author: By METCALF, J. McCURDY, PJ,

text:
    SAMS, Plaintiff-Appellee, v. HUGHES, Defendant-Appellant.
    Ohio Appeals, Fourth District, Highland County.
    No. 119.
    Decided March 23, 1950.

      Harold A. Predmore, Hillsboro, Rendigs & Fry, Cincinnati, for appellee.
    Hugh H. Altick of Matthews & Altick, Dayton, Eugene A. Hahne, Hillsboro, for appellant.
   OPINION

By METCALF, J.

This appeal grows out of an action brought by Donald C. •Sams, father of a minor daughter six years of age to recover for medical, hospital, nursing and other expenses incurred by him by reason of injuries sustained by said minor as a result of being struck by an automobile, owned by the defendant-appellant, Ferris L. Hughes, but which was being •driven by Edward Barrett, a garage and filling station operator, who was delivering the automobile to defendant’s residence •after the same had been repaired in a garage operated jointly by Barrett and one Woodrow Reno.

The jury found in favor of the plaintiff and returned a ■verdict against the defendant in the sum of $8,772.00, and it is from this verdict and judgment thereon that this appeal stands on questions of law. While there are six separate assignments of error counsel for both parties agree that the assignments present only two questions of law, there being no dispute of any consequence relative to the facts involved in the instant appeal. These questions are, first, did the trial court err in deciding that the driver of the automobile was the agent of defendant-appellant rather than an independent contractor, in the operation of appellant’s automobile at the time of the accident? Second, did the trial court err in refusing appellant’s Special Charge Number 2? We will dispose of this second question by simply stating that an examination of this Special Charge Number 2, while perhaps not so intended, is confusing in that it throws upon this minor child at least some degree of care, and can easily be interpreted as charging her with being capable of contributory negligence which by reason of her infancy she can not be so charged. It is true it contains the word ‘solely,’ in reference to the cause of such injuries yet, in our opinion, its lack of clarity made mandatory the court’s refusal to give it.

The one important question in this case is whether Barrett, the driver of the car, was at the time of the accident an independent contractor or the servant of the defendant.

The defendant is a farmer residing two and one-half miles south of Hillsboro, Ohio. Edward Barrett was on the 2nd day of May, 1946, the time of the accident involved herein, the proprietor of a filling station with a small garage combined located on North High Street in Hillsboro called the Barrett Service Station. Barrett operated the service station individually but he together with one Woodrow Reno, an automobile mechanic, operated jointly the garage part thereof, Reno making repairs on cars brought there for that purpose. The record indicates that Reno had nothing to do with the filling station part of the business it being operated independently by Barrett.

On the morning of the above date the defendant Hughes brought his automobile to this garage to be repaired; Barrett was not there at the time and the only contact had by the defendant was with Reno.

On the question of the delivery of the car after the completion of the repairs the defendant Hughes testifies that:

“V/hen he (Reno) drove up he asked me if I wanted him to call me when he got it done. I said, you probably won’t get it done today. He said, I will bring it out. Now that was just the words he said, ‘I’ll bring it out.’ I said ‘O.K.’ ”

Mr. Reno testifies:

“Well, say I asked Mr. Hughes if he wanted the car delivered and Mr. Hughes said O.K.”

Reno further testifies that he told his partner Barrett that the automobile was to be delivered, that he had no instructions as to the manner or mode in which the car was to be driven, nor the route over which it was to be driven. That it was customary, with the authority of the owner, in the operation of the Barrett Service Station garage business, to often deliver customers’ automobiles without charge after the repairs were completed and that the same was done as a courtesy on the part of the garage.

The repairs to the automobile were completed by Reno and •■about 12:30 of that day Barrett' drove the automobile from the garage with the purpose of delivering it to the residence of the defendant. Barrett testifies by deposition and states in substance that he chose the route and the manner and mode of driving in the delivering of the automobile to the defendant, Hughes. As he proceeded southwardly on High Street in Hillsboro it struck and injured plaintiff’s daughter who was running westwardly across this street at a point not at an intersection or cross walk.

It should be noted that the defendant moved for a directed verdict at the close of all the evidence, moved for a judgment notwithstanding the verdict, and moved for a new trial, all of which were overruled.

Counsel for both parties joined, since the facts were not in conflict, in asking the court to declare as a matter of law what relationship existed as between the defendant and the driver of the car, Barrett. Under such circumstances it then became the duty of the trial court to charge the jury the result that must follow on application of the law to the facts so established; and, where the question is whether the relation of master and servant or that of independent contractor arises by reason of such facts, the trial court should say to the jury which relation exists; Schickling, an Infant v. The Post Publishing- Company, 115 Oh St 589, 155 N. E. 143. And this the trial court did in its general charge, -when instructing upon the essential elements that the plaintiff must prove the following language.

“1. That the driver of the automobile was acting as defendant’s agent at the time of the accident.
“And now since there is no conflict in the testimony as to that, the Court has found that he was so acting as agent, and, therefore, the principal is liable for any negligence of this agent. That eliminates that issue.”

In determining the correctness of this charge an examination of the rules promulgated by the Supreme Court of Ohio, distinguishing the relationship of master and servant from that of employee and independent contractor, is imperative. In Miller v. Metropolitan Life Ins. Co., 134 Oh St, 289, 12 O. O. 93; 16 N. E. (2nd) 447, the court says on page 291 that:

“The relation of principal and agent or master and servant is distinguished from the relation of employer and independent contractor by the following test: Did the employer retain control, or the right to control, the mode and manner of doing the work contracted for?' If he did, the relation is that of principal and agent or master and servant. If he did not but is interested merely in the ultimate result to be accomplished, the relation is that of employer and independent contractor.”

The Supreme Court in Gillum v. The Industrial Commission, 141 Oh St, 373, 25 O. O. 531, 48 N. E. (2nd) 234 again announced the test in determining whether one is an independent contractor or servant in the second paragraph of the syllabus,, it reads:

“2. Whether one is an independent contractor or in service depends upon the facts of each case. The principal test applied to determine the character of the arrangement is. that if the employer reserves the right to control the manner or means of doing the work, the relation created is that of master and servant, while if the manner or means of doing the work or job is left to one who is responsible to the employer only for the result, an independent contractor relationship is thereby created.”

The defendant’s automobile was delivered to the garage for repair and thereby a contract of bailment was created, one of the implied terms of which is a delivery back of this automobile to its owner. This may be done upon the premises-of the garage by placing the automobile where it is accessible to its owner or at any other place agreed upon by the bailor and bailee. The delivery of this automobile was as much apart of the contract of bailment as the repairs that were to. be made. The garage man was under no obligation, contractual or otherwise,-in the first instance, to offer to return or deliver the automobile to the defendant at his farm home. He volunteered to do this in lieu of telephoning and the owner accepted the offer. That it was without extra remuneration or was done, according to the' testimony of Reno, to accommodate customers when they were able to do so is beside the point. It is strenuously urged by counsel for appellee that there were two separate contracts entered into on the morning this car was delivered for repairs. One of bailment for the purpose of repairing thereby creating the relationship of independent contractor and one to deliver the car to the farm home as the agent or servant of the owner.

It seems to the majority of this court that whichever view is; taken of the arrangement entered into on the morning the defendant brought his car to the garage for repairs, that is whether there were two separate contracts, one of bailment- and one for delivery, or whether as contended by defendant it was one contract, the result will be the same. The terms-of the contract or contracts as completed provide only that the garage should make the repairs and deliver the car to its owner at his home. Only the ‘result’ was agreed to, the repair and the delivery of the car, the details of making delivery, the manner and mode thereof, were left entirely to the discretion of the garage without retention or reservation on the part of Hughes. Reno could deliver this car himself or send another under the contract and he chose to send his partner, Barrett. The features of the trip such as to route, the speed, the stops, if any, were left to the uncontrolled discretion of the garage. It is urged by the plaintiff’s counsel in their brief and oral argument that even though this is so the right to control the same remained with the defendant Hughes. This interpretation is in conflict with the terms of the agreement applying to the delivery of this car. There is no question but what Hughes could have reserved the right to control the manner and mode of delivering this car, the route to be driven and all other incidental features appertaining thereto but this right was not reserved nor provided for in the contract between the defendant and the garage, either express or implied.

The question is not what right of control the defendant Hughes could have provided for in the contract of delivery, but rather is what, if any, right of control did he exercise or reserve in the contract of delivery. The contract is void of any such control or right to control. The reason for this is manifest and can be expressed in no better terms than that in which counsel for plaintiff have set forth in their well written brief, although, of course, it is intended to substantiate their claim of the ‘existence’ of control. This paragraph in the brief of counsel for plaintiff reads:

“The situation was such that there was no need for Hughes to exercise his right of control. He evidently assumed that the car would be driven lawfully and over the most direct route to his home. Having placed his trust in the garage to properly repair his car, it cannot be said to be unusual that he did not delineate in minute detail the exact manner or route over which he wished his car to be driven upon its return to his farm.”

The fact is that not only did the defendant fail to delineate in minute detail but he in no way exercised nor did he reserve the right to exercise any control. The Supreme Court of Wisconsin in the Ederer case, infra, under circumstances similar to the instant appeal gave as one of its reasons for holding that the garage was an independent contractor a similar statement as to why the owner of an automobile has the right to assume that the car would be driven lawfully, i. e., “The risk which the law puts upon the owner of an * * * automobile is, upon principals of justice and good sense, no longer his when he turns his automobile over to a garage, repair shop, or service station for repairs or servicing.” Citing a long list of decisions from various jurisdictions upholding this principal.

We agree with counsel for appellee that the situation was such that there was no need for Hughes to exercise any right of control, but insist that this right is not something that can be pulled out of thin air but its existence must be determined from the contract that creates the relationship. The-words and statements of the defendant and Reno, admitted-by all counsel to be true, yield to no other interpretation than that the manner or mode of doing both the repair job and the delivery of the automobile to defendant’s home thereafter were left solely to the garage and the garage was responsible only to the defendant for the result.

In Rich v. Holmes, et al. the Supreme Court of Vermont (1932) 160 Atlantic 173 held:

“'Determination of whether independent contractor or master- and servant relationship exists depends on whether alleged' master has right to control not only result, but also method-adopted to accomplish result.”
“2. Repairman in pursuit of undertaking to deliver repaired automobile to owner held ‘independent contractor,” not ‘servant’ and ‘agent’ or owner.”

Since the test of whether the driver of the automobile, is: an agent or independent contractor as laid down in the Rich case, supra, are similar to those of Ohio we take the liberty of quoting from the body of the opinion the comment of the-court on the question of control or right to control being reserved to the owner.

“(2) With this crucial test in mind, it only remains to apply it to the facts as stated. The defendant contends that the-arrangement for delivery of the car at Pittsfield was a modification of the original contract of bailment, and should be considered and construed as a part of it. But the plaintiff argues that the undertaking for delivery was separate and distinct-from the contract for repairs. We think that the plaintiff’s, version of the contract is correct, but, whichever view is taken of it, the result will be the same. The terms of the contract as completed provided only that Allen should make delivery of' the car to Holmes at Pittsfield, and receive compensation therefor. Holmes specified only the result, which was delivery at. Pittsfield. The details of making delivery were left entirely to-the control of Allen, he could go himself or send another driver; he chose to go himself. The features of the trip were left to Allen without right of control by Holmes. In those-matters he was his own master. The route which he took was of his own selection; the speed of the car and the stops which he made were left to his own uncontrolled discretion. The plaintiff says that Holmes might have stopped Allen at any point of the journey and directed a different place of delivery. This contention is in conflict with the terms specifically agreed upon, and no right was reserved to change it. The contract could be changed in that respect only by-putting an end to it, either by cancellation or substitution.”

Counsel for both parties states that this is a case of first impression involving the same factual situation in Ohio. However, we are not without precedent in many of the other jurisdictions in addition of the Rich case, supra. In Gatz v. Smith, 205 S. W. (2nd) 616, decided by the Court of Civil Appeals of Texas (1947) it was held:

“2. Although repairman, who had received automobile as a bailee to repair it, was not under obligation, either by contract or by local custom, to deliver automobile to owner at any place except repair shop, repairman had a right to return automobile to owner at another garage without charge for such service, without effecting an alteration of the relationship.”
“3. Where repairman as a matter of accommodation agreed to return automobile to owner at a different garage and retain possession of automobile for that purpose and directed an employee to make delivery, and employee struck plaintiff with automobile while making such delivery, repairman, rather than owner of automobile, was responsible for negligence of driver, since possession was still that of repairman.” (Emphasis ours.)

In Daigle v. Pelletier, 31 Atlantic (2nd) 345, decided by the Supreme Judicial Court of Maine (1943) it was held:

“2. Where custodian of city’s fire truck took it to repair shop of garage to have battery charged, and truck was accepted for servicing by repairman, there was a ‘bailment,’ and in absence of exercise of any control by custodian, garage proprietor and repairman were ‘independent contractors’ whose negligence in operating the truck was not imputable to custodian.”
“3. An essential element of every contract of bailment of an automobile for repairs is bailee’s agreement to return automobile to bailor or his authorized representative, and if place of return is designated in contract, contract is not completed until delivery at such place has been made.” (Emphasis ours.)

The Supreme Court of Rhode Island in Conant v. Giddings, 13 Atlantic (2nd) 517 held:

“Generally, apart from statutory regulation, a garageman, who takes an automobile to his garage to be worked on, and over whom the automobile owner has no control as to the performance of the work or the operation of the automobile is an ‘independent contractor’ and not a ‘servant’ or ‘agent’ of the owner, who is, therefore, not liable for any negligence of the garagexnan during the trip.” (Emphasis ours.)

The Supreme Court of Wisconsin in Paine v. Finkler Motor Car Co. Inc. (1936) 264 N. W. 477 Held:

“When an automobile is delivered for repairs to a public garage or its employee, bailment is created which places the responsibility for negligence in driving automobile by garage employees upon the garage keeper, under rule of respondeat superior.”

The Supreme Court of Wisconsin (1936) also held in Ederer v. Milwaukee Inc. Co., 265 N. W. 694, that:

“Automobile owner is liable only for his own negligence or that of his agent or employee acting within scope of employment, and not for negligence of owner of garage or service station operating automobile as independent contractor.”

In 46 A. L. R. 849 the question involved in this case is annotated. This annotation is headed by the statement that “as a general rule the owner of a car is not liable for the negligent driving of his car by a person in the general employment of a garage man while getting or delivering this car.” And the cases cited thereunder warrant this statement.

Counsel for both parties have been helpful to the court in briefing the law from other jurisdictions as well as the text law they feel applies to their respective positions. Appellee has set forth several decisions from other jurisdictions that would appear to be contrary to the conclusion reached by a majority of this court but an analysis of these cases reveal that they are clearly distinguishable, either because of the factual situation, the formula to be applied, or the law of that particular jurisdiction making the issue involved not as it arises in this appeal but one of fact for the jury.

A majority of this court is forced to the conclusion that Edward Barrett while in the process of delivering defendant’s car was an independent contractor and as such his negligence, if any, cannot be imputed to the defendant. That the trial court was in error in charging the jury that the relationship' of principal and agent existed between the defendant and Barrett. That the jury should have been charged in words and effect that the relationship was one of an independent contractor and not as servant of this defendant. Of course, such a charge would have terminated the case. In other words, in the opinion of this court the motion for a directed verdict in favor of the defendant should have been granted. Not having done this, judgment non obstante veredicto would have been in order.

The charge on the relationship existing between the defendant and Barrett, as well as the rulings on the various motions just herein enumerated are erroneous and prejudicial. There is no conflict in the evidence on this material question, it presents purely a question of the application of the legal formula to these facts which we resolve against the plaintiff and therefore the judgment of the common pleas court should be and hereby is reversed and judgment rendered for defendant appellant. .

Judgment reversed and judgment for appellant.

GILLEN, J, concurs.

McCURDY, PJ, dissents.

McCURDY, PJ,

dissenting. Jurisdictions which attempt ter resolve facts similar to the instant case by confining the situation created to the law of bailments, by necessity must ignore the proposition that the bailee, under proper circumstances at the termination of his work for which the bailment was made, does, if the parties so agree, take off his cloak of bailment and put on the cloak of agent.

The reasoning that should be applied in this case has been adopted in many jurisdictions, and is to the effect that a bailment of the automobile is made when it is delivered to the mechanic for the purpose of making repairs and continues in force until the repairs are completed. Ordinarily delivery would terminate the bailment, but where by agreement of the parties the owner does not return to get his car, and specifies, separate and apart from the contract for repairs, that the car be delivered to him, then in that event the bailment terminates upon the completion of the repairs. The repairman becomes the agent of the owner in making the delivery of the automobile to the owner, even though such, delivery is in the nature of an accommodation or a favor.

In this case there is no dispute about the facts. The defendant Hughes, after making the contract for repairs, stated to the repairman, “You probably won’t get it done to-day,’” whereupon the repairman replied “I will bring it out.” To this offer of accommodation the owner of the automobile, the defendant, stated “O.K.” It must be noted that this conversation took place at a time when the repairman asked the owner Hughes if he wanted him to call him when he got it done.. Clearly the arrangements for delivery followed the contract for repairs, and the proper interpretation is that it was not a part of it.

Hughes constituted the repairman his agent and could have-exercised full direction and control over him for the purpose of delivering his car. This right he did not have while a bailment for the purpose of repairs was in force. It was during the time when the owner of the ear could have exercised control over his agent, that the agent repairman in driving the car struck the child.

Under such circumstances to hold that the bailment, which was created for the purpose of making repairs, continued until the time of the delivery of the car to the owner, Hughes, on the theory of law that a bailment continues until delivery by the bailee to the bailor, regardless of the arrangement between the parties in relation to delivery, is not sound, and ignores the facts.

The Trial Court properly charged the jury in this regard, and the judgment should be affirmed.

For the foregoing reasons, briefly stated, we feel compelled to dissent in this case.


source: Caselaw Access Project

author: By THOMPSON, J:

license: Public Domain

text:
    HENRY, Plaintiff-Appellant, v. HENRY, Defendant-Appellee.
    Ohio Appeals, Sixth District, Huron County.
    No. 611.
    Decided May 11, 1951.
    Young & Young, Norwalk, Garfield, Baldwin, Jamison, Hope & Ulrich, Cleveland, for plaintiff-appellant.
    H. R. Freeman, Norwalk, for defendant-appellee.
    (SKEEL, PJ, HURD, J, THOMPSON, J, of the Eighth District sitting by designation in the Sixth District.)
   OPINION

By THOMPSON, J:

This action was commenced in the Common Pleas Court of Huron County, by petition of the plaintiff wife, seeking divorce, custody of minor child and alimony. From the alimony, property and support provisions of the trial court’s: decree granting a divorce to the plaintiff, she has appealed' to this Court on questions of law.

Plaintiff urges that the property and support provisions, of the trial court’s decree were grossly inadequate and inequitable. To decide this question, a somewhat detailed statement of the facts contained in the voluminous record becomes necessary.

The parties were married in 1924, shortly after the plaintiff graduated from Columbia University, and the defendant from the University of Illinois. At the time of the marriage, plaintiff’s family was one of means. Defendant had worked his way through college and brought to the marriage no financial assets other than a Ford automobile and a few hundred dollars, but what he lacked in financial backing he apparently made up in ambition, willingness to work and initiative. For a wedding present, plaintiff’s father gave the parties a home costing $5300.00 and when this home was sold in 1937 for $7500.00, the defendant testified he gave one-half of the proceeds to his wife and kept one-half for himself.

Prior to the engagement, the defendant was working in a near-by city. Shortly after the engagement, and a few months before the marriage, the defendant, having impressed himself upon his future father-in-law, the latter secured a more attractive position for the defendant with a manufacturing concern in which plaintiff’s father was financially interested. Defendant’s salary there at the time of the marriage was $165.00 per month. About two months after the marriage, plaintiff’s father offered the defendant a position with the local telephone company of which he was president and principal stockholder. At this time, in 1924, what is referred to as the telephone company, actually comprised eight separate telephone companies with plant assets of approximately one and a half millón dollars, serving 15,648 customers.

Defendant’s first position with the telephone’ company was selling advertising. Within a matter of months, the defendant having shown aptitude and ability in the business, he was promoted by his father-in-law and given the title of assistant secretary and assistant treasurer. By 1927 he was secretary and treasurer for the eight companies which were operated as separate corporations out of one office. In that year these eight companies were merged into one telephone company and the defendant became assistant to the president as well as secretary and treasurer. Upon merger, the value of the total property and plant of the company was fixed by the Public Utilities Commission of Ohio at $3,360,600.00.

In 1929, defendant became General Manager. During the period of merging of the various telephone companies, and subsequently, as additional properties were purchased, the defendant with the active help and suggestion of his father-in-law, who was constantly buying stock for purposes of investment and control, had numerous opportunities to buy up stock of certain of the companies being purchased. . Defendant’s Exhibit 21, and his testimony shows he acquired, for example, sixteen shares of local telephone company stock at $3.00 per share, and Wood County Telephone Company .stock to the extent of 83-% shares at $3.00 per share, after his engagement and while working for his father-in-law, which investment he now values at $9975.00 as a -result of conversion rights. The low prices at which he purchased and the great opportunity afforded the defendant may be gathered from the testimony in his deposition that as early as 1927 and while still obviously drawing a modest salary, he emerged from the merger with some 12,000 to 15,000 shares of stock in the new telephone company. With this start, and with additional buying of stock of the company, over the years, and the receipt of stock dividends and the exercise of stock purchase rights, the defendant today has reached the point at which he is the largest individual stockholder of the telephone company, owning outright a total of 31,781 shares of common stock and 219 shares of preferred stock of the telephone company. One" of the transactions whereby defendant acquired the equivalent of 4050 shares will be subsequently examined in some detail.

Returning to plaintiff and her family situation, it is to be noted that plaintiff was one of five daughters, the other four of whom had married professional men; one a professor, another an engineer, another a dentist, another a lawyer. Of the sons-in-law, the defendant was the only one in business and it was natural for plaintiff’s father to look to him to carry on the family business since he had no sons. Plaintiff’s father, however, was always primarily interested in the welfare of his five daughters, and after his first wife’s death, being the then owner of the majority of the telephone company stock, he established five inter vivos trusts, one for each daughter and her heirs. These trusts were created on December 28, 1935. It is significant that before creating these trusts, plaintiff’s father had a talk with the plaintiff to learn how matters were going with her and her husband, because he was debating whether to make the defendant one of the two co-trustees of these five trusts. Plaintiff’s testimony on this subject is as follows:

“Dad came to me before he set up the trusts and said to me, ‘Is everything going all right between you and Cap?’ because dad had said to me at other times, T don’t know how you do it, Alice, sometimes but you seem to go along with Cap fine.’ I said, ‘Dad, everything will be all right.’ ”

As a result of plaintiff’s acquiescence, her father made the defendant and his lawyer son-in-law co-trustees of each of the five trusts. Each trust was substantially the same in terms, except for the different beneficiaries, each trust containing the same number of shares of telephone company stock, namely, 800 shares. Upon the father’s death in 1937, his will added 820 shares to each trust, making 1620 shares in each. None of the trusts has ever had any other assets except telephone company stock, and the dividends accruing thereon. The co-trustees pay the respective income beneficiaries the quarterly dividends paid by the company. Under the terms of the trust set up for the plaintiff, the trust is to terminate only when both of the co-trustees have died, or when all of the telephone company stock in the trust has been sold, whichever shall be the first event to occur. The co-trustees are given authority to sell the stock, but permitted to make a sale of not less than all; the stock may not be sold in part only. No stock is to be distributed to any beneficiary prior to the decease of the two co-trustees. So far as the plaintiff is concerned, she receives the income during her lifetime, unless the trust terminates prior thereto on one of the two bases noted. Upon her death, if the trust is still in existence, the defendant is to receive one-third of all the income for his lifetime, or until the trust is terminated, but only so long as he remains the widower of the plaintiff. Plaintiff’s children and grandchildren, per stirpes, are given all of the trust income not given to the plaintiff or her husband, until such time as the trust terminates. In case the trust terminates, the remainder is to vest in the plaintiff if she is at that time living, or, if she be then deceased, in her children and grandchildren. Meanwhile, plaintiff’s rights under the trust are to income only. Any rights on her part in the corpus are purely contingent upon her surviving the two co-trustees or upon the trustees selling the telephone stock as an entirety. If plaintiff dies before either event, her estate has no further interest in the trust income or the principal. Since the trust instrument contains no provision for removal of either of the co-trustees, the defendant, so far as the trust is concerned, continues as co-trustee even after divorce from the plaintiff.

Although at the time of the death of plaintiff’s father in 1937, there were 1620 shares of telephone company stock in each trust, the telephone company on January 1, 1940, split its common stock ten for one. This increased the shares in the five trusts from 1620 to 16,200 shares each, making a total of 81,000 shares out of 142,000 shares outstanding. The shares of stock in these trusts thus able to be voted by plaintiff’s husband and his co-trustee, the lawyer husband of another sister, constituted 57% of all voting stock of the company and guaranteed effective control of the company. The company had been successful during the lifetime of plaintiff’s father, and after the latter’s death in 1937 the company continued to grow with the defendant as General Manager and the lawyer brother-in-law as President. In 1941, the defendant, as a reserve officer, was called into military service in the Signal Corps and spent considerable time out of the country in the South Pacific and European theaters. During his absence, and particularly while in Washington, he was able to keep in close touch with the company affairs and of course continued as one of the two trustees of his father-in-law’s trusts, there being in the trust deeds no provision for removal or appointment of successor trustees, as has been previously mentioned. Even while overseas, the defendant was able to give some attention to company problems. He was released from military service in July, 1945 and returned to the company business. Previously he had indicated some dissatisfaction with the title of General Manager, desiring to be an executive officer. In January, 1946, defendant, by arrangement with his co-trustee, became President of the company while the co-trustee became Chairman of the Board.

At this time, the five trusts still held a total of 81,000 shares of common stock out of 142,000 shares outstanding. As of October 1, 1948, the Company gave each common stock holder the right to buy for $10.00 one additional share of common stock for each five shares of common stock then held. Since these rights were all exercised, the company’s common stock was thus, at that time, increased from 142,000 to 170,400 shares. It is to be observed that none of the stock purchase rights issued to the co-trustees (including the defendant) then controlling 57% of the stock, were exercised by the co-trustees in behalf of the trusts, the directors (including the defendant) having decided to issue the rights directly to the income beneficiaries of each trust. As a result of this decision, the percentage of stock held in the five trusts dropped from 57% to 47.6% when the total outstanding shares of the company were increased from 142,000 to 170,400 shares. With respect to the 16,200 shares in each trust, each income beneficiary choosing to exercise the purchase rights became entitled to buy in his individual name 3240 more shares. In the case of plaintiff, who already had 2900 shares of the company stock in her own name, resulting from gifts from her father during his lifetime, she received individual rights to subscribe to 580 additional shares based on stock then owned outright by her. She exercised her rights as to these shares at the price of $10.00 per share, but as to the right to subscribe to 3240 shares which became hers by virtue of the trust, she surrendered these rights to her husband, the defendant. Upon this point, plaintiff’s testimony is important. She testified as follows:

“I had to borrow money anyway to buy that 580 shares, and if I bought all I was entitled to, it would have been a lot of money to borrow and (defendant) said: ‘You enjoy spending money — spend your money, don’t tie yourself up with the bank like that, you sign your rights over to me and I will buy the stock because I can borrow the money and pay it off easier than you can, and everything I have will be yours and the children’s some day anyhow.’ ”

The defendant thus secured plaintiff’s preemptive rights which had come to her as beneficiary of the trust and at a time when the book value per share of the common stock was approximately $23.40. He thus acquired very valuable rights which cost him nothing, and which he exercised by purchasing 3239 additional shares of common stock. Whether, as president of the company, he at that time knew that there was likely to be a stock dividend in the near future, is not disclosed by the record. The fact is, however, that the directors of the company subsequently on August 24, 1950, declared a 25% stock dividend which increased defendant’s 3239 shares acquired from plaintiff to 4050 shares. This same stock dividend increased the company’s outstanding common stock from 170,400 to 213,000 shares and it increased the shares held by the five trusts from 81,000 to 101,250 shares. Plaintiff’s trust shares were therefore increased from 16,200 to 20,250 shares but the stock dividend left unchanged the proportion of the stock held in the five trusts, to-wit, 47.6%. With this stock dividend of August 24, 1950, the defendant’s total individual holdings in the company’s common stock were increased to 31,781 shares. By this same date, the total value of the company property had increased to $13,132,215.53 and telephones served were 67,490.

Returning to the family situation, so far as plaintiff and defendant were concerned, it has been pointed out that in 1937 the defendant sold the home in which the plaintiff and he had been residing since their marriage and a new home was built which the couple moved into early in the summer of that year. This second home cost approximately $37,000.00 and a small guest house on the property $4500.00. Defendant testified that he paid most of the construction cost of the house and that his wife purchased the furniture at a cost of approximately $10,000 out of her separate estate. Because of the previous outright gifts of stock which the plaintiff and her sisters had received from her father and because of the trust set up in December, 1935, plaintiff’s income at least since 1935, has averaged about $10,000.00 per year. Defendant and plaintiff agree that during plaintiff’s married life she received income in the total amount of about $200,000.00 and that about $190,000.00 of this amount was spent in the upkeep and maintenance of the home and children. There is no evidence or charge of extravagance by plaintiff.

At the time of filing the divorce petition, the two older children, both boys, were over 21 years of age; the elder having been born in 1925, now married, and the second bom in 1929. A third child, a daughter, was born in 1937. Both boys received college educations and the daughter, 13 years of age at the time of the hearing in the trial court, was in school.

During the period of the marriage, defendant testified that maintenance of the home averaged about $9,000.00 per year, and the evidence shows that plaintiff’s money, rather than defendant’s, in large part maintained the home. The evidence on this point is worth quoting because there was an agreement between plaintiff and defendant that plaintiff should spend her money and that defendant would save his money. This point has importance because the record shows that defendant from time to time had contemplated a divorce from plaintiff. The earliest testimony on this score is that the defendant tried to secure plaintiff’s consent to a divorce as long ago as 1940. Having these plans, defendant’s freedom from cost of maintenance of the home permitted him to add very considerably to his stock purchases and aided greatly in his accumulation of a fortune. Note defendant’s testimony in the record as follows (page 355):

“Q. Wasn’t it agreed between you and your wife and didn’t you say to her, ‘use your money.’ Didn’t you say, ‘there is no use in saving your money, spend it’ and you would save yours?
A. I certainly did.”

Note also the testimony of the defendant as follows: (Page 356)

“Out of Mrs. Henry’s independent income of more than $200,000.00 she has accrued or invested less than $10,000.00.”

Plaintiff on direct examination on the subject testified as follows (page 158):

“Q. Was there any talk between you and your husband as to whether you should attempt to save anything out of your income or whether he should save anything out of his income?

A. Now and then I used to say, T ought to buy some stock and start investing.’ And Cap used to say, ‘Just spend what you have got and have fun, you enjoy spending, one person saving in the family is enough and after all, what is the difference, everything I have will be yours and the children’s some day.’ That he said to me many, many, many times and that, as far as I could see, what was the difference? I didn’t mind spending what I had on the house.”

We now come to defendant’s conduct during the marriage and his extra-marital affairs which caused the trial court to grant a divorce to plaintiff.

The defendant was very frank about his misconduct with women and his lack of fidelity. He testified that his first misconduct was in 1933, 1934, or 1935. The record is replete with names and places and defendant specifically admitted misconduct with three women and numerous additional affairs. In his deposition he admitted marital misconduct as long as twenty years before the divorce hearing, in the case of a young lady referred to as No. 1. The next case was with a secretary who worked for him, referred to in the deposition as No. 2. He admitted that she had been in New York with him. No. 3 involved a young high school girl who had been in the Girl Scout Reserves of which plaintiff was a Counsellor and whom plaintiff had wished to assist through college. She had therefore offered a position to this young girl, 18 years of age, in her home and the defendant, in his deposition, admitted kissing her and “fooling around.” The time is placed by him as being in 1935, 1936 or 1937. Plaintiff also testified to discovery of his misconduct, to her own great embarrassment and shame. Defendant’s deposition refers to a girl named Stengel, as No. 4. She was a domestic servant and defendant’s mother while visiting at their home at Christmas, 1936, advised plaintiff to dismiss her because of the defendant’s too obvious attentions.

The fifth woman with whom the defendant was charged with having been intimate was another secretary of his at the telephone company. This affair lasted over a period of one or two years and eventually the parents of the girl called on defendant and asked him to stop his attentions. It was this young lady who came to the plaintiff in 1940 and asked plaintiff to permit her husband to have a divorce so that defendant could marry her. Defendant admits that he also, at this time, asked his wife for a divorce so he could marry the girl. His wife still had hope of preserving the marriage and she refused the defendant’s request. It was in connection with this affair that the postmaster testified that the defendant rented a private postoffice box in the home town which he and this young lady used in order to write letters to each other.

In the case of a woman by the name of Richards, who was another secretary of defendant, the defendant admitted intimacies with her in 1938 or 1939. When asked how long this affair lasted the defendant testified as follows:

“That was the most serious of like instances, perhaps four or five months. She was employed by me.”

Evidence in the record, admitted by the defendant, shows numerous gifts to other women, including a stenographer in Washington, for whom the defendant bought a watch at Christmas time in 1940 and to whom he also admitted giving $200.00 which he described as a loan to her when she set up an apartment. During his service overseas, the defendant was billeted in London in an English home where he represented himself to be a widower. Defendant admits that he sent his English landlady $360.00 after his return to this country, but he stated it was in payment for silver candlesticks. In the Spring of 1942, the home town residents who previously had a good many opportunities to observe the defendant’s extramarital activities in the community, saw the defendant’s picture in the Saturday Evening Post in an article describing the wartime relaxation of army officers, defendant being shown at a table in the Shoreham Hotel with an unidentified young lady. As a result of this unexpected candid camera shot, the issues of the magazine were sold out promptly in the home town. Thus, one more embarrassment was added to the humiliation suffered by the plaintiff and her children as a result of defendant’s indiscretions which had become open and notorious in his home community.

One of the depositions in the court below involved the testimony of a young lady living in Indiana. In the deposition of this girl, taken by plaintiff’s attorneys in September, 1950, during the pendency of the divorce action, the young lady, her parents and one of her suitors, gave details of visits to her home by the defendant commencing in May, 1949, and she admitted frequent trips with him by automobile and in his private plane to Cincinnati, Indianapolis and other cities. Defendant had apparently told this young iady that he was separated from his wife. The testimony indicated at least thirty trips to Indiana by defendant to see this individual subsequent to November, 1949. Although in the examination of defendant in the trial court he denied having any plans for remarriage, it appears he married this particular individual since the decree in the court below and before the hearing in this court.

Throughout the entire time of the marriage of plaintiff and defendant, the exemplary conduct of plaintiff has been apparent. Since at least 1937 there was a question in plaintiff’s mind as to whether the marriage could last because at least from that time she knew of defendant’s attentions to other women. In 1940 came a real crisis when the defendant asked plaintiff for a divorce, so he could marry his then secretary and the secretary, as noted, also came to the plaintiff, requesting plaintiff to release her husband from the marriage. In 1941, plaintiff told of accompanying the defendant to a business convention in Chicago and how during that trip, while she waited in their hotel room, the defendant took a girl out dancing without telling his wife. By chance, plaintiff learned of it and while waiting for his return she testified: “I wondered if it was worth going on — if it wasn’t .better just to open the window and end it all.”

The record is replete with testimony that plaintiff at all times did her utmost to preserve the marriage, at least for the children’s sake if not for her own. In the summer of 1949 she and defendant had agreed to take a family trip through Europe for the benefit of the three children. Their ship was only three days out of New York when defendant told plaintiff that she must give him a divorce. Plaintiff requested defendant not to spoil the trip for the children by further discussion of the divorce until they reached home and she wrote in her diary that night, expressing her hope that the marriage would endure: “Having faith, nothing is impossible.” With reference to this trip, plaintiff further testified as follows:

“We stayed at beautiful hotels; we had lovely suites of rooms, — when I would see these suites of rooms and know what was ahead of me when I got home I would think, ‘it couldn’t be,’ and I would break down and naturally the children would wonder, ‘what is mother crying about’ and sometimes when we would sit down to eat in some lovely spot and I would think about my little family eating together and knew that Cap was planning to leave us, I thought I couldn’t stand it.”

Even on that trip, and after the humiliations she had frequently suffered at the hands of defendant, she still wanted to maintain the family for the sake of the children. She hoped against hope that as defendant grew older his series of infatuations' with other women might come to an end. With infinite patience, understanding and love she brought her husband safely through many crises and she had often been rewarded afterwards by her husband’s expressions of regret for various acts of misconduct.

When separated from plaintiff during the war, the defendant, on December 31, 1942, wrote to plaintiff from Washington:

“I don’t care one little bit about anyone else beside you, and I would not know what to do without you ... I love you and only you.”

(Plaintiff’s exhibit 35)

As late as December 6, 1949, defendant according to another exhibit wrote to plaintiff:

“You are the finest woman I ever hope to know .... perhaps too perfect for me.”

Upon direct examination by his own counsel, defendant testified as follows:

“(my wife) is undoubtedly, perhaps, the finest woman’in the State of Ohio. She is intelligent, she has a sense of humor, a fine sense of motherhood, generous to a fault.”

Coming to the financial status of the parties at the time of the divorce hearing, both parties submitted statements of assets and income. There is some difference of opinion as to net worth on the part of the two parties, because of the question of the value of the telephone company stock, comprising so much of the assets of each of the parties. The stock is not listed and there have been only casual sales. Plaintiff’s attorneys submitted evidence that defendant’s worth is $1,007,833.72, valuing the telephone company stock at $20.00 per share. On this basis his 31,781 shares of common stock of the telephone company are worth $635,620.00 while his wife’s 3600 shares in her own name are worth $72,000.00. In addition, he owns preferred stock of the company valued at $100.00 per share amounting to $21,900.00. He has stocks listed in the New York Stock Exchange valued at $51,483.75 and other stocks in the sum of $80,965.00. Besides these stocks he has telephone stock in another company valued at $176,765.28 as well as other assets of about $40,000.00 including insurance policies with a cash surrender value of $30,779.69. The defendant’s average annual income for the three calendar years 1947, 1948 and 1949 was $65,356.76 on the basis of his income tax returns and of his own admissions.

It is claimed by defendant that plaintiff has assets amounting to $422,756.25 as of August 15, 1950, while defendant admits to being the owner of property at the same time of the fair market value of $702,937.32. Plaintiff’s income from her own securities, plus the income from her father’s trust, has made her the recipient of approximately $25,000.00 per year during the past three years.

With the foregoing facts before it, the trial court granted plaintiff a divorce as prayed for, and, in addition, gave plaintiff custody of the thirteen year old daughter of the parties. The court recognized plaintiff was the owner of a farm of 199 acres inherited from her father and which the defendant, at the time of the inheritance had asked plaintiff to place jointly in his name so he could have the advantages of income tax deductions. The court further found, as to the family residence in the joint names of plaintiff and defendant, that the defendant should give a deed to the plaintiff of his interest in the premises. The court awarded $200.00 per month for the support and maintenance of the minor child.

By way of alimony, the court ordered the defendant to transfer to plaintiff all of defendant’s interest in the life insurance policies with a cash surrender value of $30,779.69 and ordered the defendant to continue to pay the premiums thereon, and as additional alimony and for attorney fees and expenses, defendant was ordered to pay the plaintiff the sum of $50,000.00, payable in installments as follows: the sum of $10,000.00 on the 1st day of December, 1950; the sum of $10,000.00 on December 1st of each and every year thereafter until said sum of $50,000.00 should be fully paid. The court further ordered that the defendant keep all property now standing in his name, except the property described and ordered transferred to the plaintiff.

The responsibility of the trial court, in case of a divorce granted because of the husband’s aggression, is governed by statute. The two sections of the General Code of Ohio primarily involved are §§11990 and 11991 GC, providing as follows:

“Sec. 11990 GC: When a divorce is granted because of the husband’s aggression, the court shall, if the wife so desires, restore to her any name she had before such marriage, and allow such alimony out of her husband’s property as it deems reasonable, having due regard to property which came to him by marriage and the value of his real and personal estate at the time of the divorce.”
“Sec. 11981 GC: Such alimony may be allowed in real or personal property, or both, or by decreeing to her such sum of money, payable either in gross or installments, as the court deems equitable.”

The question before this court is whether the trial court, under the authority granted to it by §11990 GC abused its discretion; in other words, whether the alimony award to the wife in this case was reasonable and proper under all of the circumstances disclosed by the record.

In approaching the question of the reasonableness of the award on the part of the trial court, we believe that it should be kept in mind that a wife who obtains a divorce because of her husband’s aggression, loses her dower rights, as set forth in §19502-1 GC, and likewise her right to be supported by her husband as provided by §7997 GC. She also loses the opportunity which would otherwise be hers in the future to share as a wife in the use and enjoyment of the property accumulated by her husband and with her assistance during the marriage. She likewise loses all rights of inheritance, including rights under §10503-4 GC, rights of election under §19504-55 GC and rights to a year’s allowance under §10509-74 GC.

In the case of Batzli v. Batzli, 49 Abs 313, (decided by the Court of Appeals Seventh District; 1946) the general principles which we recognize are set forth in the syllabus as follows:

“1. The trial court, upon granting the wife a divorce on account of the husband’s aggression, and under such conditions as authorized by §11990 GC, should allow the wife such alimony out of the husband’s property as the court deems reasonable, having due regard to the property which came to the husband by marriage and the value of his real and personal estate at the time of granting the divorce.
2. The reviewing court may modify the judgment of the trial court by increasing the award of alimony upon con-eluding from the record that the trial judge did not have due regard to defendant’s real and personal estate at the time he granted the divorce and awarded alimony, and that such award is inadequate and insufficient.”

See also: Dornbusch v. Dornbusch, 75 Oh Ap 490 (Fifth District, 1943) and Fronriter v. Fronriter, 26 C. C. (N. S.) 313 (First District 1916, motion to certify overruled Nov. 21. 1916).

In line with the foregoing cases where undisputed facts are brought before the Court of Appeals on a bill of exceptions and the Court has basis for such action in an appeal on law, we find that this Court is authorized under Ohio Constitution, Art. IV, Sec. 6 and under §§12223-27 12223-38 and 11334 GC, to make such modification of the trial court’s judgment as will do more complete justice to the party complaining.

2 O. Jur., “Appellate Review” Sec. 926, p. 1727; 14 O. Jur., “Divorce & Separation” Sec. 126, p. 529. The latter authority thus states the Ohio law:

“The court of appeals is authorized under §11364 GC upon reviewing an alimony decree, to modify the judgment of the trial court with respect to the amount or manner of the allowance when such modification is necessary in order to do more complete justice to the party complaining.”

The Cumulative Supplement to Vol. 14 O. Jur., (1951 Pocket Parts) Sec. 126, Sup. p. 64, cites the case of Batzli v. Batzli, supra, in support of this right of modification.

In so declaring we are not unmindful of the cases decided by the Supreme Court of Ohio, including, In re Estate of Johnson: Morgan et al v. Fink et al, 142 Oh St 49; Bishop v. East Ohio Gas Company, 143 Oh St 541 and In re Estate of Murnan: Spellman v. Kilbourne, Excr etc., 151 Oh St 529, which discuss the limitation of the authority of a court of appeals to modify a judgment of the trial court. The first and third cases above mentioned involve the right of the court of appeals to substitute its judgment as to an unliquidated claim for attorney fees in matters arising out of the special jurisdiction of the probate court. In the second case above cited, in an action for damages in an unliquidated amount, the court of appeals found the facts and then modified the judgment of the trial court based on a jury’s verdict, by reducing it from $10,500.00 to $4.00. In this latter case, the court of appeals having found facts, was substituting its judgment for the judgment of the trial court and jury.

In the instant case, this court has not retried the case and there was no occasion to do so, because there were no disputed facts, except as to value of the telephone stock and this court’s modification by alimony in kind obviates the necessity of finding as to value. No appeal from the lower court’s judgment was taken with respect to the divorce and the only point involved on appeal on law is whether the trial court properly applied the provisions of §11990 GC to the admitted facts.

In the case of Shively v. Shively, 88 Oh Ap 7, (decided by the Court of Appeals, Second District, 1950) the Court, in com-meriting upon §§11990 and 11991 GC, pointed out that, although in some jurisdictions the rule is that an award of one-third or one-half of the property of the husband is deemed reasonable and equitable, under circumstances where a divorce is granted to the wife because of the husband’s aggression, the modern trend is to award a much larger share to the wife, if the circumstances warrant such larger award. That decision states that the Ohio cases follow the more liberal rule. Since under §11990 GC, the court hearing the divorce action is authorized to allow such alimony out of the husband’s property as it deems reasonable, this amount will necessarily vary, based upon all of the circumstances of the case, including the nature of the treatment she has had from him in connection with his aggression.

In the instant case, attorneys for plaintiff contend that in view of the difficulties inherent in assigning to plaintiff the defendant’s insurance policies and insuring continued payment by him of the premiums, plaintiff in this case has in effect been awarded alimony only in the sum of $50,000,00. Certainly is this true, if the defendant should outlive the plaintiff. Plaintiff’s attorneys further point out that this award of $50,000.00 payable $10,000.00 a year for five years, covers both alimony and attorney fees under the journal entry of the trial court dated October 17, 1950. There is no evidence before this Court as to the full extent of the legal services rendered by plaintiff’s counsel, but it is apparent from the voluminous record, the depositions and exhibits, that plaintiff’s attorneys have rendered important and valuable services and that out of the award by the trial court to plaintiff of $50,000.00 “for alimony, attorney fees and litigation expenses” a sizeable portion will undoubtedly be payable to plaintiff’s attorneys for their services.

Plaintiff’s attorneys, in their brief, suggest that if their attorney fees are $15,000.00, the remaining balance of the award to plaintiff of $35,000.00 would represent approximately 3.5% of the defendant’s assets. In view of the uncontradicted and admitted testimony in this case, this Court finds any such provisions for alimony are unreasonable and grossly inadequate, and that the plaintiff is thereby insufficiently protected. In the case of Mooney v. Mooney, 48 Abs 29 (Eighth Appellate District, 1947) this court in reversing the trial court’s award of alimony in a divorce case, on the ground that the award of alimony to plaintiff wife of $15,000.00 was inadequate and manifestly against the weight of the evidence, pointed out that the award was less than the defendant’s gross income for one year. In the instant case, the $50,000.00 awarded to plaintiff is $15,000.00 less than the average income of the defendant during each of the years, 1947, 1948 and 1949, and we deem it similarly inadequate.

Defendant’s attorneys urge that the question of alimony, particularly the amount to be awarded, rests in the sound discretion of the court. This principle is true, provided the award is reasonable. This Court does not have the benefit of an opinion rendered by the trial court in this case, and it, therefore, cannot be aware of considerations given by the trial court to the evidence before it.

A study of the record in this case convinces us that the amount of the award of alimony by the trial court was unreasonable under all of the circumstances set forth.

Sec. 11990 GC distinctly provides that the Court in granting a divorce because of the husband’s aggression, shall allow such alimony as it deems reasonable “having due regard to the property which came to him by marriage and the value of his real and personal estate at the time of the divorce.”

The record discloses that the defendant entered marriage with assets of less than one thousand dollars. During the engagement and immediately prior to the marriage, at the suggestion and with the aid of his future father-in-law the defendant invested a few hundred dollars in stocks which he claims shortly thereafter to have been worth $10,000.00. Otherwise, with the exception of not more than $12,000.00 to $15,000.00 inherited from his parents, all of the property of the defendant in excess of one million dollars, has come to him by the marriage and because of opportunities received initially through the plaintiff’s family.

Certain of the testimony indicates defendant’s view that he has contributed more to make the telephone company successful than the telephone company contributed to him. Conceding that since the death of plaintiff’s father in 1937, the defendant made a distinct contribution toward further development of the company, which had previously been successful, we may observe that the defendant’s assets increased proportionately more rapidly than the company’s assets during the years of his control. This in no way is intended to belittle the defendant’s business abilities, but it should be recognized that economic conditions of the country and of the community in which the defendant lived and. worked had some share in the continuing success both of the company and of the defendant.

Keeping in mind the statute as our guide, let us note what property came to the husband by the marriage in this case. Chronologically, we may note the following:

(1) As wedding gift, % interest in a house

(2) By suggestion of plaintiff’s father, between engagement and marriage, investment in stock worth $9,975.00 as a result of a few hundred dollars invested.

(3) Between 1924 and 1927, on advice of plaintiff’s father and participating in his father-in-law’s plans, stocks of different companies bought up at 75c a share, through exercise of conversion rights, yielded defendant between 12,000 and 15,000 shares of telephone company stock now worth $20.00 per share.

(4) In 1937, appointment of defendant by plaintiff’s father on plaintiff’s recommendation and upon the defendant’s own original request as one of two co-trustees of stock which controlled 57 % of the telephone company in 1948, and 47.6% at the present time, this effective control insuring indefinite, if not permanent, job security to the defendant as president of the company at a salary of $25,000.00 per year. Defendant in his deposition has made it clear he has no intention of resigning as co-trustee of this trust because it insures him the presidency of the company.

(5) Gift of stock purchase rights from wife in 1948 to 3,239 shares and the ensuing stock dividend making a total of 4,050 shares obtained by the defendant growing out of his dual fiduciary capacity as co-trustee and adviser and husband of the plaintiff.

(6) The opportunity granted to the defendant to save his income for continuous purchases of stock, including the telephone company stock, because of being largely relieved of maintenance of the marital domocile by prevailing on his wife to spend her money on the home to the extent of $9,000.00 or $10,000.00 per year, while he saved and accumulated his money on the basis that what he had would one day be hers and the children’s. This permitted him to accumulate an additional $190,000.00 or $200,000.00 worth of stocks which he could not have done if plaintiff had not used an equivalent amount of her own money to maintain the home.

In addition to noting the property thus accruing to defendant “by marriage” which is one of the guides specified by §11990 GC, for determining reasonable alimony, the court is directed by that section to consider the value of the husband’s real and personal property at the time of granting the divorce. We may note that all of the defendant’s assets in this case are readily determinable as to value since they consist primarily of stocks quoted daily on the New York Stock Exchange or over the counter, the only dispute between the parties being as to the value of the telephone company stock. Accepting plaintiff’s valuation, the 31,781 shares of telephone company stock of defendant were worth $635,620.00, and, taking the defendant’s valuation, $409,618.44 at the time of the hearing in the court below.

Having come to the conclusion that the trial court’s award was grossly inadequate and insufficient under the circumstances, and believing that the trial court failed to allow to plaintiff reasonable alimony, having due regard both for the property which came to the defendant by the marriage, and for the value of his real and personal estate at the time of the hearing, this court modifies the judgment of the trial court in the following respects:

In addition to awarding to plaintiff the defendant’s one-half interest in the family residence on East Main Street, Bellevue, Ohio, in addition to finding plaintiff to be the owner of the farm of 199.45 acres in Groton and Oxford Townships, Erie County, Ohio, and in addition to the award of $200.00 per month for the support of the minor child until she attains the age of 21 years or until the further order of court, the foregoing being in line with the decree and judgment of the court below, this court further, instead of awarding to plaintiff as alimony and attorney fees the sum of $50,000.00 in equal annual installments of $10,000.00 each, and instead of awarding to plaintiff the defendant’s insurance policies, modifies said decree and judgment of the trial court in the two following respects:

1. This court orders the defendant to deliver and turn over to the plaintiff as and for alimony, 17,915 shares of common stock of the Northern Ohio Telephone Company, out of the 31,781 shares of common stock of said company now in the defendant’s name;

2. This Court further orders defendant to pay to plaintiff as and for additional alimony, and for attorney fees and litigation expenses, the sum of $25,000.00 in cash.

This Court, in making the two foregoing modifications of the trial court’s decree and judgment, points out the following facts with reference to each modification:

1. The award of 17,915 shares of common stock of the Northern Ohio Telephone Company out of 31,781 shares presently in the defendant’s name, has taken into account the fact that 4050 shares of common stock of said company were acquired by defendant at very small cost to him, through stock dividends and exercise of valuable preemptive rights secured by defendant from plaintiff by virtue of defendant’s dual fiduciary position as co-trustee of plaintiff’s trust and as advisor and husband of plaintiff, and upon the unsolicited assurances given by defendant to plaintiff that whatever was his would be plaintiff’s and their children’s some day anyway. The award to plaintiff of a total of 17,915 shares of the telephone company common stock, represents 4050 shares plus 13,865 shares or one-half of the balance of 27,731 shares of telephone company stock in defendant’s name. This court believes that an award of alimony to plaintiff in kind in this manner obviates any question of deciding as between plaintiff and defendant the value of this particular stock. In reaching this determination and awarding to plaintiff a total of 17,915 shares of common stock of the telephone company, founded by plaintiff’s father, this court has had in mind also the value of the defendant’s other assets at the time of the hearing in the trial court, in the undisputed amount of $372,263.00 and that the award in kind to plaintiff is reasonable and proper, having due regard to the property which came to the defendant by marriage and the value of his real and personal property at the time of the divorce.

2. With respect to the further award to cover additional alimony, attorney fees and expenses of. litigation, of $25,000.00 in cash, this award is made to plaintiff in lieu of and instead of the award to plaintiff by the trial court of the interest in defendant’s existing insurance policies which latter award has appeared to this court difficult of enforcement because of possible failure of defendant to keep up premiums and of no value whatsoever to plaintiff or her children in the contingency that she should pre-decease the defendant.

For the foregoing reasons, the judgment of the trial court is modified, and as modified the same is affirmed. Exceptions noted. Order see journal.

SKEEL, PJ, HURD, J, concur.


author: By THOMAS, J.

text:
    A. DICILLO & SONS, Inc., v. CHESTER ZONING BOARD OF APPEALS, et al.
    Common Pleas Court, Geauga County.
    No. 10826.
    Decided September 13, 1950.
    James A. Chiara, Cleveland, for plaintiff.
    Baker & Baker, Painesville, for defendants.
    Charles P. Baker Jr., Painesville, of counsel.
   OPINION

By THOMAS, J.

Filed against a township board of zoning appeals, this action designated a “petition in appeal,” appeals a decision of defendant board on the ground that said decision was unreasonable and unlawful. Defendant board, by motion requests that the petition be made more definite and certain “by stating in what manner the decision rendered by the defendant board was unreasonable or unlawful.” The propriety of this motion is the question to be decided.

If this action involved an original cause of action — as distinguished from appeal — generally accepted principles of definiteness and certainty in pleadings would govern the disposition of defendant’s motion. But this action is not an original cause of action. Instead it actually represents an appeal. Its title, “petition in appeal,” shows that. And its essential allegations stamp this action as an appeal.

“Plaintiff for its cause of action states that this matter is brought before this court as an appeal from the decision heretofore rendered by the Chester Township Zoning Board of Appeals on the ground that said decision was unreasonable and unlawful as provided by the statutes of Ohio governing.”
“Plaintiff states that it is a duly authorized corporation in the State of Ohio, Geauga County, with its principal place of business located in Chester Township; that its business is meat packing and slaughtering of live stock for human consumption; — .”
“Further plaintiff states that on the 23rd day of June, 1950, application was made for a Zoning Certificate in said Chester Township relative to the partial alteration of one (1) of the building occupied by plaintiff and used in the conduct of its said business; that thereafter on the 10th day of July, 1950, a Zoning Certificate duly executed by the said Township Zoning Inspector was issued to this plaintiff.”

After reciting facts showing that an appeal from the granting of such certificate was prosecuted to the Township Zoning Board of Appeals, and that a hearing on said appeal was held on the 21st day of July, 1950, the petition further states:

“that thereafter under postmark of July 24, 1950, a communication dated July 22, 1950, was received from said Zoning Board of Appeals revoking the building permit theretofore issued and reading as follows, to-wit:
Chester Township, Ohio,
July 22, 1950
“Having heard testimony from those interested and present at meeting July 21 at Town Hall, Chester Township, and having considered this testimony, we have decided as follows;
“That the zoning permit (for alterations) issued by the Chester Township Town Clerk to DiCillo and Sons, Inc., should be and is hereby revoked,
Zoning Board of Appeals.”

In its prayer the plaintiff prays:

“for an order reversing and vacating the decision of said Chester Township Zoning Board of Appeals; that this Court ñnd the order revoking said building permit by said Board of Appeals to be unreasonable and unlawful;”

It is evident therefore that this action is an appeal. But what is the statutory basis of this appeal? Is it an appeal on questions of law, or on questions of law and fact? What requirements of appellate procedure are applicable to this appeal? On the answers to these novel and substantial questions depends the disposition of defendants motion.

What Is The Statutory Basis Of This Appeal?

The essential allegations of plaintiff’s petition in appeal indicate that plaintiff is filing an appeal pursuant to the appellate provisions of the Rural Zoning Act (§3180-1 to §3180-50) — hereafter called The Act. The right to appeal to the Common Pleas Court from adverse decisions of township boards of zoning appeals is found in the last two sentences of §3180-39 GC:

“Any person adversely affected by a decision of a township board of zoning appeals may appeal to the court of common pleas of the county in which such township is located on the ground that such decision is unreasonable or unlawful. The court may affirm, reverse, vacate, or modify the decision complained of in the appeal.”

The act, which became effective September 25, 1947, enables counties or townships to enact zoning resolutions. By such a resolution the people of a county or a township, outside of any incorporated area, may regulate the use of land, and construction and alteration of structures on the land.

The resolution adopted by Chester Township, in accordance with The Act, creates the position of township zoning inspector, authorizes him to issue zoning certificates in conformity with the resolution, creates a township board of zoning appeals, and empowers the Board in accordance with §3180-38 and §3180-39 GC of the Act.

The only reference in either The Act or the Chester Resolutioh to the right of appeal to common pleas court is contained in the last two sentences of §3180-39 GC, previously quoted.

That then is the statutory basis of plaintiffs appeal. This leads to the next question.

Is This Appeal To The Common Pleas Court From The TownShip Board Of Zoning Appeals, An Appeal On Questions On Law And Fact, Or Only On Questions Of Law?

Another way to put the same question is to ask whether this appeal permits a review or a trial de novo.

A comparision of the powers of the township board of zoning appeals under the Act with those given to the court of common pleas in the event of an appeal to the court makes it very evident that the Board but not the Court, has the right and power to try or re-try issues of fact.

By the third paragraph of §3180-38 GC, the Board may

“reverse or affirm wholly or partly or may modify the order, requirement, decision or determination appealed from, and may make such order, requirement, decision or determination as ought to be made, and as to that end shall have all powers of the officer from whom the appeal is taken.”

The last two sentences of §3180-39 GC provide the right of appeal to the common pleas court in these words:

"Any person adversely affected by a decision of a township board of zoning appeals may appeal to the court of common pleas of the county in which such township is located on the ground that such decision was unreasonable or unlawful. The court may affirm, reverse, vacate or modify the decision complained of in the appeal.”

Thus the board can “make such order, requirement, decision or determination as ought to be made.” But the court can only “affirm, reverse, vacate, or modify” where a decision of the township board of zoning appeals is “unreasonable or unlawful.” The grant to the board of the power to make an order which “ought to be made,” and the failure to grant that same power to the court can lead only to the conclusion that the court does not enjoy the power to try an appeal de novo, a plenary power which unquestionably is possessed by the board.

The Administrative Procedure Act (§154-61 et seq GC) governs hearings before certain designated state administrative’ agencies and appeals therefrom to the courts. In such an appeal, the common pleas court is given the power to receive additional evidence under certain circumstances, and “the hearing in the court of common pleas shall proceed as in the trial of a civil action.”

Nevertheless the Supreme Court, in the recent case of Farrand v. State Medical Board of the State of Ohio, 151 Oh St 222, 39 O. O. 41, has ruled that such appeal does not justify a trial de novo.

If the common pleas court, under the Administrative Procedure Act’s broader appellate jurisdiction, cannot hear an appeal de novo from an administrative agency, it plainly follows that no appeal to the common pleas court from a town.ship board of zoning appeals can be heard de novo.

This appeal therefore is simply one on questions of law. An appellant is only entitled to corrective relief at the hands of the common pleas court if the factual findings of a township board of zoning appeals are unreasonable in that they are not supported by any substantial evidence, or if the board’s conclusions of law or its decision are in violation of law.

This leads to the next question.

What Requirements Of Appellate Procedure Are Applicable To This Appeal?

The Act grants the right of appeal from a township board of zoning appeals but the Act is silent on how such an appeal is to be perfected. (§3180-39 GC.) Clearly, the Administrative Procedure Act does not govern this appeal, because its scope is expressly defined and township boards of zoning appeals are not made subject to its provisions.

The Appellate Procedure Act (§12223-1 et seq GC) on the ■other hand, expressly provides in §12223-3 GC that

“Every final order, judgment or decree of a court and, when provided by law, the final order of any administrative ■officer, tribunal, or commission may be reviewed as hereinafter provided, unless otherwise provided by law — .”

Certainly a ruling of a township zoning board of appeals is “a final order of any administrative tribunal or commission” which a law (here The Act) authorizes an appeal. Nor is the ‘ procedure for this anpeal otherwise provided for in The Act. Hence, it seems inescapable that the perfecting of the present appeal is governed by the Appellate Procedure Act.

Under the Appellate Procedure Act the following procedural steps appear to be required in order to perfect an appeal from a township board of zoning appeals to the common pleas court.

1. Under §12223-4 and §12223-7 GC the appeal shall be deemed perfected when written notice'of appeal shall be filed with the township board of zoning appeals, which filing shall be not later than 10 days following the board’s order.

2. Under §12223-5 GC the only jurisdictional fact which the notice of appeal must contain is the order of the township board of zoning appeals which is being appealed.

3. Under §12223-8 GC within 10 days after the notice of appeal is filed, and upon the filing of a precipe by the appellant with the township board of zoning appeals and the payment to the board of the lawful fees, the board shall prepare and file in the common pleas court a transcript of the docket or journal entries, with such original papers or transcripts thereof as are necessary to exhibit the error complained of. The journal entries shall include the board’s findings of fact, conclusions of law, and its order in the case. (The reasons for requiring the board to render findings of fact and conclusions of law are subsequently stated).

4. The appellant shall prepare and file with the board and the board shall certify and forward to the common pleas court a transcript of the testimony of the hearing or so much thereof as may be necessary for said appeal. Under §12223-8 GC the time of filing in the common pleas court shall be fixed by the court.

5. At times fixed by the court of common pleas the appellant shall file assignments of error and a brief in support of its appeal, and the appellee shall file a brief in opposition to the appeal.

The Township Board Of Zoning Appeals Is Required To Render Findings Of Fact And Conclusions Of Law.

Now well established principles of due process require administrative agencies, to amplify their decisions with findings of fact and legal conclusions, Morgan v. United States, 304 U. S. 2, 82 L. Ed. 1129.

The New York Court of Appeals has repeatedly ruled that administrative agencies are bound to record the factual findings on which they base their decisions. N. Y. Water Service Corp. v. Water P. and C. Comm., 283 N. Y., 23, and Matter of Guernsey Breeders Co-op v. Boyes 284 N. Y. 197 at 204.

Boards of zoning appeals are similarly obligated. In Matter of Collins v. Behan, 285 N. Y. 187, a case which reviewed a decision of the Board of Zoning Appeals of the City of Troy, the New York Court of Appeals ruled that boards of zoning appeals, are bound to render findings of fact.

Thus the court said:

“To review, under article 78 of the Civil Practice Act, a determination made by an administrative board, there must be presented a record of all the evidence upon which the determination is based. Where the record of a proceeding presented for review is inadequate, the determination of the board will be reversed and the proceeding remitted to such board with instructions to make findings of fact in support of whatever determination it may reach on the evidence, with leave to the parties to the proceeding to introduce further evidence upon another hearing if one be had.”

To insure a proper review of the action of an administrative agency it is equally imperative that the agency specify legal grounds on which the decision is based.

This principle is recognized by the Ohio Administrative Procedure Act which requires the agency referee to render conclusions of law as well as findings of fact, and which requires the agency to include in the record of its proceedings the reasons for any modification or disapproval of the recommendation of its referee (§154-70 GC).

Any findings of fact and conclusion of law rendered by an administrative agency is part of its proceedings and therefore should be journalized as an official action.

Such findings of fact and conclusions of law are therefore to be included in the transcript of journal entries which a township board of zoning appeals is compelled to file in the common pleas court on an appeal.

Applying These Applicable Rules Of Appellate Procedure In Accordance With The Appellate Procedure Act, What Disposition Should Be Made Of Defendant’s Motion?

In view of the failure of The Act to spell out the procedural steps to be taken in perfecting an appeal from a township board of zoning appeal to the common pleas court it is not surprising to find both parties employing forms of pleading more consistent with the prosecution of original causes of actions than with an appeal.

Thus plaintiff’s petition in appeal is cast more in the form of a petition in an original action than in the form of a notice of appeal. Yet it contains the one allegation which all notices of appeal must contain. It describes the final order of the Chester Township Board of Zoning Appeals from which the appeal is prosecuted.

Moreover, the petition in appeal, which in effect is a written notice of appeal, was served on the township board of zoning appeals, by the Sheriff. It would have been sufficient if the plaintiff appellant had personally delivered it to the defendant appellee. To have the sheriff serve it along with a summons was no less effective.

Likewise service of the petition and summons was made on the defendant appellee within the allowable period of 10-days in which a notice of appeal must be filed.

In form, defendant’s motion is drawn on the assumption that the petition in appeal may be attacked in the same manner as if it were a petition filed in an original cause of action.

If this appeal were proceeding under the Administrative Procedure Act the appellant’s notice of appeal would be required to contain the order appealed from and the grounds of the appeal. (Sec. 154-73 GO. Conceivably if this appeal arose under the Administrative Procedure Act the appellee would have been warranted in moving for a more definite and certain statement of the grounds of appeal.

But since this appeal arises under the Appellate Procedure-

Act the notice of appeal need not contain the grounds of ap~ peal. Accordingly, defendant’s motion may not require the-appellant to elaborate its petition in appeal, which for-present purposes is regarded as a notice of appeal.

However, under the Appellate Procedure Act the plaintiff appellant is required to file assignments of error. Accordingly defendant’s motion will be treated as a request that the plaintiff appellant be ordered to file assignments of error.

Nothing would be gained by overruling the defendant’s motion on the ground that the defendant has misconceived its. form of remedy. To do so would merely protract these preliminary proceedings and unjustifiably postpone the day when the parties and the court must deal with this appeal on the merits.

The court will therefore regard defendant’s motion as a. request for filing of assignments of error, and so considered, it will be granted upon the following conditions;

1. That plaintiff appellant will immediately file a precipewith the defendant board, together with the lawful fees, requesting the filing in this court of a transcript of all docket, and journal entries including findings of fact and conclusions, of law and the original papers or a transcript thereof, as are necessary to exhibit the error complained of.

2. The defendant appellee not later than September 30, 1950, will comply with paragraph 1. If it has not already prepared findings of fact and conclusions of law in support of its decision and order, the board will proceed to prepare such findings: of fact and conclusions of law within the allotted time.

3. The plaintiff appellant not later than September 30, 1950 will prepare a transcript of the testimony or Bill of Exceptions, and file it with the defendant appellee who will thereupon but not later than October 7, 1950, certify said transcript and file it with this court.

4. Within 20 days after the defendant appellee has filed the various transcripts specified above, the plaintiff appellant shall serve upon the defendant appellee and file with this court its assignments of error and supporting brief. Within 20 days after receiving said assignments of error and supporting brief, the defendant appellee shall serve upon the plaintiff appellant and file with this court its answer brief. Within 10 days thereafter the plaintiff appellant will serve upon the defendant appellee and file with this court its reply brief.

The last five paragraphs of this opinion constitute the order of this court and will be so journalized.