author: OPINION By McClelland, pj.

text:
    SCHICK, Estate of, In re.
    Probate Court, Franklin County.
    No. 130539.
    Decided October 24, 1949.

      Helen A. Witherspoon, Columbus, for Executor of Estate.
   OPINION

By McClelland, pj.

This matter comes before the Court upon the application filed January 20, 1949, by Helen A. Witherspoon, one of the executors and attorney for the Estate of Alta L. Schick, deceased, for a redetermination of the inheritance tax and for a refund of same. The application states through a clerical error on the part of the Court the inheritance tax was improperly computed, and also states that additional debts against the estate have been proven since the determination of the inheritance tax. This application was therefore filed apparently under the provisions of §5339 GC, which applies only in case that additional debts have been proven against the estate. It does not provide for a consideration of the inheritance tax due to a mistake.

At the hearing of this matter the court’s attention was directed exclusively to the mistake in determining the inheritance tax. No testimony whatever was adduced in support of the allegation that additional debts had been proven against the estate. Therefore, inasmuch as there was a failure of proof the Court is compelled to deny the relief sought for that reason.

We • have carefully examined the provisions of §5339 GC, and find that this section gives relief only in cases where additional debts have been proven against an estate after the determination of the inheritance tax. That section therefore cannot be invoked to give the entire relief which is requested in the petition. The relief under that section must be confined to the circumstances where additional debts have been proven.

At the hearing of this matter no formal testimony was taken but the information which was given to the court was largely in the statement and discussion of counsel. At that hearing it was stated by the attorney for the fiduciary that additional debts had been proven and had been shown in the schedule of debts and no objection was made to the same by counsel for the Tax Commission. The Court therefore takes the position that those debts were allowed and therefore orders that those additional debts shall be added to the deductions heretofore allowed in the computation of the tax, and that the tax upon that basis should be recomputed.

The Court therefore finds that the excess tax should be refunded to the fiduciary of this estate.

The Court of its own motion will give further consideration to the facts in this case. The applicant is quite diligent in attempting to place the blame for the mistake upon the Probate Court. Upon an examination of the original application we find that the incorrect statement was given therein, and a deputy of this Court was misled by that information. The Court wishes to be fair in placing the blame for this mistake, and, in the greatest degree of generosity will hold that the mistake was a mutual mistake. The question then comes to the 'mind of the Court as to whether or not it has the right to correct a mistake. The Court calls attention to the provisions of §5340 GC which read as follows:

“The probate court of any county of the state having jurisdiction to grant letters testamentary or of administration upon the estate of a decedent, on the succession to whose property a tax is levied by this subdivision of this chapter, or to appoint a trustee of such estate, or any part thereof, or to give ancillary letters thereon, shall have jurisdiction to hear and determine the questions arising under the provisions of this subdivision of this chapter, and to do any act in relation thereto authorized by law to be done by a probate court in other matters or proceedings coming within its jurisdiction: * * *

We also refer to the last paragraph of the Jurisdiction Statute being §10501-53 GC, which last paragraph reads as follows:

“The probate court shall have plenary power at law and in equity fully to dispose of any matter properly before the Court, unless the power is expressly otherwise limited or denied by statute.”

This Court has the power to assess and collect inheritance taxes. It possesses the same power as the Common Pleas Courts to correct any errors in its proceedings or records thereof.

It is to be noted also that the original assessment to which objection is directed by this Motion was not a judicial act on the part of the Court and therefore the Court is not bound by the limitation of its terms of court in correcting or setting aside a judgment. The Court of Appeals in the First Appellate District of Ohio, in the estate of Loren G. Gatch, deceased, in an opinion rendered May 2, 1949, holds that the original determination of the inheritance tax upon an application filed by the executor or administrator is not a judicial act. We copy the following language from the body of that decision herein referred to:

“We cannot agree with counsel for the Tax Commission on their interpretation of these sections of the General Code. Sec. 5339- GC applies to an entirely different situation from that to which §5346 GC applies. This latter section is the method prescribed for invoking the judicial power of the Probate Court for the- first time in the determination of the tax. Up to that point, all action is or may be administrative and not judicial, Or, at least, until the fixing of the time for the hearing upon the interested parties, there is no statutory requirement that the proceeding should take on a characteristic of an adversary proceeding complying with due process ■of law, so that any order made at the hearing would be binding upon all the parties unless set aside on appeal or otherwise. The findings and orders theretofore made under authority of §§5345 and 5345-4 GC, are pro forma — made as of course on the report of the auditor — and notice thereof given to interested persons after and not before, without opportunity for a hearing.” * * »

We are therefore confronted not with a judgment or decree, but with an assessment made by the Court in its administrative and not in its judicial capacity.

It is apparent upon the face of the record that a mistake was made by the applicant in setting forth the interest and amounts which were subject to the inheritance tax. The deputy in this Court was misled by that information. This court certainly has the power to correct a mistake, and it also is the duty of the Court to correct an injustice. There is no reason why the State of Ohio, or any political subdivision in which the decedent lives, should profit by a mistake and cause the estate to suffer by reason thereof. This court, therefore, in exercising not only its delegated power, but also in the exercise of its equity power as delegated by §10501-53 GC •does hereby set aside the original determination of the inheritance tax, and directs that the Treasurer shall refund ■the same to the estate if the same has not been distributed. If the same has been distributed, then the political subdivision and State of Ohio shall respectfully refund the excess of the tax so paid, and the tax shall be redetermined as shown toy the facts.


source: Caselaw Access Project

author: By WOODS, J.:

license: Public Domain

text:
    VANDERBORGHT, a Minor, in re Petitioner.
    Common Pleas Court, Cuyahoga County.
    No. 609991.
    Decided February 6, 1950.

      E. E. Stearns, Thomas G. Thompson, Cleveland, on behalf of the petitioner.
    Guy R. Wheeler, Cleveland, on behalf of the respondent.
   OPINION

By WOODS, J.:

Gentlemen, the Court has reached certain conclusions in this matter which he will deliver orally.

This matter comes on to be heard on a petition for writ of habeas corpus in which it is alleged by the petitioner that in 1934 he was married to one Marie Jeanne Verhulst, now Mrs. William Nusbaum of 14403 Gramatan Avenue, in the city of Cleveland, and that two children were born of said marriage, namely, Paul Jean and Marcus Frederick, now aged seven; that he was divorced from said Marie Jeanne by proceedings regularly instituted before the officer of Civil State of the Commune of Uccle, Belgium, on December 11, 1946; that as a result of said divorce action he was awarded the legal custody of said son Paul and the said Marie Jeanne Verhulst was awarded the legal custody of the son Marcus, under provisions that both parents should exercise supervision over the welfare of both children and that each parent should have the right to visit the child in the other’s custody and that the two children should spend their vacations together.

And it is alleged that under the Belgian law divorced persons are prohibited from remarrying for three years, but that Marie Jeanne was married to William Nusbaum within one year and that both Mr. and Mrs. William Nusbaum thereafter wrongfully and secretly removed said minor child, Marcus Frederick, from the jurisdiction of the Belgian court and to the United States in contravention of the terms of the divorce decree; that thereafter the petitioner appealed to the Brussels County Court of Justice which had continuing jurisdiction over the said minor child, Marcus, on February 11, 1949, obtained a judgment from that tribunal altering the legal custody of the said Marcus and conferring such custody on the petitioner herein and authorizing him to regain possession of the said Marcus wherever found; and there are other allegations not pertinent to this particular phase of the case.

On the hearing of the matter professional statements of counsel for the petitioner were made as an opening statement and as part of such statement there was introduced in evidence a stipulation agreement made by and between counsel for and on behalf of their respective clients which was marked Exhibit A.

It provided that it is admitted that a translation into the English language of the record of proceedings in the court in Belgium attached to such stipulation and marked Exhibit A is a genuine and authentic record of the proceedings of that court.

The record so introduced shows that the Brussels County Court of Justice on the 11th day of February, 1949, passed a judgment, the material parts of which are:

“Francois Jules Louis Van’derborght, a company manager, resident at 309 Avenue deKersbeek, in Ucele, and Mrs. Marie Jeanne Germaine Verhulst, without trade, having elected residence at 7 rue Lambert Crickx, Anderlecht, and her present husband, Mr. Nusbaum, resident at 1138 Green Street, Muskegon, Michigan, U. S. A., defendants.”

The decree further provides:

“Considering the summonses served on the 6th day of November, 1948, by registered writ of the process server, Adolphe Vanderperren, and the plaintiff’s statement; and

“Considering section 4 of the law of June 15, 1935, on the use of languages in justice matters;

“Whereas, the purpose of the suit is to here declare that the custody of the child under age, Marcus Frederik Madeline Vanderborght, entrusted to the defendant by an agreement before the divorce by mutual consent pronounced between the plaintiff and the defendant, will be withdrawn from the latter and entrusted to the plaintiff, with the authorization for him to take the child back.”

The decree further provides:

“Whereas the defendants, though regularly served, did not appoint any solicitor; and for these considerations the court declares that the custody of the child, Marcus Frederik Madeline Vanderborght is withdrawn from the defendant and entrusted to the plaintiff.”

By further statements of counsel, considered by this Court as part of the opening statement of counsel, concerning which no controversy of fact existed, it appears that Mrs. Nusbaum came to the United States with the minor child, Marcus, in April, 1947, and was married to William Nusbaum, an American citizen, in May of 1947, and has remained. in the United States with the minor child, Marcus, continually since her arrival here; that she is now a naturalized citizen of this country and that proceedings are now pending in the matter of the naturalization of the minor child, Marcus!

Whereupon the counsel for respondent moved that the petition be dismissed on the ground that at the time the supplemental decree of the County Court of Brussels was entered, that, that court had no jurisdiction of the parties defendant.

On the state of the record this Court has presented to it the following questions:

First. Must or may this Court give full faith and credit to the decree of the County Court of Brussels, especially in reference to the modification of that decree?

I understand that no treaty exists between the Kingdom of Belgium and the United States, by the terms or effect of which the judgments of either country are prevented from being examined anew upon the merits when sued upon in the courts of the country other than that in which it was obtained.

Whether the judgments of our courts are recognized as conclusive in Belgium, or not, is not revealed by the evidence or in the briefs of counsel.

An examination of the law of Belgium on this point would be helpful, but the Court does not have the means of making such an examination.

It is stated, however, by Mr. Justice Gray in Hilton v. Guyot, 159 U. S. 113, at 218:

“Where, as in the case between Belgium and France, there is no such treaty, the Belgian Court of Cassation holds that the foreign judgment may be re-examined upon the merits. Constant 111, 116; Moreau, No. 189; Clunet, 1887, page 217; 188, page 837; Bigott, 439. And in a very recent case, the Civil Tribunal of Brussels held that, ‘considering that the right of revision is an emanation of the right of sovereignty; that it proceeds from the imparium, and that, as such, it is within the domain of public law; that from that principle it manifestly follows that, if the legislature does not recognize executory force in foreign judgments where there exists no treaty upon the basis of reciprocity, it cannot belong to the parties to substitute their will for that of the legislaure, by arrogating to themselves the power of delegating to the foreign judge a portion of sovereignty.’ ”

The Court finding no Belgian case to the contrary and none being pointed out by counsel, this Court assumes that the quoted holding of the Court of Belgium still to be the law of that country.

The entire matter, as far as our courts are concerned, was discussed and decided in an exhaustive 113-page opinion by Mr. Justice Gray in Hilton v. Guyot, supra, wherein it was stated, in the final syllabus:

“A judgment for a sum of money, rendered by a court of a foreign country, having jurisdiction of the cause and of the parties, in a suit brought by one of its citizens against one of ours, is prima facie evidence only, and not conclusive of the merits of the claim, in an action brought here upon the judgment, if by the law of the foreign country, as in France, judgments of our own courts are not recognized as conclusive.”

It therefore appears that the decree of divorce and custody of children as originally entered and as later modified, are prima facie evidence in this court and respondent’s motion would not lie if the Belgian court had jurisdiction of the parties. This leads to an examination-of the second question.

Did the County Court of Brussels have jurisdiction of the person of Mrs. Nusbaum and the minor child, Marcus, at the time the decree of that court was modified? Admittedly, at that time neither Mrs. Nusbaum or the minor child, Marcus, was within the jurisdiction of the Kingdom of Belgium, but were, in fact, domiciled in the United States. It is to be remembered that the custody of the minor child, Marcus, was in the mother, so that the domicile of the child was that of the mother at the time that she came here.

The decree recites that the defendant “elected residence at rue Lambert, Crickx, Anderlecht,” and that she was “regularly served” and “did not appoint any solicitor.”

This Court not having the means of determining by what law of Belgium the defendant “elected residence,” or was. “regularly served” and none being pointed out by counsel, the Court is of the opinion that it is not required to go further than it would have to go if the judgment were that, of a sister State.

Now, Cooke v. Cooke, 248 Pacific, 83 (Utah) states:

“While the full faith and credit clause of the Constitution applies only to judicial proceedings of courts of other States, yet, under the doctrine of comity, we are not required to-give greater effect to an order or judgment of a foreign, country than we would to that of a sister State.”

What, then, is the situation, if the judgment, as shown by Exhibit A, were that of a sister State?

It was said in Halvey v. Halvey, 330 U. S., 610, at page 614:

“If the court of the State which rendered the judgment had no jurisdiction over the person or the subject matter the jurisdictional infirmity is not saved by the full faith and credit clause.”

In the celebrated case of Williams and others v. North Carolina, 325 U. S., 226, the second syllabus of that case is as follows:

“A decree of divorce rendered in one State may be collaterally impeached in another by proof that the court which rendered the decree had no jurisdiction, even though the record of the proceedings in that court purports to show-jurisdiction.”

Tested, then, by the law of comity between the States what is this situation? I believe that the law is well stated and amply supported by competent authority in 15 Ruling Case-Law at page 920, Section 401 under “Judgments.”

“The rule that the judgment of a foreign court is conclusive is uniformly qualified with the limitation that it has, in a give case, jurisdiction of the person and the subject matter, and in the absence thereof the judgment is of no-effect. The question of jurisdiction is, therefore, always open to inquiry, although the record in the case recites that the court had jurisdiction, and for the purpose of impeaching the judgment or want of jurisdiction resort may be had either to the face of the record itself or to extrinsic evidence. In a suit on a foreign judgment, the judgment debtor may successfully defend by showing that he was not served with process, and did not appear in the original suit.”

Consideration has been given to the situation, as in this case, where the court had jurisdiction of the subject matter and the parties in a divorce proceeding, and properly awarded custody of the children and thereafter upon motion modified the award as to custody. In many States, and in ours, the court has continuing jurisdiction and power to modify its decree as to custody by reason of change of conditions. There are decisions which hold that the decree of modification was valid and entitled to full faith and credit, even though the party against whom the modified decree was made and the children affected were beyond the jurisdiction of the court, and were not served with process.

These cases, several cited by counsel for petitioners in his reply brief, and others, have been examined by the Court with such care as time would permit and have been analyzed. The cases contra, cited by counsel for the respondent in his brief, with others, have, likewise, been examined and analyzed.

In the recent case of Vida v. Vida, reported in the January 30, 1950, issue of the Ohio Bar, 86 Oh Ap 139, and being a decision of the Court of Appeals of Lorain County, decided April, 1949, a divorce had been granted in Lorain County in 1939 with personal service on the husband. Divorce was decreed to the wife, with. custody of the minor child and an allowance of $4 per week for its support.

In 1948 a motion to modify the award and increase the allowance was filed and service by registered mail was made on the father then domiciled in Michigan.

On motion to set aside the service the court held:

“The attempt to invest the court with jurisdiction by such method was ineffectual. Service of notice by registered mail, upon a non-resident defendant, of motions filed in a case, where the court has continuing jurisdiction of the subject matter, is governed by §11372 et seq, GC, and may be made only when thé action is one in which service by publication is permitted.”

In the opinion the court refers to its prior opinion in Collins v. Collins, 79 Oh Ap, 328; 73 Northeastern 2nd, 814, wherein it said:

“The ‘proper proceedings’ to procure a modification may be by motion filed in the same court which entered the order and in the same case in which the original order was made, or by petition filed in a separate action in the same court.

“In either event, whether by motion or petition, notice to the adverse party is essential to invest the court with jurisdiction to determine the question presented.”

The case of Black v. Black, 110 Oh St 392, 1924, may be of some assistance. In that case an action was brought by Mrs. Black for a divorce and custody of the child in Franklin County, Ohio. The divorce was granted and custody of the child awarded to the mother. The case came before the Supreme Court on the ground that a constitutional question was involved. This question grew out of a claim that the trial court failed to give full faith and credit to a judgment, finding and decree of the Court of Suffolk County, Massachusetts, that court, both parties being properly in court, had previously awarded the custody of the child to the father, Mr. Black. The proceeding was a proceeding for custody alone and not for divorce.

In a per curiam opinion in affirming the decree as to the custody, the court said:

“Surely, if there was jurisdiction in the Common Pleas Court here to hear and determine the application for divorce or alimony; that jurisdiction would also extend to the determination of the custody of the minor child who had in fact been with her mother all the time referred to, and prior to that decree the Juvenile Court of Franklin County, Ohio, in a proceeding under the statute, had made the child a ward of the court and placed her in the custody of the mother.

“Upon the question of jurisdiction it need only be further stated that the defendant, not merely by his pleadings, but by his appearance in open court, waived any question of jurisdiction over his person, as is well settled by a long line of decisions of this court; the latest one, wherein the previous ones are cited, being Klein v. Lust, Ante, 197, 153 N. E., •527, decided April 15, 1924.”

The final paragraph:

“This court might well have found that no debatable constitutional question was involved in this case and sustained the motion to dismiss the same. The judgment of the Court of Appeals is affirmed.”

This case goes farther than the case at bar, since the court in Massachusetts had jurisdiction of the parties when its decree was entered awarding the custody to the father. The court doesn’t discuss the matter at length, but just summarily disposed of it.

In Halvey v. Halvey, 330 U. S., 610, supra, there was the situation somewhat like the case at bar. The divorce was granted in Florida and custody of an infant child awarded to the mother. The father took the child to New York. The mother brought action in the New York court based on the Florida decree to secure the custody of the child. The New York court entered a decree granting the custody to the mother, providing for visitation by the father which had not been done in the Florida decision, and requiring a bond to be given by the mother of $5,000 conditioned that she would deliver the child to the father as provided in the decree for the purpose of visitation.

The Supreme Court of the United States in affirming the New York court said:

“So far as the full faith and credit clause of the Constitution is concerned, what Florida can do in modifying the decree, New York may do.”

In the case of In re Volk, 254 Michigan, 25; 235 N. W. 354 (1931), the factual situation was that the mother and father were divorced in Toledo, Ohio, and custody of the child awarded to the mother.

The Juvenile Court in Lucas County, was presided over by one of the judges of the Common Pleas Court, and the Juvenile Court had exclusive jurisdiction over minors in certain cases. Proceedings were instituted in the Juvenile Court to the effect that the child did not have proper parental care. Both father and mother were served. Several other citations were issued in which both parents were served and certain orders were made by the court. Then the statement of facts continues:

“On October 10, 1930, another citation was issued by said Juvenile Court, served on the plaintiff herein, but not on the defendant herein for hearing on October 15, 1930, and under date of October 15, 1930, appears the following entry:

“ ‘Defendant in court, hearing had. Judge ordered sole and legal custody awarded to father. See Journal Entry.’

“The defendant, Hazel Volk, admits that in all proceedings had in said Juvenile Court up to and including September 10, 1930, she appeared in person in the Juvenile Court after service of due process, and it is conceded that no citations were served on defendant, Hazel Volk, for either of the hearings held on September 17th or October 15th, 1930; and that she was not present in court at either of said last two hearings.

“Neither the decree of divorce nor any of the orders made in the Juvenile Court of Ohio, expressly prohibited the mother from removing the child out of the jurisdiction of the Ohio courts, but on the 10th day of September, 1930, without the permission or knowledge of the Juvenile Court, or the knowledge or consent of the father, Frederick Volk, defendant, Hazel Volk, moved to the State of Michigan, taking the infant child with her.”

The question certified to the Supreme Court of Michigan by the Circuit Court of Wayne County was this:

“Are the orders of the Juvenile Court for Lucas County, Ohio, modifying its previous orders for the temporary care and custody of the minor child, Gilbert Clyde Volk, made without service of process on defendant, Hazel Volk, and made after she had left the State of Ohio, with the child, and she has acquired a domicile in the State of Michigan, valid and binding, so that such orders cannot be collaterally attacked in the proceedings instituted in the Circuit Court for the County of Wayne, State of Michigan?”

And in the opinion of the court it is said:

“At the time the petition for the writ of habeas corpus was filed, the mother had acquired a domicile in the State of Michigan. The domicile of an infant until emancipation is that of the father. But, under the decree of divorce, the mother was given his unrestricted custody. His domicile thereafter became that of his mother, and, when she removed to this State and became domiciled here, the domicile of the child was in Michigan.

“When the minor became domiciled here he became a ward of this State (Kane v. Kane, 241 Michigan 96, 216 N. W. 437), and no longer subject to, or under the control of, the courts in Ohio. The orders thereafter made by the Juvenile Court of that State in no way affected his status, and do not severally constitute judgments which must be given full faith and credit under the provision in the Federal Constitution.”

In People ex rel Wagner v. Torrence, 94 Colorado, 47, facts were presented to the court very similar to the facts in this case. The third and fourth syllabi are as follows, the third syllabus:

“Domicile. The domicile of a parent having the custody of minor children is the domicile of the children.”

Syllabus 4:

“Comity — Children—Custody. A court decree of one State awarding custody of a child is not binding upon the courts of another State under the full faith and credit clause of the Federal Constitution after the child has become domiciled in the latter State. Such a decree has no extra-territorial effect beyond the boundaries of the State where rendered.”

A further analysis of the various cases would extend this opinion beyond reasonable limits, especially as each case must be studied in view of the particular facts, the local law and the surrounding circumstances.

The very extensive case law on the subject is fully digested, in case notes appearing in 20 A. L. R. 815; 72 A. L. R., 441; 116 A. L. R., 1299; and especially in the 97-page note in 4 A. L. R. 2nd, page 7, to which reference is made.

Finding, as I do, that the petitioner and his wife, now Mrs. Nusbaum, were divorced in Belgium and the custody of the minor child, Marcus, was awarded to the mother by proceedings of which this Court must consider prima facie valid in all respects, and thereafter while mother and child were domiciled in the United States proceedings for modification of the decree by purported service unknown to our law was had and that such service, if made in this State would be invalid and confer no jurisdiction on the court to modify its decree, this Court, necessarily, finds that said decree of modification is not entitled to full faith and credit under the law of comity of nations; that under the original decree the mother has lawful custody of the minor child, Marcus, and that the petitioner herein has no right of custody, as far as the State of Ohio is concerned, other than the right of visitation granted him in the original Belgian decree.

In order to do justice between the parties the Court must examine the allegations, ascertain the facts respecting the matter in dispute and then declare the law arising upon the facts. This the Court has endeavored to do and in so doing the Court has not been unmindful that the rules of law which have been considered are subject to modification should the welfare of the child require such modification.

The law relating to cases of this kind is not applied with the strictness of the law as applied to personal property.

Happily no claim has been made that Mrs. Nusbaum is not a fit person to have the custody of the child, so no issue has been presented on that matter.

If such claim would have been made, and I apprehend none could have been made, the Court would have found it necessary to have examined into the matter, even though Mrs. Nusbaum is now an American citizen.

The Court appreciates and acknowledges the legalistic manner in which distinguished counsel in this matter has presented the matter to the Court and the aid to the Court which their briefs has afforded.

Viewing the matter as I do the petition will, therefore, be dismissed at petitioner’s costs and exceptions may be noted.


author: By NORRIS, PJ.

text:
    KIRKBRIDE et., Exrs., v. HICKOK et.
    Probate Court, Lucas County.
    No. 45207.
    Kirkbride, Cole, Frease & Mittendorf, Toledo, for plaintiffs.
    Marshall, Melhorn, Bloch & Belt, George N. Fell, Spengler, Nathanson, Hebenstreit & Heyman, William & Morgan, Henry W. Seney, Effler, Eastman, Stichter & Smith, Theodore Mark-wood, Harry & Stanley K. Levison, Richard D. Logan, Wayne E. Shawaker, Kirkbride, Cole, Frease & Mittendorf, Donald F. Melhorn, Toledo, Theodore Van Dellen, Albion, Michigan and Oliver W. Bates, Madison, for various defendants.
   OPINION

By NORRIS, PJ.

Arthur S. Hickok died June 30, 1945, leaving Daisy S. Hickok, his widow, and two children, Clarence H. Hickok and Ruth Hickok Marvin. His will, dated February 10, 1945, was admitted to probate and letters testamentary were issued to Walter G. Kirkbride, Carl F. Eisenhour and Clarence H. Hickok and The Toledo Trust Company, on July 9, 1945.

The inventory was filed October 22, 1945, in which the assets were appraised at $4,809,880.59. A supplementary inventory was filed August 15, 1946, listing additional assets of $355,398.97. The gross estate, according to federal estate tax returns filed September 30, 1946, was $5,306,353.15. Total deductions, including a deduction of $1,575,592.44, representing the value of the residue of the estate twenty years after decedent’s death, and which was deducted as a bequest to charities, were $2,055,502.71. In that return the net taxable estate was $3,250,850.44.

A tax of $1,164,794.61 was paid September 30, 1946, on the basis of the above return.

This estate has been involved in some litigation because of the question as to certain charitable bequests.

On April 27, 1949, hearing was had in this court upon the application of the executors' to compromise additional estate tax in the amount of $887,000.00. Testimony adduced at the hearing showed that such compromise would be highly beneficial to the estate. The court thereupon authorized the executors to enter into this compromise.

Since there was insufficient money in the hands of the executors to pay off the compromise, this action was instituted for advice and instructions. The Hickok will authorized executors to borrow money to pay debts and taxes.

The defendants herein include all persons having any business interest in the administration of the estate of said Arthur S. Hickok. Such an action is expressly authorized by statute; in fact, by two. different statutes, namely, §10504-66 GC, found in the chapter of the Code relating to wills, and §12102-4 GC, relating to declaratory judgments.

As will be noted, three of the four executors of the Hickok estate are individual persons. The fourth executor — The Toledo Trust Company — is an Ohio Banking Corporation with trust powers.

The application alleges that the executors are confronted with the necessity of providing cash for the immediate payment of a deficiency federal estate tax assessment and interest thereon, which now amounts to more than a million dollars; that the estate does not at the present time have on hand cash sufficient to pay said assessments; that instead of selling at this time for such purpose securities and other assets of the estate, plaintiffs deem it to be for the best interests of the estate to borrow temporarily at bank the funds necessary to pay such tax; that authority to procure such loan is expressly given to plaintiffs by Item II (b) of the will of Arthur S. Hickok, deceased, said item reading, in part, as follows:

“(b) I direct that all or any part of my debts, funeral expenses, expenses of administration and estate, succession and inheritance taxes as hereinbefore directed to be paid, may at the discretion of my executors be paid from the income and earnings of the assets of my estate and not from the principal thereof, and I direct my executors and the trustees hereinafter designated, if deemed necessary by them, to borrow funds necessary to pay the same and pledge so much as may be required of my property to secure the repayment thereof, on terms and for such period of time as they may deem proper. I specifically authorize my corporate executor named and any corporate successor thereto to loan to my executors or to the trustees of my estate, any amount of money upon terms and at such interest rate as is then reasonable, and I declare that any such loan or loans shall not, nor shall the receipt of interest therefor, in any manner be a violation of its duty as executor or as trustee.” (Emphasis ours.)

The application further states that, in order to provide funds for the purpose aforesaid, plaintiffs have requested The Toledo Trust Company to make and loan to plaintiffs in their capacity as executors in the principal sum of $450,000.00, or any such lessor amount as plaintiff shall determine, such loan to be made on and subject to certain specified terms and conditions set forth in the petition for instructions and the Toledo Trust Company has indicated its willingness to make the loan ■subject to the authorizing order of this court.

The application further states that although the will of ■Arthur S. Hickok expressly authorizes the executors to borrow money and expressly authorizes the corporate executor to make such loan, plaintiffs are in doubt as to their authority to consummate the loan, and as to the authority of said Trust Company to make the loan, by reason of the provisions of §10506-49 GC, reading as follows:

“Fiduciaries shall not buy from or sell to themselves nor shall they in their individual capacities have any dealings with the estate, except as expressly authorized by the instrument creating the trust and then only with the approval of the Probate Court in each instance; but no corporate fiduciary ■shall be permitted to do so, any power in the instrument creating the trust to the contrary notwithstanding. Provided, however, that nothing herein contained shall be construed to prohibit a fiduciary from making an advancement when such advancement has been expressly authorized by the instrument creating the trust or when the Probate Court shall so approve.”

Plaintiffs propounded three specific questions, namely,

(1) If The Toledo Trust Company makes a loan to the plaintiffs, in the nature, in the amount and for the purpose hereinabove referred to, would such law constitute an advancement within the meaning of said §10506-49 GC?

(2) Does anything in §10506-49 GC or in any other law prohibit either of the plaintiffs or The Toledo Trust Company from legally consummating said proposed loan in the ■amount and on substantially the terms and conditions and for the purpose hereinbefore set forth?

(3) Do the plaintiffs and The Toledo Trust Company have the right and authority under

(a) The said will of Arthur S. Hickok, and

(b) The laws of Ohio.

to make such loan in the amount and on substantially the terms and conditions and for the purpose hereinabove set forth?

Eminent and learned counsel representing the respective interests in this cause have filed helpful briefs.

In the first .instance, it will be noted that when §10506-49 GC, was originally enacted (114 O. L. 374), it read as follows:

“Fiduciaries shall not buy from or sell to themselves, nor shall they in their individual capacities have any dealings with the estate, any power in the instrument creating the trust to the contrary notwithstanding.”

In 1935, the section was amended (116 O. L. 392), and now reads as appears, supra.

It will be noted that the last sentence of the statute in question allows a “fiduciary” to make an advancement when such advancement has either been expressly authorized by the trust instrument or when the Probate Court shall so approve. That the word “fiduciary” as used in this sentence includes both an individual fiduciary and a corporate fiduciary seems clear, since the next preceeding sentence contains the words “but no corporate fiduciary shall be permitted to do so,” showing when the Legislature intended to prohibit the corporate fiduciary from doing something which it permitted the individual fiduciary to do, it used apt words to that effect.

(1) This court concludes, therefore, that both an individual fiduciary and a corporate fiduciary may make an advancement under the conditions stated in the last sentence of §10506-49 GC.

Both an individual fiduciary and a corporate fiduciary may make an advancement under the conditions stated in the last sentence of §10506-49 GC, when such advancement has been expressly authorized by the instrument creating the trust or when the Probate Court shall so approve.

Obviously, the next question which arises, is whether a loan by a corporate fiduciary to the trust estate administered' by it is an “advancement,” within the meaning of the statute. Since the statute itself does not define the word “advancement,” we must find its definition elsewhere.

We find that the word “advancement” has both a technical and a popular or general meaning.

Its technical meaning (as stated in 1 Bouvier’s Law Diet. Rawles Third Revision, p. 150) is:

“A gift by anticipation from a parent to a child of the whole or a part of what it is supposed such child will inherit on the death of a parent.”

It is quite clear that this is not the meaning which the Legislature had in mind in enacting §10506-49 GC. No fiduciary would be expected to make a gift to the estate.

In its popular significance, “advancement” means, among many other things,

“An advance of money or value.” (Webster’s New International Dictionary!

There has been brought to the court’s attention the case of Executors of Nolan v. Bolton, 25 Ga. 352 (1858!, in which at page 356, the court discusses the meaning of “advances” and says:

“In ordinary usage, what is the sense of ‘advances’?

“It is in anybody’s mouth to say that a man obtained an advance on his cotton, or on his watch, or on his note, and the meaning is that the man was accommodated with a loan on the security of the cotton, the watch, or the note.

‘Advance’: 6. A giving before hand; a furnishing of something on contract, before any equivalent is received.

‘7. A furnishing of money or goods for others, in expectation of reimbursement; or the property so furnished.’ Webster’s Dictionary.

“In ordinary usage therefore, the word advances includes loans,, and perhaps gifts. * * *

“Whether, then, we take the word according to its meaning in law, or according to its meaning in common usage, we must say that the word includes loans as well as gifts.”

In Seldon v. Equitable Trust Company, 94 U. S. 419, 24 L. Ed. 249, the court was called upon to construe a federal statute defining who should be “bankers” for the purpose of taxation. The statute provided that every bank “where money is advanced or loaned on stocks, bonds, etc.” 26 U. S. C. A. §1905, shall be regarded as a bank, 94 U. S. at page 421, 24 L. Ed. 249, the court says:

“In common understanding an advance or loan of money on stocks, bonds, bullion, bills of exchange or promissory notes •is an advance or loan where these species of property are pledged as collaterals or are hypothecated to secure the return of the advance or the payment of the sum lent.”

While there is no precedent which this court can find covering the precise questions and issues here, this court concludes that the word “advancement” has only two possible definitions — one technical and one popular, and since the technical meaning is clearly inapplicable, the popular definition must be accepted and resorted to.

(2) As shown above, the popular definition includes the making of a loan and that, this court thinks, is the meaning of the word “advancement” as we find it in §10506-49 GC.

Therefore, the first question propounded by the plaintiffs on page eight of their application, should be and is answered, “Yes.”

The second question should be answered and is answered, “No,” since this court can find no statute requiring a different answer.

Since Mr. Hickok’s will expressly authorizes the corporate executor to loan money to the estate, both branches of the third question should be and are answered, “Yes.”

The court therefore finds that if The Toledo Trust Company makes a loan to the plaintiffs of the nature, in the amount and for the purpose referred. to in plaintiffs’ petition, such loan will constitute “an advancement” within the meaning of §10506-49 GC.

(3) Further, nothing in said §10506-49 GC, or in any other law, prohibits either the plaintiffs or said The Toledo Trust Company from legally consummating said proposed loan in the amount and substantially on the terms and conditions and for the purpose set forth in plaintiffs’ petition.

Further, plaintiffs and The Toledo Trust Company have the right and authority under the said will of Arthur Hiekok, deceased, the consent of Daisy S. Hiekok, the surviving spouse, and under the laws of Ohio, to make such loan in the amount and upon substantially the terms and conditions and for the purpose set forth in plaintiff’s petition.

Counsel will prepare a journal entry consistent with the rulings and instructions herein.


author: By SKEEL, PJ. By McNAMEE, J,

text:
    KOLT et al, Plaintiffs-Appellees, v. CLEVELAND TRUST CO., Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21545.
    Decided April 24, 1950.
    M. O. Critchfield, S. J. Krohn, Cleveland, for plaintiffs-app ellees.
    McKeehan, Merrick, Arter & Stewart, Cleveland, for defendant-appellant.
   OPINION

By SKEEL, PJ.

This appeal comes to this court on questions of law from a judgment for the plaintiffs entered upon the verdict of a jury in the Court of Common Pleas of Cuyahoga County. The plaintiff’s action was for the recovery of money which he alleged he had placed in the night depository or vault of the Superior and East 123rd Street branch office of the defendant, and when called for was not returned because it could not be found.

The plaintiff, a retail meat dealer, by virtue of a contract with defendant had been accustomed to using the night depository facilities of defendant at its East 123 and Superior Avenue branch to make deposits of money and checks after banking hours, the deposits being made usually on Saturday night and on nights just preceding holidays.

For the purpose of receiving night deposits, the bank had installed a night depository vault. There was a small metal door placed in the outer wall of the East 123rd Street side of the banking rooms. This door was fitted with a locking device which could be opened only by the use of a key but which could be locked shut simply by completely closing the door. On the inside of this opening there was a metal chute about three feet long which led into a safe within the banking rooms. The top of this chute located just inside the outer metal door above described had a swinging door placed horizontally across the top, constructed very much like the receiving door of a package or parcel mail box used by the United States Postoffice Department.

The manner in which the night depositor would make his deposit was by first opening the outside door by the use of a key furnished by the bank. He would then pull down the swinging inner door at the top of the chute which would bring up a shelf completely closing the end of the chute. He would then put his deposit on such shelf and release the inner door which would swing up, closing the chute and drop the shelf down so that when the door was closed the deposit would fall through the chute and into the vault or safe.

Entrance to the safe or vault was controlled by a combination lock which could only be used after it was unlocked by a key. The duty of unlocking this safe or vault at a specified time was delegated to two employees — one who had the key, and the other who was given the combination, both of whom were required to be present at all times when the vault door was opened.

The right to use the night depository facilities was controlled by contract. The plaintiff entered into a written contract with the defendant on Jan. 16, 1946, whereby for a consideration of twenty-five cents for each “sack placed in the night chute” with a minimum charge of $1.00 per month, the plaintiff was given the right to make use of the night deposit facilities of defendant at East 123 and Superior Avenue branch. The contract assigned to plaintiff key No. 24 to the outside door of the night chute and “Sack No. 29 and two keys thereto” in which to place deposits before putting them in the night chute. The contract in part provided:

“The undersigned hereby agrees to use the Night Depository Facilities only for overnight keeping of Sacks, which Sacks shall contain nothing other than currency or commercial paper, or both, and further agrees that a person authorized by the undersigned will call at the Bank to receive and receipt for said Sack(s) on the first banking day following each placing by or on behalf of the undersigne'd of any Sack in the Night Chute. Bank shall have no duty or obligation whatsoever to see that the contents or any part thereof of any Sack is tendered for deposit for credit to any account with Bank, nor to ascertain the contents or disposition of contents of any Sack receipted for by any authorized person. The undersigned expressly understands and agrees that each use or attempted use by the undersigned of the Night Depository. Facilities shall be at the undersigned’s sole risk at all times and further expressly understands and agrees that the relationship of debtor and creditor between Bank and undersigned shall not arise out of any use or attempted use of the Night Depository facilities, each separate use by the undersigned of the Night Depository Facilities being deemed to have been completed each time any Sack hereinabove listed found in the Night Receptacle by Bank is receipted for by any authorized person.”

The contract also provided who should call at the bank the next business day after the night deposit had been made and take possession of the deposit bag or sack. David T. Kolt and Alfred Rafal, in addition to Aaron A. Kolt, were so designated.

The sacks provided under the contract were provided with a padlock, the depositor holding the only key. The depositor would place his deposit in the sack, lock it and then with the use of the key to the night chute, deposit it as above described. When the bank opened the next business day, the employees designated would open the night deposit vault in the presence of each other and one would take out the sacks and the other would make a record of the number of each bag or sack thus found in the night vault and the bag or sack would then be taken to the cashier’s cage of the one holding the key to the night vault, there to await being called for by the several depositors.

The plaintiff’s petition alleges that on the night of March 15, 1947 he, with Alfred Rafal, placed a deposit of money and checks, totalling $1772.00 in Sack No. 29 together with Rafal’s deposit of a smaller amount and together they went to the bank, unlocked the outer door, opened the chute, placed the sack which was then wrapped in a paper bag, on the shelf of the inner door, shut the inner door so that the sack would fall into the vault below and then locked the outer door and departed.

On March 17, 1947, at about 10 o’clock A. M., Rafal called at the bank to get the sack but it was not to be found nor was there any record of Sack No. 29 being found with the other night deposits.

Upon trial, the court charged the jury that the only question for their consideration is whether or not the plaintiff had established by a preponderance of the evidence that he had placed the deposit in the night deposit vault. The court’s charge was in part as follows:

“If after finding that the plaintiffs have proven to you by a preponderance of the evidence that this depository bag actually went into the mouth of that chute and thereby entered the possession of the bank; if then, following that proof by the plaintiffs the defendant has failed to meet the presumption which arises, by showing you that it exercised ordinary care in the care and custody of the bag, then the plaintiffs are entitled to recover in this controversy, if the plaintiffs have proven to you by a preponderance of the evidence that this depository bag went into the mouth of that chute and into the possession of the bank. But that presumption having arisen against the bank, if the bank has met that presumption by showing you that it did exercise ordinary care in the manner of its care and custody of that bag, then again your verdict should be for the defendant. Those are the issues for you to determine, and those are the important issues. There was a contract made by and between the Kolt Brothers and the Cleveland Trust Company, which is in evidence and which will be with you in your jury room. I will say to you now, as a matter of law, that no provision of any kind in that contract can change or alter in the least these rules of law which I have heretofore given you regarding the law in this case.”

At the conclusion of the taking of the evidence the defendant requested the court to give the following instructions, which request was presented in writing as provided by §11420-1 GC.

“I say to you, as a matter of law, that the burden of proof is upon the plaintiff to prove by a preponderance of the evidence that the defendant received in its possession night depository sack No. 29 on the date in question. If you do not find by a preponderance of the evidence that the defendant did receive night depository bag No. 29 on that date in question then your verdict must be for the defendant.”

The court refused the request to which exceptions were taken.

The defendant claims the following errors:

“1. The trial court erred in overruling the motion for a directed verdict at the close of plaintiff’s evidence and renewed at the close of all the evidence.

2. The trial court erred in overruling defendant’s motion for judgment notwithstanding the verdict.

3. The trial court erred in overruling defendant’s motion for a new trial.”

If, in fact, the night deposit bag or sack of the plaintiff was placed in the night deposit chute, in the proper manner, the relationship between ■ the bank and plaintiff, from such time as a night deposit was so placed in the chute until it was subsequently returned to the depositor as provided by the terms of the contract, was that of bailor and bailee. This is so because by the terms of the contract the bank furnished the plaintiff with a key with which to operate the night deposit door in taking advantage of the night deposit facilities. The bank therefore would be held to have accepted a deposit made in accordance with the terms of the contract, which acceptance created the bailor-bailee relationship. Such a relationship of bailor and bailee would continue until the bailor or his duly constituted representative, called for it as provided by the contract. As soon as the bailor or his representative received it, the relationship of bailor and bailee would be at an end and if the contents of the bag was then deposited, the relationship of debtor and creditor would be created.

It is defendant’s contention that by the provisions of §710-110 GC, the bank is empowered to contract with respect to the use of its night deposit vaults upon such terms and conditions as it may prescribe. And that by the contract (in part above quoted) deposits made thereunder were to-be at the depositor’s risk.

Sec. 710-110 GC provides as follows:

“A bank may receive on deposit for safe-keeping in its vaults 'and safes, or in the vaults and safes of another bank in this state, securities, stocks, bonds, coins, plate, jewelry, books, papers, documents and other valuable papers and property upon such terms and conditions as it may prescribe.”

This statute seems broad enough to include the right of a bank by contract to provide upon what terms it will make available facilities for making deposits in night deposit vaults to be used during the time when the bank is not open. But if by strict interpretation it should be construed not to extend its provisions to night depositories, this section of the General Code of Ohio at least establishes a legislative policy to permit banks to enter into contracts limiting common law liability with respect to securities deposited with it for safe keeping in its vaults. Such a service is one rendered in the interest of a customer who would otherwise be compelled to face the risk that attends the possession of large sums of money in the night season in the regular conduct of his business.

Of necessity, no one representing the bank is present when a night deposit is made. Whether such deposit has actually been made must be established in every event by the evidence of the depositor. It would therefore be a very natural position of the bank to take that until the sack is actually accounted for by the bank’s clerks in the ordinary procedure of accounting for night deposits sacks, such deposits should be at the risk of the depositor. Such a contract is not void as against public policy.

That such a limitation by contract is not against public policy is indicated in the case of Bernsteen v. Northwestern National Bank of Phila. 157 Pa. Sup. Ct. 73, 41 A. (2d) 440. The first paragraph of the headnotes provides:

“A bank in furnishing a night depository service may enter upon a contract relation with depositors on mutually acceptable terms defining banks liability within legal limits in case of loss.”

In this case no such contract had been entered into so that the ordinary rules of bailment were used in fixing the liability of the bank, but on page 441 the court said:

“The purpose of the device was to furnish the facilities for making a general deposit. The bank might have, but it did not enter upon a contract relation with plaintiffs on mutually acceptable terms (9 C. J. S. Banks & Banking, Sec. 267; Burrill v. Dollar Savings Bank, 92 Pa. 134, 37 Am. Rep. 669) defining its liability within legal limits in the event of loss. In the absence of such limiting agreement the law will imply from the making of the deposit in this case that the relation ultimately intended was that of debtor and creditor.”

Where the circumstances are such that the possession of another’s property is attended with unusual risks, the parties dealing at arm’s length as free agents may lawfully make any reasonable provision therefor as the circumstances justify.

Contracts relieving the promisor from liability even for his negligence have been upheld on the broad grounds of freedom of contract. guaranteed by the federal and state constitutions. For example, as between landlord and tenant, it has been held that the relationship is not a matter of public interest but relates exclusively to the private affairs of the parties concerned and that the two parties stand upon equal terms. 175 A. L. R. 87, parag. 46. Perry v. Payne, 217 Pa. 252; Kirschenbaum v. General Outdoor Adv. Co. 258 N. Y. 489.

In the last cited case the court said:

“Stipulations between a landlord and tenant, determining which shall bear a loss arising from non repair or mis-repair of the tenement and which shall be immune, are not matters of public concern. Moreover, the two stand upon equal terms; neither the one nor the other is under any form of compulsion to make the stipulation; either may equally well accept or refuse entry into the relationship of landlord and tenant. We think it clear that public policy does not condemn the immunity clause voluntarily agreed upon by the parties.”

The right of the bank to immunity from whatever cause except its wilful wrong-doing in furnishing night deposit services under the terms of an exculpatory agreement is supported in theory at least by the almost universal rule that a common carrier (railroad) may by contract relieve itself from liability even for its negligence or that of its servants or employees in the construction and use of private sidings and spur tracks. 175 A. L. R. 100 parag. 51. In the case of Mann v. Pere Marquette R. R. Co. 135 Mich. 210, which was concerned with a contract exempting the carrier from loss resulting from the negligent operation of its locomotive over a railroad side track, the court said:

“This case does not fall within those where contracts to exempt from liability are held void on the ground of public policy. It is a fundamental rule of law that what one may refuse to do entirely, he may agree to do upon such terms as he pleases. In contracting to put in those side tracks the defendant was not acting in the capacity of a common carrier. It was under no legal, obligation to put them in. It might have refused. There was no occasion to contract against properly equipped and properly managed engines for fire caused by such would not create any liability. The only purpose for such was to avoid the consequences of its own negligence and to avoid lawsuits growing out of alleged negligent acts. It had a perfect right both in reason and authority to contract against such liability.”

The case law of bailment supports the same principles of law. Again quoting from 175 A. L. R. p. 110, parag. 55 the author says:

“The modern development of the law of bailments and its extension to many new and varied transactions as a result of the increasing complexity of today’s commercial relationships is reflected accurately in the position the courts take in regard to the exculpatory clauses found so frequently in bailment contracts. While the right of the ordinary bailee to make a contract exempting him from liability due to his negligence or the negligence of his employees is recognized with practical unanimity, a strong tendency to hold such contracts void as violative of public policy is noticeable in the decisions of the courts which deal with contracts of bailment for hire entered into by the bailee in the course of a general dealing with the public; and this tendency becomes more pronounced the more recent the decisions, although there is still respectable authority for the view that such provision may be valid against all but gross negligence. Bailees of the second type as this term is understood here, are persons who make it their principal business to act as bailee and who deal with the public on a uniform and not an individual basis as evidenced by the fact that their contracts as a rule are printed on identification tokens or are posted in their place of business. The chief representatives of this type of bailees are owners of parcel checkrooms, owners of parking places, garagemen and ware-housemen.”

Upon the above authority, the case of Insurance Co. v. Constantine, 144 Oh St 275, is to be distinguished from the instant case. The Constantine case involved one engaging exclusively in the business of parking automobiles for hire. It is not to be presumed that the Supreme Court by its holding in the Constantine case on the question of limiting liability intended to exclude on the ground of public policy, all contracts which limit the common law liability of an ordinary bailee for hire. This must be true especially in cases involving safe deposit vaults because of the legislative policy indicated by §711-110 GC supra.

It must be likewise noted that the Supreme Court in the Constantine case, supra, or in the case of Hotel Statler Co. Inc v. Safier, 103 Oh St 638, did not overrule or modify its holding in the case of Insurance Co. v. Railway Co. 74 Oh St 30. In this case the right of a railroad company to stipulate as a provision of the lease that it would not be liable for any loss caused by the lessee by fire accidentally or negligently communicated to the property by the railroad company lessor through the acts of its agents or servants was considered. The property of the railroad company lessor about which the lease dealt was adjoining the right of way of the defendant’s railroad so that fire was an everpresent danger. The court said:

“1. A stipulation in a lease made by the railroad company that the lessee is to exonerate it from all liability for damages by fire to any property or structure on the demised premises, which in the operation of the railroad may be accidentally or negligently communicated to it, is not void as against public policy.

2. Such lessee and his insurers cannot recover from the railroad company the amount of the loss by fire to a building and its contents owned by the lessee and located partly on such premises when in the operation of the railroad the fire was communicated to that part of the building on the demised premises.”

The right of a bailee to relieve itself from liability for its own negligence in the execution of the bailment contract considered in the note in 175 A. L. R. supra, especially where the bailee is a so-called “professional” bailee, has to do with his liability in the management and control of the goods and where there is no issue as to the receipt of the goods. This is likewise true with regard the cases therein considered where the courts place a strict construction upon the contract limiting the liability of the bailee (unless the provisions of the contract are so clear and unambiguous as to leave no doubt as to the meaning of the exculpatory clause) that the words of limitation were not intended to include relief from the bailee’s negligence. But the instant case is not concerned with property admittedly in the possession of thebailee. Here the primary consideration is as to whether the “deposit sack” actually came into the possession of the defendant at all.

The method devised by the defendant for safeguarding deposit sacks properly placed in the night deposit chute exemplified a high degree of care and protection for the property of depositors, and the manner in which these precautions were carried out on the first business day after the claimed use of the night deposit facilities by the plaintiff is not refuted by the plaintiff except by his claim that the deposit sack was put in the chute.

The plaintiff’s action is upon the contract, the terms of which places the risk upon him until actually receipted for. As indicated, the manner in which night deposits must of necessity be made, should permit the defendant to protect itself within reasonable limits.

We conclude, therefore, that the court’s charge entirely eliminating the contract from the consideration of the jury, was in error as were the rulings of the court on the motions for judgment.

Having come to the foregoing conclusion, it is unnecessary to consider the error claimed for the refusal to charge as requested before argument other than to say that the charge as requested was a correct statement of law upon an issue presented by the pleadings and evidence in the charge and should have been given.

For the foregoing reasons, therefore, the judgment of the Common Pleas Court is reversed and final judgment entered for the defendant. Exc. Order see journal.

HURD, J, concurs.

McNAMEE, J, dissents. (See dissenting opinion)

DISSENTING OPINION

By McNAMEE, J,

(dissenting)

As I understand the views of the Supreme Court on the .subject, there is no legal inpediment against giving effect to the special contracts that limit the degree of liability of an ordinary bailee for loss occasioned by its negligence, but a bailee by special contract may not exonerate itself from liability occasioned by its own negligence.

In Hotels Statler v. Safier, 103 Oh St 638, 646, the following •statement appears in the opinion by Jones J:

“Ordinarily in bailments the parties may diminish the liability of the bailee by special contract, provided the contract .is not in violation of law or of public policy and does not relieve the bailee of negligence.”

Immediately following the above, Judge Jones added:

“But in the instant case no such special contract was made, .and in the absence of a special agreement the law of bailments fixes the degree of the bailee’s liability.”

This latter statement implies clearly that where no prohibitions of law or considerations of public policy intervene, parties to a bailment may by special contract limit the degree ■of the bailee’s liability for its own negligence. However, the express declaration against the validity of a contract that ■exempts a bailee from liability for negligence that appears in the Statler case is approved and amplified in Agricultural Ins. Co. v. Constantine 144 Oh St 275, where at page 283 of the ■opinion the court said:

“It is now apparently well settled that a bailee for hire •cannot, by contract, exempt himself from liability for his own negligence or that of his agents or servants (Franklin & So. Pacific Co. 203 Cal. 680, 265 P. 936, 59 A. L. R. 118; Hotels Statler Inc. v. Safier, 103 Oh St 638, 134 N. E. 460, 22 A. L. R. 1190; Scott Auto & Supply Co. v. McQueen, 111 Okla. 107, 226 P. 372, 34 A. L. R. 162; Simms v. Sullivan, 100 Ore. 487, 198 P. 240, 15 A. L. R. 678; Sporsem v. First Nat’l Bank of Poulsbo, 133 Wash. 199, 233 P. 641, 40 A. L. R. 854.”

In Sporsem v. First National Bank of Poulsbo, supra, the bank leased a safe deposit box to the plaintiff. The contents •of the box were lost through a burglary. The Bank, among other defenses, claimed exemption from liability by virtue of the clause in the contract with the depositor that it “assumes no liability whatever for any loss or damage that may occur.” The Court answered this contention by the statement that “It is now apparently well-settled that a bailee for hire cannot exempt himself from liability for his own negligence.”

In the instant case, the clause relied on by the bank is:

“The undersigned expressly understands and agrees that each use or attempted use by the undersigned of the Night Depository facilities shall be at the undersigned’s sole risk at all times * *

If there be any significant difference between the purport of this provision and the exculpatory clause in the Sporsem case, I am unable to perceive it.

In Agricultural Ins. Co. v. Constantine, supra, the exculpatory clause read:

“No attendant on duty after regular closing hours. Cars left after closing at owner’s risk. This station will endeavor to protect the property of its patrons, but it is agreed that it will not be liable for loss or damage of cars, accessories or contents, from whatever cause arising.”

Observing that the above language is broad enough to avoid liability for wanton or wilful misconduct of the appellee the court said:

“The attempted limitation of liability here under consideration cannot be upheld either upon reason or authority, whether it applied during regular business hours or only after closing time.”

The statements in the opinions of the Safier and Constantine cases as hereinabove quoted were not carried into the syllabi of the cases in which they appear. But they are authoritative expressions of the court on important legal principles. Unless they are to be rendered devoid of meaning they ought to serve as reliable guides to proper judicial action in cases where the principles discussed are decisive of the issues presented. If this be not so, it is for the Supreme Court and not this Court to say.


author: By ARTL, J.

text:
    CLEVELAND (City), etc., v. DIVISION 268, et al.
    Common Pleas Court, Cuyahoga County.
    No. 609819.
    Decided December 26, 1949.
    Robert J. Shoup, General Counsel, Robert F. Mooney, Asst. General Counsel, Cleveland, for plaintiff, City of Cleveland.
    Bernard Friedman, Cleveland, for defendants.
   OPINION

By ARTL, J.

The plaintiff in this action, is the city of Cleveland, a municipal corporation, by the individuals constituting the Transit Board of the city of Cleveland.

The plaintiff is a division of the municipality of the city of Cleveland. The Transit System is a publicly owned institution, owned by the people of the city of Cleveland.

It is to be noted that as a matter of law there is a legal limitation upon the power of the Transit Board in this instance, or of any public Board, to deal with, that is, to contract with a labor organization. The employees in the Transit System must recognize that they do not have the same right to contract with a public Board that they do with a private employer. There is abundant authority for that proposition.

City of Cleveland v. Division 268 of the Amalgamated Assn. etc., 30 O. O. 395 (1945), an action involving these same defendants; Hagerman v. Dayton, 147 Oh St 313, 34 O. O. 238 (1947); Nutter v. City of Santa Monica, 74 Cal. App. (2d) 292, 168 Pac. (2d) 741 (1946); Miami Water Works Local No. 654 v. City of Miami, 157 Fla. 445, 26 So. (2d) 194, 165 A. L. R. 967 (1946); City of Springfield v. Clouse, 356 Mo. 1239, 206 S. W. (2d) 539 (1947); Mugford v. Baltimore, 185 Md. 266, 44 Atl. (2d) 745 (1945).

But in the practical recognition of the rights of the employees of the city of Cleveland, and in this instance of the rights of the employees of the Transit System, there has been set up machinery to take care of, to adjust, and arrive .at working conditions; machinery that was set up for the ■express purpose of making the conditions of employees reasonable, both from the standpoint of the city of Cleveland and the employees.

In this instance an impartial umpire system has been established to determine any and all grievances and working conditions where a dispute arises between the city and the transit employees. This machinery, as the court views it, is entirely voluntary. There is no legal obligation on the part of the employer, in this instance the city, to do so,— to set up this kind of machinery. There is nothing in the law that says that employees may force an employer — public employer — a city government — to enter into any labor contract.

City of Cleveland v. Division 268 of the Amalgamated Assn. etc., 30 O. O. 395 (1945); Hagerman v. Dayton, 147 Oh St, 313, 34 O. O. 238 (1947); Nutter v. City of Santa Monica, 74 Cal. App. (2d) 292, 168 Pac. (2d) 741 (1946).

That is a part of the background that we have before us and the machinery that has been established to dispose of grievances was entirely voluntary.

Now the defendants in this case, first of all, are members of Division 268 of the Amalgamated Association of Street and Electric Railway and Motor Coach Employees of America. In addition thereto, we have as defendants Thomas P. Meaney, individually and as president of the Local, and Mr. Harry C. Lang, individually and as financial secretary and treasurer of the Local. In addition thereto we have other officers of the Local, and I understand from statements made to the court that Mr. Meaney and Mr. Lang are not employees of the city of Cleveland, but all the other officers are.

I might point out at this time that from the statement of Mr. Friedman, acquiesced in by counsel for the City Transit, defendant William Clifford is no longer employed by the city, I understand. Is that correct? And that as to him, the action will be dismissed.

Now this is a class suit. It is an action brought by the city of Cleveland against all of the members of Local 268 and these members are all employed by the city of Cleveland with the exception of Mr. Meaney and Mr. Lang.

Now, so that the court’s position is clearly understood, in a class suit, such as this is, all members of Division 268 are before the court, through the representatives named as such defendants, as though they were all expressly made parties to this lawsuit.

Sec. 11257 GC; Kiser v. Operator’s Union, 4 Abs 55, 159 N. E. 494; Kealey v. Faulkner, 7 N. P. (N. S.) 49; H. H. Meyer Packing Co. v. Butcher’s Union, 18 N. P. (N. S.) 457; 24 O. Jur, Labor, Section 64, at page 680.

Now this machinery I spoke of a moment ago, this impartial machinery that was set up for the determination and the settlement of grievances was through the medium of an impartial umpire. But the important thing about the impartial umpire machinery that has beén established is that if it is to be effective, the decision of the umpire in any case must be accepted by both sides. There must be mutuality in this respect, or the system, the machinery set up for the settlement of these grievances will br’eak down.

I have indicated a moment ago that the acquiescence therein by the public employer is of necessity a voluntary act. It is singular, also, in this case, the machinery that established this impartial umpire system under which you have operated in this case is not something that was forced upon the employees. I understand that the machinery was devised by agreement between both the members of Local 268 and the city, and if my memory serves me correctly, I believe counsel on one side or the other stated that the umpire chosen in this case was chosen at the instance and suggestion of Local 268.

Now it is not the function of the court in this litigation to pass upon the wisdom, the fairness, the justice or the injustice of the umpire’s decision which apparently precipitated this controversy here. Any dissatisfaction with that decision or any need for any clarification of its provisions is a matter that must be taken back to the umpire, in the event of a misunderstanding and dissatisfaction.

But we come to the question of whether or not, in the event of dissatisfaction with the umpire’s decision, the employees of the city, members of this Local 268 — would they have the right to strike?

I stated a little bit earlier, and I want to be sure that this is definitely understood, that this is not the situation where an employer and his employees may enter into a contract to care for and to take care of labor relations. This is a situation where the public employer is not free to do so, under the authorities that have been cited to this court, and many others that abound.

The question is whether or not public employees do have the right to strike. Under the common law, — and there is no question about it so far as this court is concerned, — there is no right to strike on behalf of public employees, for many reasons, some of which at least, might be paraphrased in the language of several of the decisions, that it is a means of coercing the delegation of the discretion which a public Board or public Body must exercise in its fulfillment of its duties.

Hagerman v. Dayton, 147 Oh St, 313, 34 O. O. 238, (19471; City of Los Angeles v. Los Angeles Bldg. and Trades Council, 210 Pac. (2d) 305 at pages 311-312; Mugford v. Baltimore, 185 Md. 266, 44 Atl. (2d) 745, at page 747, 162 A. L. R. 1101, at page 1104.

It has been repeatedly stated that it is against public policy for public employees to strike. Many courts have held that a strike by public employees is against public policy, is unlawful, illegal and may be restrained and enjoined. Houston v. Duncan, order of the District Court of Harris County, Texas, Labor Unions and Municipal Employee Law, page 158; City of Tulsa v. Shryock and City of Tulsa v. Vinall, 11 Municipal Law Journal 92; City of Pittsburgh v. Mueller and Duquesne Light Co. No. 2978, 11 Municipal Law Journal 94-95, wherein the city of Pittsburgh obtained a restraining order on the union officers and employees of a private power company to prevent a work stoppage; United States v. United Mine Workers of America, 330 U. S. 258, 91 L. Ed. 595 (19471; Los Angeles v. Los Angeles Bldg. and Trades Council, 210 Pac. (2d) 305; Society of New York Hospital v. Hanson, 59 N. Y. S. (2d) 91 (1945) and Beth-El Hospital v. Robbins, 60 N. Y. S. (2d) 798 (1946), a restraining order being granted in the Hanson case and a permanent injunction being granted in the Robbins case under the theory that employees working for a hospital, public or private, have no right to strike; 43 C. J. S. Section 147, page 744; and by obiter in the following cases; Mugford v. Baltimore, 185 Md. 266, 44 Atl. (2d) 745; Wilson v. New, 61 U. S. L. Ed. 755; Miami Water Works Local No. 654 v. City of Miami, 157 Fla. 445, 26 So. (2d) 194, 165 A. L. R. 967 (1946); Congress of Industrial Organizations v. City of Dallas, Texas, 198 S. W. (2d) 143; Perez v. Board of Police Commissioners, 78 Cal. App. (2d) 638; Petrucci v. Hogan, 27 N. Y. S. (2d) 718; City of Springfield v. Clouse, 356 Mo. 1239, 206 S. W. (2d) 539; Hagerman v. City of Dayton, 147 Oh St, 313, 34 O. O. 238. See also Rhyne, Labor Unions and Municipal Employee Law (1946).

Now in the state of Ohio the Legislature adopted a section of the Code, dealing with the subject. It is under the caption, “Strike of public employees,” and it covers §17-7 to 17-12 GC.

Sec. 17-8 GC reads as follows:

“No person holding a position by appointment or employment in the government of the State of Ohio or in the government of the several cities, villages, counties or townships thereof, or any other political subdivision of the state, or of a municipality, or in the public school service, or in any public or special district or in the service of any authority, commission or Board or in any other branch of the public service hereinafter called a public employee, shall strike.”

The other sections of the Code included within the Act that I just referred to, provide for penalties.

Now counsel for the defendants has urged the court that that section has application only to the municipality •dealing with or engaged in its governmental function. And that since the operation of the Transit System is a proprietary function, that this section of the Code would have no application.

I am sorry to say that this court cannot agree with you, .Mr. Friedman, in that contention. The section of the Code that I have read to you is very specific; it makes no distinction between a government in its governmental function, and •a government in its proprietary function. This same contention was urged upon the court in the City of Los Angeles v. Los Angeles Bldg, and Trades Council, supra, and denied by the court.

This section of the General Code that I just read is merely expressive of the common law. The Legislature of Ohio, like the United States Congress and legislatures of many other states (Ohio, New York, Michigan, New Jersey, Virginia, Minnesota, Pennsylvania, Missouri, Indiana, Texas, Nebraska and Washington), has enacted legislation spelling out the common law as it is and has been known. And why? I think it is clear that in our system of government, the government is a servant of all of the people. And a strike against the public, a strike of public employees, has been denominated in the decisions cited above, as a rebellion against government. The right to strike, if accorded to public employees, I say, is one means of destroying government. And if they destroy government, we have anarchy, we have chaos.

I think that is definitely why the Legislature has spelled out the question of whether or not public employees shall have the right to strike.

The Legislature, in no unmistakable terms, has set forth what has been true under the common law.

Now it is urged in this instance that Mr. Meaney and Mr. Lang are not employees of the city of Cleveland, and that the Ferguson Act, so-called, has no application to them as officers of the Local.

This court is satisfied that their influence with the members and their leadership in the controversy that exists at this time is of such a character that we cannot shut our eyes to their functions as representatives of this Local. Both of these gentlemen, over the years, have accorded to this Local leadership of a very fine character. They have represented this Local in its dealings and negotiations with the city of Cleveland; they are officials of the Union, and they are amenable, like other members of this Local, to whatever orders and directions emanate from this court.

I must point out also, the power of the court to enjoin an unlawful act does not stem alone from the so-called Ferguson Act. There is an inherent right in the Court of Equity at all times to enjoin any wrong-doing wheré there is no adequate remedy at law.

19 Am. Jur., Equity, Section 451; 16 O. Jur. Equity, Sec. 45, pg. 111.

And if, as a consequence of the relationship of these gentlemen to the members of the Local who are public employees— if their influence, their orders and directions are in any way of a character that would be construed as aiding and abetting in the doing of something that is contrary to law, this court would be empowered to enjoin them. 24 O. Jur., Labor, Section 64.

It strikes the court that the duty of these public employees is clear. Their striking, as they are at this time, is unlawful, and as a consequence this court is required under the decisions to enjoin this unlawful act.

Now under the circumstances, the prayer of the plaintiff’s petition will be granted, as to Item 1, Item 2, Item 3, Item 4, Item 5 and Item 6.

Coming now to Item 7. This court has been advised by counsel for defendants, Thomas Meaney and Harry Lang, stated in open court, that neither Mr. Meaney nor Mr. Lang had ordered any strike or directed any strike. There has been no evidence offered that they have. I say there has been no evidence that this court may consider, that they have ordered the strike, or that they have in any way directed a strike.

By that I mean directing members to go on strike. And therefore the first part of paragraph No. 7 of necessity may not form the basis of the restraining order. But so much thereof as reads as follows:

“That this Court issue a mandatory order upon defendants Thomas P. Meaney and Harry C. Lang, and the aforesaid officers and members of the Board of Local 268, to issue an order upon the members of Local 268 to cease striking, to cease abstaining from their public employment in whole or in part and to return to their respective duties as public employees of the Cleveland Transit System in order to resume operation of its vehicles and to resume normal operation of the Transit System of the City of Cleveland.”

That part of the restraining order prayed for will remain.

Now it is the court’s opinion that the members of Local 268, including the officers and the executive Board, by their conduct in the past, have demonstrated that they are people worthy of trust and confidence. This court is of the opinion that the membership of this Local 268, when it has spelled out for them its duty, as the court has done in this instance, will abide by the decision of this court.

This court is of the opinion that if the right had been demonstrated to them or clarified to them in the past, I doubt very seriously if we would have had a strike on our hands today.

And therefore let these members demonstrate that they do believe in the principles of government; that they do believe in respecting court orders. The court will make this-order effective as of December 27, 1949 to give these members, the opportunity to determine whether or not they will return to work.


author: By HORNBECK, J: By THE COURT:

text:
    WOODWARD, Plaintiff-Appellee, v. GLASER, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2075.
    Decided January 7, 1950.
    C. W. Magsig, Dayton, for plaintiff-appellee.
    Nicholas F. Nolan, Mathias H. Heck, Dayton, for defendant-appellant.
   OPINION

By HORNBECK, J:

This is a law appeal from a judgment of the Common Pleas Court in favor of plaintiff and against the defendant for $5,000.

The action was for damages for the breach of a written contract wherein it was averred defendant agreed to sell to the plaintiff all of the assets of Good Health Bakery, Dayton, Ohio, which included the real estate where the business was operated and the personal property, together with several down-town stands which, it was asserted, were worth $5,000. Defendant answered admitting the signing of a tentative conditional contract prepared by and presented to her by plaintiff and alleged that the contract was not to be final until it was approved by and to the full satisfaction of the husband of the defendant. It is further averred that the husband did not agree, consent to, or approve, the tentative contract or the terms thereof. The reply was a general denial of the new matter in the answer.

The cause went to trial to judge and jury resulting in a verdict for the plaintiff in the sum of $5,000 upon which judgment was entered. Motions for new trial and for judgment veredicto non obstante were overruled.

In the assignments of error three errors are assigned.

(1) In overruling defendant-appellant’s motion for a new trial and motion for judgment notwithstanding the verdict.

(2) Said judgment is contrary to law.

(3) Other errors apparent on the face of the record.

In defendant-appellant’s brief, under different headings, five assignments are set out.

(1 and 2) In permitting the jury to determine whether or not there was a contract between the parties.

(3) In charging the jury the law of implied contract and oral contract because neither was involved, the plaintiff suing upon a written contract.

(4) In admitting testimony as to an implied contract.

(5) A substantial reiteration of 1 and 2 assignments.

There is no doubt that there was a written contract between the parties; however, it was not complete in all of its terms and required oral testimony to clarify it. The infirmity in this judgment is found in the effect given the proof offered by the parties rather than in the admission of oral testimony respecting the contract, or in the charge of the court, with the one exception, which we hereafter consider.

Appellant’s brief suggests that the court erred in refusing to give the following special charge before argument at the request of defendant:

“I charge you, members of the jury, that it is the law of this state that if you should find toy a preponderance of the evidence that a contract exists, that same must be construed strictly against the person who prepared it, and favorably to the person who had no voice in the selection of the language; further, it is presumed that one using words, uses those most favorable to his interest and therefore, all doubtful terms or ambiguous words are to be construed against him.”

This charge should have been given if the plaintiff had made a case for the jury. Stone v. Rockefeller, 29 Oh St 625; Monnett v. Monnett, 46 Oh St 30; Chesrown v. Bevier, 101 Oh St 282; Fire Assn of Philadelphia v. Agresta, 115 Oh St 426.

It is urged that because there was testimony to the effect that both parties arranged with the individual who prepared the contract to draft it, the charge is not proper. There is also testimony that the plaintiff alone made the arrangements for the drafting of the instrument. The charge, as framed, does not make any assumption fixing responsibility for preparing the contract, but leaves it to the jury and then defines the rule attending after the jury has so determined.

At the outset, it should be noted that the plaintiff sues and relies upon a written contract and must take it as he finds it in all particulars wherein it is definite.

The main issue between the parties is the meaning of the language “This tentative purchase agreement” as employed in the very first lines of the contract. The plaintiff’s claim was that the tentative aspects of the contract had been eliminated before it was signed and that the defendant obligated herself to perform, unreservedly, the other provisions of the written agreement.

When the contract was signed, the emphasized part of parties had it under consideration, it contained the following:

“It is further agreed that should title to real estate not be clear, nor it be impossible for purchaser to operate three market stands by reason of not being accepted as a tenant, this sale shall at his wish be voided, and all monies paid •returned.”

When the contract was signed, the emphasized part of the paragraph had been stricken with pen and ink. It is that part of the agreement which plaintiff contends was tentative.

It was the contention of the defendant, as pleaded, that the purchase agreement was tentative in that it was to be effective only if, and when, agreed to by the husband of the defendant, whom it was claimed, owned a half interest in the bakery and the record disclosed, owned a half interest in the real estate claimed to be involved in the contract. It thus became a question of fact whether or not the defendant, under her tentative contract, was bound to convey, or to do all within her power to convey, the assets of the bakery. As reflecting upon this question the parties, very properly, were permitted to testify as to all the facts and circumstances surrounding the transaction.

It is the obligation of the court to construe and to charge the meaning of a contract when it is a matter of law only.

Where some of its terms are ambiguous as to the meaning of which reasonable minds may differ, to that extent, it is a question for the jury under proper instructions from the court. The Storrs-Schaefer Co. v. Laws, 13 Oh Ap 387.

The plaintiff at the inception of his case, and at all times, takes an inconsistent attitude as to the construction of the contract, upon which he relies.

The phrase, “tentative purchase agreement” being in the contract as sued upon, must be accepted and given meaning. Its meaning not being elucidated in writing, testimony could be received as to circumstances attending and contemporaneous with the signing of the agreement to enable the jury to determine its true interpretation. In other words, in what particular or particulars is the contract tentative?

The claim of the defendant and the testimony supporting it met the requirement of proof to the effect that the tentative or conditional part of the contract was that it was not to be finally effective until agreed to by the husband of the defendant and further, that he at no time consented to the terms of the agreement as to the purchase price.

Webster’s International Dictionary defines tentative "of the nature of an attempt, experiment, or hypothesis to which one is not finally committed * * *; offered or undertaken provisionally * * *. Synonym: — provisional. Antonym: — definite, final, conclusive.”

The claim of the plaintiff is that the contract sued upon is final. This meaning of ‘tentative” is the very antonym of the word and to permit such construction would be a violation of the rule that oral evidence may not be accepted to vary or contradict the terms of a written instrument. Johnson v. Pierce, 16 Oh St 473; Denton v. Whitney, 31 Oh St 89; Tuttle v. Burgett, Admr., 53 Oh St 498; fourth Syl.; Fidelity & C. Co. v. Hartzell Bros. Co., 109 Oh St 506.

Decided February 8, 1950.

There is no prayer for reformation of the contract and yet it must be reformed if the word “tentative” is to be stricken and if the claim of the plaintiff is to be maintained.

The only explanation of the word “tentative,” consistent with its meaning, comes from the testimony of the defendant. The plaintiff offers nothing to clarify its meaning but says that it has no meaning and does not belong in the contract. In the situation thus developed, the plaintiff has failed to maintain his burden of proof.

In the view which we take, we consider the law as announced in McCarty v. Lingman, 111 Oh St 551. If the defendant agreed unconditionally to transfer all of the assets of Good Health Bakery, she was bound to perform, if possible, whether or not she was the full owner of the assets of the bakery. If she could not, or would not perform, she was liable for damages resulting by reason of the breach of the contract. But her agreement was not unconditional and it becomes necessary to determine what the condition was. This cannot be met by the claim that there was no condition left in the contract when consummated.

The judgment must be reversed for failure to give the special charge which we have herein considered, and for failure to sustain the motion for new trial and defendant’s motion for judgment notwithstanding the verdict. This motion is sustained and judgment is entered for the defendant and the cause remanded.

MILLER, PJ, and WISEMAN, J, concur.

ON APPLICATION FOR REHEARING

No. 2075.

By THE COURT:

Appellee flies and briefs his application for re-hearing.

At the present time our rules of practice make no provision for such application. However, we have carefully read counsel’s brief and feel that we could not answer it more fully than we have in our former opinion to which we adhere.

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


author: OPINION By SKEEL, PJ.

text:
    STATE ex MACKO, Relator, v. WESTROPP, Judge etc., Respondent.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21875.
    Decided May 1, 1950.
    B. B. Murad, Cleveland, for relator.
    Lee C. Howley, Director of Law, Robt. J. Seltzer, Asst. Director of Law, Cleveland, for respondent.
   OPINION

By SKEEL, PJ.

The Relator brings this cause as an original action in this Court, seeking a writ of mandamus directing the respondent to entertain a motion filed in the Municipal Court of Cleveland seeking a reduction of the amount of bail fixed by the respondent in a criminal action commenced in that Court against this relator.

The Relator was charged with the crime of automobile stealing, and upon such charge he came before the Respondent upon preliminary hearing on April 5, 1950. Upon hearing, the Respondent as Judge of the Municipal Court of Cleveland, found that there was probable cause to believe that the crime of automobile stealing had been committed and there was likewise probable cause to believe that Relator was guilty of such crime and committed the case to the Court of Common Pleas of Cuyahoga County for the consideration of the Grand Jury of said County.

After the hearing in the Municipal Court above set forth, the transcript of the proceedings was filed with the Clerk of Common Pleas Court of Cuyahoga County, Criminal Branch, on April 13, 1950. Thereafter a motion was filed in the Municipal Court of Cleveland which was assigned for trial to this Respondent.

The Respondent as Judge of the Municipal Court of Cleveland refused to entertain said motion for the reason that said Court had lost jurisdiction of the Relator.

The sole question here present, is — whether, after a bind-over to the Common Pleas Court in a felony case, does the Municipal Court of Cleveland retain jurisdiction of such defendant to pass on a motion seeking a reduction of the amount of bail set at the time of such preliminary hearing?

The answer must be in the negative. Once a committing magistrate upon hearing or waiver of such hearing commits the defendant to the consideration of the Grand Jury of the County and the transcript of t,he case is filed with the Clerk of the Court of Common Pleas of the County, the Court of Common Pleas is then vested with jurisdiction to hear all preliminary matters that may thereafter arise such as a motion to reduce the amount of the bail fixed by the committing magistrate. It must logically follow that the jurisdiction of the Municipal Court of Cleveland of the person of such defendant, is, after the filing of such transcript, entirely lost.

In the case of State of Ohio v. Morrow, 90 Oh St 202, it was held:

“A case is pending in the common pleas court, within the meaning of the General schedule to the amendments of 1912 to the Constitution of Ohio, when there is filed in that court a transcript of the criminal docket of the examining magistrate by whom the accused has been committed to the jail of the county or recognized to appear before that court to answer the charge in the affidavit filed with such magistrate.”

And on page 207 and 208 the court said:

“The prosecution was instituted according to the regular course of proceedings and the filing of the transcript from the docket of the justice of the peace in the common pleas court vested that court with jurisdiction to hear and determine all questions arising therein, independent of whether an indictment was returned, or otherwise. The return of the indictment is but an incident in the progress of the prosecution. The prosecution is commenced in the common pleas court by filing the transcript from the magistrate’s court.”

For the foregoing reasons the writ is denied. Exc. Order see journal.

McNAMEE, J, HURD, J, concur.