author: By PUTNAM, PJ.

text:
    PRENTICE, In re Charges preferred against.
    Ohio Appeals, Second District, Franklin County.
    No. 4956.
    Decided December 18, 1953.
    W. B. McLeskey and Claude W. McLeskey, Columbus, for appellant.
    Florence G. Denton, Columbus, Frank J. Collopy, Columbus, and James H. Rownd, Columbus, for appellee.
    (NICHOLS, J, of the Seventh District, PUTNAM, PJ, and MONTGOMERY, J, of the Fifth District, sitting by designation.)
   OPINION

By PUTNAM, PJ.

This is an appeal upon questions of law from an order of the Common Pleas Court of Franklin County, Ohio, whereby said Court en bloc, with the exception of Judge Rose, and composed of the other six judges of the Common Pleas Court of Franklin County, adjudged that Mary Elizabeth Prentice be removed from said office as attorney and counsel- or at law of this Court, and all the courts of the State of Ohio, and that she stand disbarred.

The charges upon which Prentice was tried are as follows:

“CHARGE ÑO. 1. It is hereby charged that Mary Elizabeth Prentice has committed acts of misconduct in office involving moral turpitude as an attorney at law.

“CHARGE NO. 2. It is hereby charged that Mary Elizabeth Prentice has performed acts amounting to unprofessional conduct in office involving moral turpitude as an attorney at law.

“The particular specifications of said charges and each of them are as follows;

“1. On or about October 31, 1952, the said Mary Elizabeth Prentice, while representing herself to be counsel for James P. Martin, prepared a written declaration, a copy of which is hereto attached and identified as Exhibit ‘A.’ Said declaration purports to be an affidavit signed by James P. Martin, sworn to and subscribed in the presence of Mary E. Prentice, a Notary Public, but in truth the said James P. Martin did not swear to the facts in said declaration nor subscribe the signature at the end thereof. The name of James P. Martin was subscribed to said declaration by Mary Elizabeth Prentice. The jurat following the declaration was fabricated by the said Mary Elizabeth Prentice and was known to her when so made to be false and untrue and in violation of §131-1 GC.

2. Said declaration, a copy of which is hereto attached and identified as Exhibit ‘A’, purporting to be the affidavit of James P. Martin, was filed by Mary Elizabeth Prentice with the Clerk of the Common Pleas Court of Franklin County, Ohio, in support of a motion in the case of Martin v. Martin, No. 65373, now pending in the Court of Common Pleas, Franklin County, Ohio, Division of Domestic Relations, at which time she represented herself to be counsel for the said James P. Martin. At the time said declaration was filed, said Mary Elizabeth Prentice knew that the jurat following said declaration was false and a fabrication in that the said James P. Martin did not swear or subscribe to said declaration as stated in the jurat.

“3. On or about October 31, 1952, the said Mary Elizabeth Prentice, while representing herself to be counsel for James P. Martin, prepared a written declaration, a copy of which is hereto attached and identified as Exhibit ‘B.’ Said declaration purports to be an affidavit signed by James P. Martin, sworn to and subscribed in the presence of Mary E. Prentice, a Notary Public, but in truth the said James P. Martin did not swear to the facts in said declaration nor subscribe the signature at the end thereof. The name of James P. Martin was subscribed to said declaration by Mary Elizabeth Prentice. The jurat following the declaration was fabricated by the said Mary Elizabeth Prentice and was known to her when so made to be false and untrue and in violation of §131-1 GO.

“4. Said declaration, a copy of which is hereto attached and identified as Exhibit ‘B\ purporting to be the affidavit of James P. Martin, was filed by Mary Elizabeth Prentice with the Clerk of the Common Pleas Court of Franklin County, Ohio, in support of a motion in the case of Martin v. Martin, No. 65373, now pending in the Common Pleas Court of Franklin County, Ohio, Division of Domestic Relations, at which time she represented herself to be counsel for the said James P. Martin. At the time said declaration was filed said Mary Elizabeth Prentice knew that the jurat following said declaration was false and a fabrication in that the said James P. Martin did not swear or subscribe to said declaration as stated in the jurat.

“CHARGE NO. 3. Said declaration, a copy of which is hereto attached and identified as Exhibit ‘A’, and said declaration, a copy of which is hereto attached and identified as Exhibit ‘B’, each state that said James P. Martin was cautioned and sworn by the said Mary E. Prentice, which statement is untrue and was known by the said Mary Elizabeth Prentice to be false and untrue when said documents were prepared and when they were filed with the Clerk of the Common Pleas Court of Franklin County, Ohio.

“The acts of the said Mary Elizabeth Prentice herein set forth were committed knowingly and deliberately and for the purpose of deceiving and misleading the Court and to perpetrate a fraud on said Court. Said acts were committed while acting as counsel in a cause pending in the Common Pleas Court of Franklin County, Ohio, and as such constitute misconduct in office and unprofessional conduct involving moral turpitude. Said acts are further a violation of the canons of ethics of the American Bar Association and the oath administered to her upon her entrance to the practice of law.”

After a hearing before this Court in which the committee introduced Exhibits A-i to 45, inclusive, together with a stipulation that Prentice did sign and take the acknowledgement of Martin to the two affidavits in question and that he was not present at the time, the committee rested. The stipulation, however, did not include the admission that Prentice did not have the consent of Martin to sign the affidavit. The exhibits did include an affidavit by Martin that she did not have his consent to sign the affidavits. Thereafter Prentice introduced testimony as to the circumstances of the case and which consumed some two hundred pages of record as to why she was under the circumstances in her own opinion justified in doing what she did do. At the conclusion of the testimony the Court made the following findings of fact and conclusions of law:

“Findings of Fact

“1. Two typewritten instruments, each purporting to be an ‘affidavit,’ were filed by Mary Elizabeth Prentice, in her capacity as an attorney at law, with the Clerk of the Division of Domestic Relations of the Common Pleas Court of Franklin County, Ohio, on October 31, 1952, in case No. 65373, upon the dockets of said court, wherein Marilyn Martin was plaintiff and James P. Martin was defendant and in which case said court then had continuing jurisdiction insofar as the custody of the parties’ minor child was concerned.

“2. Said Mary Elizabeth Prentice had knowingly and deliberately certified, as a notary public, to said purported affidavits, and each of them, that said James P. Martin had sworn to them and subscribed them in her presence when in fact she had not administered an oath or affirmation to him as to either of said instruments, and she had herself signed the name of James P. Martin to each of said instruments.

“3. Further, when said Mary E. Prentice, as an attorney at law, filed said instruments (mentioned in paragraphs 1 and 2 of these ‘Findings of Fact’) with said Clerk on October 31, 1952, she well knew that the jurats of each of said instruments were false.

“4. Said instruments, purporting to be ‘affidavits,’ were each filed by said Mary Elizabeth Prentice for the purpose of supporting a ‘Restraining Order’ as to the custody of said minor child, which ‘order’ was procured by her from Judge Clayton W. Rose on said date (October 31, 1952) in Cause No. 65373, upon the dockets of said court, and also supporting a motion filed by her for change of custody of said minor child in said case.

“5. Said filing of said purported affidavits was intended by said Mary E. Prentice, in her capacity as an attorney at law, to support said ‘Restraining Order’ which recited, among other things, that the motion therefor was ‘based upon the affidavit of the defendant (said James P. Martin) contained herein and positively verified * * which statement was false and known by said Mary Elizabeth Prentice to be false.

“6. Said acts of filing said false ‘affidavits’ were performed by the same Mary Elizabeth Prentice, in her capacity as an attorney at law, wilfully and knowingly, for the purpose of deceiving and misleading said Judge Clayton W. Rose, and did constitute an attempt to and.did perpetrate a fraud on said Judge and the Court of Common Pleas of Franklin County, Ohio, of which court he was then a judge.

“Conclusions of Law

“The facts found by this court (as recited in ‘The Findings of Fact’) were committed by said Mary Elizabeth Prentice knowingly and deliberately and for the purpose of deceiving and misleading said Clayton W. Rose of the Court of Common Pleas of Franklin County, Ohio, Division of Domestic Relations and to perpetrate a fraud on said judge and said court, and each constitutes misconduct in office involving moral turpitude and unprofessional conduct in office involving moral turpitude.”

A motion for a new trial was made, based upon 29 grounds, and overruled. Upon further application that entry was vacated and a hearing was had upon the motion for. a new trial in which evidence was introduced on behalf of Prentice by witnesses Carmichael and Huddle and on behalf of the committee by James P. and Marilyn Martin. This consumed another hundred pages of record. Thereafter the motion for a new trial was overruled and judgment entered.

Since the decision of the trial court is based upon acts alleged to have involved moral turpitude and the degree thereof, we deem it necessary to set forth as briefly as possible what we consider the essential facts of the record together with our comments thereon.

The assignments of error in this Court are 29 in number and practically the same as were set forth on the motion for a new trial. They will not be herein set forth in detail but will become apparent Iron-, the statements hereinafter made.

The record shows the following situation: Prentice had been the attorney for Paul and Edytha Webster, husband and wife, for some years. Paul Webster had a daughter, Marilyn, by a former marriage, who in October, 1952, was just over 21 years of age. While a minor, she being then 18 or 19 years of age, on May 13th, 1950, entered into a .shotgun marriage with one James P. Marfin, an ex-service man who was drawing government compensation for partial physical and mental disability. In August, 1951, the Websters brought Marilyn, who was then a minor, to see Prentice about securing a divorce from her husband James Martin. A petition thereupon was filed by Prentice through Paul Webster as next friend which became cause No. 65373 in the Court of Common Pleas of Franklin County, Ohio, Division of Domestic Relations, Judge Rose presiding. The petition alleged in substance that the defendant, James P, Martin, had failed to provide a proper home or support for the plaintiff, Marilyn; that he had a vile and ungovernable temper and had on several occasions struck the baby then only eight months old Shortly after service of summons on Martin, a separation agreement was entered into between the parties which provided in part that the father should pay $15.00 per week for the support of the child until the child was 21 years old; the mother was given exclusive custody of the child but it was agreed that in the event of her death the custody was to be in the grandparents, the Websters. Prentice and the Websters were witnesses to this agreement, but it does not appear that James P. Martin was represented by counsel. In December, 1951, a divorce was granted to the mother, the separation agreement was approved and made a part of the decree.

The child had been with the Websters practically all the time since its birth and Marilyn had been living with them and working. Very shortly after the divorce, if not before, Marilyn began running around and leading a wild life, keeping company with various men and under such circumstances as to cause the Websters grave concern as to a pos-: sible repetition of her former follies and the consequences thereof. The situation became such that about Easter time, 1952, the Websters called Prentice to come out to their home and talk to Marilyn about her conduct and to see if she could not persuade Marilyn to change her habits and attitude. Prentice did this and for a time thereafter Marilyn seemed to have a changed attitude.

However, this did not last long and she resumed her pursuit of pleasure, the Websters in the meantime having the chief responsibility of the baby and all that it entails, including feeding, washing, diaper changes, and the supervision of a boy one to two years old. During this time Marilyn was having much trouble collecting from the father on the support money which he had agreed to pay. James Martin was constantly changing jobs. There is undisputed evidence in the record that from the time of his marriage until January, 1953, he had somewhere between 20 and 35 different jobs; and that he made up to $65.00 per week. That a number of these jobs consisted of bellhop at various hotels.

During the summer of 1952 -the evidence is uncontradicted that Marilyn was not only running around promiscuously with other men but that she went out with her former husband James on numerous occasions and had intimate relations with him. The record is silent as to any motive for this but we can speculate with some certainty that it was either a desire on her part and his to resolve, with a different objective of course, in each case, the question of the support money payments which had not been forthcoming; or just plain sex hypertension on the part of either or both.

In the meantime James Martin himself was pursuing the fleshpots of an industrial society where women were working in factories and offices exposed to the temptations of independent income and relaxed home responsibilities. The record shows that about September 1, 1952, James Martin had started going steadily with one Katherine Carmichael, a married woman with one child, who was then seeking a divorce in the same court. The situation between these two progressed during September and October to a point where marriage was discussed pending the outcome of her divorce and the custody of her child and the custody of his child.

Also, during the late summer Marilyn had taken up with a soldier at Lockbourne Air Base and they were contemplating marriage. In view of this situation Marilyn had contacted James Martin to see if he would consent to the adoption of their child by her contemplated soldier husband if they were married and James gave a partial and qualified consent thereto. The exact sequence of events is not definite. It must have been in late July or early August, 1952, when Marilyn informed her parents that she was going with her soldier friend to St. Louis and wanted to take the baby with them. They strenuously objected to. the trip but Marilyn and her soldier boy friend, instead of going to St. Louis, went to Springfield, Ohio, and stayed over the week end in a* hotel as man and wife, ieaving the baby with the Websters. It was immediately after this that the Websters and Martin became concerned about the future of the baby because the soldier upon his return to Columbus from Springfield was arrested for forgery in the cashing of bad checks and was placed in jail. His Commanding Officer at the Air Base gave him a bad reputation and at this time Martin evidently had a change of heart, as he was wont to do, and stated that he did not want his child raised by a “jailbird”. Evidently the situation was discussed by the Websters, Marilyn, Prentice and James Martin. Marilyn asserting that she was going to stick to the soldier and marry him and that she wanted the child. The Websters and Martin were insisting that the child remain with the Websters. It was about this time, and the time is not certain, but surely in early October at the latest, that Marilyn employed Don Hamilton, Jr., as her attorney, because of these divergent views.

In any event, as the situation developed, sometime prior to October 20, 1952, after Marilyn had called Martin at his place of employment from her attorney’s office, which must have been Hamilton’s office, requesting him to come down to discuss the matter which he refused to do, it was decided by the Websters and Martin, after having consulted with Prentice, that the Websters should file an application in the Probate Court of Franklin County seeking an adoption of the child by the Websters. On October 20th this application was filed in the Probate Court and James Martin was there and gave his consent to this adoption by the Websters. At the same time, October 20th, the Websters filed a complaint in the Juvenile Court against their daughter Marilyn for contributing to the delinquency of her child. This hearing was set for the next day, October 21st, but since no service was had on Marilyn the hearing was continued until October 30th. On that date a hearing was had before Miss Taylor, a referee, on the affidavit of the Websters. It was supported by other testimony. Marilyn was there and was represented by attorney, Don Hamilton, Jr., and she was cross-examined. She admitted her trip with the soldier to Springfield and her intention to marry him. James Martin was also there of his own volition to testify against Marilyn in support of the things contained in the Webster affidavit and their own testimony. The great weight of the evidence, supported by the testimony of witness Huddle, is tha't prior to the hearing Prentice went over this testimony with Martin in the witness room and that she heard the same. It is conclusive in our mind that at this time Prentice represented not only the Websters but also Martin. As it happened the hearing was terminated before Martin was called to testify, and the hearing was terminated upon this particutar note. The referee announced in effect that the child was not delinquent because the Websters were properly taking care of him and that a charge against Marilyn for contributing to a delinquency which did not exist could not be sustained. The referee, however, did express the opinion that under the circumstances a motion for a change of custody from Marilyn to the grandparents would be in order. This provoked a discussion as to whether or not under the circumstances the Websters were a proper party to make such a motion or whether it should be made by James Martin. We think the evidence is clear that this situation was discussed by Prentice at that time with not oniy the Websters but with Martin. At this time attorney Hamilton was insisting that the child be immediately turned over to Marilyn, who was under the order of court its custodian. The question then from the standpoint of the Websters and Martin, who were at this time in a position of joint interest, was what was the best thing to do? It was Prentice’s position that due to a possible defect of parties that a new application for change of custody should be made and that Martin instead of the Websters should file the motion. The Websters then went home, and Prentice took Martin back to his place of work in her machine in which her mother was a passenger. The evidence is in conflict between Prentice and her mother on one side and Martin on the other as to the conversation on this trip. Prentice testifies that at that time Martin specifically gave her authority to file the affidavits the next day. Martin denies this. Bearing in mind that the discussion did involve previous to this the possibility of Hamilton as attorney for Marilyn, filing a writ of habeas corpus to get the child immediately and the fact which we believe to be true that Prentice had previously instructed the Websters after the hearing, that to obviate this they should secrete the child that evening so that no change of custody could be effectuated, it is only natural that this situation should have been discussed by Prentice and Martin on this trip back to his place of work. This conclusion is fortified by the overwhelming weight of the evidence that two days afterwards on Sunday, November 1st, Martin went to the Webster home, to visit his child and saw the restraining order and stated that it was in accordance with his instructions to Prentice.

It is a fact that on the night of October 30th, in order to circumvent a change of custody and in order to get a proper restraining order' due to the conversations theretofore having taken place or alleged to have taken place-, Prentice did herself type out at her own home two motions, (1) by James Martin for a change of custody of the child; (2) by James Martin for a restraining order preventing an immediate change of custody from the Websters; (3) an affidavit by Mr. and Mrs. Webster supporting both motions, and (4) and (5) two affidavits by James Martin supporting both motions. Early the next morning she took the Webster affidavits to their home and caused the same to be signed. No question is- raised about the authenticity of these affidavits. Prentice caused a telephone call to be placed to James Martin in what she claims was in accordance with her conversation of the night before with him on the automobile trip, but being at the Courthouse and Martin not being available she filed the two motions and the Webster affidavit and took a journal entry which she herself had prepared for a temporary restraining order to Judge Rose. At that time she discussed the situation with Judge Rose as it had developed the day before with Miss Taylor, the referee, and without presenting any affidavits to Judge Rose, the Judge signed the restraining order, Exhibit No. 25, which recites:

“This cause came on to be heard upon the motion of the defendant for an order enjoining the plaintiff, based upon the affidavit of the defendant contained herein and positively verified * *

Thereafter about one and one-half hours and at eleven A. M. Prentice took Martin’s affidavit out to his place of work to have him sign the same but he was not there. She returned to the Courthouse, signed his name to the affidavits, affixed her jurat to the same as a Notary Public and filed the same. She then got a certified copy of the entry, took it out to the Websters and left it with them and then presumably the child was returned to the Webster home as being safe from a raid by the mother.

The whole situation certainly points out most strongly to the fact that Prentice and the Websters and Martin were trying to circumvent Hamilton, attorney for Marilyn, in his attempt to get possession of the child by a writ of habeas corpus. This they succeeded in doing at that time and by the procedure herein related. We have no doubt that at this time James P. Martin was not only pleased but elated that this objective was obtained.

After this Sunday, November 1st, a blackout occurred in the record as to what happened between that time and November 6th. We do know, however, that on November 6th, 1952, Martin and his ex-wife Marilyn went to Richmond, Indiana, and were, remarried. The objective of this remarriage is a matter of speculation for the most part but if we believe any of the evidence of Carmichael, there was an ulterior motive therein, it is at this time on November 6th and thereafter that James P. Martin has another change of heart and takes a position exactly opposite to what his position had previously been. Just when the Websters and Prentice became aware of this remarriage is not certain. We must evaluate the testimony of Kitty Carmichael. In so doing we must keep in mind the possibility that a woman scorned is dangerous and that the female of the species is more dangerous than the male. Yet we do believe her testimony under all the circumstances of this case to be that Martin simply remarried his former wife in order to get him out of a situation which he could not and did not want to fulfill. She states very definitely that Martin told her that the remarriage between him and his wife was only for the purpose of gaining custody of the child. This issue does give this Court some concern and we are not inclined in the face of the foregoing observations to discount her testimony.

Now, thereafter, and mark it well, this is what happened. After this second marriage became known to the Websters, and this was prior to November 13th, 1952, the problem arose as to what should be done as to this child. Martin as an ally to the Websters was out because he was already remarried to Marilyn and on her side. The Websters wanted the child, they did not want to have the child in the custody of Marilyn under the then situation. The Websters were relying on Prentice, their old attorney, to get them out of this mess. Consequently, on November 13th, 1952, they filed new affidavits in the same court requesting that they have continued jurisdiction of this child until a final hearing, and this motion was based upon affidavits which contained the same statement of facts, or approximately so, which were filed prior to the hearing on October 30th. Upon this affidavit, and it was before the original Judge, Judge Rose, and upon hearing in which Marilyn was represented by Attorney Hamilton, the custody of this child was ordered retained by the Websters. Later, on November 17th, this order upon motion by Hamilton, attorney for Marilyn, was modified to allow James and Marilyn, they then being married, custody of the child on Sundays, and a final hearing was set at a later date.

Now with this background in mind, remembering that the application for adoption of this child was still pending in the Probate Court of Franklin County, and with the consent of James Martin, and that Attorney Hamilton then representing Marilyn and James Martin had lost two preliminary skirmishes before Judge Rose, who had ruled on November 13th and upon November 17th upon the Webster affidavits alone, that a change of custody was not warranted so as to give the daughter Marilyn the custody of the child, we are faced with the proposition as to why the future events occurred. Certainly on November 13th and November 17th, 1952, Judge Rose was motivated by and only by the affidavits which the Websters had filed and the testimony and the facts thereupon proven which indicated that a change of custody to Marilyn Martin was not warranted.

Faced with this situation what then happened? On November 24th James Martin, under the suggestion and at the instigation of Attorney Hamilton, executed an affidavit that Attorney Prentice- was not authorized by him to execute the affidavits in question of October 31st, nor did he acknowledge the same before her. These affidavits were retained in Attorney Hamilton’s office until December 1st when they were transmitted to Judge Rose with a request that they be referred to proper authorities, .suggesting that proper authority would be the Grievance Committee of the Franklin County Bar. Thereupon on the same date, December 1st, Judge Rose transmitted the same to the Presiding Judge of the Court of Common Pleas of Franklin County, Ohio, with a request that proper action be taken as determined by the Court. Nothing else appears upon the record until January 16th at 2:08 P. M„ when an entry was filed by the Common Pleas Court appointing a Grievance Committee and at the same hour and minute on the same date the Grievance Committee filed the charges herein. It is to be observed, however, that the charges filed by the Grievance Committee were sworn to by that committee on December 15th, 1952. We are not convinced that this discrepancy shows any irregularity, but at least it is a circumstance which we cannot ignore. It is further to be observed that in December a motion was filed by Hamilton on the account of Marilyn to dismiss all proceedings as related to the custody of the child because the parties were then remarried and because the affidavit upon which a motion .for chartge of custody was predicated was based upon James P. Martin’s affidavit which was not authorized.

We must keep in mind at this particular stage of the proceedings the heated contest for the custody of this child had become somewhat bitter between Prentice and Hamilton. In fact the situation was such that at a date shortly prior to December 1st and probably due to a conversation which she had had with Hamilton before Judge Rose, and in which he had accused her of filing a false affidavit about October 30th, and which came up incidentally at their meeting in’Judge Rose’s office, Prentice had filed an affidavit of prejudice against Judge Rose. This accusation was heard by the Chief Justice of the Supreme Court and the same was overruled on December 5, 1952.

The trial upon the charges preferred by the committee appointed by the Court started March 17, 1953, Judge Rose not participating therein. The entry of disbarment made by the Court hearing the charges was made a final order after the full hearing upon the motion for a new trial. And this law appeal results.

As previously stated, there are 29 assignments of error, which are practically the same as those contained in the motion for a new trial and which will be discussed generally without repeating them specifically as we deem mem important and as applying to our conclusions m r.ms ITcWSC.

In the first place it is to be noted that the findings of fact do not embrace any findings (1) that Prentice was guilty of unethical misconduct in representing divergent interests in the litigation under scrutiny herein. It was not charged and it certainly was not proven. (2) There was no finding that Prentice was not authorized by Martin to sign his name to the affidavits in question. This was not charged nor was it proven. Consequently, it is clear that the sole basic facts on which the charges were sustained are (11 that Prentice took and certified the jurat to these two affidavits without actually swearing Martin thereto. This fact is not disputed but it is admitted by Prentice. (2) That this was done for the purpose of and did work a fraud upon the Court. This is denied and not admitted.

Under the evidence herein we are constrained to hold that these facts are true but true only in a technical sense; and this in the sense that the entry which Prentice presented to the Court recited that the same was granted solely upon the sworn testimony of Martin. It is not true in the sense that the facts therein contained and which would motivate a court to act were untrue. As hereinbefore pointed out, Judge Rose did later grant another restraining order upon practically the same facts as sworn to by the Websters in their affidavit of October. 30th and which was repeated in their affidavit of November 13th. This shows that the Martin affidavit of October 30th was not an actual but only a constructive fraud upon the Court. It also shows that Prentice’s concern about the defect of parties and the necessity of James Martin himself making an affidavit for a restraining order were not well founded in law, otherwise, Judge Rose would not have later issued a restraining order upon the affidavit of the Websters alone in this the same case.

While this Court does not condone this action on the part of Prentice, certainly the facts show extenuating circumstances. These have already been recited. She was trying to beat Hamilton to the* punch. Hamilton was trying to get the child away from the Websters and to Marilyn due to the previous order which was granted under conditions not then existing. It was a race to see who would get the custody. All of these facts must be considered in determining whether moral turpitude is involved in the acts and if so, the degree thereof.

We desire to make one additional observation, viz: The practice of courts in signing entries based upon affidavits not presented to the court with the entry is not to be commended. This practice furnishes the opportunity and the temptation for short cuts and confused statements such as are herein shown and also a misunderstanding between the attorney and the court as to the . actual contents of those affidavits as recited by the attorney to the court. Certainly that recital could give rise to many questions of fact as to what was actually said in that recital and which would not be conducive to the best administration of justice. The argument that the practice is necessary due to the press of business is cogent but it is not sufficient to overcome other reasons for the discontinuation of that practice.

Now going to the assignments of error generally and not specifically, it is contended that the term “moral turpitude” as contained in §1707 GC, is so vague and indefinite as to amount to a denial of “due process of law” under constitutional restrictions. It is further contended under this assignment that if the above proposition is not true that the acts sper cifieally charged in this case do not constitute conduct involving moral turpitude.

Sec. 1707 GC, provides as follows:

“The Supreme Court, Court of Appeals or Court of Common Pleas my suspend or remove an attorney at law (from office) or may give private or public reprimand to him as the nature of the offense may warrant, for misconduct or unprofessional conduct in office involving moral turpitude, or for conviction of a crime involving moral turpitude.”

Sec. 1708 GC, provides as follows:

“Before an attorney is suspended or removed, or publicly or privately reprimanded, written charges must be filed against him, stating distinctly the grounds of complaint, and a copy thereof, certified by the clerk, under the seal of the court, served upon him.”

As to the first contention, suffice it to say that this proposition in our judgment is not tenable. The overwhelming weight of authority is to the contrary. The second proposition warrants some examination. Specifications numbers 1 and 3 definitely charge that the falsifications of these jurats were in violation of §131-1 GC, of Ohio, which provides:

“Whoever being a notary public certifies to the affidavit of a person without administering the oath or affirmation to such person is guilty of a misdemeanor and shall be fined not more than one hundred dollars or imprisoned not more than thirty days, or both, and removed from office by the court of common pleas of the county in which the conviction was had.' The court shall thereupon certify such removal to the governor. The person so removed shall be ineligible to reappointment for a period of three years.”

Uqder the undisputed evidence Prentice was found guilty of a violation of this Section although she was never convicted thereunder. One of the vital questions is: Did this act involve moral turpitude in any degree? In the case of In re Jacoby, 74 Oh Ap 147, which was a disbarment proceeding but upon different grounds, the writer of this opinion representing a Court of Appeals, and incidentally said Court was composed of the same judges who are now hearing this case, said at page 154 of that opinion as follows:

“Moral turpitude is a term which has been much defined by the courts. In some respects this term is like the term ‘reasonable doubt’. Its definition does not gain in clarity by prolixity of statement.

“In ‘Words and Phrases,’ twelve pages are given to various definitions by different courts and to the statement of what crimes do and do not involve moral turpitude. Probably the simplest definition is that moral turpitude is anything done contrary to justice, honesty, principle or good morals. It is also defined as an act of baseness, vileness or depravity in the private or social duties which a man owes to his fellow men or to society in general contrary to accepted and customary rules of right and duties between man and man. It is also generally accepted that the norm of conduct by which an act is judged to determine whether it involves moral turpitude is a standard prevailing in the United States and at the present time.” * * * “The severity of punishment imposed is not controlling on the issue whether the offense involves moral turpitude. Offenses or crimes in Ohio are classified as being either felonies or misdemeanors. Felonies are those punished by death or imprisonment in the penitentiary. All others are misdemeanors and yet it is generally recognized that misdemeanors may involve moral turpitude.”

In view of the above considerations it is our judgment that the acts charged did involve moral turpitude but that the degree thereof was not grave.

We do not find that the trial court abused its discretion in not referring the charges to a grievance committee of the Columbus Bar Association as was theretofore the custom. The statute does not so limit its action and we are not disposed to do so. As above pointed out, however, the fact that the appointment of a grievance committee only became apparent by entry on January 16th, 1953, at which time the charges were also filed, which had theretofore been certified by the committee on December 15th, 1952. These facts no doubt had some influence upon the state of mind of defense counsel in pressing that allegation of error.

We do not, however, find that the trial court was prejudiced by the admission of evidence as to facts not contained in the charges and specifications which concerned the authorization of Prentice' by Martin to sign the affidavits; nor as to certain communications alleged to have been communicated to the court during the trial as to other activities of Prentice not contained in the charges. The Court stated from the Bench that it would disregard all these matters. This frequently happens in trial and in reviewing courts in hearing matters in the absence of a jury where the question as to the admissibility of evidence is reserved for future determination and we consider that the trial court on this occasion did so do. The findings of fact which they made, and the ones they did not make, would indicate that they did this very thing. We do not think that the appellant’s argument that finding of fact No. 6 and the Court’s conclusion of law from all of the finding of facts, indicate to the contrary, is sound.

It is the appellant’s contention that the conclusion of law by the Court from its finding of facts, and its judgment based thereon, could only be reached through passion and prejudice and a consideration of extraneous circumstances and rumors and could not ’ come from the evidence at hand. We cannot concur in this viewpoint. The conclusion of the Court could have been made through a misapprehension of law and an abuse of discretion which was not based upon passion and prejudice.

This Court, however, does find that assignment of error No. 23 is well taken with the exception of that part thereof which states that the judgment was the result of passion and prejudice. This assignment is as follows:

“That the judgment of said court, to wit: that the said Mary Elizabeth Prentice ‘hereby is removed from said office as attorney and counselor at law of this Court, and all of the courts of the State of Ohio, and that she stand disbarred’, is excessive and unreasonable, is not justified by the evidence, is the result of passion and prejudice and constitutes an abuse of discretion on the part of said Court.”

In our opinion this judgment is excessive and unwarranted by the facts in this case. Life disbarment of an attorney for failure to administer a formal oath in the jurat of a legal paper where the fraud upon the Court was only constructive and not actual and was slight, as in this case, is shocking to the conscience of two members of this reviewing court and in the opinion of Judge Montgomery it is excessive under the charges herein preferred.

However, having found that the act was misconduct in office and unprofessional conduct in office as an attorney involving moral turpitude and that that finding was justified under the evidence, we are constrained not to reverse the case but to modify the judgment of the trial court which is our privilege and prerogative under the statute. Inasmuch as §131-1 GC, provides that a notary shall be ineligible for reappointment for a term of three years for a violation of this section, and admittedly Prentice did violate the section, it is our conclusion that she being an attorney should have a somewhat more severe penalty imposed. Consequently, it is our judgment that the judgment of the trial court be modified as follows: That said appellant stand suspended

from the office of attorney at law in all of the state courts of the State of Ohio for a period of four years. It is so ordered.

NICHOLS and MONTGOMERY, JJ, concur.


source: Caselaw Access Project

author: By SKEEL, J:

license: Public Domain

text:
    SCHIEVE, Plaintiff-Appellant, v. CINCINNATI & SUBURBAN BELL TELEPHONE CO., Defendant-Appellee.
    Ohio Appeals, First District, Hamilton County.
    No. 7954.
    Decided May 17, 1955.
    Cowell & Fletcher, Lee J. Hereth, Cincinnati, for plaintiff-appellant.
    Frost & Jacobs, James G. Headley, Cincinnati, for defendant-appellee.
    (KOVACHY, PJ, SKEEL, J, HURD, J, of the Eighth District sitting by designation in the First District.)
   OPINION

By SKEEL, J:

This appeal comes to this Court from a judgment of the Common Pleas Court of Hamilton County, entered for the defendant after sustaining defendant’s demurrer to plaintiff’s petition. The action is one for money only, the plaintiff claiming damages suffered because of an alleged libel.

The plaintiff was an employee of Lerner’s Dress Shoppe in Miami Beach, Florida. The defendant’s credit supervisor wrote a letter to plaintiff’s employer, inclosing a bill for $12.28 which the defendant claimed plaintiff owed them, saying that they understood plaintiff was in their employ and that they, the defendant, would appreciate it if the matter of the debt could be brought to the attention of plaintiff by her employer. The letter concluded as follows:

“We are sorry it is necessary to refer the matter to you, but our efforts to effect collection have received no response.”

The plaintiff’s petition sets forth the letter in full, and then proceeds with the allegations that the credit manager was acting within the scope of his employment; that in truth and in fact the bill had been fully paid; that the contents of the letter was wholly false and untrue, and such fact was known to the defendant at the time said letter was published; that as a result thereof plaintiff lost earnings and employment, was humiliated and embarassed in her place of employment, in the community and among her friends, and that as a proximate result of defendant’s wrongful and libelous act she has become ill, thereby requiring medical care and hospitalization, all to her damage in the sum of $5,000.00.

The sole question presented by this appeal is whether the petition states a cause of action.

There can be no question but that, taking the facts alleged as true; as must be done for purposes of demurrer, the purpose of the letter was to compel the plaintiff to pay an account which she did not owe. It was unquestionably the desire of defendant to induce the plaintiff to pay a debt which she did not owe, to avoid the consequences of the ill-will of her employer by informing them that she is one who does not meet her honest obligations. The letter could have no other purpose.

In 25 O. Jur. 176, under the title “Libel & Slander,” Sec. 21 provides:

“Charge of Cheating or Dishonesty:

“Orally to accuse a person of dishonesty or being a cheat, is not actionable unless special damage is shown, or the charge is made of a person in connection with his occupation, or with reference to his methods of carrying on business, but if the words used are written or published, they are libelous per se; thus, written words implying that a person fails to pay his debts, as they have a tendency to injure the person’s standing in the community, and affect his credit, are actionable.”

And in 33 American Jurisprduence, page 79, parag. 61, it is said:

“Publication for Purpose of Coercing Payment:

“Although a creditor has the right, without being subject to an action for libel, to ask his debtor to pay what he owes, it has frequently been held that it is actionable for a creditor to employ methods to coerce payment which hold the debtor up to public disgrace and ridicule. Relief has been granted in some cases on the ground that the publications were libelous and in others on the ground that there had been an invasion of the right of privacy. In many states various devices resorted to for the collection of debts have been made criminally libelous by statute. A mere statement that the defendant wants the plaintiff to pay his honest debts, uttered in the presence of the plaintiff, has been held not slanderous on the ground that such a charge imputes no dishonorable conduct to the plaintiff.”

In the Annotation of the case of LaSalle Extension University of Chicago v. Fogarty, reported in 91 A.L.R. 1491, at page 1495, there is collected many cases which hold that in jurisdictions where mental suffering can be the basis for an action for damages in actions for libel, the attempt to collect an alleged debt by writing the debtor’s employer about his default, to coerce the employee into making payment constitutes libel per se.

Brents v. Morgan, 221 Ky. 765, 299 S. W. 967. See, also: Keating v. Convisor, 220 N. Y. Supp. 874, 219 App. Div. 836, affirmed without opinion 246 N. Y. 632, 159 N. E. 636.

It should be remembered that even if it be said in the instant case that the letter of defendant was not, under the facts, libelous per se, the petition of plaintiff alleges special damages which she claims to have suffered because of the alleged wrongful conduct of defendant,

Patton v. Jacobs, 78 N. E. 2d, 789, Indiana App. 1948; Estes v. Sterchi Bros. Store, 179 S. E. 222, Ga. App. 1935.

For the foregoing reasons, the judgment entered for the defendant is reversed and the cause remanded with instructions to overrule the demurrer and for further proceedings according to law. Exceptions noted. Order see journal.

KOVACHY, PJ, HURD, J, concur.


author: By HURD, J: By HURD, j:

text:
    WESTERHAUS, INC., Plaintiff-Appellee, v. CINCINNATI (City) et, Defendant-Appellants.
    Ohio Appeals, First District, Hamilton County.
    No. 7822.
    Decided June 17, 1955.
    Robert N. Gorman, Loyal S. Martin, Cincinnati, Don C. Miller, Cleveland, for plaintiff-appellee.
    Henry M. Bruestle, City Solicitor, James W. Farrell, Asst. City Solicitor, Wallace M. Power, Asst. City Solicitor, Cincinnati, for defendant-appellants.
    (KOVACHY, PJ, SKEEL, J, HURD, J, of Eighth District sitting by designation in the First District.)
   OPINION

By HURD, J:

This is an action in equity here appealed on questions of law and fact from a judgment of the Common Pleas Court of Hamilton County, whereby plaintiff, Westerhaus, Inc., a licensed pinball distributor, sought and obtained a permanent injunction prohibiting defendants, City of Cincinnati and its officials, from:

“1. Seizing and confiscating the licensed amusement devices of this plaintiff;

“2. Confiscating and destroying the licensed amusement devices of plaintiff by means other than the orders or directions of a court of law;

“3. Refusing licenses and/or permits to this plaintiff for the distribution and exhibition of its amusement devices upon proper application thereto;

“4. Revoking or cancelling the licenses or permits of plaintiff and/or the licenses or permits of exhibitors using the equipment of this plaintiff by means other than the order or direction of a court of law.”

The plaintiff filed his petition February 27, 1951, alleging in substance that it was engaged in the lawful business, leasing, renting and exhibiting pinball machines in Cincinnati and that it registered with the City and obtained licenses as a distributor in conformity with Sec. 731.22 of the Code of Ordinances of the City; that it owned a number of pinball machines which were located with various exhibitors who also were registered and licensed in accordance with the terms of said ordinances; that the city, through its officers, was about to revoke licenses for numerous and various of these amusement devices, commonly known as “Pinball Machines”; of “great property value to the plaintiff.” Broadly stated, it is the claim of plaintiff as set forth in its petition that the city was contemplating action which would, in effect, be a violation of plaintiff’s rights under the ordinance of the city relating to the operation, exhibition and distribution of amusement devices which the city claimed were in violation of the city ordinances and likewise in violation of the statutes of Ohio relating to gambling and/or gaming.

The defendants, after denying each and every allegation contained in the petition, except those specifically admitted to be true, averred in part as follows:

“Answering further, defendants say that the distribution and exhibition of pinball machines in the City of Cincinnati is governed by the provisions of Chapter 731 of the Code of Ordinances of the City of Cincinnati and that Section 731-9 of said chapter provides:

‘It shall be unlawful for any exhibitor or other person to exhibit, operate or have in his possession a pinball machine which is so constructed as to make possible, either directly or by use of an adjustment, the return of cash, tickets, discs, or other tokens or certificates of any kind, to a player operating the same whether or not such tokens or certificates have a value of any kind or authorize further playing or other privileges. Only machines operated exclusively for the amusement provided by the operation thereof shall be licensed.’

“That section 731-11 of said chapter provides: ‘It shall be unlawful for any person, firm or corporation to maintain or exhibit a pinball machine on any premises situated less than three hundred (300) feet from the building and grounds of any elementary school or high school, said three hundred (300) feet being measured along the line of the nearest curb.’

“That section 731-12 of said chapter provides: ‘It shall be unlawful for any exhibitor of one or more pinball machines to permit the same to be played or used by a person under twenty-one (21) years of age.’

“That Section 731-21 of said chapter provides: ‘Should any distributor or exhibitor violate or fail to comply with any of the provisions of this chapter it shall be the duty of the city treasurer to revoke his license. In case of the revocation of an exhibitor’s license, the licenses of all machines operated by him, or on his premises, shall be revoked and such machines removed from the premises within twenty-four (24) hours thereafter.

‘A distributor or exhibitor whose license has been revoked shall not be eligible to apply for or receive a new license within the period of one (1) year after the revocation.’

“That Section 731-23 of said chapter provides: ‘If any pinball machine is used as a gambling device, or is otherwise operated contrary to the provisions of the laws of the State of Ohio, or of this chapter, such machine may, in the discretion of the city manager, be seized and destroyed as in the case of gaming devices.’ Answering further, defendants say that the provisions of Chapter 731 of the Code of Ordinances of the City of Cincinnati are valid and constitutional, that it is the duty of the defendants to enforce said provisions and that pinball machines belonging to plaintiff are being operated as gambling devices contrary to the ordinances of the City of Cincinnati and the laws of the State of Ohio.” (Emphasis added.)

The allegations of the petition and the averments of the answer present an issue as to whether certain pinball machines owned and distributed by the plaintiff are gambling devices per se and as such, subject to seizure by the city.

The parties failing to agree or stipulate as to the evidence presented upon the trial in Common Pleas Court, this Court appointed C. R. Beirne a Special Master Commissioner directing him to take evidence and to submit to this Court his findings of fact and conclusions of law. Thereafter the parties appeared before the Special Master Commissioner and presented evidence which was reduced to writing as set forth in three volumes filed in these proceedings. Following the presentation of the evidence, the Special Master Commissioner submitted his findings of fact and conclusions of law in writing, which, with the evidence, is now before us for review and determination on the motion of the city to conform the findings of fact and conclusions of law, the exceptions of the plaintiff thereto, and the motion of plaintiff to strike the report on the ground that the ease is not properly appealable.

An examination of the findings of fact which are set forth at length in the report of the Special Master Commissioner, indicate an exhaustive and a painstaking review of the evidence by him with a careful and detailed analysis of the operation of two pinball machines denominated respectively as the “Bally Beach Club” machine (defendants’ Ex. No. 1) and the “Skill Pool” machine (defendants’ Exh. No. 13) both subjects of this action. The findings of fact are so extensive and in such detail that we think any discussion here would be unduly repetitious. In his concisions of law, the Special Master Commissioner holds that these two machines, owned and distributed by the plaintiff, are gambling devices within the meaning of §§2915.04 and 2915.15 R. C. and lotteries under Art. IV, Sec. 6 of the Constitution and that such machines could be seized and destroyed by the provisions of Sec. 731-23 and 737-1 of the Code of Ordinances of the City of Cincinnati and that the injunction of the Common Pleas Court should be dissolved and judgment entered for the defendants. We think that it may be helpful to set forth these conclusions of law verbatim as follows:

“1. The Skill Pool Machine, plaintiff’s exhibit 13, and Bingo Bally Beach Club machine, defendant’s exhibit 1, constitute ‘gambling device or machine’ within the meaning of §2915.15 R. C., and the operation of such machines constitutes a ‘game to be played for gain’ within the meaning of §2915.04 R. C., because both of such machines are predominantly controlled by the element of chance.

“2. The right acquired in operating such machines, to replay without the insertion of an additional coin, upon attaining a score determined by the manufacturer or distributor, constitutes ‘gain’ or ‘other property’ within the meaning of §2915.04 R. C., and §2915.15 R. C.

“3. Both of said machines, plaintiff’s exhibit 13 and defendants’ exhibit 1, are designed to be operated contrary to the provisions of the laws of Ohio within the meaning of Sec. 731-23 and are designed to b'e used for the purpose of gambling within the meaning of Sec. 737-1 of the Ordinances of the City of Cincinnati and where such machines are distributed by the plaintiff and are exhibited in public places, they may be seized and destroyed pursuant to the provisions of each of said ordinances.

“4. Both of said machines constitute lotteries within the meaning of Art. XV, Sec. 6 of the Ohio Constitution.

“5. Sec. 731-23 and Sec. 737-1 of the Code of Ordinances of the City of Cincinnati are valid and constitutional.

“6. The plaintiff is not entitled to an injunction restraining the defendant from seizing and confiscating devices of the kind received in evidence in the present case, plaintiff’s exhibit 13 and defendants’ exhibit 1, and the injunction heretofore issued should be dissolved and a judgment entered in favor of the defendants.

“7. The defendants may not confiscate any machines which the plaintiff may own, nor revoke the plaintiff’s license as a distributor, on the sole ground that such machines afford the right of free play. However, this conclusion (7) has no application to the types of machines considered in the evidence in the present case; namely, plaintiff’s exhibit 13, or defendants’ exhibit 1.”

It appears that following the presentation of the testimony to the Special Master Commissioner, the plaintiff appellee for the first time raised the question as to whether this appeal was properly taken on questions of law and fact by filing a motion to dismiss the appeal, upon consideration whereof the Court, composed of the members of the First Appellate District, overruled the motion to dismiss the appeal and retained the case for trial de novo on questions of law and fact. The same motion has again been presented upon this hearing on the merits.

We are of the opinion that the primary relief here sought is in chancery and we see no reason to reverse the previous ruling of this court, as in our opinion a strange anomaly would be presented if plaintiff after invoking the equitable jurisdiction of the trial court and having obtained the equitable relief sought, could on motion prevent this Court from considering and determining the issues here presented as a chancery case on questions of law and fact.

We are of the opinion that in principle the case of Kraus v. City of Cleveland, 135 Oh St 43, 19 N. E. 2d, 159, decided February 1, 1939, wherein the judgment of the Court of Appeals was reversed and the judgment of the Common Pleas Court affirmed. (See 12 O.O. 206 and 2 Ohio Supp. 87) is decisive of the issues in this case, even though we recognize' the existence of certain factual differences between that case and the instant case.

In the Kraus case, the machines or devices were operated in such a manner as to return or emit tokens, slugs or discs by means of which additional merchandise or additional amusement could be obtained by replaying the machine. In that case, the Supreme Court struck down an ordinance purporting to license the distribution and operation of such machines as being in conflict with §§13056 and 13066 GC (now §§2915.04 and 2915.15 R. C.). In this connection we call particular attention to the following excerpt from the report of the Special Master Commissioner commencing at page 36, wherein it is stated:

“The decision of the court in the Kraus case is controlling on the question of whether or not the right to play the machine constitutes ‘gain’ ‘or other things of value’ or ‘other property’ within the meaning of the above quoted statutes. As to this feature of the case, the only distinction between the Kraus case and the present case is that the right to replay the game in the Kraus case was dependent upon receiving a token from the machine when the established score was reached, whereas in the present case the right to replay is established automatically without a token. The distinction is immaterial. The Kraus case was not decided upon this fine distinction of mechanics, but upon the principle that the right to replay the game constituted amusement and that amusement was a thing of value. “Certainly the token which was merely the mechanical means by which the machine could be replayed, was of no inherent value in itself. The right to amusement afforded by the machine considered in the Kraus case is indistinguishable from the right to amusement afforded by both of the machines considered in the present case. The absence of any real distinction between the type of machine considered in the Kraus case and the types considered in the present case has been recognized by the Supreme Court of other states, who have followed the Kraus case, in decisions which involve machines where the right to replay was determined automatically. In each of the following cases the court cited the Kraus case and followed it: Baedaro v. Caldwell, 156 Neb. 489, 56 N. W. 2d 706 Sup. Ct. Neb. 1953; State v. Wiley et, 232 Iowa, 443, 3 N. W. 2d 620 Sup. Ct. Iowa 1942; Middlemas v. Strutz, Atty. General, 71 N. Dak. 186, 299 N. W. 589, Sup. Ct. N. Dak. 1941; Steely v. Commonwealth, 291 Ky 554, 164 S. W. 2d 977; Giomi v. Chase, 47 N. Mex. 22, 132 Pac. 2d 715 Sup. Ct. N. Mex. 1942.”

We are in complete accord with and approve the foregoing statement. We have heretofore pointed to another distinction between the two cases which should perhaps be emphasized. In the Kraus case, the ordinance of the City of Cleveland purporting to license and legalize gambling devices per se was an issue, whereas in the instant case, the ordinance of the City of Cincinnati which provides for the operation and licensing of machines exclusively for amusement is not subject to attack.

Decided July 22, 1955.

In the instant case, the city and its officials are seeking to maintain the right under its ordinance to prevent plaintiff under a claim of right from exhibiting and distributing gambling machines which are asserted by the city to be gambling devices per se, in violation of law.

We think the facts in this case in relation to the machines in question disclose the three elements of gambling, namely, chance, prize and price interdicted by the Supreme Court in the Kraus case where at page 47 the Court declares:

“Since amusement has value, and added amusement has additional value, and since it is subject to be procured by chance without the payment of additional consideration therefor, there is involved in the game three elements of gambling, namely, chance, price and a prize.”

Upon consideration of the evidence, the findings of fact and conclusions of law of the Special Master Commissioner, the arguments and briefs of counsel, we are of the opinion that the particular pinball machines here considered are gambling devices per se, distributed, operated and exhibited in violation of law. We are further of the opinion that under such circumstances the city has not only the right but the duty, acting through its proper officials, to take such action as it deems appropriate according to law to prevent the plaintiff from unlawful practices.

Holding these views, we conclude that the exceptions of the plaintiff to the report of the Special Master Commissioner are not well taken and should be overruled; that the motion of the plaintiff to strike the report should also be overruled, and that the report of the Special Master Commissioner should be confirmed and adopted by this Court and a decree entered for the defendants, City of Cincinnati, dissolving the ■ injunction hereinbefore entered for plaintiff and that final judgment should be rendered for the defendants appellants.

A journal entry may be drawn accordingly with exceptions noted.

KOVACHY, PJ, SKEEL, J, concur.

No. 7822.

(KOVACHY, PJ, SKEEL, J, HURD, J, of the Eighth District sitting by designation in the First Appellate District.)

MOTION FOR REHEARING OR CERTIFICATION OPINION

By HURD, j:

Since our decision in the instant case, rendered June 17, 1955, plaintiff-appellee has filed a motion for rehearing or in the alternative, for an order certifying the record in this case to the Supreme Court on the ground that the judgment herein is in conflict with the cases of Brafford v. Calhoun, 72 Oh Ap 333 and State v. Simonian, 77 Oh Ap 201.

Plaintiff-appellee complains of the seventh conclusion of law which reads as follows:

“7. The defendant may not confiscate any machines which the plaintiff may own nor revoke the plaintiff’s license as a distributor, on the sole ground that such machines afford the right of free play. However, this conclusion (7) has no application to the types of machines considered in the evidence in the present case; namely, plaintiff’s exhibit 13, or defendant’s exhibit 1.”

The plaintiff appellee is hardly in a position to complain of this finding because obviously it is in its favor inasmuch as the Court, in approving the findings of fact and conclusions of law of the Special Master Commissioner, held that the Skill Pool Machine, Plaintiff’s Exhibit 13, and the Bingo Bally Beach Club Machine, Defendant’s Exhibit 1, constituted gambling devices or machines by reason of which the City of Cincinnati, et al, defendants-appellants, should not be enjoined from taking action according to law to prevent the plaintiff from a continuation of unlawful practices with relation to said two types of machines. We are in accord with the statement contained in the brief of the City Solicitor as follows:

“Plaintiff-appellee’s application for a rehearing seemingly is based on the grounds that the court did not, but should have, decided whether all pinball machines are gambling devices and whether the pinball machines in evidence in the case would be gambling devices if the free play element were removed. Obviously, the court can pass only on questions which are raised by the record and neither of these questions were raised by the record. The court could only pass upon the pinball machines which were actually introduced into evidence and state a general principle of law, which it did, that any pinball machine which gives a chance for a prize for a price is a gambling device. Since the undisputed testimony in the case was that all the pinball machines owned by plaintiff-appellee operated with a free play device, the court obviously could not in this case pass upon the question of whether such machines would be gambling devices if the free play element was eliminated.”

The plaintiff-appellee further argues that a rehearing should be granted “because the court failed to take into consideration the modification of the Statutes since the decision in Kraus v. City of Cleveland, 135 Oh St 43.”

This statement is not correct. It is true that we did not discuss the amendments of September 18, 1951, in our memorandum opinion of June 17, 1955. However, these amendments were discussed in the findings of fact and conclusions of law of the Special Master Commissioner which we confirmed. That should be sufficient.

Furthermore, the amendments of September 18, 1951, enlarged or broadened the scope of the applicable laws with respect to exhibiting, owning, possessing or transporting gambling devices for gain. That is why we stated that the case of Kraus v. City of Cleveland, supra, in principle, supports the principles of law here presented even though we recognized the existence of certain factual differencs between the two cases.

It is clear, we think, that it was the intention of the Legislature in enacting new §13066-1 GC (§2915.16 R. C.), defining the term gambling device as used in §§13066-2 and 13066-3 GC (§§2915.17 and 2915.18 R. C.) and “other than as defined in §§13063-3 and 13063-4 GC” (§§2915.10 and 2915.12 R. C.) to make the laws with respect to gambling devices all inclusive. It cannot be assumed that the Legislature intended to do a vain thing by adopting amendments to existing laws prohibiting the manufacture, use and exhibition of gambling devices for gain and at the same time enacted legislations excepting gambling devices from such prohibition, nor can such amendments be construed as a limitation on constitutional prohibitions against gambling.

In relation to this proposition, the Legislature may have had in mind the substance of the oft quoted excerpt from the case of Moberly v. Deskin (1913) 169 Mo. Ap. 672, 155 SW 842, which is particularly apropos:

“In no field of reprehensible endeavor has the ingenuity of man been more exerted than in the invention of devices to comply with the letter but to do violence to the .spirit and thwart the benficient objects and purposes of the laws designed to suppress the vice of gambling. Be it said to the credit of the expounders of the law that such fruits of inventive genius have been allowed by the courts to accomplish no greater result than that of demonstrating the inaccuracy and insufficiency of some of the old definitions of gambling that were made before the advent of the era of greatly expanded, diversified, and cunning mechanical inventions.”

Coming now to a consideration of the cases which are asserted to be. in conflict with our decision, namely, State v. Simonian, supra, and Brafford v. Calhoun, supra, while there may be some slight analogy, we do not find these cases, on the facts and the law, to be directly in conflict with our decision in the instant case. However, we find it unnecessary to discuss this question for the reason that these decisions were rendered by the Court of Appeals of the First Appellate District. Inasmuch as our decision in this case was rendered while sitting by designation in the First Appellate District, the provisions of Section 6, Art. 4 of the Constitution, requiring certification to the Supreme Court on the ground of conflict, have no application here. The constitutional provisions requiring certification on the ground of conflict have application only where a judgment of the Court of Appeals of one district establishes a rule of law contrary to the rule of law established by the Court of Appeals of another district.

Holding these views, we conclude that the application for rehearing should be overruled and the motion to certify on the ground of conflict should likewise be overruled.

Entry accordingly. Exceptions given.

KOVACHY, PJ, SKEEL, J, concur.


author: By HUNSICKER, J:

text:
    GAVIN et, Plaintiffs-Appellants, v. GAVIN, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23242.
    Decided January 12, 1955.
    McDonald, Hopkins, Hood & Hardy, Cleveland, for plaintiffs-appellants.
    Feighan & Feighan, Cleveland, for defendant-appellee.
    (DOYLE, PJ, HUNSICKER, J, of Ninth District, GRIFFITH, J, of Seventh District sitting by designation.)
   OPINION

By HUNSICKER, J:

This is an appeal on questions of law from a judgment of the Common Pleas Court of Cuyahoga County, Ohio.

On June 26, 1950, there was placed on record, in Cuyahoga County a deed from Mary Gavin and Nora Gavin to John F. Gavin, covering three parcels of real estate situated in that county. This document showed a consideration of one dollar and love and affection. Mary Gavin died on July 6, 1950, at the age of 78, and Nora Gavin died on May 10, 1951, at the age of 77.

The appellants are the brother and husband of a sister who died while this case was pending in the trial court.

John F. Gavin, the nephew of Mary and Nora Gavin, and his mother, came to live with his aunts at the age of eight. At fourteen, his mother died, and he remained with his aunts until their death, except for a period spent in the armed service of the United States. At the time of the death of Nora, John F. Gavin was about 34 years of age.

The plaintiffs below (appellants herein) filed an action in the trial court asking that the deed from Mary and Nora Gavin to John F. Gavin be cancelled and declared to be null and void. The trial court refused the prayer of this petition. From the judgment rendered thereon the appellants appeal to this court, saying:

“1. The trial court erred in finding the deed valid, because such finding was not supported by the evidence and was against the weight of the evidence.

“2. The trial court erred in failing to place upon the defendant the burden of proof to show that the conveyance was made intentionally and voluntarily with full understanding on the part of the grantors, in view of the fiduciary relation of the grantee to the grantors at the time the deed was made.

“3. The trial court erred in finding that the formalities of execution and delivery required for a deed of gift were fulfilled.

“4. The trial court erred in admitting and considering testimony offered by and through attorney More as to wills prepared by him for Nora and Mamie, because such testimony concerned privileged communications.”

There is credible, competent evidence to sustain the judgment of the trial court, unless the trial judge erred in determining, in his conclusions of fact and conclusions of law, filed at the request of the plaintiffs, that:

“The plaintiffs had the burden of proving that the deed in question was not a valid instrument as it appeared to be.”

It is the claim of the appellants that the relationship of John F. Gavin to his aunts, Mary Gavin and Nora Gavin, was confidential and fiduciary in character and that the well recognized rule of law regarding transactions with one standing in such relationship should be applied in this case.

This rule has been aptly stated by Judge Doyle in the case of Federman v. Stanwyck et, 63 Abs 178 at page 181, as follows:

“Under circumstances where gifts of property are improvidently made and there is evidence tending to prove a fiduciary relationship of the type now being discussed, while equity recognizes under many circumstances, the validity of such transactions between the parties, yet, because every fiduciary relation implies a condition of superiority held by one of the parties over the other, in transactions between them, by which the superior party obtains a possible benefit, equity raises a presumption against its validity, and casts upon that party the burden of proving affirmatively the fairness of the transaction and its compliance generally with all equitable requisites.” See, also: Peterson et, v. Mitchener et, 79 Oh Ap 125; Berkmeyer v. Kellerman, 32 Oh St 239; McAdams v. McAdams, Sr., 80 Oh St 232.

Did such a relationship exist in the instant case?

If this confidential and fiduciary relationship existed, it did so from the fact that John F. Gavin was principally reared by and lived with his aunts the major portion of his life; and hence that close family relationship ipso facto established such relationship. The testimony disclosed that both aunts had “minds of their own” and treated the man, John F. Gavin, as though he were still the boy they referred to as “Little John.”

We do not deem it necessary to discuss the nature of the confidential relationship that exists between attorney and client, guardian and ward, and trustee and beneficiary. Our inquiry is with reference to a family relationship of aunt and nephew, which in this case is factually similar to that of parent and child.

We do not find any law which prevents a parent from giving a son or a daughter any property of which the parent is the owner, if freely and voluntarily done, especially when the gift originated in the mind of the parent or was unsuggested by any agency of the son or daughter.

In the case of McAdams v. McAdams, Sr., 80 Oh St 232, the court said:

“1. In an action by the grantor in a deed, to reform the instrument upon the ground that the grantee fraudulently concealed and misstated the contents of the deed to the grantor, when it appears that the grantee is a son of the grantor and an attorney at law, and that such grantee was entrusted with the drafting of the instrument upon his own suggestion, such facts raise a presumption of the existence of relations of trust and confidence between the parties and put upon the grantee the burden of showing that no undue advantage was taken of the grant- or in the execution of the deed.

“2. But when it also clearly appears in such case that such deed is in apparent accord with previous declarations of the grantor as to his intentions and his subsequent declarations as to what he had done, and that he could read and had ample opportunity before, at, and after, signing the deed to read the same, the presumption of undue advantage by reason of confidential relations is rebutted, and the burden rests upon the grantor to show by clear and convincing proof that the deed is fraudulent.

“3. In such case declarations of the grantor made in the absence of the grantee, are not competent evidence to prove the alleged fraud; but statements of the grantor which tend to rebut the claim of fraud, whether made before or after the signing of the deed, are admissible.”

In that case, at pages 243 and 244, the court said:

“The relation of parent and son, even if the latter should occupy the relation of. attorney also, will not raise a presumption of undue influence.”

See, also: 39 Am. Jr. Parent and Child, Sec. 99 and authorities cited there. 67 C. J. S. Parent and Child Sec. 60; 1 Bigelow on Fraud, Sec. 5, Parent and Child of Subdivision II, Confidential Relations of Chapter I of “Constructive Fraud” (p. 354 et seq.).

The family relationship which existed between John F. Gavin and his aunts, Mary Gavin and Nora Gavin, did not as a matter of law and in and of itself create a confidential or fiduciary relationship, and (as we said above) the trial judge had competent credible evidence from which he could conclude that no such relationship existed as a matter of fact.

Since this appeal is on questions of law only, the judgment in this case must be affirmed.

Judgment affirmed.

DOYLE, PJ, GRIFFITH, J, concur.


author: By DOYLE, J.

text:
    HOKE, d. b. a. E. J. HOKE REALTY CO., Plaintiff-Appellant, v. MARCIS, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23379.
    Decided June 8, 1955.

      A. R. Roman, Cleveland, for plaintiff-appellant.
    McDonald, Hopkins, Hood & Hardy, Cleveland, for defendant-appellee.
    (STEVENS, PJ, HUNSICKER, J, DOYLE, J, of the Ninth District sitting by designation in the Eighth District.)
   OPINIÓN

By DOYLE, J.

Edward J. Hoke, d. b. a. E. J. Hoke Realty Co., a real estate broker, filed suit in the Municipal Court of Lakewood, Ohio, against Paul Marcis, for a real estate commission of $900, claimed to be owed the plaintiff because of the sale by the owner of his own property upon which he had theretofore given the plaintiff broker an open listing for sale.

The trial court, at the conclusion of the plaintiff’s case in chief, sustained a motion for judgment for the defendant. Prom the judgment entered, appeal has been taken to this court on questions of law.

It appears from the evidence that the owner, Marcis, advertised his property for sale. A salesman for Hoke, the broker, noticed the advertisement, and secured from the said owner an open listing for the sale of the property at a price of “$19,500.00 net or less.” A written memorial was made by the broker’s salesman of this oral contract. Hoke’s salesman then found Richard D. and Mary Louise Walters, who offered to purchase the property for $16,000, which offer after submission to the owner, was promptly rejected.

Shortly thereafter, the Walters were induced by Hoke’s salesman to offer $18,000. This offer was submitted to the owner by the salesman, who, after discussion with the owner of the amount of commission, determined to be in the amount of $900, and the amount net to the owner of $17,100, was told by the owner that the offer was rejected because it “isn’t enough.” '

Several weeks later, Marcis, the owner, sold the property to the aforementioned Walters, husband and wife, for $18,000.

1. It will be observed .that the plaintiff had an open listing for the sale of the property, which meant that other brokers, or the owner himself, were free to sell the property.

2. The contract with the broker called for a price of “$19,500 net or less.” The jural question is the meaning of this language at the time and place it was used in the contract. We must give the language a reasonable meaning, and if there appears a repugnancy between a specific clause and a general one, a court may permit the former to govern. Likewise, in determining the meaning of an indefinite or ambiguous contract, the interpretation placed upon the contract by the parties themselves may be considered by the court, and is entitled to great, if not controlling, influence in ascertaining their understanding of its terms.

“It is to be assumed that parties to a contract know best what is meant by its terms and are the least likely to be mistaken as to its intention; that each party is alert to protect his own interest and to insist on his rights; and that whatever is done by the parties during the period of the performance of the contract is done under its terms as they understood and intended it should be.” 12 Am. Jur., Contracts, Sec. 249 (at p. 789).

In the instant case, as stated above, the broker secured a prospective purchaser for $16,000. This offer was rejected by the owner. Through the efforts of the broker’s agent, the offer was raised to $18,000, and again the owner rejected the offer. This conduct was acquiesced in by the broker, and it is reasonable to assume that he recognized his contract as requiring him to secure a purchaser who would pay an amount for the property which would net the owner $19,500 before he was entitled to a commission; and that, before he was entitled to a commission on any lesser price, such lesser price must be approved by the owner.

The conduct of the parties clearly shows that they interpreted their contract as noted above.

It is difficult, if not impossible, to reconcile the expressions of the courts in the various cases involving the commissions of real estate brokers, and it would be a profitless task to review even a limited number.

There are certain fundamental rules, however, which are everywhere recognized. One of them is that a broker can recover a commission only by virtue of a contract, express or implied, with the owner. In the instant case, we are concerned with an express contract.

Another rule is that, before a broker is entitled to a commission, he must show that he is the procuring cause of the sale.

Courts employ various expressions when defining the phrase “procuring cause,” but all generally agree that the phrase means that cause which commences a series of events without break in their continuity which results in the accomplishment of the principal object of the employment — i. e., the procurement of a purchaser, ready, willing and able to buy the property on the terms and conditions imposed by the principal.

In determining whether a broker is the procuring cause of a sale, it is always necessary to examine the contract of employment. If a broker has an exclusive listing for a specific time, one set of rules are employed. If he is employed generally to find a purchaser, and introduces a prospective purchaser to the owner, and they negotiate a sale, another set of rules pertain, and the broker is generally entitled to a commission.

But different rules must be employed on an open listing, when the terms of the sale are specifically fixed in advance, and the broker’s authority is limited to finding a purchaser who will buy the property upon the prescribed terms. Under such circumstances, in the absence of fraud or deceit on the part of the owner, the broker is entitled to no commission unless he finds such a purchaser, and a contract of this character does not restrain the owner from seeking in good faith to sell his property on better terms than terms theretofore submitted and which are less than the amount set in the contract of employment.

In the case under review, the facts are not in material dispute, and, from the plaintiff’s own evidence, it does not appear that he was the procuring cause of the sale, even though he introduced the purchaser to the owner and set the wheels in motion for the ultimate sale.

We find, as did the court below, no evidence of fraud or deceit on the part of the owners. He produced no one who offered a sufficient sum to net the owner $19,500 and the best offer secured by him would net the owner but $17,100. This was not enough, said the owner, who was in a position to make the decision without incurring liability for a commission under the contract.

For a general review of the authorities, see 8- O. Jur. 2d, Brokers. Sec. 47; 47 A. L. R. 855; 43 A. L. R. 1103; 12 C. J. S., Brokers, Secs. 86 b and 93 a; 8 Am Jur., Brokers, Secs. 176 and 190.

Judgment affirmed. Exceptions. O. S. J.

STEVENS, PJ, HUNSICKER, J, concur.