text:
    DAYTON (City), Plaintiff-Appellee, v. WINTON, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2416.
    Decided May 7, 1957.
    Herbert S. Beane, Law Director, William P. Keane, Pros., H. Donald Hawkins, Asst. Pros., Dayton, for plaintiff-appellee.
    Louis C. Capelle, Cincinnati, for defendant-appellant.
   OPINION

By WISEMAN, J:

This is an appeal on questions of law from a conviction in the Municipal Court of Dayton wherein the defendant was charged with the illegal sale of intoxicating liquor, to-wit: a bottle of gin.

■ The evidence warranted the conclusion of the trial court that the defendant, who presented no evidence in defense, did not possess a permit from the Department of Liquor Control. The defendant sold to the prosecuting witness a bottle which the State claims contains gin. At the time of the trial the alleged bottle of gin was introduced into evidence with the seal unbroken. The purchaser testified that he requested of defendant a bottle of gin, and that the bottle containing gin was sold to him by the defendant. The label on the bottle, among other things, states: “Seagram’s Ancient Bottle Golden Distilled Dry Gin — Extra Dry — Distilled and Bottled by George E. Seagram and Sons, Inc., Lawrenceburg, Indiana.” The bottle was sealed with the Federal Revenue Stamp and also bears the stamp of the Ohio Department of Liquor Control. The defendant contends that the evidence was not sufficient to warrant a conviction, claiming that there was no showing as to the contents of the bottle. We cannot agree. In State v. Scruggs, 60 Abs 431, 101 N. E. (2d) 909, the syllabus is as follows:

“Where the state in a prosecution for the illegal sale of intoxicating liquor and the keeping of a place where intoxicating liquor is sold introduced into evidence a bottle of wine, the label of which shows the contents to be 20% alcohol by volume, and also produces evidence that such wine was purchased from the defendant there is sufficient evidence to warrant a conviction.”

See also Napolet v. Board of Liquor Control, 67 Abs 108, 119 N. E. (2d) 93, where a conviction was upheld even though the bottle was not produced in evidence.

The affidavit did not state the name of the person to whom the sale was made. In State v. Ridgway, 73 Oh St 31, 76 N. E. 95, it was held that where the defendant was charged with a violation of the statutes which were commonly known as the Beal Law, it was necessary to a sufficient charge against the accused to state the name of the purchaser or allege that his name was unknown to the affiant. However, the court on page 42 draws a distinction between those cases where the defendant is charged with a sale without a license and cases where the defendant is charged with selling where no license could be issued in order to legalize the sale. Beginning at page 42 the court said:

“Counsel for the state in the able brief filed, cite a number of decisions made by the courts of other states, and we have examined them. There is one remark that is common to a majority of them, and is, that they are cases where sales of intoxicating liquors were made without a license or permit. The State v. Schweiter, 27 Kan., 499, and The State v. Moseli, 49 Kan., 142, are of this character, and so with many other cases cited in behalf of the plaintiff in error. A few are not of that character. They did not decide the question we have, for there is a distinction between the acts involved in those cases where sales were made without a license or permit, and the act of selling where no license or permit can be issued in order to legalize the sale. In the states where the decisions referred to were made, if the state or other proper authority granted a license for the sale of liquor, such license would be a defense, no matter as to the name of the purchaser. Selling without license constituted the gravamen of the offense, and the name of the person to whom sales were made was not material. Hence the difference in the decisions.” (Emphasis ours.)

In the case at bar the defendant was charged with making a sale without a license and under the principle of law laid down in the Ridgway case it would not be essential that the name of the purchaser be stated. Furthermore, no objection was interposed in the trial court. An objection to the insufficiency of the affidavit on this ground should be made before trial; otherwise it is deemed waived. Stewart v. State of Ohio, 2 C. C. N. S., 290, 15 O. C. D., 438. The defect, if any, being a matter of form, was waived by the defendant. This assignment of error is not well made.

It was not error for the court to consider the defendant’s previous record in determining his sentence.

At the time of the arrest, the officers found on the premises where the sale was made approximately 8 cases of beer, and a quantity of whiskey and gin, claimed by the defendant to have been 110 bottles, which was confiscated. The defendant filed a motion in the trial court for an order to suppress the evidence, and for the return to him of the beer and liquor, claiming that the officers took possession of said beer and liquor without a search warrant. The fact that the officers had no search warrant is not important. State v. Lindway, 131 Oh St 166, 2 N. E. (2d) 490. The motion was not directed to the bottle of gin which was sold, but only related to the beer, whiskey and gin confiscated on a second trip made by the officers to defendant’s residence, about 20 minutes after the sale. The evidence shows that the beer, whiskey and gin was taken from defendant’s residence, but the bottle of gin which was purchased was obtained by the defendant from some place in the rear yard. The beer,- whiskey and gin confiscated was not presented in evidence.

The ruling of the court on the motion to return the confiscated articles was not made the subject of an entry. We must look to the trans.cript of the record taken at the trial to determine the ruling of the court. The prosecution agreed to return to the defendant certain personal belongings and money, and stated that such articles and money had already been returned. The court at one place said: “Motion overruled.” We gather from the record that the motion was overruled with respect to the return of the beer and liquor, but the record is not clear on this point. No evidence was taken on the motion, and no factual statements were made by counsel on which to base a ruling. It does not appear whether the beer and liquor was lawfully or unlawfully acquired or possessed by the defendant; whether it was contraband does not appear. The bottle of gin which was the subject of sale bore the stamp of the Ohio Department of Liquor Control; whether the confiscated beer and liquor bore the State’s stamp does not appear. The evidence is insufficient to support the ruling of the trial court. The case is remanded for the purpose of a complete hearing on the motion for return of the beer and liquor.

Judgment affirmed as to conviction.

HORNBECK, PJ, CRAWFORD, J, concur.


source: Caselaw Access Project

author: By BRYANT, J.

license: Public Domain

text:
    DEELY, Estate of, In re.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5859.
    Decided October 28, 1958.
    Meredith, Meredith & Tait, Quentin M. Derryberry, of Counsel, Lima, Robert R. Shaw, Columbus, for appellant.
    Joseph L. Eisenberg, Ralph Shapiro, Columbus, for appellee-administrator.
   OPINION

By BRYANT, J.

The matters here under consideration had their origin in the Probate Court of Franklin County, Ohio. In that court Ralph Shapiro, appellee herein, was successor administrator of the estate of George H. Deely, deceased.

The principal, if not the only asset of the estate, appears to be one 1955 Elcar house trailer which had been appraised at $1,500. The City Loan & Savings Company, appellant herein, had a lien duly noted on the certificate of title on the said house trailer for $1,702.50 representing the unpaid balance due to said loan company.

The said administrator filed a petition with the Probate Court to sell said personal property, referred to the facts as herein above set forth, stated the property had not been specifically devised and said that the sale is needed in order to pay the cost of administration to pay debts. The petition then alleged that the said loan company had challenged the administrator’s right to sell the house trailer at any amount less than the balance due. The answer of the said City Loan and Savings Company consisted of a general denial and a cross-petition alleging the creation of the lien upon the house trailer on October 14, 1955 when the decedent and one Bonnie Osborne, in connection with the purchase of the said vehicle, signed a note for $1,858.50 in' favor of Modern Trailer Sales, which note was sold to said City Loan and Savings Company. It was further alleged in the cross-petition that at the same time the note was signed, and to secure payment thereon, a chattel mortgage was executed and delivered to Modern Trailer Sales and for valuable consideration sold and delivered to said City Loan and Savings Company. It was claimed that the lien of the mortgage was noted by the clerk issuing the certificate of title and still remains ■ unpaid and uncancelled and on which the balance due was $1,702.50. The said City Loan and Savings Company asked the court to protect its rights and if the property be sold that its claim be declared ahead of all others.

By a decision dated September 5, 1956 said Probate Court, while not approving the petition to sell at a private sale, did authorize public sale of the said property. This decision was journalized by an entry filed October 3, 1956 while on December 3, 1956 a further journal entry was filed approving and confirming the sale and ordering a certificate of title be issued to the purchaser free of any liens whatsoever.

On December 13, 1956 said administrator made application for an order of distribution of the funds reciting that he had received $1,400 for the said trailer and had collected a small additional amount for rent thereon. Said application listed various items of expense including auctioneer’s fee and advertising costs incident to the sale, probate court costs, fees for storing said trailer, cost of administration including administrator’s fee and attorney fees, fiduciary bond and appraiser’s fee together with funeral expenses and other debts including the lien of said City Loan and Savings Company and a debt on a used refrigerator. Said application was set for hearing and an agreed statement of facts was filed.

On October 29, 1957 the Probate Court handed down its decision ordering distribution of the funds and giving an order of priority as follows:

“1. Costs of sale of trailer, including auctioneer’s fee and advertising costs;
“2. Probate Court costs;
“3. Storage and custodial care of trailer, when approved as to amount;
“4. Costs of administration, including administrator’s, attorney’s and appraisers’ fees, and surety bond premium;
“5. Balance due to City Loan & Savings Company;
“6. Funeral expense not in excess of $350.00;
“7. Other debts.”

The said decision was spread upon the journal of the Probate Court by an entry filed November 12, 1957. This entry directed the administrator to take further steps to obtain the allowance of fees of the administrator and his attorney and storage charges for the trailer.

On November 22, 1957, the City Loan and Savings Company filed the following notice of appeal:

“Appellate, The City Loan and Savings Company, hereby gives notice of its appeal to the Court of Appeals of Franklin County, Ohio, on questions of law and fact from the judgment, decree and final order herein rendered on the 9th day of November, 1957.” (Emphasis added.)

Thereafter the administrator filed a motion to dismiss the appeal as an appeal on questions of law and fact and this court in an opinion rendered on February 11, 1958 sustained said motion, which decision was journalized by entry filed April 1, 1958. The decision and judgment held that the judgment appealed from was not one of those falling under the provisions of §2501.02 R. C., and therefore could not be retained as an appeal on questions of law and fact but was retained as an appeal on questions of law. Appellant was given thirty days to refile his assignment of errors and brief.

The original assignment of errors was filed apparently January 8, 1958 but was not refiled and we must assume that it has been abandoned. Instead, appellant on March 27, 1958 filed an assignment of errors which reads as follows:

“The City Loan and Savings Company, Appellant, for its Assignment of Error herein says that the judgment entered by the Probate Court of Franklin County, Ohio in the above entitled cause is erroneous and against the just rights of the Appellant in the following respects:
“1. In ordering sale of house-trailer over objections of Appellant when it was evident there was no equity in trailer.
“2. The Court erred in determining priority of payment of proceeds from sale of said trailer.
“3. The judgment is contrary to law.”

But it makes little difference whether one assignment of error or the other be considered for the reason that we are unable to find any order whatsoever fitting into the language set forth in the notice of appeal which in part is as follows:

“* * * the judgment, decree and final order herein rendered on the 9th day of November, 1957.”

If it be said the appellant seeks to review questions ■ relating to the sale of the personal property in question, we note that the journal entry authorizing such sale was filed October 3, 1956 and the time has long since run for an appeal on questions relating thereto. It would seem to be the position of appellant that the administrator never obtained title to the said house trailer, that the title thereto in legal contemplation was in the City Loan and Savings Company by virtue of the note, mortgage, and notation of the lien upon the certificate of title. If appellant’s contentions with respect thereto are correct, and on this we express no opinion whatsoever, the final order from which an appeal should have been taken was the October 3, 1956 entry, which authorized the sale.

It may be that the judgment entry of November 12, 1957 relating to the order of distribution is the order with which the appellant is dissatisfied. If so, the answer to that is simply that no appeal was taken from that order. It would appear, however, that the basic questions involved were those in the judgment entry of October 3, 1956.

Decided January 6, 1959.

It is therefore our opinion that the notice of appeal fails to describe any judgment, order or decree which is appealable or which in fact exists.

The assignment of errors therefore is not well taken and must be overruled at the costs of the appellant.

PETREE, PJ, MILLER, J, concur.

DEELY, Estate of, In re.

No. 5859.

OPINION

By BRYANT, J.

This matter comes on for consideration upon (a) a motion by the City Loan & Savings Company, appellant, herein called City Loan, to amend its notice of appeal filed on November 22, 1957 by changing the date of the final order appealed from to read November 12, 1957 instead of November 9, 1957 and (b) the application of City Loan for rehearing upon the decision of this court rendered on October 28, 1958. Ralph Shapiro, successor administrator of the estate of George Deely, deceased, is appellee.

We will first give our attention to the motion to amend the notice of appeal. This motion was filed November 6, 1958, nine days after the decision of this court that the notice of appeal failed to describe any final order which was appealable or which even existed and nearly one year after the time the notice of appeal was filed (November 22, 1957).

However, the Supreme Court of Ohio and the decisions of the various courts of appeals of Ohio have given a liberal construction to the statutes relating to notices of appeal and in many cases where no prejudice resulted to the appellee have permitted amendments to notices of appeal to conform to the facts in the interest of justice. See Capital Loan & Savings Co. v. Biery et al., 134 Oh St 333; In re Guardianship of Wisner, 148 Oh St 31; Richards v. Industrial Commission of Ohio, 163 Oh St 439; Perry v. Baskey, 158 Oh St 151 and Meyer v. Meyer, 153 Oh St 408.

We are unable to find, nor has it been pointed out to us, that allowing this amendment will be prejudicial to the estate. We conclude therefore that the motion should be sustained and the amendment permitted and it is so ordered.

The one question remaining relates to the application of City Loan for rehearing with respect to the opinion of this court rendered on October 28, 1958. The application for rehearing will be denied but in view of the amendment permitted with respect to the notice of appeal will be treated as an application for reconsideration and as such will be sustained to give effect to the amendment to the notice of appeal.

In the form in which it is amended the notice of appeal is from a final order of the probate court entered upon its journal on November 12, 1957 in which the probate court ordered and established priority in the distribution of funds arising from a public sale of house trailer upon which the City Loan had a lien. The probate court over the objection of City Loan ordered the funds distributed in the following order: (1) Costs of sale; (2) probate court costs; (3) storage charges on the trailer; (4) other administrative costs including fees for administrator, attorney and appraiser and bond premium and (5) balance to City Loan.

In our opinion of October 28, 1958 more detailed reference to the facts will be found and only sufficient reference to them to deal with the questions now before us will be made- here.

In its assignment of errors filed March 27, 1958, City Loan makes the following assignment of three errors by the probate court which in substance are as follows: (1) Erroneously ordered sale of house trailer. (2) Erroneously ordered priority of payment of the proceeds of the sale of the house trailer. (3) The judgment is contrary to law.

The first assignment of error relates to the order to sell the house trailer. Was the order to sell a part of the final order of November 12, 1957 from which this appeal was taken? We think not. Rather it appears to have been made about one year prior thereto.

The administrator on June 8, 1956 filed a petition to sell the house trailer and included therein a detailed statement of the claim and lien of City Loan, the balance due it and the various legal objections made by City Loan. Service was had upon City Loan and on June 22, 1956 City Loan filed its answer and cross-petition to which it attached a photostatic copy of its note and mortgage. The cross-petition was verified by the vice president of City Loan.

On September 7, 1956 the probate court made a decision upholding the right of the administrator to sell the house trader at public sale, which decision became a part of the journal of the probate court by entry filed October 3, 1956. The entry directed the administrator to make the sale and execute a certificate of title to the purchaser free and clear of the lien of City Loan. On December 3, 1956 following a report of the sale the probate court by journal entry confirmed the sale as being regular in all respects.

It has not been pointed out to us and we have been unable to find where there was any notice of appeal with respect to this action by the probate court.

The notice of appeal filed on November 22, 1957, in its amended form, refers only to the probate court order made on November 12, 1957. It would seem clear that no appeal was taken within the statutory period from the order of the probate court authorizing and directing the sale to be made.

In view of the fact that the order of the probate court made November 12, 1957 dealt primarily with the matter of priorities, assignments of errors two and three will be treated as one objection. The question it would seem is whether or not a preferred creditor or lien holder must be paid ahead of the usual expenses of administration and sale in the probate court. We believe the decision of the probate court was in accordance with law. In our opinion therefore the second and third assignments of error are not well taken and must be overruled.

For the reasons above set forth each of the assignments of error is hereby overruled and the judgment of the court below is affirmed at the costs of the appellant.

PETREE, PJ, MILLER, J, concur.


author: By THE COURT:

text:
    GREEN, Plaintiff-Appellee, v. SHOUGH et, Defendants-Appellants.
    Ohio Appeals, Second District, Fayette County.
    No. 313.
    Decided December 4, 1958.

      Junk & Junk, Washington C. H., for plaintiff-appellee.
    Otis B. Core, Washington C. H., for defendant, Gladys Shough, appellant.
   OPINION

By THE COURT:

This is an appeal from a judgment dismissing the cross-petition of defendant, Gladys Shough, after the court had sustained plaintiff’s demurrer thereto.

The action as instituted by plaintiff was in partition and against defendants, Cleveland W. Shough, Frank Shough and Walter S. Shough, and other named defendants.

It alleged that plaintiff was the owner of an undivided one-half interest in the property described in the petition; that the three defendants herein named were the owners of an undivided 1/10 interest therein and that certain -other named defendants had fractional interests therein which interests were set up.

Succeeding the filing of the petition, defendant, Cleveland W. Shough died. His surviving spouse, Gladys Shough, was named the executrix of his estate and she was then made a party-defendant, individually and as executrix. She filed a cross-petition.

Defendant Gladys Shough averred that the real estate described in the petition was ancestral property which was owned by James W. Green at the time of his death, December 27, 1912; that James W. Green and his spouse had no children but that he left Sarah Green (Lynch) surviving him and that she died on December 24, 1957. The cross-petition further averred that James W. Green upon his death was survived by two brothers, Grant and Walter Green and six legal representatives of a deceased sister.

It is further alleged that Grant Green, a brother of James W. Green, died January 27, 1950, testate, willing his entire estate to Cleveland W. Shough, whose estate defendant-appellant Gladys Shough represents. Defendant asserted that the interest of Cleveland W. Shough, her deceased husband, consisted of a 1/3 interest in the premises described in the petition by reason of the devise from Grant Green to Cleveland W. Shough together with a 1/15 interest, of which defendant asserted, she was the owner, less in proportion than the plaintiff alleged she owned, namely, a 1/10 interest. ;

The theory of plaintiff’s demurrer to the cross-petition of defendant, Gladys Shough was that by reason of §8573 GC, as effective in 1912, at the date of the death of James W. Green, his brother, Grant Green, took no interest in the property owned by James W. Green and therefore, could not devise any part thereof to Cleveland W. Shough.

Defendant Gladys Shough differs in the interpretation insisted upon by plaintiff and also cites §2131.04 R. C., that:

“Remainders, whether vested or contingent, executory interest, and other expectant estates are descendible, devisable and alienable in the same manner as estates in possession.”

Manifestly, if Grant Green succeeded to any estate mentioned by §2131.04 R. C., formerly §10512-4 GC, his devise to Cleveland W. Shough was effective. If no title to any of the real estate owned by James W. Green vested in said Grant Green, then, his will was of no effect because he had no property to devise.

A determination of the issue between the parties, then, resolves into a proper construction of §8573 GC, as it read in 1912, the date of the death of James W. Green. The section read:

“When a person dies intestate, having title or right to any real estate or inheritance in this state, which title came to such intestate by descent, devise, or deed of gift from an ancestor, such estate shall descend and pass in parcenary to his or her kindred in the following course:
“1. To the children of such intestate, or their legal representatives.
“2. If there are no children or their legal representatives living, the estate shall pass to and vest in the husband or wife relict of such intestate, during his or her natural life.
“3. If such intestate leave no husband or wife, relict of himself or herself, or at the death of such relict, the estate shall pass to and vest in the brothers and sisters of the intestate who are of the blbod of the ancestor from whom the estate came, or their legal representatives, whether such brothers and sisters be of the whole or half blood of the intestate.
“4........
“5........
“6.......”

We are of opinion that the emphasized portion of Paragraph 3 of the quoted section of the General Code compels the conclusion that the vesting of the estate therein defined did not occur until the death of such relict. In this case, upon the death of Sarah Grfeen (Lynch) which occurred on December 24, 1957, Grant Green, the brother of James Green having died on June 27, 1950, no part of the estate of James W. Green, the subject matter of the action in partition vested in him.

The cases cited by appellee are, as suggested by counsel for the appellant, mostly will cases, but they are pertinent because they recognize the well-established rule that the law favors the vesting of estates at the earliest possible moment but, that if there is a clearly expressed intention to postpone the vesting to some future time, such purpose must be given affect. The Ohio National Bank of Columbus, Trustee, v. Boone, 139 Oh St 361.

The intention of the controlling statute as we read it is to postpone the vesting of the prospective interest of Grant Green until the death of Sarah Green (Lynch) the relict of James W. Green.

We find no error assigned well made.

The judgment will be affirmed.

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


author: Per CURIAM.

text:
    TRAMMELL, Plaintiff-Appellee, v. MORGAN, Jr., Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3892.
    Decided October 17, 1957.
    H. B. Solimano, Dayton, John W. Powers, Youngstown, for defendant-appellant.
    Hammond & Hammond, Youngstown, for plaintiff-appellee.
   OPINION

Per CURIAM.

While defendant appealed on questions of law and fact he submitted the appeal on questions of law from a judgment of the Court of Probate in plaintiff’s action against defendant for declaratory judgment asking the court to determine the validity of a written contract dated April 11, 1955, entered into between plaintiff and Langston C. Morgan, Sr., defendant’s father as guardian for defendant, by the terms of which plaintiff agreed to manage defendant as a boxer until November 15, 1955: and also to determine the validity of a five year extension by endorsement on the contract dated October 9, 1955, entered into between plaintiff and L. C. Morgan, which endorsement provided as follows:—

“October 9, 1955
“I, Jack Trammell, and L. C. Morgan agree to continue this contract for 5 years after L. C. becomes 21 years old.
“I, Jack Trammell, the manager agree to purchase a home for L. C. suitable for his family, at a fair price to be paid out of L. C.’s earnings as a boxer.
Jack Trammell, Manager
L. C. Morgan, Boxer.”

The parties performed the terms, conditions and covenants of the original agreement, but no consideration for the endorsement dated October 9, 1955, was paid.

On November 17, 1955, defendant secured other contracts.

It was then the action we review was commenced in the Court of Probate.

The trial judge found:

“That L. C. Morgan, Jr., defendant herein, was born on November 15, 1933.
“That L. C. Morgan, Jr., Defendant, L. C. Morgan, Langston L. C. Morgan and L. C. Stokes are one and the same person. * * *.
“That L. C. Morgan, Sr., was appointed guardian of the person and estate of L. C. Morgan, Jr., on April 11, 1955.
“That L. C. Morgan, Sr., as guardian of L. C. Morgan, Jr., entered into a contract with Jack Trammell, plaintiff herein, for the exclusive and personal services of L. C. Morgan, Jr., as a boxer, on April 12, 1955, which contract is plaintiff’s Exhibit One and that Jack Trammell, plaintiff, and L. C. Morgan, Jr., defendant, each performed under the terms of said contract. * * *
“That on November 17, 1955 L. C. Morgan, Jr., defendant herein, entered into a contract with Theodore F. Ordanik for the exclusive and personal services of L. C. Morgan, Jr., as a boxer without the knowledge or consent of Jack Trammell, plaintiff herein, for a period of five years beginning November 17, 1955.
“That said contract, defendant’s Exhibit E, was assigned to Tom Tannes on April 10, 1956 by Theodore F. Ordanik with the consent of L. C. Morgan, Jr., defendant herein, and without the knowledge or consent of Jack Trammell, plaintiff herein. * * *.
“* * * that the plaintiff, Jack Trammell, had a reasonable time after October 9, 1955, to perform that part of the contract whereby he agreed to purchase a h*me for defendant, L. C. Morgan, Jr., under the conditions therein stated and that such reasonable time had not expired when L. C. Morgan, Jr., breached the contract by refusing to perform under it and by the execution of a new contract to Theodore F. Ordanik for the exclusive right to his services as a boxer as shown by defendant’s Exhibit E. * * *.
“* * * that plaintiff, Lloyd Trammell, a. k. a. Jack Trammell, has a valid and enforceable contract for the exclusive services of L. C. Morgan, Jr., defendant, as a boxer until November 15, 1959 under the terms and conditions embodied and contained in plaintiff’s Exhibit One and the writing on the reverse side of page two of said plaintiff’s Exhibit One.”

Defendant claims that the findings of the trial judge are manifestly against the weight of the evidence and contrary to law; that the judgment of the trial court is not sustained by sufficient evidence and is against the manifest weight thereof and contrary to law, in which claims we concur.

We have hereinabove said that the consideration for the so-called second contract had not been paid. The Probate Court held that plaintiff had a reasonable time to purchase the home provided for. We hold the provisions for such purchase are too indefinite for enforcement, and that the contract never became effective because the purchase of the home by plaintiff was a requirement precedent to the agreement becoming effective as a binding contract, no other consideration therefor appearing.

There being no enforceable consideration for such contract the trial court should have rendered final judgment declaring the same void and unenforceable, and this court coming now to render the judgment which the trial court should have rendered final judgment is entered for defendant.

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


author: By GUERNSEY, J. By YOUNGER, J.

text:
    DiNARDO, d. b. a. COLISEUM PALACE, Defendant-Appellant, v. BOARD OF LIQUOR CONTROL et, Plaintiff-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5884.
    Decided December 29, 1958.
    William Saxbe, Chester Hummell, for plaintiff-appellee.
    Herbert, Tuttle, Applegate & Britt, for defendant-appellant.
    (GRIFFITH, J, of the Seventh District, YOUNGER and GUERNSEY, JJ, of the Third District, sitting by designation in the Tenth District.)
   OPINION

By GUERNSEY, J.

In disposing of this appeal it is necessary to keep in mind the chronological order of the proceedings had prior to the appeal:

1. September 11, 1956. Hearing had before the Board of Liquor Control on the charge of keeping and possessing diluted liquor.

2. September 14, 1956. Appellant’s Class C-2, D-l and D-2 permits revoked by Board upon finding charge well taken.

3. September 21, 1956. Affidavit executed by Lora Beatrice Thomas, a former employee of appellant, as to her responsibility for diluting liquor, said affidavit being acknowledged by appellant’s brief to be in the possession of appellant and her counsel “prior to the hearing before the Court of Common Pleas, but after the hearing before the Board of Liquor Control.”

4. June 10, 1957. Hearing on appeal by Common Pleas Court.

5. August 29, 1957. Judgment of Common Pleas Court affirming order of Board of Liquor Control journalized.

6. September 9, 1957. Motion for rehearing by reason of newly discovered evidence filed based on affidavit of Lora Beatrice Thomas.

7. December 13, 1957. Judgment of Common Pleas Court denying motion for rehearing journalized. This is the judgment from which this appeal on questions of law was taken.

The only question which could therefore properly be before this Court is whether or not the Court of Common Pleas committed reversible error in overruling appellant’s motion for a rehearing by reason of newly discovered evidence. If the Common Pleas Court did not commit error in overruling appellant’s motion then the judgment of the Common Pleas Court affirming the judgment of the Board of Liquor Control would continue as a valid subsisting judgment. In the event that this Court'-should find that the Common Pleas Court erred in overruling said motion the most it could do would be to reverse the said ruling of the Common Pleas Court and order the Common Pleas Court to rehear the appeal and take into consideration the “new evidence” to which the motion pertained.

In neither event would this Court have jurdisdiction to order the Board of Liquor Control to rehear the matter considering such evidence.

There is no statutory provision for a rehearing, as such, of an appeal from an order of an administrative board. Such decisions as there are pertaining to the right for a rehearing hold that a rehearing in a court of review is not a matter of right but is a privilege which the court may grant in a proper case or may, in its discretion, deny in any case. Sec. 657, Appellate Review, 3 O. Jur. 2d, 605, and authorities therein cited.

In view of the fact that both the appellant and her counsel knew of the existence of the affidavit, and the evidence to which it pertained, more than eight months prior to the hearing of her appeal from the decision of the Board of Liquor Control in the Court of Common Pleas, and failed to request admission of such “newly discovered” or additional evidence at the hearing on such appeal, which under the provisions of §119.12 R. C., appellant had a right to do, we cannot conclude that the Court of Common Pleas abused its discretion and thereby committed reversible error in overruling appellant’s motion for a rehearing based on such evidence.

Nor could we arrive at a different conclusion, even were the motion for a rehearing to be considered as a motion for a. new trial, which with respect to newly discovered evidence does not differ greatly from a motion for rehearing either in principle or legal effect. In the case of Sheen v. Kubiac, 131 Oh St 52, the Supreme Court held in paragraph 3 of the syllabus, which holding still expresses the law of Ohio:

“To warrant the granting of a motion for a. new trial based on the ground of newly discovered evidence, it must be shown that (1), the new evidence must be such as will probably change the result if a new trial is granted, (2) it must have been discovered since the trial, (3) it must be such as could not in the exercise of due diligence have been discovered before the trial, (4) it must be material to the issues, (5) it must not be merely cumulative to former evidence, and (6) it must not merely impeach or contradict the former evidence.”

In the case of Domanski v. Woda, 132 Oh St 208, the Supreme Court held, among other things:

“1. New trials on the ground of newly discovered evidence are not favored by the courts.
“2. The granting or refusing of a new trial on the ground of newly discovered evidence rests largely within the sound discretion of the trial court, and when such discretion has riot been abused reviewing courts should not interfere.”

Tested by the foregoing principles of law it would appear that the trial court did not abuse its discretion and it is our opinion and judgment that the judgment appealed from should be affirmed.

GRIFFITH, PJ, concurs.

CONCURRING OPINION

By YOUNGER, J.

I concur in the judgment of affirmance for the reason that the affidavit in question does not meet the qualifications of newly discovered evidence, and the Common Pleas Court did not abuse its discretion in refusing a rehearing because of it.

However, although the judgment is technically correct, the result, in my opinion, is a gross injustice. Why the evidence contained in the affidavit was not introduced in the Common Pleas Court is not easily understood, except that it would be an indirect admission by the permit holder that her agent or employee had committed an illegal act for which the permit holder would have to take the responsibility. This would have been the wise course, as the Common Pleas Court could have remanded the case to the Board of Liquor Control for reconsideration upon the evidence which was not before it at its hearing on September 11th. This Court cannot remand, under the facts here present. We are limited only to affirming or reversing the court below upon the issue raised, which is whether or not an abuse of discretion arose in refusing to grant a rehearing on the grounds of newly discovered evidence which was known of months in advance of the hearing in that court. The result, unless the Board of Liquor Control changes the severe penalty imposed, is to ruin a business which the record shows to have been well conducted with no violations for a period of over thirteen years.


author: By THE COURT.

text:
    MAHER, Plaintiff, v. RHODES, Auditor, Defendant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6052.
    Decided December 9, 1958.
    James M. Maher, Columbus, in Propria Persona.
    William Saxbe, Atty. Geni., Hugh A. Sherer, Chief Counsel, Columbus, for defendant.
   OPINION

By THE COURT.

This is an original action in this court wherein the plaintiff is seeking to enjoin the defendant, who is Auditor of State, from paying any money or monies to one Herman H. David for his services as a member of the Board of Liquor Control for the alleged reason that he is not eligible to hold said office. The defendant has entered a demurrer to the petition for the reason that this court has no jurisdiction of the subject of the action.

The jurisdiction of this court is defined in Article IV, Section 6, Ohio Constitution, which gives the original jurisdiction only in the five extraordinary remedies enumerated therein, and which does not include the right of injunction.

The demurrer will be sustained and judgment rendered for the defendant for cost of suit.

PETREE, PJ, BRYANT and MILLER, JJ, concur.


author: By GRAHAM, J.

text:
    APPROPRIATION OF EASEMENTS FOR HIGHWAY PURPOSES OVER THE PROPERTY OF DUEBER REALTY INC. et al, on State Route No. 8, Section 11.17, Stark County, Ohio, In re: THORMYER, First Assistant Director of Highways, Acting as Director of Highways, Appellee, v. DUEBER REALTY, INC. et, Appellants.
    Common Pleas Court, Stark County.
    Nos. 99243, 99248.
    Decided April 3, 1958.
   OPINION

By GRAHAM, J.

In the within action to appropriate land Dueber Realty, Inc., the Cally-Wyl Co., and Loblaw, Inc., have each filed separate motions to strike the finding and resolution of the Director of Highways from the files.

The first item of the Dueber Realty, Inc., motion asserts the statement in the finding that the Director is unable to purchase the property is false. Cally-Wyl and Loblaw make the same charge.

Dueber Realty asserts that the description of the land set forth in the finding does not meet the requirements of the law. Cally-Wyl and Loblaw make the same charge.

Dueber asserts the plat attached to the finding is vague and insufficient. So do the other two.

Dueber, as do the others, claims the form of notice does not comply with the law.

Dueber and Loblaw claim the finding and notice do not comply with the requirements of the code.

All three parties claim that even if the statutes were fully complied with the statutes are so vague as to constitute a denial of due process of law.

Dueber, alone, claims that there is a defect in parties in that Park Theater Co., a lessee, is not made a party.

The Court, in discussing the claims of the various parties, will refer to the motion of Dueber Realty, Inc., as the claims in its motion are identical to the claims of the other two parties with the exception of Item 2 wherein only Loblaw joins and Item 7 in which neither of the other parties join.

Disposing first of Item 4 of the motion we are of the opinion that the question raised therein is moot. We make no finding as to whether the claim of insufficient notice is a valid one if it had been presented before appeal, but the parties, having appealed, we are of the opinion that they have waived any possible irregularity as to the sufficiency of the notice.

Although it would appear that amended §§5519.01 and .02 R. C., were hastily prepared, even to the extent that two statutes, each labelled §5519.02 R. C. (one the House Bill and the other the Senate version! appear in the code, we nevertheless find the law not to be so vague, as asserted in Item 6 of the motion, that, if the law was strictly followed, due process of law would be denied.

We deem the complaint set forth in Item 5 of the motion to be repetitious of the matter complained of in Items 2 and 3 of the motion.

In Item 7 of the motion it is claimed that there is a defect in parties in that Park Theatre Co., which, it is asserted, is a lessee, was not named in the Director’s Finding and was not served with summons. Allendorf v. Commissioners, 65 Oh Ap 149, was a case brought under §1201 GC (now §5519.01 R. C.), and we note the Supreme Court declined to order it certified. In that decision the Court held that a lessee is a necessary party and has a right to appeal and that the law requires that a lessee be served with summons and that a lessee has a right to appeal a finding of the Director. In the body of the opinion the Court said that the term “owner,” as employed in §5519.01 R. C., refers to all who have an interest.

If the Park Treatre Co., has a lease the Director should have so stated in his finding and it should have been served with summons. The law places a duty upon the Director to ascertain who the lessees of record are and include them as' parties in his finding and if he does not there is a fatal defect in the finding of the Director which cannot be corrected at a preliminary hearing, as the Director suggests in his brief.

However, there is ■ no evidence before this Court which shows the theatre to be a lessee on the lands to be taken. If it would develop through evidence at a trial of this case that the theatre has a lease we are of the opinion that the Court, on motion, would be required to dismiss the proceedings. There being nothing by way of evidence before this Court at this time to show the existence of such a lease we do not believe the Court can consider Item 7 as well taken. If there actually is such a lease it is the Director who should be concerned as to what will happen to this proceeding.

We believe Items 1, 2 and 3 of the motion to be interrelated and that they should be treated as one item. It is claimed that the finding and the plat attached thereto do not disclose to the owner just what land is being appropriated and therefore, since the owner does not know exactly what is being taken, there could not be a negotiation in which it could accept or refuse an offer from the Director and therefore that the Director cannot correctly assert that he “is unable to purchase” the property.

The law requires the Director, in his “finding” to set forth a “definite, accurate and detailed description of. the property — .” The question therefore arises as to whether the “finding” complies with the law in respect to the description.

At this point we observe that “it is well settled that statutes granting the power of eminent domain must be strictly pursued; and that all the prescribed conditions must be performed, — and when there is doubt as to whether the terms have been followed, the matter must be resolved in favor of the property owner. (19 O. Jur. 2nd, 417.)

In the “finding” before us the Director, instead of using a method of description of the land to be taken by metes and bounds, uses a method of description in which, although the lot number is mentioned, uses a system of station numbers, which although it may be of convenience to the Highway engineers, is not such a form of description as would appear in a deed.

Various texts state that the land description in an action in eminent domain should be as certain as that required by a deed and in 29 C. J. S., 1180 it is stated that it must be so exactly described as to be understood by an ordinary person who has no engineering knowledge.

We have read and reread the descriptions contained in the “finding” and we have compared such descriptions with the plat attached to the “finding,” as well as having endeavored to understand and comprehend from the plat alone, just what the Director intends to appropriate and we are unable to come to a determination as to just what part of Out Lot 215 is being taken.

In argument something was said that the stakes placed by the Highway authorities clearly outline the “take” but even if they do, which is disputed, that doesn't comply with the specific requirement of §5519.01 R. C.

Returning to the questions before us, i. e., the description as set forth in the “finding,” we find it to begin with the words “From the right and left of centerline.” We assume that is intended to mean from the right and left of the center line of the right of way which the Director is taking. But, we query, how is the owner to know where that point is? The “finding” does not fix the center line by metes and bounds from any existing monument or by metes and bounds from a fixed and known point. The description goes on to say that the land being taken begins “at a point on the east line of Dueber Ave. S. W., and also being the west line of said Out Lot 215 a distance of 58.5 feet to the right of Station 58.5 feet to the right of Station 54 plus 41; — .” Does that tell us where the point of beginning is? Furthermore how is the owner informed as to where Station 54 plus is located? The so-called description goes on in the same vein as does the second description. This Court is unable to determine from that information where the place of beginning is or the boundaries of the land being appropriated are and we. would not expect the owner to. It is our conclusion that the descriptions recited in the “finding” are not definite as required by the statute.

Although we find no Ohio decisions which are in point as to the subject matter we are considering in relation to the necessity of a definite description, the universal rule seems to be that, particularly where the statute requires an accurate and definite description, “insufficiency in the description of the land which it is sought to take renders the whole proceedings void” (Vol. 6, 3rd Ed., Nichols Eminent Domain, Page 129) unless the defect is cured by amendment, which move, in the case before us, the Director does not seek to take.

The owner seems to be quite serious in its contention that the statement in the “finding” that the Director is unable to purchase is not true. The owner, not being informed as to the exact area to be taken, as required by the statute, it follows that when the Director, in the “finding” states he has been unable to .purchase, makes an incorrect statement. Such statement, according to the authorities, presupposes that negotiations to purchase have been had and, if the owner is not informed as to what the Director wants to buy, there can be no negotiation to buy.

The requirement that the laws of eminent domain “must be strictly pursued” not having been complied with in this instance in so far as an accurate and definite description is concerned and since therefore the matter “must be resolved in favor of the property owner” we find the Director has not legally invoked the jurisdiction of this Court and therefore that the proceedings must be dismissed.

The same conclusion will be the ruling of the Court in Case No. 99248 — the Cally-Wyl case.


author: By PHILLIPS, J.

text:
    MARTINI, Plaintiff-Appellee, v. BALTES, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3941.
    Decided October 9, 1957.
    William Gemma, James Modarelli, Sr., Youngstown, for plaintiffappellee.
    Stephens & Stephens, Youngstown, for defendant-appellant.
   OPINION

By PHILLIPS, J.

A jury in the court of common pleas returned a verdict for the defendant in plaintiff’s action against him to recover damages for personal injuries. The trial judge sustained plaintiff’s motion for and granted him a new trial on the ground that the verdict of the jury was against the manifest weight of the evidence.

From this action of the trial judge defendant appealed to this court on questions of law contending that the trial judge abused his discretion “in granting plaintiff-appellee’s motion for new trial on the grounds that the verdict was against the weight of the evidence, aftet verdict and judgment had been rendered for defendant-appellant.”

Plaintiff alleged in his petition filed in the court of common pleas inter alia as follows:—

“Plaintiff for his cause of action says that at or about 11:00 A. M., on or about the 30th day of November, 1955, he was walking westerly on the northerly sidewalk of Mahoning Avenue towards the intersection of Portland Avenue and Mahoning Avenue, and says that as he walked onto an area upon the sidewalk where the driveway aforementioned exits onto the northerly portion of Mahoning Avenue (situated immediately east of 1720 Mahoning Avenue), defendant without looking negligently and carelessly backed an automobile which he was driving southerly on said driveway out onto said sidewalk at a speed of about fifteen to twenty miles per hour, and causing the rear portion of the automobile in which he was driving to strike the plaintiff’s right side and right leg causing said plaintiff to be thrown with great force in a southerly direction on the pavement of Mahoning Avenue where plaintiff’s body came to rest in a lying down position.”

Plaintiff further alleged tha't he is crippled for life.

Plaintiff charged defendant with negligence in driving an automobile backward upon a private driveway onto a public highway; in failing to yield the right of way to him; in failing to keep a lookout for plaintiff; in operating his automobile at a speed greater than reasonable and proper so that he could not avoid striking plaintiff; and in failing to keep the vehicle he was operating under control.

Defendant admitted that at the time alleged in plaintiff’s petition plaintiff was walking in a westerly direction on Mahoning Avenue and he was backing an automobile out of a driveway located at 1720 Mahoning Avenue, and generally denied each and every fact stated, averment made and allegation set forth in plaintiff’s petition.

After quoting evidence and the charge of the court at considerable length defendant argues:—

“Where the trial court, as in this case, after all the evidence had been submitted, expresses itself in terms such as ‘it is a question for the jury,’ ‘if he (plaintiff) is going to recover, he is going to recover,’ etc. it is clear that in the court’s mind there was a conflict of testimony and that there was testimony which, if believed by the jury, would support the claim of either the plaintiff or the defendant. Where a court has so expressed itself and the jury has returned a verdict and judgment has been entered on the verdict, the granting by the court of a party’s motion for a new trial on the basis that the verdict was against the weight of the evidence clearly shows an unreasonable and arbitrary attitude on the part of the court, which defendant-appellant contends is evident from a reading of the record.”

The syllabus in Steiner v. Custer, 137 Oh St 448, reads:—

“The granting of a motion for a new trial is not such a final order as may be reviewed on appeal, unless it clearly appears that the court granting such motion abused its discretion in so doing.
“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.’!

Finding no abuse of discretion on the part of the trial judge appellant’s appeal must be and is dismissed at his costs on authority of Steiner v. Custer, supra, as no abuse of discretion appears from the record and. therefore the granting of the motion for new trial is not a final appealable order.

NICHOLS, PJ, GRIFFITH, J, concur.


author: By LYBARGER, J.

text:
    OLENIK, Plaintiff, v. CALO, a Minor, Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 700705.
    Decided December 2, 1958.
    Austin T. Klein, Cleveland, for plaintiff.
    Jamison, Ulrich, Hope, Johnson & Burt, Cleveland, for defendant.
   OPINION

By LYBARGER, J.

On September 5, 1957, Robert P. Olenik, the plaintiff in this case, filed his petition seeking damages for an alleged tort by Salvatore Calo, a minor aged nineteen. Thereafter the Court appointed Leslie R. Ulrich as said minor’s guardian ad litem. On June 10, 1958, the plaintiff filed some seventeen interrogatories to be answered by the minor defendant. 'To these interrogatories the defendant by his guardian ad litem, demurs. The demurrer is directed first to all the interrogatories because the defendant is a minor and second, to interrogatories Nos. 2, 4, 5, 7, 10, 12 and 17 for the reason that they are vague and- indefinite, ask for the names of witnesses, or because they do not relate to any issue made up in the pleadings.

Since the interrogatories are filed separate and apart from the pleadings and since the plaintiff says he is filing them “in accordance with and pursuant to the statutes of Ohio,” the Court assumes that they are filed pursuant to §3317.07 R. C„ and are not pursuant to §2309.43 R. C., which requires that interrogatories be annexed to a pleading.

On December 19, 1952, this Court in a case where the facts and issues were very much the same sustained a demurrer such as that here sought and went on to hold, “a minor is not required or permitted to answer interrogatories since, as a defendant, he can only plead by and through his guardian ad litem.” (See Bonadonna v. Bainbridge, C. P. No. 639.762.)

Earlier in 1952 this Court had made a comprehensive study of the statute pertaining to interrogatories and made certain findings which, as will be demonstrated later, are pertinent to the holdings of the Court in this case. These findings were incorporated in an opinion as found m the case of Powers v. Ruelbach, 66 Abs 30, 49 O. O. 54 and are:

“1. Interrogatories attached to the pleadings of a party to an action by virtue of the provisions of §11348 GC (now §2309.43 R. C.), must be pertinent to the issues raised by such pleadings.
“2. The fact that information sought in interrogatories may be detrimental to the defendant by exposing his case or otherwise is not a sufficient reason for sustaining a demurrer to such interrogatories.
“3. ‘Pertinent’ as used in §11348 GC (now §2309.43 R. C.), means that questions asked in interrogatories must be relevant to the issues made in the pleadings.
“4. In determining the propriety of interrogatories the court determines whether the questions are pertinent to the issues raised by the pleadings whether such questions would be relevant if asked during the trial of the case and whether or not such questions are objectionable for any other reason.”

In 1953 the Legislature amended §2317.07 R. C., to include written interrogatories filed in the action. It should be noted that because' of this amendment there are now two statutes dealing with written interrogatories filed before trial. They are §§2309.43 and 2317.07 R. C. There are two immediate apparent differences between the requirements in §2309.43 R. C., and those in §2317.07 R. C. First, in §2309.43 R. C., the interrogatories must be filed annexed to a pleading while under §2317.07 R. C., they may be filed separate and apart. Second, under §2309.43 R. C., the only guide given the court to decide whether they are subject to demurrer is that they must be “pertinent to the issues made in the pleadings.” (For an understanding of what “pertinent” means see the syllabus in Powers v. Ruelbach quoted above). While §2317.07 R. C., says that interrogatories also must be “pertinent to previous pleadings of such party,” the statute also says that they examine the adverse party “as if under cross-examination” and apparently under the same evidentiary rules as pertain during the taking of a deposition.

It is readily apparent that although §2317.07 R. C., compliments §2309.43 R. C., it does not supplement it. Rather, the Legislature intended it to be used to elicit information from the adverse party without the expense, inconvenience and time ordinarily required in the taking of a deposition. It is obvious that the language “pertain to the previous pleadings” as found in §2317.07 R. C., was inserted not to restrict the use of interrogatories as a substitute for the taking of a deposition, but to limit their use to the issues made by the pleadings. Without some restrictive language the interrogatories might deal with irrelevant matters not involved in the litigation and about which the interrogator should have no right to inquire.

An attorney in preparing his case is always interested in inquiring into the facts and circumstances surrounding the case. The law by means of discovery proceedings assists him in this endeavor, but of necessity it also restricts him so that the rights given will not be abused. One of the necessary restrictions in discovery proceedings is that the capacity to be a witness and to testify must exist before the person can give evidence through discovery proceedings (see In re Renee, 159 Oh St 37 at page 41. In the instant case the claim made by the guardian ad litem is that he alone can file pleadings and that because the defendant is a minor he has no capacity to answer the interrogatories.

This Court believes that the decision in the Bonadonna Case, supra, was not correct in view of §2309.02 R. C., which states:

“The only pleadings in civil actions are:
(A) Petition;
(B) Demurrer to petition;
(C) Answer, which if it demands affirmative relief may be styled a cross petition;
(D) Demurrer to answer;
(E) Reply;
(F) Demurrer to reply.”

Further, it is clear from the statutes and from §2309.45 R. C., in particular, that “on the trial, such answers, so far as they contain competent testimony on the issues made, may be used by either party.” Thus answers to interrogatories are not pleadings, but in the same general class with depositions, and if proper may be used as testimony to prove or disprove a case on trial.

Does the fact that the defendant is a minor disqualify him from answering proper interrogatories? In the case of In Re Renee, supra, the Court held that “if one is disqualified to testify — disqualified to be a witness — it would logically follow that he is not one whose deposition can be taken.” This same reasoning must apply to the answering of interrogatories. The deposition of a minor over ten may be taken unless he is disqualified from testifying for other reasons, and a minor under ten years of age may testify on deposition if he is first found capable of testifying in compliance with the requirements of §2317.01 R. C., by “any judge who is a member of the particular court in which the cause is pending and wherein it will be tried,” State v. Wilson, 156 Oh St 525, 103 N. E. 2d 552, 46 O. O. 437, 30 A. L. R. 2d 763.

In applying the law above to the question here at hand it is apparent that a minor defendant may be compelled to testify before the trial by way of deposition. There is no reason why a minor should not also be able so to testify by way of interrogatory. If a question as to competency were to arise then a judge who is a member of the particular court in which the cause is pending and wherein it will be tried would first have to determine whether the minor, or for that matter any other witness whose competency was questioned, is competent to testify.

Since the minor in this case is nineteen years old and is competent to testify by way of deposition the court overrules the general demurrer to the interrogatories and finds that this minor must answer proper interrogatories.

The specific demurrer to interrogatories Nos. 2, 5, 10 and 17 is sustained and overruled as to interrogatories Nos. 4, 7 and 12.


author: Per CURIAM:

text:
    TOLLEY, Plaintiff-Appellant, v. ELWELL PARKER ELECTRIC COMPANY et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24596.
    Decided November 26, 1958.
    Frank C. Lyons, Leon Simmons, for plaintiff-appellant.
    Stage, Butler & Gruener, for defendants-appellees.
   OPINION

Per CURIAM:

In this case the plaintiff filed his petition containing three causes of action against the defendant. The first cause of action is for false arrest and imprisonment, the second is malicious prosecution and the third is slander.

The trial judge, upon motion, directed a verdict for defendants at the close of plaintiff’s case as to all three causes of action. In our opinion the record does not contain evidence sufficient to sustain the essential elements of an action for malicious prosecution nor is there evidence sufficient to sustain the essential elements of an action' for slander. For these reasons the judgment of the trial court should be affirmed as to the second and third causes of action.

As to the first cause of action, construing the evidence presented most favorably in behalf of. the plaintiff, as the trial court was obliged to do on the motion of the defendant for a directed verdict, we find that questions of fact were presented in the evidence upon which reasonable minds could reasonably reach different conclusions. Therefore, the motion of the defendants for a directed verdict on the first cause of action should have been overruled and the defendants required to proceed with their defense. *

For the foregoing reasons, the judgment is affirmed as to the rulings on the second and third causes of action and reversed as to the first cause of action as being contrary to law and the cause remanded to the Court of Common Pleas for further proceedings according to law.

SKEEL, PJ, HURD and KOVACHY, JJ, concur.


author: By BETTMAN, J.

text:
    FRED TUKE & SON, Plaintiff, v. BURKHARDT et, Defendants.
    Cincinnati Municipal Court.
    No. 688589.
    Decided December 29, 1958.
    M. Froome Barbour, for defendants.
    Alan R. Vogeler, for plaintiff.
   OPINION

By BETTMAN, J.

This case presents to the Court the following question: If a real estate agent, P (plaintiff), has a contract to sell real estate for D (defendant) and, with the cooperation of agent X procures from B (buyer) an offer to purchase which is accepted by D, does the fact that X also has a contract with B to sell another parcel of real estate belonging to B, which fact is not revealed to D, place P in a position of dual agency so as to bar his recovery of the agreed commission from D?

There can be no doubt that X, the cooperating broker, acts as agent for P and that P, therefore, would be charged with any action on X’s part and with the knowledge that X had a contract to sell other real estate belonging to B.

A long line of cases in Ohio, going back to the dictum in Bell v. McConnell, 37 Oh St 396 (1881), establishes the principle that no commission is payable to an agent where such agent represents both parties to a transaction, unless this fact is fully disclosed to the parties. This rule has been uniformly applied in cases where the agent represents both the buyer and seller of a parcel of real estate and in cases where the agent represents both parties to an exchange of real estate.

Capener v. Hogan, 40 Oh St 203 (1883); Cozine v. Goodman, 30 Abs 703 (1939); Carter v. Leininger, 49 Oh Ap 503, 3 O. O. 351, 18 Abs 588 (1935); Kalmowski v. Buczak, 4 Abs 298 (1926); Shear v. Hartman, 8 Abs 217 (1929); Bodamer v. Bliss, 7 Abs 643 (1929); Reef v. Nagle, 85 Oh Ap 323, 40 O. O. 213 (1949).

The logic behind this conclusion is set out in the Bell case as follows:

“In law, as in morals, it may be stated that, as a principle, no servant can serve two masters, for either he will hate the one and love the other, or else he will hold to the one and despise the other. Luke, 16, 13. Unless the principal contracts for less, the agent is bound to serve him with all his skill, judgment and discretion. The agent cannot divide this duty and give part to another. Therefore, by engaging with the second, he forfeits his right to compensation from the one who first employed him. By the second engagement, the agent, if he does not in fact disable himself from rendering to the first employer the full quantum of service contracted for, at least tempts himself not to do so.”

The sole case which has come to the attention of the Court in which the agent’s contract with the buyer was for the sale of a different parcel of real estate than that for which he seeks his commission is Lass v. Meinhart, 15 Abs 272 (1933). From the Appellate Court’s opinion, however, this fact situation is not unambiguous. The opinion does not discuss the facts nor differentiate the situation where the agent represents both parties in the same transaction from that in which he is agent for the buyer in a different transaction. This Court, therefore, does not feel that the Lass case is binding authority upon it and will proceed to consider the matter as of first instance.

At the start the Court should state that there is no evidence of any unfairness or unreasonableness in the contract negotiated. In any event this would not be an issue as the cases make clear that fairness is immaterial if a dual agency exists. Boiled down, the question is whether P places himself in a position where he is tempted not to render the full quantum of service contracted for.

It might be argued that by his contract with B, P places himself in a position where he might be tempted to please B rather than D, on the other hand, this would equally be true, perhaps even more true, if P did not have a contract with B and hoped to get one.

Secondly, might his contract with B tempt P to make undue haste in consumating the sale for P? It would appear that this too would be equally or more likely if P did not already have B under contract. Furthermore, it is to his client, P’s interest to consúmate the sale promptly.

Thirdly, it could be argued that P would be tempted to try to keep the price of D’s house down so that B would have to spend less for it and, therefore need to sell his own house for less, thus facilitating the consumation of the second transaction. It appears to the Court that this is a possible argument but essentially a theoretical one.

In the real estate field the sale price is ultimately set by the seller and although he expects his agent to get him the best price obtainable, he does not rely on the agent in determining at what price the property will be sold, unless he so states. We have no evidence in this case of any such relationship. Furthermore the real estate agent’s commission in this case, and in almost all ordinary real estate transactions, is a percentage of the sale price. It would consequently be in the agent’s interest to conclude both transactions for the maximum price possible. In the interest of earning a contingent commission a real estate agent must be in the nature of things be tempted by a desire to consúmate the transaction regardless of the price. This temptation is in no way aggravated by the relationships of the parties before us.

In considering the problem several other points should be borne in mind: First, in large real estate offices, and in situations such as we have here, where more than one office is involved, it is possible that the seller’s agent would not even know that someone else in his office or in the office of the sub-agent cooperating broker had a contract with the buyer. Secondly, the most likely place for a seller’s agent to find buyers for his client’s property would be among people whom his office knew were selling their own property. Finally, there might well be very valid reasons why the agent would not be free to reveal to his principal that he was representing the buyer in other transactions.

In sum, therefore, the Court has concluded that any temptation not to render full service to D in the situation presented is too theoretical and remote to be considered a factor. The relationship of the parties is consequently distinguishable from that in which the agent expects compensation from both parties for the same transaction. P is, therefore, not in a position of double agency and is entitled to recover the agreed commission from D. The Court is aware of the fact that the issue before it is not whether P should be disabled from representing B as well as D, but whether he is under a legal duty to make full disclosure to D of his relationship with B. Doubtless such disclosure would show scrupulosity on P’s part and should be considered desirable practice. The Court does not, however, for the reasons set out, consider it a legal duty.

An entry giving judgment for plaintiff as prayed for may accordingly be presented.


text:
    STATE, Plaintiff-Appellee, v. STUBBS, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24432.
    Decided October 1, 1958.
    John T. Corrigan, County Pros., Merle M. McCurdy, Asst. County Pros., for plaintiff-appellee.
    Bernard B. Direnfeld, William M. Greene, for defendant-appellant.
   OPINION

Per CURIAM:

In this case the defendant was indicted for and found guilty of murder in the second degree. The evidence presented by the defendant raised an issue as to manslaughter and the court charged on manslaughter as an included offense but instructed the jury erroneously upon the crime of manslaughter. Upon the jury’s request for further instructions, the court again instructed the jury erroneously and failed to distinguish correctly between murder in the second degree and manslaughter.

In answering the jury’s question, the court, after instructing on the elements of murder in the second degree, said:

“But in manslaughter, the elements of malice and purpose do not enter into that offense.”

The court had previously charged the jury, “ ‘Purposely’ means intent. That is the same as intentionally doing something. : .”

A similar definition was given by the trial court in the case of Erwin v. State, 29 Oh St 186 at page 191, 23 A. L. R. 731, and the Supreme Court in reversing the conviction stated:

“We can well see how the jury, under these instructions may have been led to convict the defendant of murder in the second degree, though guilty of manslaughter only, or even though not guilty of any crime whatever. It was plainly inferable, from the first instruction above stated, that the defendant’s crime was not manslaughter, if the killing were intentional. Such is not the law of manslaughter. If the killing be unlawful, but without malice, as upon a sudden quarrel, although intentional, the crime is nevertheless manslaughter only. It is true that the jury must have found the presence of malice as well as purpose to kill; but having first found the purpose to kill as we may suppose, they entered on the inquiry as to malice, under the influence of an instruction, that the defendant was guilty of murder or not guilty of any crime whatever; thus exposing the defendant to a moral influence against him, which should not have had lodgment in the minds of the jurors.”

The second error assigned is that the court did not charge correctly as to reasonable doubt. On this subject the court said as follows:

“Now, under the law, it will be your duty to look to all the evidence introduced on both sides of the case, and if it satisfies you beyond a reasonable doubt of the defendant’s guilt, as charged in this indictment, you must so find. But if, on the contrary, you are not satisfied beyond a reasonable doubt, but find only strong probabilities of his guilt, your only safe course is to acquit.” (Emphasis added.)

The same question was presented in the case of State v. Theisen, 91 Oh Ap 489, at page 495, 108 N. E. 2d 854. (Motion to certify record overruled June 18, 1952.)

In that case the Court of Appeals for the Sixth District disapproved of the charge:

“. . if you are not so fully satisfied but find there are only strong probabilities of guilt, your only safe course is to acquit.” (Emphasis added.)

While the court may further explain the meaning of reasonable doubt as defined by the statute, such explanation must be consistent with the statute. ' Since the legislature has defined the meaning of reasonable doubt and made it mandatory upon the court to read the definition to the jury, we think that further explanation by the trial court is entirely unnecessary, and is in fact a work of supererogation. In this case the charge as enlarged upon was not consistent with the provisions of §2945.04 R. C.

Obviously, any further explanation of reasonable doubt and presumption of innocence must be consistent with the statute. The question of probabilities of guilt or “strong probabilities of guilt” does not enter into the trial of a criminal case. Unless the members of the jury are convinced beyond a reasonable doubt of the guilt of the accused, it is their duty to acquit.

For the foregoing reasons, the judgment of the Court of Common Pleas is reversed as contrary to law and the cause remanded for further proceedings according to law.

SKEEL, PJ, HURD and KOVACHY, JJ, concur.


text:
    SPENCER, Plaintiff-Appellant, v. HEISE, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5900.
    Decided November 12, 1958.
    Scott M. Knisley, Jack R. Altom, Columbus, for plaintiff-appellant.
    John J. Chester, Jr., Robert P. Duncan, William T. Gillie, Asst. City Atty., Columbus, for defendant-appellee.
   OPINION

Per CURIAM.

This is an appeal from the Court of Common Pleas of Franklin County, Ohio in which Irwin B. Spencer, plaintiff, appellee, herein, brought suit for damages for personal injuries and property damage suffered in a collision on November 25, 1953 of his passenger automobile at the intersection of Civic Center Drive and West Main Street in Columbus, Ohio with a police cruiser owned by the city of Columbus and driven by James Heise, defendant, appellee herein.

It was the claim of Spencer that he was operating his automobile on West Main Street and entered the intersection of Civic Center Drive with a green light in his favor and that Heise, driving a Columbus radio police cruiser, entered the intersection from Civic Center Drive in face of a red light governing traffic on Civic Center Drive, and that the police radio cruiser collided with Spencer’s automobile doing substantial damage to it and injuring Spencer. The city of Columbus was dismissed as a party defendant in the court below but no issue appears to have been made of the ruling on this dismissal by Spencer and the notice of appeal names only Heise as defendant.

At the conclusion of all the evidence, the trial court sustained a motion for a directed verdict against the plaintiff. The trial court relied upon the provisions of the final; paragraph of §701.02 R. C., which provides as follows:

“Policemen shall not be personally liable for damages for injury or loss to persons or property and for death caused while engaged in the operation of a motor vehicle while responding to an emergency call.”

There are three assignments of error which in substance are: (1) the trial court erred in directing a verdict for defendant, Heise; (2) the judgment is contrary to law and (3) the court allegedly erred in not allowing the jury to decide the question, “What is an emergency run?”

One of the difficulties confronting appellant in supporting his argument is that there appears to be no dispute in the evidence whatsoever. Spencer in answer to an interrogatory propounded by counsel for the city of Columbus clearly admitted that the vehicle did collide with Spencer.'s car at the time and place mentioned in the petition and was a Columbus police cruiser. He also admitted that the police cruiser was being operated by a member of the Columbus Police Department. In response to the third interrogatory he stated he did not know whether the Columbus police officer driving the Columbus police cruiser was on duty or on business for the city of Columbus when the accident occurred.

The record is filled with direct testimony, not in dispute, that Heise was on duty and that he was on an emergency run. It is not disputed that a call had come into police headquarters in Columbus telling of the discovery of a corpse or a person presumed to be dead along the banks of the Scioto River south of the point where the collision occurred. It is undisputed that the superior officer of Heise directed him to proceed to the scene to begin an immediate investigation of what might be either a death from natural causes, suicide or perhaps even a murder. It is clear and obvious, we believe, that such a call is the greatest form of an emergency. We do not follow or agree with the logic that if the life had fully departed from the body at the time the report was made that the officer hurrying to the scene was not on any emergency call. Prompt and efficient investigation of crime and possible crime is the strongest known deterrent to the commission of other offenses and is in the clear public interest.

It is of course well settled that law enforcement officers deriving their authority from the sovereignty of the state of Ohio are presumed to have performed in such capacity. (See Ayres v. Woodard, 166 Oh St 138.)

There is a further presumption, in the absence of evidence to the contrary, that public officers and public authorities have properly performed their duties in a legal and lawful manner and that they did not act illegally or unlawfully. (See The State, ex rel. Speeth et al v. Carney, 163 Oh St 159.)

When applied to the facts in the case now before us this presumption is in favor of defendant and against plaintiff and the one against whom such a presumption lies.has the burden to show the contrary.

The rule is stated in 32 O. Jur., 953, Public Officers, Section 93, as follows:

“No doctrine is better established than that the acts of an officer, within the scope of his powers and authority, are presumed to be rightly and legally performed until the contrary appears; * *

See also 32 O. Jur. 75, Section 11, where it is said:

“A policeman’s acts will be presumed to have been performed in his capacity as such officer until such presumption is overcome by sufficient evidence * * *”

Cited in support of the foregoing is the case of The New York, Chicago & St. Louis Railroad Co. v. Fieback, 87 Oh St 254, in which the first branch of the syllabus reads as follows:

“A policeman who is appointed and commissioned by the Governor, under §3427 and 3428 R. S. (§§9150 and 9151 GC), although his appointment was upon the application of a railroad company and his salary is paid by such company, is a public officer, deriving his authority directly from the state; and his acts will be presumed to have been performed in his capacity as such officer, until such presumption is overcome by sufficient evidence.”

It has been held by the Supreme Court of Ohio that §701.02 R. C., formerly (§3714-1 GO, is constitutional, was not repealed by the Uniform Traffic Act and is a full defense in cases such as this when the officer is responding to an emergency call.

In McDermott v. Irwin, 148 Oh St 67, the first two branches of the syllabus are as follows:

“1. Sec. 3714-1 GC, is a constitutional enactment and was not repealed by the enactment of the Uniform Traffic Act (§6307-1 et seq, GC).
“2. Under §3714-1 GC, it is a full defense to an action against a policeman for negligence while engaged in the operation of a motor vehicle that he was at the time of his. alleged negligence responding to an emergency call.”

The meaning to be given to §701.02 R. C, supra, was discussed in Rankin v. Sander, 96 Oh Ap 40, decided by the Court of Appeals of Hamilton County in 1953. In the Rankin case, supra, there was a collision between a privately owned and operated automobile and a vehicle equipped with a red flasher, which was in operation, driven by a police officer of the city of Cincinnati. The defense was that defendant was a police officer of the city of Cincinnati and that he was answering a trouble call received by him by radio directing him to proceed to the specified address.

In the Rankin case, supra, as here, the police officer said his red warning light was flashing and in that case plaintiff admitted the flasher light was in operation while here the plaintiff denies the flasher light was in operation. The opinion then points out that a distinction is drawn in the liability of citizens or acts of their police and fire departments and found that in case of police officers, prior to enactment of §701.02, supra, R. C., the police officer had no such defense against liability for torts committed under color of office and was personally liable for his negligence in performing official duties. Cited in support thereof was United States Fidelity & Guaranty Co. v. Samuels, 116 Oh St 586.

In the Rankin case, supra, Matthews, PJ., at pp. 44 and 45 wrote:

“It is against this background that the exemption of firemen and policemen contained in the last sentence of §3714-1 GC, must be interpreted. It will be observed that the governmental function of the fire department as a defense to the municipality is limited to emergencies, whereas, when it is sought to charge the municipality for the acts of a policeman it is a sufficient defense to prove that he was engaged in the routine police duties without proof of any extraordinary circumstances or emergency. Or, perhaps, it could be said that emergencies are normal and routine in the life of a policeman. At any rate, the Legislature, while exempting the municipality from liability upon proof that the policeman was performing police duties at the time, saw fit by the last clause of §3714-1 GC, to grant the policeman a narrower exemption by requiring him to prove that he was engaged at the time in operating the motor vehicle while responding to an emergency call.”

The court then held that had the accident occurred while the policeman was engaged in routine patrol duties in his district, he would have been liable for his negligent acts but that because he was on what was described as “a trouble run,” that constituted an emergency which gave him the protection contemplated by §701.02 supra, R. C. In this case therefore it becomes necessary to determine whether or not Heise was “in the operation of a motor vhicle while responding to an emergency call.”

We have heretofore made reference to the report received at police headquarters and the order given to Heise to proceed to the location where a human body, presumably dead, had been discovered. It appears beyond question that at police headquarters this was interpreted and, we believe rightly so, as an emergency and that Heise was on an emergency call at the time the collision occurred. It was a fact situation which could be the initial discovery of a crime of great seriousness namely, homicide. On the other hand, it may have been a death due to natural causes, accident or suicide. But we do not believe that the police department was wrong in interpreting this report as one calling for prompt action and it follows, in our opinion, that Heise’s trip was ' clearly in the nature of responding to an emergency call. We note that nowhere in the record is there any evidence to the contrary.

For the reasons above set forth it is our opinion that the three assignments of errors are not well taken and must therefore be overruled and the judgment of the court below affirmed at the costs of the appellant.

PETREE, PJ, BRYANT and MILLER, JJ, concur.


author: By LEIS, J.:

text:
    WESLEY, Plaintiff, v. ELECTRIC AUTO-LITE CO., Defendant.
    Common Pleas Court, Hamilton County.
    No. A-155720.
    Decided January 30, 1959.

      Robert A. Wilson, for plaintiff.
    Taft, Stettinius & Hollister, for defendant.
   OPINION

By LEIS, J.:

This is an action brought by Ransom Wesley against the Electric Auto-Lite Company for wages allegedly due him from the defendant. Plaintiff is an employee of the defendant and is a member of the Local 68, Metal Polishers, Buffers, Platers and Helpers International Union. Plaintiff stands in the shoes of a third party beneficiary to a contract entered into between defendant and plaintiff’s bargaining unit, said Local 68, and for his claim avers that defendant corporation has breached said contract, thereby resulting in a loss to plaintiff of some fifty-six hours of work at $2.60% per hour.

The demurrer of the plaintiff to defendant’s amended answer having been overruled, the case was tried before the Court, a jury having been waived. After all the evidence was presented, the case was submitted to the Court for decision, and, subsequently, counsel submitted comprehensive briefs to aid the Court in its decision. After a study of these briefs, the evidence and all exhibits, and the pertinent authorities, the Court is ready to render its decision.

By way of background, it should be stated that the defendant corporation was engaged in the manufacture of various electric auto accessories, including automotive lamps. While defendant produced for various customers, the Chrysler Corporation accounted for approximately eighty-five per cent of the volume of production (R. 49). The evidence shows that beginning in December of 1955, the orders to defendant from its chief customer, Chrysler, were cut severely by what counsel for defendant aptly described as a “blizzard of cancellations.” These cancellations continued until the early part of February 1956 (R. 69-70). George A. Kessel, Plant Manager of the Lockland plant for defendant corporation, testified on direct examination that such a condition was “very abnormal,” and that he had never seen such a volume of cancellations in a like period (R. 71). At the time of the cancellations, the plant was working a five day week. Due to the order cancellations, the decision was made by defendant corporation to cut down to a four day week without a reduction in working force (R. 72). As a result, plaintiff was laid off seven consecutive Fridays from February 10, 1956 to March 1956, although he reported for work each of the seven Fridays in question (R. 39-40). Therein lies the crux of this lawsuit.

It is the claim of plaintiff that being third man in seniority in his union (R. 39), he was entitled under Local 68’s contract with defendant corporation, to continue his full time work week, until probationary employees, and those employees with less seniority than he were laid off first.

Both parties cite the agreement of July 11, 1955, between the Electric Auto-Lite Company Lamp Division and the Metal Polishers, Buffers, Platers and Helpers International Union in support of their positions.

There are three pertinent parts of this Agreement to which the Court will refer.

The first part is Article III (A) “Working Hours”:

“(A) Eight (8) consecutive hours, except for the lunch period, shal! constitute a normal work day, and forty (40) hours of five (5) consecutice days (Monday, Tuesday, Wednesday, Thursday and Friday) shall constitute a normal week’s work except when a holiday occurs on these days, in which event thirty-two (32) hours shall constitute a week’s work.” (Emphasis added.)

The next part is Article VI (G) which the Court will label the “seniority clause”:

“(g) When it becomes necessary to reduce the working force of a department, probationary employees will be laid off first. Thereafter, layoffs will be made according to seniority to provide normal eight (8) hours per day and forty (40) hours per week for employees in the polishing and buffing departments; and seven and one-half (7!4) hours per day and thirty-seven and one-half (37%) hours per week for the plating department. The Committee will fully consider any proposed deviation from the above procedure.” (Emphasis added.)

The third section is Article XV, which this Court will label the “management clause”:

“It is understood and agreed that the right to manage and conduct its business, is specifically reserved exclusively by the COMPANY.” (Emphasis added.)

To put it simply, plaintiff says that under the seniority clause he is entitled to a forty hour week until all those with less seniority than he are laid off first; defendant says that the seniority clause applies only to normal work days and normal work weeks, and that the conditions in February and March 1956, were not normal; therefore, under the management clause the Company had the right to cut to a four day week.

What is the purpose of a seniority clause? Are the seniority and management clauses in conflict? What did the parties intend?

“In construing any written instrument, whether it be .a will, contract, statute, or constitution, the primary and paramount rule is: What was the intent or purpose of the makers of such written instruments? And it is conceded to be the almost universal law that that intent or purpose shall be chiefly gathered from the language employed in such instrument.” The State, ex rel. Maher, v. Baker, 88 Oh Ap 165 at page 172. (Emphasis added.)
“The proper rule in interpreting contracts is to ascertain intention of parties and to give effect to that intention if it can be done consistently with legal principles. Intention of parties to contract is- to be gathered not from particular words and phrases, but from entire language used in agreement, if it can be done.” Coe v. The Suburban Light & Power Co., 32 Oh Ap 158.

We come to the conclusion that this matter resolves itself to a determination of the intention of the parties to the contract.

. In determining such intention we should first give mention to Article VI (G), the seniority clause.

Seniority refers to an employee’s length of time with his employer “A seniority list is composed of the first employees hired by the management” (R. 15). Such a list shows the duration of the service with the Company, “and the man with the longest period of service is up the list and the man with the shortest period of service is down the list” (R. 16).

Seniority rights arise out of the contract between employer and employee and the fact that an employee has worked for his employer for a number of years gives rise to no seniority rights unless the employer and employees have so contracted; however, seniority rights so fixed by contract will be protected by the courts as property rights. See Hess v. The Trailer Company of America, 31 O. O. 566.

To protect such seniority rights, Article VI (G) of the contract in dispute was included. It is undisputed that the plaintiff has high seniority in the union, being third man from the top on the seniority list (R. 39). It is clear that the plaintiff has a legal right to the protection of his seniority rights under this contract. The seniority clause is unambiguous and unequivocal when it recites that “probationary employees will be laid off first. Thereafter, lay-offs will be made according to seniority.” Obviously this clause was meant by the parties to have effect and to be legally enforceable as seniority is one of labor’s most sought after contractual rights; and the clause certainly would never have been incorporated in this Agreement if the intent was to render it a barren phrase. (174 A. L. R. 572 et seq.) The plaintiff is entitled to enforcement of Article VI (G) to protect his seniority rights.

But, contends counsel for defendant, conditions were not normal as contemplated in Article III (A); moreover, the management clause specifically reserves to the Company the right to manage and conduct its business.

“The language of a contract should be interpreted so as to subserve, and not subvert, the general intention of the parties.” 12 Am. Jur., “Contracts” Section 241.

A study of all the evidence discloses the intention of the parties to the contract to protect seniority rights.

What then, is the purpose of Article III (A) ? This article defines a normal work day and a normal work week. Its function is definitive in nature. For purposes of application of the contract, it sets a standard and defines a work day and a work week. The word “normal” as used in this provision, in the opinion of this Court, has no reference to business conditions or amount of sales.

“All provisions should, if possible be so interpreted as to harmonize with each other.” (12 Am. Jur. “Contracts” Section 241, supra.)

Citing the management clause, counsel for defendant ably argues that conditions were not normal, and therefore the Company had the right to manage and conduct its business by cutting back to a four day week in lieu of a general lay off. The management clause cannot be utilized to sever contractual rights vested in other parts of the contract. There is an implication in the management clause that the right to manage and conduct its business is specifically reserved by the Company so long as it does not destroy contract rights created elsewhere in the contract or render void other provisions which are entitled to effect. «"Emphasis added.) If the management clause stood alone with the power to prevail over or veto all other provisions of the contract, there would be no need for the parties to sit down and bargain to arrive at a contract agreeable to both. The management clause has for its purpose to leave matters not specifically provided for in the contract to the company. The management clause, however,, cannot be paramount and cannot destroy rights specifically and unequivocally created elsewhere in the contract.

The evidence is uncontradicted that Local 68 refused to accept any deviation from the clause protecting seniority; that although other unions at Auto Lite agreed to join management in the cut back to four days, Local 68 demanded adherence to the provisions of the July 11, 1955, Agreement.

The Court appreciates the problem with which defendant was confronted in February 1956. Its decision at a time of stress was difficult and not enviable. The Court, in light of the evidence, however, interprets the contract as entered by two competent parties.

Upon the evidence and law, the Court finds that plaintiff is a third party beneficiary to the contract of July 11, 1955, between The Electric Auto-Lite Company Lamp Division and the Metal Polishers, Buffers, Platers and Helpers International Union; that plaintiff being third man on the seniority list has a contractual right under the seniority clause VI (G) to have those with less seniority laid off first; that plaintiff’s employment was reduced contrary to the provisions of the seniority clause and that plaintiff is entitled to recover therefor.

A judgment entry for the plaintiff in the amount prayed for in the petition may be presented.