author: By THE COURT.

text:
    BURCHFIELD, Admr., Plaintiff-Appellant, v. OMAR, INC., d. b. a. OMAR BAKERY, a Corporation et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4988.
    Decided February 8, 1954.
    Paul M. Herbert, James R. Burchfield, Columbus, for plaintiff-appellant.

      Ingalls & Jones, Gene A. Jones, of Counsel, Columbus, for defendantsappellees.
   OPINION

By THE COURT.

This is a law appeal from the judgment of the Common Pleas Court sustaining the motion of the defendant, Omar Bakery, for a new trial on the following grounds:

(1) Excessive damages appearing to have been given under the influence of passion and prejudice.

(2) That the final order, judgment or decree is not sustained by sufficient evidence and is contrary to law.

The action was one for damages arising out of the death of an eighteen month old female child caused by a bakery truck of the defendant, Omar Bakery, while backing out of a private driveway. A verdict was returned in favor of the plaintiff in the sum of $20,000.00.

The first question for consideration is whether the order sustaining the motion for a new trial is a final order since a motion to dismiss has been filed by defendant-appellee. The latest pronouncement on this question by our Supreme Court is found in the case of Green v. Acacia Mutual Life Insurance Co., 158 Oh St 5, which holds that it is not such unless the Court abused its discretion in so doing. The meaning of the term “abuse of discretion” connotes something more than an error of law or of judgment. Black’s Law Dictionary (2 Ed.) 11. Such term has been defined as,

“A view or action ‘that no conscientious judge, acting intelligently, could honestly have taken.’ ” Long v. George, 296 Mass., 574, 579.

The term is defined in the case of Steiner v. Custer, 137 Oh St 448, second paragraph of the syllabus:

“The meaning of the term ‘abuse, of discretion’ in relation to the granting of a motion for a new trial connotes more than an error of law or of judgment; it implies an unreasonable, arbitrary or unconscionable attitude on the part of the court.”

We have examined the lengthy opinion of the trial court and find that he has carefully analyzed the Ohio authorities with reference to the amount of compensation that has been allowed in similar cases, and after so doing, he arrived at the conclusion that the damages were excessive and given under the influence of passion and prejudice. We have examined the Ohio authorities on the question also and it is our conclusion that the trial judge was not motivated by any unreasonable, improper or arbitrary consideration.

In the case of Immel v. Richards, 154 Oh St 53, our Supreme Court recently gave consideration to a similar question. This case involved an award of only $5000.00 for the death of a male child, nine months of age, and coming from a family whose social status and financial circumstanees were quite like those of the plaintiff’s decedent. In this case one member of the court dissented for the reason that the judgment was excessive and such as to indicate passion and prejudice. If the plaintiff is correct in his reasoning it would also have to be said that this member of the Supreme Court also exercised an abuse of discretion in arriving at his conclusion.

It is also urged that the trial court should have ordered a remittitur if he thought the judgment was excessive, citing the case of Bartlebaugh v. Pennsylvania Railroad Co., 150 Oh St 387. In this case it appears that the appellant sought either a remittitur or a reversal in the reviewing court and it was there held that a remittitur may be ordered if agreed to by the appellee. We find nothing in the record to indicate that either party requested a remittitur in the trial court; hence, it may not be said that failure to so order constituted an abuse of discretion. A remittitur may not be requested in this court, for as previously stated, this court has no jurisdiction to entertain the appeal.

The motion to dismiss will be sustained.

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


source: Caselaw Access Project

author: By CASE, J.

license: Public Domain

text:
    ROMA et, Plaintiffs, v. FINKERNAGEL et, Defendants.
    Common Pleas Court, Fayette County.
    No. 22008.
    Decided April 2, 1956.
    Morton C. Anderson, Columbus, Paul Mancino & Frank Mancino, Cleveland, for plaintiffs.
    Sebastian, Fais & Durst, Columbus, for defendant, R. H. Finkernagel.
   OPINION

By CASE, J.

According to the allegations contained and set forth in their petition, plaintiffs claim:

(a) That, on or about October 6, 1953, there was a certain collision between a tractor and trailer, owned and operated by plaintiffs, and a Chevrolet automobile operated by defendant, Robert H. Finkernagel;

(b) That, as a result of said collision, plaintiffs’ tractor and trailer were damaged and plaintiffs suffered certain damages by reason thereof; and

(cl That, plaintiff Roma was driving plaintiffs’ tractor and trailer at the time of said collision and suffered certain personal injuries as a result thereof.

To plaintiffs’ petition, said defendant filed the following motion:

“Defendant, Robert H. Finkernagel, respectfully moves the Court for an order requiring the plaintiffs to separately state and consecutively number the causes of action in their petition.”

Said defendant’s motion was supported by the following memorandum:

“The Court will note that the plaintiffs have attempted to plead a cause of action alleging personal injuries, and a second cause of action alleging certain property damages. These are two separate causes of action, and the courts of Ohio consistently hold that these causes must be separately stated and consecutively numbered. The Court is undoubtedly familiar with this rule in §2309.07 R. C.

“The plaintiffs’ petition clearly shows two counts for damages. One being a personal injury and the second the property damage. Since these two causes of action are intermixed in the petition, the plaintiffs have not complied with §2309.07 R. C.

“Defendant, Robert H. Finkernagel submits that this motion is well taken and should be sustained.” •

It does not appear that plaintiffs, or either of them, filed any memorandum in- opposition to said motion. Although the reason for plaintiff’s failure to so oppose said defendant’s motion does not appear of record herein, it might well be that the explanation thereof is to be found in the case of Strasser v. Blain Dairies Inc., 27 Abs 108, wherein one of counsel for plaintiffs herein appears also to have been one of counsel for plaintiff appellant of record therein. In that case, the Court of Appeals for Cuyahoga County held:

“1. The satisfaction of personal damages by an insurance company pending suit for damages to plaintiff’s person and automobile does not destroy the right of the plaintiff to recover property damages to his automobile arising out of the same negligent act.

“2. The rule against splitting causes of action does not apply to a suit for personal and property damages where one of the two components of damages, the personal damages, are compromised, resulting in minimization of the litigation which is always to be encouraged, and the plaintiff amends his petition to allege only property damage.”

It is also noted that Strasser v. Blain, supra, was cited with approval by the Supreme Court of Ohio in the case of Vasu v. Kohlers, 145 Oh St 321, 30 O. O. 542, 166 A. L. R. 855; and that, in the Vasu case, supra, the Supreme Court, in substance and effect, recognized and enunciated the rule of law that:

“4. Injuries to beth person and property suffered by the same person as a result of the same wrongful act are infringements of different rights and give rise to distinct causes of action, * * *”

Upon due consideration of all of the allegations contained in plaintiffs’ petition, the grounds upon which said defendant’s motion is bottomed, and the rules of law applicable thereto, as argued and set forth in said defendant’s memorandum and as hereinabove cited and discussed, the Court finds that said defendant’s motion, for an order requiring plaintiffs to separately state and consecutively number the causes of action in their petition, is well made and should be sustained.

Counsel for said defendant should prepare an entry accordingly with appropriate exceptions therein noted on behalf of plaintiffs and said defendant, and submit same to counsel for plaintiffs and to this Court for approval by on or before April 16, 1956; and, by said entry, plaintiffs should be granted leave to file an amended petition herein by on or before April 30, 1956.


author: Per CURIAM:

text:
    KAUFMAN, Plaintiff-Appellant, v. BROCKWAY et, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22703.
    Decided March 9, 1953.
    Louis R. Lanza, Cleveland, for plaintiff-appellant.
    Malvern E. Schultz, James F. Wilson, Cleveland, for defendant-appellee.
   OPINION

Per CURIAM:

This appeal comes to this court on questions of law from a judgment entered for the defendants in the common pleas court of Cuyahoga County on their motion for judgment entered by the defendant upon trial and at the conclusion of the plaintiff’s evidence.

The plaintiff’s petition alleges that he, as a licensed real estate broker, was employed by the defendant, Albert J. Brockway, Herbert E. Russell and Grace E. Russell, to find a purchaser for their two-family house located at 10807 Ashbury Avenue in the City of Cleveland Thereafter, on July 2, 1949, plaintiff alleges that he procured a purchaser, to-wit, defendant, Myrtle Houston, who entered into a written contract with the other defendants herein named, for the purchase of said property, said contract providing among other things, that the plaintiff was to be paid a commission by the sellers in the sum of $670.00.

It is further alleged that the defendants sellers, and the defendant buyer, thereafter conspired together to defraud the plaintiff of said commission by unlawfully and maliciously consummating said transaction with Joseph and Mattie Hendry (brother and sister-in-law of Myrtle Houston! who, in truth and in fact, took the legal title to said premises in trust for the defendant, Myrtle Houston.

It is then alleged that for the foregoing reasons all the defendants by virtue of such conspiracy are indebted to plaintiff in the full amount of the commission contracted for in the sum of $670.00?

The answer of defendants, Herbert E. and Grace E. Russell and Albert J. Brockway, admit the alleged agreement to sell the property to Myrtle Houston, said contract being entered into as the result of the efforts of the plaintiff, and further allege that she was unable to finance said purchase and that therefore the negotiations for the sale of said property to Myrtle Houston were dropped with the knowledge and consent of the plaintiff. They further allege that through the efforts of another real estate broker, they sold the premises on land contract to Lucius Jeffers and deny any conspiracy with the first purchaser Myrtle Houston for the purpose of depriving the plaintiff of his alleged commission.

The defendant, Myrtle Houston, specifically denied all the allegations of plaintiff’s petition.

The record discloses that the plaintiff did not file a reply or contravert in any way the affirmative allegations contained in the answer of the defendants, Herbert E. and Grace E. Russell and Albert J. Brock-way. The defendants Russell and Brockway were, at the time this action was filed, residents of Portage County, while Myrtle Houston lived in Cuyahoga County. The record shows that service of summons was had upon the defendants Brockway and the Russells by the sheriff of Portage County under the provisions of §§11282 and 11277 GC, the right to bring said defendants into this county thus being founded upon the plaintiff’s petition attempting to state a cause of action against all of the defendants, including Myrtle Houston as a resident of Cuyahoga County on the ground of conspiracy.

It is an undisputed fact that without a charge of conspiracy Myrtle Houston, the prospective buyer, would not be liable for the payment of any commission that might be due the plaintiff from the other defendants.

The trial court upon full and complete consideration of all the plaintiff’s evidence concluded that the allegations of the petition charging a conspiracy were not supported by sufficient evidence and entered judgment for the defendants.

With this finding we are in complete accord, and therefore hold that there is no credible evidence in the record to support the allegations charging conspiracy.

The plaintiff seems to contend that the allegations of the petition and his evidence were sufficient to entitle him to a judgment for a commission aside from the claim of conspiracy under the authority of Cary v. Conn, 107 Oh St 113. No such case is pleaded, and if it had been Myrtle Houston would not be a proper party defendant and the plaintiff therefore could not bring the defendants Brockway and the Russells into this jurisdiction by service had in Portage County. The forum for such a case would be in Portage County and the Common Pleas Court of Cuyahoga County would not have jurisdiction to try the issues here presented unless the defendants residing in Portage County were, or one of them, was served personally in Cuyahoga County.

For the foregoing reasons the judgment of the Common Pleas Court is affirmed. Exceptions allowed. Order see journal.

HURD, PJ, KOVACHY, J, SKEEL, J, concur.


text:
    SPARROW, Plaintiff-Appellee, v. EDWARDS, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4860.
    Decided January 22, 1953.
    Russ Bothwell, Charles R. Doll, Columbus, for plaintiff-appellee.
    R. E. Hughes, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This is a law appeal from the judgment of the Common Pleas Court overruling the defendant-appellant’s motion for new trial. Seven alleged errors are assigned, to wit:

(1) The judgment was not sustained by sufficient evidence and against the manifest weight thereof.

(2) Said judgment and decree was contrary to law.

(3) Error of law on the part of the Court in admitting in evidence a certain exhibit after the close of the case and arguments of counsel.

(4) Error of the Court in reopening the case and permitting the introduction in evidence of a certain exhibit as rebuttal evidence on the part of plaintiff.

(5) Error of the Court in going to the scene of the accident and viewing the same without the knowledge or consent of counsel or parties to the action after the close of the case.

(6) Abuse of discretion on the part of the Court in viewing the scene of the accident and admitting in evidence a certain exhibit after the close of the evidence and arguments of counsel.

(7) Error of the Court in permitting counsel for plaintiff in his argument to refer to and quote from various cases in the Common Pleas Court of Franklin County as bearing upon the amount of damages to be awarded by the Court.

It will be noted that a bill of exceptions is necessary to pass on these assignments, but none has been filed. We do find in the record a written statement, unsigned, that upon the close of the case the same was continued to some future date for argument during which time the trial judge visited the scene of the accident; also that at the time of the argument the Court permitted the plaintiff to reopen the case and offer a plat into evidence; also that in argument the Court permitted counsel for plaintiff to refer to certain cases decided by the Common Pleas Court of Franklin County wherein certain damages were allowed. This statement is foreign to the record and may not be considered on this appeal, but even if it were properly before the Court it could not be helpful to this appellant as it merely indicates that the Court made the visitation for the purpose of better understanding the evidence which was properly before the Court. This was neither error nor contra to the rules announced in the cases of City of Columbus v. Carter, 39 Abs 271, and Webster v. Pullman Co., 51 Oh Ap 131. The matter of reopening the case and permitting evidence to be offered in rebuttal as well as the citations in the argument rested within the sound discretion of the trial court which we think was properly exercised.

The judgment will be affirmed.

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


text:
    SOCOTCH, In re, Appellee, v. DEPARTMENT OF LIQUOR CONTROL and BOARD OF LIQUOR CONTROL, Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 5070.
    Decided May 28, 1954.
    Isadore Topper, R. Brooke Alloway, Columbus, William J. Kraus, Cleveland, for appellee.
    Hon. C. William O’Neill, Atty. Geni., Robert E. Leach, Chief Counsel, Ralph N. Mahaffey, Asst. Atty. Geni., Columbus, for appellants.
   OPINION

By THE COURT.

This is an appeal on questions of law from .an order of the Common Pleas Court reversing and setting aside an order of the Board of Liquor Control affirming an order of the Department of Liquor Contrsl rejecting the application of appellant of date December 15, 1952, for the renewal of a Class D-5 permit, issued to appellant and transferred to 5801 Detroit Avenue, Cleveland, Ohio.

We have carefully considered the extended facts, proceedings and adjudications leading up to the instant appeal, all of which are set forth in detail and briefed by the parties. It will serve no good purpose to restate these developments as they are well known to this Court and to counsel. At the outset, we observe that could we exercise equitable principles in resolving this appeal we might reach a different judgment because the difficulty with which appellee is confronted arises largely because of a rule promulgated by and acted upon by the Department, in good faith, but later found to be invalid.

Appellee, throughout the many proceedings here involved has sought renewal of a D-5 Permit for 5801 Clark Avenue, a transfer of that permit from 5801 Clark Avenue to 5801 Detroit Avenue and a renewal of this latter permit. Appellee now claims only upon her right to a renewal of the permit for the Detroit Avenue premises.

It is basic that before there is the right of a transfer or a renewal of a permit there must be a valid permit upon which such right can be predicated. The last valid permit issued to appellee covered a period from October 21, 1950 to October 21, 1951. State, ex rel. Socotch v. Bryant, 158 Oh St 249. It follows then that there could be no continuity between a permit to be renewed, of date October 21, 1952, and a permit which expired October 21, 1951. In view of the judgment in the mandamus action supra, it follows that the only legal manner in which appellee could carry on a night club for business at 5801 Detroit Avenue would have been to secure a new D-5 permit. No such attempt was made by appellee.

We discussed at considerable length the state of the permits here involved in the recent appeal of Socotch v. Board of Liquor Control, No. 4934, Franklin County. The principles there announced, in our opinion, cannot be reconciled with the judgment here under review.

The judgment of the Common Pleas Court will be reversed and the order of the Board of Liquor Control and the Department of Liquor Control will be affirmed.

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


author: By JACKSON, J.

text:
    STATE, BUREAU OF UNEMPLOYMENT COMPENSATION, Plaintiff, v. LOWE, Defendant.
    Municipal Court, Cleveland.
    No. 259639.
    Decided May 24, 1954.
    C. William O’Neill, Atty. Geni., Columbus, Clarence E. McLeod, Cleveland, for plaintiff.
    Robert D. Mishne, Cleveland, for defendant.
   OPINION

By JACKSON, J.

This cause came on to be heard on the petition, answer, reply, agreed stipulation of facts and briefs.

The plaintiff’s petition contains two causes of action, separately stated because they involve different periods of time and different amounts. The first cause of action is concerned with the following periods. July 1, 1948 to September 30, 1948; October 1, 1948 to December 31, 1948; October 1, 1949 to December 31, 1949; October 1, 1950 to December 31, 1950; January 1, 1951 to March 31, 1951. The second cause of action is concerned with the period April 1, 1951 to September 30, 1952.

It is the claim of the plaintiff that during the periods referred to the defendant Bobbie B. Lowe was an employer subject to the Unemployment Compensation Act of Ohio, §§1345-1 to 1345-5 GC, §4141.01 et seq. R. C., that the administrator of the Bureau of Unemployment Compensation made a finding against said employer on the amount of contributions, interest and penalty due from her for said periods, notified defendant of the amount thereof and ordered the same paid, all pursuant to the above referred to sections of the Revised Code of Ohio. It is further claimed by the plaintiff not having paid said amounts within ten days after notice thereof that the findings were certified to the Attorney General of Ohio. It is the claim of the plaintiff that on the first cause of action it is due $50.61 plus interest and on the second cause of action $92.41 plus interest.

The defendant in its answer denied that the defendant was an employer subject to the Unemployment Compensation Act referred to above and denied that the defendant was indebted to the plaintiff in any sum.

By written stipulation the following facts were agreed to:

1. During all times material herein, the defendant rented a store at 7804 Quincy Avenue, Cleveland, Ohio and paid monthly rent therefor.

2. Defendant bought and equipped said store with six spaces. Each space consisted of a beauty chair, an operator’s stool, a shampoo bowl, dresserette and a sterilizer.

3. The defendant operated a beauty business to her own customers in one of the spaces, and during all times material herein, possessed a manager’s license issued by the State Board of Cosmetology.

4. The defendant rented out the other spaces to various lessees at various times material herein as per the Schedule A attached hereto and made a part hereof, which shows the times, the lessees and the nature of the licenses issued to such lessees by the State Board of Cosmetology. All leases were oral and on a week-to-week basis.

5. Defendant-lessor charged and received $5.00 per week for a space when rented. Each lessee had her own customers, promotéd her own trade, was restricted solely to the particular space rented, and was not allowed to use other spaces. There were no facilities used in common. Each defendant-lessee made her own appointmnts, set her own prices, collected her own money. Each defendant lessee set her own hours and days and never reported on coming or leaving. There was no set time for opening or closing. Each defendant-lessee kept her own books and records and never reported her earnings to the defendant-lessor. Each lessee supplied her own lotions, shampoos, pins, dryers, combs, cutters, perfumes and whatever other equipment, tools or supplies were needed by such lessee. There was no cashier or receptionist in the store.

Light, heat, gas, water and one telephone were supplied for the store by the defendant-lessor. Defendant-lessor cleaned the floor space only.

6. The arrangements were the same with each lessee. Defendant-lessor has entered into such arrangements with lessees since the opening and equipping of the store in December of 1946.

' The arrangement was made with each lessee at the particular time when the lessee entered the store and began operations.

The issue in this case is whether the defendant ever had three employees within the meaning of the Unemployment Compensation Act. If found subject to the act judgment is to be rendered in the amount prayed for in the plaintiff’s petition.

In determining the primary question above stated it is necessary to make two inquiries.

1. Does the rule of the Iden case (State of Ohio v. Iden, 71 Oh Ap 65, 25 O. O. 404 [Muskingum Co., 1942]) apply to the facts herein?

2. If the Iden case does not apply to these facts, does the State Cosmetology Law (§§1082-1 to 1083-1, inclusive, GC, §§4713.01 to 4713.99 R. C.) require an interpretation that the defendant was an employer?

Do the facts herein come within the interpretation of the Iden case?

Sec. 1345-1-c GC (§4141.01 R. C.), defines the term employment as follows: “* * * Service performed for wages under contract of hire, written or oral, express or implied * * Services are defined as “* * * Performed by an individual for remuneration shall be deemed to be employment subject to the Unemployment Compensation Act unless and until it is shown to the satisfaction of the administrator that:

1. Such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract of service and in fact, and

2. Such service is outside the usual course of business for such service as performed, and

3. Such individual is customarily engaged in an independently established trade, occupation, profession or business.”

In the Iden case the pertinent proven facts were as follows:

“From the year 1932 to September of 1938, appellee, R. V. Iden, owned and operated a beauty parlor in Zanesville. During this period he employed from eight to twelve operators, who worked and were paid upon a commission basis. From 1936, the effective date of the act, to April 1, 1938, Iden contributed to the unemployment compensation fund. As of September 1, 1938, Iden entered into like separate written lease agreement with each of his erstwhile employees; whereby he leased to each a certain numbered booth for a term of two years. Each operator was to pay as rent a certain percent of her gross weekly income at the end of each week. A specified amount was to be paid appellee out of certain priced permanents. In addition to the booth all equipment was to be furnished by the lessor and its use leased to the operators. Iden agreed to furnish all heat, light, gas, water, telephone and janitor services and supplies. Lessees were to procure and pay for all required licenses. It was covenanted that either party to a lease might terminate it on 15 days’ notice, and if a lessee defaulted in any covenant, the lessor might resume possession.

“The evidence establishes that Iden was the only one who had a shop license as required by Ohio law. Some of the operators had operator’s licenses, some had manager’s licenses; most did not. The law requires that every manager of a shop must have such a license. Iden had a representative present at all times who took care of the desk telephone and cash register. When calls for appointments came in, this representative assigned the customer’s time and work to the operator requested. If requests were not made the representative assigned whichever operator she chose to do the service. All work slips and money were taken to the representative; sometimes by the operator, but generally by the customer. The moneys were deposited by Iden and his representatives in the name of Iden Beauty Parlor. At the end of each week the amount due each operator was computed and paid to her. The work hours were from 9 a. m. to 6 p. m. Operators generally gave notice of time of departure and return.

“The operators were not confined to their particular booths. There was a special facial booth. There was a special place provided for giving shampoos, and a special place for giving permanents. These three places were used by all operators. As noted, Iden furnished all equipment, lotions and supplies, except some operators had their own combs and manicure sets. There was practically little difference in the management and operation of the beauty parlor after the leases were entered into, except that perhaps the operators had more freedom of movement. They received a percentage of the price of work done as they had in the past. All advertising was done by Iden in the name of the Iden Beauty Parlor. The operators were not named. The prices charged for work done was practically uniform. When charge accounts were made, Iden’s representative passed upon them, and if accepted, were assumed by Iden, and the operators paid whether the account was collected or not.”

It is evidenced that the lease plan was proposed by Iden to relieve himself of social security, workmen’s compensation, unemployment compensation, and minimum wage requirements and contributions that are prescribed under the various professions of the respective acts.

Among other things the court said, “any one who labors for another and is compensated by his employer for so doing is an employee and is in employment. The court found that Iden had not established either: 1. That the operator was free from control or direction over the performance of such services, both under his contract of service and in fact. 2. That his operator’s services were “outside the usual course of business for which such service is performed” or that his operators were “customarily engaged in independently established trade, occupation, profession or business.” The effect of this decision was to declare that one cannot by subterfuge evade the requirements of the law for the protection of “employees” or “employment.”

The facts in the instant case are entirely different. The defendant maintained no control over the lessees nor over their customers appointments, prices nor money taken in, neither did she control their hours of working. She set no time for opening nor closing. Each lessee kept her own books and records and furnished her own supplies. The rule in the Iden case does not apply. Here there is no evidence of an attempt to resort to a subterfuge.

2. What is the effect of the State Cosmetology Law, §§1082-1 to 1083-1 inclusive, GC, and §§4713.01 to 4713.99, inclusive It. C. The State Cosmetology Law provides that beauty parlors shall be in charge of and immediately under the supervision of a licensed managing cosmetologist. A manager or manufacturing cosmetologist is defined as a person who has or has had direct supervision over “operators.” The act further defines an operator as a person practicing cosmetology and is not a manager.

It is the claim of plaintiff that inasmuch as it is against public policy as set forth in the statute for a mere operator to work alone that those “operators” who leased from the defendant were necessarily employees and that even those individuals who had manager’s licenses not having obtained a shop license could only be employees. It is plaintiff’s contention that since the individuals who were operating under a lease arrangement with the defendant had not complied with the State Cosmetology Law by obtaining a shop license and complying with the provisions thereof they were necessarily employees.

With this contention the court does not agree. The mere fact that the lessee violated the provisions of the State Cosmetology Law did not make the employees, either in law or in fact. While it would appear that there had been some laxity on the part of the Enforcement Division under the Cosmetology Law in supervising this beauty shop there are ample provisions under the law for protecting the health of the public.

It is therefore the considered judgment of this court that the defendant was not an employer within the purview of the State Unemployment Compensation Act, that the decision in the Iden case does not apply nor do the provisions of the State Cosmetology Act justify any other decision than that the defendant is not liable under pleadings anq facts herein. Judgment is hereby rendered in favor of the defendant.


author: By MIDDLETON, J: DOYLE, J

text:
    STATE, Plaintiff-Appellee, v. SILBERBERG, Defendant-Appellant. STATE, Plaintiff-Appellee, v. SILBERBERG and EUCLID GREEN DEVELOPMENT COMPANY, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    Nos. 23445, 23446.
    Decided November 23, 1955.
    Frank T. Cullitan, County Pros., Fred Frey, Cleveland, for plaintiffappellee.
    Klein & Klein, Halle, Haber, Berick & McNulty, Cleveland, for defendants-appellants.
    (HUNSICKER, J, DOYLE, J, of the Ninth District, MIDDLETON, J, of the Third District, sitting by designation in the Eighth District.)
   OPINION

By MIDDLETON, J:

The two cases here on appeal were tried together and submitted to the court, a jury being waived. In Case No. 23446, both of the defendants were convicted on six counts; while in Case No. 23445, the Defendant Silberberg was convicted on two counts.

Except as to the names of the buyers, defendants and monthly payments, all indictments are identical.

Count No. 1 charged the Defendant Silberberg alone in one case and Silberberg and the Corporation in the other case,

“did knowingly, unlawfully and intentionally sell, cause to be sold, offer for sale and cause to be offered for sale to (buyer) a security, to-wit, a written instrument of a promissory nature which provides in substance that the said (Silberberg in the first case and the Euclid Green Development Company in the second) promises to deliver to (buyer) shares in a corporation to be formed, for a stated consideration of $________, which security was not then and there registered by description nor then and there registered by qualification in accordance with the provisions of §§8624-1 to 8624-24 GC (§§1707.01 to 1707.45 R. C.), inclusive, and which security was not then and there registered or exempted under Ohio law.”

Count No. 2 is the same except the last paragraph which reads:

“which said Hirsch M. Silberberg (or the corporation and Silberberg) hereinbefore mentioned was not then and there licensed to sell securities in accordance with the provisions of §§8624-1 to 8624-24 GC (§§1707.01 to 1707.45 R. C.), inclusive.”

In brief, the charge against the defendants as set out in the first count of the indictment is a violation of the Ohio Securities law in selling securities which had not been properly registered and were not exempt under the Ohio law.

The second count, in brief, charges the defendant with selling such securities without a dealer’s license.

The defendants were found guilty on all charges and sentence was imposed thereon. It is from this judgment that appeal is taken to this court.

The facts, as shown by the record, are not involved, nor is there any material dispute as to the facts.

The question presented which the court must decide is whether the contracts entered into between the defendants and the buyers are or are not securities required to be registered under the Securities Act of Ohio, or are they exempted from such registration.

The contracts upon which the indictments were based are in all material provisions the same. They contain the usual and customary provisions found in the standard land contract. In substance, they provide for the sale and conveyance of an undivided interest in real estate upon which have been constructed apartment buildings and grant the right to the use and occupancy of a definite unit or apartment in the building. Each contract contains a provision that upon the performance by the purchaser of the conditions to be performed by him,

“the seller shall well and truly make and deliver, or cause to be made and delivered, to said buyer on surrender of his duplicate contract, a good and sufficient warranty deed of the land aforesaid, subject to any mechanics’ lien or encumbrance caused by the act of buyer, subject to the conditions, restrictions and stipulations herein named — otherwise free from any and all encumbrance save taxes and assessments due and to become due which said buyer assumes and agrees to pay.”

In addition, the contracts contain the following provisions which it is claimed by the State constitute contracts for the sale of securities under the Ohio Securities Act:

“It is understood and agreed that the party of the first part shall incorporate a corporation at his own expense on or before December 31, 1956, capitalized at the sale price of said land and building thereon and to issue shares in said corporation in proportion to the value of the interest purchased by said party of the second part.

“It is understood and agreed that when said corporation has been duly formed, that the present owner will transfer by Warranty Deed with title guaranty at his own expense, all his right, title and interest, including the releasing of any dower right in said property to the said corporation; that taxes and assessments and insurance will be prorated as of the day of transfer to the corporation.

“It is further understood and agreed that' these shares of stock will be delivered to the party of the second part when the principal sum, deposit, payments and all and any other conditions of this contract have been fully complied with and payment of same has been made in full ”

Omitting the above quoted provisions, it is conceded these instruments would be simple land contracts, would not violate the Ohio Securities Act, and the charges made against the defendants would of necessity fail.

It is the claim of the State that the inclusion of these paragraphs stamps the contracts as securities and violates the law.

No hard and fast rule can be followed which will clearly divide transactions which constitute a sale of securities from those which are not. In arriving at a solution each separate transaction must be examined and subjected to certain accepted tests.

If the contracts entered into are bona fide contracts for the sale of real estate to be occupied by the buyer, they are not securities under the Securities Act. If, however, the purpose and intent is not to buy an interest in the land itself, but only to participate in a profit-sharing scheme involving the use of such real estate, it is a security even though it involves the sale of real estate. Form must be disregarded for substance.

“An ‘investment contract,’ as used in the Securities Act, means a contract, transaction, or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from efforts of promoter or a third party, it being immaterial whether shares in enterprise are evidenced by formal certificate or by nominal interests in physical assets employed in enterprise.” Securities and Exchange Commission v. W. J. Howey Company et al., 328 U. S. 293, syllabus 1.

“In applying acts of this general purpose, the courts have not been guided by the nature of the assets back of a particular document or offering. The test rather is what character of the instrument is given in commerce by the terms of the offer, the plan of distribution, and the economic inducements held out to the prospect. In the enforcement of an act such as this it is not inappropriate that promoters’ offerings be judged as being what they were represented to be.” Securities & Exchange Commission v. C. M. Joiner Corporation et al., 320 U. S. 344, at 352, 353.

In speaking of the so-called Blue Sky Law, the Supreme Court of Ohio, in the case of Groby v. State, 109 Oh St, 543, states:

“This legislation was enacted for the obvious purpose of guarding investors against fraudulent enterprises, to prevent sales of securities based only on schemes purely speculative in character, and to protect the public from swindling peddlers of worthless stocks in mere paper corporations.”

The evidence in these cases clearly shows the buyers were buying an interest in an apartment building for the sole purpose of occupying the same as a home. That is the clear intent and purpose, as gleaned from the contract. Neither the evidence of the parties involved nor the contract itself shows any plan or scheme to invest in a profit-sharing venture. The buyers were to take possession of and occupy the property described in the contracts. This they have done and were occupying the premises at the time of trial.

The purpose of an investment in a security is the hope of receiving' an income as a return on such investment. There is nothing revealed by the record in these cases that shows such intent or purpose. The provision in the contract for the formation of a corporation are incidental to the sale of an undivided interest in the real estate. The inclusion of these provisions for the formation of a corporation does not destroy the basic character of the instrument, nor invalidate the right of the purchaser as specifically set out in the contract, to demand a deed for his fractional part of the real estate upon payment of the purchase price. It is true the contract requires the seller to form a corporation, but does not require the buyer to subscribe to the stock or to surrender his deed to a fractional interest in exchange for the stock. The formation of the corporation is plainly a means for operating and maintaining the property as a whole as a cooperative venture. There is evidence in the record that a number of persons who held identical contracts in the same building have completed their payments and received deeds for their fractional interest. The purchasers were buying real estate and not shares in a. corporation, and being contracts for the sale of real estate are exempt from registration.

These instruments being contracts for the sale of real estate and exempt from registration, the defendants did not thereby violate the Securities Act of Ohio. The judgment of the lower court is reversed, and final judgment discharging the defendants is ordered.

HUNSICKER, J, concurs.

DOYLE, J

(Concurring in judgment):

I concur in the order rendering final judgment for the defendants. There is not, in my opinion, sufficient evidence as a matter of law to justify a conviction of violation of the “Securities” statutes of this state, §8624-1 et seq. GC (§1707.01 et seq. R. C.).


author: By BARTLETT', J.

text:
    HALLAM et, Plaintiffs, v. ALBERTINI, Defendant.
    Common Pleas Court, Franklin County.
    No. 190825.
    Decided November 9, 1954.
    Barbara Bridge, Columbus, for plaintiff.
    John F. Seidel, Columbus, for defendant.
   OPINION

By BARTLETT', J.

MOTION TO MAKE PETITION DEFINITE AND CERTAIN:

1. State whether contract oral or written. Overruled.

“A promise required to be in writing may be declared on generally in a petition. It is not necessary to allege in the petition that the contract was in writing.” 9 O. .Tur. Contracts, Sec. 366, p. 618.

“Generally speaking, whether it is to be established by a paper writing, or by oral testimony, is a matter of evidence, not a matter of pleading.” 31 O. Jur. Pleading, Sec. 83, p. 635.

2. State “exact terms” as to the length of tenure. Sustained, Petition too general in this respect.

“It is not every untrue statement, connected with a transaction, which will sustain an action for deceit, although it be shown to have induced the-plaintiff to act to his harm. A mere promise to do an act in the future is an illustration. A broken promise, although causing harm to the promisee, is not a tort. If it were, the distinction between breaches of contract and torts would dissappear.” Burdick’s Law of Torts (3rd Ed.), p. 419.

Burdick’s Law of Torts (3rd Ed.), p. 419. In any event, the false statement must be one of fact. To state merely that the promisor informed plaintiff that “the premises were and would continue to be available for such purposes,” is too general to distinguish whether it constitutes a statement of fact or merely an opinion or belief. Ibid. Sec. 445, p. 421.

“A representation may be so indefinite that the person to whom it is made has no right to rely upon it.” 19 O. Jur. Fraud and Deceit, Sec. Ill, p. 404; 23 Am. Dec. Fraud and Deceit, Sec. 156, p. 963.

6. Items of damage be detailed, such as “cost of moving, loss of business, profits and good will, due to change of location. Sustained. Expenses incurred as result of injury should be specially pleaded in tort action. 13 O. Jur. Damages, Sec. 162, p. 268, Sec. 157, p. 261.

“Loss of profits furnishes ground for recovery in action for damages for tort, where they are susceptible of accurate estimation,” etc. 13 O. Jur. Damages, See. 77, p. 159.

“Ordinarily, in an action for interruption of an established commercial business, anticipated profits of such business are considered too remote, uncertain, and speculative to permit a recovery for their loss.” etc. Ibid, Sec. 78, p. 160.

The party should plead the specific amount lost by virtue of the loss of use of the premises. Proper to consider profits, not as the measure of damages, but as a factor affecting the value of the use of the property. Newark Coal Co. v. Upson, 40 Oh St 17.

3. Separately state and number the causes of action. Sustained.

“In the broad sense of the term, a false representation is an essential element of fraud either as the basis of an action for damages or as a ground for rescission.” 23 Am. Jur. Fraud and Deceit, Sec. 22, p. 775.

“The granting of relief, through the remedies of rescission and cancellation, from the consequences of such inequitable conduct as is not cognizable as fraud at common law, and which is usually called constructive, as distinguished from actual, fraud, is one of the original heads of equity jurisdiction.”

Such as “unconscionable advantage.” 6 O. Jur. Cancellation of Instruments, Sec. 3, p. 492.

In the instant case, plaintiff asks judgment for damages, and also rescission of the contract for the purchase of the shoe repair equipment and the return of $1300.00 consideration therefor. It is conceivable that on hearing the evidence at the trial, the Court might order rescission and return of the $1300.00 on the basis that it was “unconscionable” to retain such money, and yet that this did not afford proper basis for damages otherwise. The two actions should be separated, and it would be to plaintiff’s benefit to do so.

4. To strike out of the petition the words, “desiring to establish a beer and wine carry-out store,” etc., overruled.

5. To strike from the words “plaintiffs entered into possession of such premises,” etc., overruled.

The words objected to in items 4 and 5 are merely matters of inducement by way of an explanatory averment to give the Court an intelligent understanding of the facts forming the subject of the controversy which is always proper, and is in no sense prejudicial to the adverse party. 31 O. Jur. Pleading, Sec. 56, p. 593.

The Court, however, reserves any ruling as to “spice cake” mentioned in the briefs of both counsel for plaintiffs and defendant, with the suggestion that after the instant case has been disposed of and forgotten, counsel for plaintiff should bake the cake and invite counsel for defendant and the Court over as guests when she serves the cake.

Entry accordingly with exceptions by counsel for defendant and plaintiff.


author: By THE COURT:

text:
    LOWER, Plaintiff-Appellee, v. EHRHART et, Defendants-Appellants.
    Ohio Appeals, Second District, Greene County.
    No. 546.
    Decided October 30, 1954.

      Schlafman & Elliott, .Fairborn, for defendants-appellants.
    Peterson & Neatherton, Xenia, for plaintiff-appellee.
   OPINION

By THE COURT:

The appeal is from a money judgment for the plaintiff for the sum of $775.00 with interest and costs and for foreclosure of a Mechanic’s Lien. The cause was submitted to a judge without a jury. The action was predicated on an oral contract wherein it is claimed that plaintiff agreed to drill a well for defendants for $3.00 per foot. It is alleged that the well was drilled to a distance of 268 feet, but that plaintiff is only claiming a judgment of $3.00 per foot, for 250 feet, with interest.

The defendant answering admits they entered into a contract with plaintiff to drill a well upon their land, upon the express guarantee by plaintiff that he could and would locate water and that the payment of $3.00 per foot was expressly conditioned upon the guarantee. That the contract further provided that plaintiff would drill only to a depth of 100 feet and that if water had not been located at this depth, he would cease operations; that in violation of his contract he continued to drill to a depth over 268 feet without locating water. There is a denial of any indebtedness to the plaintiff and singular the other allegations contained in the amended petition. The parties went to trial on the amended petition and answer.

There is no transcript of testimony but the judgment entry of the court makes findings of fact and conclusions of law from which we can determine the essential facts necessary to consider the error assigned, namely, that the court erred in holding that the burden was upon the defendants

“to prove the terms of the contract as they claimed them to be by a preponderance of the evidence and thereby granting judgment in this cause to Edward H. Lower, for the reason that said defendants had failed to prove their defense by a preponderance of the evidence.”

The appeal is noted as on questions of law and fact but as the action proceeded primarily on the issue of money due plaintiff, the appeal should proceed as on questions of law and as the assignment of error relates entirely to a question of law, its determination in this court would be the same on either type of appeal. We consider and determine the appeal as upon questions of law only.

The material part of the judgment entry recites:

“The court further finds that the defendant having claimed that the agreement was that the well was only to be dug to a depth of one hundred feet and that it was to produce water or else he was not to pay anything, the burden of proof would be upon the defendant to show those facts; that the defendant testified to the facts as he claimed them; the plaintiff denied them and there was no other evidence; that it was one man’s word against the other; that, therefore in the opinion of the court, the defendant has failed to prove his defense by a preponderance of the evidence and that the plaintiff should prevail.”

There is no finding that the plaintiff had established his claim as set up in the petition and it reasonably appears that the court found against the defendant because he had not maintained his theory of the contract. The court erred in its interpretation as to the burden of proof.

The burden was at all times upon the plaintiff to prove the contract as alleged by him and, notwithstanding the defense asserted, the burden did not shift. The cases cited by appellant support this proposition. J. A. Wigmore Company v. Chapman, 113 Oh St 682, 150 N. E. 752; List and Sons Company v. Chase, 80 Oh St 42, 88 N. E. 120; Findlay Brothers Company v. Eiser, 17 O. C. C. N. S., 406, 42, O. C. C., 206; Montanari v. Haworth, 108 Oh St 8.

The judgment will be reversed and cause remanded for a new trial.

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


author: By CECIL, J.

text:
    DAYTON (City), Plaintiff-Appellee, v. CAVERLEE, Jr., Defendant-Appellant.
    Common Pleas Court, Montgomery County.
    No. 102003.
    Decided June 14, 1950.

      Herbert S. Beane, Law Director, Maurice A. Russell, Pros., William P. Keane, Asst. Pros., Dayton, for plaintiff.
    Charles H. Boesch, Dayton, for defendant.
   OPINION

By CECIL, J.

This case is pending in this court on appeal from the Criminal Division of the Municipal Court of Dayton. In that court, the defendant-appellant was found guilty of violation of Section 307 of the Code of General Ordinances of the City of Dayton. That Section reads as follows, so far as is applicable to this case:

“No person shall operate a vehicle, * * * without due regard for the safety and rights of pedestrians and drivers and occupants of all other vehicles, * * * and so as to endanger the life, limb or property of any person while in the lawful use of the streets or highways.”

The affidavit containing the charge specifies that on or about the 31st day of January, 1948, in the City of Dayton and in the County of Montgomery, Ralph E. Caverlee, Jr. unlawfully operated a motor vehicle, to-wit: An Oldsmobile Sedan on Ernst Avenue a public thoroughfare within said city in that he operated the same without due regard for the safety and rights of pedestrians and drivers and occupants of all other vehicles, and so far as to endanger the life, limb or property of persons in the lawful use of the said public thoroughfare; in the following particulars, to-wit: while operating the said motor vehicle, eastwardly on Ernst Avenue struck one Wm. K. Smith, 2 Magnolia Drive, Englewood, Ohio, who was pushing his Ford Coupe, which was being steered by Cathy Willingham, 255 N. Main Street, Apartment No. 72, eastwardly on Ernst Avenue opposite premises No. 57 contrary to Section 307 of the Code of General Ordinances of said City and that said defendant is guilty of the facts charged.

An examination of the record, in this case, discloses that there is no judgment entry; that is, there is no entry by which the defendant was found guilty and sentenced. The Municipal Court of the City of Dayton is a court of record and the Criminal Division of that court is likewise a court of record. A court of record speaks only through its journal entries. If there is no entry, then the court speaketh not. We would remand this case back to the Criminal Division of the Municipal Court of Dayton if it were not for the fact that, upon the merits' of the case, we conclude ’that the judgment of conviction should be reversed.

In the first place, we raise the query as to whether or not the Affidavit charges an offense. Aside from the language of the Ordinance, there is only one ultimate fact alleged and that is that Ralph E. Caverlee, Jr. “struck one, Wm. K. Smith, who was pushing his Ford Coupe on Ernst Avenue.” We pass this question and come to the second proposition which is that the City has failed to prove the defendant guilty beyond a reasonable doubt under the charge as above stated.

The testimony shows that William K. Smith was pushing his automobile eastwardly on Ernst Avenue at about 12:30 A. M. on the morning of the 31st of January, 1948. It appeared that his battery was dead and that with his girl, Cathy Willingham, in the car to steer, Mr. Smith was pushing the car down-grade on Ernst Avenue. The streets were icey and slippery. The defendant, Ralph E. Caverlee, Jr., drove his car eastwardly on Ernst Avenue and into the rear of Mr. Smith’s car catching Mr. Smith between the two cars and injuring him severely. Mr. Smith did not know of the presence of the defendant until he was struck. No one saw this accident happen except the defendant himself. No one can explain it except the defendant. Aside from the defendant’s testimony, the inescapable inference would be, from the physical facts, that the defendant drove his car into and against Mr. Smith and his car. Aside from the inference that can be drawn from the physical facts, the only testimony in the case of the prosecution, at all explanatory of what happened, is in the testimony of Officer Kavy in which he says that the defendant said “he told me he was driving east on Ernst and all of a sudden he seen a car in front of him and when he put on his brakes he couldn’t stop and hit this man who was evidently pushing. He wasn’t too sure if the man was pushing or how he got there. He just surmised it. He didn’t see the car until he was up on top of it.”

Section 307 of the General Ordinances of the City of Dayton is an enactment by the City of §8307-20 GC. By this statute, the common law rule of ordinary care is enacted into a criminal statute. The statute contains no specific requirements. If this statute is loosely construed, we have the anomalous situation of it being easier to convict a person of a crime for being negligent than it is to recover from him in a civil action for negligence. In a civil action for negligence, the defendant has a right to set up the contributory negligence of the plaintiff. In a criminal action, such as we have before us, it makes no difference how negligent the prosecuting witness is, if the defendant was at all negligent, he is guilty of a crime.

We are of the opinion that this statute ought to be used very sparingly and not as a “catch-all” for every conceivable kind of traffic accident. It is our opinion that it was never the intention of the Legislature to make a person guilty of a crime for simple negligence without the essential element of criminal intent being involved. It seems to us that this statute contemplates the operation of an automobile so as to amount to a reckless disregard of consequences — an indifferent feeling or attitude such as would make one intend to do the things which were the natural and probable consequences of his indifference or reckless conduct. We may read into this statute and ordinance our feelings of how they should be interpreted rather than what was intended by the Legislature when it enacted the statute.

Our conclusion in reversing this case is reasoned as follows: Granting that simple negligence is a crime under the ordinance and under the statute, the prosecution makes a prima facie case of guilt by merely showing that the defendant ran into the prosecuting witness from the rear. This prima facie case may be rebutted and is subject to explanations by the defendant or anyone else who may have witnessed the accident. The defendant’s explanation is found on page thirty-one of the transcript in which he says: “I was on Ernst and the streets were very icy and the street lights threw a glare on the ice and I proceeded down past Parkland Avenue and suddenly saw a car in front of me and didn’t see anyone pushing it at the time because when I did get closer I did see Mr. Smith. He was kind of crouched over the rear wheel of his car.” And, on page thirty-two, the defendant says: “Well, I was coming down Ernst Avenue there and I saw it after I passed the street light on Parkland Avenue. The car was at that time about, I would say, fifty or sixty feet away at least.” The defendant says that he was about thirty feet away from the car when he realized that someone was pushing it. And, also, on page thirty-two,' the defendant says: “I tried to stop and slow down my car and I just touched the brakes and it felt like the car took off. It started sliding right away and I flashed my lights and honked my horn when I could see Mr. Smith and they made no effort to get out of the way and then the car went out of control. The street was just one mass of ice all the way through.”

This is a complete explanation to the prima facie case made by the prosecution. We are of the opinion that, as a matter of law, the defendant could not be guilty under such a state of facts; and we further conclude that a finding of guilty made upon such a state of facts is manifestly against the weight of the evidence and that under such evidence the prosecution manifestly fails to prove the defendant guilty beyond a reasonable doubt.

There are inferences and some evidence in this case that the defendant’s brakes were not in proper condition. It is our conclusion that the question of whether or not the defendant’s brakes were good or bad is not an issue in this case. Sec. 6307-92 GC makes it a criminal offense to not have brakes that meet certain requirements. If the defendant’s brakes did not meet the requirements of this statute, then he should have been prosecuted for a violation of such statute. Sec. 6307-20 GC and Section 307 of the General Ordinance of the City of Dayton makes the failure to use ordinary care, under certain circumstances, a criminal offense. While the language of the statute and ordinance is general, the offense is specific. This specific offense is to operate a motor vehicle “without due regard' for the safety and rights of pedestrians, etc.” as applied to the situations mentioned in the statute and ordinance. This ordinance is not a cloak to cover other specific offenses made crimes by the statutes or ordinances.

In our judgment, it is not proper to make a specific charge of violating Section 307 of the General Ordinance of the City of Dayton in general language and prove it by showing that the defendant violated specific sections of the Code of Ordinances or Statutes which are made crimes thereunder.

The order of the Criminal Division of the Municipal Court of the City of Dayton, finding the defendant guilty, will be reversed and the case remanded to said court.


text:
    BURGER, d. b. a. CLUB AMBASSADOR, Appellant, v. BOARD OF LIQUOR CONTROL et, Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 5295.
    Decided September 21, 1955.

      Roger Chacksfield, Cincinnati, Nelson Lancione, Columbus, for appellant.
    Hon. C. William O’Neill, Atty. Geni., Kiehner Johnson, Asst. Atty. Geni., Columbus, for appellees.
   OPINION

By THE COURT.

This is an appeal on questions of law from a judgment of the Common Pleas Court affirming an order of the Board of Liquor Control revoking six permits of appellant. One error is assigned, namely, that the Common Pleas Court erred in holding that the order of the Board of Liquor Control was supported by reliable, probative and substantial evidence.

There were two charges against the permit holder identical in form qxcept as to date, namely, that on:

- “January 7 and January 8, 1954 and prior thereto you and/or your agent or employee did knowingly and wilfully allow in and on the permit premises, immoral and indecedent conduct, to wit, the loitering and soliciting of prostitutes — in violation of the provisions of the Liquor Control Act and. the regulations of the Board of Liquor Control.”

The Department and the Board found both charges to be established but did not differentiate whether the acts complained of were knowingly and wilfully allowed by permittee or his agent, the bartender.

There is an abundance of evidence that the bartender who was in full charge of permittee’s business when he was absent had full knowledge of the presence of the two prostitutes in the saloon and of the two men who were soliciting for them and that the bartender also participated in the solicitation. There -is some testimony that the permittee had specific notice and knowledge of what was transpiring and circumstantial evidence that he must have known. The proof of knowledge of the permittee is not especially convincing and he denies it vigorously. We cannot say upon what theory the Department and the Board made their determination that the charges had been substantiated and we cannot invade their province of weighing and evaluating the testimony.

The principal contention of appellant is that inasmuch as it appears that the bartender was a party to the arrangement with the prostitutes and shared in the income of one of them, his interest was adverse to that of his principal and it is clear that he would not communicate his knowledge of the acts complained of to his principal; therefore, the principal may not be held to have known of the acts. Citing 2 O. Jur., 2d, 241.

Because of the state of the proof and the general finding of the Board the question principally urged is not determinative of the appeal.

Courts certainly would view with caution the application of the adverse interest principle of agency to the relation between a permittee and his bartender in applying the statutes and the rules of the Department as to the conduct of the business of trafficking in intoxicating liquors. If the rule of imputed knowledge of the agent to his principal is to be abrogated in all instances where a bartender in full charge of the business commits or permits act, forbidden by statute or rule, which are beneficial to the bartender and adverse to the interest of the principal, the function and purpose of the bodies charged with the enforcement of the Liquor Act will be seriously hampered. However, we •express no opinion as to the application of the rule where the factual development would clearly require it.

The judgment will be affirmed.

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


author: By SKEEL, • J:

text:
    COLONIAL INSURANCE COMPANY, Plaintiff-Appellee, v. GRAW et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23451.
    Decided October 20, 1955.

      Rager, Forrester & Schaaf, Cleveland, for plaintiff-appellee.
    Stage & Butler, Cleveland, Baker, McKenzie, Hightower and Brainard, for defendants-appellants.
   OPINION

By SKEEL, • J:

This appeal comes to this Court on questions of law from a judgment of the common pleas court of Cuyahoga County, declaring the rights of the plaintiff and defendant under a contract between the plaintiff and the defendant, E A. Graw, dated November 1st, 1950. The plaintiff is a Mutual Protective Association, organized and doing business under the laws of Ohio, with its principal place of business now located in Cleveland.

In 1947, the defendant, Napier, contacted the plaintiff, then known as the Accident and Health Association of Toledo, with a view of assisting its progress. The undoubted purpose of giving help to the plaintiff was to ultimately secure an exclusive sales agency agreement with Colonial Insurance Company. There is some evidence that the defendant gave some financial help during 1947 and 1948 and, in fact, did release two of his employees, Edward A. Graw and David A. Davis, from their work with other Napier insurance enterprises in Chicago, to help build up the insurance business of the plaintiff. Both Davis and Graw at different times thereafter became full-time employees of the plaintiff, Davis, at first employed as its Secretary-Treasurer, and now as its President, and Graw, its Sales Manager and Head of the Claims Department.

The evidence shows that prior to November 1st, 1950, Napier, Davis and Graw talked over securing an agency agreement with the plaintiff but the idea was postponed because there was a general feeling between them that the time had not yet arrived to start such a venture and also neither Napier nor Graw had the funds to finance such an agency.

Either with or without the knowledge of Napier (Napier categorically denying such knowledge), a contract was negotiated between the Colonial Insurance Company and Graw under the name of E. A. Graw Agency, whereby the Agency was authorized and granted full supervision of the company’s sales organization and the solicitation of business in territories to be mutually agreed upon. It was provided that the agency was to pay all salaries, commissions, rents of sales offices, advertising and other expenses incurred in the acquisition of business. The Agency was to receive as compensation for insurance written (1) the policy fee (2) the first month’s premium (3) 40% of the first year’s premiums (4) 30% of renewal premiums so long as a policy written by the Agency remains current, even though the agency contract be cancelled or otherwise terminated as provided in the contract (5) the Agency was to receive an additional 10% when the application for a policy was accompanied with the company’s share of an annual premium, and 5% additional where such application is accompanied with the company’s share of a semi-annual premium and (6) the Agency was to receive a service fee of 2% of the net premiums received by the company for services to policy holders, collecting premiums, giving information, reinstating policies, assisting in claims adjustment and any other services rendered. The agreement provided that it could be terminated by either party upon ninety days written notice. The record discloses the minutes of the meeting of the Board of Directors, held November 17, 1950, at which time the agency contract received Board approval. Whether this meeting of the Board was a regular meeting or a special meeting is not stated nor does the record show that notice of the meeting was given or waived. In all events, the name of the agency was used in soliciting new business after November 1st, 1950 until the latter part of 1952. There is some suggestion in the record that the expenditures of the plaintiff for new business were exceeding the percentage of income for new business allowed by by-laws of the Company and the Agency was a means devised to assume these excessive obligations or expenditures. One thing is clear from the record, and this is, with the exception of a twenty-five hundred dollar investment put into the agency by Graw, the only capital used to operate the business of the Agency was derived from loans or advances from the plaintiff made in violation of §3919.01 R. C., and the percentage of premiums on new business claimed by the Agency under the agreement. Graw, a salaried employee, in charge of sales and claims of the plaintiff, continued as a salaried employee without change in his duties after the agency agreement was signed. An agency account was carried on the company books which showed a continuous deficit of considerable amount during the years 1951 and 1952, at one time reaching a total of $37,500.00 which deficit continued after the use of the agency was discontinued in October of 1952.

After October of 1952, Graw continued to act as Sales Manager and in charge of claims for the' plaintiff in the same manner as he had, both before and during the agency’s operation, the expenses involved in carrying on his work being paid out of the funds of the Company almost in the identical manner as when solicitations for new business were made through the name of the agency.

In July 1952, defendant Napier and Graw entered into a partnership agreement to take over the business of the E. A. Graw Agency. On the same day the partnership agreement was executed, a supplemental agreement was signed which recited that Graw had paid into the Graw Agency $14,007.00 and was liable to two banks in the sum of $5,000.00 from which a part of the money advanced had been secured. This agreement provided that Graw was to be reimbursed this amount at the rate of $2,000.00 per month out of agency income before Napier could share in the profits of the partnership. To what extent thereafter Napier benefited by the agency income is not disclosed but on October 2nd, 1953, by written agreement, the partnership was dissolved and the parties contracted to divide the income from renewal premiums claimed to be due the Agency from Colonial Insurance Company after certain debts of the agency were liquidated. This is the agreement by which a portion of renewal premiums were assigned to Napier and forms the basis of his counter-claim in this action.

The agreement is indeed an unusual instrument which attempted to settle for all time claims and counter-claims of the parties arising and resulting from many years of business relationships. It is also the basis for the counter-claim set up by Joseph A. Thiel against Napier after he became a new party defendant. By the agreement, Napier agreed to pay out of funds received from Colonial, attorney fees contracted by Graw. Thiel, as Graw’s Attorney, claims there is due him by reason of such promise the sum of $3500.00.

On October 16th, 1953, Graw notified Colonial of the terms of the assignment to Napier and the assignment was accepted by Davis as President of the Company. The Colonial, from the date of acceptance of the assignment, distributed renewal commissions that accrued on business written by the agency as provided by the assignment until January of 1954. During this period, Napier received a sum in excess of $8,000.00.

On October 15, 1954, after this action had been filed, Graw then being a party defendant, entered into an agreement with Colonial which after reciting the agency contract of October 1st, 1950, and the assignment of part of the renewal commission to Napier and the allegations of the petition of Colonial seeking to have the Agency contract declared a nullity and requiring Graw to account for commissions received under the contract, provided for the discharge of Colonial from any and all liability thereafter to either Graw or the Agency from paying commissions or renewal commissions on insurance written by the Agency or any other claims growing out of the agency agreement. This contract also provides that Colonial released any and all claims including any obligation to account that it might have against Graw for premiums received. It was the purpose of this agreement to settle all claims alleged by one against the other in this lawsuit and also to settle all differences between the parties of any kind or nature whatsoever. This contract further provides;

“3. It is understood by the parties that GRAW, by these presents, and particularly by virtue of the releases contained in paragraph 1, does release only his claimed interest under the alleged contract referred to and not any interest to said alleged- contract and commissions and renewal commissions purportedly payable thereunder which he has assigned, transferred or set over prior to the date of these presents, particularly any assignment or transfer of interest which he may have made to said L. O. NAPIER.

“4. If GRAW is now, or in the future becomes, entitled to any part of the interest heretofore assigned to L. O. NAPIER by reason of L. O. NAPIER’S breach of contract or for any other reason, GRAW will, and by these presents does release the COMPANY from any claims or demands therefor.”

The Commissioner of Insurance on January 25, 1954 directed by letter that Colonial cancel the GRAW Agency contract for the reason that it was “illegal,” the letter citing as authority for such claim and demand. State, ex rel. National Mutual Ins. Co. v. Conn, Supt. of Ins., 115 Oh St 607. Paragraph 3 of the syllabus provides as follows:

“3. The payment by a mutual insurance company of excessive and exhorbitant salaries to an officer or agent is an unsound practice and a wrong upon the policy holders and members of such company, and it is the right and the duty of the superintendent of insurance to require salaries and compensations of officers and agents to be reasonable, and it is further the right of such superintendent of insurance to require restitution of excessive and exorbitant amounts so paid.”

Thereupon, Colonial ceased to pay any further renewal commissions under the terms of the assignment from Graw to Napier above set forth, and this action was filed seeking a declaratory judgment as to the rights of the parties under the agency agreement, the assignment to Napier, the settlement between Graw and Colonial and the conduct of the parties under these agreements.

- The third amended petition and defendant Napier’s answer and cross-petition filed thereto and the cross-petition of Thiel, seeking judgment against Napier for attorney fees due him from Graw claiming Napier, as part consideration for the assignment agreement of October 3, 1953, agreed to pay such fees out of money received through such assignment, set forth the issues upon which the case was tried. The third amended petition in substance claims that the alleged agency agreement of November 1st, 1950 was:

a) Illegal, not having been approved by the Board of Directors.

b) Was a sham and a fraud on the policy holders because in its operation it was financed entirely by the funds of the company and was so intended by the parties.

c) Such agency was illusory in character and upon instructions of the Insurance Department of Ohio in October 1952, the use of the agency was abandoned and all insurance thereafter solicited was carried forward in the name of Colonial.

d) That because the way the contract was performed, being financed entirely by plaintiff’s funds, there was a total failure of consideration. '

e) That the whole scheme whereby a sham and illusory agency was created was the result of a conspiracy between Graw and Napier.

f) That because Napier breached the terms of the so-called assignment agreement of October 2nd, 1953, he has lost all right provided for therein.

The answer of defendant Napier denied the claims of the plaintiff and by cross-petition seeks accounting and judgment under the assignment agreement.

Upon trial to the court, no demand being made for a jury, the court found that the agency contract, under which defendant Napier claims as assignee, was legally created but illegally performed and therefore unenforceáble and void ab initio and that neither the plaintiff nor Napier acquired any rights thereunder. The court denied plaintiff’s claim for accounting for renewal commissions and defendant’s counter-claim for payment of renewal commissions under the assignment. The court also granted new defendant, Thiel’s cross-petition and entered judgment in his favor against Napier for $3500.00

To the judgment thus entered, this appeal has been taken by the defendant, Napier, claiming the following errors:

“1. The Court erred in the admission of evidence and testimony.

“2. The Court erred in the exclusion of evidence and testimony.

“3. The Court erred in that the judgment of the Court below is contrary to the evidence.

“4. The Court erred in that the judgment of the Court below is not sustained by the evidence.

“5. The Court erred in that the judgment of the Court below is against the weight of the evidence.

“6. The Court erred in that the Court below did not permit to the Defendant-Appellant, L. O. Napier, a trial by jury.

“7. The Court erred in that the judgment of the Court below is based upon issues not raised by the pleadings, upon which no evidence was presented to the Court and which was not before the Court.

“8. The Court erred in that the Court below gave no opportunity to the Defendant-Appellant, L. O. Napier, to present to the Court evidence or argument upon the basis upon which the judgment of the Court below was made.

“9. Other errors apparent upon the face of the record.”

The relationship between Davis, Graw and Napier is an important factor in determining the issues in this case. Napier had been the employer of both Davis and Graw for a long period of time. He had assumed to control their destinies: and by promises of reward or threats of economic destruction, had controlled their activities in conducting the affairs of Colonial until the proxy fight in 1953. Davis, in fact, continued in the employ of Napier or one of his Chicago insurance enterprises, that is, he worked in a dual capacity almost two years after becoming secretary and treasurer of Colonial. The agency agreement had been negotiated almost two years before he, Davis, became a full-time employee in carrying out his official duties for Colonial. Davis came to Colonial only after getting a promise from Napier that he, Davis, would be permitted to operate the company without interference from Napier. This request was granted only because Napier’s interest in Colonial was to secure from it the exclusive right to sell its insurance protection.

With this background in mind, the circumstances surrounding the creation and operation of the agency agreement must be examined. Neither Napier nor Graw possessed funds sufficient to operate the agency as of the date of its creation. The defendant’s claim that Graw would put in the necessary funds at the beginning is not supported by the evidence which is that he said he could raise the necessary money but in fact did not do so. Both Napier and Davis testified to this fact. Before the contract, Graw, as a salaried employee, directed all sales of Colonial and the expenses were paid by Colonial. After the contract was entered into, this procedure was continued without change. Just what possible benefit could be derived by Colonial from the manner in which the contract was performed is impossible of determination. Certainly, it did not receive the full benefit called for by the contract because outside capital was not contributed to its selling program, with the possible exception of the claimed twenty-five hundred dollar investment by Graw.

The trial court found that the contract was void ab initio for illegality in performance by the loan of funds to the agency in violation of §3919.01 R. C. Whether this conclusion can be supported, we are not required to say, but there can be no question that there was a breach of the terms of the contract by the Graw agency resulting in substantial failure of consideration in that after Graw contracted to fully pay the cost of carrying on the agency while the true facts are that the greater part of the money actually used for that purpose was illegally taken out of the funds of Colonial, not only with the knowledge and active participation of Graw but with full knowledge of Napier.

In 9 O. Jur. 334, the first part of paragraph 101 provides:

“Want of consideration in law means and is a total lack of any valid consideration for the contract. Failure of consideration in law, is just what the plain meaning of the words conveys, that is to say, failure of consideration is the neglect, refusal and failure of one of the contracting parties to do, perform or furnish, after making and entering into the contract, the consideration in substance and in fact agreed upon.”

In order for a party to maintain an action for the benefits due him under a contract, he must be able to show substantial performance of his own promises. Brick Co. v. Machinery Co., 89 Oh St 365. 12 Amer. Juris, page 927, in dealing with the subject of partial failure of consideration, it says in paragraph 360:

“It does not follow in every case of mutual and dependent promises that upon a failure of one party to perform his promise the other party will be exonerated or excused from performing his promise. Before partial failure of performance of one party will excuse the other from performing his contract or give him a right of rescission, the act failed to be performed must go to the root of the contract.”

Certainly the failure to furnish the necessary capital called for in the agency agreement, or perhaps that which would constitute with greater clarity a partial and substantial failure of consideration of such agency agreement, not only to breach the promise to furnish the necessary capital but in addition, to attempt to overcome such breach by illegally taking the necessary capital from the promisor, certainly such breach would go to the “root of the contract” and would constitute a sufficient basis'for a cancellation or rescission of the agency agreement.

The plaintiff corporation, under the facts and relationship of the parties in this action, cannot be estopped from claiming the right of cancellation or rescission of the agency contract (renewal commission provisions of which the defendant Napier is attempting to enforce) because its officers continued to perform the provision of such agreement with full knowledge that the agency was in serious default in financing its operations and where because of such default, the company for a time advanced funds to continue its operation, the reason for permitting such cancellation or rescission being that the company was without legal right to expend its money to sustain the operation of the ageficy. See Vol. 1, Restatement of the Law of Contracts, Section 274, page 399.

In Corpus Juris Secundum, Vol. 19, page 483, sub-section b., under paragraph 1011:

“To estop the corporation to deny authority or acts of persons assuming to act for it, there must have been some act or conduct on its part, amounting to a representation designed to injure another who, in ignorance of the truth and of his rights, relied on it and was misled to his injury.”

Napier was conversant with all of the circumstances of the operations and performance of the agency agreement, including the failure of Graw to provide the financing as called for by the agreement. In fact, he failed to keep his promise to assist in providing the necessary money to operate the agency after January 1951. Under all the facts, the defendant Napier, cannot now claim that the plaintiff is estopped from denying further liability under the agency agreement after part performance with full knowledge of the agency’s default.

We must conclude, therefore, that the plaintiff acted within its legal rights in rescinding its promise to pay renewal commissions on the discontinued E. A. Graw Agency Agreement under Graw’s assignment of such right to the defendant Napier.

The other claims of error alleged by defendant Napier are overruled.

Just what evidence the introduction or rejection of which is claimed to be prejudicial has not been called to our attention. We need not further consider the claim of insufficient evidence or the issues as presented by the pleadings. These questions have been fully considered. We also hold that the defendant, having failed to demand a jury and proceeding to trial to the court without objection, cannot now claim the failure to afford him a jury trial as error.

From a full and complete consideration of this record, without holding that the contract was void ab initio, we affirm the judgment of the trial court for the reasons above stated.

Exceptions noted. Order see journal.

KOVACHY, PJ, HURD, J, concur.


author: Per CURIAM.

text:
    LOUNDY, Plaintiff-Appellee, v. McSHANE, Defendant-Appellant.
    Ohio Appeals, Seventh District, Columbiana County.
    No. 719.
    Decided November 29, 1954.
    Tobin & Tobin, East Liverpool, for plaintiff-appellee.
    Harry Brokaw, East Liverpool, for defendant-appellant.
   OPINION

Per CURIAM.

In an action brought in the Common Pleas Court of Columbiana County by Max Loundy against Ray McShane, defendant, that court appointed a receiver for the assets of Ray McShane operating a liquor establishment under a permit.

Subsequently an order was issued by the Common Pleas Court to the receiver to sell all of the property comprising the business of McShane. Sale was had and confirmed. There is no property right in a liquor license.

In confirming the sale of all the assets of that business the court directed the receiver to transfer all licenses to the purchaser upon obtaining permission and consent of the Ohio' Liquor Control Board. There never was an attempted sale of the permits.

No motion has ever been filed to set aside the sale of any property ordered by the court. McShane apparently retained in his possession the permit identification cards that had formerly been delivered to him by the Department of Liquor Control. These identification cards he refused to turn over to the receiver. Whereupon the receiver filed his motion for an order of the court requiring McShane to turn over to him the permit identification cards which McShane had in his possession.

The defendant countered with the following motion:—

“Now comes the defendant, Ray McShane, and moves the court to rescind the order of sale, sale and confirmation of sale in the above caption, so far as the liquor permits are concerned and to order turned over to the defendant said liquor permits. * * (Emphasis supplied.)"

It is apparent that there has never been a sale of the liquor permits or the identification cards by the receiver under any order of court.

It necessarily follows that the court of common pleas properly overruled McShane’s motion to set aside the sale of the liquor permits, no such sale having been made.

A motion has been filed by the receiver to dismiss the appeal taken from the order of the common pleas court refusing to set aside the sale of the liquor permits.

Since no sale was had of such there is no order to appeal from, and the motion of the receiver to dismiss the appeal must be and is sustained.

GRIFFITH, PJ, PHILLIPS and NICHOLS, JJ, concur.


author: By FESS, J.

text:
    CHURCH BUDGET ENVELOPE CO. et, Appellants, v. CORNELL, Admr. BUREAU OF UNEMPLOYMENT COMPENSATION, Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5229.
    Decided October 11, 1955.

      Frank J. Collopy, Columbus, for appellants.
    Hon. C. William O’Neill, Atty. Geni., John W. Hardwick, Asst. Atty. Geni., Columbus, for appellees.
    (FESS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By FESS, J.

Appeal on questions of law from a judgment of the Common Pleas Court finding that the decision of the Administrator of the Ohio Bureau of Compensation is supported by reliable, probative and substantial evidence and is in accordance with law, and affirming the order of such Administrator.

Prior to December 3, 1948, two partnerships were engaged in business composed of different individuals. The Church Budget Envelope Co., referred to herein as partnership “A,” was organized in 1917 and engaged in the printing and sale of church collection envelopes. The Budget Press, referred to herein as partnership “B,” was organized in 1937 or 1938 and engaged in the production and sale of religious calendars. The calendar business had been previously operated by “A.” On December 3, 1948, by reason of the death of one of the common partners, two new partnerships were created composed of common members but with unequal shares. The partnership agreements are evidenced by separate instruments in writing.

Separate records and accounts of the operation, sales, employment and expenses of the two partnerships have been kept and maintained since their organization. “B” pays “A” rent for space occupied by the former in A’s premises. Division of expense for power, heat and light has been made on the basis of horsepower requirements of machinery and the number of persons employed. Separate bank accounts are maintained and purchases of supplies are made in the names of the two different companies.

Although not disclosed by the record it may be assumed that each of the partnerships filed returns and otherwise complied with the Unemployment Compensation Act after its passage. After the organization of the two new partnerships with members in common in December, 1948, each partnership was given a separate employer account number by the Bureau and each had separate accounts. But on May 7, 1953, the two partnerships were advised by the Bureau that the accounts had been combined and that in the future they would be required to report as a single employer.

. Determination of this appeal requires construction of the provisions of the Unemployment Compensation Act.

“Sec. 1345-1-b-OL) (§4141.01 R. C.) states: '“Employer” means any individual or type of organization including any partnership, association, trust, estate, joint stock company, insurance company, or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee, or the successor thereof, or the legal representative of a deceased person who subsequent to December 31, 1936, had in employment three or more individuals at any one time within a calendar year; * * * All individuals performing services for an employer of any person in this state, who maintains two or more establishments within this state, shall be deemed to be employed by a single employer for the purpose of the unemployment compensation act.’

“Sec; 1345-4-(c)-(l)-A states: ‘The Administrator shall maintain a separate account for each employer and shall credit his account with all the contributions which he has paid on his own behalf.’ * * *”

It is apparent that the statute recognizes a partnership as a “type of organization” as an “employer.” All individuals performing services for any partnership (employer) in Ohio, who maintains two or more establishments within the state, are deemed to be employed by a single employer.

But does the statute contemplate that a partnership be regarded as an entity for the purpose of the administration of the Act? It has been held that the doctrine of partnership entity, in the sense that a partnership is an ideal artificial person or being distinct from the individuals comprising it, and in which the identity of the individuals is merged and lost, does not maintain in Ohio. DuPont de Nemours Powder Co. v. Jones Bros. 200 Fed. 638.

“The members of a partnership do not form a collective whole, distinct from the individuals composing it; nor are they collectively endowed with any capacity of acquirifig rights or incurring obligations. The rights and liabilities of a partnership are the rights and liabilities of the partners. 1 Lind. Part., 5. It is not a creation in which the identity of the individual members is merged and lost, in seeking to enforce against them the obligations' of the firm.

“A partnership is not, in our judgment, a legal entity, having, as such, a domicile or residence separate and distinct from that of the individuals who constitute it.” Byers v. Schlupe, 51 Oh St 300, 38 N. E. 117.

On the other hand, an eminent jurist has said:

“A partnership is a quasi legal entity. It owns property and has liabilities as such. Its creditors have a right to the payment of their claims from the partnership assets in preference to individual creditors, and have in equity a lien on the assets of the firm, that may be worked out through the partners.” Minshall, J., in Andres v. Morgan, 62 Oh St 236, 56 N. E. 875.

See also United States Ptg. & Lith. Co. v. Crites, 15 Oh Ap 63.

The so-called entity doctrine is also recognized in Ohio in matters of procedure. 30 O. Jur. pp. 988, 989. For example §2307.24 R. C. (§1260 GC; §5011 R. S.) provides that a partnership may sue or be sued by its name without alleging or proving the names of its members. Sec. 5701.01 R. C. defines the word “person” as used in Title 57 of the Code as including firms, companies, associations and corporations. Sec. 5711.05 R. C. provides that the return of taxable property of a partnership shall be made by a partner.

The Workmen’s Compensation Act defines an employer as every person, firm, and private corporation, etc. Sec. 4123.01 R. C.

In Penwell v. McMullen, 72 Oh Ap 180, 184, the court says:

“While the liability of partners, under the Workmen’s Compensation Act, is based on statute, upon reasoning, it would appear to be the same as upon contract, subjecting them only to being sued jointly. This being the case, a claim filed against an individual under the Workmen’s Compensation Act can not be based on any liability that might be imposed upon a partnership of which the individual is a member, unless the claim is made jointly against such individual and the other member or members of such partnership.

“The separate claims filed by the plaintiff with the Industrial Commission against Lawrence McMullen and Eva McMullen severally and not jointly therefore could be predicated only upon liability imposed by the act upon them in their separate individual capacities and not upon any liability which might be imposed upon them by reason of their membership in a partnership.”

The term “Motor Transportation Company” includes every corporation, company, association, joint stock association, person, firm, or copartnership, etc. Sec. 4921.02 R. C. Under the Motor Vehicle Act “owner includes any person, firm or corporation,” etc.

Sec. 1345-4 (c) (4) (F) GC also deals with the closing of an employer’s business solely because of the entrance of one or more of the owners, officers, partners, or the majority stockholders into the armed services.

It thus becomes apparent that the statutes of Ohio recognize a firm or partnership as something different than a person or individual. Sec. 1345-1 et seq, GC, is also procedural in character in so far as compliance with its provisions is concerned.

It has been held that the Uniform Partnership Act does not make a legal partnership an independent juristic entity, and whatever recognition is given therein to the entity theory is solely for procedural or conveyancing purposes. 68 C. J. S. 498. With respect to the right to take and convey title to real property as provided by that Act, the partnership may. be regarded as a legal entity. 68 C. J. S. 498.

In Canada Dry Bottling Co. v. Utah Board of Review, 223 Pac. 2d, 586, 22 A. L. R. 2d, 664, the Utah Supreme Court had under consideration one partnership which operated simultaneously three bowling alleys and a bottling works. In applying a provision similar to the second sentence, of §1345-l-b-(l), GC, supra, it held that notwithstanding the fact that the partnership operated four separate enterprises it was a single employing unit. See also Surgical Supply Center, Inc., v. Industrial Commission of Utah, 223 Pac. 2d, 593.

In the instant case we have two separate and distinct partnerships with common members operating separate enterprises. In Michigan Employment Security Com. v. Crane, 334 Mich. 411, 54 N. W. 2d 616, the court held that where two individuals became partners in an automobile sales and service agency and also became partners in a tractor implement sales and service business and each business was operated in physically separate premises, and separate and distinct books of account were kept for each, and they maintained separate bank accounts, and operated under separate franchises from different manufacturers and distributors, and employed separate personnel, the two partners did not constitute a single “employment unit” for the purpose of- determining their experience record and contribution rate under the Unemployment Security Act. It is true that in Michigan a partnership is regarded as a distinct legal entity separate from the individuals composing it (Thurston v. Detroit Asphalt & Paving Co., 226 Mich. 505, 198 N. W. 345; Chisholm v. Chisholm Const. Co. 298 Mich. 25, 298 N. W. 390; Lobato v. Paulino, 304 Mich. 668, 8 N. W. 2d 873; Michigan Employment Sec. Co. v. Crane, supra), but the Supreme Court of Michigan was construing a provision of its Compensation Act having substantially the same phraseology as the provision of the Ohio Act before us in the instant case. Whether or not the entity doctrine be extant in Ohio, the statute here to be construed refers to a partnership as a definite category of employer. If the entity theory is to be disregarded in construing the Unemployment Act, it could likewise be ignored in the construction of §2307.24 R. C. relating to suits, and the provisions of the Uniform Partnership Act with respect to real property, as well as other statutes in which a partnership is referred to in connection with individuals, associations and corporations.

It is therefore concluded that the appellants herein do not constitute a single employment unit under the Unemployment Compensation Act, and that the finding of the Administrator was unlawful.

The judgment of the Common Pleas Court is reversed and the cause is remanded to the Bureau of Unemployment Compensation for further proceedings in accordance with the judgment of this Court.

MILLER, PJ, HORNBECK, J, concur.

      . In the decision of the Administrator it is stated that the separation of the two concerns into separate accounts forced the Bureau to pay out benefits to employees of B over a two year period in excess of $1476.66 over and above the amount of its contributions which it paid at the maximum rate of 2.7%. On the other hand A with a merit rate of 1.1% built up a reserve.