author: By HUNSICKER, PJ.

text:
    CROUSE, Plaintiff-Appellant, v. SHEPPARD et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 5544.
    Decided October 29, 1956.
    Charles J. Chastang, Columbus, for plaintiff-appellant.
    Ballard, Dresbach, Crabbe & Newlon, Lloyd E. Bilger, of Counsel, Columbus, for defendants-appellees.
    (HUNSICKER, PJ, of the Ninth District, FESS and DEEDS, JJ, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By HUNSICKER, PJ.

The sole question in this appeal on questions of law relates to the propriety of the verdict directed for the defendants at the conclusion of the case in chief in behalf of the plaintiff.

John E. Crouse, the appellant, claims he was injured on June 21, 1952, when he was struck twice by the automobile of George H. Commodore, now deceased. Crouse claimed the automobile he was driving was stopped at a traffic light for the purpose of making a left-hand turn. He said Commodore failed to stop and consequently struck the rear end of the Crouse automobile. While Crouse and Commodore were both standing still almost immediately and apparently nearly simultaneously Sheppard struck the Commodore automobile forcing the Commodore car again into the rear of the car operated by Crouse. As a result of these immediately successive collisions or “double jolts” Crouse says he suffered severe injuries and an aggravation to his back which was made weak as a result of a laminectomy.

At the trial Crouse said he had suffered another similar rear end collision on May 17, 1952, five weeks prior to the collision in the instant case and had also sustained injuries in a head-on collision approximately two and one-half years after the occurrence in the instant case. He testified the May 17, 1952, accident was “same type, not same degree,” as that suffered herein.

In the course of cross-examination Crouse said he had filed an almost identical action for the same amount of damages for the identical injuries against the one who had collided with him five weeks prior to June 21, 1952 (the date of the collision in the instant case). Crouse also stated, over objection, that he had settled that prior claim for the sum of $2700.00.

One medical witness testified. This witness was Dr. Kackley who operated on Crouse for the laminectomy and who examined him after the injury said to have been received on May 17, 1952, and also after the claimed injury in the instant case. When Dr. Kackley examined Crouse on May 20, 1952, he said Crouse did not tell him of the collision of May 17. Dr. Kackley also testified that he examined Crouse on June 26, 1952, five days after the instant occurrence and among other things the Doctor said that in his opinion the blow to Crouse’s back received on June 21, 1952, did produce the damage to his back which he, the Doctor, discovered in the physical examination made June 26, 1952.

The following questions, among many others, were asked of Dr. Kackley on cross-examination:

“Q. So whether the pain and suffering he is undergoing at the present time is attributable to the accident on the 22nd or 21st of June, 1952, or the 17th of May, 1952, you do not know, do you?
“A. Only what I have in the history here.
“Q. And your history doesn’t show does it?
“A. When I re-examined him here in June, 1952, or when I examined him at that time my records stated that after the first accident in May, 1952, he was beginning to show some signs of improvement when he was re-injured approximately ten days prior to this examination dated June 26th, 1952.
“Q. But if what he said in this petition and swore to in September, 1953 as to the injuries he received in May, 1952, are true, isn’t it just as reasonable to assume that the injuries he is complaining of now came from that accident as that they came from the one in June, 1952?
“A. Yes.”

The trial court granted a motion for directed verdict made shortly after the testimony of Dr. Kackley and entered a judgment dismissing the petition of the plaintiff-appellant Crouse. An appeal to this Court was then perfected.

The rule is well established that if the cause of an injury to a plaintiff may be as reasonably attributed to an act for which the defendant is not liable as to one for which he is liable, the plaintiff has not sustained the burden of showing that his injury is a proximate result of the negligence of the defendant. Gedra v. Dallmer, 153 Oh St 258; Moore, et al v. Jackson, et al, 69 Abs 329.

A rule of equal import, however, is stated in Wilson v. People’s Railway Co., 135 Oh St 547, at 551. where the Court said:

“In passing upon a motion for a directed verdict, based on the ground that the evidence is insufficient to establish a cause of action, a trial court is neither required nor permitted to make a finding of fact, or determine from conflicting statements of witnesses wherein the truth most probably lies. See Pope, Admx., v. Mudge, 108 Oh St 192, 140 N. E., 501. On the contrary, in ruling upon the motion, the trial court is required to treat as true all the evidence introduced and all reasonable inferences which a jury might draw therefrom which support the facts essential to the claim of the party against whom the motion is made (Wells v. Van Nort, 100 Oh St 101, 125 N. E., 910; Hoyer, Admx., v. Lake Shore Electric Ry. Co., 104 Oh St 467, 135 N. E., 627), and must construe the evidence most strongly in favor of that party. To this end, the trial judge should give the party against whom the motion is made the benefit of all reasonable inferences that can be drawn from the evidence offered. Bucher v. Plymouth Oil & Gas Co., 107 Oh St 73, 140 N. E., 940; Sobolovitz v. Lubric Oil Co., 107 Oh St 204, 140 N. E., 634.
“If, after so treating the evidence, the court should find that reasonable minds may reach different conclusions as to any question of fact essential to the claim of the party against whom the motion is made, the motion should be denied and the case submitted to the jury. See Hamden Lodge v. Ohio Fuel Gas Co., 127 Oh St 469, 189 N. E., 246.
“If the trial judge finds that there is conflicting testimony in reference to the controlling issues of fact in the case, and some of the questions of fact are of such a character that different minds might reasonably arrive at different conclusions, the trial court is not warranted in directing a verdict. 39 O. Jur., 804, Section 185.”

See also Ulrich v. McDonough, 89 Oh Ap 178; Kelley v. Columbus Railway, Power & Light Co., 62 Oh Ap 397.

Let us then examine the evidence before us to see if a good case is established herein. The testimony of Crouse shows that while his automobile was stationary waiting for a red traffic light to change to green he was struck in the rear because Commodore and Sheppard failed to stop in the assured clear distance ahead. He said he suffered an injury as a result of this “double jolt.” His wife who was riding with him said he suffered an injury. It is stipulated that the police officer who appeared at the scene of the accident would testify that Crouse complained to him of back injury but that he refused medical aid suggested by the police officer.

The above is the state of the record at the time Dr. Kackley was called to testify. There was a long cross-examination of Dr. Kackley with reference to the accident of May, 1952, and the suit resulting therefrom in its relation to possible injury as a result of the accident of June 21, 1952.

The statement of Crouse made in his petition filed as a result of May 17, 1952 accident, can not put him in a worse position than if the statements were made orally on the witness stand. The jury were entitled to determine which of two versions or statements made by Crouse were true. This same view must be the rule as to any conflicting statements made by Dr. Kackley.

The rule regarding conflicting statements given in the trial of a case is set out in Theatre Co. v. Lautermilch, 118 Oh St 167, where the Court said:

“Whenever, from conflicting evidence of the same witness or of different witnesses, it becomes necessary to weigh such conflicting evidence to determine wherein the probable truth lies, or from a combination of circumstances determine an ultimate fact upon the determination of which different minds might reasonably arrive at different conclusions, it is the province of the jury to perform that function. It is reversible error for the court to invade that province of the jury.”

We therefore determine in this case that the trial court committed error prejudicial to the substantial rights of the appellant Crouse when that Court granted the motion for a directed verdict herein.

We have examined all other claimed errors and find none prejudicial to the substantial rights of the appellant.

The judgment herein is reversed and the cause remanded to the trial court for further proceedings.

Judgment reversed and remanded.

PESS and DEEDS, JJ, concur.


source: Caselaw Access Project

author: By SKEEL, J:

license: Public Domain

text:
    SPITZ, Plaintiff-Appellant, v. VOLIBAR REALTY COMPANY, a Corporation et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23201.
    Decided November 28, 1956.

      Morton R. Dworken, Charles Miller, for plaintiff-appellant.
    Baker, Hostetler & Patterson, Harold O. Ziegler, for defendantsappellees.
   OPINION

By SKEEL, J:

This appeal comes to this Court on questions of law and fact from a decree for the defendants in the Common Pleas Court of Cuyahoga County. The plaintiff’s action was designated “Petition for Accounting, Money Judgment, Injunction, Receiver and Equitable Relief.” The petition alleges that the plaintiff and defendants, Pulliam and Warner, are creditors, stockholders and Unsecured Debenture Note-holders of said corporation (The Volibar Realty Co.). It is alleged that defendants, Pulliam and Warner, have been for many years President and Secretary and Directors of The Volibar Realty Company and have had complete management of the company’s affairs and of all its assets and have proceeded in the use of its assets as if they were the sole owners and that “said President and Secretary have jointly and without legal authority refused to properly take care of the business of said corporation, contrary to the best interests of the Stockholders and Creditors of said corporation.”

Paragraph five of the petition provides that:

“That there was outstanding and due to the Creditors of this corporation a series of Unsecured Debenture Notes in the amount of One Hundred Eighty Thousand Five Hundred Dollars ($180,500.00); that said notes continued to be outstanding from June 1, 1931, and that approximately One Hundred Fifty Thousand Dollars ($150,000.00) of said notes are still unpaid and outstanding; that said notes were issued as evidencing the principal due and unpaid on certain defaulted first mortgage lease-hold bonds which said notes were assumed by this defendant corporation.”

It is further alleged that for several years there has been sufficient money in the treasury from income to pay dividends on the company stock and on the notes still outstanding but that the President and Secretary, acting for their own purposes, have used corporate funds to buy outstanding “notes and shares” of the corporation for one-third of the face value, the purpose being to force noteholders and shareholders to dispose of their stock and notes at a sacrifice, using the corporation money to purchase such holdings and pretending to act for the benefit of the corporation by putting said notes and shares in the treasury of the corporation. That noteholders have become dissatisfied with waiting since 1931 for dividends and have disposed of their notes and shares to defendants President and Secretary (defendants herein) who paid for same with corporation funds, it being the purpose of the President and Secretary and “their clique, consisting of some of their friends and buddies who were Noteholders and Stockholders to become the sole owners of the corporation and thus acquire the leasehold which is of great value of more than one-half Million Dollars for approximately Fifty to Seventy Five Thousand Dollars ($50,000 to $75,000), not with their own money but with the corporate moneys which should have been distributed to the Stockholders and Noteholders of said corporation.”

The petition further alleges that the President and Secretary have paid themselves excessive salaries, have not acted in good faith in handling the funds of the corporation and that it is necessary that they be removed and a receiver be appointed to conserve the assets of the company. That unless the officers be restrained, they will continue to acquire stock and Unsecured Debenture Notes with corporate funds. That already $25,000 has been illegally spent to acquire such shares and notes.

It is alleged that many of the shareholders cannot be reached, their places of residence being unknown or that the shares and notes have been transferred or passed to persons unknown and that this action is brought in behalf of the plaintiff and others who wish to join with him and that he has no adequate remedy at law. That the assets of the corporation are less than sufficient to pay all creditors and noteholders and unless a receiver is appointed to take possession of the assets and a restraining order granted preventing the defendants from proceeding with the business of the corporation, said assets will be lost to the plaintiff, and because the President and Secretary “are the main chief defendants” it would be a vain thing to ask them to bring this action on behalf of the defendant corporation.

The plaintiff prays for an accounting of funds misappropriated in derogation of the rights of the plaintiff, stockholders, creditors and Unsecured Debenture Noteholders; that a receiver be appointed to take charge of the assets of the corporation; that all stockholders, creditors and Unsecured Debenture Noteholders be restored to everything they have lost by reason of the acts of Pulliam and Warner; that the assets of the corporation be sold and distributed among the shareholders and Unsecured Debenture Noteholders; that plaintiff be awarded costs and attorney fees and such other equitable relief as may be proper in the premises.

Each of the defendants filed an answer by which the following facts are admitted; that the defendant, The Volibar Realty Company, is a corporation organized under the laws of the State of Ohio and that at the time the plaintiff’s petition was filed, Lonnie N. Pulliam was President and a Director and Dorr E. Warner was Secretary and a Director; that both, as was plaintiff, were stockholders and owners of Unsecured Debenture Notes. The lease to the Ohio Bell Telephone Company is likewise admitted; also it is admitted that in June 1931, the company issued a series of Unsecured Debenture Notes in the principal amount of $180,500.00 in exchange for and to evidence the principal due and unpaid of a series of defaulted seven per cent mortgage leasehold gold bonds of the Bolivar Ninth Company which were secured by a lien on the leasehold purchased by this corporation at foreclosure sale for the benefit of said bondholders and that the company has purchased from owners of such Unsecured Debenture Noteholders $38,000 worth in principal amount due, plus interest then due for $13,925, and placed them in the treasury of the company to the great benefit and advantage of the company, its stockholders and the owners of the remaining Unsecured Debenture Notes of the total face value of $142,500. It is admitted that no payments on principal have been made on said Unsecured Debenture Notes but alleges that by the terms of the note, payment is to be made only out of available monies after all current obligations and expenses have been fully paid as determined by the Board of Directors consistent with the best interests of the company and that no money has ever been available for that purpose. It is also admitted that each noteholder •also received one share of capital stock of the company for each $500 note and that when the company purchased the Unsecured Debenture Notes as admitted, it also received with each purchase transaction one share of stock for each $500 note purchased and that 76 shares of its capital stock thus received is now held in the treasury of the company with the said Unsecured Debenture Notes.

The defendants admit receiving some compensation and fees for services rendered but allege all such payment to have been reasonable and legally received and further allege that they have served the best interests of the company. All of the other allegations of the petition are denied.

Before trial in the Common Pleas Court certain stipulations of fact were agreed to with the reservation that each party could object to the relevance of any of the facts in the agreed stipulations. Among other things, the stipulations of fact provide: That the plaintiff is the owner of. a $1,000 Unsecured Debenture Note of the defendant corporation as well as two shares of non-assessable no par stock. That he became the purchaser of the note and stock September 4, 1951. That the Volibar Realty Company was formed in 1931, the charter authorizing 370 shares of no par value stock. That the corporation was authorized to start business with $500 capital. The original shareholders paid $1.36 per share, totaling $503.20, George N. Sherwin becoming the owner of 124 shares and L. C. Geiger and Grover H. Hull each becoming the owner of 123 shares. The corporation was formed to bid in the assets of the Eolivar Ninth Company on behalf of the bondholders (a leasehold estate in the Winton Garage on Bolivar Road in Cleveland), it having defaulted on an issue of $180,500 seven per cent first mortgage leasehold gold bonds. There was then over $12,000 of interest in default.

Paragraph 7 of the agreed stipulations of fact provide:

“7. The Volibar Realty Company was the successful bidder at the foreclosure sale and purchased for the aforesaid bondholders the leasehold property in question under the order of sale. Pursuant to its proposal, The Union Trust Company delivered to said Corporation defaulted bonds of The Bolivar-Ninth Company aggregating $180,500 in unpaid principal amount and $12,309.23 in interest. In exchange therefor and to evidence the principal due and unpaid on said defaulted bonds The Volibar Realty Company issued as of June 1,1931, and delivered to the bondholders a series of its Unsecured Debenture Notes in the aggregate principal amount of $180,500. The Noteholders also received in connection therewith one (1) share of fully paid, non-assessable no par .stock of said Corporation for each $500 in principal amount of said Notes, or a total of 361 shares of its capital stock.”

A copy of the Unsecured Debenture Notes issued and distributed to the first mortgage gold bondholders of the Bolivar Ninth Company as sffown by paragraph nine as set forth in the agreed statement of facts contains the following clause:

“This note is one of a series of notes of like tenor, effect and date, aggregating one Hundred and Eighty Thousand Five Hundred Dollars ($180,500.00). All Notes of this series are issued for the purpose of evidencing the principal due and unpaid on the defaulted First Mortgage Leasehold 7% Gold Bonds of The Bolivar Ninth Company which were deposited with the Union Trust Company and which were secured by a lien on the leasehold estate purchaser at foreclosure sale by The Volibar Realty Company for the aforesaid bondholders."

Paragraph Eleven and Twelve of the agreed stipulations of fact sets forth that on December 31, 1952, $180,500 in principal amount of the Unsecured Debenture Notes and accrued interest in the amount of $218,856.25, making a total of $399,356.25 was then due and unpaid and that $38,000 of the Unsecured Debentures Notes on which $46,075 interest had accrued (which The Volibar Realty Company had purchased at different times between July 28, 1948 and May 5, 1952 for a total of $13,925.00) was held in the treasury of Volibar, together with 76 shares of no par value stock which was transferred to the Company as an incident of the purchase of the notes.

The leasehold estate of The Volibar Realty Company in 1947 was sub-leased for twenty years with extension privileges to The Ohio Bell Telephone Company at a rate of $40,000 per year, plus one-half of the increased taxes due to improvements. The sub-lessee has made substantial improvements and additions at its expense. That after this lease was negotiated, the Board of Directors gave a management contract with Pulliam and Pulliam (consisting of L. R. Pulliam, President of the Company, and his son, R. W. Pulliam) at the rate of $2400.00 per year, amounting to $12,000 in five years and certain other service and legal fees were granted to Dorr Warner, Secretary of the Company.

Upon trial, other evidence was introduced which, together with the stipulations of fact, has been presented to this Court as the evidence and facts upon which this Court is to try the issues presented on this law and fact appeal.

The plaintiff in argument and by his brief limits the issues to be tried on this appeal as follows:

“(1) Are those securities, purchased with $13,925.00 or more of corporate funds, credit obligations (debt instruments) of the Volibar Realty Company, or is their legal status that of investment certificates in the nature of interest bearing preferred stock?
“(2) If the securities purchased with the cash assets of the corporation are not evidence of indebtedness, are these expenditures illegal?
“(3) May an officer-director of a corporation expend corporate monies in the purchase of its securities, to be held as treasury shares when the effect of such purchasers is to place majority control and virtual ownership of the corporation in a syndicate composed of the officer directors?”

It is clear from the foregoing detailed statement of the allegations of the pleadings that there are no facts pleaded upon which these claims could be founded. Likewise, it is disclosed by the record that these claims were not presented to the trial court.

A party cannot completely abandon the issues tried in the trial court and seek to try an entirely different case, seeking different relief in a trial de novo in a reviewing court. The claim that the “Unsecured Debenture Notes” as they were described in the plaintiff’s petition as the basis of plaintiff’s action, and as they were clearly stipulated to be in the stipulations of fact, are now, according to the plaintiff, to be known as preferred stock for the purpose of this appeal. Such a complete change of the issues cannot be made in the same action on appeal on law and fact. The plaintiff is bound by the facts pleaded and agreed to in the stipulations of fact and a completely new claim contradictory to that presented in the court of original jurisdiction cannot be tried for the first time in a reviewing court. Barnes v. Christy, 102 Oh St 160, at page 170, 131 N. E. 360.

If the first contention or issue presented by the plaintiff that the Unsecured Debenture Notes of The Volibar Realty Company are in fact certificates of preferred stock were to be considered by this Court on the record, the decree would have to be for the defendants. The allegations of the plaintiff’s petition and the agreed stipulations of fact completely contradict such contention. It is true that the character of an instrument, where the issue is properly raised, is to be determined by its content rather than what it is designated to be on the face of the instrument. But where the character of the instrument is alleged as a fact in the petition and is there described by the pleader to represent a debt of a defendant and where by the agreed stipulations of fact entered into as evidence in the case to support the claims of the pleader, the character of the instrument is described and designated as representing a debt of the defendant corporation, the pleader is bound by his petition and the proof agreed upon and cannot subsequently attempt to make a contrary claim as to the character of such instruments. Here the plaintiff based his right to bring this action on the fact that he was the owner of the $1,000 Unsecured Debenture Note and was, therefore, a creditor of the Volibar Realty Company. Many places in his petition, the allegation that such notes are debts of the Company, is asserted as a fact and the stipulations of fact assert that such fact is not in dispute. The plaintiff cannot completely reverse his field and claim the Unsecured Debenture Notes of the Volibar Realty Company to be preferred shares of stock.

This action is one in equity. The plaintiff seeks to require the defendants to account to the Volibar Realty Company and reimburse it for the assets claimed to have been unlawfully expended in purchasing its own Unsecured Debenture Notes in the face amount of $38,000 for which $13,925.00 was expended. The holders and owners of the notes sold to Volibar were strangers to the parties in this action, they receiving the compensation paid and there is no evidence that Volibar’s officers benefited in any way by the purchase different from the benefits that all stockholders of the Company received by reason of these transactions. There is some evidence that Volibar was in fact substantially benefited by becoming the owner of these notes. To require the defendants to reimburse the corporation for the monies expended where there has been no loss caused by the transaction would violate basic principles of equity. He who seeks equity must do equity.

We find no merit or evidence to support plaintiff’s third claim- set out above or the right of the plaintiff under the allegations ,of the petition to seek relief in equity thereon, the claim being that officers “placed majority control and virtual ownership of the corporation in a syndicate composed of the officer-directors” by acquiring treasury shares of stock with the use of corporation funds. The stock referred to is that acquired as an incident to the purchase by the Company from owners not identified with management of its Unsecured Debenture Notes in the face value of $38,000 for a total consideration of $13,925.00. By the purchase of these notes for one-third their face value, to say nothing of the then accrued interest of $42,000, Volibar received seventy-six shares of its no par value stock formerly held by the sellers of the Unsecured Debenture Notes. Whether the reduction of the outstanding no par value stock from 361 shares to 285 shares had any effect on controlling the election of directors is not disclosed by the evidence. The management of this Company has not changed materially since 1943. Mr. L. R. Pulliam, members of his family and associates assumed the burden of attempting to work out its affairs almost from the very beginning and so far as the record is concerned, no stockholder has ever attempted to vote the present management of the company out of office. There is no evidence which in the slightest degree challenges the legality of the incidental acquiring by the company the stock in question as a part of the purchase or compromise of debts owned by it. This claim is overruled.

For the foregoing reasons, a decree may be entered for the defendants.

KOVACHY, PJ, HURD, J, concur.


author: By PHILLIPS, PJ.

text:
    LEEPER, Plaintiff-Appellant, v. YOUNGSTOWN SHEET & TUBE COMPANY, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3794.
    Decided October 13, 1955.

      Traxler & Beil, Youngstown, for plaintiff-appellant.
    Manchester, Bennett, Powers & Ullman, Youngstown, for defendantappellee.
   OPINION

By PHILLIPS, PJ.

The Industrial Commission of Ohio disallowed plaintiff’s application for adjustment of claim for compensation on original hearing and rehearing on the ground that the proof of record showed that the death of her husband, called decedent, was not the result of an injury sustained in the course of and arising out of his employment with the Youngstown Sheet & Tube Company, a self-insurer under the Workmen’s Compensation Act of Ohio.

On appeal to the court of common pleas the jury returned a verdict for the defendant upon which the trial judge duly entered judgment, and from which judgment plaintiff appealed to this court on questions of law.

Decedent died on April 1, 1949, from chronis myocardial degeneration, which had existed for two years, and of exhaustive psychosis of three days duration, which plaintiff alleges resulted from a fall sustained on March 26, 1947, while in defendant’s employ.

Decedent, then aged fifty-five years, fell about six feet striking the left side of his head, which caused a severe contusion thereof, and an alleged contusion to his brain, a contusion to his left cheek bone and temple and left forearm necessitating his being hospitalized for “three or four days,” during which time he was dazed, and the hospital record showed he was suffering from a tabo paresis, a condition in which the spinal cord and the brain are affected by syphilis.

On April 1, 1947, he was admitted to the Youngstown Receiving-Hospital, where his condition worsened necessitating his being removed to the Massillon State Hospital for the insane, where he remained until his death. During his stay at Massillon State Hospital at times he was normal and at times tempermental, dazed and confused.

For approximately seven years prior to March 26, 1947, decedent was treated for a luetic condition, which one of plaintiff’s physician witnesses testified was aggravated by decedent’s fall; and at times decedent was nervous and irritable and had difficulty adjusting himself to the presence of others and getting along with them.

Two of the other plaintiff medical witnesses testified that in their opinion there was a “probable causal relationship” between decedent’s injury and death.

Defendant’s medical witnesses, one of whom was Superintendent of the Massillon State Hospital, testified that in their opinions there was no causal relationship between decedent’s injury and death.

Plaintiff admits that the “medical evidence is conflicting,” but “believes that the testimony of the physicians called upon behalf of the defense is illogical and unreasonable under the circumstances.”

The question presented is not whether it is “unreasonable for a person suffering from the aforesaid condition to develop a psychosis after falling from a scaffold a distance of six feet and sustaining an injury to his head, especially when the psychosis developed within four days after the fall.”

As we see it the question is whether there is a probable causal connection between the decedent’s fall and his death from chronic myocardial degeneration during two years, and exhaustive psychosis during three days.

The evidence is conflicting on the question we believe is presented, thus presenting a jury question, which relieves the trial judge of alleged commission of error in overruling plaintiff’s motion “for judgment notwithstanding the verdict of the jury.” We cannot disturb the verdict of the jury on the urged grounds that it “was not sustained by any evidence,” and was “against the manifest weight of the evidence.”

It is obvious that we conclude that the trial judge did not err to plaintiff’s prejudice, as contended, in overruling her motion for a new trial, and that the judgment of the trial court is not contrary to law, and accordingly must be and hereby is affirmed.

NICHOLS and GRIFFITH, JJ, concur.


author: By THE COURT:

text:
    SHANNON et, Plaintiffs-Appellants, v. GINGRICH, Exr. et, Defendants-Appellees.
    Ohio Appeals, Second District, Miami County,
    No. 514.
    Decided September 14, 1956.
    William R. Ellis, Springfield, for plaintiffs-appellants.
    P. G. Gingrich, H. D. Enyeart, Faust <& Harrelson, Troy, for defendants-appellees.
   OPINION

By THE COURT:

Submitted on motion of the defendants-appellees to dismiss the appeal on law and fact: (1) on the ground that no bond has been filed as required by §2505.06 R. C„ and (21 on the ground that an appeal may not be taken on law and fact.

Under the provisions of §2505.06 R. C., an appeal upon questions of law and fact shall not be effective unless an appeal bond is given (except in certain instances which have no application herel, which has not been filed.

In the instant case the appeal is from an order made in a will contest suit. An order made in a will contest suit does not fall within the classifications enumerated in §2501.02, R. C., as amended effective October 4, 1955.

The motion to dismiss the appeal on questions of law and fact will be sustained on both grounds.

The appeal will stand as an appeal on questions of law. Sec. 2505.23 R. C. The appellant may file his bill of exceptions,' assignments of error and briefs in conformity to the provision of supplement to Rule VII.

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


author: By FESS, J.

text:
    STATE, ex rel. MICHAELS, Relator, v. MORSE et, Respondents.
    Ohio Appeals, Second District, Franklin County.
    No. 5372.
    Decided February 7, 1956.

      Schwenker, Teaford, Brothers & Solsberry, Charles V. Schwenker, Merrill D. Brothers, of Counsel, Columbus, for relator.
    C. William.O’Neill, Atty. Geni., Paul Tague, Jr., James L. Young, Asst. Attys. Geni., Columbus, for respondent, Industrial Commission.
    (FESS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By FESS, J.

This is an original action in mandamus for an order to compel the respondent to proceed to hear and determine his claim for compensation pursuant to the statutory provisions relating thereto in effect prior to October 5, 1955. The operative facts alleged in the petition are admitted in the answer. The issues of law raised are therefore to be determined upon the pleadings.

Relator’s claim was filed on August 10, 1954, disallowed January 4, 1955, rehearing granted, testimony taken thereon May 26. 1955, and continued. On September 7, 1955, relator filed a motion with respondent for assignment of his claim for further hearings on rehearing pursuant to the law then in force. On September 8, 1955, the respondent found that it had authority under existing law to grant such hearings as requested, but that there was insufficient time to permit the claimant to complete his case, and the Commission to hear and determine it, prior to October 5. 1955, the date upon which §4123.512 to §4123.519, inclusive, R. C., became effective, pursuant to which no provision is made to retain facilities required to complete the rehearing proceedings. In denying claimant’s motion, the Commission ordered that his claim shall, on and after October 5, 1955, be deemed to be pending before the Commission on appeal as provided by the new sections.

Relator’s claim was a pending proceeding within the purview of §1.20 R. C. This section merely prescribes a rule of construction. The eleventh paragraph of §4123.519 R. C., provides that all claims pending determination by the Commission on the effective date of the new act, and all claims filed thereafter, shall be governed by the provisions of the new act.

There is therefore no conflict between §1.20 R. C. and the provisions of the new act. In specific terms, the legislature has said the new act shall apply to certain pending proceedings before the Commission, including relator’s claim.

I.

In support of his position, relator first contends that the powers of the Administrator of the Bureau of Workmen’s Compensation created by the new act are violative of Section 35, Article II, Ohio Constitution (hereinafter referred to as “II-35”).

The new act is entitled: “To create the Bureau of Workmen’s Compensation, to define the powers of the administrator thereof, to increase compensation to injured workmen,” etc. Since the relator’s claim is deemed to be a pending claim before the Commission, the administrator will have no judicial, quasi-judicial or administrative function to perform incident to the determination of relator’s pending claim before the Commission. Therefore, the constitutionality of the act with respect to the powers of the administrator with respect to the instant claim is not presented. However, relator asserts that as an unconstitutional officer, the administrator has no right to be a party to claimant’s appeal.

The new act establishes a bureau of workmen’s compensation to be administered by an administrator to be appointed by the Governor for a term of six years. Sec. 4121.12 R. C.

A review of §4121.12.1 R. C. discloses that in the main, administrative functions are granted the administrator. As disclosed in §4121.12.1 (A) R. C. some duplication of the authority and power of the Commission is granted the administrator, which may provoke conflict between him and the Commission (as illustrated occasionally between the administrator of the Bureau of Unemployment Compensation and the Board of Review), but with the unwisdom of the legislation, we are not concerned. 10 O. Jur. 2nd, PP. 206 and 326. State, ex rel. Bishop v. Board, 139 Oh St 427.

Is the establishment of the office of administrator in violation of n-35? The first sentence of the section provides:

“For the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational disease, occasioned in the course of such workmen’s employment, laws may be passed establishing a state fund to be created by compulsory contribution thereto by employers, and administered by the state, determining the terms and conditions upon which payment shall be made therefrom.”

This is a broad grant of power to establish and to administer the fund without limitation, and laws could be passed providing for the administration of the fund by a board, commission, state official, a commissioner or administrator. The third sentence of 11-35 provides:

“Laws may be passed establishing a board which may be empowered to classify all occupations, according to their degree of hazard, to fix rates of contribution to such fund according to such classification, and to collect, administer and distribute such fund, and to determine all right of claimants thereto.”

Although certain provisions of 11-35 are to be regarded as self-executing, such as the provision with respect to violation of a specific requirement, it is apparent that the powers granted in the first and third sentences are to be implemented by act of the General Assembly. Such powers are permissive, State, ex rel. Lourin v. Industrial Commission, 138 Ohio St., 618, 622, not mandatory, and on their face are not self-executing. True, the people, in adopting the amendment, contemplated that the powers thus granted would be exercised by a board or commission, but they did not so provide in mandatory terms. Furthermore, the amendment did not exhaust the police power of the state so as to prevent the Legislature from creating regional boards of claims. State, ex rel. DeTorio v. Industrial Comm., 135 Oh St 214.

It should be borne in mind that in contrast to the Federal Constitution, which is a delegation of powers, the Ohio Constitution is a limitation of powers. An act of Congress is invalid unless the Constitution authorizes it; but the General Assembly may enact any law which is not prohibited by the Constitution. Angell v. Toledo, 153 Oh St 179, 181. A legislative act is presumed in law to be within the constitutional power of the body making it, whether that body be a municipal or a state legislative body. Xenia v. Schmidt, 101 Oh St 437. It is repeatedly held in Ohio that a clear incompatibility between a law and the Constitution must exist before the judiciary is justified in holding the law unconstitutional. The repugnancy between the statute and the Constitution must be incapable of a fair reconciliation. 10 O. Jur., 2nd. pp. 248, 254. In our opinion, the relator has failed to overcome the presumption of constitutionality and we conclude that the establishment of the Bureau and the authorities and powers conferred upon the Administrator by the new law are not in contravention of 11-35 of the Constitution.

It is also to be observed, that the relator (except with respect to the intervention of the Administrator as a party, hereinafter discussed) is in no way affected by the exercise of power and authority conferred by the act upon the Administrator and therefore discloses no clear right to relief.

II.

Relator’s second contention is that §4123.519 R. C. violates the provisions of Section 28, Article II, Ohio Constitution, §1.20 R. C. and the Constitution of the United States. For the reasons stated under I, relator’s contention with respect to §1.20 R. C. is not well taken.

11-28 provides a limitation that the General Assembly shall have no power to pass retroactive laws. Relator concedes that the limitation applies only to substantive rights and does not apply if remedial matters are involved. Numerous cases hold that retroactive laws refer to those which create and define substantial rights, and which either give rise to or take away the right to sue or to defend actions at law. Smith v. New York Central Rd. Co., 122 Oh St 45. Upon principle, every statute which takes away or impairs vested rights, acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already passed, must be deemed retrospective. Storey, J. in Society v. Wheeler, 2 Callison’s R., 139; Rairden v. Holden, 15 Oh St 207, 210; Bartol v. Eckert, 50 Oh St 31; Safford v. Metropolitan L. Ins. Co., 119 Oh St 332; Smith v. New York Central Rd. Co., supra; Beckman v. State, 122 Oh St 443, 450; Slocum v. Mutual Bldg. etc. Co., 130 Oh St 312, 317; State, ex rel. v. Zangerle. 133 Oh St 532, 535; Weil v. Taxicabs. Inc., 139 Oh St 198. Although 11-28 has application to laws disturbing accrued, substantive rights, has no application to laws of a remedial nature providing rules of practice, courses of procedure or methods of review. State, ex rel. v. Industrial Comm., 132 Oh St 537; Lash v. Mann, 141 Oh St 577, 582-583.

In support of his contention, relator asserts that §4123.519 R. C. is retroactive legislation in the following respects:

“1. Imposes upon the claimant new obligations, duties and disabilities, by the addition of two new adverse parties in his appeal, namely, the Administrator of the Bureau of Workmen’s Compensation and the employer.
“2. The addition of new grounds for disallowing the claimant’s claim.
“3. The denial of a decision of finality upon an allowance of his claim.
“4. Depriving claimant of a right to final judgment on appeal to the common pleas court.
“5. Deprives the claimant of compensation benefits in force at the time he filed his claim.”

In none of the respects asserted are relator’s vested or substantial rights impaired. Claimant has a vested right, if he establishes it, to compensation from the fund. The manner in which it is to be established is procedural in character. Cf. Lash v. Mann, 141 Oh St 577.

The Legislature has complete control over the remedies afforded to parties in the courts of Ohio, and it is a fundamental principle of law that an individual may not acquire a vested right in a .remedy or any part of it — that is, there is no right in a particular remedy. 10 O. Jur. 2nd, 616. A party has no vested right in the forms of administering justice, that precludes the Legislature from altering or modifying them and better adapting them to effect their end and objects. 10 O. Jur. 2nd, 616, citing Hays v. Armstrong, 7 Ohio. Pt. 1, 248; Green Twp. v. Campbell, 16 Oh St 11; Templeton v. Kraner, 24 Oh St 554; Cager v. Prout, 48 Oh St 89. Thus, the Supreme Court has held that a statute granting a right of appeal or review to the Court of Common Pleas from an order of the Industrial Commission is remedial and may be given retroactive operation. State, ex rel. Slaughter v. Industrial Comm., 132 Oh St 537.

With respect to relator’s assertion that he is denied a decision of finality upon allowance of his claim, the Supreme Court has held in construing §1465-86 GC (§4123.52 It. C.) that the continuing jurisdiction of the Commission applies only to new and changed conditions occurring after an original award. State, ex rel. Griffey v. Industrial Comm.. 125 Oh St 27; State v. Ohio Stove Co., 154 Oh St 27. The Supreme Court has also held that an award by the court is subject to §1465-86 GC, in respect to the continuing jurisdiction of the Commission and also to such modification and change as in the opinion of the Commission may be justified. Clendenen v. Industrial Comm., 140 Oh St 414; State, ex rel. Kresge v. Industrial Comm., 157 Oh St 62.

In support of his contention that relator is deprived of compensation benefits in force at the time he filed his claim, he asserts that he is now deprived of the statutory attorney fee provided by former §4123.51. This section provided that the cost of any legal proceedings authorized by the section, including an attorney’s fee to claimant’s attorney to be fixed by the trial judge, should be taxed against the unsuccessful party. This provision related only to proceedings in the Common Pleas Court and did not cover any services rendered before the Commission. Carson v. Beall, 55 Oh Ap 245. The provision with respect to attorney fees is eliminated in the new act.

In the instant case, the relator had a contingent and inchoate right under §4123.51 R. C. to have an attorney fee allowed, — contingent upon the rejection of his claim and the establishment of his right to participate in the fund upon appeal to the Common Pleas Court. Only when the judgment of the Court became final and was certified to the Commission did the claimant have a vested right to the award of attorney fees as a part of the costs. State, ex rel. Gordon v. Industrial Comm., 129 Oh St 212. Cf. Gulf Refining Co. v. Evatt, 148 Oh St 228, 238. distinguishing State, ex rel. Struble v. Davis, 132 Oh St 555. A right, not absolute but dependent upon the action or inaction of another, is not basic or vested and deprivation thereof does not constitute a deprivation of property. Latch v. Tipton, 131 Oh St 364. The general rule in Ohio is that, in the absence of statutory provision making attorney fees a part of the costs, such fees can not be so taxed. 14 O. Jur. 2nd, p. 31. The subject of costs is one entirely of statutory allowance and control. A statute relating to costs is remedial and may operate retroactively. Flory v. Cripps, 132 Oh St 487, 491.

III.

Mandamus is an extraordinary legal remedy, the essential purpose of which is to compel the pertormance of an act which the law specially enjoins as a duty resulting from an office, trust or station, and before the writ may properly issue, the relator's right to the relief sought must be clear. Upon the record in the instant case, the respondent has performed its duty especially enjoined by law in ordering that relator’s claim be deemed a pending proceeding before it for determination under the new law. But relator contends that the new law is unconstitutional and therefore respondent is specially enjoined by the law in effect prior to October 5, lb55, to proceed to hear and determine his claim thereunder. The right of relator to question, by mandamus, the constitutionality of the statute is recognized in Ohio. 25 O. Jur. 985. We conclude, however, that §4121.12, et seq, R. C., effective October 5, 1955, are not violative of the provisions of Section 35, Article II, Ohio Constitution, and that §4123.519 R. C., effective October 5, 1955, is remedial in character and is not retroactive legislation within the meaning and intent of Section 28, Article II, Ohio Constitution.

Relator having failed to show a clear right to relief, the writ must be denied.

MILLER, PJ, concurs.

HORNBECK, J, concurs in the judgment.

      . This action was in compliance with the specific terms of the twelfth paragraph of §4123.519 R. C. The new act contemplates an appeal from the administrator by the claimant or the employer to the Commission. It is to be noted that the preliminary determination by the administrator is obviated in the instant case by the provision that the claim shall be deemed pending on appeal on October 5, 1955. Under the new act, as under the old act, an appeal may be taken by the claimant to the common pleas court from the order of the Commission, but under the new act, such an appeal may also be taken by the employer, and the administrator is made a party to the appeal, as well as the Commission upon application.

      . The last paragraph of the section provides that an action pending in the common pleas court on a petition under §íl 23.51 R. C., filed prior to the effective date of the new act, and a claim which has been denied upon rehearing within sixty days prior to such effective date shall not be affected by the repeal of §4123.51 R. C.

      . With respect to such pending claim, the record of any evidence theretofore adduced shall be considered by the Commission without re-submission together with any other evidence which may be presented upon the hearing. Sec. 4123.519 (12) R. C. Before making or denying an award in the appeal of a disputed claim, a regional board of review or the Commission, as the case may be, shall afford the claimant, the employer and the administrator an opportunity to be heard upon notice and to present evidence. Sec. 4123.51.8 R. C. In such administrative appeal, the administrator presumably is no more an adverse party than the Commission itself.

      . The administrator is made responsible for the discharge of all administrative duties imposed upon the Industrial Commission under Chapter 4123 R. C., and is authorized and empowered to do all acts and to exercise all authorities and powers, discretionary or otherwise, which are required of or vested in the Commission under such chapter, except such exercise of power and authority as is vested in the Commission in §4121.13 R. C. Such grant to the administrator of powers vested in the Commission does not divest the Commission of the right to exercise its powers in the discharge of its own responsibilities. Any authority or power vested in the Commission or the administrator may be exercised by either to the extent necessary to effect the discharge of their respective responsibilities. Sec. 4121.12.1(A) R. C. Subsections (B) to (K) of %4121.12.1 R. C. imposed manifold and extensive administrative duties upon the administrator, which presumably were formerly exercised by the Commission. The acts of the administrator and of a regional board of review-are acts of the Commission unless modified or set aside under the provisions of Chapter 4123 R. C. With respect to the allowance or rejection of claims, such action is subject to review on appeal to the Commission,

      . There is no right to appeal from a decision of a statutory board or a judgment of a legally constituted court except as provided by statute. Lindblovn v. Board, 151 Oh St 250; DeCillo & Sons v. Board, 158 Oh St 302;. Corn v. Board, 160 Oh St 9; Miller v. BUC, 160 Oh St 561; In re Sanitary District, 161 Oh St 259. Any retroactive remedial statute may result in imposing additional burdens upon a party, without affecting his vested rights. The matter of joinder of parties relates to the remedy, does not affect any substantive rights of the parties, but merely how, when and in what company such rights shall be determined. Gibson, Treas. v. Miller, 7 O. C. C., N. S., 96.

      . From 1913 until 1921, provision was made for the taxing of costs, including “a reasonable attorney fee” to be fixed by the court, against the unsuccessful party. 103 O. L. 89, 107 O. L. 164; 108 O. L. Pt. 1, p. 324. It was not until 1921, after the trial de novo of an appeal from the disallowance of a claim was limited to the rehearing transcript, that the limitation as to the amount was inserted. 109 O. L. 296-298. In fixing the amount of an attorney fee to be taxed as costs, the court exercised his discretion within the limitation as to the amount.


author: By McBRIDE, J.:

text:
    SKYLAND BROADCASTING CORPORATION, Plaintiff, v. HAMBY and WAVI, INC., d. b. a. WAVI BROADCASTING CORPORATION, Defendants.
    Common Pleas Court, Montgomery County.
    No. 111287.
    Decided March 1, 1957.
    Coolidge, Wall & Wood, Dayton, for plaintiff.
    Pickrel, Schaeffer & Ebeling, Dayton, for defendants.
   OPINION

By McBRIDE, J.:

This case was submitted to the court on the petition of the plaintiff, Skyland Broadcasting Corporation (WONE), for a temporary and permanent injunction restraining the defendant, William H. Hamby, from violating restrictions in an employment contract and on the amended answer of William H. Hamby. WAVI, Inc., doing business as WAVI Broadcasting Corporation, is joined as a party defendant as the present employer of William H. Hamby to supplement the enforcement of any order the court may issue. There is no allegation that WAVI, Inc. induced the termination of the employment contract by Mr. Hamby however an officer of WAVI did discuss employment with Mr. Hamby and obtained a legal opinion on his contract with WONE two months before Hamby left WONE.

The plaintiff relies upon a written contract signed by William H. Hamby on September 9, 1954, Item 5 of which provides:

“Upon the termination of this contract of employment either by discharge, dismissal or by voluntary action of the employee after the lapse of a period of three (3) months or more following his employment, the said employee covenants and agrees that within a period of eight (8) months after such termination he will not act as announcer-disc jockey directly or indirectly for himself or for any person, firm or corporation operating a radio or television station within a 35 mile radius of the transmitter or situs of the antenna or transmitting aerial of radio station WONE and WTWO.”

It will be observed that the conditions set forth in Item 5 were not in effect until the expiration of three months following his employment; that upon termination of employment William H. Hamby agreed not to act as an announcer-disc jockey for a period of eight months on any radio or television station operating a transmitter within thirty-five miles of station WONE or WTWO, the latter also operated by the plaintiff.

The restrictions described in this contract are generally regarded as valid even though they are to a limited extent in restraint of trade. The court finds the restrictions reasonable as to time and sDace. necessary for the protection of the business and listening audience of the plaintiff, and not any greater restraint upon the employee than reasonably necessary for such protection. 11 O. Jur. 2nd p. 362 et seq; Briggs, d. b. a. The Welcome Wagon Service Co. v. Butler, 140 Oh St 499, 24 O. O. 523; Toulmin v. Becker (App., 2nd Dist.) 69 Abs 109, 124 N. E. 2nd 778 and many others cited in the above cases. In reference to the restrictions the testimony established that the defendant left station WONE on February 11, 1957 and was employed at WAVI on February 18, 1957. In connection with points subsequently discussed, the petition was filed February 19, 1957 and tried to the court on the merits on February 26 and 27, 1957. It is the finding of the court that the defendant was employed by the defendant. WAVI, Inc., within a week and that the transmitter of the new employer is within the thirty-five mile area; that because of the fact that WONE operates on a greater authorized power than station WAVI. all of the listening audience of the latter station is exclusively within that of WONE. There is no testimony in this case with respect to the location of the transmitters of any other Dayton or Cincinnati stations.

The court also finds that the defendant, William H. Hamby, as a result of his experience as an announcer-disc jockey and more especially because of his two and one-half years on WONE in this capacity as a specialist in the “hill billy” type entertainment is known in the trade ás a unique or “personality” type entertainer and of a great value in the radio broadcasting field. Such personality type employees are of unusual value to the employer in retaining the listening audience of a. station. In the instant case the evidence indicates the defendant, Hamby; while employed by the plaintiff, competed unusually well according to a generally accepted rating during hours when nationally known personalities were on the air on other stations. The significance of this feature of the case was discussed in an unreported decision of the Court of Appeals of Summit County which approved an injunction in a similar situation. Summit Radio Corporation (WAKR) v. Albert James Freed, No. 4106, decided December 6, 1950. The testimony of both immediate parties that considerable sums were spent in advertising and other promotion of the “Skyland Ranch” program and of William H. Hamby as its feature personality strengthens the distinct, unique character of this employment and the necessity for the plaintiff to obtain protection to prevent its value being used by a competitor within the same geographical limits. Neither party was obligated to make such expenditures: both found it to be within their respective interests to do so.

The court recognizes the unusual nature of radio broadcasting, its relationship with the listening public, and the unusual and unique nature of its service and the service of its performers and employees who are active in this medium of entertainment.

It is apparent that the written contract was not designed to cover the full agreement of the parties. Salary, hours of employment, and duration were not expressed. This agreement could be terminated at any time by either party. However it is significant that there was no misunderstanding on this subject. Mr. Hamby testified that he agreed to a new salary and a new hourly schedule just a few days before he left the employment of the plaintiff after two and a half years service.

The defendant urges that because the condition in Item 5 provides for its application upon separation by “discharge, dismissal or by voluntary action of the employee after a lapse of a period of three months” the contract is void as an unreasonable control by the employer. The court is aware of a conflict of authority on this point however the problem is not simply one of construction of the written contract. An employee who does not desire to voluntarily quit may deliberately commit one or more acts designed to necessitate his dismissal. This is especially true in occupations dealing with the public. To deny an employer the right to an injunction merely because an employee succeeded in provoking his own discharge would be incredible law. The true test in this situation is the factual manner in which the employment is severed. In the instant case it is necessary to discuss this point because of the argument advanced that the right to discharge or to dismiss destroys the right to an injunction. There is no evidence of any dismissal or discharge by the plaintiff. In fact the evidence is to the .contrary..

The court finds that the defendant, William H. Hamby, voluntarily quit in the middle of a program. He left the job while his program was still on the air. He testified that he did so because he did not approve of - the new format adopted by the station and its program director. Specifically he said he had too many mechanical details to perform and in addition that the mechanical announcements and the like, in his opinion, ruined the effect of his “personality” on the type of program in his charge. It was after the first hour of experience with the new format that the defendant quit the air and walked out of the station notifying his employer that he was finished and would not return unless the so called “new sound” style was abandoned by his employer. Under the circumstances and in view of the at will nature of his employment he was free to do so. However for the purposes of injunctive relief under Item 5 of the contract the termination of employment was not due to any act of the employer who seeks protection under the contract. The termination was effected by the defendant, William H. Hamby, without just or reasonable cause. What he was asked to do under the new format of the “Skyland Ranch” program was exclusively within the right of the employer. The sudden and arbitrary refusal to work without further experience under the new style and without completing the first full program was unreasonable in so far as this subject need be considered by the court for the purpose of determining whether the plaintiff is deprived of the right to equitable relief.

The court has reserved for final comment the question of injury or damages. The plaintiff alleges that violation of the contract “has caused and will continue to cause plaintiff great and irreparable damage” for which there is no adequate remedy at law. Many cases have turned on this point mainly because of the inability to establish damages or because the court considered the damages too trivial to justify the relief requested. Certainly damages cannot be presumed. From the facts, some of which the court has recited, it is obvious that it is impossible at this early date, within two weeks after the termination of the contract, to ascertain the nature and extent of the damages. The testimony is that one advertising agency immediately canceled a contract when it learned that Mr. Hamby had quit. Two other individuals canceled their advertising. Gross sales of radio time for the program decreased the first week. In addition to this, Mr. Hamby, within one week, obtained employment at a competing station in the same identical capacity and on a similar type program to that which he conducted for the plaintiff. The new employer with corporate counsel representing Mr. Hamby lends an atmosphere of a corporate battle between the competing stations. The immediate loss because of termination is incidental to the quiting and to that extent may constitute an injury for which damages may not be awarded. However the immediate employment of a radio or any unusual performer or artist by a direct competitor in the same limited geographical area in violation of a valid and express agreement not to do so during a reasonably short period is a situation peculiarly within the sphere of equitable jurisdiction and requires the exercise of such equitable power to prevent that type of injury and damages which can be determined, if at all, only with incredible difficulty at the end of the period of time agreed upon in the contract. 21 O. Jur. 1143, 1144; 28 Am. Jur., 242. We can only anticipate the problem of ascertaining the value represented by a loss of listener ratings to the former employee on the competing station and the effect of such loss upon advertisers, who are influenced by such ratings, and upon listeners. The number and complexity of the factors involved cannot be equaled in any other situation. This indicates that the nature and full extent of the direct and incidental injury to the plaintiff is incapable of exact measurement and constitutes an irreparable loss. As the court has indicated, the appropriate step is equitable prevention of such improper acts by the defendant and the resulting injury by specifically enforcing the restriction which the defendant expressly agreed to in event this very situation arose.

On the objection of the defendant to the introduction of Plaintiff’s Exhibit F, the. objection is sustained.

Accordingly the court finds for the plaintiff. An entry may be prepared as prayed for in the petition for a temporary and permanent injunction. In event of appeal, the bond is fixed at $10,000.00 for the protection of the plaintiff for damages arising out of the violation of the contract by the defendant during the period from February 11, 1957 to October 11, 1957.


author: By MILLER, PJ.

text:
    STATE, Plaintiff-Appellee, v. BALDRIDGE, Defendant-Appellant.
    Ohio Appeals, Second District, Fayette County.
    No. 287.
    Decided November 17, 1956.

      John S. Bath, Pros. Atty., Washington C. H., Ray W. Davis, Circleville, for plaintiff-appellee.
    E. S. Young, West Union, W. S. Paxson, Washington C. H., Emory F. Smith, Ernest G. Littleton, Portsmouth, for defendant-appellant.
   OPINION

By MILLER, PJ.

This is a law appeal from a judgment of the Common Pleas Court rendered upon the verdict of a jury finding the defendant-appellant guilty of manslaughter in the first degree.

For the purpose of testing the errors assigned we shall relate the evidence most favorable to the State which reveals that on November 15, 1955, the hunting season for certain wild game was opened in this state; that on said date Irwin J. Patrick and Jack Kamman were acting as game protectors and conducting a game survey in Fayette County; that as such officers they drove onto the farm of the defendant in their automobile. Several parties were there engaged in hunting pheasants and rabbits. The officers approached one of the parties of which the defendant was a member, and after conducting a search found that one Donald Butler had two hen pheasants in his possession, which was in violation of state law. He was arrested by said officers for this alleged violation. His gun and birds were taken from him and he was' then placed under arrest and put in the rear seat of the officers’ car. The defendant objected to the arrest, said that Butler was his guest and that he could kill anything on his own farm. Officer Kamman testified that the defendant became so irate that Officer Patrick threatened to arrest him for .interfering if he persisted in trying to divert him in the performance of his duties. The officers then proceeded in their car to where there was another hunting party on the same farm and after making an investigation found no further violations and proceeded to make their exit from the farm by driving down a long narrow lane. While so proceeding the defendant commanded them to stop by putting up his hand and standing in front of their car. In reference to the events which then followed, Officer Kamman testified, continuing:

“He walked in front of the car and put the end of his gun on the door and pointed it in at us.
“Q. What did he say?
“A. He stated again that Mr. Butler was his guest.
“Q. Were you able to see Mr. Baldridge from where you were sitting?
“A. Yes, I could see him.;
“Q. How.was he holding,-the gun?
“A. He had command of the gun. He had it like you would ordinarily hold a .gun.
“Q. How far was this muzzle?
“A. End of the barrel was right on the edge of the window.
“Q. Now, what then happened?
“A. Mr. Patrick, he said ‘Let’s talk this over, George,’ and opened the door and got out.
“Q. What kind of a car was that?
“A. Two door Chevrolet.
“Q. What next happened?
“A. Mr. Patrick got out, Mr. Baldridge moved toward the open side of the car and the next thing I saw Mr. Baldridge holding his gun high over his right shoulder.
“Q. Which way was it pointed?
“A. Behind.
“Q. Can you describe to the jury what happened?
“As I saw Mr. Baldridge he had the shot gun and he was reaching for the gun. Mr. Patrick was reaching.
“Q. What next happened?
“A. The next thing Mr. Ealdridge was swinging it.
“Q. Then what happened?
“A. The shot followed.
“Q. Now, Mr. Kamman what next did you hear or see?
“A. Mr. Patrick, he immediately fell on the ground, and he called for me. He said ‘Oh, my God, Jack, take me to the hospital’ or words to that effect.
“Q. What then happened?
“A. Immediately after I started to get out when Mr. Baldridge shouted to me ‘To leave him alone.’
“Q. What were the words?
“A. ‘Leave him alone.’
“Q. What did you do?
“A. I left him alone.
“Q. Did you notice Mr. Baldridge?
“A. All I saw was the shot gun.
“Q. Now where was Mr. Baldridge standing at that time with relation to the car?
“A. I would say 15 feet behind the car. In the grassy strip.
“Q. Is the grassy strip between the line fence and the lane?
“A. It was.
“Q. Where was Mr. Patrick lying?
“A. Mr. Patrick was lying in the grassy part between the fence and the lane. Head against the line fence.
“Q. Now, Jack what next did you observe?
“A. Mr. Patrick rolled slightly and reached for his pistol on his right hip. Then Mr. Baldridge commanded him to leave his pistol alone. As near as I can recall, he commanded ‘leave it alone, Pat.’
“Q. He put the gun then on Patrick?
“A. That’s right.
“Q. Was Mr. Patrick ever able to get his gun from his hip pocket?
“A. No, he got the flap unfastened but was never able to get his gun out.
“Q. Then what happened?
“A. Mr. Baldridge kept backing away.
“Q. Was the gun still on Mr. Patrick?
“A. As I recall, yes.
“Q. Then what happened?
“A. The hunters were to the car and I picked Mr. Patrick up.
“Q. Will ask you Jack what happened to the gun on Mr. Baldridge?
“A. He still had it when he was backing up the road.
“Q. What about the gun on Mr. Patrick?
“A. It was still on him.”
The prosecution also called as its witness one Richard Craig who approached the defendant after the officers’ car had left the scene. He testified in part as follows:
“Q. Did you see George Baldridge?
“A. I talked to him.
“Q. What was the first thing you said to him?
“A. I asked him ‘was that the game warden’s car?’
“Q. What did he say?
‘‘A. Yes, ‘the sons-of-bitches.’
“Q. What did you say then?
“A. I said ‘Why.’
“Q. What did he say?
“A. Well, I will repeat that — I said ‘why, what happened?’ He said T just shot one.’”

The record reveals further that Officer Patrick was dead upon arrival at the hospital a short time after the shooting, death having resulted from the loss of blood. The evidence discloses that the wound was in the hip. The course of the shot was traced and it appeared that the gun was in a position parallel with the ground at the time of its discharge.

The defendant offered evidence tending to establish that the shooting was accidental, that the safety in the defendant’s gun was not operating properly and that the gun was accidentally discharged when Officer Patrick got out of his car and attempted to take the gun from the defendant by means of force.

The jury were the sole judges of the credibility of the witnesses and if it placed credence in the testimony offered by the prosecution it can not be said that the court erred in failing to direct a verdict for the defendant or that the judgment is not sustained by sufficient evidence.

The remaining errors assigned may be epitomized as follows:

1. The court erred in refusing to permit the foreman of the jury to make a statement after the verdict had been returned and a poll of the jury waived.

2. The court erred in the admission of evidence.

3. The court erred in refusing to give special charges before argument cr to include the same in its general, cnarge.

4. The court erred in its general charge.

As to assignment of error No. 1, supra, the record reveals that after the jury had returned its verdict and the defendant had waived the polling of the jury, the court made a few remarks of appreciation to the jury for its services and counsel for the prosecution also made somewhat similar remarks. The court then asked counsel for the defendant if they desired to make a statement. This they declined to do. The foreman of the jury then arose and asked if he might be permitted to make a statement. This permission was declined which appellant contends was prejudicial error. We cannot concur in such a conclusion as the jury had terminated its duties when it had returned its verdict and announced the same. There is nothing in the record to indicate any misconduct on the part of the jury which would warrant a new trial under §2945.79 R. C. We therefore find no prejudicial error in this assignment.

We have examined the record with reference to alleged errors in the admission of certain exhibits, consisting of photographs of the wounds on the deceased and also of the lane where the shooting occurred. We find that they were properly identified and the court made no prejudicial error in admitting them into the record.

It is also urged that the court erred in permitting the state tc ask the defendant on cross-examination whether or not he had ever been convicted of a crime. The objection was overruled and the defendant then testified that he had been convicted of the offense of discharging firearms and that a man by the name of Alexander was involved. He also testified under objection as to the penalty which he received for the offense. We are of the opinion that the court properly overruled defendant’s objection for the reason that §2945.42 R. C., provides that a prior conviction may be shown for the purpose of affecting the credibility of a witness. This section provides in part:

“No person is disqualified as a witness in a criminal prosecution 4 4 * by reason of his conviction of crime. 4 4 4 Such interest, conviction, or relationship may be shown for the purpose of affecting the credibility of such witness * 4

See also §2945.59 R. C. The question presented here appears to have been passed upon in State v. Carter, 75 Oh Ap 545, paragraph 2 of the syllabus:

“It is error to sustain the state’s objection to a question, propounded to one of the state’s witnesses on cross-examination, as to whether such witness has ever been convicted of a felony ‘or anything else,’ the provisions of §13444-2 GC, permitting the showing, for the purpose of affecting the credibility of the witness, that he has been convicted of ‘crime’ and such word comprehending misdemeanors under state laws as well as felonies.”

See also Harper v. State, 106 Oh St 481; Kanoff v. State. 37 Oh St 178; State v. Hollos, 76 Oh Ap 521; Maranda v. State, 17 Oh Ap 479.

Counsel for the appellant relies upon the case of Kornreich v. Industrial Fire Insurance Co., 132 Oh St 78. We are unable to agree with counsel’s conclusion on the law pronounced in this case, for it appears that the judgment of the trial court was reversed by the Supreme Cpurt for refusing to permit the witness to be cross-examined as to his conviction of guilt of a crime, specifically citing §13442-2 GC (now §2945.42 R. C.), and applied it to the case then at hand. We also find that none of the other alleged errors in the cross-examination of the defendant are well taken.

It is next urged that the court erred in failing to give defendant’s special charges 1, 2 and 3 before argument or to include the same in the court’s general charge. A trial court is not required to give special instructions to the jury before argument in criminal cases. State v. Petro, 148 Oh St 473. However, if such special instructions are correct and not given before argument, they must be given in substance in the general charge. State v. Williams, 85 Oh Ap 236. We have examined these special charges, and are of the opinion that the court included the legal principles contained in them in its general charge in so far as applicable to the facts at issue.

We have examined the entire general charge and find no prejudicial error contained therein. If there were any other omissions in the charge it was the duty of counsel to call the court’s attention to this fact at the conclusion of the same and request further instruction, which was not done. State v. Tudor, 154 Oh St 249.

We find none of the errors assigned well made, and the judgment will be affirmed.

HORNBECK and WISEMAN, JJ, concur.


text:
    STATE, Plaintiff-Appellee, v. BALDRIDGE, Defendant-Appellant.
    No. 287.
    Decided December 6, 1956.
   OPINION

By THE COURT:

Submitted upon motion of the defendant-appellant requesting that this court include in its entry of judgment an order that the sentence of the Common Pleas Court be stayed pending an appeal to the Supreme Court of Ohio.

Immediately upon receiving the above motion we contacted the Clerk of the Court of Appeals for Fayette County and were informed that the judgment entry, although not approved by counsel for appellant, affirming the conviction had been filed on the morning of this date, to wit, November 27, 1956. Had we noted the absence of approval of the entry by counsel for both parties we would have deferred our approval but .upon.the .filing of the entry this Court lost jurisdiction over the case. See State of Ohio v. Johnson, 88 Oh Ap 283.

The motion, will, therefore, be overruled.

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


author: By PURDY, J.

text:
    SCHROEDER, In re.
    Probate Court, Mercer County.
    No. 13770.

      Henry J. Knapke, Celina, for the estate.
    Gerald Donahue, Asst. Atty. Geni., Columbus, for the Department of Taxation of Ohio.
   OPINION

By PURDY, J.

This matter is before the Court upon exceptions filed by the Department of Taxation of Ohio to the Journal Entry determining Inheritance Tax in this estate.

Said parties agreed to the following stipulation of facts which covers the matters to which exceptions were filed:

“STIPULATION OF FACT
“The parties to the above entitled cause stipulate and agree that the following facts exist:
“1. Certificates of Deposit in the City Loan & Savings Co., Lima, Ohio, No. 2-60535, dated 11-29-55, in the amount of $2649.59; No. 2-60537, dated 11-29-55, in the amount of $1062.58; No. 2-60534, dated 11-29-55, in the amount of $529.92, were in existence at the time of the death of John H. Schroeder. Such certificates were carried in the name of “John H. or Nettie Schroeder,” with no provision for survivorship. No signature card was issued to the deceased or his wife by the City Loan Company. It is, however, the company’s policy to issue signature cards with joint and survivorship wording thereon to the depositors after the certificate of deposit has been executed and delivered.
“2. Savings Account No. 16523 with The First National Bank, Celina, Ohio, was in existence at the time of the death of John H. Schroeder. The balance of such account was $1900.00. The account as noted on the pass book and ledger sheets was carried in the names of “John or Nettie Schroeder.” No provision for survivorship was made. The Bank has recently started a policy of requiring signature cards. At the time of the opening of the account in question, however, no card was issued or signed, as such was not the Bank’s practice.
“3. Savings Account No. 133 in the Home Building & Loan Company, Coldwater, in the amount of $1349.77 was in existence at the time of John H. Schroeder’s death. This account was carried in the names of “John H. or Nettie Schroeder.” No survivorship provision was contained therein. The Home Building & Loan Company does not require signature cards and relies on the pass book alone.
“4. Two checking accounts in the Peoples Bank Company, Coldwater, Ohio, existed at the time of John H. Schroeder’s death in the total amount of $9836.21. Such accounts were carried on the pass book as ‘John H. or Nettie Schroeder.’ There was, however, a signature card signed by both parties which made the accounts payable to either or the survivor thereof. Such card stated thereon that the property was not held in a tenancy in common.
“Dated March 6, 1957.”

The problems presented by the exceptions in this case are quite common and have produced varying opinions by the courts of Ohio. In reviewing the cases on ownership of deposits, it appears that the courts have not come forth with specific rules of law on the different types of deposit in financial institutions but have pretty much decided each case on its own merits.

In Cleveland Trust Co. v. Scobie, 114 Oh St 241, the Supreme Court laid down the rule that where a person establishes a bank account to the joint credit of himself and another, payable to either, and balance at death of either, payable to the survivor, that a joint interest is created and upon the death of the depositor without his having revoked the authority to draw, said survivor is entitled to the balance of the account upon the death of the depositor. Thus from this case one should be able to draw the conclusion that where two or more people open an account with an agreement on the right of survivorship, that upon the death of one the amount left on deposit shall be payable to the survivor or survivors to the exclusion of the estate of the deceased depositor.

The next case of considerable importance on this question is Bender v. The Cleveland Trust Company, 123 Oh St 588. This is a case where the depositor permitted another party to withdraw from his savings account, but there was no provision for payment to the survivor. The Court held that upon the death of the depositor the balance in said account should be payable to his estate and not to the person who is authorized to withdraw on said account because there was no right of survivorship.

The third case which I have studied is Bauman v. Walter, 160 Oh St 273. This case attempts to lay down the rule law where two parties deposit money which belongs to one of such parties and where the contract of deposit provides that such deposit is payable to either of such two parties with no provision for survivorship, then the surviving joint depositor can only claim that part of the account which he can prove he actually contributed. This particular case I feel was decided upon its own particular merits as there was a strong moral factor involved and that the law derived from said case could not be followed to its logical conclusion. For instance, if this case were to apply to real property, then tenancy in common as such in Ohio would be defeated. It has always been the law in Ohio that where two or more people take title to real estate that each own an undivided fractional interest therein. Further, if these fractional interests are not stated in the deed conveying title, then they are each assumed to own undivided fractional interest therein, depending upon the number of names in the granting clause of the deed. Further, under the theory of contribution as proclaimed in this case, it would place a difficult burden upon each flduciary in every estate to determine the assets that belong in the estate and those which didn’t. Especially this would be true as between man and wife who have a joint account in which they both place money and in'which they both withdraw from time to time.

In the instant case we have certificates of deposit, savings accounts where there are no deposit contracts, and checking accounts where there are deposit contracts with the right of survivorship. In most estates there are two types of assets; probate- assets which are subject to creditors’ rights and also subject to distribution, either under the statute of descent and distribution or under a will if there be one; non-probate assets which are only included in estates for inheritance and estate tax purposes. These latter assets are not subject to the rights of creditors nor are they to be distributed under the statute of descent and distribution, or if there be a will, under the will.

It was quite a surprise to this Court to find out the practices of different financial institutions who receive deposits. Some on savings accounts do not require any signature cards while others do. There seems to be no uniform policy as to signature cards or to deposit contracts and the wording on same.

There is a line of authority in Ohio that where there is a joint account with no provision as to the right of survivorship, the presumption is that upon the death of one or both of the parties that the joint account is held as tenants in common and that each estate is therefore entitled to one half of the balance. In Re: Thatcher 30 O. N. P. NS 515; In re: Mayforth, 2 O. O. 430; In re: Chittock, 47 O. O. 226.

Adopting this line of authority as my guide I reached the conclusions as stated hereafter in the exceptions as filed to the facts in this case.

As to the first stipulation of fact I feel that the owners of these certificates are John H. and Nettie Schroeder, the persons named on the face of such certificates. As there are no rights of survivorship contained on the certificates then it is the opinion of this Court that the above named persons owned them as tenants in common with each owning an undivided one-half interest therein. Thus only one-half goes into the estate for probate purposes and thus becomes taxable. The other one-half belongs to the survivor, Nettie Schroeder, and is not taxable as a succession. The fact that the City Loan Company may obtain signature cards with joint and survivorship wording thereon does not control as the contract of indebtedness is the controlling factor. Further, whether the conjunctive used is “or” or “and” is academic as either one shows a joint interest.

As to stipulation of fact number two, it is the opinion of this Court that since the account was opened in the name of John or Nettie Schroeder, and there being no provision for survivorship that again each was an owner of an undivided one-half interest in the balance of said savings account at the time of the death of John H. Schroeder. Thus again they were tenants in common of such account and the way the account was opened and maintained is the controlling factor.

As to stipulation of fact number three, it is the Court’s opinion that the way the account is carried and maintained by the depository is the controlling factor again where there is no deposit contract. Thus each owns an undivided one-half interest in the account at the time of the death of John H. Schroeder.

As to exception number four, it is the opinion of this Court that the deposit contract which is contained on the signature card is the controlling factor and thus on the death of John H. Schroeder, the entire amount was payable to Nettie Schroeder as the survivor and unless she can prove actual contribution she shall pay a succession tax on the entire amount. Where there is a deposit contract it is the opinion of the Court that that should control over what may be contained in the pass book or what may be the heading on the ledger sheet for such account. While the old common law joint tenancy as such has never been recognized by the Ohio courts, it has generally been accepted that two or more people can contract that if one should predecease the others, that the assets then remaining shall be payable to the survivor or survivors. Thus such assets are not legally subject to creditors nor are they subject to distribution either by the statute of descent and distribution or under a will if there be one.

Thus this Court has attempted to lay down the following rules in this case:

1. Where the deposit is by certificate of deposit then the controlling factor should be the writing on the face of such certificate of deposit and shall not be paid to the survivor unless express words of survivorship are contained thereon.

2. If there be no deposit contract and no express provision for survivorship, then in savings and checking accounts the controlling factor should be the way the account is opened and maintained by the depository. Thus if a depositor only permits another person to withdraw from the account, then that latter person acquires no interest in such account and upon the death of the depositor the entire amount shall be a probate asset of his estate unless there is presented a question of a valid gift.

3. Where there is a deposit contract and such deposit contract provides that it shall be payable to either or the survivor thereof, then such deposit contract is the controlling factor and the entire amount is removed from the probate assets and is taxed as a succession to the survivor or survivors unless actual contribution can be proven. Further, all such assets are non-probate.

Thus following the above stated rules, the Court finds that one-half of the amounts described in stipulations number one, two and three belong in the estate as probate assets and thus are taxable as such. The other one-half is not a succession as Nettie Schroeder was the owner thereof at the time of John H. Schroeder’s death.

The entire amount in stipulated fact number four is taxable to the survivor, Nettie Schroeder, as counsel for the estate said they could not prove any actual contribution by the survivor and further said amount is not to be placed in the estate as probate assets.

An amended entry drawn along the line of this decision may hereby be entered with exceptions saved for both parties.