author: By MILLS, J.

text:
    FRIGIDAIRE DIVISION, Appellant, v. BOARD OF REVIEW, BUREAU OF UNEMPLOYMENT COMPENSATION et, Appellees.
    Common Pleas Court, Montgomery County.
    No. 100794.
    Decided February 16, 1950.
    Cowden, Pfarrer & Crew, Dayton, for appellant.
    Herbert S. Duffy, Atty. Geni., Madison C. Perkins, Asst. Atty. Geni., Columbus, for Board of Review.
   OPINION

By MILLS, J.

This cause came on for consideration of the motion of the attorney general, appearing for the Board of Review of the Bureau of Unemployment Compensation, one of the appellees herein, and moves the court for an order dismissing the attempted appeal herein for the reason that the notice of appeal filed by appellant, Frigidaire Division, General Motors Corporation, fails to set forth the decision appealed from as required by law, and refers to Zier v. Bureau of Unemployment Compensation, 151 Oh St, 123, 38 O. O. 573, Judge Matthias, in his decision therein, seemed to follow Kinsman v. Evatt, 145 Oh St, 52, 30 O. O. 279, Dayton Rental v. Evatt, 145 Oh St, 215, 30 O. O. 447, and American Restaurant & Lunch Co. v. Glander, 147 Oh St, 147, 34 O. O. 8.

Sec. 1346-4 GC pertinent to appeal is as follows:

“Such appeal shall be taken by the filing by appellant of a notice of appeal with the clerk of such court and with the board of review. Such notice of appeal shall set forth

“(1) The decision appealed from and the errors therein complained of.

“(2) Proof of the filing of such notice with the board of review shall be filed with the clerk of such court.

“(3) All other interested parties before the board of review or the referee shall be made appellees.

“(4) The appellant shall serve notice of the appeal upon all appellees by registered mail or actual delivery to his last known post office address unless such notice is waived.”

The appellant has complied with two, three and four and the question before the court is to determine what the legislature meant when they said “set forth.” Appellant claims that the following complies with the words “set forth”:

“Frigidaire Division, General Motors Corporation, Appellant, hereby gives notice of appeal to the Common Pleas Court of Montgomery County, Ohio, from the decision of the Board of Review, Bureau of Unemployment Compensation, State of Ohio, in re Claim of Elmer C. Coldiron, Acme, West Virginia, Appeals Docket No. 61566, Date of mailing June 14,1949, affirming decision of referee dated January 7, 1948.
“Appellant says that the decision of the Board of Review is erroneous and against the just rights of this appellant in the following respects,”

and then names the various errors, five in number.

The tax cases referred to by Judge Matthias in his decision covered appeals in tax cases and not cases involving unemployment compensation. Sec. 5611 GC, refers to appeals from the tax commissioner, says:

“The notice of such appeal shall set forth or shall have attached thereto and incorporated therein by reference, a true copy of the notice sent by the commissioner to the tax payer of the final determination complained of, and shall also specify the error or errors therein complained of.”

This is a different statute covering a different subject. Judge Matthias was referring to something else; he was referring to the fact that the appellant failed to set forth the specific errors that the board of review, was guilty of. In the instant case, appellant here has set forth the case appealed from, being 61566, involving Elmer C. Coldiron, of Acme, West Virginia, the date of mailing June 14, 1949, affirming the decision of the referee dated January 7, 1948, which shows it is the decision of the Board of Review he was appealing from, and the file of the Board of Review filed with the clerk of Common Pleas Court is a certified transcript of the record and proceedings pertaining to the decision complained of and the evidence considered by the Board of Review, all of which advises the court reviewing the case of what transpired at the hearing and every step taken from the time the man left the employment of the Frigidaire Corporation to the date of the hearing in Common Pleas Court.

It is the opinion of this court that if the statute meant to copy the decision from which the appeal is made it would have said so, either copy it word for word in the notice of appeal, .or else copy it and refer to it as Exhibit A. In the case before Judge Matthias the appellant did not comply with all .four provisions of §1346-4 GC, in that the appellant filed the •following notice of appeal in the Court of Common Pleas of Cuyahoga County:

“The undersigned claimant hereby gives notice of appeal from the decision of the board of review denying the right to compensation, in accordance with his right to appeal under §1346-4 GC”

thus failing to do several things that would apprise the court of a single ground or what decision he referred to. In the instant case the board of review, the Common Pleas Court, the employe, everyone, is given notice, referring to the proper case number and the final decision, complying with the law. A copy of the decision was filed by the Board of Review in the Common Pleas Court. What would be the object of having that several paged decision copied in an appeal when the original decision, or a copy, would be filed and was filed in this case by the Board of Review as required by law, together with all the exhibits and transcript of the evidence. It would only encumber the record. In looking to the intent of the legislature, the court cannot conceive that the legislature would require appellant to do a vain thing and thus further encumber the record. Everything is before the court that is necessary for the court to use to determine this action if the parties will appear.

It is the opinion of the court, therefore, that the motion to dismiss the appeal should be overruled.

ON TRANSCRIPT OF EVIDENCE

Common Pleas Court, Montgomery County.

No. 100794. Decided March 8, 1950.

OPINION

By MILLS, J.

This cause comes on to be heard upon the transcript of evidence, exhibits, findings and the opinions of the Board of Review and the record of the proceedings pertaining to this action on an appeal from the decision of the Board of Review of the Bureau of Unemployment Compensation allowing Elmer C. Coldiron, one of the appellees in this case, benefits under the unemployment compensation statutes, §1345-1 to §1346-5 GC, and the extensive arguments of counsel for appellant and appellees.

The record shows that Elmer C. Coldiron, claimant, was first employed by Frigidaire Division, General Motors Corporation, Dayton, Ohio, on April 4, 1944, and continued in such employment except for a short lay off period in 1945, until September 30, 1946. The record is plain that on September 30, 1946 claimant voluntarily quit his work with Frigidaire Division, without notice, and without just cause, after having refused a job assignment, and it is undisputed that he quit without just cause on September 30, 1946.

The record shows that when he left the Frigidaire Division there was a job he could do similar to the one he had been doing, which was inspection work, had he wanted to remain at Frigidaire Division.

Coldiron went to Colorado where he worked picking up beets for the United States Government Farm Extension Service at Loveland, Colorado, where he was employed during the period from October 28, 1946 to November 6, 1946. He quit that job because a heavy snow prevented continuation of the work. There is no evidence in the record to show claimant’s earnings totalled $84.00, or any other amount, which would be four times the weekly benefit amount.

On November 26, 1946, claimant, at Corbin, Kentucky, filed an interstate claim for unemployment benefits. On December 26, 1946, after being notified that claimant had filed a claim for benefits, the employer, Frigidaire Division, wrote to claimant stating, among other things, that his employment experience with them indicated he would be fitted for jobs then available.

Claimant says he answered this letter, wanting to know 'what the nature of the work was but he never received any reply. A witness for appellant testified that he never replied to the letter that was written to him, and that they had similar work which he had been accustomed to do when previously employed there for him to come to had he returned to Dayton.

The Board of Review, in affirming the referee’s decision of January 7, 1948 allowing compensation to the claimant, wrote an opinion setting forth the reasons why they arrived at their opinion. This is part of the record, and was an interpretation of §1345-6 GC.

However, one member of the Board of Review, John W. Wiper, dissented and filed his dissenting opinion.

The court has carefully read both the decision of the referee, which was affirmed by a majority of the Board of Review allowing the compensation, and the dissenting opinion, which dissenting opinion sets forth all the facts relative to this case and cites case law of the State of Ohio giving reasons why the claimant’s application for unemployment compensation should be disallowed. This court is in full accord with the dissenting opinion.

The following is a copy of the dissenting opinion:

“I dissent from the opinion and decision of the majority in this cause.

“The instant original claim for benefits was filed on November 25, 1946, §1345-6-d(9) GC at such time provided as follows:

“d. Notwithstanding the provisions of subsection (a) of this section, no individual may serve a waiting period or be paid benefits for the duration of any period of unemployment with respect to which the administrator finds that such individual

“(9) voluntarily quit his work without just cause. Disqualification under this subsection shall continue for the full period of unemployment next ensuing after he has left his work voluntarily without just cause and until such individual has become reemployed and has earnings equal to at least four times his weekly benefit amount.”"

“The original claim being filed on the aforesaid date, the base period thereof pursuant to the provisions of §1345-1-0 GC extends from July 1, 1945 to June 30, 1946. The quarter of the highest earnings in said base period is the quarter ending September 30, 1945, wherein the claimant received wages of $704.52. This sum, in accordance with §1345-8-b GC, calls for a weekly benefit amount of $21.00. General Motors Corporation, Frigidaire Division, is the sole base period employer.

“The claimant quit the aforesaid employment without notice on September 30, 1946. Subsequent thereto, the majority finds that claimant worked between October 28, 1946 and November 6, 1946, in the state of Colorado. They make no findings as to his earnings from such work but for the purposes of their decision, it is assumed that he earned less than four times the weekly benefit amount. A letter was mailed to claimant’s Colorado employer concerning claimant’s earnings there and the following reply was received, to-wit:

‘Loveland, Colorado July 26, 1948

‘Replying to the above I am unable to locate this man in our files. If he worked here he probably was laid off about November 6, due to snowstorm.’

“The majority necessarily finds that the extent of his earnings in such work is immaterial in view of their finding that he was separated from such work by reason of lack of work. The majority decision also, in effect, finds that claimant voluntarily quit his work with the General Motors Corporation without just cause.

“The issue is therefore presented as to whether the disqualification arising out of a voluntary quitting of work without just cause is removed or discontinued by the mere securing of another .job and losing such job for some non-disqualifying reason without earning therein four times the weekly benefit amount. In the opinion of the writer, a finding that the disqualification provided by the statute is so removed or discontinued, is wholly in derogation of the specific provisions of §1345-G-d(9) GC, which subsection was added to existing §1345-6-d GC and became a part of the Ohio law on September 5, 1945. Prior to September 5, 1945, voluntary quits and discharges were covered by §1345-6-b GC and operated as extenders of the waiting period and reducers of the maximum number of times weekly benefits were payable. With the adoption of §1345-6-d(9) GC and the deletion of the provisions relative to voluntary quits from §1345-6-b GC, voluntary quits without just cause no longer affect extent of waiting period or the number of weeks of benefits potentially payable but operate as complete disqualifiers until certain specific conditions have been complied with.

“By the clear and unambiguous provisions of §1345-6-d(9) GC, the legislature has provided that the disqualification arising out of a voluntary quitting of work shall continue until the claimant has done two separate and distinct things, namely, become re-employed and has earned an amount equal to four times the weekly benefit amount. It is to be noted here that by the specific terms of the statute, the disqualification is to continue not only for the duration of the period of unemployment next ensuing after such a quit, but until he has become reemployed and has earnings therein equal to at least four times the weekly benefit amount. The two separate requirements for the removing or discontinuing of the disqualification are joined by the conjunction “and.” It is also clear from the statute that disqualification begins with the voluntary quitting of work, without just cause, as the statute specifically provides that the disqualification shall continue for the full period of unemployment next ensuing, et cetera. The words ‘next ensuing’ certainly refer to the unemployment beginning with the voluntary quitting of work. Pursuant to the express language of the statute the disqualification attaches immediately upon the voluntary quitting of work without just cause.

“The majority by its decision, holds, in reality, that a claimant must do only one of the things prescribed by the legislature, namely, become re-employed. This decision completely disregards the second requirement or qualification imposed by the legislature, to wit, the necessity of the claimant earning in his re-employment a sum equal to at least four times the weekly benefit amount before the disqualification is discontinued or removed. Such an interpretation simply drops out of the statute a requirement factor which the legislature of the state of Ohio has seen fit to insert. This amounts to legislating, which is not the function of this board.

“If the legislature had intended that the disqualification arising out of the voluntary quit without just cause should discontinue upon the securing by the individual of another job, it would have said so. It certainly knew how to so provide, as clearly shown by the term of §1345-6-(d) GC in relation to other subsections thereof. Attention is directed to the terms of §1345-6- (d) GC in relation to subsection (7) thereof. Subsection (7), standing alone, provides ‘quit work to marry or because of marital obligation.’ The general provisions of §1345-6-d GC are to be read as part of subsection (7) and in substance provide that the disqualification for quitting work to marry shall continue only for the duration of the period of unemployment following such a quit. Here, clearly, the disqualification is discontinued or removed by the fulfilling of one factor only, namely, becoming re-employed. The majority, in looking to claimant’s last separation from work only and allowing the claim when they find that he was laid off therefrom for lack of work, ignores the preceding voluntary quit without just cause and, in effect, removes or discontinues the disqualification arising therefrom upon the individual becoming reemployed. The majority, in effect, applies the same disqualification and means of removal or discontinuance thereof to a case involving a voluntary quitting of work without just cause under §1345-6-d-(9) GC as is provided for the removal or discontinuance of a disqualification under §1345-6-d-(7) GC aforesaid. This is done in spite of the fact that the provisions of §1345-6-d-(7) GC and §1345-6-d-(9) GC are dissimilar, and the fact that the latter subsection imposes another requirement in addition to becoming reemployed, namely, the necessity of earning four times the weekly benefit amount in such re-employment before the disqualification is discontinued or removed.

“Further, the legislature if it had intended that the disqualification arising out of a voluntary quitting of work without just cause was to terminate or discontinue upon the claimant becoming re-employed, could have readily said so by the simple process of placing a period after the word, to wit, ‘re-employed’ in subsection §1345-6-d-(9) GC and stopping there. Also, if the legislature had so intended, it could have omitted the entire second sentence of §1345-6-d-(9) GC so that d-(9) would have followed the exact pattern of §1345-6-d-(7) GC, supra, and have read, to-wit ‘(9) voluntarily quitting his work without just cause,’ thus making the provisions of §1345-6-d GC apply to both subsections (7) and (9).

“The majority decision in looking only to the last separation from work, in effect, limits the disqualification to the duration of the period of unemployment following a voluntary quitting of work and refers in part to §1345-6-d GC.— The provisions of §1345-6-d GC, however, are general, while the provisions of §1345-6-d-(9) GC are special. Clearly, under such circumstances, the special provisions of the statute with reference to a specific subject matter, are controlling over a general statutory provision covering other subjects as well as the specific subject matter. In the case of Acme Engineering Co., appellant v. Jones, Administrator, Bureau of Unemployment Compensation, appellee, 150 Oh St, 423, 38 O. O. 294, the Supreme Court of Ohio at page 431 of the opinion, clearly stated the law on this point, to wit:

‘It is the general rule of law in statutory construction that when there are two statutory provisions covering the same subject matter, one of which is general and the other special, the special statutory provisions for a specific case is to be construed as an exception to general provisions which might otherwise include the particular case.

‘This court has followed that general rule which is not only buttressed by authority but is sound in reason and logic. In State, ex rel. Steller v. Zangerle, Aud., 100 Oh St 414, 126 N. E. 413, it is said:

“ ‘A special statute covering a particular subject matter must be read as an exception to a statute covering the same and other subject in general terms.’ ”

‘In State, ex rel, Elliott Co. v. Connar, Supt., 123 Oh St, 310,— N. E., 200 the first paragraph of the syllabus reads:

“ ‘Special statutory provisions for particular cases operate as exceptions to general provisions which might otherwise include the particular cases and such cases are governed by the special provisions.’ ”

“Further, the legislature has eliminated any question in this matter by specifically providing in subsection (9) of §1345-6-d GC, the particular disqualification applicable for voluntarily quitting work without just cause.

“It is also to be noted that the provisions of §1345-6-d GC and the provisions of §1345-6-d-(l) GC are dissimilar as to the period of disqualification. This Board has ruled many times in labor dispute cases, that the provisions of §1345-6-d- (1) GC as to the duration of the disqualification, are controlling over the provisions of §1345-6-d GC, thus giving effect to the aforesaid well established rule that special provisions govern general provisions. In the instant cause, however, the majority has, in effect, found the general provisions controlling over the special provisions of the statute.

“The issue presented in this cause has been before the Ohio courts in three cases, namely, The Selby Shoe Co., appellant v. William F. Carr, appellee, Common Pleas Court of Scioto County; Frank J. Collopy, Administrator of the Bureau of Unemployment Compensation, appellant v. Board of Review, et al, Common Pleas Court, Warren County, and Brown-Brockmeyer Co., employer-appellee v. Fred Holmes, employee-appellant, Court of Appeals for Montgomery County (54 Abs 207). In two of the aforesaid cases, the instant issue was directly before the court, and in the other, indirectly, in that the claimant therein had actually earned more than four times his weekly benefit amount in his re-employment after voluntarily quitting his work without just cause in connection therewith.

“In the case of The Selby Shoe Co. v. Carr, supra, the claimant had voluntarily quit his regular employment as a shoe worker, without just cause and shortly thereafter, secured employment as a taxi driver, where he worked only five days, earning $16.61, before being laid oil for lack of work. The Referee hearing the cause, in his decision looked only to claimant’s separation from work as a cab driver and allowed the claim. The employer’s application to institute further appeal from such Referee’s decision was disallowed by a majority of the Board of Review, the writer voting to allow such application. The cause was appealed to the Common Pleas Court of Scioto County which court reversed the decision of the Referee and the aforesaid order of the Board and found that the decision complained of was ‘unlawful, unreasonable and against the manifest weight of the evidence.’ No further appeal was taken from the decision of the Common Pleas Court.

“The case of Frank J. Collopy, Administrator v. Board of Review, et al, supra, is similar in principle to the aforesaid Carr case and again a Common Pleas Court reversed the decision of the Referee, wherein a prior quitting had been ignored, stating in its opinion, as follows, to wit:

‘This day this matter came on for hearing on appeal from a decision of a Referee of the Board of Reviaw, Bureau of Unemployment Compensation, in the claim of Sherman E. Wilson. The record shows the following facts: Sherman Ernest Wilson, claimant, was an employee of the Inter State System of Dayton, Ohio, from September 8, 1945, to March 8, 1947, on which latter date he quit his employment because of lack of transportation. Thereafter he was employed by Carl W. Brown, of Harveysburg, Ohio, who was not covered by the Unemployment Compensation. He was also employed by Ray Morgan, Waynesville, Ohio, but the record does not show whether or not this was covered employment.

‘From the facts, and the law as I interpret it, the claimant has not earned four times his potential weekly benefit amount in covered employment, since he voluntarily separated from the Inter State System without just cause in connection with his work and is not entitled to a valid claim in accordance with subsection 9 of §1345 GC.

T am therefore of the opinion that the decision of the Referee of the Board of Review should be reversed and an entry may be drawn accordingly.’

“In the case of Brown-Brockmeyer Co., v. Holmes, supra, while it could be argued that the issue was not directly before the court by reason of the fact that the claimant therein had actually earned more than four times his weekly benefit amount in his re-employment subsequent to his quitting his Ohio employment, the court nevertheless in its opinion, made the following cogent statement on the subject matter, to wit:

‘* * * Tlie ciaimant clearly has a right to voluntarily leave the employment of Brown-Brockmeyer, but in so doing, under §1345-6-d-(9) GC, he lost all his right to benefits under the act until he was again re-employed in employment subject to the unemployment act or the Unemployment Compensation Act of another state and has earnings equal to at least four times his weekly benefit amount.

‘The record discloses the disqualification was removed as he became re-employed in California and his earnings surpassed the minimum amount enumerated in the statute. He therefore became restored to all of the rights and privileges provided under the Act. * *

“The decision of the majority, in the opinion of the writer, is not only contrary to the provisions of the applicable statute, but also nullifies a portion thereof. Such decision is also contrary to the Ohio court cases on the subject matter. — The claim should be disallowed.

(Signed) Don W. Wiper

Member, Board of Review”

Date of Mailing: June 14, 1949

Since the instant case was heard before the Board of Review, the Supreme Court, in the case of Brown-Brockmeyer Company v. Holmes, reported in 152 Oh St, 411, 40 O. O. 405, has expressed not only in the syllabi of the case, but in their reasoning all the law necessary to determine this action. Any other interpretation of §1345-6 to 9 GC, inclusive, in the opinion of this court would permit irresponsible employees to sever connections with their employers, move to a distant state, and under pretense of employment for a short time, dissipate the fund set aside for laborers who honestly and diligently work to earn their daily bread, and leave nothing in the fund for the purposes for which this law was passed, which was for unfortunate, honest workmen to bridge over a short period of unemployment and be able to support themselves and their families without appealing to charity. This law was made for the honest, diligent and responsible, and should be so interpreted to protect him; the law is very plain, as was the intent of the legislature.

This court can set forth no more sound reasoning than is set forth in the dissenting opinion of member of the Board of Review, Mr. Don W. Wiper, and the argument, reasoning and law contained in the opinion of Judge Hart in the BrownBrockmeyer case cited above. Applying the law as enunciated in the decisions of the courts of Ohio and in the applicable sections of the General Code to the facts of this case, it must be concluded that the claimant herein is not entitled to benefits under the Unemployment Compensation Act.

For the reasons given this court finds that the decision of the majority of the Board of Review from which this appeal was taken is unlawful and unreasonable, and accordingly should be and it is reversed and vacated.

Counsel will prepare and present the appropriate entry.

FRIGIDAIRE DIVISION, Plaintiff-Appellee, v. BOARD OF REVIEW, BUREAU OF UNEMPLOYMENT COMPENSATION, STATE et, Defendant-Appellant.

Ohio Appeals, Second District, Montgomery County.

No. 2109. Decided August 21, 1950.

Cowden, Pfarrer & Crew, Dayton, for plaintiff-appellee.

Herbert S. Duffy, Atty. Geni., James B. Dooley, Asst. Atty. Geni., Columbus, for defendant-appellant.

OPINION

By THE COURT:

Submitted on motion of plaintiff-appellee for an order dismissing the appeal on the ground that the appellant failed to file a brief and assignments of error within the time prescribed by Rule VII. It appears from the record that neither the brief nor the assignments of error were filed within fifty (50) days after filing the notice of appeal. In the case of State, ex rel. Merrill v. Moore, 83 Oh Ap 525, 82 N. E. (2d) 323, this Court held:

“This Court has consistently ruled that where the appellant fails to file assignments of error and brief within fifty (50) days after the filing of notice of intention to appeal, a motion to dismiss the appeal will be sustained.”

Motion to dismiss the appeal is hereby sustained.

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


source: Caselaw Access Project

author: By THE COURT:

license: Public Domain

text:
    JOLLEY, Plaintiff-Appellee, v. MARTIN BROTHERS BOX COMPANY, Defendant-Appellant.
    Ohio Appeals, Second District, Darke County.
    No. 692.
    Decided October 13, 1950.
    Spidel, Staley & Hole, Greenville, for plaintiff-appellee.
    Boggs, Boggs & Boggs, Toledo, Marchal & Marchal, Green-ville, for defendant-appellant.
   OPINION

By THE COURT:

This is an appeal on questions of law from the judgment of the Common Pleas Court of Darke County, Ohio, overruling defendant’s motion for judgment non obstante veredicto and from the judgment entered on the verdict in favor of the plaintiff.

Defendant-appellant claims that the second amended petition of plaintiff-appellee did not state a cause of action; that upon the evidence defendant-appellant was entitled to judgment; that the act of which the defendant was found guilty could not as a matter of law have been the proximate cause of the accident and injuries suffered by the plaintiff.

The plaintiff is entitled to the benefit of the most favorable construction of the pleadings and the evidence. McAtee v. Life Insurance Co., 82 Oh Ap 131, 81 N. E. (2d) 225. In determining the questions involved this Court is not permitted to weigh the evidence. Sec. 11601 GC.; Wilkeson v. Erskine & Son, 145 Oh St 218, 61 N. E. (2d) 201; Krueger v. S. Brewing Co., 82 Oh Ap 57, 79 N. E. (2d) 366; Vol. 39 O. Jur., page 799, Section 182. In the case of Wilkeson v. Erskine & Son the fourth paragraph of the syllabus is as follows:

“Where there is no defect in the statements contained in plaintiff’s pleadings and there is substantial evidence from which a reasonable conclusion might be drawn that defendant was guilty of negligence proximately causing plaintiff’s injury a motion non obstante veredicto attacking a verdict in favor of plaintiff may not be sustained. The weight of the evidence is not involved upon such motion. (Sec. 11601 GC.)”

We have no difficulty in finding that the plaintiff’s second amended petition states a good cause of action.

The question for determination is whether the defendant-appellant was entitled to judgment as a matter of law. The plaintiff charged three specifications of negligence, to-wit: First, that the defendant-appellant operated its two tractor-trailers across the center line and on the wrong side of said highway; second, that the defendant’s tractor-trailers were driven at a high and dangerous rate of speed, considering the width, surface and condition of said highway, to-wit: at a speed of fifty miles per hour; third, that the second tractor-trailer was being operated at a distance in the rear of the first tractor-trailer which was closer than was reasonable and prudent, having due regard for the speed of said tractor-trailers, the weather, the condition of the highway, width thereof and the traffic on said highway, to-wit: at a distance of fifty feet.

The defendant charged the driver of the automobile in which the plaintiff was an occupant with excessive speed.

There was a conflict in the testimony as to the speed of the automobile in which the plaintiff was an occupant and the two tractor-trailers of the defendant company, the position of the tractor-trailers and automobile on the highway at the moment of impact, the distance maintained between the two tractor-trailer outfits, and the manner in which the automobile collided with the second tractor-trailer. The plaintiff and defendant had at the time of trial, and still have, different theories as to the manner in which the collision occurred. Both direct and circumstantial evidence was admitted in support of the two contentions. There is circumstantial evidence to support plaintiff’s claim from which a reasonable conclusion might be drawn that the defendant was guilty of negligence proximately causing plaintiff’s injuries.

The defendant submitted several interrogatories. Interrogatory No. 1 is as follows: “Do you find that the defendant was guilty of any act or acts of negligence which directly and proximately caused the collision and the injuries claimed by plaintiff?” The jury answered, “Yes.” Interrogatory No. 2 is as follows: “if your answer to Interrogatory No. 1 is ‘Yes’ designate below such act or acts of negligence.” The jury answered, “Driving at an excess of speed. Driving second truck too close to first truck.” Interrogatory No. 3 is as follows: “If your answer to Interrogatory No. 1 is ‘Yes,’ do you find on the part of the plaintiff, Dale E. Jolley, any act or acts of negligence causing or contributing to cause the collision and the injuries claimed by plaintiff?” The jury answered, “no.” Interrogatories Nos. 4 and 5 requested the jury to answer whether or not the drivers of the two tractor-trailers were guilty of any act or negligence directly and proximately causing the collision and injuries to the plaintiff. The jury answered “Yes” to both of these interrogatories. The fact that the jury failed to find, in answer to Interrogatory No. 2, in favor of the plaintiff upon the first specification of negligence, to-wit: That the tractor-trailers were operated across the center line and on the wrong side of the highway, is not inconsistent with a verdict for the plaintiff. The first interrogatory required the jury to find whether the defendant was guilty of any acts of negligence which directly and proximately

caused the collision and injuries claimed by the plaintiff. The second interrogatory required the jury to designate such act or acts of negligence. Both interrogatories involved the element of proximate cause. The answer to Interrogatory No. 2 supports the second and third specifications of negligence as alleged in the second amended petition, either of which being sufficient to support the verdict. It is contended by the defendant-appellant that since the jury failed to find, in answer to Interrogatory No. 2, that the defendant’s tractor-trailers were operated across the center line and on the wrong side of the highway, as charged in the first specification of negligence, the defendant-appellant was entitled to judgment as a matter of law on the ground that the second and third specifications cannot be considered as the direct and proximate cause of the accident and injuries to the plaintiff. It does not necessarily follow that the jury found that the defendant was operating said tractor-trailers at all times on the right side of the center of the highway. True, a specification of negligence on which the jury fails to make a finding is tantamount to a finding against the party which has the burden of proof. Masters v. N. Y. C. Rd. Co. 147 Oh St 293, 298, 70 N. E. (2d) 898. However, the second interrogatory, as submitted, required the jury to state the acts of negligence of which the defendant was guilty which were the proximate cause of plaintiff’s injuries. The jury may have concluded that the tractor-trailers of defendant were being operated across the center line and on the wrong side of the highway but that this act of negligence was not the proximate cause of plaintiff’s injuries. The verdict can and must rest upon the answers to the interrogatories as given, which are sufficient to support the verdict. We cannot agree that, assuming there was evidence to justify the finding reached by the jury, the negligent acts of which the. defendant was found guilty could not as a matter of law have been the proximate cause of the accident and the injuries to the plaintiff. What was the proximate cause was a question for the jury, since different inferences may be drawn from the evidence submitted. Vol. 29, O. Jur., page 742, Section 207.

The jury found, in answer to Interrogatory No. 3, that the plaintiff was not guilty of any act or acts of negligence causing or contributing to the cause of the collision and plaintiff’s injuries. Any acts of negligence of which the driver of the automobile was guilty could not be imputed to the plaintiff as a matter of law.

We fail to find prejudicial error in the action of the trial court in overruling the motion for judgment non obstante veredicto and entering judgment on the verdict. We find no assignments of error well made.

Judgment affirmed.

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

ON APPEAL FROM A JUDGMENT

Nos. 686-692. Decided November 16, 1950.

By MILLER, PJ:

This is an appeal from a judgment sustaining a motion granting a stay of execution without bond in accordance with §11601-1 GC. The record discloses that the action was one for personal injuries arising out of a collision between two automobiles. A jury trial was had and on November 4, 1949, a verdict was returned in favor of the plaintiff. On November 7,1949, the defendant filed a motion for judgment non obstante veredicto. The hearing on this motion was delayed for the purpose of filing briefs, but on April 11, 1950, an entry was filed overruling the motion. Following this decision entry was filed entering judgment on the verdict. Immediately after the filing of this entry a motion for a new trial was filed by the defendant followed by a notice of appeal to this Court from the order of the trial court overruling the defendant’s motion for judgment non obstante veredicto. Following the filing of the journal entry, the motion for new trial and notice of appeal, the plaintiff filed a praecipe for execution and a certificate of judgment, whereupon the defendant filed a motion to stay such execution in accordance with the provisions of §11601-1 GC. The Court granted this motion and the appeal is from the order of the trial court staying such execution.

The defendant-appellee herein raises the question whether this is an appealable order under §12223-2 GC. We are of the opinion that it comes within the statutory definition.

The first error assigned is that the trial court erred in construing §11601-1 GC in holding that under the provisions of said section the judgment entered by the trial court on the verdict of the jury was automatically stayed without bond pending the disposition of the motion for a new trial. The only part of this section which has any application to this appeal is the first paragraph which reads as follows:

“Sec. 11601-1 GC. Stay of execution; bond not required, when. In its discretion and on such conditions, for the security of the adverse party as are proper, the Court may stay the execution of, or any procedure to enforce a judgment during the time within which a motion for a new trial may be filed and pending the disposition thereof; provided, however, without application to the court therefor, such stay shall automatically be in effect following the entry of judgment on the verdict of a jury and pending the disposition of an application for new trial made under §11578 GC.”

The appellant has made reference to certain .rules of construction in order to maintain his position that the first part of the section has application instead of the second part which makes reference to an automatic stay of execution. However, rules of construction can have application only when the statute under consideration is subject to different interpretations or is indefinite or uncertain. We are unable to find any ambiguity or uncertainty in said statute. Its requirements are mandatory upon the entering of a judgment upon the verdict of a jury and pending the disposition of a motion for a new trial filed under §11578 GC. It is our interpretation that where a trial is held without the intervention of a jury the stay of execution is left to the discretion of the trial court and on such conditions and for such security as the trial court, in its judgment, may deem proper.

It is further urged that should we construe the statute as we have, that the same would be unconstitutional in that it violates Article I, Section 19, which provides, “that private property shall be held inviolate.” We think the doctrine is well established in this state that the Legislature is empowered to enact statutes governing both trial and appellate procedure in our courts. Whatever rights plaintiff has in enforcing his judgment are rights given to him by the Legislature. The statute in question does nothing to take away appellant’s judgment or his rights to enforce the same. It has only stayed the exercise of these rights pending the disposition of a motion for a new trial. We have examined the opinion of the trial court and note that he says therein, although it is not included in the judgment entry, that the motion for a new trial should not be disposed of pending the’ outcome of the appeal by the defendant to the ruling of the trial court overruling the defendant’s motion for a judgment non obstante veredicto. We can see no reason for this delay. The Court seems to rely upon the case of Massachusetts Mutual Life Ins. Co. v. Hauk, 72 Oh Ap 131, wherein Judge Nichols states at page 137:

“This court is of opinion that plaintiff cannot be deprived of its right to a decision upon both of these motions, but recognizing, of course, that if the motion for judgment notwithstanding the verdict is sustained there would be no occasion in the- first instance to pass upon the motion for new trial. If plaintiff’s motion for judgment notwithstanding the verdict is sustained, we think the established practice has been to withhold passing upon the motion for new trial until such time as the decision on the motion for judgment notwithstanding the verdict has either been approved or reversed by the reviewing court, and if reversed the cause should be remanded to the trial court to pass upon the motion for new trial.”

It will be noted here that the court was speaking of the procedure in the event the motion for judgment non obstante veredicto was sustained. We have the opposite situation in the case at bar. We think the delay might be prejudicial to the plaintiff’s interest, while an early ruling would help expedite the same.

Finding no error in the record, the order will be affirmed.

HORNBECK and WISEMAN, JJ, concur.

ON MOTION FOR AN ORDER

Nos. 686-692. Decided December 21, 1950.

By THE COURT:

Submitted on motion of the defendant-appellant for an order certifying this cause to the Supreme Court for review on the ground that the judgment -of this Court is in conflict with the judgment pronounced by the Court of Appeals of Erie County (erroneously stated to be Lucas County) in the case of Casanova v. Wagner, 85 Oh Ap 278.

In our opinion we recognized the principle of law announced in Casanova v. Wagner, but held that the interrogatories submitted in the instant case involved two elements, viz: negligence and proximate cause. In our opinion this factor in the case distinguishes the case at bar from the case of Casanova v. Wagner.

Motion to certify is overruled.

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


author: By FESS, J.

text:
    STATE ex rel. MACK v. O’CONNOR, Judge.
    Ohio Appeals, Sixth District, Lucas County.
    Decided November 28, 1949.
    Lamb, Goerlich & Mack, Toledo, for relator.
    Joel S. Rhinefort, Pros. Atty., Harry Friberg, Toledo, for respondent.
   OPINION

By FESS, J.

The question for determination arises upon a demurrer to an answer to a petition in mandamus.

Relator petitions this court for a writ of mandamus seeking to require the respondent to allow and sign a bill of exceptions presented by relator, or to correct the same, and allow it as a part of a record in another action from which relator has taken an appeal.

The petition recites in part that, after a hearing, judgment was rendered by respondent on October 28, 1948, overruling relator’s motion to vacate judgments rendered by respondent on July 23, 1948, in an action for alimony and child support; that no reporter was present at the hearing on relator’s motion held on October 18, 1948; that relator filed his notice of appeal on November 8, 1948; that on December 7, 1948, a short narrative form of bill of exceptions was duly filed; that no exceptions were filed thereto by opposing counsel and on December 18, 1948, such bill was presented to respondent for allowance; and that on January 6, 1949, respondent returned the bill to the clerk with the endorsement, “Disapproved.” The petition further relates that respondent did not allow the bill, did not consult relator, gave no notice of changes made therein, and indicated no reason for making such changes.

For his answer, respondent states in part that at the April 1948 term a hearing was had and a judgment rendered against relator on July 23, 1948; that on September 30, 1948, relator filed a motion to vacate such judgment entered on July 23, 1948; that at the hearing held October 18, 1948, the motion was argued by counsel and submitted to the court without evidence; that on December 7, 1948, relator filed a statement in narrative form purporting to be “the facts” in the case, accompanied by an affidavit of relator’s counsel and excerpts from the rules of the Common Pleas Court; and that on January 6, 1949, relator returned the purported bill to the clerk with the words, “all of which is accordingly done this — day of December, 1948,” and the word, “approved,” deleted and with the word, “disapproved,” inserted in lieu thereof.

Respondent states further that the purported bill was not in truth a bill of exceptions because the matters therein related as facts were not the facts presented to the court and that at the hearing no evidence of any kind was offered by either party; that the affidavit of relator’s counsel was not filed or submitted to the court at the hearing; and that with the foregoing matters eliminated from the bill, no bill of exceptions remained which respondent could allow.

Relator demurs to the answer, which raises the troublesome question of the duty of a trial court incident to the allowance of a bill of exceptions.

State ex rel. John Gill & Sons Co., v. Baer, Judge, 8 Oh Ap 184, decided in 1917, holds that the trial judge is not required to prepare a bill of exceptions for counsel and is obligated only to sign a “true” bill, or, when objections or amendments are filed, to correct the bill, and that the decision of the judge that the bill tendered is untrue is conclusive and final. In that case it appears that the trial court properly found that the bill presented was not a true bill, but offered to help counsel prepare a proper bill and in his answer offered to sign any “true” bill presented. The case was decided upon authority of State ex rel. Atkins v. Todd et al., Judges, 4 Ohio 351; Ex parte Bradstreet, 4 Pet. 102, 29 U. S. 102, 7 L. Ed. 796; Creager v. Meeker, 22 Oh St 207; and Shepard v. Peyton, Judge, 12 Kan. 616.

In Beebe, Judge, v. State ex rel. Starr Piano Co., 1922, 108 Oh St 75, 139 N. E. 156, the Supreme Court held that it is not only the duty of the court to allow and sign a correct bill but likewise its duty to correct errors therein, and upon refusal so to do mandamus may issue. In that case the Court of Appeals sustained a demurrer to the answer and ordered the defendant to correct, and thereafter, as corrected, to settle and allow the bill, and, if necessary to that end, to call to its aid the advices of counsel and the stenographer who had acted as reporter.

In State ex rel. Adams v. Weygandt, Judge, 1930, 35 Oh Ap 433, 172 N. E. 543, 544, the court held that the trial judge, finding that the bill was not a true bill and could not be corrected, properly required a complete transcript of the testimony to be attached to the bill. In that case the court found that the bill was not a true bill and that corrections could not be made except by the court undertaking to prepare a new bill of the trial which consumed three days, and therefore disallowed it. In the answer, respondent averred that when a full transcript was presented he would allow it. In the opinion, written by Judge Richards, it is stated: “We do not understand that a fair interpretation of this section fS11566 GC] requires the trial judge to personally make the correction, but it manifestly was his duty, if the bill could reasonably be corrected, to indicate to counsel the corrections that should be made in order to make the bill a true bill.”

In State ex rel. Prudential Ins. Co. v. Price, 1933, 45 Oh Ap 209, 186 N. E. 885, the court held that it not being charged or. proved that the trial court abused its discretion in finding the' bill was not a true bill, the Court of Appeals must assume the trial court’s conclusion to be true. But the decision in that case primarily turned on the fact that relator by his conduct had prevented the court from allowing the bill within time. ■

In a per curiam opinion in State ex rel. Eges v. Corlett, 1940, 137 Oh St 19, 27 N. E. 2d 930, the Supreme Court said:

“He [the trial court] is required only to make corrections in the bill of exceptions presented. It is not incumbent upon the trial judge to assume the burden and responsibility of making a bill of exceptions for an appellant.
“But it is clearly disclosed by the pleadings that the bill of exceptions presented does not contain all of the evidence received and is therefore not a complete bill of exceptions. A trial judge will not be directed by a writ of mandamus to procure and supply the testimony and exhibits essential to meet the requirements of a complete bill of exceptions.
“This case is clearly distinguishable upon the facts from the case of Beebe, Judge, v. State ex rel. Starr Piano Co., 106 Oh St 75, 139 N. E. 156.”

In an effort to harmonize the Corlett and Beebe cases, supra; we hold that a court can not be directed to prepare or complete a bill of exceptions in case a correct bill is not presented, but that it is its duty in such event to confer with counsel in an effort to secure a correct and proper true bill of exceptions. The answer in the instant case avers that the bill presented was not a true bill, but it fails to allege that the aid of counsel was sought and that upon presentation of a true bill of exceptions the respondent will allow and sign the same. The demurrer is therefore sustained, with leave to respondent to file an amended answer within two weeks.

Demurrer sustained.

CONN and CARPENTER, JJ, concur.


author: By HOOVER, J.

text:
    LONG, et al. v. CLEVELAND TRUST COMPANY, As Trustee, et al.
    Common Pleas Court, Cuyahoga County.
    No. 616412.
    Decided March 2, 1951.
    Calfee, Fogg, McChord & Halter, John McChord, Cleveland, for plaintiffs.
    Douglas, Stark, Jett & Biechele, R. S. Douglas, Cleveland, for defendant Cleveland Trust Co.
    Henry A. Hawgood, Cleveland, for guardian ad litem.
   OPINION

By HOOVER, J.

The question raised in this declaratory judgment action is whether the power to revoke an inter vivos trust includes the power to amend it.

In 1926, six settlors created a written living trust. Their mother was to receive the income during her life. She recently died. On her death, the six settlors were to receive the income. The six settlors are all alive and plaintiffs here. On the death of a settlor, there is an intricate plan for distribution of income to others. The trust automatically terminates 20 years after the death of the last survivor of the six settlors, at which time the corpus is distributable to beneficiaries then entitled to income.

The trust agreement provides that after the death of settlor's mother, “this trust may be terminated at any time by” two specifically named settlors “by their joint action, evidenced by written instrument signed by both of them” and that upon such termination the trust assets shall be distributed to the beneficiaries then entitled to receive the income. Thus, if the trust were to be so terminated at this moment, the six settlors would be entitled to the trust assets absolutely.

The trust agreement contains a provision regarding payment of taxes on a settlor’s death. Settlors claim that a possible interpretation of this provision would contravene their original intent and would defeat one of the main purposes of the trust. They seek to change this provision and ask whether they have the power to amend the trust agreement.

Seven other plaintiffs join with the six settlor plaintiffs. These thirteen are all the living adults who have an interest in the trust. The seven individual defendants represented by a guardian ad litem are all the living minors who have an interest. The defendant corporate trustee avers that it does not know whether this power to revoke includes the power to amend, but it has indicated its willingness to continue as trustee if such power exists and the proposed amendment is made pursuant thereto.

Unquestionably the six settlors have the power to achieve indirectly the very' substantive result here sought to be attained directly. No one could complain if the two settlors to whom the trust instrument gives the right of revocation, exercised that right. No one could complain because the six settlors then got ownership of the trust assets. No one could complain if the six settlors, with those same assets and with the same trustee, then created a new trust exactly the same as the first trust with the desired modification.

In this practical world there is no reason why, with the approval of the six settlors, this same substantive result cannot be achieved in the direct way.

If one desires to remodel a 50-story building by taking off a five-story tower and replacing the tower with six new floors, and if he has the larger power to tear the building down completely, to rebuild the first 45 floors exactly as they were and to put the six new floors on top, must he be driven to demolish the whole building? Isn’t it more reasonable to say that the larger power includes the lesser power just to tear off the tower and put the six new stories on top the original first forty five? Remodeling a trust shouldn’t be much different. Law professes to be reasonable and to get at substance. Here is a chance to put profession into practice.

Respectable authorities concur: 3 Scott on Trusts, 1811-12, Sec. 331.1; 2 Restatement, Trusts 1001-02, Sec. 331, Comment g.; Chase National Bank, etc. v. Mackenzie, 76 N. Y. S. 2d 19; Russell’s Ex’rs v. Passmore, 127 Va. 475.

It is immaterial that the larger power resides in six persons, or that only two of the six settlors can revoke the original trust, or that it would take all six to create a new trust of the same property. The important thing is that all who have a say in the total power, approve the modification. If all six consent, they can amend the trust.


author: By THE COURT.

text:
    ELDER, Plaintiff-Appellee, v. ELDER, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4433.
    Decided May 3, 1950.
    Horace S. Kerr, Columbus, for plaintiff-appellee.
    Milton L. Farber, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

Submitted upon motion by the defendant-appellant seeking an order setting aside three temporary restraining orders granted against him. The plaintiff-appellee has also filed a motion seeking a dismissal of the appeal for the reason that no final order has been made in the cause.

The action was one for divorce. The petition, after setting forth the grounds for the same, alleged:

“Plaintiff further says that she and the defendant own and operate the Beltone-Columbus Company and that she believes, and therefore avers it to be a fact, that the defendant will interrupt the operation of said business unless enjoined by the Court.
“Plaintiff further says that she and the defendant jointly own the premises commonly known as 26 Olentangy Street, Columbus, Ohio, and that she believes, and therefore avers it to be a fact that the defendant will annoy, molest and harass her if permitted to occupy the same premises upon his release from the Alcoholics Anonymous Home in which he is now living.’’

Upon a hearing being had the Court granted temporary restraining orders enjoining the defendant from (1) interfering with the operation of the business or the entering of the business premises; (2) enjoining the defendant from entering the home; and (3) enjoining the City National Bank & Trust Company from honoring or paying any checks drawn upon said bank by the defendant-appellant upon the account of the Beltone-Columbus Company. A motion to dissolve the said orders was made and overruled and the appeal is directed to this order. The plaintiff-appellee’s motion to dismiss the appeal will be overruled as the order appealed from is an appealable order. 2 O. Jur. (Pt. 1) 196, Section 102; Black v. Poling, 45 Abs 298; Hersch v. Home Savings & Loan Co., 59 Oh Ap 145.

The defendant-appellant sets forth the following grounds in support of his motion:

1. There is no authority in law for the issuance of any or all of these orders without bond.

2. There is no authority under the pleadings in this case to grant any of the orders.

3. The court below refused to permit testimony to be offered on the motion to dissolve the orders and stated that a proffer of such testimony would be of no use.

The record discloses that the Court ordered that bond be dispensed with, which the defendant-appellant contends is erroneous as the allegations of the petition do not come within the provisions of §11996 GC, which provides:

“When it is made to appear to the court, or a judge in vacation, that a party is about to dispose of or incumber property, or any part thereof, so as to defeat the other party in obtaining alimony, such court or judge may allow an injunction to prevent this, with or without bond, at discretion. A party may sell and assign the order for alimony or allowance, after it is made.”

We have no bill of exceptions and there is therefore nothing before this Court to establish the evidence upon which the Court based its decision. But the appellant is contending that the allegations in the petition are not sufficient to authorize the Court to issue the order without requiring a bond as provided by §11882 GC. It will be noted that the petition alleges “that the defendant will interrupt the operation of said business unless enjoined by the Court.” The word “interrupt” is indefinite as it does not indicate the manner in which the interruption will take place. The interruption could be such as to bring it within the terms of §11996 GC. This was all subject to further explanation when the motion to dissolve came on for hearing. As this evidence is not before us, we cannot say the Court erred in overruling the motion.

The appellant complains in his third ground that the Court refused to permit him to offer testimony on the motion. Under such circumstances, a proffer should be made and included in the bill of exceptions. Under the present state of the record the appellant has failed to offer sufficient proof to require that the temporary restraining order be dissolved.

Counsel for the defendant-appellant state iri their brief that they have not touched upon the restraining order prohibiting the defendant from entering his home since the defendant-appellant has no interest in occupying the same premises as the plaintiff-appellee. The question not being presented in the brief, the order will not be considered further by this Court.

Both of the motions will be overruled.

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