author: By SATER, J.

text:
    PETROFF and EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY, etc., Plaintiffs, v. COMMERCIAL MOTOR FREIGHT, INC., Defendant.
    Common Pleas Court, Franklin County.
    No. 195986.
    Decided January 13, 1960.

      Sebastian, Fais & Durst, for Employers Mutual Liability Ins. Company.
    Goslee & Dunlap, for Nick Petroff.
    Allen Pretzman, for defendant.
   OPINION

By SATER, J.

This case is presented for consideration and determination of defendant’s motion based on §2311.041 R. C., for a summary judgment on the pleadings, affidavits and four depositions, all of which presently constitute the file in this case. There was full compliance with the statute by defendant in the matter of serving copies of its motion on all counsel for plaintiffs along with copies of all accompanying briefs and affidavits. Such counsel further filed of record receipt and notice of such papers from defendant. Answer briefs were duly filed; and as added precaution, an entry approved by all counsel has been filed, waiving the hearing provided for early in paragraph B of §2311.041 R. C., and submitting the motion on the file as described and constituted above.

There are two plaintiffs and one defendant in this case. For the sake of brevity, and possible clarity, plaintiff Nick Petroff will be referred to herein as Petroff, plaintiff Employees Mutual Life Insurance Company as employees, and defendant Commercial Motor Freight, Inc., as Commercial.

At the time in question, February 28, 1956, Petroff was a road-haul truck driver, acting as such in the employ of Michigan Motor Freight Lines, Inc., a Michigan corporation which, under the laws of the State of Michigan, carried workmen’s compensation on its employees not through the Michigan Industrial Commission but through Employers which paid sums as directed and found by that Commission. By reason of such payments Employers were automatically by Michigan statute subrogated pro tanto to the claim of any such employee so paid by it.

■ Hence, in this case Petroff and Employers joined as co-plaintiffs as their respective interests may appear; and the propriety of such joinder has already been approved by this Court.

Late on the afternoon or early evening of February 27, 1956, Petroff picked up his rig consisting of a tractor, semi-trailer and trailer at Ashland, Kentucky, and drove across the Ohio River to Ironton, Ohio, for his rig to be loaded with spools of rolled steel to be transported by him to Detroit, Michigan. While the loading was taking place, Petroff slept for three hours at Morentz, a truck drivers’ stop-in. Somewhere around 11:00 P. M. he started his trip to Detroit; no definite time was set by Michigan Motor Freight Lines for his arrival in Detroit. One Harris, a companion driver, followed him with another load on a tractor-trailer unit. Both tractors had speed governors on them. On the trip via Portsmouth, Chillicothe, Circleville, Columbus and Marysville, Petroff was in the lead.

Between Portsmouth and Chillicothe, the two drivers ran into snow and ice (either pure ice or snow hard packed by vehicles). They stopped briefly at Chillicothe to clear ice from their windshields. Again they took off with Petroff in the lead, using S. R. 104 to Columbus because of its slighter volume of traffic; thence to Marysville and onward. The trip so far was uneventful. Petroff, age 30, and the father of a family, had had eleven years experience as a truck driver; in those eleven years he had had no serious accident and, as far as he can remember, had never received a traffic violation ticket.

In the lead, Petroff had no recollection of passing through Columbus or Marysville. In fact he has no recollection how on S. R. No. 31 some 13-14 miles north of Marysville, his rig collided with that of Commercial which was going in the opposite direction, south into Columbus with a cargo of miscellaneous freight. It seems to be essential to Commercial’s defense to establish that Petroff’s mind went blank, belike due to a serious head injury on Okinawa in 1946, somewhere north of Chillicothe where ice was removed from windshield, and remained so through Columbus, Marysville and the accident until he woke up in University Hospital in this city. It is, however, equally plausible to infer that the force of the collision drove all memory from his mind. His mind was certainly not a blank. He knew there was snow and ice from all the way south of Chillicothe; he knew his rig did not skid at any time, and he knew that there was nothing unusual about the trip at any time - - i. e., it was just another uneventful haul for him. He was obviously a skilled driver and had been over this run statedly many times. After all, vehicle operators do not usually drive in the expectation that they may or soon will be involved in a terrific collision. Nor since his discharge from the Marine Corps late in 1946 or early 1947 had he had any sickness, been hospitalized or seen a doctor except for common colds. On such a motion as is now before us for consideration, it is not the function or duty of the Court to reconcile ambiguities or conflicts in a witness’ testimony. Tinker v. N. W. Airlines (Ohio), 10 F. R. D., 372, Furton v. City of Menasha, (Wisc.), 149 Fed. 2d, 945, Coe v. Riley (Fla.), 160 Fed. 2d, 538, 540.

Commercial’s rig, driven by Cecil Gordon, who had been over that road “maybe a dozen times,” was coming south over S. R. No. 21, headed for Columbus. He knew that there were patches of ice and snow on S. R. No. 3 all the way from Kenton at least 30 miles to the north. About 1000 feet north of the spot where the collision occurred, the road swung to the east in a long, smooth curve. Thus Gordon was on the outside of that curve and his headlights would be directed substantially to the left of Petroff; on the other hand, Petr off’s lights on the inside of the curve would be almost directly in Gordon’s eyes. Where the vehicles collided, the road was straight, level, macadam, 20 feet wide, with a substantial berm on each side. One wonders how wide is the over-the-road rig of a regulated motor carrier; certainly not over ten feet.

Gordon saw Petroff approaching, hugging the center of the road with his left wheels, but nowhere in his deposition would he say that any part of Petroff’s rig was to the left of the center of the highway; indeed, he expressly refused therein to say so. He slowed down from 30-35 miles per hour as the vehicles approached, to 15 miles per hour, and pulled as far as he could onto the berm of the road on his right without going into the ditch on the right (west). Again, one wonders why this maneuver was necessary in view of the width of the highway and of the certain fact of him who was there that Petroff had left him at least 10 feet of macadam to drive past on.

As the vehicles approached each other, the semi-trailer on Gordon’s Commercial rig started to slide or “jack-knife” - - a phrase which in motor carrier jargon means that the semi-trailer slides at an angle from the direction being taken by the power tractor unit; the jackknifing may leave the rig in the shape of a capital L, or even V. Conceivably this can be caused by slippery road, by too sudden application of the brakes, or both; or, conceivably from pulling over part way onto the berm so that motive power was greater on the inside than on the outside wheels. Gordon does not know whether the rear end of Commercial’s rig so jack-knifed over until part of it was on the east or Petroff’s side of the highway (but in view of his refusal to say that any part of Petroff’s rig crossed the center of the highway as it approached, the inference is obvious).

In any event, at about 3:15 A. M. on February 28, 1956, the two rigs collided while Commercial’s rig was still jack-knifing. Petroff’s tractor hit the left rear of the Commercial rig. Each driver, Petroff and Gordon, was alone. So far no eye-witness has been found. When it was over, Highway Patrolman Wurm testified that two hours later, when he arrived, the two rigs were 170-190 feet apart, Petroff headed mostly easterly with its trailer still on the road, Commercial off the highway headed mostly to the south. (Let it be noted in passing that if Gordon’s estimate of 1% truck lengths between the two rigs, and the directions in which they were headed was no more accurate than his estimate of his own speed, he was in all likelihood travelling a great deal more than his 15 miles per hour.) Petroff has not been able to work since. The steel rolls on Petroff’s rig lay about the east side of the road; Commercial’s freight lay “on the west side of the road and center part — all parts of the road.” Neither rig upset. There was so much debris on the highway that Wurm could not state the point of impact on the highway. The left side of Petroff’s tractor was demolished and there was some damage to the left side of the semi-trailer; about ten feet had been torn off the rear of Commercial’s semi-trailer rig. Wurm further testified that there was a 38 foot long mark left apparently by Commercial's right front wheel until it reached a point seven feet off on the berm on the west side of the highway; but since he could not locate the point of impact, it is guesswork whether this line was in front of or following the point of impact, whether it resulted from Gordon’s swerving or from his application of brakes, yet, again, it causes wonder why Gordon did not drive straight by — and what effort, if any, he made to pull Commercial’s rig out of its jack-knifing.

This narration of facts, so far uncontroverted, leaves many questions of fact which only more evidence (e. g„ Michigan Motor Freight’s second driver has not yet testified) and a jury can decide. Was there an icy patch at the point of impact? Did it cover the whole highway? Which driver hit it first? Did either or neither hit it? Was Petroff’s hugging the center of the highway on his side the proximate cause? Or was Commerdal’s jack-knifing? Or both, or' neither? Why did Commercial’s rig jack-knife at all? Did Commercial’s semi-trailer get over onto the east (wrong) side of the highway? How fast was each of the two rigs travelling under adverse weather conditions? Legally, at least, §§4511.20, 4511.21 and 4511.29 R. C., are probably all involved in this case. There is sharp conflict as to all operative facts except the generalities of incorporation, agency, date, place and hour of the collision. The need for jury trial is incontrovertible.

Petroff and Employers joined as plaintiffs in an action against Commercial. Their second amended petition sets up the following acts of negligence by Commercial: (1) operating at a speed greater than was reasonable and proper, namely, 40 miles per hour, (2) operating to the left of center of the highway and failing to operate on the right (west) side of the highway, (3) driving out of the line of traffic without ascertaining that it could be safely done, (4) failure to keep its vehicle under control. There is also quoted the Michigan statute authorizing partial subrogation. Commercial’s answer sets up four defenses: (1) denial of all except Employer’s incorporation, route, date, directions, time and place of collision, denies extent of Petroff’s injuries, alleges contributory negligence, (2) misjoinder of Petroff and Employers as co-parties plaintiff, (3) misjoinder of causes of action in Petroff and Employers in one petition, (4) no cause of action stated as to Employers. These pleadings were filed'February 13, 1958, and April 2, 1959, respectively. The motion for summary judgment was filed December 31, 1959.

Our Summary Judgment Statute, §2311.041 R. C., became effective November 9, 1959. We know of no reported case in Ohio construing it. However, Commercial’s brief agrees that this Ohio statute is parallel and closely akin to Federal Rule of Civil Procedure, No. 56; that is, both logical and accurate.

A great many authorities, state and federal, can be found in 28 U. S. C. A., “Federal Rules of Civil Procedure,” No. 56, notes 4, 5, 6, 7, 8, 9, 22, 23, 55, 59, 60. The purpose of such a rule or statute is to terminate useless and expensive litigation when there is no general issue as to any material fact. Creel v. Lone Star Defense Corp. (Texas), 171 Fed. 2d, 964, Lincoln Electric Co. v. Knox. (D. C.), 56 Fed. Supp., 308, 310, Rogers v. Girard Trust Co. (Ohio), 159 Fed. 2d, 239, 241, and Bowdidge v. Lehman, post. (Ohio), 252 Fed. 2d, 366. It is to be used where issues are feigned,

and there is really nothing to try. Nat’l. Transformer Co. v. Ranney (Ohio), 86 Fed. Supp., 57, 58. It is a remedy that is to be used with caution. Assn. Press et al., v. U. S., 326 U. S., 1, 6, 89 L. ed., 2013, 2022. By statutory wording as well as court decision, all doubts are to be resolved against movant. Latsko v. Nat’l Carloading Co. (Ohio), 192 Fed. 2d, 905. If there is the slightest doubt as to the facts, the motion does not lie. Dazian’s v. Switzer Bros. (Ohio), 111 Fed. Supp., 648, 649, Plethaty Co. v. Heckett Engineering, Inc. (Ohio), 145 Fed. Supp., 805, 807. It is not intended to block cross examination of a defendant, especially when the facts are particularly within his knowledge. Arnstein v. Porter (N. Y.), 154 Fed. 2d, 464, Bluffs Creek Oil Co. v. Green (Texas), 257 Fed. 2d, 83, 87-88. Such a motion may be granted only if there is no dispute as to any material fact. Fountain v. Filson, 336 U. S., 681, 683, 93 L. ed., 971, 973, Green Bay Auto Distrib. v. Willys-Overland (Ohio), 102 Fed. Supp., 151. There are here issues of fact that must be left for the jury to decide. Union Carbide Co. v. Hicks Express Co. (Del.), 162 Fed. Supp., 612, 613. Jacob v. Penna, R. R. (Ohio), 203 Fed. 2d, 290, Bowdidge v. Lehman (Ohio), 252 Fed. 2d, 366, 368. Shaffer v. U. S. (Ohio), 216 Fed. 2d, 330. For a more comprehensive discussion of comparable state statutes in particular, see 41 Am. Jur., 525, Sec. 342, par. 1. The facts presently confronting us clearly remove this case from the category of litigation at which this new Ohio statute is directed. It may perhaps not be said that the motion was filed here by the wrong party, but the pleadings, affidavits and four depositions indicate beyond doubt that this is properly a jury case.

Motion for summary judgment overruled. Exceptions to Commercial.


source: Caselaw Access Project

author: By WOLDMAN, J.

license: Public Domain

text:
    CALOGERAS, Plaintiff, v. CALOGERAS, Defendant.
    Juvenile Court, Cuyahoga County.
    No. 141117.
    Decided December 29, 1959.

      Thomas R. Chase, Cleveland, for plaintiff.
    Arthur P. Lambros, Cleveland, for defendant.
   OPINION

By WOLDMAN, J.

THE FACTS

This cause originally came to the Juvenile Court upon certification of jurisdiction from the Common Pleas Court of Cuyahoga County on July 31, 1947. The divorce decree, dated December 21, 1946, provides in part:

“It is further ordered, adjudged and decreed that the custody, care, and education of her minor children, Athena, 7 years of age, and James, 6 years of age, is hereby awarded to the plaintifl and the defendant pay to the plaintiff the sum of $60.00 per month for the support of the minor children, payable semi-monthly until further order of the court.”

On July 31, 1947, the custody and support of the children was certified to the Juvenile Court of Cuyahoga County. On a subsequent date, November 25, 1957, the Juvenile Court modified the support order as to James and ordered the father to pay $15.00 per week for the support of said minor.

Athena, the oldest child of the parties, is now in a convent and her support is no longer an issue. The other child, James, became eighteen years of age in April, 1959, and he is now a student at John Carroll University. On July 30, 1959, the mother, plaintiff herein, filed a Motion in Contempt, against defendant for failure to pay support for James from April 8, 1959, on, and also for failure to pay medical expenses incurred by the plaintifl for the two children.

Defendant ceased support payments for James upon his attaining the age of eighteen, which occurred on April 8, 1959, at which time James was attending high school. Since then James has enrolled at John Carroll University under a full tuition scholarship. At the oral hearing before the Court it was testified that he still resides with his mother and is dependent upon his parents for support if he is to continue his studies; that as a condition of continuing his scholarship it is necessary for him to maintain a high quality of scholarship; that his employment during the past year provided only enough to pay some of his book expenses; and that other expenses of his college education, plus living expenses, are not covered by the scholarship or otherwise. The evidence further disclosed that the defendant is remarried and has four children by his present wife.

On April 20, 1959, after the minor, James, reached his eighteenth birthday, the defendant voluntarily agreed to pay $15.00 a week toward the care and support of James “until he graduates from high school ” The defendant now objects to continuing these payments to enable James to obtain a college education.

THE LAW

Patently the Juvenile Court’s criminal jurisdiction over a parent to compel the support of a minor child terminates when the child becomes eighteen years of age. Sec. 2151.42 R. C., provides in part as follows: “No person charged with the care, support, maintenance or education of an illegitimate child or a legitimate child under eighteen years of age shall fail to care for, support, etc. . . .”

However, it is equally patent that the Juvenile Court’s jurisdiction of a child continues until the child is twenty-one years of age. This is apparent from §2151.38 R. C., which provides in the last sentence thereof as follows:

“All other commitments by the court shall be temporary and shall continue for such period as designated by the court in its order, or until a child attains the age of twenty-one years.”

As was said in Slawski v. Slawski, 49 Oh Ap 100; 1 O. O. 201:

“The jurisdiction of the Juvenile Court having attached when the child is under eighteen years of age, the child continues to be the ward of the court until attaining the age of twenty-one years.”

This statement of the Court is based on §1643 GC, which is analogous to §2151.38 R. C., supra.

The jurisdiction of this court up to twenty-one years of age is further strengthened by the fact that this case was originally certified to this court from the Common Pleas Court. Where jurisdiction is certified from the Common Pleas Court to the Juvenile Court, the Juvenile Court acquires the jurisdiction of the Common Pleas Court. As in said in Sonnenberg v. State, 40 Oh Ap 484:

“We are of the opinion that the purpose of this legislation as manifested by a consideration of §8034-1 GC (§3109.06 R. C.), in conjunction with §1642-1 GC (§2151.23 R. C.), is to clothe the juvenile court with jurisdiction to proceed in divorce cases which have been certified to it, in a matter respecting the custody and support of a minor, as the common pleas court would have been authorized originally to do. . .”

There can be no doubt of the statutory obligation of a father to support his legitimate child during the child’s minority. Sec. 3103.03 R. C., provides in part as follows:

“The husband must support himself, his wife, and his minor children out of his property or by his labor . . .” (Emphasis added.)

The age of majority is defined by §3109.01 R. C., which provides as follows:

“All persons of the age of twenty-one years or more, who are under no legal disability, are capable of contracting and are of full age for all purposes.”

Interpreting the above statutes, §7997 GC (§3103.03 R. C.), and ?8023 GC (§3109.01 R. C.), the Court in Mieszkalski v. Mieszkalski, 44 Oh Ap 152, held that a father’s duty to support does not stop when a child reaches eighteen years of age.

It was also held in Slawski v. Slawski, 49 Oh Ap 100; 1 O. O. 201, as follows:

Syl. 1. The jurisdiction of the Juvenile Court having attached when a child is under eighteen years of age, the child continues to be the ward of the Court until attaining the age of twenty-one years.

Syl. 2. A father’s duty to furnish support to a minor child does not cease upon the child’s arrival at the age of eighteen.

Syl. 3. Where a Common Pleas Court, having made an award of the custody and an order for the support of a minor child, certifies the same to a Juvenile Court for further proceedings, pursuant to §8034-1 GC (§3109.08 E. C.), and the jurisdiction of the Juvenile Court attaches before the minor is eighteen years of age, the jurisdiction of that court to act in the matter continues until the minor attains the age of twenty-one years.

On the matter of the Juvenile Court’s jurisdiction, the Court of Appeals in Slawski v. Slawski, supra, made the following statement:

“We think, therefore, that the Juvenile Court had jurisdiction to make all lawful orders made necessary by reason of noncompliance with the order made in the Court of Common Pleas awarding amounts for the support of the minor child.”

Thiessen et al v. Moore et al, 105 Oh St 401, ruled:

In a divorce, alimony, custody, support and maintenance proceeding the court is without power to make a decree with reference to the maintenance of minor children beyond the date when such children shall arrive at their majority.

Miller v. Miller et al, 154 Oh St 530, 43 O. O. 496, held:

In a divorce action, where a child of the parties attains his majority, authority of the court over such child comes to an end, and the court is without power to provide for the support of or aid to such child or to continue a provision for his support. (Thiessen v. Moore, 105 Oh St 401, approved and followed.)

QUESTION: DOES SUPPORT “DURING MINORITY” INCLUDE PAYMENT FOR A COLLEGE EDUCATION?

Generally under the Ohio law a father is required to furnish “necessaries” for his minor child (under twenty-one years of age) and the father’s obligation to support ceases when the child reaches his majority, becomes self-supporting or is emancipated.

The question here to be resolved is: does a father’s obligation to furnish “necessaries” during the child’s minority contemplate paying for a college education?

On the point that the parental obligation of providing the support of minors extends only to “necessaries,” 30 O. Jur. 607 states:

“At an early date, it was said that necessaries for an infant include ‘his necessary meat, drink, apparel and physic; and likewise good teaching and instruction whereby he may profit himself afterwards,’ but modern authorities extend the term to include many of the conveniences of refined life, according to the circumstances and conditions of the parties.” 20 R. C. L. 625.

However, in 1928 an Ohio Court of Appeals in the case of Wynn v. Wynn, 6 Abs 450, held that parental obligation to furnish “necessaries” does not comprehend a college education. The court laid great stress on the fact that the compulsory school law required attendance only until eighteen years of age. “The sole question at issue in this case,” said the court, “is whether or not the court having jurisdiction of the custody and care of this minor in the divorce case, can require the father to support this 20-year-old minor son in college after he is past compulsory school age and has had all and more education than is required under the compulsory school age law.” (The minor had graduated from high school and attended one year at college.) The court ruled:

“We find no law requiring a parent to send a minor child to college. While it is a laudable act on the part of a parent to send a child to college, especially where such child has the desire to go and the ability to profit by it, we know of no law substituting the judgment of the court for that of the parent as to whether or not the parent shall send his child to college after such child has had more education than the compulsory school law requires and the child is past the compulsory school age.”

A recent case in the Cuyahoga County Court of Appeals, Mitchell v. Mitchell, 81 Abs 88, Ohio Bar, Aug. 3, 1959, following the ruling of the Wynn v. Wynn case, held:

“The furnishing of a college education to children is a voluntary act of the parents and in the absence of contract a court cannot in a divorce decree compel or order such education as part of the support of minor children.”

This case probably has limited application since it arose by reason of an effort on the part of the mother of the children to obtain the modification of a separation agreement which had been made a part of the divorce decree, by increasing the amount of the children’s support through an additional contribution by the father of $500.00 per year per child for a college education. By this additional award, said the Court of Appeals, “the trial judge exercised a power not granted to him by the law of Ohio.”

The Mitchell case can further be distinguished from the instant case in that in the Mitchell case the award for a college education was not limited to the minority of the children.

The recent (1958) case of Robrock v. Robrock, 167 Oh St 479, although it upholds the order upon the father to pay for his son’s college education even beyond the son’s minority, has no direct bearing upon the instant case, inasmuch as the Robrock decision is based upon the enforcement of an agreement incorporated in the divorce decree.

Probably the earliest reported case in this country involving the question as to whether a college education is a necessity is Middlebury College v. Chandler, 16 Vt. 683, 42 Am. Dec., 537, where a suit was brought to recover from the son whose father was now deceased, tuition and other bills which represented a charge for his minor son, as a student at the College. This case appears to be authority and is referred to by nearly all text writers upon the question. The court there refused to hold that a college education was a necessary.

The Middlebury decision written in 1844, stated:

“The practical meaning of the term (necessaries) has always been in some measure relative, having reference as well to what may be called the conventional necessities of others in the same walks of life with the infant as to his own pecuniary condition and other circumstances. Hence a good common school education, at least, is now fully recognized as one of the necessaries for an infant . . . but it is obvious that the more extensive attainments in literature and science must be viewed in a light somewhat different. Though they tend greatly to elevate and adorn personal character, are a source of much private enjoyment, and may justly be expected to prove of public utility, yet in reference to man in general, they are far from being necessary in a legal sense. The mass of our citizens pass through life without them . . .”

In a proceeding subsequent to a decree of divorce against him, brought by a father to have modified an allowance of $50.00 per month for the support of his minor son, the custody of whom had been awarded to the mother, on the grounds that the son, seventeen years of age, had completed his high school course and was able to support himself, and that the petitioner’s income had decreased, to which application for modification the defense was raised that such allowance was necessary to permit the minor son to obtain a college education, the court, in Morris v. Morris (1930) 92 Ind. App. 65, 171 N. E. 386, held that the lower court erred in dismissing the petition, for the reason that a parent was under no legal duty to give his minor child a college education, it not being a necessary. The court distinguished Esteb v. Esteb (1926) 138 Wash. 174, 244 P. 264, 246 P. 27, 47 A. L. R. 110, by stating that the present case did not involve circumstances wherein a child showed a peculiar aptitude for some chosen vocation.

The court in Halsted v. Halsted (1930), 228 App. Div. 398, 239 N. Y. S., 422, holding that the father’s obligation to support the children terminated upon their reaching majority, added: “Unlike the furnishing of a common school education to an infant, the furnishing of a classical or professional education by a parent to a child is not a ‘necessary’ within the meaning of that term in law. Especially is this so where the child has become of age. It may be that unusual circumstances might make the furnishing of a professional or classical education to an infant a necessary, enforceable in law against a parent, but that question is not here, since the children have become emancipated; each has attained her majority, and the circumstances of the parties preclude such a holding.”

An order, upon application for additional alimony pendente lite by the wife, directing the husband to pay the tuition and cost of books to enable his nineteen-year-old son to attend night law school, was reversed in Streitwolf v. Streitwolf (1899), 58 N. J. Eq. 570, 43 A. 904, 45 L. R. A. 842, where there had been no order awarding custody to either party to the divorce action and the husband objected to such course of study on the grounds that his son was unfitted for law and that he desired him to go into business. It was stated that while the right of a wife to support pending suit embraced provision for the suitable maintenance of herself and children who were dependent on her, including the expense of ordinary education, it would not be extended, against the opposition or without the acquiescence of the husband, to include the cost of the professional training of a grown-up son not in the custody of the wife.

However, a number of courts have taken the view that a father may be required to provide his minor child, not in his custody, with a college education if the child has evinced an aptitude therefor. And where the custody has been awarded the mother, it is for her to determine what education the child should have.

Thus in Esteb v. Esteb (1926), 138 Wash. 174, 244 P. 264, 246 P. 27, 47 A. L. R. 110, it was held that an allowance of $60.00 per month, ostensibly for the support of a minor daughter, whose custody had been committed to the mother by a decree of divorce from the defendant, but in reality to enable the daughter to attend college and fit herself for her chosen profession of teaching, for which she was especially adapted, was proper, the financial situation of the defendant (father) being such that the payment could be made without difficulty. The salient points of this decision are set forth in the syllabi as follows:

“Divorced father could be compelled to provide funds for college education of minor child in custody of mother where capacity of said child for further education had been plainly shown.

“Though law presumes that father having custody of child will provide education for it, in vocation for which it is best fitted, opinion of mother as to necessity for education will be accepted in proceeding to modify divorce decree to provide for child’s support where she was given custody after divorce.”

Using reasoning similar to that appearing in Esteb v. Esteb, supra, the Court in Jackman v. Short (1941), Oregon, 109 P. (2d), 860 at page 872, said:

“Whether as necessaries within the contemplation of the common law rule, or as a provision for education within the purview of our statute, we believe that awards for a college education made in behalf of a child displaying sufficient capacity are permissible. Reason, as well as the public policy of this state, favorable as it is to higher learning, permits no other conclusion. The high esteem in which college training is held in this state is unmistakably indicated by the numerous colleges found in various parts of this state. Ordinarily, a child of divorced parents is in greater need of the help that a college education can give than one living in a home where marital harmony abides.”

In Refer v. Refer (1936), 102 Mont. 121, 56 P. 2d 750, an order requiring one to pay his former wife in whose favor a decree of divorce had been rendered, the sum of $35.00 per month for tuition and other expenses of a college education of a son of the parties in the custody of the wife, was affirmed as against the husband’s contention that the court was without jurisdiction to make an order requiring him to pay his former wife the sum of money specified for the purpose of sending his minor son to college, and that the statute requiring divorced parents to educate their minor children did not contemplate a college education.

It was held in Payette v. Payette (1931), 85 N. E. 297, 157 A. 531, that a parent against whom a divorce decree was awarded could be compelled to contribute to the support of his nineteen-year-old son who was attending college and was capable of self support.

In an action to compel payment of allowances made in an original divorce decree, which awarded the divorce to the defendant’s wife and decreed custody of their minor son to her, it appearing that the reason for bringing such action was to assure the minor son’s education at college, it was held in Feek v. Feek (1936), 187 Wash. 573, 60 P. 2d, 686, that the order of the lower court to the effect that the defendant pay to assist the minor son in obtaining a university education, the sum of $25.00 per month from October to March, inclusive, of each year until further order of the court, and $40.00 per month for the remaining months of each year, was justified and reasonable.

In Cox v. Cox, 158 Or. 74, 74 P. 2d 983, it was held that the trial court did not err, in ordering that during the time the two younger children are in college they shall have additional money for their education.

* # $ sfc *

Thomas Jefferson once said: “I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered, institutions must advance also to keep pace with the times.”

Great changes have taken place in the world since the Middlebury College case 115 years ago, and even since the Wynn v. Wynn case, 28 years ago. The ruling of Middlebury College v. Chandler was clearly based upon conditions which existed at that time. As was stated in the Esteb v. Esteb decision, supra: “An opportunity at that early date for even a common school education was small, for a high school education less, and for a college education was almost impossible for the average family, and was generally considered as being only within the reach of the most affluent citizens. While there is no reported case, it is hardly to be doubted that the courts at that time would even have held a high school education was unnecessary, inasmuch as very few were able to avail themselves of it.

“But conditions have changed greatly, in almost the century that has elapsed since that time. Where the college graduate of that day was the exception, today such a person may almost be said to be the rule.”

We think that today in answering the question whether a college education is or is not a necessary within the contemplation of the law, we should not resolve the matter merely by the fact that the compulsory education laws compel a child to attend school under the threat of legal action only until he is eighteen years of age.

In the Esteb v. Esteb case, supra, the court stated: “It cannot be doubted that the minor who is unable to secure a college education is generally handicapped in pursuing most of the trades or professions of life, for most of those with whom he is required to compete will be possessed of the greater skill and ability which come from such an education.”

Aside from this personal reason for encouraging higher learning for our youth there is today’s imperative reason of public welfare.

Today the conflicting ideologies of the great powers of the world are in a competitive race for the minds of men. America and our vaunted democratic way of life are faced with the greatest challenge of our history. The Russians are grimly determined to supplant the United States as the first world power and to make communism the earth-dominant political philosophy.

The United States which long has boasted of its technological supremacy, is being challenged by a most formidable competitor. We have come to a humiliating realization that Russia with her giant strides in technology and science, has not only caught up with us in the field of knowledge dealing with science and engineering, but has actually surpassed us. Witness their successful launching of the sputniks and their sending rockets to the moon.

How are we to meet the challenge of Soviet Russia? How other than by strengthening and improving our own system?

America’s future depends largely on the capacity of our young people of today — democracy’s leaders of tomorrow — to learn, to think, and to work. To cope with the world challenge that faces us, our youth must be trained to live as citizens, not merely in American society, but to live in an America caught up inextricably in an evolving world community which finds itself today in the throes of veritable technological and political revolutions. It requires the training of leaders of the future equipped to think and to work in both the sciences and the humanities. It requires an American citizenry that will understand other societies as well as American history and society. It is in the class rooms, the laboratories, and the libraries of our colleges where the insights and attitudes of tomorrow are being forged today. The kind of education our children receive today may well play an important role in determining our nation’s future.

A changing world has shattered the old concept that a higher education is a luxury to be enjoyed only by the rich. Preparing our youth for possible service in the ranks of the creators and developers of civilization has become an imperative necessity.

The public policy of the State of Ohio clearly favors and encourages college education for our young people possessing the desire, aptitude, and capacity for higher learning. This is manifest by the fact that the State of Ohio maintains six state tax-suported universities and colleges: Ohio State University, Ohio University, Miami University, Bowling Green State University, Kent State University and Central State College, with Ohio State University alone having an enrollment of more than 20,000 students. Three Ohio cities — Cincinnati, Toledo, and Akron — maintain municipally supported universities. New if any of the states surpass Ohio in the number of privately endowed institutions of higher learning.

In 1921 Ohio colleges had an enrollment of 50,985. By 1958, this number more than tripled, growing to 156,385 students. The 1959 enrollment is still larger by approximately 5 per cent.

Similarly national college enrollment also more than tripled from 3926 to 1958, growing from 1,002,131 to 3,258,556. (The national college enrollment in 1900 was 253,285 including 36,176 students in graduate and professional schools.)

Thus what was once the “exception” has become commonplace.

DECISION

This case presents the question whether the Juvenile Court has the jurisdiction to require the father of a child whose custody had been given to the mother in a divorce decree, to support said child after he has reached his eighteenth birthday, but before he attains the age of twenty-one years, where such continued support beyond the age of eighteen is intended for the purpose of a college education for said child.

The duty of a father to provide for his minor child when the custody is in another is restricted to necessaries.

The question then is: Is a college education a necessary within the contemplation of the law?

It is difficult to lay down a general rule as to what are necessaries. It is a relative and not an absolute term.

The question of what sort of an education is necessary, is also a relative one. As the court declared in the Esteb v. Esteb case, supra: “The court should determine this in a proper case from all the facts and circumstances. Nor should the court be restricted to the station of the minor in society, but should, in determining this fact, take into consideration the progress of society and the attendant requirements upon the citizens of today.”

We hold that considering the progress of society and our nation’s need for citizens educated in the humanities and the sciences, a college education is a necessary where the minor’s ability and prospects justify it.

In the normal situation where the father and the mother and children are in one household, the father, pursuant to §3102.03 R. C., is the head of the family. It is, therefore, normally his decision as to whether or not the child should have a college education. However, where the parents are divorced and the child is in the custody of the mother, it is then incumbent upon her to make the plans for the child’s education. If in her judgment she believes the child possesses proper aptitude and desire to attend college, would appear that under the law, the father’s responsibility for the child’s support, continuing until the child is twenty-one, includes support of said child during his attendance at college until such child is twenty-one years of age.

Accordingly, the Court finds for plaintiff and orders that the, support payments for James should continue at the rate of $15.00 per week until he reaches the age of twenty-one years.

The Court also finds that the defendant is in arrears in the sum of $240.00 for the support of the minor, James; also, the sum of $120.00 for medical expenses for the minor, Athena Calogeras.


author: By WILLSON, District Judge.

text:
    COLMAN et, Plaintiffs, v. PITZER, Admrx., Deceased, Defendant.
    United States District Court, W. D. Pennsylvania.
    Civ. A. No. 566.
    Decided March 3, 1958.
    English, Gilson, Baker & Bowler, Erie, Pa., for plaintiffs.
    Gifford, Graham, MacDonald & Illig, Erie, Pa., for defendant.
   OPINION

By WILLSON, District Judge.

In this diversity ease defendant has moved for judgment on the pleadings. Plaintiff Sam Colman is a resident of the City of Erie, Pennsylvania in this district. On November 8, 1956, according to the complaint, he was operating a Buick automobile owned by the other plaintiff, Rose Finglass, on a highway in Erie County, Pennsylvania. Defendant’s intestate, Robert H. Pitzer, Jr., a resident of Ohio, was operating a truck owned by him on the same highway. The vehicles collided. Plaintiff Colman was injured and as a result he claims damages in excess of $3,000. Robert H. Pitzer, Jr., died at the time of or very soon after the collision.

It is noticed that Rose Finglass, who owned the car which plaintiff Colman was driving, is a resident of Maryland. She joins with plaintiff Colman in the suit pursuant to Rule 20(a) of the Federal Rules of Civil Procedure, 28 U. S. C., but her claim for relief covers damages to the automobile only in the amount of $1040. The service of the summons and complaint was made upon the defendant by serving the Secretary of the Commonwealth pursuant to the Federal Rules and the Pennsylvania Act of 1929, May 14, P. L. 1721, as amended February 17, 1956, 75 P. S. §1201 et seq. The amendment now permits service upon the personal representative of a nonresident motor vehicle operator who dies after the accident.

The contention of the defendant is that plaintiffs did not present a claim in accordance with the probate laws of the State of Ohio against the defendant Shirley Ann Pitzer, Administratrix of the Estate of Robert H. Pitzer, Jr., prior to the filing of their complaint and within the time required under Ohio law. This contention is raised by the defendant in the answer under “New Matter.”

In the answer defendant has averred that §2117.06 of the Probate Code, R. €., requires that all claims against decedents’ estates shall be presented within four months after the appointment of the executor or administrator, and further, that under another section a claim that is not presented within nine months from the date of the appointment of an executor or administrator shall be forever barred. It is averred that the Administratrix here was appointed by the Probate Court of Ashtabula County, Ohio, on November 20, 1956.

Defendant further contends that because plaintiffs have failed to controvert the defense set up under New Matter, it must be taken as having been admitted, since more than twenty days have elapsed since the filing and serving of the answer containing new matter. However, plaintiffs point to Rule 7 of the Federal Rules of Civil Procedure which, of course, designates the pleadings allowed in Federal practice. The pleadings in Federal practice are a complaint and answer; and a reply to a counterclaim denominated as such; an answer to a cross claim if the answer contains a cross claim. Mention is then made of the third party complaint and answer and the rule then specifically says no other pleadings shall be allowed except as the court may order a reply to an answer or a third party answer.

Rule 8, which covered the general rules of pleading, sets forth the requirements as to the complaint and answer and 8(c) refers to affirmative defenses. It is noticed that part of the language in 8(c) no doubt covers the defense raised here in that it says “* * * and any other matter constituting an avoidance or affirmative defense.” Thus it appears that the defense raised by the new matter is properly pleaded under the Federal rules, although inappropriately characterized. But in this connection, 8(d) says that averments in a pleading to which no responsive pleading is permitted shall be taken as denied or avoided. On this point, under 8(d) the defense raised is simply an issue in the case, as plaintiff cannot be held in default for failing to file a reply to the “New Matter” because no such pleading is pennitted under the Rules of Civil Procedure.

At the argument, counsel for the plaintiffs conceded as a fact that plaintiffs did not present any claim to the administratrix as mentioned under the Probate Code of the State of Ohio. The issue is thus squarely presented as to whether such a procedure is a prerequisite to the filing of suit in this court based upon a tort action occurring in Pennsylvania.

No authority is needed for the proposition that a nonresident motorist coming into Pennsylvania and being involved in a collision may be held liable under the negligence law of Pennsylvania. This is substantive law. There is no issue presented here on the service of process. There is diversity of citizenship, so that the court has jurisdiction and venue under 28 U. S. C. A. §§1332 and 1391, because plaintiff Colman resides in this district.

This is a claim for relief because of an alleged tort committed by defendant’s decedent. The action is thus transitory so that decedent, had he lived, could have been sued any place where service of process could have been made upon him. Pennsylvania now says that in the event of his death, his personal representative may be served and this has been done. Under the facts as shown by the pleadings and which are undisputed, the remedy provided by the State of Pennsylvania will not be defeated in a Federal court merely because the law of Ohio requires a certain period of time for a presentation of a claim against an administratrix. It is believed that the defendant here confuses the possible collection of a judgment with the right to bring suit in the first instance. It may very well be that if plaintiff Colman is successful in this court and a money judgment results, he may be confronted with the Ohio statute in collecting the judgment from the defendant. On the other hand, it may not be necessary for him to go into the State of Ohio to collect his judgment. He is entitled to proceed in this court under the substantive law of Pennsylvania. As to the plaintiff Colman, defendant’s motion for judgment will be denied.

It is noticed that plaintiff Finglass’s claim for relief is less than the jurisdictional amount stated under 28 U. S. C. A. §1332(a). Rule 20 does not confer jurisdiction merely by the permissive joinder with plaintiff Colman. The law is that when two plaintiffs have separate and distinct demands and unite in a single suit, the amount of each must be of the requisite amount to be within the jurisdiction of the district court. See Pinel v. Pinel, 240 U. S. 594, 36 S. Ct., 416, 60 L. Ed., 817; Thompson v. Gaskill, 315 U. S., 442, 62 S. Ct., 673, 86 L. Ed., 951; Clark v. Paul Gray, Inc., 306 U. S., 583, 59 S. Ct., 744, 83 L. Ed., 1001; and Century Insurance Co. v. Mooney, 10 Cir., 241 F. (2d), 910.

Although defendant does not raise the issue of venue as to plaintiff Finglass, under Olberding v. Illinois Central R. Co., 346 U. S., 338, 74 S. Ct., 83, 98 L. Ed., 39, not only is there no jurisdiction because of the amount claimed, but there is no venue in this judicial district. Defendant’s motion for judgment as to plaintiff Finglass will be granted and her complaint dismissed.


text:
    GEORGE, Deceased, Estate of, In re.
    Probate Court, Cuyahoga County.
    No. 552546.
    Decided June 30, 1959.
   The exceptions by the Tax Commissioner to the determination of inheritance taxes were sustained by the Court upon the opinion of James B. Danaher, General Referee, which opinion is as follows:

Eva George died testate on June 5, 1958, and under her will certain bequests were made to “my heir designate, Jean Randall Webb” and to “my heir designate, Richard Randall.” Said legatees were grandniece and grand-nephew, respectively, of the decedent, and were designated as heirs at law of said decedent in a written declaration filed in the Probate Court of Cuyahoga County on February 2, 1950, at which time the Judge of said Court entered such facts upon the Court’s Journal, making a complete record of such proceedings in Case No. 430939.

The decedent’s will was admitted to probate on January 9, 1958, and on December 23, 1958, the inheritance tax was determined in said estate. In said determination the designated heirs were found to be entitled to exemptions of $3500.00 each as provided in §5731.09 (B) R. C., and the tax was therefore computed at the 1% rate as provided in §5731.12 (A) R. C.

Within the sixty day period provided by law, the Tax Commissioner excepted to said determination, claiming that said designated heirs were not entitled to the exemptions and the rates provided in said determination.

There was no evidence presented nor claim made that during their minority, the successors’ relationship with the decedent was similar to that of parent and child.

ISSUE PRESENTED

What did the Legislature have in mind when it used the words in §5731.09 (B) R. C., “or person recognized by the decedent as an adopted child and designated by such decedent as an heir under a statute of this or any other state or country”? In order to be entitled to the claimed exemption is the successor required to show that during his minority his relationship with the designator was similar to that of parent and child?

CONCLUSIONS OF LAW

In 1854 the designation of heir statute was enacted. It was virtually the same as the present §2105.15 R. C., the pertinent portion of which reads as follows: “* * * he did designate and appoint another * * * to stand toward him in the relation of an heir at law in the event of his death. * * * Thenceforward the person designated will stand in the same relationship, for all purposes, to such declarant as he could if a child born in lawful wedlock. The rules of inheritance will be the same Between him and the relations by blood of the declarant as if so born.” (Emphasis added.)

Our problem arises because of a subsequently enacted inheritance tax statute (§5731.09 R. C.), which provides for exemptions and reads in part as follows: “(B) When the property passes to or for the use of a father, mother, husband, adult child or other lineal descendant of the decedent, or an adult adopted child, or person recognized by the decedent as an adopted child and designated by such decedent as an heir under a statute of this or any other state or country, or the lineal descendants thereof, or a lineal descendant of an adopted child, the exemption shall be three thousand five hundred dollars.” (Emphasis added.)

As to the effect of conflicting pari materia statutes the following statements are of interest, “Statutes in pari materia, although in apparent conflict, are so far as reasonably possible construed to be in harmony with each other. But if there is an irreconcilable conflict between the new provision and the prior statutes relating to the same subject matter, the former will control as it is the later expression of the Legislature.” Sutherland Statutory Construction 3rd Edition Volume 2, Section 5201.

“When two statutes are irreconcilable the one last enacted must prevail, and where there is a conflict between a general law and a special act the special act will prevail.” (Syl. 1 of State, ex rel. Cleveland Law Library Assn. v. Henry, 34 O. C. D., 371, 23 Circuit Court, R. N. S., 541.)

“Insofar as two statutes are irreconcilable, effect must be given to the one which is the later.” (Syl. 1 of State v. Holliday, 63 Oh St 165.)

In Underwood v. City of Bellefontaine, 64 Oh Ap 205, 18 O. O. 70, 28 N. E. 2d, 663, the Court said “Effect must be given, if possible, to every word, clause, and sentence of a statute.”

It is obvious that mere designation as an heir under §5731.03 R. C., will not, in and of itself, qualify such one so designated as exempt under the provisions of the aforementioned inheritance tax exemption statute, but such one must also have been recognized by the decedent as an adopted child. It is difficult to escape the conclusion that to be recognized as an adopted child in Ohio one must be a minor, because in Ohio, although not in all of the other states, one must be a minor to be eligible for adoption. Even though the designation of heir statute was enacted prior to the enactment of the adoption statute in Ohio, such fact does not alter the further fact that §5731.09 (B) R. C., requires both designation of heirship and recognition as an adopted child in order to qualify a successor for the claimed exemption. Your Referee is of the opinion that a reasonable interpretation of the pertinent statute is that the designation need not have occurred during the minority of the successor. This brings us to the conclusion that to qualify under §5731.09 (B) R. C., the successor must establish that during his minority his relationship to the decedent was similar to that of a parent and child and that he was designated as an heir by the decedent according to law, although such designation need not necessarily have occurred during the minority of said successor.

The general problem presented herein arises quite frequently and situations will no doubt be presented in which it will be claimed that the decedent recognized the successor as an adopted child during the latter’s minority. In the absence of authority on the precise question involved herein and having in mind the advisability of setting up guide posts for use in the variety of cases that are likely to be presented in the future, it seems to your Referee that in such cases a relationship similar, or generally comparable, to the relationship of loco parentis ought to be established. In connection with the relationship of loco parentis the following statements in 67 C. J. S. Section 71 at page 803 are of interest, “The term ‘in loco parentis’ has been defined as in the place of a parent; instead of a parent; charged, factitiously, with a parents rights, duties and responsibilities; more specifically, the relationship which a person assumes toward a child not his own, holding him out to the world as a member of his family toward whom he owes the discharge of parental duties. It has been said that the accepted definition of a person in loco parentis is one who means to put himself in the situation of a lawful parent to the child with respect to the office and duty of making provision for it; one assuming the parental character and discharging parental duties; a person standing in loco parentis to a child is one who had put himself in the situation of a lawful parent assuming the obligations incident to the parental relation, without going through the formalities necessary to a legal adoption.”

Sec. 5731.09 (C) ft. C., provides “(C) When the property passes to or for the use of a brother, sister, niece, nephew, the wife or widow of a son, the husband of a daughter of the decedent, or to any child to whom the decedent, for not less than ten years prior to the succession stood in the mutually acknowledged relation of a parent, the exemption shall be five hundred dollars.”

In the estate of John Jonuska, case No. 518575, this Court decided that the mutually acknowledged parent and child relationship status under §5731.09 (C) R. C., could be established despite the fact that during the time said status was claimed to have existed, and even up to the time of the decedent’s death, the “child” had a natural parent living. By parallel reasoning it seems fair to conclude that one designated as an heir may be recognized as an adopted child and be eligible to qualify under §5731.09 (B) R. C., even though the natural parents or parent of the one designated was living during the latter’s minority.

It is likely that in many cases involving the general problem presented herein the facts will not permit the application of §5731.09 (B) R. C., but will justify the application of §5731.09 (C) R. C. In the case at bar no evidence was presented, nor claim made, that during their minority the successors’ relationship to the decedent was similar to that of parent and child and the tests hereinbefore set forth have therefore not been met. Counsel for the successors has filed an exhaustive and scholarly brief. It indicates a thorough research of the subject and makes as persuasive an argument in favor of the successors as seems reasonably possible under the circumstances, but at best it must be said that it is not clear that these successors have shown their right to the claimed exemption.

We must, therefore, take into account the legal principle that one claiming an exemption from inheritance tax must show that he is entitled to such exemption. On many occasions the Courts have stated their position in this regard. In Tax Commission v. Paxson, 118 Oh St 41, the Court said “It must rest upon the language in regard to which there can be no doubt as to the meaning, and the exemption must be granted in terms too plain to be mistaken. 26 Ruling Case Law, 313; Humphries, Auditor, v. Little Sisters of the Poor, supra.

“Statutes exempting certain legacies from an inheritance tax should be strictly construed. To be exempt from an inheritance tax, a legacy must come within the strict letter of the statutory enactments.”

In Estate of Taylor, 139 Oh St 417, the first syllabus reads as follows: “A right to exemption from taxation must appear with reasonable certainty in the language of the Constitution or valid statute and must not depend upon a doubtful construction of such language.”

In Cemetery Assn. v. Evatt, 143 Oh St 399, the first syllabus reads as follows: “Taxation of property is the rule and exemption the exception. Language which relieves from taxation is to be strictly construed, and property which is claimed to be exempt from the payment of taxes must come squarely within the exemption provisions of the law.”

In re The Bond Hill-Roselawn Hebrew School, 151 Oh St 70, the first syllabus reads as follows: “Although constitutional provisions for exemption from taxation should be given a strict construction, that construction should be reasonable and one that will not defeat the intention which the people expressed by the words they used.”

In Goldman v. Bentley Post, 158 Oh St 207, the Court said “Furthermore, this Court is traditionally committed to the proposition that exemption statutes must be strictly construed and that no presumption favorable to the exemption of property from taxation will be indulged. This must necessarily be the rule in order to preserve equality in the burden of taxation. Cincinnati College v. State, 19 Ohio 110, 115; Lee, Treas., v. Sturges, 46 Oh St 153, 159, 19 N. E. 560, 2 L. R. A., 556; Benjamin Rose Institute v. Myers, Treas., 92 Oh St 252, 110 N. E., 924, L. R. A. 1916D, 1170; Cullitan, Pros. Atty., v. Cunningham Sanitarium, 134 Oh St 99, 100, 16 N. E. (2d), 205; Incorporated Trustees of Gospel Worker Society v. Evatt, Tax Commr., 140 Oh St 185, 188, 42 N. E. (2d) 900; Jones, Treas., v. Conn et al, Trustees, 116 Oh St 1, 155 N. E., 791; In re Estate of Taylor, 139 Oh St 417, 40 N. E. (2d) 936; Columbus Metropolitan Housing Authority v. Thatcher, Aud., 140 Oh St 38, 44, 42 N. E. (2d), 437.”

Counsel for the successors has pointed out that for a long period of time this Court has been assessing inheritance tax on successions to designated heirs in the manner herein contended for by the estate and that the Tax Commissioner and his predecessors have always agreed to such determinations and that in January of 1958, the Tax Commissioner filed waivers in two such cases in this Court. This fact is a matter of record. The Tax Commissioner contends that assessing inheritance tax to designated heirs in such manner occurs only in this county of all the counties in the State of Ohio. The exceptor points out in his brief “It is a rule of law as stated by Chancellor Kent that in the construction of statutes the construction which members of the legal profession put upon them is deemed of some importance. A construction received and acted on generally by the Courts and bar of the state for many years should not be lightly changed but should be considered and should even be given great weight.” (37 O. Jur., Sec. 383.)

Further, “in interpreting a statute it is a well established rule that a resort may, under proper circumstances, be had to the construction given thereto by those charged with its execution and application especially where it has long prevailed. Judicial notice may be taken of such construction for such purpose.” (37 O. Jar., Sec. 387.)

In this connection the State has suggested for consideration the case of Lee, Treas., v. Sturges, 46 Oh St 153, the second syllabus of which reads as follows: “A construction, by officers having the enforcement of the tax laws of Ohio, since the enactment thereof, to the effect that, under such laws, shares held by residents of Ohio of a stock of foreign railroad corporations having property in this state on which they pay taxes, and of consolidated railroad companies, are not taxable in Ohio, does not bind the successors of such officers, nor the state, in the proper assessment and collection of taxes upon such shares.”

In view of the fact that the manner of determination of inheritance tax in such situations as contended for by the successors has not been universally applied throughout the State and because of the pronouncement of the Supreme Court in the aforementioned case, your Referee is of the opinion that this Court is not bound by its previous determinations of inheritance tax in cases similar to the one at bar.

Having in mind that to qualify for the claimed exemption one must be designated as an heir and must also be recognized as an adopted child, and that the successors herein were not regarded by the decedent as standing in the relationship of parent and child during the minority of said successors, and because of the well established principle of lav/ that one claiming an exemption must clearly show that he is entitled to the same, your Referee recommends that the Tax Commissioner’s Exceptions be sustained and that the inheritance tax be redetermined, the successions of the successors being subject to inheritance tax imposed on one in the non-exempt class.