constitution of 1941. Same provision is to be found in Sec. 277 of the constitution of 1946.) There were certainly grounds upon which to come to that conclusion and the court cannot substitute its judgment for that of those who by the fundamental law of the Brotherhood are vested with such power. The rule is well stated in the case of Allen v. Brotherhood of Railway Trainmen, 110 Pac. (2d) 933 at 939:

“The contention that the officers of the Brotherhood misconstrued and misinterpreted the provisions of the constitution in resp'ect to the matters involved here cannot be sustained. As was said by the court in Pratt v. Amalgamated Assoc. of S. & E. R. R. Employees, 50 Utah 472, 167 Pac. 830, 834:—

<* * * jn any event, the officers not only possessed right, but it was their duty to construe and apply the provisions of the constitution to the best of their understanding and ability. The fact that different officers have arrived at different conclusions regarding certain provisions of the constitution is but natural. What interpretation we might now place upon the constitutional provision in question is of no importance, since we are not authorized to review the rulings of the regularly constituted officers of the association relating to the internal affairs of the association.’ ”

The Allen case involved a dispute on a question of seniority rights between members of the same union. Under the powers conferred upon the officers of the union by the constitution, the dispute had been considered and determined by the said officers. The court refused to substitute its judgment, or review the conclusions reached by those empowered by the constitution of the union to resolve the controversy.

The same result must follow here first from the determination of the executive board with regard to the percentage increases above set forth and second from the determination of the canvassing committee as to the result of the referendum of 1948.

The right to seek the power of injunctive relief in a court of equity cannot be invoked unless and until it is made to appear that a property right has been invaded for which there is no other adequate remedy afforded. Here the plaintiffs have recourse to the procedure provided by the constitution of the Brotherhood of which they are a part. By their membership in the Brotherhood they have adopted the rules created by the constitution and by-laws as the basis of conducting the internal affairs of the Brotherhood. By such rules they must be bound.

For the foregoing reasons a decree will be entered for the defendants appellants. Exceptions noted. Order see journal.

HURD, J, DOYLE, J, concur.