author: By FREED, DJ.

text:
    WILLIAMS v. UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, et al.
    United States District Court, Northern District of Ohio, Western Division.
    Civil Action No. 25313.
    Decided October 22, 1948.
    John H. T. Miller and Sheldon D. Clark, Cleveland, for plaintiff.
    Jerome N. Curtis, Cleveland, Harry N. Routzohn, Dayton, and Roger A. Zucker, Cleveland, for defendants.
   OPINION

By FREED, DJ.

In the second amended complaint, plaintiff asks for money judgment and a mandatory injunction to compel the defendants to reinstate him as a member in good standing of the defendant organizations. The action is sought to be maintained against the defendant union organizations and ten of their officers, individually and as members of a class.

The plaintiff alleges that the defendants conspired to oust him as a member of the United Brotherhood and its subordinate District Council and that he was improperly expelled from such organizations. It is contended that the procedure which resulted in his ouster was in violation of the constitutions and by-laws of the named organizations.

The matter is before the court on a motion which is many fold and which may be summarized for the purpose of disposing of the questions raised as follows:

(1) The motion to dismiss the complaint as to all of the defendants,

(2) Motion to dismiss Harry Schwarzer and Carl Schwarzer as representative defendants,

(3) Motion for more definite statement,

(4) Motion to strike a portion of the complaint.

The motion to dismiss all the defendants is predicated on this court’s lack of jurisdiction. It is urged on the basis of the proposition that United Brotherhood and district council are unincorporated associations. It appears that United Brotherhood’s main office is in Indianapolis, Indiana and that service was had on one of its officers individually and as a member of a class. Similar service was had on the district council.

It is readily discernible that United Brotherhood’s membership is nation wide and the district council is locally constituted. Defendants contend that inasmuch as the United Brotherhood is unincorporated and has thousands of members living in the state of California, of which state plaintiff is a citizen, this court lacks jurisdiction on the grounds of diversity of citizenship. The decisions in Levering v. Morrin, 2 Cir., 61 F. (2d), 115, and Sperry Products v. Association of American R. R., 2 Cir., 132 F. (2d), 408, 410, are controlling as to this contention. “When * * * jurisdiction depends upon diversity of citizenship, it is the citizenship of the members alone which counts.” Sperry Products v. Association of American R. R., supra.

The district council, however, seemingly has a geographically limited membership and thereby satisfies the diversity requirement, unless and until evidence at the trial to the contrary is presented.

The law of Ohio permits an association to sue or be sued in its own name, Rule 17(b), Federal Rules of Civil Procedure, 28 U. S. C. A. The Ohio statute governing such a situation is §11257 GC. “One or more can sue or defend for all. When the question is one of a common or general interest of many persons, or the parties are very numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.” The section does not contain any ambiguity. It is not open to question that the district council can be sued in its own name by serving process on one or more of its members. “It is our conclusion that either under those cases following United Mine Workers v. Coronado Coal Co., 259 U. S., 344, 42 S. Ct., 570, 66 L. Ed., 975, 27 A. L. R., 762, or our own statute, §11257 GC, if proper foundation is laid, the defendant is suable. This entirely disposes of the contention that the trial court did not have jurisdiction of the defendant because it was not suable.” McClees v. Grand International Brotherhood of Locomotive Engineers, 59 Oh Ap, 477, 12 O. O., 111, 18 N. E. (2d), 812, 814.

The information sought in the motion to make more definite may be obtained by resorting to Chapter V of the Rules of Civil Procedure and it is not necessary to enable the defendants to make a responsive pleading to the complaint.

Paragraph 3(b) of the complaint violates Rule 12(f) of the Rules of Civil Procedure.

Accordingly, the motion to dismiss the complaint as to the defendant, United Brotherhood is granted, the motion to dismiss the complaint as to the individual defendants in their representative capacity as officers of the United Brotherhood is likewise granted, the motion to strike paragraph 3 (b) of the complaint is granted. The motion in all other respects is overruled.


source: Caselaw Access Project

author: By HORNBECK, J.

license: Public Domain

text:
    GILL, Plaintiff-Appellee, v. GILL, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4180.
    Decided December 6, 1948.
    Coughlin, Ogier & Lloyd, Columbus, for plaintiff-appellee.
    H. P. Fagan, W. C. Egelhoff, Columbus, for defendant-appellant.
   OPINION

By HORNBECK, J.

The appeal on questions of law is from a judgment of the trial court, dismissing defendant’s petition to vacate divorce decree and alimony order upon the sustaining of a demurrer to the petition.

The germane facts are that plaintiff instituted her action for divorce on the ground of gross neglect of duty and prayed that a separation agreement entered' into by the parties be approved and confirmed. The petition averred the marriage of the parties on August 17, 1929 and the birth of one child but did not allege that the marriage was subsisting, at the time of the filing of the petition. Defendant answered and admitted the averments of the petition as to residence, marriage and birth of child, as therein alleged, and denied each and every other allegation and prayed for dismissal of the petition.

The cause came on for trial, defendant not appearing, and a decree of divorce on the grounds averred was awarded to the plaintiff, together with approval, confirmation and adoption of the separation agreement between the parties and an order for the payment by the defendant of a sum of money due under the terms of said agreement. The decree, following the usual form, among other things adjudged that the marriage contract heretofore existing between the parties be and the same is hereby dissolved, etc. The separation agreement set up in the petition and adopted in the judgment entry recites at the very beginning thereof that the parties are husband and wife and thereafter throughout the instrument they are so designated and it was signed by the parties.

The petition to vacate, filed long after term, was given the same number as the original divorce case and filed therein and averred that the'former judgment and order should be vacated because it was obtained by “fraud and misrepresentation practiced by the plaintiff in her claim that the marriage of the parties of date, August 17, 1929, was a valid and existing marriage at the time of the filing of her petition and the rendition of said judgment or order, when in fact, as plaintiff well knew, and the records of this Court show, said marriage had heretofore been dissolved on July 30, 1934, by this Court in case No. 9966; that at the time of filing the petition in this cause, and the rendition of the judgment and order thereon, the plaintiff and defendant were not husband and wife”. To this petition, plaintiff demurred on the ground that it does not constitute a cause of action and that the allegations thereof plead no facts upon which the Court could grant the relief requested. This demurrer was sustained by the trial judge in a short opinion grounded substantially upon the proposition that at no time during the divorce proceedings did the defendant deny the marriage but in fact in his answer admitted it as alleged.

From the facts heretofore stated, it appears that, although the defendant did admit the marriage as pleaded, the petition did not aver that the marriage relation was subsisting at the time that it was filed. Of course, such averment is implied by the general purport of the petition in conjunction with the prayer that the marriage relation between the parties be dissolved. The Court in its divorce decree made the necessary and appropriate adjudication that the marriage relation existing between the parties was dissolved. However, it may not be said that upon the pleadings the defendant has made any admission respecting the subsisting marital relationship which would estop him in his petition to vacate to deny the fact.

The separation agreement was evidence to support the claim that the defendant recognized the marital relation as subsisting at the time that it was entered into. All of this would have been appropriate when the petition to vacate came on for determination under §11637 GC, at which time the Court would be required before suspending the judgment to adjudge that there is a valid defense to the action in which the judgment was rendered.

At this juncture, it should be noted that there is no question of public policy involved here because if the defendant’s claim is true the granting of the petition to vacate, and the setting aside of the judgment, upon the only ground upon which the relief could be predicated would leave the original decree of divorce between the parties effective. Then, too, there is involved here an order for alimony.

Had the trial judge accorded, to the defendant his full rights under §11637 GC, we would have another and a different question on this appeal. However, w? cannot find that the defendant is estopped from instituting his action to set aside the order and decree by any admission made in his action thereto set up in his petition and the petition, if true, states a defense to plaintiff’s cause of action. If the averments in the petition are true, and they must be so regarded on demurrer, the Court was without jurisdiction to enter the divorce decree, §11986 GC, and likewise the separation agreement, §8000 GC, was without effect for the manifest reason that a marital status is the sine qua non for either. The Court should not have adjudicated against the defendant upon the demurrer. The demurrer should be overruled and the matter should be set down upon the petition to vacate and adjudication made by the Court under §11637 GC.

We make no comment as to the proper procedure incident to the filing and consideration of the petition to vacate, as the question is not raised on this appeal. The judgment will be reversed and cause remanded for further proceedings according to law.

WISEMAN, PJ, and MILLER, J, concur.


author: By HAM, J.

text:
    BUCK v. REIGHARD.
    Common Pleas Court, Fulton County.
    No. 12703.
    Decided April 1, 1949.
    E. S. Diehl, Defiance, for plaintiff.
    J. W. Williamson, Wauseon, for defendant.
   OPINION

By HAM, J.

The plaintiff moves for a change of venue on the grounds that the defendant is publisher of a newspaper of large circulation in the county, by reason of which he is closely associted with the peoples of the county generally.

The right to invoke the court’s order for a change of venue is afforded by Section 11415 of the Civil Code and Section 13427-1 of the Criminal Code. They are almost identical, so for guidance we can look to the annotations of decisions under both sections, those under the Criminal Code being more numerous.

In the onset the court recognizes that where is present a local prejudice because, for instance, there has been a particularly atrocious crime committed, or a heavy loss by theft to the creditors of a Bank, the air itself seems surcharged with prejudice and passion directed against the defendants which somehow seemingly penetrates the walls of the court room itself. No such public tumult and clamor is present here, however.

But what is said by the plaintiff of the editor here could apply to a minister, doctor, lawyer or anyone of wide and favorable acquaintance in the county. But naturally there would not be that passionate prejudice (if in fact any) against such a man’s opponent as in the instances first noted.

Over a century ago our Supreme Court decided a case, Bank of Cleveland v. Ward, et al., 11 Oh St 128. The Court, referring to a New York case [Bowman v Ely, 2 Wend. 250], said:

The Court decided not to interfere on any speculative opinion of individuals; that they ought, first, to see whether the apprehensions of the party were realized and there would then, be time to interpose, and cause the court of justice to flow unpolluted by passion or prejudice.

The power to interpose, and change the venue, in this State, is derived from the one hundred and thirty fourth section of the Practice Act (Swan’s Stat., 684) which provides “that, in all cases where it shall be made to appear to the Court that a fair and impartial trial cannot be had in the county where the suit is pending, the Court may direct the venue to be changed.” It appears to us, that more confidence is due to the not less than five thousand legally qualified jurors in the county of Cuyahoga, than to suppose a fair trial cannot be had there, merely upon the speculative opinion of one individual, and he a party, in interest, in the cause; and there is nothing else in the case to induce such belief. There is nothing in the cause of action calculated to raise an excitement, or general feeling, for the matters in controversy are five promissory notes. The record shows there has been but one attempt at a trial by jury, and it is a fact within our recollection upon that trial, and of which we must take judicial notice, that no difficulty occurred in the selection of the jury, though they were unable to agree, and were discharged by the Court; and, under the proof in the cause, such disagreement might have happened in any other county in the State.

As before remarked, it is difficult to establish any general rule, applicable to all cases of this kind; but it is, nevertheless, certain that the defendants should not be subjected to the vexation and expense of trying their case in a distant county, because the plaintiff alone, entertains the opinion that justice cannot be administered at home. Either party has the right to a struck jury if application is made; and, in a populous county, until even that effort is tried, the Court should not interfere, without other most clear and satisfactory proof of the necessity, to the fair and impartial administration of justice that the place of trial should be changed.

1 find no other decision in this State which discusses the degree of quantum of proof. Ás a matter of first impression I would assume that a mere preponderance would suffice.

But this is part of the text in American Jurisprudence Vol. 56, page 68, in Section 68, “and it is the consensus of opinion that the law presumes that a defendant can get a fair and impartial trial in the county in which the offense was committed; in order to overcome this presumption the burden is upon the defendant to show clearly that he cannot have such a fair and impartial trial. Before the court is justified in sustaining an application therefor on account of the prejudice of the inhabitants of the county it must affirmatively appear that there is such a feeling of prejudice prevailing in the community as will be reasonably certain to prevent a fair trial.”

The court knows the several affiants whose affidavits pro and con are on file. They all qualify as “creditable citizens”, a term used in another section of the code.

Assuming but doubting that the. “preponderance” rule of evidence is applicable here, the court does not feel at this time that the applicant has sustained the burden of proof which the law casts upon her.

However, in a criminal case, State v. Kauffman, 30 O. O. page 501 of the 3rd syllabus reads: “When on a hearing of a motion for change of venue, defendant’s counsel limits his grounds for a change to the claim that a fair and impartial jury can not be impaneled, the court may pass the hearing, reserving it to be heard at any time during the examination of the jury panel on its voir dire if it should then appear doubtful that a fair and impartial jury can be impaneled.”

At that time, the court knew of no supporting decisions sustaining its action, which, however, he was confident was right in logic and sane judgment. Since that, it has. found some support without the state.

We quote from Sec. 71, Vol. 56, American Jurisprudence at page 71: “In the absence of any statutory provisions which by its terms or necessary implication requires immediate disposition of an application for a change of venue, the court may properly suspend action upon the application even though the ground asserted may be one, which, if established, gives the moving party an absolute right to a change.”

See also annotations 18 and 19 at page 72:

“On an application for a change of venue on the grounds of inability to secure a fair trial, it has been held that the court may postpone its hearing on the motion until it can be ascertained by an examination of a sufficient number of jurors whether a fair and impartial trial can be obtained.” Anno; Am. Cas. 1912C, 1292.
“Galey v. Mason 174 Ind. 158, 91 N. E. 561 Ann. Cas. 1912C, [1290], 1292.”

So the court harkens to that challenging observation of Judge Wood in that early day and applies it here, and holds that more confidence is due to the approximate ten thousand voters in Fulton County than to suppose that a fair trial cannot be had here, and that the defendant should not be subjected to the vexation and expense of trying his case in a distant county at the mere caprice of his opponent.

However, the court while overruling and denying the application, reserves to the plaintiff the right to renew it at the trial if and when, in impaneling the jury, difficulty be met in obtaining a fair and impartial trial. If such a situation arises, the court sua sponte will vacate the former order against the application and hear the application de nova. Let the order so provide. Exceptions to applicant.


author: By THE COURT. By THE COURT. By THE COURT.

text:
    AMERICAN ZINC OXIDE CO., Plaintiff-Appellee, v. LOCAL UNION No. 536 et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4240.
    Decided January 13, 1949.
    Vorys, Sater, Seymour & Pease, Seymour of Counsel, Columbus, for plaintiff-appellee.
    Mayer & Mayer, Columbus, for defendants-appellants.
   OPINION

By THE COURT.

Submitted on motion by the plaintiff-appellee for an order to, dismiss the appeal on questions of law and fact and that the same shall be retained for hearing on questions of law only.

The record discloses that this case is before the Court on a proceeding to review a judgment of the Court of Common Pleas finding the defendants guilty of contempt of court. This proceeding is being prosecuted under §12146 GC, which provides that a party found guilty of contempt may have his case reviewed on error. Contempt proceedings are quasi-criminal in their nature and therefore can not be considered chancery cases. Ragsdale v. Ragsdale, 30 O. C. A. 128. The motion to dismiss the appeal on law and fact will therefore be sustained,. and the appellants will be given thirty days to perfect their appeal on questions of law as provided by Rule VII of this Court.

The plaintiff-appellee further moves the Court to set aside the order entered on December 8, 1948, fixing the amount of the bond of the defendants and suspending the execution of the judgment for the reason that at the time said order was made and entered this Court had no jurisdiction of the subject matter of the action.

The record discloses that notice of appeal was filed in the trial court on December 9, 1948, but a copy of said notice was filed in this Court on December 8th at which time the order was entered fixing the amount of the stay bond in compliance with §12146 GC. . This Court does not, however, have the power to fix the bond under this section until the proceedings in error are commenced. The proceedings in error can only be commenced by the filing of a notice of appeal in the trial court, and until the notice of appeal is filed there this Court has no jurisdiction. In Damar Realty Co. v. Cleveland, 140 Oh St 432, in construing the Appellate Procedure Act the Court said:

“Construing the language employed liberally, we are of the opinion that the only jurisdictional step in any case is the filing of the notice of appeal.”

See also, State, ex rel. v. Brookes, 142 Oh St 107; Fifty West Broad, Inc., v. Poulson, 41 Abs 212.

We, therefore, are of the opinion that this Court was without jurisdiction to enter the order of December 8, 1948, and that the same is null and void and should be set aside.

The appellee further requests, in the event said order is set aside, that it be given an opportunity to be heard before the fixing of a new bond. This request is proper and the same will be complied with.

Since the Court had no jurisdiction to enter the order of December 8 the matter of the sufficiency of the bond, which is also raised in the motion, becomes immaterial.

The motion will be sustained as heretofore indicated.

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

ON MOTION TO DISMISS THE APPEAL

No. 4240. Decided March 16, 1949.

By THE COURT.

Submitted on motion by the plaintiff-appellee for an order to dismiss the appeal for want of prosecution.

The record discloses that on January 18, 1949, this Court entered an order fixing the time for the preparation and settlement of a bill of exceptions on or before thirty days from the date of the filing of said order, and further ordering that appellants were given forty days from said date in which to file their assignments of error, brief and bill of exceptions. Said forty day period has now expired and nothing has been filed by the appellants. The motion to dismiss is sustained.

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

ON MOTION TO DISMISS THE APPEAL

No. 4286. Decided May 27, 1949.

By THE COURT.

Submitted upon motion by the plaintiff-appellee seeking an order dismissing the appeal on questions of law and fact, and permitting the appeal to stand for hearing on questions of law only.

The record discloses that the notice of appeal is directed to a judgment finding the defendants guilty of contempt of court. This is not a chancery case and is therefore not appealable on law and fact. Ragsdale v. Ragsdale, 30 O. C. A. 128. The motion to dismiss the appeal on questions of law and fact will be sustained and the case will be retained for determination on questions of law only. The appellants will be granted leave to file bill of exceptions, assignments of error and briefs within the time provided by supplement to Rule VII of this court.

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


author: PER CURIAM.

text:
    PENNSYLVANIA RAILROAD CO. v. FOLGER.
    United States Court of Appeals, Sixth Circuit.
    No. 10660.
    Decided October 25, 1948.
    Burr, Porter, Stanley & Treffinger, Charles S. Gillispie, Columbus, of counsel, for appellant.
    Russell Leasure, Paul M. Herbert, Columbus, Herbert & Domby, Columbus, of counsel, for appellee.
    Before ALLEN, MARTIN and MILLER, Circuit Judges.
   OPINION

PER CURIAM.

This appeal is prosecuted from a judgment of the District Court entered on a jury verdict in a personal injury case arising out of a collision on a grade crossing between an automobile driven by appellee’s decedent and a passenger train of appellant’s railroad. The accident occurred in the village of West Lafayette, Coshocton County, Ohio. The decedent was driving his automobile at about midnight in a southerly direction on State Route 93. At the grade crossing there are four sets of railroad tracks, an east-bound and west-bound main track, and two spur tracks, one to the north and one to the south of the main tracks. Flasher light signals were located at the northwest and southeast corners of the crossing, and it is conceded that the track circuit extends 3387 feet in both directions, east and west. As the decedent approached the crossing a freight train fvas standing east of the crossing on the west-bound track, with the front end of the engine some 250 or 300 feet east of the highway. A passenger train was approaching on the east-bound track, that is, the south track. The flasher lights were operating. An eyewitness, Harry Goodwin, saw the decedent’s automobile slow down, but it did not stop and continued across the crossing without materially changing its speed, and was tsruck by the oncoming passenger train. When Goodwin first saw the engine of the passenger train the automobile was approximately three feet north of the northerly spur track, some 60 or 70 feet from the east-bound track. Its speed was not quite ten miles per hour. At that time the passenger train was passing the tool shed, which is conceded to be approximately 490 feet west of State Route 93.

The engineer and conductor testified that the whistle was sounded according to the statute, and a resident of a house a block away heard the whistle; but Goodwin did not hear it. The decedent was killed in the collision, and hence some of the most important testimony in the case with reference to the events which led up to the accident is that of Goodwin.

We deem it unnecessary to discuss the question of physical obstructions on the right of way and the layout of the tracks, because in our view one proposition is determinative, namely, that the evidence, when considered in the light most favorable to the appellee, establishes as a matter of law that the decedent was guilty of contributory negligence which proximately contributed to cause his death. It is uncontradicted on this record that the decedent drove across the crossing in violation of statute, and thus was guilty of negligence per se.

Sec. 6307-60 GC, provides:

“No person shall drive a vehicle across a railroad grade-crossing when:
“(a) A clearly visible electric or mechanical signal device gives warning of the immediate approach of a train * *

Here the uncontradicted evidence shows that flasher lights, were in operation during the entire period of the accident. The locomotive was some 490 feet west of the crossing, going 70 miles an hour at the time the automobile was some 70-feet from the track. The all-important fact is that the passenger train was within the circuit of the flasher light, which is conceded to be 3387 feet west of the crossing, as the decedent, drove up to the tracks. In its answer to one of the interrogatories, the jury specifically found that at the time the-decedent drove his automobile upon the crossing where the-collision occurred, the electric mechanical signal device was. giving warning of the immediate approach of a train. The-fact that the flasher light was also giving warning of the-presence of the standing freight train does not affect the-determinative importance of the circumstance that the decedent had warning of the approach of the passenger train.

Under these conceded facts, the case falls squarely within-the ambit of §6307-60 GC. Driving across the grade crossing, under these circumstances was negligence per se, under longesfablished Ohio law. Schell v. DuBois, 94 Oh St, 93, 113 N. E., 664, L. R. A. 1917 A, 710; Pennsylvania R. Co. v. Moses, 125 Oh St, 621, 184 N. E., 8.

The judgment is reversed and the case is remanded with, instructions to enter judgment for the appellant.


author: By MILLER, J.

text:
    PARRISH, et, Plaintiffs-Appellants, v. STRANAHAN, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4211.
    Decided February 4, 1949.

      Russ Bothwell, Columbus, for plaintiffs-appellants.
    Carl H. Valentine, Columbus, for defendant-appellee.
   OPINION

By MILLER, J.

This is a law appeal from the Municipal Court of Columbus, Ohio. The petition sets forth two causes of action: The first is one in forcible entry and detainer, alleging that the defendant has “ever since the 1st day of June, A. D. 1948, unlawfully and forcibly detained * * etc. The second cause of action is for rent of the premises from June 1st, 1948, to June 9, 1948, on a rental basis of $45.00 per month. The prayer is for restitution and a judgment for $10.50 and costs.

The record discloses that at the close of the plaintiffs” case the defendant offered to and did confess judgment for the plaintiffs on the second cause of action and tendered into court the sum of $135.00 in satisfaction of the rent to date. The defendant then entered a motion to dismiss the first cause of action which was sustained, the Court citing Hoover v. Israel, 45 Abs 490. The appellants seem to agree with the-legal principles announced therein, but are attempting to distinguish the case at bar upon the facts. The only difference in the facts seems to be that in the Hoover case the plaintiff was called to the witness stand and immediately the defendant, confessed judgment upon the second cause of action, which. was also for rent, while in the case at bar judgment was confessed after the plaintiffs had testified and rested their case. It is the contention of the appellants that the offer to confess judgment was not seasonably made and therefore the-ruling of the Court was erroneous. For a determination of this question it becomes necessary to examine the statutory-law which is found in §11594 GC, which provides:

“A person indebted, or against whom a cause of action; exists, may personally appear in a court of competent jurisdiction, and, with the assent of the creditor, or person having: such cause of action, confess judgment; whereupon judgment-shall be entered accordingly.”

It will be noted that this section places no limit as to the-time that an offer to confess judgment shall be made, so it .must be presumed to mean that it may be made at any stage-of the proceedings.

We are therefore of the opinion that the offer to confess-judgment was seasonably made.

A further examination of the statute, however, discloses: that “the assent of the creditor, or person having such cause of action” is required. The record discloses that the plaintiffs at no time consented to the entering of the confession-of judgment. They objected at the time and moved for a dismissal of the second cause of action, which motion was overruled. It is our conclusion that all the requirements of' the statute were not met and that the judgment is invalid.

We find further that since there was no judgment the-plaintiffs’ motion to dismiss the second cause of action should have been sustained. An action may be dismissed by the plaintiff at any time before its final submission to the Court. Sec. 11586 GC. Even though the errors above enumerated appear in the record we think they were not prejudicial to-the plaintiffs, and the Court did not err in sustaining the motion to dismiss the first cause of action at the close of the plaintiffs’ case. The only ground for the eviction appearing in the record is that of nonpayment of rent when due.. The evidence discloses that the plaintiffs purchased the property in which the defendant resided, in January, 1948; that sometime later he wrote a letter to the defendant advising her that the rent was payable in advance in' the first of each month. She had been a tenant for approximately seven years before the plaintiffs acquired the property. No evidence was offered tending to show the terms of her contract on this point with her prior landlord. Under the federal rent control regulations the new landlord could not change the terms of the original contract without the consent of the administrator. Therefore, in the absence of such a showing the letter stating the due date was of no effect. She was entitled to remain in the premises under the terms of the contract with the old landlord and no evidence was offered showing that under its terms the rent was payable in advance.

We find no error in the record prejudicial to the rights of these appellants. The cause is ordered remanded with instructions that the confessed judgment be vacated; that the second cause of action be dismissed and that the judgment of dismissal of the first cause of action be affirmed.

WISEMAN, PJ, and HORNBECK, J, concur.


author: By THE COURT. By THE COURT.

text:
    COLANERO, Estate of, In Re.
    Ohio Appeals, Second District, Franklin County.
    No. 3784.
    Decided March 24, 1949.
    Connor & Connor, Charles E. Connor, of Counsel, J. Maxwell Maher, Columbus, for plaintiff-appellant.
    Harry A. Clarke, John F. Cianflona, Michael A. Coughlin, Columbus, for appellee.
   OPINION

By THE COURT.

This is a law appeal from the Probate Court of Franklin County, Ohio, seeking to set aside and vacate the order confirming the final account and discharging the administrator upon the ground of fraud.

The record discloses that the first and final account was filed on October 15, 1942; that the same was published as required by law and the account was confirmed on November 19, 1942, the estate settled and the fiduciary discharged. On March 24, 1943, a petition was filed to reopen the account, alleging fraud. Upon the issues drawn trial was had and the petition was dismissed for the reason that the plaintiff did not prove he had no knowledge of the facts complained of within time to file exceptions to the account. The Court further found from the evidence that the petitioner was present in court when the account was prepared and filed; that he had knowledge of the acts complained of within time in which to file exceptions in accord with §10506-37 GC, and that the determination became final. The Court was of the opinion, and we think properly so, that inasmuch as the petitioner had knowledge of the alleged. fraudulent acts within time to file exceptions to the account, that he should have availed himself of the remedies which were available to him at the time; that since he had not done so, he is now precluded from maintaining the action upon the ground of fraud. Citing Crawford, Admr. v. Ziegler, et al., 84 Oh St 224. The appellant cites the case of In re Stafford, 106 Oh St 253, the facts of which we do not think are on all fours with the case at bar, the pertinent distinction being that there was nothing in the evidence in that case showing that the petitioner had knowledge of the alleged fraud in time to file exceptions to the account, as we have here. We are in accord with the legal principles set forth in the well considered opinion of Judge McClelland, and finding no error in the record the judgment is affirmed.

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

ON APPLICATION FOR REHEARING

No. 3784. Decided May 2, 1949.

By THE COURT.

This is an application for a rehearing, and upon further consideration we are compelled to vacate our original finding and to hold that the trial court erred in restricting the testimony and evidence to the question whether the plaintiff-appellant had knowledge of the facts complained of within time to file exceptions to the account. The right to file exceptions is the remedy that the statute confers upon the appellant upon the filing of the account. However, §10506-49 GC, as it existed in 1943, at the time this proceeding was instituted, provided that the determination on the settlement of an account had the same force and effect as a judgment at law or decree in equity and was final as to all persons having notice of the hearing, except in certain instances therein set forth, one of which is paragraph (d), “in case of fraud or collusion”. The third amended petition alleges that the petitioner did not discover the fraud set forth therein until more than thirty days after the approval of the final account, and that he was therefore unable to file exceptions thereto. When fraud is alleged we do not think the statute requires an allegation as to when knowledge of the fraud was acquired with reference to the time of the filing of the account. The allegation in the petition upon this fact was mere surplusage and immaterial. When fraud or collusion is shown the court’s approval is vacated and the account becomes subject to any appropriate exceptions if not barred by the Statute of Limitations. In re Estate of Stafford, 146 Oh St 253. The ruling of the trial court in the case at bar was a denial of the right the petitioner had to produce evidence to sustain a material allegation of the petition. Even though the court was correct in the law applicable, and which we do not concede, the mere knowledge of the contents of the account presented would not infer knowledge of all the facts leading up to the final account. The trial court seemed to rely upon the case of Crawford, Admr. v. Ziegler, 84 Oh St 224, which we do not think supports the court’s ruling. In that case the court found that fraud had not been established and therefore in order to make an objection to the account exception would have to be taken within the statutory period allowed. But in the case at bar no finding has been made upon the issue of fraud raised in the pleading. This must be done in order to have a determination of the rights of this petitioner.

The judgment is reversed and the cause is remanded for further proceedings according to law.

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


author: By THE COURT.

text:
    MULLETT, Plaintiff-Appellant, v. DeRUBERTIS, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4278.
    Decided April 11, 1949.
    Russ Bothwell, Columbus, for plaintiff-appellant.
    Hamilton & Kramer, Columbus, for defendant-appellee.
   By THE COURT.

Submitted on motion by the defendant-appellee seeking an order dismissing the appeal for the reason that the order appealed from is not a final order. The order under consideration is one striking certain allegations of negligence set forth in the petition. The appellant is opposing the motion, contending that the order deprives him of a substantial right by not permitting him to pursue further certain claims of alleged negligence; that it is an abuse of discretion and prevents a judgment. This is not a final order within the purview of §12223-3 GC. It leaves the action still pending in the trial court. The plaintiff may still succeed in the cause. It may be reviewed only on appeal after a final judgment has been entered. See Holbrook, Admr., v. Connelly, 6 Oh St 200; Betz v Industrial Commission, 139 Oh St 624.

The motion will be sustained.

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


author: By HURD, J.

text:
    YOUNG, Plaintiff-Appellant, v. NEW YORK CENTRAL RAILROAD CO., Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21232.
    Decided July 18, 1949.
    Payer, Bleiweiss, Crow & Mollison, Cleveland, for plaintiff-appellant.
    J. Paul Lamb, Cleveland, for defendant-appellee.
   OPINION

By HURD, J.

This case sounding in tort originated in the common pleas court of Cuyahoga county where the appellant, Augustin F. Young, a railroad signalman brought his action under the Federal Employers Liability Act against the appellee, The New York Central Railroad Company, his employer, for damages for personal injuries sustained by him as the result of an alleged unprovoked attack made upon him by a fellow worker.

At the close of all the evidence, the court granted defendant’s motion for a directed verdict and rendered judgment thereon. Whereupon a motion for new trial having been overruled, an appeal was perfected to this court on questions of law.

The parties will hereinafter be designated as ‘plaintiff’ and ‘defendant’ as they appeared in the trial court.

The gravaman of plaintiff’s complaint is that the defendant was negligent in retaining in its employ a dangerous and vicious man with knowledge of these propensities and characteristics and in failing to provide plaintiff with a safe place to work.

While the record shows a conflict in respect of the facts of the altercation which led to the assault, the trial court for the purposes of the motion to direct a verdict, was obliged to accept as true the evidence of the plaintiff and also to construe it most favorably to plaintiff and in this court, upon this appeal, the plaintiff is entitled to the most favorable interpretation of the facts in his favor and all inferences which may reasonably be drawn therefrom.

A brief summary of the evidence interpreted most favorably to the plaintiff, is as follows:

Plaintiff, Young, 50 years of age, married and the father of four children, had been employed by defendant, The New York Central Railroad Company, continuously since he was 19 years of age, as a tower-man or signalman. His duties required him to give signals with respect to the right of way at the intersection of several railroad lines through the pulling or operating of certain mechanical levers.

During the year 1943, he was assigned to what is known as the C & P crossing at the old Union Depot, Cleveland, Ohio, where the Pennsylvania railroad tracks intersect with tracks of the New York Central Railroad. At the time of the matters complained of, his working shift covered the period from 11 o’clock P. M. until 7 o’clock A. M. He reported to and performed his duties in a small shanty 5’ x 9’ containing a small stove, a clothes locker, a telephone and a small desk. Each night he relieved one James Johnson, the person who assaulted him, who was the lever-man at this shanty on the shift which commenced at 3 o’clock P. M. and terminated at 11 o’clock P. M. Prior to the night of Nov. 29, 1943, when the alleged wanton and unprovoked attack was made, plaintiff had only a casual acquaintance with Johnson.

Plaintiff testified that Johnson and he had no physical encounters and no words and no trouble of any sort during the year that Young relieved Johnson prior to the night of Nov 29, 1943, except that he had reported late a few times in relieving Johnson; on one occasion about 45 minutes late, and on another occasion about one minute late, and on the night of the attack he reported about four minutes late. He testified that on the occasion when he was 45 minutes late he paid Johnson 60c in cash to compensate him for the overtime service, but otherwise they had no trouble at all and they “got along all right.”

On the night of Nov. 29, 1943, plaintiff’s automobile developed a flat tire enroute to work, and he arrived about four minutes after 11 P. M. Johnson was waiting outside the shanty as Young appeared. According to Young’s testimony, he apologized for being late and he explained he had trouble with his automobile and thereupon he proceeded to the shanty with Johnson following him. As plaintiff was removing his jacket, Johnson shouted “I warned you not to come late * * * hurry up now, get to work.” Johnson reached for plaintiff’s jacket and appeared to be attempting to pull it off. What appeared to be a mere jerking by Johnson of plaintiff’s jacket, was, according to plaintiff’s testimony, in fact repeated stab wounds in his chest and abdomen. In the struggle which ensued, the plaintiff was severely cut and stabbed in the region of his chest, abdomen and legs. According to plaintiff’s testimony, he was able to save his life by striking Johnson several blows with a stove poker and thereupon he escaped from the shanty and called a Pennsylvania railroad crew nearby for help. Plaintiff was hospitalized for a number of days under oxygen and underwent two operations. He was confined to a hospital for one month and at home in bed another month. He returned to work in April, 1944, and is now employed in the same position by the defendant company.

Plaintiff introduced evidence of prior assaults, upon other employees of the company by Johnson, about seven or eight in number, and introduced testimony showing that repeated reports had been made concerning Johnson’s conduct in this respect, to the wire despatcher and to Supt. Crotser, both of whom were his and Johnson’s superiors and persons in authority to whom such reports should have been addressed. While it was denied by Supt. Crotser that he had received any reports about Johnson’s misconduct, nevertheless, for the purpose of this review, we must, as stated, assume that notice was brought to the company concerning the previous course of Johnson’s conduct as indicated by the incidents described in the evidence.

As we view this case, the principal question presented is whether the facts shown in the record interpreted and construed most favorably to plaintiff, are sufficient to establish liability of the railroad company under the Federal Employers Liability Act. The pertinent and applicable provision of the Act is as follows:

“Every common carrier by railroad, while engaging in commerce between any of the several «states * * * shall be liable in damages to any person suffering injury while he is employed by. such carrier in such commerce * * * resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier. * * U. S. C. A. Sec. 51.

From the foregoing, it is clear that under the Federal Employers Liability Act liability arises from negligence and the burden rests upon plaintiff to prove that the negligence of the railroad company was in whole or in part a proximate cause of the injury for which recovery is prayed.

Cases involving circumstances similar to those of the instant case Have heretofore been considered and decided by the Federal Courts and the interpretation placed upon the Federal Employers Liability Act by such decisions must be followed by this court in the instant case insofar as they are applicable.

In the case of Davis v. Green, 260 U. S. 349, 43 Sup. Ct. 123, 124 the Supreme Court of the United States reversed the Supreme court of Mississippi which had affirmed the lower court decision holding the railroad company liable where an employee who was a conductor, had been killed by an engineer, a fellow employee of decedent, where the evidence disclosed that the company had employed a dangerous man with notice of his dangerous propensities.

Mr. Justice Holmes, speaking for the court, said:

“The ground on which the railroad company was held was that it had negligently employed a dangerous man with notice of his characteristics and that the killing occurred in the course of the engineer’s employment. But neither allegations nor proof present the killing as done to further the master’s business, or as anything but a wanton and willful act done to satisfy the temper or spite of the engineer. Whatever may be the law of Mississippi, a railroad company is not liable for such an act under the statutes of the United States.” (Emphasis oursj

To the same effect is the later decision of the United States Supreme Court in the case of Atlantic Coast Line Railroad v. Southwell, 275 U. S. 265, 48 Sup. Ct. 25, which involved similar facts.

The following cases follow the same reasoning: St. Louis San Francisco Railroad v. Mills, 271 U. S. 344 (1926); Atlanta & Charlotte Air Line Railroad v. Green, 279 U. S. 821 (1929), reversing per curiam 151 S. C. 1, 148 S. E. 633.

Counsel for plaintiff apparently recognizing the force of the foregoing decisions argue that these cases were decided prior to 1939 at which time the Federal Employers Liability Act was amended in such a manner as to abolish the defense of voluntary assumption of risk and that therefore these cases have no application to facts such as are disclosed by the record in the instant case.

In our opinion, this contention cannot be sustained because in the cases cited the Supreme Court did not predicate its decisions on the defense of assumption of risk. The gist of these decisions is generally to the effect that the railroad company is not liable unless the attack or act complained of was done to further the railroad company’s business even though the act may have occurred in the course of the actors employment.

In our opinion, the attack made upon the plaintiff in the instant case could not be considered as an act in furtherance of the employer’s business on the most liberal interpretation in favor of the plaintiff. On the contrary, the facts in the present case show a wanton, malicious, unprovoked attack done “to satisfy the temper or spite” of the fellow employee.

Plaintiff places great reliance upon the recent case of Lillie v. Thompson, Tr. 332 U. S. 459. In that case a per curiam opinion of the Supreme Court reversed the District Court and the Circuit Court of Appeals which had affirmed the decision of the District Court, dismissing the petition of plaintiff for failure to state a cause of action. The court said in part:

“Petitioner’s allegations may be summarized as follows: Respondent required her, a 22 year old telegraph operator to work alone between 11:30 P. M. and 7:30 A. M. in a one-room frame building situated in an isolated part of respondent’s railroad yards in Memphis. Though respondent had reason to know the yards were frequented by dangerous characters, he failed to exercise reasonable care to light the building .and its surroundings or to guard or patrol it in any way. Petitioner’s duties were to receive and deliver messages to men operating trains in the yard. In order for the trainmen to get the messages, it was necessary for them to come to the building at irregular intervals throughout the night and it was petitioner’s duty to admit them when they knocked. Because there were no windows in the building’s single door or on the side of the building in which the door was located, petitioner could identify persons seeking entrance only by unlocking and opening the door. About 1:30 A. M. on the night of her injury petitioner responded to a knock, thinking that some of the respondent’s trainmen were seeking admission. She opened the door and before she could close it a man entered and beat her with a large piece of iron, seriously and permanently injuring her.

In support his motion for summary judgment, respondent alleged and petitioner did not deny, that the assailant was not an employee of respondent and that the attack was criminal. We are of the opinion that the allegations of the complaint, if supported by evidence, will warrant submission to a jury. Petitioner alleged in effect that respondent was aware of the physical conditions which created a likelihood that a young woman performing the duties required of petitioner would suffer just such an injury as was in fact inflicted upon her. That the foreseeable danger was from intentional or criminal misconduct, is irrelevant; respondent nonetheless had a duty to make reasonable provision against it. Breach of that duty would be negligence and we cannot say as a matter of law that petitioner’s injury did not result at least in part from such negligence.”

When the case was remanded to the district court, the jury returned a verdict for plaintiff in the sum of $7500.00. The appellee entered a motion for judgment notwithstanding the verdict, which the court sustained and dismissed the suit. An appeal was had again to the United States Circuit Court of Appeals, Sixth District, which reversed the district court.

It is obvious, we think, that there is no analogy between the facts of Lillie v. Thompson, and the present case. But is there analogy in principle? We think not.

In the second appeal in the Lillie case, the court of appeals in reversing the second judgment of the district court, stated as follows:

“The -gravaman of her claim (Lillie) was that appellee ordered her to a place of work which they knew, or by the exercise of reasonable care, should have known to have been unsafe and without taking reasonable care for her protection.”

The second paragraph of the syllabus (173 Fed. 2d, 481) is as follows:

“Evidence that railroad superintendent placed female telegraph operator for work at a place which by exercise of reasonable prudence he should have known as one of peculiar hazard for a female employee, and that thereafter a negro not employed by railroad criminally attacked the operator, authorized recovery by operator from railroad under Federal Employers Liability Act, for injuries which she sustained. Fed. Employees Liab. Act. Sec. 1, 45 U. S. C. A. 51.” (Emphasis ours.)

We think that the emphasis in the Lillie case is placed, first, upon the fact that plaintiff was a young girl 22 years of age who was criminally attacked under conditions which created a peculiar hazard for a female employee, and second, the fact of the physical condition and location of the building in which she was obliged to work, and third, the fact that her working hours were required to be between 11:30 P. M. and 7:30 A. M., and fourth, in a place which was infested by “thieves, tramps, hoboes and other trespassers.” The gist of the decision of the Supreme Court and later the Circuit Court of Appeals on the second appeal, is that by the exercise of reasonable prudence, Thompson, the trustee of the railroad company, should have known the dangers inherent in such a peculiar situation.

The doctrine of the Lillie case must, we think, have limited application to cases of a similar factual nature. We cannot agree with the contention of plaintiff that on principle the same issues are involved in that case as in the instant case.

We are further of the opinion that the decision of the Supreme Court in the Lillie case has not repudiated, either expressly or impliedly, the doctrine of Davis v. .Green and following cases of factual analogy.

We find our conclusion in this respect to be in harmony with the case of Schaef v. Minn. St. P. & S. S. M. Railroad et al, decided by the Circuit Court of Appeals 8th District, June 18, 1947, 162 Fed. (2d) 110, syllabus 4 of which is as follows:

“Where complaint of railroad conductor against railroad under Federal Employers Liability Act, for injuries sustained as a result of alleged unprovoked attack by a railroad engineer alleged that engineer had been quarrelsome and vicious person for many years prior to assault and that railroad had knowledge thereof, or by exercise of ordinary care should have known of it and that railroad ratified acts of engineer by-retaining him in service, no genuine issue of negligence was-stated in complaint such as would preclude summary judgment for railroad. Federal Rules of Civil Procedure Rule 12, 56, 28 U. S. C. A. following Sec. 723-c; Fed. Employ. Liab. Act. Sec. 1, 45 U. S. C. A. Sec. 51.”

Neither do we think that the seamen’s cases under the-Jones Act cited by the plaintiff have application here. We think it unnecessary to review these cases at length as this-proposition has been passed upon many times before in decisions of Federal Courts.

As stated in the case of Sheaf v. Minn. St. P. S. S. M. Railroad, 162 Fed. 2d, 110 at page 114:

“The appellant argues, however, that the Davis and South-well cases, supra, have been overruled in effect by a more-liberal construction of the Act by the Supreme Court and the-courts of appeal in such cases as Jamison v. Encarnacion, 281 U. S. 635, 50 S. Ct. 440, 74 L. Ed. 1082; Baltimore & Phila. Steamboat Co. v. Norton, 284 U. S. 408, 52 S. Ct. 187, 76 L. Ed. 366; and Koehler v. Presque Isle Transp. Co. 2 Cir. 141 F. 2d, 490.

These cases are all distinguishable from the Davis and South-well and other like cases, in that they arose among seamen employed on vessels operating upon navigable waters. In such cases the duties of the employer to its employees are-different, giving rise to a broader or more liberal construction of the statutes applicable. This fact was pointed out by Mr. Justice Stone in Socony-Vacuum Oil Co. v. Smith, 305 U. S. 424, 430, 431, 59 S. Ct. 262, 266, 83 L. Ed. 265, wherein he said:—

‘The seaman, while on his vessel, is subject to the rigorous-discipline of the sea and has little opportunity to appeal, to the protection from abuse of power which the law makes-readily available to the landsman. His complaints to superior officers of unsafe working conditions not infrequently provoke-harsh treatment. * * * withal, seamen are the wards of the-admiralty, whose traditional policy it has been to avoid, within reasonable limits, the application of rules of common law which would affect them harshly because of the special circumstances attending their calling. (Citations) It is for this-reason that remedial legislation for the benefit and protection of seamen has been liberally construed' to attain that-end.’ ”

Neither do we think that the doctrine of respondent superior .applies as contended by plaintiff. This could only be upon the theory that the assault was committed by Johnson “in furtherance of the master’s business.” We have hereinbefore stated that under the most liberal construction of the evidence the attack in question cannot be considered “in furtherance of the employer’s business.”

This is not a case of first impression under federal court decisions. Therefore we are obliged to follow the decisions of the Supreme Court of the United States in eases hereinbefore cited interpreting liability under the Federal Employers Liability Act. The later analogous, decisions of Federal Circuit Courts of Appeals which are unreversed and unmodified are likewise persuasive of this view.

We conclude, therefore, that the judgment of the Court of Common Pleas must be affirmed.

Judgment affirmed. Exceptions. Order see journal.

SKEEL, PJ, concurs, McNAMEE J, concurs in judgment.


author: By BLYTHIN, J.

text:
    HAROLD FURNACE CO., Plaintiff, v. JUNGLAS, Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 578588.
    Decided April 4, 1949.
    J. E. Gerity, Cleveland, for plaintiff.
    Winer &■ Winer, for defendant.
   MEMORANDUM OPINION

By BLYTHIN, J.

The parties hereto waived trial by jury and submitted the issue in this cause to the court.

For some time prior to a date about December 16, 1946 defendant Junglas had been employed by the plaintiff Furnace-Company as a mechanic on an hourly rate pay-basis. About, the last mentioned date this employment was terminated and Junglas became a salesman of furnaces and parts on a. commission basis. Under date of January 1, 1947 the salesman-on-commission employment arrangement was set forth in a written instrument designated as a “Salesman Contract”' signed by the employee, and also by the Sales Manager on behalf of the employer, the Sales Manager being also the-President of the Company. The conditions of employment and. scale of commissions to be paid are quite fully set forth in the contract and it is quite clear that the defendant operated under such contract until a date about February 8, 1947. His-earned commissions during that period were $35.35. It is. agreed that Junglas transferred back to hourly pay basis on February 8, 1947 and ceased his services as a salesman under the Salesman Contract. He remained in the company’s employ until April 25, 1947 but the controversy involved in this; cause is confirmed to the period of December 16, 1946 to February 8, 1947 and to operations under the salesman commission-basis arrangement.

At or about the time of entering into the Salesman Contract arrangement the parties had a conversation at which the-Furnace Company agreed to give to Junglas a weekly “advance” or “draw” of $36.00. This was later increased to $40.00, plus one-half of the commissions earned within the week. Such advances were made to the extent of $313.69. Deducting therefrom the $35.35 amount of earned commissions we arrive at a net “advance” or “draw” over “earned commissions” of $278.34 as of February 8, 1947, for which amount, with interest, the court would render judgment in this cause if the plaintiff was found to have a right to recover any amount. Such judgment, this date, would be in the sum of $314.34.

In its petition the plaintiff alleges:

“* * * and in accordance with the verbal and written agreements between plaintiff and defendant that defendant drew the amount of Three Hundred and Thirteen Dollars and Sixty Nine Cents ($313.69) as a drawing account to be applied against his commissions, and that defendant agreed to refund to plaintiff any amount in which said drawing account exceeded commissions due to defendant.”

This allegation is traversed by defendant and the claim of .agreement to refund the excess of advances over earned ■ commissions becomes the real issue to be decided.

The “Salesman Contract” is the only written agreement between the parties and it fails to mention either “advances” or “draws” and, naturally mentions no obligation on the part of Junglas to repay any excess advances over earned commissions. The “advance” or “draw” arrangement, whatever its terms, was in the nature of a supplement to the original contract and was entirely verbal. During the period of the employment in issue the defendant was paid by check and it is clear that the check stub, in each case, had thereon the word “advance” or the word “draw” and that both parties distinctly understood the amounts paid to be chargeable against commissions under any and all conditions.

There being no written agreement between the parties concerning repayment to plaintiff, it becomes incumbent upon plaintiff to establish a verbal agreement as a basis of recovery in this cause. An implied agreement is held to be sufficient in cases of this kind but the petition in this cause :bases the claim of plaintiff on “written and verbal agreements”.

The court has been unable to find any reported cases in Ohio dealing with the right to recover in such cases but authorities and courts in other jurisdictions have spoken on the subject.

Labatt’s Master and Servant. 2nd Vol. 2nd Ed. No. 461. Pgs. 1358 and 1359.

“On the other hand, such contracts do not, in the absence of an express stipulation to that effect, impose upon the employee a personal obligation to return the sums advanced to or withdrawn by him in the event of his not earning enough in commissions to offset them. Accordingly if the amount of the advances or withdrawals exceeds the amount of the commissions earned by him, an action will not lie against ;him to recover the excess.”

57 A. L. R. 31.

Richmond Dry Goods Co. v. Wilson 141 S. E. 876. (W. Va.. Supreme Court of Appeals)

Syll:

“A contract of a salesman, employed on a commission basis,, provided that certain advances be made by the employer, which should be charged against his earned commissions. The-contract did not make the salesman personally responsible-for the advances, either directly or by implication. The commissions earned did not equal the amount advanced. Held: the advances are not loans, and the difference between them, and the earned commissions cannot be recovered from the-salesman.”

In the Annotation following, Page 33, the subject is treated: and authorities cited, and the general rule is stated as follows:

“The rule to be deduced from the authorities is that where-the contract of employment provides for advances to the employee, which are to be charged to and deducted from the-commissions agreed by the employer to be paid to the employee, as the same may accrue, the employer cannot, in the absence of either an express or implied agreement or promise-to repay any excess of advances over the commissions earned,, recover from the employee such excess.”

Nelson v. American Business Bureau. 214 Ill. App. 432. Syll. 2.

“In the absence of an express provision, in a contract of employment covering sales to be made on a commission basis, obligating the employee to pay back advances made in anticipation of commissions to be earned, or of words showing that such employee assumes personal liability to repay the same, such advancements are not to be deemed loans and the-employee does not become personally liable to repay the-same, although he fails to earn the expected commissions.”

Arbaugh v. Shockney. 34 Ind. App. 269.

Syll. 5.

“Where plaintiff contracted with defendant for certain work, and to enable defendant to give his entire time and energy to such work agreed to advance him not to exceed $15.00 per week, payable out of commissions to become due defendant, it being agreed that defendant should remain in plaintiff’s employ at plaintiff’s option, so long as defendant was “in debt” to him, such contract does not show any obligation upon defendant personally to repay such advancements, but the same must be collected from such commissions, nor does it show any implied promise arising from such terms.”

Anagnosti v. Almy. 252 Mass. 492.

“* * * The contract above described provided that the salesman was ‘to have a drawing account of $100.00 per week, which shall be charged against his portion of said net profits, if any.’ The salesman had drawn $1500.00. The decree of the Superior Court ordered him to repay this to the broker. HELD: that the decree in this respect must be reversed, as his right to retain what he drew was not dependent upon net profits afterwards being shown.”

Weinstein-Goodkind Inc. v. Donovan. 266 N. Y. Supp. 670.

Syll. 1.

“Advances by employer in excess of commissions earned by employee are not recoverable by employer, in absence of agreement to that effect, express or implied.”

The documentary evidence presented on trial of this cause leaves the parties with an employer-employee relationship on a commission basis and with clear evidence of “advances” or “draws” against commissions, which advances were in excess of such commissions, as already herein indicated. Only three persons testified — the defendant, on his own behalf; and one Frank Panza, an employee and' one Walter P. Seidl, Office Manager, on behalf of the plaintiff. Defendant’s testimony discloses no promise to repay. He asserted that he understood the “advance” payments to be “guaranteed.” Panza’s testimony dealt with details of work only.

Seidl did not hire Junglas- nor is there evidence that he was present at the hiring. He testified that all salesmen were hired under the same kind of contract as the one signed by Junglas and that they were paid at the same time and in the same manner. He testified that his records disclosed, in part, that:

“For the week ending December 21, 1946 Junglas was employed in the capacity of a furnace inspector in the sales department on the basis of a draw or advance of $36 a week plus one-half of the commissions that he earned.”

Asked if he explained to Junglas what was meant by advancement, Seidl testified:

“No. I told him the same as I told anyone else, that advance means just exactly what it says. It is an advance towards commissions earned, and our policy has been with him as well as with anyone else that the basis of compensation may be a certain amount per week as a draw or advance but on the final computation of the account it is based on the amount of money he has received in wages and salary against the amount of commissions he has earned. It is strictly a commission set-up whereby the commissions earned are computed against the money he has received and the balance would indicate whether or not the man had money coming or whether he was in the hole with the company.”

The record is totally lacking in evidence of any promise or agreement by or with Junglas that he was to be obligated to repay any amount of advances over earned commissions. The record is devoid of any evidence of conduct from which such an obligation could be implied. The court must therefore hold that plaintiff cannot prevail in this cause. Entry will be made herein, as of this date, as follows:

“Jury having been waived, trial had to court. Finding and judgment for defendant. Petition of plaintiff is dismissed at its costs. No record. Plaintiff excepts.”


text:
    ADAMS et, Plaintiffs-Appellees, v. SNOUFFER et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4239.
    Decided June 9, 1949.

      Bricker, Marburger, Evatt & Barton, Columbus, for plaintiffsappellees.
    Robinson & Robinson, Columbus, for defendants-appellants.
   OPINION

By HORNBECK, J.

The appeal is noted and has proceeded as upon questions of law and fact. However, assignments of error, which are appropriate only in appeals on questions of law, have also been filed. We do not consider the assignments of error as such but many of the fourteen grounds set out in the assignments of error are made the subject of consideration and argument in the briefs of the parties. In the main, we will consider them generally, and only specifically in the few instances where required.

The judgment to which the appeal is directed is an injunction against the operation of what the trial court found to-be a nuisance in the conduct by the defendants of a stone quarry at the place described in the petition.

As the appeal is on questions of law and fact, it becomes our obligation to decide the issues de novo and to consider the testimony of the witnesses and their credibility as would a court of first instance.

In the Common Pleas Court the trial judge made separate findings of facts and conclusions of law. Appellants insist that the findings of fact are not supported and therefore the conclusions of law and the judgment are unsound. We have given close attention to the factual development because it is vital to the validity of any judgment. It is our conclusion that in all the material and controlling aspects the fourteen findings of fact are supported by the record and to that extent we reach the same conclusion as the trial judge in the Common Pleas Court. We are likewise of opinion that the facts as found sustain the conclusions of law and the judgment.

The question presented is twofold, namely, are the operations of the quarry by defendants, as conducted and to be conducted, if not restrained, a nuisance? and, if so, will the damage resulting to the plaintiffs be irreparable? That is to say, such as may not be compensated in money damages.

The first question is answered in the affirmative by the findings of fact.

It is urged by the appellants that the operation of a quarry is a public necessity. This may be conceded and if it further appeared that the product of the quarry could not be produced practically at any other location, another and different question would be presented than is found here. It neither appears that there is a scarcity of the material quarried by the defendant company nor that it is not available in other localities where it is practical to take it. The principle of law urged by defendants was not explored. Indeed objection was interposed to a question the answer to which would in probability have developed the issue. Brede v. Minn. Crushed Stone Company, 6 A. L. R. 1092.

Much of the briefs is devoted to the issue whether or not the plaintiffs suffered the injury to their properties and the inconvenience, annoyance and distress to their personal comfort in the use of their residences as contended and testified by several of them. On the one hand, the facts are developed by specific occurrences observed and noted by the plaintiffs or their witnesses. On the other, the testimony comes, in the main, from an expert and a vice president of defendant company. Manifestly, expert testimony coming from a well-qualified source, as here, arrests the attention of the triers of the facts. But when conclusions are predicated largely upon theory and they are at variance with well substantiated facts, the former must give way to the latter. This is the .situation as developed.

Inasmuch as many of the operations incident to the conduct of defendant company’s business were carried on after the suit was instituted and the company put on notice, it is probable that it carried on its blasting, crushing of stone, movement of trucks, creation and dissemination of dust in a careful manner and to the least inconvenience, annoyance and distress to the plaintiffs. The fact that, notwithstanding this care, the plaintiffs have been seriously distressed in their everyday living by what must be termed very normal operations of the quarry, is convincing that the condition will generally get no better and because of a purpose to greatly enlarge the operations will continue to cause plaintiffs physical discomfort and property damage.

But it is urged that even though it be found that the operation of the business is a nuisance, it does not appear that the plaintiffs may not be compensated in money for any damage that they may suffer. To bar equitable relief the remedy at law must be full and adequate. It must be as practicable and as efficient to attain the ends of justice and its prompt administration as the remedy in equity. Salem Iron Company v. Hyland, 74 Oh St 160. Although the mere diminution in the value of property without irreparable mischief, will not authorize the granting of an injunction, Hassinger v. Kramer, 28 Oh Ap 449, a court of equity will interfere by injunction to stay any proceedings which go to the immediate, or tend to the ultimate destruction of property, or which make it less valuable or comfortable for use of the occupants. Perkins v. Rogg, 11 O. D. Rep. 585.

The result of the nuisance to the normal use and enjoyment of the properties of the plaintiffs is such that they, as persons of normal sensibilities, cannot continue to live in their homes with that assurance of reasonable quiet and comfort to which they are entitled and which they would enjoy but for the invasion of their rights by the defendants. It is this disturbance of their right of normal living in the community in which they reside which has been invaded and which is not susceptible of measurement in money damages. Such situations have been frequently recognized by courts of equity and remedies accorded. Jones v. Kelly Trust Com pany, 18 S. W. (2d) 356; Landeman v. Lamb Construction Company, 297 S. W. 184, Stall v. Hillman, 16 O. N. P. N. S. 410; Hamilton Corp. v. Julian, et al. (Md.) 7 A. L. R. 746, Krocker v. Westmoreland Planing Mill Co. (Pa.) 23 A. L. R. 1404.

Prom the evidence it is established that the defendant company has opened up quarrying operations on its 134 acres of land two and one-half miles north of Dublin, which operations have a frontage of about 330 feet, extending north and south. The surface of the land was first stripped and blasting and removal of rock has been conducted so that the quarry is now about 27 feet deep. Operations were begun about July 1, 1947. The equipment consisted of a steam shovel, stone crusher, well drill, eight or ten one and one-half ton trucks. The output of the quarry is stone of varying sizes, from 5/30 of an inch up to 4 inches. It is proposed to increase the output which will require more machinery of the same kind as now on the ground. It is also intended to produce agricultural meal, a very fine limestone product. Not all of the various sizes of rock were prepared at the quarry, about 400 tons a day, the stone being trucked to another quarry for the completion of this operation. Only one big primary crusher producing rock from four inches down, with dust in it, was on the site. Preparations for blasting are made by the drilling of holes approximately six inches in diameter to the depth of approximately 27 feet. The dynamite is placed in these holes and discharged. At the time of trial there had been seven primary blasts, beginning in July and ending in December. The first of 12 holes discharged 1450 lbs. of dynamite, the second of 16 holes discharged 2100 lbs., the third of 17 holes discharged 2500 lbs., the fourth of 10 holes discharged 1350 lbs., the fifth of 10 holes discharged 1250 lbs., the sixth of 10 holes discharged 950 lbs., and the seventh of 18 holes discharging 3450 lbs. of dynamite. Numerous other secondary discharges were also made. The quarry was in operation every weekday from about 6:30 in the morning until 5:00 o’clock in the afternoon. Plaintiffs’ residences were at varying distances from the quarry, the most remote about a mile away. The nearest was Prambes, 610 feet. This was on the east side of the Scioto River. The quarry was on the west side. All of the operations were for the greater part of the year in full view from the homes of these plaintiffs. Plaintiffs acquired and held their lands with no notice of any purpose of defendant to locate and operate a quarry where placed until a short time before the institution of this suit. The blasts produced by the discharge of the dynamite produced marked concussion in the residences of several of the plaintiffs, causing windows to rattle, shaking mirrors and pictures on the walls, and felt personally, causing plaster to crack and to fall from the ceiling of one of the homes, a roof to leak in another, frightening a child in each of two of the families, one of a plaintiff, the other of a witness, not a party, who lived more than a thousand feet from the quarry, interfering with the sleep and rest of some of the parties and preventing conversation in a normal tone of voice. The uncertainty as to the time when the blasting might be expected added to the uneasiness and distress which followed the actual discharges. The moving and grinding of trucks in low gear up a 10% grade, the continuous drilling of holes in the rock when blasting was to be done, the detonation of the dynamite and the crushing of the stone is noisome and disturbing. A fine dust was produced by some of the operations, probably the crushing of the stone, which was deposited in considerable quantity about the premises and over the furniture and woodwork of the homes of the plaintiffs.

In Hamilton Corporation v. Julian, et al. (Md.) 7 A. L. R. 746, the court supported the overruling of a demurrer to a petition seeking an injunction against the proposed erection of a bowling alley and a picture show in a residential district adjoining the residences of plaintiffs. At page 749, the Judge writing the opinion said:

“The real question in all such cases, as stated by the authorities, is whether the nuisance complained of will or does produce such a condition of things as, in the judgment of reasonable men, is actually productive of actual physical discomfort to persons of ordinary sensibilities and of ordinary tastes and habits, and as, in view of the circumstances of the case, is unreasonable and in derogation of the rights of the party.”

This principle is carried into the syllabus. We believe it to be a fair test here, which applied to the facts developed supports the granting of the injunction.

In Krocker v. Westmoreland Planing Mill Company, (Pa.) 23 A. L. R. 1404, an injunction was granted in favor of plaintiffs living in a residential neighborhood against the operation of a saw and planing mill because of excessive noise, manner in which a large amount of lumber was dropped from wagons or unloaded, shavings, sawdust and smoke from the mill, seriously interfering with plaintiffs and their families in the comfort and enjoyment of their homes.

An injunction was granted against the operation of an amusement park in Edmunds v. Duff, et al., (Pa.) 33 A. L. R. 719, because enjoyment of plaintiffs’ homes would be interfered with by noises, attraction of large crowds or the operation of a business or industry tending to render the immediate-community a less desirable place in which to live. It was, there said that one may not commit acts on his own‘premises-calculated to interfere with the reasonable enjoyment of: others-of their homes.

The plaintiffs proceed upon the theory that their homes are-in a residential section and therefore the relief sought is peculiarly applicable. It is' the contention of the appellants, that the section involved is not residential but open country. They point to the fact that the residences are widely separated, some are of little value; that the terrain in the vicinity of the "properties involved is rough and rocky and, in all, the-presence of the quarry, because of these physical conditions,, and particularly because of its distance from the homes of; the plaintiffs, is not a nuisance. It is true that the district, in which plaintiffs’ homes are located is not closely built up but the parcels of land in which they live have been and: are used exclusively for residential purposes. The section involved may be designated as the highest type of exclusive-residential territory. Manifestly, it is a modern development, where those who can afford it and care for that manner of living move where they may have spacious grounds upon which their homes are built and the opportunity for rustic environment where in part, at least, natural beauty is found in a. somewhat wild and uncultivated state.

Appellants cite, comment and rely upon Antonik v. Chamberlain, 81 Oh Ap 465. In this case the court refused to grant an injunction against defendants’ use of their premises as. a privately owned airport. The plaintiffs’ claim was “that the operation of an airport upon defendants’ property would, create a nuisance to all of the plaintiffs, and would further-result necessarily in repeated trespasses upon plaintiffs’ properties by airplanes using defendants’ property. * * * That by-reason of the nuisance and trespasses the plaintiffs would be-seriously interfered with in the peaceful enjoyment of their homes, and that the value of their properties would be substantially impaired and they would suffer irreparable injury”. At the outset the court commented on the fact that the evidence as shown there, as distinguished from that developed in the Common Pleas Court, was that the new plan of defendant would almost,, if not entirely, eliminate flying over-the building of parties-plaintiffs. The defendants owned 450 acres of vacant land west of the corporation limits of the city of Akron, which land was unrestricted and unzoned. The court rested its opinion, in part, upon the great concern to the public if the contemplated airport was abated or its establishment prevented and whether or not the use contemplated was reasonable under all the circumstances and concluded that there was not an appreciable, substantial, tangible injury resulting in actual, material, physical discomfort and not merely a tendency to injure. In other words, the court at least leaned to the concept that much of the anticipated injuries resulting to the plaintiffs was fanciful rather than real. The distinction is manifest between this and the cited case upon the determinative issue of the actual, material, physical discomfort suffered by the respective plaintiffs. As early as Goodall v. Crofton, 33 Oh St 271, an injunction suit, the court directed attention to the axiom that each case is determined on its own facts.

It would serve no good purpose to discuss the many factual issues as well as legal questions well considered in the briefs of the parties. It is urged that a motion and a demurrer to the petition should be sustained. We hold otherwise.

It is urged by the appellants that although there are thirteen parties-plaintiff, but three testified and that, inasmuch as they did not take the stand to urge their own cause, they should not be granted relief. Of course, this does not follow if the proof is forthcoming as to their cause of action from any source. Mr. Scott Van Etten, husband of a plaintiff, who testified that his home was 2600 feet north of the quarry, which distance is somewhat greater than that, probably 2745 feet, also testified that the noise and excessive vibrations from the 25 or 30 blasts that he had heard were startling and annoyed him greatly. Beyond this distance, the record is silent as to any injurious effects caused by the operation of the quarry. As to those plaintiffs who live at a greater distance than 2745 feet, there is no proof either of facts supporting injunctive relief or that annoyance, if any, suffered by them is not compensable in money damages. We, therefore, hold that as to those plaintiffs at a greater distance than 2745 feet from the quarry injunctive relief should not be granted, not because they did not testify but because the proof is not forthcoming from any source to support such relief. The plaintiffs who come under this plassification are Ray E. Cochran, Ward B. Perley, Pearl B. Morton and Andre Gelpi.

The judgment in this court will be for the plaintiffs other than those who live at a greater distance than 2745 feet from the quarry, as prayed in the petition and supplemental petition.

MILLER, PJ, and WISEMAN, J, concur.


author: By DOYLE. J.

text:
    FRIEDMAN, Estate of, In Re: CLEVELAND TRUST CO. et., Plaintiff-Appellants, v. STATE et, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21268.
    Decided July 18, 1949.

      Mooney, Hahn, Loeser, Keough & Freedheim, Cleveland, for plaintiff - appellants.
    Hugh S. Jenkins, Atty. Geni., Joseph S. Gill, Asst. Atty. Geni., Columbus, for defendant-appellee.
   OPINION

By DOYLE. J.

The Cleveland Trust Company, as Executor of the Estate of Joseph Friedman, deceased, Lester I. Friedman and Dena Friedman Stone, son and daughter of the decedent, filed exceptions to the ruling of the probate court of Cuyahoga County that (1) Howard K, Friedman adopted son of the decedent’s son (Lester I. Friedman) must be treated for the purpose of fixing the inheritance tax payable because of his succession under the provisions of a will and trust agreement as “a succession of the fourth class” under the provisions of §§5334 and 5335 GC; and (2) that the provision in the trust instrument made for the decedent’s son, Lester I. Friedman, is taxable in its entirety as a succession of his adopted son, Howard K. Friedman.

The exceptions having been overruled, this appeal followed which seeks a reversal of the court’s judgment.

It is here claimed that:

“1. Howard K. Friedman, being a son by adoption of the decedent’s son, Lester I. Friedman, is ‘a successor of the second class’ under §§5334 and 5335 GC as a ‘lineal descendant’ of the decedent, and that his succession is to be taxed accordingly, and

That the provisions made for Lester I. Friedman is taxable as a life estate of the said Lester I. Friedman son of the decedent, and a ‘successor of the second class’ with remainder over to Howard K. Friedman, likewise a ‘successor of the second class.’ ”

It appears that Joseph Friedman died testate on November 21, 1945. He was survived by his daughter, Dena Friedman Stone, by his son Lester I. Friedman and by Howard K. Friedman, the adopted son of Lester I. Friedman. Under his will, he left the residue of his estate to The Cleveland Trust Company as trustee of a trust inter vivos which he had created. By the terms of this trust instrument, he treated the corpus .as if it were composed of two equal shares, one to be held for the benefit of his son and one for the benefit of his daughter, during their respective lifetimes. However, insofar as the son’s share is concerned, the trustee was given discretionary powers to award the income (and invade the principal, if necessary) to the son or to certain others as it saw fit,’subject, however, to the following recommendations for preference set forth in the instrument:

“I hereby direct and provide that the trustee shall, at its discretion and preferably upon consultation with my daughter * * * during her lifetime, so use, allocate and control all such funds * * * to accomplish the following objects in the order of preference herein stated:

(1) To provide for the education and support of Howard K. Friedman, the adopted son of my son;

(2) To the support of the wife of my said son so long as she shall remain the wife or widow of my said son, and/or be extending to my said adopted grandson, Howard K. Friedman, the proper parental care and direction;

(3) To the support of my son, Lester I. Friedman * *

The Probate Court in assessing the tax at the highest possible rate (§5343 GC) assumed that the income derived from one of the shares will be paid to decedent’s daughter during her lifetime and that the income derived from the other share will be allocated entirely in the trustee’s discretion to the education and support of the adopted child (born Sept. 4, 1933).

The trust agreement further provided that:

“after the decease of my said son or my said daughter, the share heretofore held for such end shall be distributed to the then surviving lineal descendant of such one, per stirpes, including as a lineal descendant any person legally adopted by such one. In the event of the decease of either my son or my said daughter without leaving any descendant surviving him or her, the share held for such one shall be added to-the share held for my other child and treated in every manner as herein provided for such other child’s share. * * *."

In connection with the above, the probate court further found that both of the decedent’s children, Dena and Lester, will die without leaving lineal descendants; that both of decedent’s children will be survived by the adopted child, Howard K. Friedman, who will succeed to all of the remainder of the trust estate.

In view of the foregoing and the statutes of this state which we are here called upon to apply, was the probate court in error in holding that the adopted child is a successor of the fourth class and that the share of Lester I. Friedman is taxable in its entirety as a succession of the adopted child of the said Lester?

One of the keys to the solution of our problem is to be found in §5343 GC a part of which is:

“When, upon any succession, the rights, interests, or estates of the successors are dependent upon contingencies or conditions whereby they may be wholly or in part created, defeated, extended or abridged, a tax shall be imposed upon such successions at the highest rate which, on the happening of any such contingencies or conditions would be possible under the provisions of this subdivision of this chapter, and such taxes shall be due and payable forthwith out of the property passing, and the Probate Court shall enter a temporary order determining the amount of such taxes in accordance with this section * *

The remainder of this section provides for a “refunder" under certain circumstances which, however, is not of importance to our immediate questions.

In view of this statute, and its application to the factual situation presented, we find no error in the ruling of the Probate Court, in refusing to treat for tax purposes a life estate in the natural son, Lester, and after calculating his expectancy under the mortality tables, tax such estate with a $3,500.00 exemption, on the basis of the percentages applicable to a second class succession under §5334 GC and then to tax the remainder as a succession of his adopted son, Howard.

On the contrary, we find that the probate court, in the exercise of its judicial powers, properly held that the share of the estate allocated for the benefit of the natural son, Lester, should be taxed in its entirety as a succession of the adopted child, Howard, who may receive the entire income during the lifetime of his adoptive father, and at' whose death, the entire remainder will pass to the said Howard.

This ruling we find to be consonant with §5343 GC supra.

Proceeding now to the next question, i. e., whether the succession of the adopted child, Howard, should be taxed at the higher rates under the fourth class in the statutes, we look to the adoption statute and its effect, if any, on the taxing statutes.

Under §5334 GC (tax statute) we find the following provision:

“1. When the property passes to or for the use of the wife or a child of the decedent who is a minor at the death of the decedent, the exemption shall be five thousand dollars.

(2) When the property passes to or for the use of the father, mother, husband, adult child or other lineal descendant of the decedent, or an adopted child, or person recognized by the decedent as a legal heir under the provisions of a Statute of this or any other state or country, or the lineal descendants thereof, or a lineal descendant of an adopted child, the exemption shall be three thousand, five hundred dollars.

(3) When the property passes to or for the use of a brother or sister, niece, nephew, the wife or widow of a son, the husband of a daughter qf the decedent, or to any child to whom the decedent, for not less than ten years prior to the succession stood in the mutually acknowledged relation of a parent, the exemption shall be five hundred dollars.”

Under §5335 GC, is found the rates of taxation. It provides for certain percentages of tax “on successions passing to any person in the first and second classifications” set forth in the preceding paragraph. It then provides for a higher rate “on successions passing to any person” falling within the third classification, supra. The statute then provides for an even higher rate on all successions to persons other than those hereinbefore mentioned, i. e., under 1, 2, and 3.

This last class, designated by the court as the fourth class, is the one into which the adopted child was placed and his. succession, with no exemption, was accordingly taxed at the-highest rate.

The statute specifically places an adopted child of a decedent, in the second class. Our question is whether an adopted child of a son of a decedent comes within the same second class as a lineal descendant.

So much of §10512-23 GC as affects our problem is in the following language.

“* * * and the child (adopted child) shall be invested, with every legal right, privilege, obligation and relation in. respect to education, maintenance and the rights of inheritance to real estate or to the distribution of personal estate on the death of such adopting parent or parents, as if born to them in lawful wedlock; provided, such child shall not. be capable of inheriting property expressly limited to the heirs of the body of the adopting parent or parents; but shall be capable of inheriting property expressly limited by will or by operation of law to the child or children, heir or heirs at law, or next of kin, of the adopting parent or parents, or to a class including any of the foregoing * *

This language of the Code gives a legally adopted child the right to inherit property not only from, but through, the adopting parent. It gives such child a status not held prior to the enactment of the amendment in 1932. And it seems apparent that the legislative intent was to give the adopted child every right and privilege of inheritance accorded a natural child, excepting only the inheritance of property “expressly limited to the heirs of the body of the adopting parent or parents.” It further puts such child in a direct line of ancestry the same as if it had been born in lawful wedlock. It makes such child a lineal descendant. And, while the questions at issue in the cases cited below are not the questions before us here, we believe that they do develop the thought here expressed. The statute must be interpreted with the degree of liberality essential to the attainment of the intent of the legislature.

Flynn v. Bredbeck, 147 Oh St 49; White v. Meyer, 66 Oh Ap 549.

See also:

Blackwell v. Bowman, 150 Oh St 34.

Reverting now to the tax statutes, we find that they impose a tax on successions of persons who come within certain classifications.

The second classification includes lineal descendants. We have no thought to impair the authority of the legislature to create legal relationships providing for the devolution of property. Nor is it our purpose judicially to legislate out of a class one who is so definitely placed therein.

It is the contention of the appellee that “the 1932 amendment of the adoption statute increased the rights of an adopted child under the anti-lapse statute and did nothing more.”

We believe that this claim is untenable. The broad, sweeping language of the statute disproves it. Had the legislature intended such a restriction, a few simple words could have expressed it.

In concluding this phase of the case, it is our conclusion that the tax statutes and the adoption, statutes are in pari materia; the adopted child is by virtue of the statutes placed in the second class and there -must be taxed.

The judgment is reversed and the cause is remanded for further proceedings according to law. Exceptions. Order see journal.

SKEEL, PJ, HURD, J, concur.