author: By THOMAS, J.

text:
    PADUCHIK, Jr., et, Plaintiffs, v. MIKOFF, Defendant.
    Common Pleas Court, Trumbull County.
    No. 56940.
    Decided November 5, 1951.

      J. E. Roberts, for plaintiffs.
    Hoppe, Day & Ford, by Robert G. Day, Warren, for defendants.
    (THOMAS, J, of Geauga County, sitting by assignment.)
   OPINION

By THOMAS, J.

From a Jury verdict against him in the sum of $3,000.00 awarded as damages for personal injuries suffered by the Plaintiff, and judgment thereon, the defendant moves for a new trial.

There was sufficient evidence from which the Jury could find the following facts.

Plaintiff, a boy of nine was crushed against the rear wall of his grandparent’s farmhouse by a backing 1947 pickup truck owned and operated by the defendant.

Defendant lives with plaintiff’s family on a farm three miles east of the Ohio-Pennsylvania line in Lawrence County, Pennsylvania. It is approximately twelve miles from plaintiff’s home to the farm of his grandparents which is on Ohio Route No. 304 about three miles east of Hubbard.

Though defendant had not driven an automobile for fifteen to twenty years, he owned the 1947 pick-up truck which struck and injured the plaintiff. Usually the plaintiff’s father drove himself and the defendant in the truck to and from their work at the Youngstown Sheet and Tube Company plant east of Youngstown.

On the afternoon of November 11, 1948, the plaintiff’s mother drove the truck loaded with cabbages, from her farm to the grandparents’ farm. The defendant and the plaintiff rode in the truck. Plaintiff’s mother testified that she drove the truck at defendant’s request.

The testimony generally established that on arrival at the farm the truck was driven to the back of the farmhouse, that plaintiff’s mother entered the house, and that the defendant, plaintiff, and a man who lived there unloaded the cabbages from the truck to the cellar through a window close to which the truck had been backed and parked.

The Jury could have found further from all the evidence that when the cabbages were unloaded about 2:30 P. M. the defendant, in a hurry to get to work where he was due at 2:45 P. M., got into the truck to start it, and in some manner caused the truck to move backwards against the plaintiff. Defendant gave no warning before he moved the truck.

First to be considered is a renewal of defendant’s claim that the service of process made upon him pursuant to §6308-1 GC, is ineffective because the accident happened on private property.

Sec. 6308-1 GC provides:

“Service of process upon non-resident owners or operators of motor vehicles. Any nonresident of this state, being the operator or owner of any motor vehicle, who shall accept the privilege extended by the laws of this state to non-resident operators and owners, of operating a motor vehicle, or of having the same operated, within the State of Ohio, or any resident of this State, being the licensed operator or owner of any motor vehicle under the laws of this state, who shall subsequently become a non-resident or shall conceal his whereabouts, shall, by such acceptance or licensure, as the case may be, and by the operation of such motor vehicle within the state of Ohio, make and constitute the Secretary of State of the State of Ohio his, her or their agent for the service of process in any civil suit or proceeding, instituted in the Courts of the State of Ohio against such operator or owner of such motor vehicle, arising out of, or by reason of, any accident or collision occurring within the State in which such motor vehicle is involved.”

What are the acts of a non-resident owner of a motor vehicle which under §6308-1 GC will appoint the Secretary of State his agent for service of process?

The statute recites the acceptance of the “privilege extended by the laws of this State to non-resident pperators and owners, of operating a motor vehicle, or of having the same operated within the State of Ohio” and “the operation of such motor vehicle within the State of Ohio.”

Without determining whether a state has the police power to regard the operation of motor vehicles on private property as a privilege it is sufficient here to note that our present laws do not so regard the operation of a motor vehicle on private property. On the other hand the operation of a motor vehicle oh the public roads is and for some time has been treated by our laws as a privilege.

Since 1908 (99 v 538-546) it has been necessary annually to register, and to pay a license tax on every motor vehicle “which shall be operated or driven upon the public roads or highways of this state.” Such tax, significantly, has been upheld, not as a property tax, but as a privilege or excise tax. Graves v. Janes, 2 Oh Ap 383, Western Express Co. v. Wallace, 144 Oh St 612.

Accordingly the reference in §6308-1 GC to the “privilege ... of operating a motor vehicle or of having the same operated, within the State of Ohio” is deemed to refer to the operation of a motor vehicle upon a public road or highway of this state.

However no formal or express acceptance of this privilege is essential to constitute the appointment of the Secretary of State as agent of the non-resident for substituted service. Instead the use of the highway by the non-resident is equivalent to the appointment of the Secretary of State as agent on whom process may be served. Hess v. Pawloski 274 U. S. 352, 47 S. Ct. 632. 71 L. Ed. 1091.

Plaintiff’s mother testified that she was driving defendant’s truck at his request. This testimony which the Jury was entitled to believe if it chose, constituted sufficient proof that the defendant had the truck operated on the public roads of Ohio.

But even without this testimony the defendant’s presence in the truck, while it was being operated on the public roads, created a rebuttable presumption that the plaintiff’s mother was driving the truck as his agent. Dahnke v. Meggitt, 63 Oh Ap 252. There is neither proof, nor claim that he rode under protest. Since he was eventually to be driven to work the entire trip must be regarded as one from which he was deriving a benefit. To be sure it was a round about way to his work, but his continued presence in the truck, without protest, approved the route taken.

Hence there was more than sufficient evidence from which the Jury could have found that the defendant, a non-resident owner of a motor vehicle, had the motor vehicle operated upon the public roads of Ohio.

Such use of the public roads by the defendant constituted the Secretary of State as his agent on whom process could be served in any civil action described in the latter part of §6308-1 GC.

It remains to decide whether the present civil action which grows out of an accident happening on private property comes within the class of civil actions described in the latter part of §6308-1 GC.

It is evident that the latter part of §6308-1 GC does not expressly restrict the class of civil actions in which substituted service is permitted, to those civil actions which grow out of the operation of a motor vehicle upon the public roads or highways of the State.

Quite the contrary the Statute speaks of “any civil suit . . . arising out of, or by reason of, any accident or collision occurring within the State in which such motor vehicle is involved.” (Emphasis added.)

The word “any” means “without limitations.” So long as “such motor vehicle is involved” the place of the accident is not limited. It includes “any” accident or collision within the State in which “such motor vehicle is involved.” It includes accidents and collisions happening off as well as on the public highway.

Once the motor vehicle enters the state and is operated upon a public road or highway the act of operation causes the appointment of the Secretary of State as agent for substituted service. That appointment continues in effect until the motor vehicle leaves the State. And the appointment extends to and covers any civil action, growing out of any accident or collision in which such motor vehicle is involved without respect to where the accident may have occurred, except that the accident or collision must take place within the State.

The reasonableness of such an interpretation of the meaning of the latter part of §6308-1 GC may be tested by concrete example.

If an automobile operated by a non-resident negligently collides with a cow standing on the berm of the road the nonresident would manifestly be subject to substituted service in a civil action brought under §6308-1 GC because of the cow’s death. Surely also if a cow peacefully pasturing in a field beside the road is killed by an automobile driven off the highway by a non-resident, the non-resident should be equally subject to substituted service in any action brought to recover damages for the cow’s death.

Ability to require an operator of a motor vehicle to respond both civilly and criminally for negligent operation of a motor vehicle is an important deterrent to negligent conduct.

Recognition of this fact may well have prompted the Legislature to conclude that the potential negligent conduct of a non-resident motor vehicle operator should be deterred without respect to whether the negligence happens on or off the public highway. For in either case harm to person or property may result.

Furthermore a non-resident motor vehicle operator or owner by being required to submit to substituted service in a civil action which grows out of negligence occurring on private property is not thereby discriminated against but on the contrary resident operators in the same situation are equally obligated by law.

By §6308 GC, an action for injury to person or property caused by the negligence of the owner or operator of a motor vehicle may be brought in the county where such injury occurs. A resident operator or owner charged with such negligence may be summoned in any county of the State wherein he resides.

Sec. 6308 GC does not restrict its coverage to injuries which occur on the public road or highway, and therefore it must be presumed the Legislature intended no such limitation.

Recently similar language in §6308-6 GC (The Guest Act) was construed by the Supreme Court to apply to private ways as well as public roads. Kitchens v. Duffield, 149 Oh St 500. In support of its decision the Court said:

Sec. 6308-6 GC, is an independent Statute, complete in itself and is couched in plain language. The General Assembly has not seen ñt to limit it in terms to the operation of motor vehicles on public roads or highways, and, if this Court were to do so by a process of reasoning, which to say the least would be questionable, it would be exceeding its proper functions.

Everything the Supreme Court has there said applies to §6308 GC with equal force and effect.

By direct parity of reasoning, under §6308 GC a resident owner of a motor vehicle whose negligence causes injury to person or property in an accident occurring on private property may be sued in the County where the accident happens and may be summoned wherever he resides in the State.

If in the same situation a non-resident owner of motor vehicle is required to submit to substituted service under §6308-1 GC there is patently no discrimination between resident and non-resident owners and operators of motor vehicles.

Significantly the Supreme Court of Pennsylvania, the only Court which has construed a statute identical in wording with §6308-1 GC, found that it applied to an accident which happened off the highway on private property. Sipe v. Moyers 44 A. 2d. 203.

Finn v. Schreiber, 35 F. Supp., 638 which construed the New York substituted service law is cited contra. But the New York law like the Massachusetts law considered in Hess v. Pawloski supra are to be distinguished from §6308-1 GC since those laws specifically limit substituted service to actions growing out of accidents happening on the public roads and highways.

It is therefore concluded that where a non-resident owner of a motor vehicle has such motor vehicle operated upon the public roads of Ohio, if such motor véhicle becomes involved in an accident or collision on private property before it leaves the state, in an action growing out of such accident or collision substituted service may be made upon said non-resident pursuant to §6308-1 GC.

As such a non-resident owner of a motor vehicle the defendant was properly subjected to substituted service under §6308-1 GC.

The first ground of error is therefore OVERRULED.

As the second ground of error it is claimed that there was a failure to comply with the procedure for serving process established by §6308-2 GC in that “the Sheriff of Franklin County made service upon the Secretary of State but did not send to the Defendant by registered mail a like, true and attested copy, but the latter part was done by a Deputy Sheriff of Trumbull County. The copies were not attested but merely certified.”

Such an interpretation of §6308-2 GC is not warranted.

The language “by the officer to whom the same shall be directed or by the Sheriff of Franklin County, who may be deputized for such purposes by the officer to whom the service is directed” refers solely to the service of process upon the Secretary of State.

The second requirement which reads “and by sending to the Defendant by registered mail ... a like, true and attested copy thereof, with an endorsement thereon of the service upon said Secretary of State, addressed to such defendant at his last known address,” is set off from the language quoted immediately above and is not modified by it.

The Statute therefore does not specify which officer shall send the registered mail notice. It does however permit the local officer to whom the process is originally directed to deputize the Sheriff of Franklin County to serve the Secretary of State, and to send registered mail copy of that service to the Defendant, or he may limit his deputization to the first function and reserve for himself the second. Having the power to appoint for both purposes he necessarily has the lesser power to appoint for one of those purposes only.

Apparently the same division of duties occurred in Hendershot v. Ferkel, 144 Oh St 112, was recognized in the Opinion, and was impliedly approved by the affirmance of the case.

The reason for requiring that registered mail notice be sent to the defendant at his last known address is to provide some “provision making it reasonably probable that notice of the service on the Secretary will be communicated to the nonresident defendant who is sued.” Wuchter v. Pizzutti 276 U. S. 13, 48 S. Ct. 259, 72 L. Ed. 446.

Here, such notice was not a probability but an actuality.

Furthermore a certified copy of the summons is the equivalent of an attested copy. “To certify” is one of the meanings of “attest.” Webster’s New International Dictionary.

Hence there was effective compliance with the procedural requirements of §6308-2 GC. The second ground of error is accordingly OVERRULED.

As his third ground of error the defendant claims the motion for directed verdict should have been granted. This claim was previously disposed of by the overruling of defendant’s Motion for judgment n. o. v.

As his fourth ground of error it is claimed that Dr. Mc-Kelvey, plaintiff’s attending surgeon, was permitted to testify “to the mere possibility of future injuries, on testifying to results in other unrelated cases.”

The entire sequence of questions and answers, only the last answer of which is claimed to be objectionable, is here quoted.

“Redirect examination of Dr. McKelvey by Mr. Roberts:

Q. In your experience, even though it might appear on the surface that he appears to be normal would an injury of this kind affect him in after years?

MR. DAY: OBJECT.

COURT: OVERRULED.

A. I think it is very possible it might, having suffered some damage to the brain, certainly.

MR. DAY: I ask that be stricken and the Jury instructed to disregard it.

COURT: Sustained, and the Jury is instructed to disregard the answer.

MR. ROBERTS:

Q. In your experience, if you have had similar cases over a period of years, has there been any symptoms of loss of hearing or had aggravation from injuries of this kind?

MR. DAY: OBJECT.

COURT: OVERRULED.

MR. ROBERTS: You may answer.

A. Well there certainly have been, in my experience anybody suffering head injuries is apt to show injuries, traumatic injuries.

MR. DAY: We ask that the answer be stricken and the Jury instructed to disregard it.

COURT: OVERRULED.

Q. What symptoms usually arise?

A. They could vary.

MR. DAY: I want to maintain the objections to that in this line of questions.

COURT: You may answer.

A. They can vary all the way to complete unconsciousness, the complete length of the patient’s life if the injury is severe enough, certainly. In mild cases, in mild heart cases the interferences in that type of symptoms is referable to the brain structure. As I say they vary all the way from general to the most serious, even epilepsy, as a result.

■ MR. DAY: I ask that be stricken.

COURT: OVERRULED.

It is evident that the Doctor’s testimony of possible future injury was ruled out.

But the doctor further testified that “anybody suffering head injuries is apt to show injuries, traumatic injuries.” Things that are apt to happen probably will happen. This answer was clearly proper. The following question seeks an elaboration of what is apt to happen.

The question is “what symptoms usually arise?”

The answer describes the whole gamut of consequential symptoms which may arise. The doctor does not emphasize epilepsy or any particular symptom but describes the range of symptoms which flow from head injuries. This appears to be a perfectly competent statement of medical experience. As such the answer was' competent.

Moreover this testimony must be considered in the light of the general charge on damages in which we believe the test of future damages was correctly stated.

“But if you find all of the first three issues in favor of the Plaintiff you will then come to the question of damages; you will award the Plaintiff such a sum of money as will fairly and reasonably compensate him for any damages which he may have directly and proximately suffered by reason of any negligence by the Defendant; and in making such an award of damages you will regard and consider only these two elements of damage; One — any pain and suffering which the Plaintiff may have suffered or which with reasonable certainty he may hereafter suffer and secondly any physical disability which the Plaintiff has previously suffered or which he may hereafter suffer with reasonable certainty. But in no event may your award of damages exceed the amount claimed in the Petition, which is the sum of $30,000.00. (Emphasis added.)

Thus the Jury was instructed to limit future damages to those which the plaintiff was reasonably certain to suffer. This ruled out possibilities by requiring reasonable certainties to be proved.

Furthermore $3,000.00 was not an excessive verdict in view of the extensive injuries suffered by the plaintiff. These included a basilar skull fracture, bleeding from nose and ear, unconsciousness, severe shock, fractures of the 2nd, 3rd and 4th left ribs, resulting pneumo-thorax, and pneumonitis, fracture of the humerus, fracture of the clavicle, and marked dilation of the stomach.

The plaintiff’s recovery was good considering the severity and extent of his injuries. But his mother at the time of trial stated that he did not go back to school until January of 1949, that he suffered a lot of pain for over a year, that he lost weight after the accident, that he is very nervous and not like he was before the accident and that he appears tired and gets pale and short-winded when he runs.

Under all the circumstances it does not appear that the defendant was prejudiced by the answer of Dr. McKelvey.

The fourth ground of error is accordingly OVERRULED.

As a further ground of error the defendant complains of the refusal to submit special requests to charge Numbered VI and VII.

These were to the effect that “If Nellie Paduchik, the plaintiff’s mother were guilty of negligence, directly and proximately operating solely, or independent and exclusive of any wrongful act or negligence on the part of the defendant, the verdict must be for the defendant.”

It is extremely doubtful that there was any evidence of negligence on the part of the plaintiff’s mother.

But even if there was, any question of her negligence was definitely foreign to the issues of this case. The issue of defendant’s negligence depended solely on his own conduct, and not on the conduct of plaintiff’s mother.

In fact it would have been prejudicial error to have given requested Charges VI and VII. Schreiber v. National Smelting Co., 58 Abs 456; Leopold v. Williams, 54 Oh Ap 540.

The other grounds of error not here commented on have been considered and found unsubstantial.

Motion for new trial overruled.


source: Caselaw Access Project

author: By HORNBECK, PJ:

license: Public Domain

text:
    MARRS, Estate of, In re. PENNSYLVANIA GREYHOUND LINES, INC., Plaintiff-Appellant, v. MARRS, Admr., Defendant-Appellee.
    Ohio Appeals, Second District, Shelby County.
    No. 161.
    Decided November 2, 1951.
    Matthews & Altick, Dayton, for plaintiff-appellant.
    Blake & Lewis, Sidney, for defendant-appellee.
   OPINION

By HORNBECK, PJ:

Appellant instituted its action in the Probate Court seeking authority to present a claim to appellee administrator which was denied. Upon appeal and a hearing de novo the Common Pleas Court entered the same judgment. Upon this latter judgment the appeal is presented to this Court upon questions of law.

Two errors are assigned. That the judgment is contrary to law and against the manifest weight of the evidence.

The petition was grounded upon §10509-134 GC and particularly upon the averment that

“Petitioner did not present said claim to the administrator * * * within the time prescribed by §10509-112 GC for the reason that claimant did not have actual notice of the appointment of administrator in sufficient time to present said-claim within the period prescribed by law.”

The judgment entry found that

“Appellant had actual notice of the death of Paul Marrs” the administrator’s decedent and “had not proved by a preponderance of the evidence that it had no notice of the appointment of the administrator of the estate of Paul Marrs, deceased, in the four months period after said appointment.”

The judgment entry conforms to the written opinion of the trial judge wherein it appears that he applied to the facts developed the law as announced by this Court in the 3rd syllabus of In re Estate of Erbaugh: Van Horn, et al v. Erbaugh, Admx., 73 Oh Ap 533, which we approve and follow. This, then unless there is no factual support for the judgment, disposes of the first assignment of error and we consider the second assignment.

Was the judgment contrary to the weight of the evidence? The facts essential to an appreciation of our question are found in the deposition of Frank F. Ernst, General Claim Agent, for the appellant whose offices are located in Cleveland, Ohio. Mr. Ernst was charged with the responsibility of handling claims on behalf of or against his company. He was widely experienced and although not an attorney at law, had studied law for five years. On May 3, 1950, near Ashland, Ohio, a tractor trailer driven by Paul Marrs came into collision with a bus driven by an employee of the appellant company resulting in the death of both drivers. Within a matter of hours, Mr. Ernst learned of the collision and of the death of a person by the name of Paul Marrs and thereafter in a short time confirmed the identity of Marrs. Mr. Ernst took up actively the investigation of the accident and sent men into the field to investigate the cause of, and responsibility for, the collision. On May 9, 1950, L. E. Marrs was appointed administrator of the estate of Paul Marrs, deceased. Damages to the bus of appellant company exceeded $22,000.00. Mr. Ernst learned that Paul Marrs was the owner of the truck trailer outfit which he was driving when he was killed and that it was insured by two companies. Negotiations were early instituted with the companies attempting to require them to pay to the appellant the damages which it had suffered.

On November 7, 1950, a summons was recived by Mr. Ernst in an action instituted in Shelby County by appellee administrator against the appellant for damages growing out of the collision in which decedent was killed, Mr. Ernst testified that he had no knowledge of the appointment of the administrator of the estate of Paul Marrs, deceased, until he received, the summons on November 7, 1950. He also testified that with his information respecting the identity of Paul Marrs, he learned that he was a resident of Shelby County. Upon the facts thus developed, the trial judge held that the appellant did not prove that it did not have actual notice of the appointment of appellee administrator within four months after the appointment.

The judgment must be tested by the meaning of the language “actual notice” as employed in §10509-134 GC, the applicable part of which reads

“If upon hearing the Court finds (a) that the claimant did not have actual notice of the decedent’s death or of the appointment of the executor or administrator in sufficient time to present his claim within the period prescribed by law, * * * then the Court may authorize the claimant to present his claim to the executor or administrator after the expiration of such period.”

There is no controversy as to the first clause quoted. It is conceded that appellant had knowledge of the death of Paul Marrs within the four month period succeeding the appointment of his administrator. Did he have actual notice of the appointment of administrator within that period?

The expression “actual notice” has been differently construed by our Courts. We find no authority defining the term in any legislation like unto §10509-134 GC. We, therefore, must construe the, expression in the light of the general purpose of the Probate Court to expedite the settlement of estates and apply such definitions as most nearly accomplish that purpose.

If “actual notice” is synonymous with express notice, or knowledge specifically brought home to the appellant then the appellant has maintained the averment of its petition. The Trial judge did not so limit it and we are in accord with that conclusion.

The definition of “actual notice” as found in two standard texts, namely: Corpus Juris Secundum and American Jurisprudence conforms to our concept of the meaning of the term as it must be given application here.

66 C. J. S. 637:

“Notice is regarded in law as actual when the person sought to be affected by it knows of the existence of the particular fact in question, or is conscious of having the means of knowing it.”

39 Am. Jur. 234:

“The words ‘actual notice’ do not always mean what in metaphysical strictness they import; they more often mean knowledge of facts and circumstances sufficiently pertinent in character to enable reasonably cautious and prudent persons to investigate and ascertain as to ultimate facts.” Citing Cooper v. Flesner, (Okla.) 103 Pac. 1016, 23 L. R. A. (N. S.) 1180.

39 Am. Jur. 235:

“Actual notice has sometimes been said to be of two kinds, viz.: (1) express, which includes what might be called direct information, and (2) implied which'is said to include notice inferred from the fact that the person had means of knowledge which he did not use.” Citing numerous cases.

In Coleman v. Arnstrong, 261 Pac. 228, the principle is elucidated

“Every person who has actual notice of circumstances sufflcient to put a prudent man upon inquiry as to a particular fact, and who omits to make such inquiry with reasonable diligence, is deemed to have notice of the fact itself.”

Upon the facts appearing in this record, the trial judge was well within his province in holding that the appellant company had actual notice that is, implied actual notice, of the appointment of the administrator of Paul Marrs, deceased, within the four month period succeeding the appointment and, therefore, properly denied the prayer of the petition.

The judgment will be affirmed.

WISEMAN and MILLER, JJ, concur.


author: By PERRY, J.

text:
    SCHNEIDER, Estate of, In re.
    Probate Court, Ashtabula County.
    No. 33095.
    Decided August 4, 1952.

      John F. Clair, Jr., Willoughby, for David Schneider, guardian of Helen Schneider.
    Homer A. Miner, Cleveland, for Eileen Schneider.
   OPINION

By PERRY, J.

On June 19, 1952, David G. Schneider, the duly qualified guardian of Helen Schneider, filed his application in the Estate of George A. Schneider requesting that the property set off to the widow, Eileen Schneider, as exempt from administration be ordered transferred to him on behalf of his ward under the authority of §10509-55 GC, for the reason that the surviving spouse, Eileen Schneider, has not lived with or provided for Helen Schneider, a minor child of the decedent. Sec. 10509-55 GC, reads as follows:

“Except money and except the wearing apparel of the deceased, the property so exempted from administration shall remain in the possession of the surviving spouse, if any, during the time such spouse lives with and provides for such minor child or children; when such surviving spouse ceases to do so, he or she must be allowed to retain his or her wearing apparel, ornaments, and one bed, bedstead, and the bedding for it. The other articles so exempted, and not consumed, shall then belong to such minor child or children. If there be a surviving spouse and no minor child or children, then such articles shall belong to the surviving spouse. Such exempted sum of money as is received by a surviving spouse shall belong to such surviving spouse.”

George A. Schneider died a resident of Geneva, Ohio on March 9, 1952. He was survived by Eileen H. Schneider, his widow, and by David Schneider, age 21, and Helen Schneider, age 17, his children. The relationship between Eileen H. Schneider and David and Helen Schneider is that of stepparent and step-children.

For some time prior to the death of the decedent, said minor child, Helen Schneider, did not live with her parents in Geneva. She chose instead to live in Mentor in order to pursue her education and later to live in Cleveland where she was employed. But she did receive some support from time to time from her father before he died.

Since the decedent’s death Eileen Schneider has been ready and willing to support and provide for Helen Schneider. But she has not done so for the reason that Helen Schneider has been employed in the City of Cleveland and has resided there since the death of George A. Schneider. Eileen Schneider has neither abandoned nor deserted Helen Schneider, and Helen Schneider has not sought the aid of her stepmother for support.

In the inventory and appraisement of the estate of George A. Schneider, approved on April 30, 1952, certain property was set off to the widow, Eileen H. Schneider, as property exempt from administration under the authority of §10509-54 GC. This consisted of an automobile appraised at nine hundred fifty dollars ($950.00) and three hundred fourteen and 10/100 ($314.10) in money, being the balance of the twenty per cent owing to her under that schedule. The inventory showed, however, that there was no money actually in the estate. No exceptions to the inventory and appraisement were taken by any person.

Sec. 10509-54 GC, provides as follows:

“When a person dies leaving a surviving spouse, or a minor child or children, the following property if selected as hereinafter provided, shall not be deemed assets or administered as such, but must be included and stated in the inventory of the estate: household goods, live stock, grain, feed, hay, tools, implements, automobiles, utensils, wearing apparel of the deceased and relics and heirlooms of the family and of the deceased, ornaments, pictures and books, to be selected by such surviving spouse, or if there be no surviving spouse, then by the guardian or next friend of such minor child or children, not exceeding in value twenty per centum of the appraised value of the property, real and personal, comprised in the inventory, but in no event is the value of the property not deemed assets to be more than twenty-five hundred dollars, if there be a surviving spouse, nor more than one thousand dollars if there be no surviving spouse, but surviving minor child or children, nor less than .five hundred dollars in either case if there be so much comprised in the inventory and selected as herein provided; or if the personal property so selected be of less value than the total amount which may be selected as herein provided, then such surviving spouse, guardian or next friend shall receive such sum of money as shall equal the difference between the value of the personal property so selected and such amount, and such sum of money shall be a charge on all property, real and personal, belonging to the estate, prior to the claims of all unsecured creditors of the deceased or of the estate.”

The first question to be decided is whether Eileen H. Schneider has a right to receive three hundred fourteen and 10/100 dollars ($314.10) from the estate of George A. Schneider.

In the case of In re Estate of Clark, 70 Oh Ap 204, 43 N. E. 2d 621 (1942) it was held that money set off to' the widow remained hers absolutely -although she did not live with or provide for the minor child or children.

Sec. 10509-54 GC, providing that the surviving spouse has a power of selection over certain items of personal property of the decedent and that the difference between the value of the property so selected and the maximum value that could be selected shall be paid in money and such sum shall be a prior claim against all property of the decedent has the effect of giving the surviving spouse the absolute ownership of such money. Sec. 10509-55 GC, takes nothing away from this right that is conferred by §10509-54 GC because the words “except money and except the wearing apparel of the deceased, the property so exempted from administration shall remain in the possession of the surviving spouse” have the effect of excepting money from that class of property to which the surviving spouse has only a right of possession subject to be defeated in case such spouse ceases to live with and provide for the minor child or children of the decedent.

This result is further confirmed by the last sentence of §10509-55 GC, which provides that “such exempted sum of money as is received by the surviving spouse shall belong to such surviving spouse.” This sentence does not limit the spouse's ownership of such money only to the case where there are no minor children as does the preceeding sentence of that section with respect to certain articles of personal property. The effect of this section is therefor to grant absolute ownership to the spouse of such money as she may have received as property exempt from administration.

A question not raised by the facts of the Clark Case is presented in this case. The problem is whether the words “except money and except the wearing apparel of the deceased” and “such exempted sum of money as is received by a surviving spouse” in §10509-55 GC, mean that the spouse’s right to receive money from the estate as against minor children depends on the decedent having owned money at the time of his death, and upon the spouse having actually received that money. Where the estate contains no money in specie, the right of the surviving spouse to receive money under §10509-54 GC, is a preferred claim and is in the nature of a debt. McDonald v. McDonald, 20 Abs 421 (1936). Sec. 10509-55 GC, however, applies only to certain chattel property capable of remaining in the “possession” of the surviving spouse, and does not apply to a debt of the estate in favor of the surviving spouse. This claim of the surviving spouse is not “property so exempted from administration” or among “other articles so exempted” within the meaning of §10509-55 GC, and is thus not subject to be defeated should the surviving spouse cease to live with or provide for the minor child or children of the decedent.

It may be concluded that §10509-55 GC, recognizes two classes of exempted property: First, money, wearing apparel, ornaments, bed, bedding and bedstead of the decedent and second, all other property of the decedent entitled to be set off under §10509-54 GC. The first group of named items, if set off to the surviving spouse, may be retained by her even though she ceases to live with and provide for the minor child or children. As to any other property set off to such surviving spouse, the spouse has a right of possession and a power of consumption. This right of possession terminates when she ceases to live with and provide for the minor child or children, and such property,then belongs to such minor child or children. A third class of property consisting of claims against the estate in the nature of debts must also be considered. This class does not include property of the decedent, but rather claims against the property of the decedent. Where there is no money in specie in the estate, as is the case here, and the value of the property selected by the surviving spouse as exempt from administration is less than the maximum amount that she would be entitled to select, the remainder, which becomes a right to receive money from the estate, is within this third class of property and may not be defeated although such surviving spouse ceases to live with ánd provide ifor the minor child or children of the decedent.

The second question presented is whether the minor child, Helen Schneider, may claim the automobile that has been set off to the widow, Eileen Schneider, as property exempt from administration. This question involves an issue not raised in connection with the controversy over the money, for an automobile is in that class of property within the meaning of §10509-55 GC to which the surviving spouse has only a right of possession which terminates when he or she ceases to live with and provide for the minor child or children. An automobile is thus not in the same class of exempted property as money, wearing apparel, ornaments, bed, bedding and bedstead.

Although it may be admitted that the surviving spouse has not lived with or provided for the minor children since the decedent’s death, the question arises whether it is proper to apply the forfeiture provision of §10509-55 GC, in the absence of a finding that such spouse deserted or abandoned such minor child or children or was otherwise at fault in causing the family unit to be broken up. Termination of the surviving spouse’s right of continued possession is, in effect, a forfeiture, and it is fundamental that a statute providing for a forfeiture or penalty must be strictly construed, and no forfeiture will be imposed unless such a result is in conformity with both the letter and the spirit of the statute. For this reason §10509-55 GC, is not applicable to terminate a surviving spouse’s right of possession in property set off to such spouse as exempt from administration unless such spouse has deserted or abandoned the minor child or children of the decedent or has otherwise been at fault in causing the family unit to be broken up. Cowden v. Cowden, 28 O. O. 103, 140 O. Supp. 98 (1935). Sec. 10509-55 GC, is not applicable where a minor child has voluntarily left the home of her parents in order to pursue her education or in order to seek or pursue employment in a city other than that in which her parents have resided. The word “ceases” in the statute connotes action on the part of the surviving spouse and not action on the part of the minor child.

Unless this section is construed as penalizing the surviving spouse only where she is at fault, unwarranted power would be given to the minor child to deprive such spouse of the property she may have selected under authority of the exemption statute. This result would tend to defeat the purpose of the exemption statute which is to compensate the widow for her loss of vested dower. Such a result would also amount to giving the minor child who wrongfully leaves home a windfall in view of the fact that where there is a surviving spouse the minor child is entitled to no exemption.

The applicant has conceded that §10509-55 GC, provides a method of protecting the minor child of the deceased parent by giving her certain household goods in the event of the abandonment of her by the surviving parent. But it is contended that the section was drawn with the usual family unit in mind and that not to transfer to the stepchild those chattels which the stepmother has had set off for her exemption would deprive the child of that exemption to which such child would have been entitled had there been no surviving spouse while at the same time the child would not be entitled to be supported by the stepmother.

It would do violence to the language used by the legislature to attribute an intention to include an actual mother in the term “surviving spouse” but to exclude a stepmother from that term. The expression “surviving spouse” is equally applicable in both cases. The legislature thus presumably did not intend a difference in result depending upon this distinction between an actual mother and a stepmother.

The applicant contends that §10509-55 GC, does not place a duty of support upon the step-parent, and this is no doubt correct. But although there may be no duty of support owing to a minor stepchild, it is not beyond the power of the legislature to condition the continued possession by a surviving spouse of the chattels of a decedent upon living with and providing for such minor child or children. This is all that §10509-55 GC, purports to do.

Where there is a minor child or children but no surviving spouse, such child or children are entitled to an exemption, not to exceed one thousand dollars. But where there is a surviving spouse, the child or children of the decedent are entitled to no exemption. In such case the child or children may receive support from the surviving spouse whether that spouse be an actuai parent or a step-parent. Although §10509-55 GC, does not impose a duty of support it conditions the continued possession of certain of the chattels of the decedent upon such spouse giving support, whether a duty of support is owed or not. If such support is not forthcoming, then the chattels are forfeited to such minor child or children. In this way reasonable protection of the interests of the child or children of the decedent is afforded.

For these reasons it is improper to apply the forfeiture provision of §10509-55 GC, in this case. The application of the guardian of Helen Schneider is therefore denied.


author: By BELL, J.

text:
    LONG, d. b. a. LONG’S SERVICE STATION, Plaintiff, v. ATLANTIC FREIGHT LINES, INC., Defendant.
    Common Pleas Court, Madison County.
    No. 19252.
    Decided February 1, 1952.
    Robert E. Wright, Mt. Sterling, for plaintiff.
    Ballard, Dresbach & Crabbé, Columbus, for defendant.
   OPINION

By BELL, J.

Plaintiff is engaged in the operation of a gasoline service station in Mt. Sterling, Ohio. About four or six weeks prior to January 20, 1951, one Bill O’Day, driving a truck bearing the insignia of the Atlantic Freight Lines on the door of the cab stopped at plaintiff’s station desiring to purchase gasoline on credit, stating that the bill would be paid every two weeks “and that the company was good.” A short time thereafter, within an hour, another Atlantic Freight Lines truck stopped at the station and the driver told plaintiff he had better get an authorization for credit from an Atlantic Freight Lines dispatcher named D’Agostino at Ambridge, Pennsylvania. Plaintiff placed a long distance telephone call to the Atlantic Freight Lines at Ambridge, also giving the operator a phone number supplied by the second driver, and talked with a man who identified himself as D’Agostino. After stating what the driver O’Day wanted, Plaintiff was told by D’Agostino “you take care of that and keep him a-goin’ and I’ll see that your money is there every two weeks.”

For two or three two-week periods thereafter Plaintiff received his money in cash from the driver. On one occasion the payment was late and Plaintiff again phoned D’Agostino and was advised by him that the money was on its way in care of the driver. About an hour later the driver arrived with the money and paid Plaintiff.

After January 20, 1951, no payments were made on the account and the balance due thereon is the subject of this action.

Two letters from the President of the Atlantic Freight Lines at Uniontown, Pennsylvania, addressed to counsel for plaintiff were admitted in evidence. These letters indicated that D’Agostino was a dispatcher for the company but had no authority to authorize the extension of credit. They also indicated that the company had discovered that D’Agostino had mishandled some company Advance Funds and that the matter had been turned over to a bonding company.

Testimony of the defendant, admitted over the objection of plaintiff, was to the effect that the Atlantic Freight Lines acts as a freight agent only and not as a freight line as such. The company, according to its evidence, owns no tractors for over-the-road hauling and leases all its power equipment. Also admitted over the’objection of plaintiff was a lease between one William Sedich and the Atlantic Freight Lines.

This lease reads in part as follows:

“Lessor (Sedich) leases and delivers to the Lessee (Atlantic Freight Lines) the following described motor vehicle for the duration of this lease to be used by lessee in transporting property in interstate commerce .... (describing truck driven by Bill O’Day) .... Lessor agrees that .... lessor shall fully maintain, service and keep the vehicle .... in good repair, provide all gas, oil, tires and other equipment necessary and pay driver’s salary.”

The lease also provides for payment to the lessor for use of his equipment. The name of William Sedich is typed on the contract under which appears in handwriting: “by William B. O’Day.” The name of the lessee appears in print as Atlantic Freight Lines, Inc., followed by: “F. J. Larkin.” Larkin is the manager of the Pittsburgh office of defendant. There is no reference in the record to the identity of Sedich, but it is assumed he is the owner of the truck involved.

According to defendant’s evidence, D’Agostino was in the employ of thé defendant. He attended company meetings and was familiar with the trucking operations of the Company. When the Pittsburgh office of the company received a notice of steel to be hauled from the mill, that office notified D’Agostino who in turn dispatched various drivers and their trucks. The company sent checks for drivers to D’Agostino as an advance on their expenditures and to pay their credit expenses. It was shown by defendant’s testimony that these checks sent to D’Agostino were always made payable to individual drivers and that no cash was sent to D’Agostino except his own commission on loads dispatched.

It is conceded by counsel in argument that plaintiff in dealing with. D’Agostino was dealing with an apparent agent of the defendant. And the question resolves itself into a determination of whether the plaintiff exercised the degree of care that the law imposes on one who is dealing with an apparent agent.

The law makes no distinction between agents of corporations and agents of natural persons with respect to liability for the acts of the agents. In fact, the doctrine of identity of principal and agent applies with peculiar propriety to corporations, which are capable of action only through the • medium of agents, and which touch, infringe upon, and come into contact with individuals and the public only by means of their agents and servants. Atlantic and G. W. Ry. Co. v. Dunn, 19 Oh St 162.

That authority may be conferred upon an agent by implication is too well settled to require the citation of authority. If a principal treats his agent in such way as to hold him out as one authorized to represent him, he will not be permitted to say that the agent had authority to represent him in respect to some matters but not to represent him in other matters within the scope of the authority ostensibly or apparently conferred, — for the extent of the authority conferred upon the agent, as well as the existence of the relation of principal and agent, may be inferred from the course of business which the principal permits the agent to transact for him. This constitutes the only exception to the general rule that an agent can bind his principal only when acting within the scope of his authority. And this exception can be applied only when the person dealing with the purported agent is free of negligence.

Did the plaintiff in this case act as a reasonably prudent man should have acted in this situation? The Court is of the opinion this question should be answered in the affirmative. Here is a business man who in the course of an hour or so has two trucks stop at his place of business, both trucks bearing “a big round sign” having “Atlantic Freight Lines painted right on the door.” One driver desires the extension of credit. The other advises him to call a certain person at a certain telephone number for a credit authorization. He calls that person and is told to extend credit and that he will be paid every two weeks. He does, and for six weeks is paid. This court is of the opinion that the plaintiff was not bound to write to the defendant for an authorization of credit but could reasonably rely on the representations of those who were clothed by the defendant with apparent authority to make such authorization.

The defendant has permitted trucks to travel the highways of this country bearing its name and insignia, proclaiming to all who see them that it is engaged in the trucking business. Unquestionably this has some advertising value which must redound to the defendant’s advantage. Should it be allowed to send its name abroad, emblazoned on the cab of a truck, reaping whatever benefit may be derived therefrom, and then escape all liability for the acts of those it permits to operate those trucks by the device of a contract whereby someone else assumes that liability? I think not. If such a company desires the benefits of the practice of placing its name on trucks it does not own and claims no responsibility for, it should be required to meet the responsibilities such a practice entails. It was the defendant who placed Bill O’Day and Vince D’Agostino in a position, or permitted them to occupy a position, to mislead the plaintiff as to their authority, and it appears to be reasonable to the Court that a principal ought not to be permitted to clothe his agents with certain indicia of authority to mislead others and then unfairly to limit or restrict the force and effect of their acts to the prejudice of a prudent person who has reasonably acted upon the apparent scope of such authority.

Judgment will therefore be entered for the plaintiff in the amount of $110.53, together with interest from February 4, 1951, and for his costs herein expended.

Counsel for plaintiff may prepare an entry accordingly, noting the exceptions of defendant, and submit the same to counsel for defendant and to the Court for approval.


author: By REYNOLDS, J.

text:
    STATE, Plaintiff, v. DRAKE, Admx., Defendant.
    Common Pleas Court, Franklin County.
    No. 183042.
    Decided April 7, 1952.
    C. William O’Neill, Atty Geni., Gus Tarian, Asst. Atty. Geni., Columbus, for plaintiff.
    Fred R. Wickham, Delaware, for defendant.
   OPINION

By REYNOLDS, J.

This case is before the Court on plaintiff’s application for a rehearing of defendant’s demurrer to plaintiff’s petition which the Court in the original hearing sustained.

The reason for the sustaining of the demurrer was that the suit was not brought within two months after the claim of plaintiff was rejected by the defendant as the administratrix of the estate of Lewis Drake, deceased.

Defendant was appointed and qualified as administratrix of the estate of Lewis Drake on June 6th, 1950, in the Probate Court of Delaware County.

On November 2, 1950, the Department of Public Welfare presented its claim against the estate for the support of Paul Drake who had been committed to the Columbus State Hospital, and who at the time of commitment was 21 years of age.

Defendant rejected the claim on November 28, 1950, and this suit was filed on June 14, 1951.

Sec. 10509-112 GC provides that:

“All claimants shall present their claims to the executor or administrator in writing * * * All claims shall be presented within four months after the date of the appointment of the executor or administrator * * * In the absence of any prior demand for allowance, the executor or administrator shall allow or reject all claims within thirty days after their presentation * * *”

Sec. 10509-133 GC provides as follows:

“When a claim against an estate has been rejected in whole or in part * * * the claimant must commence an action on the claim or that part thereof rejected, within two months after such rejection, if the debt or that part thereof rejected be then due, or within two months after the same becomes due, or be forever barred from maintaining an action thereon. $ $ *>)

The pleading discloses that the claim was not presented within the statutory period and that after its rejection on November 28, 1950, suit was not begun until June 14, 1951, being more than six months thereafter.

It is the plaintiff’s claim that the State of Ohio is not bound by the statutory limitation and that the Court erred in sustaining the demurrer and reliance is had on the decision of the Court of Appeals of the Second. District in the case of Division of the Aid for the Aged v. Marshall, Admr., 42 Abs, 131, the second syllabus of which is as follows:

“That portion of §10509-133 GC providing that one asserting a claim against the estate of a deceased person must commence an action on his rejected claim within two months after receipt of actual notice of its rejection or be forever barred from maintaining an action thereon is a statute of limitation within the rule that such enactments do not run against the state.”

The Trial Court had held that the Division of Aid for the Aged was bound by the provisions of §10509-133 GC respecting the time for filing suit after a claim had been rejected, and had also overruled plaintiff’s demurrer to defendant’s second defense which was to the effect that defendant was appointed administrator on December 30, 1942, and on February 1, 1943, plaintiff presented .its claim as a creditor of the estate of Elizabeth Manley, deceased, and demanded that defendant endorse the allowance of said claim thereon; that defendant did not give plaintiff a written statement of the allowance of said claim and which defendant considered a rejection thereof; that thereafter defendant by letter informed the plaintiff that he considered his failure to allow the claim in writing was a rejection and that he was preparing to close the estate without a recognition of plaintiff’s claim. That this written notice was given on June 2, 1943, and on August 7, 1943, the defendant filed his first and final account in the estate showing a complete distribution, and this account was approved on September 8, 1943.

Not until after defendant’s discharge was suit filed.

The Court overruled plaintiff’s demurrer to the second defense and rendered judgment for the defendant for the reason that the action was not brought within the statutory period.

While the Appellate Court did state in its opinion that the state was not precluded from prosecuting its action for the failure to bring suit within the two month period provided by the statute, it did affirm the judgment of the lower court for the reason that the second defense set out a good defense by way of estoppel.

Since the basis of the estoppel was a failure to bring any action until after the estate was closed, and after being advised by the Administration that he was going to close the estate, it would seem that the statutory provision did have some relation to the final determination of the case.

There would seem to be but little distinction in principle between a statutory requirement that the suit be brought within two .months after the rejection of the claim, and a judicial determination that a failure to timely file suit after the administrator advised the claimant of his intention to close the estate, will preclude recovery. Since the latter was deemed to be the governing factor in the final decision, what the Court said about the state not being bound by the two months limitation is, as the Court observed in Division of Aid for the Aged v. Wargo, 48 Abs 47 but dictum.

The first syllabus in the case of Division of Aid for the Aged v. Marshall, supra, is as follows:

“Statutes of Limitations do not run against the state unless the legislative intention that they so run is obvious.”

The conclusion there is that if the legislative intention is obvious, that the state shall be bound then that intent must be carried out.

It must be concluded that the primary purpose of the Statute providing for the presenting of claims and bringing suit on rejected claims was to expedite the administrator of estates. If this purpose can be defeated by the delay of a branch of the state government, both in presenting a claim, and in bringing suit after the claim was rejected, then the legislative intent is unfulfilled.

In the Wargo case, supra, decided after the Marshall case, the Court held as follows:

“The Division of Aid for the Aged, although an agency of the State of Ohio, is bound by the provisions of §10509-133 GC, and must commence an action upon its claim against the estate of a deceased person within two months after receipt of actual notice of rejection or reduction of such claim by the executor or administrator thereof.”

The Court made a careful and exhaustive review of the authorities, and in its opinion said:

“What is the statutory purpose of requiring all suits on rejected claims to be brought within two months of the date of rejection? The purpose clearly is to facilitate the administration of estates and to permit them to be settled and disposed of without delay. If the Statute is to attain its object, it must be held to be an inclusive statute and to apply to all claims. The statute makes no exceptions, and no hardship is imposed on the state in holding it to strict compliance.

“We have considered this question more carefully because of the contrary opinion expressed by Hornbeck, J., in the case of Division of Aid for the Aged v. Marshall, 42 Abs, 131. The standing of Judge Hornbeck is such that it is with reluctance that we have reached a different conclusion. However, what is said by Judge Hornbeck in the case about the state and the statute of limitations is pure dictum because the actual decision in the case was that the answer in the action to enforce the state’s claim was sufficient to assert a defense of estoppel ‘even though the statute of limitations contained in §10509-133 GC does not run against the state.’ Judge Horn-beck stressed the fact that the plaintiff is an agency of government carrying on governmental functions in the administration of aid for the aged. This, no doubt, is true, but what is its importance? The desirability of having claims filed promptly and suits brought within two months of their rejection applies to all claims of the state, whether governmental or proprietary. What we are really dealing with here is a construction of §10509-133 GC and it is our opinion that this section incudes all claims against an estate of a deceased person, including claims held by the state, and that the fact that the claim is based upon the exercise of a governmental function is of no importance.”

The Court in that case had the identical question here presented and its conclusion that the state is governed by §10509-133 GC was necessary to the Court’s decision which is not true of the Marshall case.

This Court, having concluded that the obvious intent of the legislature was to make no exceptions to the requirement that suits against administrators and executors be brought within two months after the rejection of a claim, finds that the State is bound thereby.

The demurrer to the amended petition is again sustained.


author: By CRAMER, J.

text:
    REGAS v. COSTON.
    Common Pleas Court, Butler County.
    No. 64640.
    Decided September 10, 1951.
    Ben D. Worcester, Middletown, for plaintiff.
    Harry S. Wonnell, Hamilton, for defendant.
   OPINION

By CRAMER, J.

This cause is before the court upon the pleadings, consisting of the petition, answer and reply, and the evidence, and was heard without the intervention of a jury.

Plaintiff’s petition consists of twenty-one causes of action. Each is based upon a promissory note. All, except five of these notes, are in the sum of $25.00 each; four of the five being in the sum of $35.00, and the fifth in the sum of $265.00. All are dated in December of 1933 and all were due on dates varying from a year and more thereafter.

It is admitted by the plaintiff that the first cause of action is barred by the statute of limitations, thus reducing the total amount claimed, namely $805.00, by the sum of $25.00, being the amount of the note sued upon in the first cause of action. Therefore, plaintiff’s claim is now in the sum of $780.00, which she claims with interest at five percent per annum from December 9, 1933.

The defendant sets up as special defenses the fact that plaintiff has no capacity to bring the action since she was duly discharged as the executrix of the estate of her husband, the payee of the notes sued upon, and the defendant denies that the plaintiff is therefore the duly appointed, qualified and acting executrix of the estate of deceased payee and that she was such at the time of filing of the petition. Further defense is made that all of the notes sued upon had been fully paid.

The evidence shows that some time prior to the filing of the action the plaintiff had filed her final account in the Probate Court as the executrix of her husband’s estate and had been discharged as such executrix. The only proceeding taken in the Probate Court thereafter, and prior to the filing of this suit, was the filing therein of what the plaintiff designated as “report of newly discovered assets.” The Probate Court by entry authorized the filing of the same without an inventory and appraisement of such assets.

The defendant contends that since, at the time of the filing of the action, plaintiff had been discharged as the executrix and the estate not re-opened so as to permit her to again become the acting executrix of said estate and to collect such assets by suit, she must fail in this action since she has no authority to bring the same. On the other hand, plaintiff claims that an executor is not barred from representing the estate as long as there are assets remaining to be administered, and this includes the executor’s right to bring an action to enforce the recovery of such assets.

In support of such claim she cites the case of Weyer v. Watt, Executor, 48 Oh St 545, 28 N. E. 670, the syllabi of which are as follows:

“1. The authority of an executor or administrator to represent the estate, unless terminated in one of the modes provided by statute, continues until the estate is fully settled.

“2. The probate court, for good cause, may remove an executor or administrator, or accept his resignation; but while choses in action or other assets belonging to the estate remain in his hand unadministered, his authority to administer the same is not extinguished by an order, made upon what purports to be the settlement of his final account, directing that he be discharged from his trust.”

The facts in the foregoing case are quite similar to the case at bar. In the Watt case, supra, suit was brought by the executor, in his capacity as such, upon a promissory note executed by the defendant to plaintiff’s testator. The evidence showed that the plaintiff filed his final account in the Probate Court, and that court ordered the executor to be discharged from his trust and that he distribute among the legatees .and distributees of the deceased all the uncollected assets of the estate.

This case differs from the case at bar only in that the executor reported the notes sued upon by him in his final account, to be uncollectible. Here the evidence shows that it was not until some time after the plaintiff had been discharged as executrix that she found the notes, and of course they were not included in the original inventory nor mentioned in the final account.

It is asserted by the defendant that the foregoing distinction in facts between the Watt case and the case at bar is so material as to render it wholly inapplicable to sustain plaintiff’s position.

It is our opinion that the Watt case applies and requires a holding that plaintiff has the capacity to bring the action. The difference in the facts between the cases is not material. It seems to us that the fact that assets are not included in an inventory — because at the time they were not found — does not render an executor powerless to enforce the collection of such assets after their discovery merely because he had been discharged from his trust and the estate not reopened. Be that as it may, however, here plaintiff reported the discovery of such assets to the Probate Court and was authorized to file a report thereof, which, in our opinion constituted the executor’s authority to proceed to collect the same, if such authority be needed. In other words, the filing of the report of such discovery and the authorization to file the same should be considered in the nature of the re-opening of the estate for the purpose of collecting and administering such assets.

In the Watt case, supra [48 Oh St 545, 28 N. E. 672], the court in describing the legal effect of the order of the Probate Court discharging the executor from his trust made the following statement: “But we find no power conferred upon that court to discharge an executor or administrator from his trust upon the settlement of what is called ‘a final account,’ and thus extinguish his authority as trustee. Unless, therefore, the order of the Probate court operated as a removal of the plaintiff from his trust, or as a resignation of it by him, his authority as executor continued, notwithstanding the order, and he might properly bring the action he did.”

The court went on further to say that the order (of discharge) is based upon the finding that the executor faithfully discharged all his duties, and paid out all monies which came in his hands and that he had fully administered the estate.

In Volume 21, Am. Jur., page 468, the following statement is found: “It has been said that the formal discharge contained in a decree on final accounting operates only as to the accounts of the parties up to that period. If other assets should be found thereafter to belong to the estate, the liability of the executor may still continue in regard to them, since such decree on final accounting does not destroy the relation of an executor, but only discharges him from liability for the past.” See also Johnston v. Schwenck, 99 Oh St 59, 124 N. E. 61, 8 A. L. R. 170, particularly paragraph 2, syllabus thereof.

It is our conclusion that the plaintiff here had legal capacity to bring this action.

This brings us to a consideration of this cause upon its merits.

The defendant having filed a general denial, it was incumbent upon the plaintiff to prove the execution of these notes. The defendant complains that the evidence respecting this issue was insufficient and that the plaintiff has failed to prove that the notes were duly made and executed by the defendant.

The evidence offered in this respect was that of a witness, who because of her foreign birth and lack of schooling in the United States, was apparently not at all versed in reading and writing in the English language. She testified that several years prior to the trial she had cashed a check of and for the defendant and was acquainted with his signature and identified the signatures on the notes as being his. While it is true that this evidence leaves something to be desired, yet in our opinion must be given due weight, in the absence of any evidence to the contrary. Such evidence was not forthcoming from the defendant himself in view of the fact that he was prohibited from testifying, since the plaintiff as an adverse party, was an executor.

Furthermore, the evidence offered by the defendant respecting his defense of payment indicates rather strongly that he is not too seriously disputing the claim that he signed and executed these notes. It certainly does no violence to infer, from evidence, urged as showing that notes were paid, that they were validly executed by the person claiming that his obligations created by such instruments were discharged by payment thereof. In addition thereto, there was received in evidence two checks totalling the sum of $150.00 which the defendant claims he gave to the payee of the notes in payment thereof. The signatures on these checks, admittedly made by the defendant, when compared with the signatures appearing on the notes, constitute further evidence that the defendant signed the notes.

We have no difficulty in concluding that the plaintiff has sustained the burden cast upon her of showing due execution of all of said notes by the defendant.

There remains but the question of whether or not the defendant has sustained the burden of proving the defense of payment. As heretofore stated, the defendant himself was precluded from testifying.

The evidence offered by him respecting payment consisted of the testimony of a relative of his and the payee’s who was present when the defendant made and delivered two checks totalling $150.00 to the payee. This witness testified that these checks were given to plaintiff’s decedent in connection with notes of the defendant, held by the payee. He refused, however, to testify, although repeatedly asked if it weren’t a fact, that the checks were given as payment in full for all of the notes.

Each of these notes bears a number and it is apparent, by reason of the consecutive numbering thereof, that they were originally given in a series. There is, however, a gap in this series, disclosing thereby that some of the notes are missing, since those offered in evidence do not bear consecutive numbers. The defendant urges that this is evidence in support of his claim of payment. However, it is our view that this situation supports the claim that these notes were not fully paid since it is reasonable to assume that only the missing notes were paid. It is a general rule that a note in the hands of the maker, after due, is presumed, in law, to have been paid off and taken up by the maker. See Vol. 29, O. Jur., page 1262. The converse therefore ought likewise to be true,, namely, that where notes, after due, remain in the possession of and are retained by the payee, there is a presumption that the notes remain unpaid. Otherwise they would have not been retained by the payee but would have been returned to the maker.

It is the conclusion of the court that the defense of payment has not been made out by the degree of proof required under the law. It is no doubt unfortunate for the defendant in so far as this defense is concerned, that he was not permitted by law to take the stand and testify concerning facts and occurrences which took place prior to plaintiff’s appointment as executrix. However, that situation was created and can only be cured by the legislature.

We therefore find upon the issues joined in this cause in favor of the plaintiff and against the defendant, and that the plaintiff is entitled to recover the sum of $780.00 with interest as prayed for and her costs.


author: Per CURIAM.

text:
    UNIVERSAL MILK BOTTLE SERVICE, INC. et v. UNITED STATES.
    United States Court of Appeals, Sixth Circuit.
    No. 11180.
    Decided April 4, 1951.

      Robert N. Gorman, Cincinnati, for Universal Milk Bottle Service and others.
    Robert S. Marx, John J. Luhrman, Cincinnati, for MatthewsFrechtling Dairy Co.
    Orville A. Troy, Harry Kasñr, Kenneth D. Troy, Cincinnati, for Co-Operative Pure Milk Assn.
    Robert G. McIntosh, Cincinnati, for Cedar Hill Farms, Inc.
    Michael Lacinak, Cincinnati, for J. H. Berling’s Dairy Products Co.
    H. G. Morison, J. Roger Wollenberg, Robert H. Winn, Washington, D. C., Ray J. O’Donnell, Frank Richter, Cincinnati, for appellee.
    Before MARTIN, McALLISTER and MILLER, Circuit Judges.
   OPINION

Per CURIAM.

On September 24, 1948, an indictment was returned against appellants, charging them with a conspiracy to raise, fix and maintain prices for the sale of milk, in violation of Section 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. A., Section 1, et seq. The facts alleged in the indictment set forth that the Cincinnati Area, here in question, has a population in excess of 650,000 persons, who annually consume more than 175,000,000 pounds of milk, for which they pay more than $16,000,000; that more than 40% of the milk sold by distributors in the Cincinnati Area is produced in Kentucky and Indiana, and is transported from those states, in interstate commerce, to the Cincinnati Area; that appellants sell approximately 67% of the total amount of milk from all sources sold in the Cincinnati Area, and that the remaining 33% is sold by 31 other distributors; that 48% of the milk sold by appellants in the Cincinnati Area is produced in Kentucky and Indiana, and shipped from those states into the Cincinnati Area. It was further set forth that milk, by its nature, is perishable; that it can not be stored, but must reach the consumer within a short time after production; that, in anticipation of, and in response to demands of consumers and other purchasers, the distributors for the Cincinnati Area regularly purchase milk produced in Kentucky, Indiana, and Ohio, and that milk so purchased in Kentucky and Indiana is intermingled with milk purchased in Ohio, and is almost immediately distributed and sold to consumers and other purchasers in the Cincinnati Area; that there is, from day to day, a continuous flow of milk in interstate commerce from producers in Kentucky and Indiana to consumers and other purchasers in Ohio. The indictment then sets forth that beginning on or about July 1, 1946, and continuously thereafter up to and including June 1, 1948, the appellants engaged in a combination and conspiracy to raise, fix, and maintain prices for the sale, in the Cincinnati Area, of milk produced in Kentucky, Indiana, and Ohio, in violation of Section 1 of the Sherman Act; that the conspiracy involved agreement upon prices at which appellants sold milk in the Cincinnati Area and the use of various devices to assure uniformity in the milk prices charged by distributors selling in this Area; that increases in prices charged by distributors in the Cincinnati Area for milk sold to consumers and other purchasers have had the effect of reducing the volume of milk purchased by them, thus reducing the quantity of milk purchased by the distributors from producers in Kentucky, Indiana, and Ohio; and that the act of appellants in furtherance of the conspiracy were intended to and did raise, fix, and maintain the prices of milk shipped into the Cincinnati Area from outside the State of Ohio and sold in that Area, and thereby restrained interstate commerce in milk.

Appellants moved to dismiss the indictment on the ground that it failed to state an offense under the Sherman Act, and, in support of their motions, appended thereto a milk marketing order and amendments issued pursuant to the Agricultural Marketing Agreement Act of 1937, as amended, 7 U. S. C. A., Section 671, et seq., the official bulletin of the Milk Market Administrator for January-February, 1949, showing official statistics, and affidavits containing the regulations of the Board of Health of the City of Cincinnati and operations thereunder, all' of which appellants claim “nullified” the allegations of the indictment stating the offense under the Sherman Act.

Thereafter, the district court overruled the motions to dismiss the indictment, stating, in its decision, that “Under the familiar rule the facts as alleged are admitted, on the pending motions, to be true, for the purposes of this decision.” [85 F. Supp., 625.] Subsequently, appellants withdrew their pleas of not guilty theretofore entered, and pleaded nolo contendere; and following entry of judgments of conviction by the district court, they appealed on the ground that the district court erred in not granting their motions to dismiss the indictment. It is agreed that when a demurrer or motion to quash has been filed and overruled, followed by a plea of nolo contendere, the same questions raised on the demurrer or motion to quash could be presented on appeal. See Hocking Valley R. R. Co. v. United States, 6 Cir., 210 F. 735. Under the Federal Rules of Criminal Procedure, defenses and objections which theretofore could have been raised by demurrers and motions to quash are now raised by motions to dismiss. Rule 12(a).

Appellants contend that the documents which they filed in support of their motions to dismiss the indictment should have been accepted by the district court -as disproving the allegations of the indictment and as proof that the indictment failed to state an offense under the Sherman Act. In support of their contention, they rely upon Rule 12 of the Federal Rules of Criminal Procedure, claiming that the district court was bound to consider the above mentioned documents and affidavits as proof of the fact that appellants did not violate the Sherman Act, and consequently erred in failing to hold that the milk marketing order, in effect during the entire indictment period, nullified the allegations of the indictment.

The objection that the indictment fails to charge an offense may be raised before trial by motion to dismiss. Rule 12(b) (2). See Notes to Subdivisions (b) (1) and (2), of Advisory Committee on Rules, 18 U. S. C. A. Federal Rules of Criminal Procedure, pages 205, 206. Appellants contend that the district court should have dismissed the indictment on their motions on the ground that it did not charge an offense because the milk marketing order, copy of which was included in, and made a part of the motions, showed that all prices paid for milk by appellants were established by the Secretary of Agriculture and that all milk produced by producers in Ohio, Indiana, and Kentucky for the Cincinnati Area must be purchased under such order, “so that the statement made in paragraph 24,” of the indictment, charging the offense, “is false and untrue.” This is not an attack on the indictment based on the objection that it failed to state an offense. It is, rather, an answer to the allegations of the indictment claiming that those allegations are false and untrue. These are issues of fact. In a criminal case, such issues are to be tried by a jury, unless waived. See United States v. Greater Kansas City Retail Coal Merchants’ Assn., D. C. Mo., 85 F. Supp. 503, 511; United States v. Mertine, D. C. N. J., 64 F. Supp., 792, 794.

Rule 12(b) (1) permits the raising by motion of defenses or objections only where they are “capable of determination without the trial of the general issue,” the general issue being the issue presented by the allegations of the indictment and the plea. Allegations of the indictment essential to prove the offense charged and the pleas in answer to such allegations require a trial of the general issue. Here, the issue presented by the defense or objections raised by appellants in their motions is that the allegations of the indictment are false and untrue. This is the general issue, and this issue could only be determined on the trial. Appellants, therefore, under Rule 12, can not present such a defense or raise such an objection by a motion to dismiss the indictment. Although appellants moved to dismiss the indictment on the stated ground that it did not charge an offense under the Sherman Act, they based their claims on documents attached to the motions, which, it was contended, proved that the allegations in the indictment were false and untrue. If appellants had moved to dismiss the indictment on the ground that the allegations in the indictment were false, it must be conceded that the district court could not have determined the truth or falsity of the allegations of the indictment on such motions, and would properly have dismissed them. But that is, in reality, what appellants did in this case by moving to dismiss on the alleged ground that the indictment did not state an offense, and then offering, in support of their motion, documentary evidence, not that the indictment did not state an offense, but that the allegations of the indictment were false. This was not permitted under the former practice, and is not permitted under Rule 12.

The district court, in dismissing the motions, explicitly ruled that the allegations of the indictment, for the purposes of the determination of the motions, were admitted to be true. As presenting issues of fact, the contentions set forth in the motions could have been availed of in pleas as defenses to the charges in the indictment. But appellants, instead of going to trial on pleas of not guilty, pleaded nolo contendere. The district court was not required, on the motions to determine factual issues raised by appellants as to the truth or falsity of the allegations of the indictment, and w?as not in error in holding that the indictment stated an offense under the Sherman Act and in denying appellants’ motions to dismiss the indictment.

Appellants contend that failure to allege in the indictment that the acts claimed to have been done by the corporate appellants were authorized or performed by officers or agents of the corporations, deprived the indictment of the necessary allegation of intent. It is not necessary to allege intent in a charge of violation of the Sherman Act. United States v. Griffith, 334 U. S. 100, 105, 106, 68 S. Ct., 941, 92 L. Ed. 1236; United States v. Masonite Corp., 316 U. S. 265, 275, 62 S. Ct., 1070, 86 L. Ed. 1461. As a matter of fact, intent was here alleged — that “The acts to be performed, * * * pursuant to and in furtherance of the conspiracy herein alleged, were intended to and do raise, fix and maintain the prices of milk shipped into the Cincinnati area * * * and thereby unreasonably restrain trade and commerce among the several states.” In this case, the corporations admitted the allegations of the indictment by pleading nolo contendere. It is not required that the indictment must contain an allegation that an act done by a corporation was authorized by its officers and agents.

Appellants’ contention that the indictment did not state an offense against the laws of the United States in that the indicment charges purely an intrastate conspiracy was fully discussed and rejected by the District Judge in an opinion which pointed out how the indictment in this case differed from the indictment in United States v. French-Bauer, Inc., D. C., 48 F. Supp., 260, which is strongly relied on by appellants. We agree with that ruling and the reasons given in support of it. See United States v. Universal Milk Bottle Service, D. C., 85 F. Supp., 622. (56 Abs 225.)

Appellants contend, however, that the intermingling ol milk which moved in interstate commerce into the Cincinnati area with other milk after it reached that area, and the processing of such milk after it reached that area, before its distribution to the consumer in that area, caused such milk to lose its interstate character, and that these questions were not considered by the District Judge. We believe that the first of these contentions is answered by Peoples Natural Gas Co. v. Public Service Commission, 270 U. S. 550, 46 S. Ct. 371, 70 L. Ed. 726, and that the second of these contentions is answered by Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U. S. 219, 68 S. Ct. 996, 92 L. Ed. 1328, and Swift & Co. v. United States, 196 U. S. 375, 25 S. Ct. 276, 49 L. Ed. 518. In any event, such contentions are of the same character, and are met by the same answer, as is the additional contention of the appellants discussed in the second paragraph following hereafter.

Appellants contend that the interstate transportation of the milk is terminated by its temporary storage in Cincinnati, while being processed and held for later retail distribution. Reliance is placed upon Walling v. Jacksonville Paper Co., 317 U. S. 564, 63 S. Ct. 332, 87 L. Ed. 460, and Higgins v. Carr Bros. Co., 317 U. S. 572, 63 S. Ct. 337, 87 L. Ed. 468, and the approval given to the rulings in those cases in Standard Oil Co. v. Federal Trade Commission, 340 U. S. 231, footnote 6 at page 238, 71 S. Ct. 240. Those cases deal with the “stream of commerce” doctrine, and, as shown by the Standard Oil Co. case, whether temporary storage of a product moving in interstate commerce terminates its interstate character depends upon the particular facts under which storage is effected. In the Jacksonville Paper Co. case, it was recognized that a course of business based on anticipation of needs of specific customers, rather than on prior orders, might at times be sufficient to establish practical continuity in traffic so as to constitute movement of goods in commerce irrespective of temporary storage. The evidence in that case was held insufficient to establish such continuity. In the Standard Oil Co. case, it was held sufficient. The present case, in our opinion, presents a stronger factual situation than existed in the Standard Oil Co. case. Pevely Dairy Co. v. United States, 8 Cir., 178 F. 2d. 363. United States v. Sheffield Farms Co., D. C. N. Y., 43 F. Supp. 1, 5. See also United States v. Capital Transit Co., 338 U. S., 286, 70 S. Ct. 115, 94 L. Ed. 93.

It is not necessary in this case to establish the “stream of commerce” doctrine. As pointed out by the District Judge, the case can be bottomed on the substantial economic effect on interstate commerce of an act wholly intrastate. United States v. Women’s Sportswear, 336 U. S. 460, 69 S. Ct. 714, 93 L. Ed. 805. In such cases the point where interstate commerce ceases is not involved, if in fact interstate commerce is substantially affected. Local 167, I. B. T. v. United States, 291 U. S. 293, 297, 54 S. Ct. 396, 78 L. Ed. 804; Lake Valley Farm Products v. Milk Wagon Drivers Union, 7 Cir., 108 F. 2d 436, 440; reversed on other grounds, 311 U. S. 91, 61 S. Ct. 122, 85 L. Ed. 63; United States v. Sheffield Farms, supra. In the present case, the interstate transportation of milk into Ohio was affected, even though the transportation in interstate commerce ended upon its arrival in Cincinnati

The judgment is affirmed.