author: By ROSS, J.:

text:
    ANSPACH, Admrx., Plaintiff-Appellant, v. ST. BERNARD (City), Defendant-Appellee.
    Ohio Appeals, First District, Hamilton County.
    No. 7481.
    Decided October 22, 1951.
    John J. Rivers, Cincinnati,- for plaintiff-appellant
    Joseph F. Rusche, Cincinnati, for defendant-appellee.
   OPINION

By ROSS, J.:

An action for damages was commenced by the plaintiff named in the above entitled cause against the defendant municipality; it being alleged that such plaintiff was injured by reason of the failure of the defendant municipality to keep a certain street therein in repair. This action was instituted to recover damages for injuries to the person of the then plaintiff. The original plaintiff above named in the title of this case died and one Sylvia Anspach was appointed administratrix of Kate Lewis, the above named plaintiff. Upon motion, suggesting the, death of such original plaintiff and request for revivor in the name of her administratrix, Sylvia Anspach was substituted as plaintiff in the action, which was thereupon revived in her name. She filed an amended petition seeking to recover damages for injuries to the person of her decedent, caused by the failure of the defendant municipality to keep a certain street within its boundaries in repair.

A demurrer was filed by the defendant to such amended petition on the ground that no cause of action against the defendant was stated therein — “in that the plaintiff has died and by virtue of her death the alleged cause of action is abated.”

The demurrer was sustained by the trial court and the plaintiff, not desiring to plead further, the “cause” was “dismissed with prejudice.”

An appeal on questions of law from such judgment is now before this court and is here considered.

It would seem from what is said in the briefs and stated in argument that the basis for such action by the trial court is that the cause of action stated by the substituted plaintiff is an action for nuisance, and that under the provisions of §11397 GC, such action abates with the death of the plaintiff.

The major portion of the briefs and argument is devoted to adverse contentions upon the question of whether or not the action is one predicated upon nuisance or mere negligence.

In view of the conclusions of this Court, expressed hereinafter, it becomes unnecessary to determine this question.

Sec. 11397 GC, provides:

“Unless otherwise provided, no action or proceeding pending in any court shall abate by the death of either or both of the parties thereto, except actions for libel, slarider, malicious prosecution, for a nuisance, or against a justice of the peace for misconduct in office, which shall abate by the death of either party.” (Emphasis added.)

The underscored portion of this Section is of particular moment. Such Section is a part of Part Third of the General Code, (Remedial).

Sec. 11235 GC, provides:

“In addition to the causes which survive at common law, causes of action for mesne profits, or injuries to the person or property, or for deceit or fraud, shall also survive; and the action may be brought notwithstanding the death of the person entitled or liable thereto.” (Emphasis added.)

Sec. 11401 GC, provides:

“If before judgment, one of the parties to an action dies, or his powers as a personal representative cease, but the right of action survives in favor of or against his representatives or successor, the action may be revived, and proceed in the name of such representatives or successor.”

Now if the phrase “for a nuisance” appearing in §11397 GC, may be construed as including an action for personal injuries, the result of a nuisance (which may be seriously doubted as hereinafter noted) then obviously the provisions of §11235 GC, and §11401 GC, are within the purview1 of the opening words of §11397 GC, supra, “unless otherwise provided,” for the action here in question is one for “injuries to the person” of plaintiff’s decedent. In 11235 GC, supra, it is definitely and specifically provided, without qualification — that such an action for “injuries to the person” survives the death of the person suffering such injuries. Sec. 11401 GC, supra, provides that when an action survives, as the instant action undoubtedly does, it may be revived in the name of the personal representative.

In view of the fact that all these sections noted were, in general substance, a part of the Act of March 11, 1853 (51 Laws of Ohio, pages 57 and 166) and of the amendment thereto in 90 Laws of Ohio, p. 140, it is unreasonable to suppose that the Legislature could have intended to pass conflicting statutes, or even that it did so. On the contrary, it would seem more reasonable to suppose that having sustained survivorship of actions for “injuries to the person” in one section (See 51 Laws of Ohio, p. 122; 90 Laws of Ohio, p. 140, post) that in the next section when it provided abatement “for a nuisance” (51 Laws of Ohio, p. 122; 90 Laws of Ohio, p. 140, post) that the Legislature intended by use of the latter expression “for a nuisance” to limit abatement to those actions in which nuisance was the essential subject of the action, rather than merely a proximate cause of injuries to the person, "in other words, action's for the abatement of a nuisance were in the contemplation of the Legislature when the words “for a nuisance” were used.

The original text of these acts and the amendments in 90 Laws of Ohio develop clearly a perfect consistency and show that none- of them, as finally amended in 1893, and as now in force, are in conflict with one another.

Secs. 11335 (R. S. 4975), 11,397 (R. S. 5144) and 11401 (R. S. 5148), GC, are all, in substance a part of the Act of March 11, 1853 (51 Laws of Ohio, p. 166) “To Establish A Code of Civil Procedure” (51 Laws of Ohio, p. 57).

Under Title XII of this Act “Causes of Action which Survive and Abatement of Actions,” §398 (R. S. §4975) §11335 GC, 51 Laws of Ohio, p. 122, provides:

“In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to real or personal estate, or for any deceit or fraud, shall also survive, and the action may be brought notwithstanding the death of the person entitled or liable to the same.”

The'next section, Section 399 (R. S. 5144 — §11397 GC — Id.) provides:

“No action pending in any court, shall abate by the death of either or both of the parties thereto, except an action for libel, slander, malicious prosecution, assault, or assault and battery, for a nuisance, or against a justice of the peace for misconduct in office, which shall abate by the death of the defendant.”

Under Title XIII “Revivor,” section 402 (R. S. 5148 — §11401 GC, 51 Laws of Ohio, p. 123) it is provided:

“When one of the parties to an action dies, or his powers as a personal representative cease before the judgment, if the right of action survive in favor of or against his representative or successor, the action may be revived, and proceed in their names.”

Now, on April 5, 1893, the Legislature amended the first two of these sections (90 Laws of Ohio, p. 140), and in such amendment the original sections were given as noted. The number used in the Revised Statutes of Ohio, original section 398 of the Act of 1853 becomes Section 4975, R. S., and is now §11335 GC. It will be noted, however, that instead of the words “injury to real or personal estate,” used in the Act of 1853, the Legislature in the Act of 1893 used the words “injuries to the person,” as they now appear in §11335 GC.

Original Section 399 of the Act of 1853 became Section 5144, R. S„ now §11397 GC.

Section 402- of the Act of 1853 has been essentially in its present form a part of the law of this State for many years, for on March 23rd, 1840, the Legislature passed an act “To Provide For The Settlement of the Estates of Deceased Persons.” (38 Laws of Ohio, p. 146). Sections 240 and 241 of this Act (id. p.' 186) provide:

“When an executor or administrator shall die, be removed from office, or resign, or when his letters shall be revoked during the pendency of any suit in which he is a party, the suit may be prosecuted by or against the administrator appointed in his place, if any shall be appointed, in like manner as if it had originally been commenced by or against such last administrator.”

“The proceedings in such case, with respect to the appearance of the administrator de bonis non, whether voluntary, or upon citation, and with respect to making an administrator party defendant upon citation, after default to appear, shall be conducted in the manner prescribed in the -act entitled, ‘an act to regulate the practice of the judicial courts,’ upon occasion of the death of either party during the pendency of a suit.”

It will be noticed that in Section 5144 of the Act of 1893 (90 Laws of Ohio, p. 140) the Legislature in order to obviate any misunderstanding or possible conflict between that Section (Sec. 5144) and-Section 4975, next preceding, inserted the words “Except as otherwise provided” essentially the words now found in §11397 GC, “Unless otherwise provided.”

This explains the holding in the case of Village of Cardington v. Adm’r of Fredericks, 46 Oh St, 442, decided by the Supreme Court May 21st, 1889. It was because of the construction of the provisions of Section 5144, R. S. (§11397 GC) by the Supreme Court in the Village of Cardington v. Adm’r of Fredericks, supra,, that the Legislature thus in 1893 inserted the words in that section “Except as otherwise provided” thus excluding from its operation actions for “injuries to the person.”

Again, it should be noted that R. S. 4975 (§11235 GC) applied prior to the 1893 Act to actions for “injury to the real or personal estate,” not as clearly applicable to many cases as the words “injuries to the person” as used in the amendment of 1893, and now present in §11235 GC.

Even in the state of the law existing in 1889, it is stated on page 449 of the opinion in the case of Village of Cardington v. Adm’r of Fredericks, supra:

“The question is not without difficulty, and much may be said on the other side, but, as conclusion, upon the grounds stated, we think the action abated upon the death of plaintiff by force of Sec. 5144.”

This case has been cited with approval many times by the Supreme Court. Almost in every instance it was noted as authority for the existence of a cause of action by one injured in the manner detailed in the statement of facts involved in the Village of Cardington case. It is significant that in no instance has it been cited as an authority by the Supreme Court for the proposition contended for by appellee in the instant action — to-wit that an action for damages for “injuries to the person” is abated even if such action is predicated upon a charge of nuisance.

It must be apparent that the Legislature in 1893 completely abrogated any effect in this respect which the case of Village of Cardington v. Adm’r of Fredericks, 46 Oh St, 442, may have had up to that time. The statutory predicate for the ruling in that case upon the issue of abatement no longer exists. Thus, it clearly appears that all actions, where “injuries to the person” constitute the subject of action are excluded from the operation of §11397 GC (R. S. 5144 — 90 Laws of Ohio, p. 140), whether, the action is predicated upon nuisance or negligence.

The instant action, therefore, being one in which the cause of action is predicated upon “injuries to the person” caused by the defendant is one which survives under the provisions of §11235 GC (R. S. 4975 — 90 Laws of Ohio, p. 140), and therefore may be revived under the provisions of §11401 GC (R. S. 5148 — 38 Laws of Ohio, p. 186) Sections 240, 241 — 51 Laws of Ohio, p. 123, Section 402, and that §11397 GC (R. S. 5144 — 51 Laws of Ohio, p. 122, Section 399 — 90 Laws of Ohio, p. 140), by its terms excludes from abatement the instant action because it is one for “injuries to the person” of the decedent.

Although it may not be necessary to employ the provisions of §10214 GC (51 Laws of Ohio, p. 57, sec. 2), to aid in reaching the conclusions herein reached, it may not be amiss to note the language of such section, which provides:

“The provisions of part third and all proceedings under it, shall be liberally construed, in order to promote its object, and assist the parties in obtaining justice. The rule of the common law, that statutes in derogation thereof must be strictly construed has no application to such part; but this action shall not be so construed as to require a liberal construction of provisions affecting personal liberty, relating to amercement, or of a penal nature.”

The sections of the Code herein involved are, of course, a part of Part Third of the Code.

Again, in what has been said herein, it is to be understood that no opinion is stated as to whether the instant action is predicated upon nuisance or negligence. A finding upon this question, if such question exists, is not necessary as a predicate to the conclusions herein reached.

The judgment of the trial court is reversed, and the cause remanded to that Court with instructions to overrule the demurrer to the amended petition upon the grounds stated in such demurrer, and for such further proceedings as may be in accordance with law.

HILDEBRANT, FJ, MATTHEWS & ROSS, JJ, concur in syllabus, opinion & judgment.


source: Caselaw Access Project

author: By WISEMAN, J.

license: Public Domain

text:
    GRAVES, Plaintiff-Appellee, v. THURMAN, Jr., Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4588.
    Decided April 12, 1951.
    Joseph, McClelland & McConnaughey, Columbus, for appellee.
    L. P. Henderson, Columbus, for appellant.
   OPINION

By THE COURT.

Submitted. on motion of the plaintiff-appellee seeking an order dismissing the appeal on law and fact for the reason that this Court has no jurisdiction to entertain the same. The record discloses that the action is one for damages arising out of a collision between two automobiles. Clearly this is not a chancery case. The motion will be sustained, but the case will be retained for determination on questions of law only. The appellant will be granted leave to file bill of exceptions, assignment of errors and brief in accordance with Supplement to Rule VII of this Court.

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

No. 4588.

Decided September 25, 1951.

Appellate Review [Abs & O. Jur.] §636

1. If there is evidence of a substantial character to support the judgment, a reviewing court will not reverse on the ground that the judgment is against the manifest weight of the evidence.

HEADNOTE BY EDITORIAL STAFF

HISTORY: — Appeal on law from judgment of Common Pleas Court affirming judgment of Municipal Court of Columbus. .Affirmed. For further history see Omnibus Index in bound volume.

OPINION

By WISEMAN, J.

This is an appeal on law from the judgment of the Common Pleas Court affirming a judgment of the Municipal Court of Columbus rendered in favor of the .plaintiff.

The action involved a claim for damages growing out of an automobile collision. There was a definite conflict in the evidence on the determinative issues in the case.

The Municipal Court was the trier of the facts and it was within the province of the trial court to determine the credibility of the witnesses. If there is evidence of a substantial character to support the judgment, which appears in this case, a reviewing court will not reverse on the ground that the judgment is against the manifest weight of the evidence. We find no assignment of error well made.

Finding no error in the record prejudicial to the rights of the appellant the judgment is affirmed.

HORNBECK, PJ, MILLER, J, concur.


author: By WOODS,

text:
    PARNELL LUMBER COMPANY, In re Bankrupts.
    IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION.
    No. 66653.
    Decided November 12, 1951.

      Kent W. Woodward, Clair E. Whitmer, Donald F. Kepple, Akron, Henry B. Johnson, Cleveland, for trustee.
    Oscar Hunsioker, Jr., Wm. G. Roderick, Akron, for Bankrupt.
   MEMORANDUM

By WOODS,

Referee in Bankruptcy.

The Parnell Lumber Company, a partnership, consisting of Sylvia P. McDaniel, James G. McDaniel and C. E. Parnell, Jr., individually and doing business as The Parnell Lumber Company, were adjudicated bankrupts on January 17, 1950. Kent W. Woodward is the duly elected, qualified and acting Trustee in Bankruptcy.

Early in November of 1949, fearing insolvency, the Company, through its attorney, submitted a plan of operation to creditors, in which it was proposed to raise funds to continue an operation of its brokerage commission business for such time as it could so raise funds. This notice had gone to its bankers, mercantile agencies, and creditors, who had thus been notified in September of discontinuance of its wholesale lumber business. Also it was indicated that little credit would be required, as it only needed funds for rental and clerk hire necessary to carry on such brokerage business.

A meeting of creditors was held at Akron on November 28, 1949, at which time creditors agreed to the terms of the plan and appointed a committee, a member of which was Attorney Whitmer, who later appeared as counsel in filing the involuntary petition in bankruptcy, and also as counsel for Receiver and the objecting Trustee, and who was fully informed as to the operations of this business prior to bankruptcy.

For a short time the Creditors’ Committee operated the business, when the involuntary petition of creditors was filed on December 7, 1949. On the application of counsel for Petitioning Creditors, Kent W. Woodward was appointed Receiver, to operate the business, on December 29, 1949. Adjudication of the partnership and the individual partners was consented to and was entered on January 17, 1950.

The partnership filed its Plan of Arrangement under Chapter XI on February 6, 1951 and notice thereof went to creditors. Many acceptances were received, and the plan was acceptable to all creditors voting at the meeting on March 8, 1950, but later failed and was withdrawn on March 9, because of the refusal of three creditors to pay into the estate funds which they had received from the bankrupts as preferences before the involuntary petition was filed. On the same day an order was entered, terminating Arrangement proceedings. The First Meeting of Creditors in the bankruptcy proceeding was held on March 21, 1950, at which time the Trustee was elected, and the liquidation of the estate proceeded.

Kent W. Woodward, Trustee, has filed Specifications of Objections to the discharge of bankrupt partners, C. E. Parnell, Jr. and James G. McDaniel. Two grounds of objection, substantially the same, are urged against each partner. The first ground is that they obtained money or credit by making or publishing a false statement, in writing, as to the financial condition of the partnership, upon which credit was obtained; and the second ground is that the partnership transferred property of bankrupt within twelve months with intent to prefer, defray or defraud creditors; the property transferred being two Chrysler New Yorker automobiles, and that C. E. Parnell, Jr., quit claimed real estate in Akron, Ohio, the transferee in both instances being Wilhelmina M. Parnell, wife of C. E. Parnell, Jr., the bankrupt partner.

The pertinent statute involved is Section 14c, as follows: “c. The court shall grant the discharge unless satisfied that the bankrupt has .... (3) obtained money or property on credit, or obtained an extension or renewal of credit, by making or publishing or causing to be made or published in any manner whatsoever, a materially false statement in writing respecting his financial condition; or (4) at any time preceding the filing of the petition in bankruptcy, transferred, removed, destroyed, or concealed, or permitted to be removed, destroyed, or concealed, any of his property, with intent to hinder, delay, or defraud his creditors;”

Counsel for the Trustee filed objections to discharge of the two bankrupt partners, and urged the issuing of a false financial statement by the partnership as the first ground of the specifications.

The proof shows that the partnership, The Parnell Lumber Company, began business in November 1948, with its office at Akron, Ohio, with operations at Pineville, Alabama. This succeeded a firm of the same name and its partners are as in the caption of the case. Partner Carol E. Parnell, Jr. now lives at Thomasville, Alabama, and partner James G. McDaniel lives at Monroeville, Alabama, and the other partner, Sylvia McDaniel is the latter’s wife, as to whom objections to discharge have not been filed.

The partnership early established bank connections with the First National Bank of Mobile, Alabama, and the bank took assigned accounts for collection as collateral, the transactions beginning with the month of April 1948 with a loan of $35,925, continuing each month until September 1949, with a then debt to the bank of $149,659.68. After receipt of a letter from the bankrupt about changing its business from a wholesale to a brokerage business, and suggesting that an extension might be needed for the payment of accounts, the bank called its loan on September 16, 1949, thereby ceasing to finance the bankrupt. In the preceding August of 1949 the bank loan was $199,500 and on September 16, when the bank called the loan, the debt was reduced to $134,300. (Tr. pg 13) After the bank had applied the collateral on its debt on December 7, 1949, the date of the Involuntary Petition in Bankruptcy, the debt due the bank was $22,192.75 (Transcript Page 6).

H. Austin Pharr, President of the First National Bank of Mobile, testified that he had had before him the financial statements of the bankrupt corporation, prepared by Edward J. Cooper Accountant and Auditor of Mobile, Trustee’s Exhibit 1, as of September 30, 1948; Trustee’s Exhibit 2, Statement of April 30, 1949; Trustee’s Mobile Exhibit 16, Report from May 1, 1947 to February 29, 1948 (Transcript Page 18); and statement from May 1, 1948 to July 31, 1948, Trustee’s Mobile Ex. 17.

The Auditor’s Statement from May 1, 1948 to July 31, 1948 showed bankrupt with a net worth of $45,100.25 (Trustee’s Mobile Ex. 17) and in August 1948 bankrupt owed the bank $149,650 (Mobile Transcript Pg. 18). As to the statement of April 30, 1949 (Trustee’s Ex. 2) Parnell admitted that $100,000 had been added to the accounts receivable, when a copy was sent to Dun & Bradstreet Mercantile Agency (Trustee’s Ex. 3 Transcript Pg. 44).

When Parnell was examined as to Trustee’s Exhibit 9 and the Dun & Bradstreet statement of February 17, 1949, about the figures which came from the Auditor’s Report of September 30, 1948, Trustee’s Exhibit 2, it appeared that there was an error (Transcript Pg. 66) and that the item for freight reserve of $34,076.28 was left out of the copy as sent to Dun & Bradstreet, with the result that the partnership is shown solvent, when in reality it was insolvent by some $10,000.

Counsel for Parnell points out that, notwithstanding the omission of the freight reserve item in the statement of Dun & Bradstreet, received February 17, 1949, which they issued March 8, 1949 (Trustee’s Ex. 9) shows a rating of $50,000 to $75,000, and that such amount was warranted, regardless of the failure to deduct the freight reserve from item of $88,772.45 net worth, so that with such deduction the net worth would be more than $50,000. Counsel urges that the rating given by Dun & Bradstreet shows the net worth was cut from the previous statement of December 17, 1947 from $164,311 to $88,772.45 and the Dun & Bradstreet statement is made on Trustee’s Exhibit 10 — “Liabilities are almost double the net worth.”

The grounds for refusing a discharge to a bankrupt are statutory, and as to materially false statements, there are many cases: Judge Davis said in Tabac v. Morimura, Airi & Co. 21 Fed (2d) 161 (3 C. C. 1927) 10 ABR ns 538 that:

“Intent of the bankrupt is the touchstone by which his right to a discharge must be tested.”

This case was confirmed on review in Morimura, Airi & Co. v. Tabac, 297 U. S. 24 (1929) 13 ABR ns 277.

The cases hold that to prevent a discharge, a statement must be false and fraudulent and must be a materially false statement, and that is intentionally untrue. It was said in Re: Venturella Co., 25 Fed. Sup. 332, 39 ABR ns 527 (D. C. Conn. 1938) affirmed 102 Fed (2d) 1022 — that a materially false financial statement, on the ground of which a bankrupt’s discharge may be denied must be one, the falsity of which is known to the bankrupt and must be made in an attempt to deceive.

An early case is Re: Matthews, 47 ABR 39 (7 C. C. 1921), where Judge Evans said, pg. 39:

“From our examination of the evidence, we are unable to say this finding was erroneous. That a false property statement was made is conceded.....”

In this Circuit in Third National Bank v. Shatten, 81 Fed. (2d) 538 (1936) 31 ABR ns 10, Judge Hicks adopted such rule and the syllabus is, “A false statement in writing which is enough to warrant denial of discharge must be knowingly false or made recklessly without an honest belief in its truth and with a purpose to mislead or deceive.” In his opinion, Judge Hicks said, pg. 15:

“The right to the discharge was addressed to the discretion of the court (In re: Merritt (C. C. A., 9th Cir.), 13 Am. B. R. (ns) 47, 28 Fed. (2d) 679; Baash-Ross Tool Co. v. Stephens, supra); not to an arbitrary discretion, of course, but to its sound judicial discretion. We do not find that there was a gross abuse of the court’s function.....”

The rule is that to deny a discharge, it must appear that the statement has been relied upon. This is a fact to be found from all the circumstances. The cases are reviewed In re: Pelz, 48 ABR ns 786 (1941), 22 O. O., 429, a decision of my colleague, Hon. C. D. Friebolin, which was affirmed by District Judge Jones. Again in Collier on Bankruptcy, 14th Ed., Sec. 14.39, it is stated that under Clause 3 of Section 14c, the proof must show that the lender must have at least relied upon the false statement in extending credit, if a discharge is to be denied.

The burden of proving that he has not committed an act, which will prevent his discharge, is upon the bankrupt after the objector has made-a prima facie case; that is, to show that there are reasonable grounds for believing bankrupt has committed the acts alleged, Sec. 14c Provision of Bankruptcy Act, Collier 14th Ed. Pg. 1285, Remington Vol. IV, Sec. 3407. The substance of the objection is a materially false statement as to the bankrupt’s condition, upon which he obtained credit. The statement must be relied upon, which is a fact that must be found from all the circumstances.

The proof shows that the statements made to Dun & Bradstreet were received on February 17, 1949 (Trustee’s Ex. 9) and to the Lumbermen’s Credit Association on August 12, 1949 and was entered September 11, 1949 (Trustee’s Ex. 3).

The First National Bank had four statements from the accountant and auditor, and the proof fails that the bank relied upon any report from either of the mercantile agencies. Also, there is no proof that any other creditor than the bank ever saw or even considered the contents of the statements made to the mercantile agencies. In fact, no witness appeared for any creditor, other than the Mobile bank, showing that any creditor had received the mercantile reports. Th® only evidence is the general statement of Frank S. Moyer, Acting Manager of the Lumbermen’s Credit Assn., Inc. at Chicago and Robert S. Lutz, City Reporting Manager of the Cleveland Office of Dun & Bradstreet, that the reports of the financial condition of this partnership in the lumber business at Akron, in its jurisdiction, were in the usual course of business sent to their customers from the Chicago and Cleveland offices.

This is a far cry from establishing that any other creditor of bankrupt relied on any reports of the mercantile agencies.

Counsel for the objecting trustee relies upon Re: Muscara 18th Fed. (2) 607 (D. C. Pa. 1927) 9 ABR ns 606 where a discharge was denied and the proof showed that the bankrupt had furnished false information to R. G. Dun & Co., a mercantile agency, upon which creditors relied. The proof of the case at bar fails to show that any creditor, excepting the bank, which had before it the four auditors’ statements, ever relied upon the reports made by the bankrupt partnership to either of the mercantile agencies, Dun & Bradstreet or the Lumbermen’s Credit Association. To the same effect is the case of Weinberg v. American Stove, 15th Fed. (2) 557 (1926 5 C. C.), where the bankrupt sent a false statement to a mercantile agency, and this was also sent to an objecting creditor, and upon this the creditor testified he had relied. No such proof is offered by the objector in this proceeding.

In this Circuit, In Re: Crue v. Timmer 119 Fed. (2) 145, 6 C. C. 1941, 46 ABR ns 174, a discharge was not denied on the ground that a bankrupt had obtained credit on the basis of a false statement, where it appeared that statement was prepared by the agent of the objecting creditor. There was no proof that the statement was ever received by the creditor, or relied upon in extending credit to the bankrupt, and it was the view of Judge Simons, speaking for the Court, that inference may not be substituted for proof. So, in the case at bar, the proof fails that the mobile bank relied upon the statement made by the mercantile agencies, and there is further failure of proof to deny the discharge, since no other creditors were called to testify.

Proof as to the issuing of the financial statements shows that these were under the name of the partnership, The Parnell Lumber Company by C. E. Parnell, Jr. None of the statements were issued by bankrupt partner McDaniel, and there is no evidence that he had any part in forwarding the statements or knew of their contents.

Whatever may be the finding herein as to Parnell on this phase of the case, there can be no finding against McDaniel for the evidence fails to show his connection therewith other than as a member of the partnership. The rule is stated in Collier on Bankruptcy 14th Ed. Vol. I, Sec. 14.41 — “A false statement of one partner in the course of a partnership business will not be a bar to the. discharge of the partner, who did not participate therein and had no knowledge thereof.” Case cited.

Counsel for the Trustee filed objections to the discharge on the ground that there was a fraudulent transfer by quit claim deed of Akron real estate by Parnell to his wife, Wilhelmina M. Parnell, and the transfer of two Chrysler Sedans, owned by the partnership, to the said Wilhelmina M. Parnell. The deed was executed September 23, 1949 and the automobiles were transferred on September 26, 1949. Schedules of the bankrupt on file show the cars as assets of the partnership and the records show that the cars were sold by the Trustee and the funds are in the estate.

As before stated, because of difficult conditions in the operation of its lumber business, the partnership decided to change from wholesaling to a brokerage business, and a letter to this effect was sent to the First National Bank of Mobile from the partnership, signed by Parnell and dated September 7, 1949 (Bankrupt’s Mobile Exhibit A).

In addition to the letter to its largest creditor, the bank at Mobile, on September 2 and on September 7, 1949, the partnership, by Parnell, wrote letters to the Lumbermen’s Credit Association at Chicago, stating its proposed change in method of doing business (Trustee’s Exhibit 1-3-4). Exhibit 3 is the report of condition on April 30, 1949, which was with the alleged change of $100,000 in accounts receivable, and was circulated by the Lumbermen’s Credit Association in a letter of September 9, 1949.

Banker Pharr testified as to the receipt of the letter from the bankrupt and thereupon the bank called its loans to the bankrupt on September 16, 1949, its debt then being $134,300, so that the debt of bankrupt was reduced to $22,192.75 at the time of bankruptcy (Transcript Pg 8). Part of the accounts assigned to the Bank at Mobile were reassigned by it to A. E. Reynolds of Mobile, Alabama, who was sued by the Trustee as alter ego of the bank, and these preferences to the Bank and Reynolds were later set aside in the suit by the Trustee at Mobile, where a refund settlement was effected with the said First National Bank by its paying $50,000 to this bankrupt’s estate and disallowing any claim of Reynolds.

Shortly after the letters to creditors about the proposed change in business of bankrupt from wholesaling to brokerage, suits were filed in the State Courts at Akron. To prevent attachments on the property of the bankrupts, their counsel advised the transfer of the Parnell real estate and the two automobiles of the partnership, which was done to Parnell’s wife, to prevent judgments and preferences being secured by the more active creditors.

Bankrupt ceased its wholesaling of lumber October 1, 1949, and when creditors’ efforts to collect accounts increased, counsel for the bankrupt called for a creditors’ meeting (Parnell Exhibits G, H and I), which was held at Akron, but the pressure for quick payment was too much and creditors filed an Involuntary Petition on December 7, 1949, counsel for the Trustee being one of the attorneys for petitioning creditors. Receivership followed and thereupon debtors filed a Petition for an Arrangement under Chapter XI of the Bankruptcy Act. At the creditors’ meeting to consider the arrangement on March 8, 1950, all creditors present voted in favor of accepting the Arrangement, but when other creditors, who had received preferences, refused to refund the payments received, or to help in the reorganization proceeding, adjudication followed.

As to those creditors, who had received preferences and prevented the Arrangement becoming effective, reports of the Trustee on file and the Court records of this case show, that the Akron real estate, formerly belonging to partner Parnell, quit claimed to his wife, which she held as trustee for the bankrupt estate, had been mortgaged by her to the Royal Lumber Company, for a partnership debt, and the claim of Royal has been compromised with the Trustee in Bankruptcy, and the estate has received $3500 therefrom; the St. Marie’s Lumber Company has refunded $2000; and the last settlement was of a suit against the First National Bank of Mobile, Alabama, which has been settled by the Trustee collecting $50,000, and disallowing any claim of A. F- Reynolds, assignee of the Mobile bank. These preference settlements were all after notice to creditors, with a court hearing and a journal entry following, approving the compromise settlements.

The rule is that in order to justify the refusal of a discharge under Section 14, sub. c (4), it must be shown that the acts complained of were done with intent to defraud, hinder and delay the creditors of said bankrupt. This must be actual fraudulent intent as distinguished from constructive intent. The question of whether the bankrupt had the necessary intent is a question of fact.

Admitting as true all the facts brought out by counsel for the objecting trustee, as has often been said, it is not so much the acts of the bankrupt that will prevent his discharge, as it is the intent with which he acts. In re: Tirschler & Co., 18 Fed (2d) 365; 8 Am. Bankr. Rep. ns 824. This was early pointed out In re: Nelson, 179 Fed. 320.

The intent to prefer creditors is not a substitute for the intent to hinder, delay or defraud creditors; that is to say, the court distinguishes between these situations. Collier on Bankruptcy, Vol. 7, in Section 3219, page 455, it is stated that unless the bankrupt has committed some one or more of the acts prohibited by the Bankruptcy Act, his discharge shall be granted; and Section 14, sub. c, prescribes the acts which bar discharge. Specifically, under th§ same section the author states: “A mere preferential transfer by the bankrupt is insufficient to bar discharge.” Cases cited.

The rule was stated and applied in Re: Richter, 57 Fed (2d) 159, 20 ABR ns 516 (2 C. C. 1932) where a partner had made a payment to his wife out of partnership funds and Judge Hand stated that while this doubtless constituted an illegal preference, it was not a transfer or concealment with intent to hinder, delay or defraud creditors, and while recoverable as preferential transfer, is not a bar to a discharge.

Recently, this Referee had a similar case, where there was a preferential transfer before bankruptcy, which was found not in fraud of creditors, and discharge was granted and affirmed on review by Judge McNamee In Re: Beebe 99 F. Supp. 308.

The finding is that objections to discharge of bankrupts should be overruled, dismissed and discharges be granted, to all of which the objector may have his exceptions.


author: By THE COURT:—

text:
    DWORKEN, Plaintiff-Appellant, v. CLEVELAND BOARD OF EDUCATION, etc., Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21968.
    Decided June 12, 1951.

      J. B. Dworken, M. R. Dworken, Cleveland, for plaintiff-appellant.
    Lee C. Howley, Director of Law, Chas. W. White, Asst. Director of Law, Cleveland, for defendant-appellee.
    (PHILLIPS, PJ, GRIFFITH, J, of the 7th District; METCALF, J, of the 4th District, sitting by designation in the 8th District.;
   OPINION

By THE COURT:—

After demand made upon and refusal by the Director of Law of the City of Cleveland, as defendant’s statutory counsel, to file same, plaintiff, an attorney, and a resident and taxpayer of the City of Cleveland, filed an action in the Court of Common Pleas of Cuyahoga County to restrain the Cleveland Board of Education from expending school funds in the administration of its “loyalty oath program” for its principals, teachers and other employees.

Plaintiff appealed to this Court on questions of law and fact from the judgment of the Court of Common Pleas denying him injunctive relief and dismissing his petition.

There is no dispute concerning the facts which reveal that in April, 1949, there were 150 separate schools in the Cleveland City School District, manned by 3898 teachers and principals and other personnel totaling 2631, and attended by 100,714 pupils; that on May 23, 1949, by resolution duly adopted, which became part of the rules and regulations of defendant board, it requested present employees, and required prospective employees, to make affidavit of willingness to support and defend the Constitution of the United States, and to state under oath that he or she “is not a communist, and is not a member of any organization advocating any seditious practice or overthrow of the United States Government by force or violence.

Pursuant to the adoption of such resolution defendant board printed 7500 oath forms at a cost of $33.63 and distributed 4800 of them by mail to certain of its employees, 4168 of such employees returned them signed and sworn to.

Plaintiff contended in the Court of Common Pleas, as he contends in this court, that defendant board exceeded its powers as a state board, and that its action in requesting and requiring the execution of such affidavits was an illegal expenditure of public money and unconstitutional; and violated the Declaration of Independence, the Fourteenth Amendment of the Constitution of the United States, and Article I, Sections 1 and 11 of the Constitution of Ohio.

The Declaration of Independence, the Fourteenth Amendment of the Constitution of the United States and Sections 1 and 11 of Article I, Constitution of Ohio, the portions of which plaintiff contends are applicable, provide inter alia as follows:

“* * * all men are create(j equal and they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness.” Declaration of Independence.
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Fourteenth Amendment of the Constitution of the United States.
“All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and seeking, and obtaining happiness and safety.” Article I, Section 1 of the Constitution of the State of Ohio.
“Every citizen may freely speak, write and publish his sentiments on all subjects * * and no laws shall be passed to restrain or abridge the liberty of speech, or of the press. * * Article I, Section 11 of the Constitution of the State of Ohio.

Authority is vested in defendant board “to make such rules and regulations as it deems necessary for its government and the government of its employees and the pupils of the schools.” In the absence of fraud, abuse of discretion, arbitrariness or unreasonableness, none of which are found in the case we review, this court will not interfere with that authority nor substitute its judgment for that of defendant board upon matters delegated to it to decide in conducting the affairs of its schools. See §4834-5 GC; State ex rel Milhoof v. Board of Education, 78 Oh St 297; Board of Education v. Wickham, 80 Oh St 133; Brannon v. Board of Education, 99 Oh St 369; Greco v. Roper, 145 Oh St 243; Board of Education v. State ex rel Brown, et al, 37 Oh Ap 453; Christman et al v. State ex rel Norris et al, 45 Oh Ap 541; Harrison v. Board of Education, 60 Oh Ap 45.

This conclusion forthwith brings us to a consideration of whether defendant abused its discretion in the adoption of the resolution under discussion.

Such rule made no provision for a penalty, nor threat of penalty, for refusal of present, nor prospective, employees of defendant board refusing to execute the requested affidavits. The execution, or failure or refusal to execute such affidavit was a matter addressed to the judgment of the individual employee.

The resolution and rule requires prospective employees to execute the prescribed affidavit, and much ado is made about this requirement depriving such prospective employee of constitutional rights.

With reference to the rights of prospective employees to be employed by defendant board its counsel said in their brief:—

“(c) The remaining group to which the regulation addresses itself is the prospective employes. It requires that they execute the oaths. No prospective teacher may insist on being employed as of right. Secs. 4842-6 and 4842-7 GC. He or she must first be nominated by the superintendent and, then, employed by the board. The relation between the employing board and the new teacher is one of contract altogether. And no reason need be assigned for the refusal or failure to employ a prospective teacher. See Frederick v. Owens, 25 C. C. (n. s.) 581, supra. As to non-teaching personnel, it may be assumed that they are, for the most part, aspirants for civil service appointments. They gain no prescriptive rights by competing successfully in an examination and attaining a place on a resulting eligible list. While the appointing authority must appoint from such a list (as long as it contains three or more names) he has an unfettered choice of one out of three persons certified. Sec. 486-13 GC. Subject to the latter qualification he may refuse to appoint whom he may and need give no reason for doing so. As to prospective employes to positions in the exempt class or the unclassified service (§486-8 GC) the appointing authority has an entirely free hand in appointing or not appointing whomever he pleases. In any event, in Ohio, there is no prescriptive right to public employment. State ex rel Gordon v. Barthalow, And., 150 Oh St 499 (1948); Taylor v. City of Cleveland, 87 Oh Ap 132 (Cuyahoga County) (Motion to certify Overruled). The first paragraph of the syllabus in the Gordon case is as follows:
“1. A public officer or public general employee holds his position neither by grant nor contract, nor has any such officer or employee a vested interest or private right of property in his office or employment. (The holding in the case of City of Cleveland v. Luttner, 92 Oh St 493, to the effect that there is a contract between a public officer and the public he serves, overruled.) ”
“The regulation, while requiring that prospective employees execute the oaths, goes no further. Their avowed loyalty may thereby become a policy factor in considering them for employment but the regulation does not pretend to make it a determining factor such as would close shut the door to their aspiration if they refused to execute the oaths. And it does not appear in the record that any such person has been refused employment for having failed or refused to comply with the regulation.”

There is no evidence before us that any prospective employee was refused employment by defendant board because of refusal to sign such affidavit, nor that any constitutional rights of such prospective employee were violated.

By constitutional amendment, as a condition to their continued right to preach and teach, the State of Missouri required clergymen to make affidavit that they had not theretofore committed acts enumerated therein under penalty of fine and imprisonment for teaching or preaching without subscribing to such oath.

In the case of Cummings v. State of Missouri, 71 U. S, 277, the supreme court of the United States held such amendment unconstitutional.

The case before us is distinguished from that case, which was cited by plaintiff, by the fact that the right to continue to work for, or apply for work with, defendant board in the oath exempted classes, is not effected by the regulation under discussion as was the right of clergymen to teach or preach in the case of Cummings v. State of Missouri, supra.

The evidence submitted to us convinces us that by such request and requirement there has been no violation “of individual liberties guaranteed by the constitution; no outrage in the feeling, restraints on the person, deprivation of civil or political rights” previously enjoyed by those requested or required to sign such affidavits; that there has been no “disqualification from the pursuits of a lawful avocation” of any employee, or prospective employee, of defendant board “amounting to a form of punishment” which “although not directly depriving them of life, liberty or property does involve” them or deprive them of any rights constitutional or otherwise.

Unlike plaintiff, from the evidence, or lack of evidence, we cannot conclude that by making such request imposing such requirement defendant board presumes that its present and prospective employees advocate, and intend to advocate, the overthrow of the government of the United States by force and violence, and are members of organizations having that purpose as their objective; nor that by such request and requirement “defendant adjudges and deprives the teachers of their right to teach and other employees of their right to be employed by said defendant unless it is first removed “by the expurgatory oath” in the affidavit above set forth.

Nor “that the enforcement of the regulation will lead to great confusion and contention, demoralize the teaching staff (not one of whom have made any such claim) and undermine the prestige and stability of the public schools of said district;” nor that such request or requirement, will cause the wrongful and illegal expenditure of money of said school district * *

Assuming as plaintiff argues by brief, but as not shown by the evidence, that defendant “made no investigation whatever and heard no evidence as to whether or not the communist party had infiltrated the Cleveland Public School System, and were endangering the people by expounding Communist Doctrine in the schools” still it was under no duty to do so. It is an administrative body with broad discretion in protecting the Public School System of Cleveland.

We are not concerned with whether the resolution proposed by defendant board was wise or unwise. Unless and until the constitutional rights of a citizen of the United States are infringed by action implementing such regulation the hand of this court is stayed effectively by the law as announced by the supreme court of Ohio.

It is obvious from what we have said that we cannot conclude that the members of defendant board illegally expended any of its money, exceeded its powers as a state board, nor deprived its employees of any rights constitutional nor otherwise.

Finding and decree for defendants. Exc. Order see journal. Motion for new trial, if filed, overruled. Exc.

PHILLIPS, PJ, METCALF, J, GRIFFITH, J, concur.


author: By HUNSICKER, PJ.;

text:
    PASSANT, Plaintiff-Appellee, v. NEW CENTRAL MARKET, Inc., Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22436.
    Decided June 23, 1952.
    Paul Mancino, Cleveland, for plaintiff-appellee.
    Thompson, Hiñe & Flory, Cleveland, for defendant-appellant.
    (HUNSICKER, PJ, DOYLE, J, of the 9th District; METCALF, J, of the 4th District sitting by designation.)
   OPINION

By HUNSICKER, PJ.;

In this appeal on questions of law from a judgment on a jury verdict in the Municipal Court of Cleveland, the appellant makes the following assignments of error:

“1. The Trial Court erred in rejecting testimony offered by Defendant.
“2. The Trial Court erred in refusing to direct a verdict for Defendant.
“3. The Trial Court erred in overruling Defendant’s motion for new trial on the ground that the verdict was contrary to the evidence and the law.
“4. The Trial Court erred in entering judgment for Plaintiff and against Defendant.”

Counsel for the appellant also discusses one other point in his brief, to-wit, “The deficiency in the charge of the Court,” although it is not assigned as error on the part of the trial court.

The bill of exceptions, discloses that the appellee, herein called Passant, rented a stall in the market operated by the appellant, herein called Central Market, on a month to month tenancy. Passant was also a holder of one Class B, $500.00 par value share of stock in Central Market. The Central Market had an option to repurchase such share of stock for $500.00 if Passant desired to sell it.

Passant told Central Market he wished to sell his stall and thereafter found a buyer by the name of Burke who operated another stall in the same market. Burke and Passant agreed on a price of $5,000.00 plus an amount to cover the cost of merchandise inventory that Passant had on hand. Burke paid to Central Market the sum of $5,000.00, paid to Passant the amount of the merchandise inventory and took possession of the stall on June 1, 1950.

There is nothing in the record to show why the $5,000.00 was paid to Central Market except the inference that the Central Market wished to determine the responsibility of its tenants and exercise a control of the products such tenants sold. Passant was not told at or before the transfer of the stall to Burke that he must surrender to Central Market his stock for the right to sell his stall.

Two weeks or more after June 1st, when Burke took over the stall, Passant asked Central Market for his money and was told that he must bring in his stock certificate and then he would receive his payment for the sale to Burke.

Passant took the certificate to the Central Market, indorsed and gave such certificate to Central Market, and received a check from it for $5,000.00. This cheek carried on the reverse side the following statement — “Payment in full for stand and equipment on Stall No. 47. This releases The New Central Market, Inc. from all claims present and future concerning stand No. 47 and stock certificate No. B 78.” This check was dated June 26, 1950.

Passant said that he could not read the statement on the reverse side of the check, although he later stated that with the aid of glasses, he could read. He endorsed and cashed the check. A few days after cashing the check, he called on Central Market and asked for payment for his stock. This payment was refused and he was then told that the $5,000.00 which Burke paid for his stall also included payment for the stock.

Passant insists that he gave his certificate of stock to Central Market in order to get the money Burke paid for the stall and in the belief that Central Market wanted this stock to hold pending Passant taking over another stall.

It is clear from the record that Central Market did not make as a condition of the sale to Burke a requirement that the certificate of stock owned by Passant be transferred to it.

Counsel for Central Market sought to establish the sale price of other stalls in the market and the trial court rejected such evidence. We believe the trial court was correct in so ruling.

The sale price of other licenses to operate a stall had no bearing on the matter in issue in the instant case. The amount of profit Passant was making in selling his stall had no relation to the merits of this case.

The evidence does not show that the surrender of the stock certificate and release which Passant made when he endorsed the check were freely and voluntarily given. He was in a position where Central Market had a large sum of money which was rightfully the property of Passant and in order to get it he was required to give up his valuable stock certificate. The entire matter presents a situation analogous to the payment of a smaller sum than the amount due in satisfaction of a claim for a larger amount which is then due and which larger sum is definite and ascertained.-

There is no accord and satisfaction herein as pleaded in the amended answer of the Central Market. There was no dispute as to what Burke paid Central Market and no dispute as to the amount Passant was to receive if Central Market wished to exercise its option to repurchase the stock owned by Passant. See Yin v. Amino Products Co., 141 Oh St 21.

The trial court properly overruled the motion for a directed verdict.

The charge of the court covered the point both counsel insist was the main issue, that is, was Passant paid for his stock? The charge could have been amplified, but neither party requested additional instructions and, although we would have liked a more complete charge, the court gave sufficient instructions to present the matter to the jury.

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

Judgment affirmed. Exceptions noted. O. S. J.


author: By WATTERS. J.

text:
    NICHOLSON et, Plaintiffs, v. VENDING MACHINE SERVICE EMPLOYEES, LOCAL UNION NO. 410-A et, Defendants.
    Common Pleas Court, Summit County.
    No. 182931.
    Decided February 28, 1952.

      Clarence W. May, of Brouse, McDowell, May, Bierce and Wort-man, Akron, James W. Matz, of Helmkamp, Matz and Peter - silge, Akron, for plaintiffs.
    Paul C. Weick, Kenneth A. Mason, of Weick and Mason, Akron, for defendants.
   OPINION

By WATTERS. J.

FACTS AS FOUND BY THE COURT.

The plaintiffs, Harry Nicholson, et al, are the owners of a restaurant and bar located at 1307 South Main Street, Akron, Ohio, open twenty-four hours, all seven days of the week.

Installed in the restaurant and bar is a musical box owned and installed by Nick Haradakis, who hires no one to service said Juke box, and who does not belong to the defendant union (Vending Machine Service Employees, Local Union No. 410-A) or any union.

The music box is coin operated by patrons who select their record at their tables or booths or at the bar, and insert a coin whieh sets in motion the musical box which is played electrically.

Haradakis testified that he installed the wiring, etc. himself, and denied that he ever had any helpers, although he did at least at “20 Bar” on West Bowery Street. The money was divided between the plaintiffs and Nick Haradakis. We spent a long time trying to find out from Nick what the machine took in. He was an extremely evasive witness all the way through. The gross “take” is probably a weekly average of thirty-five dollars.

The other defendant, Vic Letzel, is the business agent of said union. Said union is affiliated internationally with the Teamsters Union A. F. of L. Haradakis likewise does not belong to the Summit County Automotive Operators Association, an organization of juke box owners, which association is not a party to this action.

The waitresses, bar tenders, etc. who work for plaintiffs are members of the A. F. of L. union covering such work. There is no dispute between the plaintiffs and their said union employees, waitresses, bar tenders, etc.

The dispute is that the plaintiffs have in their place of business a juke box which is serviced by the owner thereof, Nick Haradakis, who is not a member of the defendant union.

Said union has an agreement or contract with the Summit County Automotive Music Operators Association and the Union (Plaintiffs’ Exhibit 1) and a form of agreement or contract with those like Haradakis who do not belong to said Summit County Automotive M!usic Operators Association, and who either service the music box personally or through employees. (Plaintiffs’ Exhibit 8.)

This proposed agreement as presented to Haradakis was indefinite as to what cash bond he or those like him would have had to furnish, and was indefinite as to the wage scale he would have had to pay if he did hire employees to service the music boxes he owns and lets out.

But Haradakis claims he has no employees, and I am sure would not have joined the union no matter what the rate of wage was or what the amount of the cash bond required was to be.

The union has since adopted a new proposed agreement (Defendant’s Exhibit B) in which these matters are now definitely covered, but which the court feels it cannot consider in evidence in this case. Even if considered this evidence would not change the court’s decision.

The defendant union, and the defendant Letzel, after attempting to get Haradakis to sign an agreement and become a member of the defendant union, and after attempting to get plaintiffs to persuade Haradakis to join, or to put in a music box that was union serviced upon their refusal to do so, commenced picketing and bannering at plaintiffs’ place of business. The first picketing started October 26, 1951, and continued through November 1, 1951. The next picketing started November 8, 1951, and continued to November 10, 1951, when halted by the temporary injunction issued by another Judge of this Court, who then set the case for trial on its merits.

The number of pickets engaged differed, and the actual number of hours of picketing each day varied, but the picketing extended roughly speaking between the hours of 6 A. M. to 5 P. M. The defendant Letzel was present practically at all times while picketing took place. The other pickets were members of the Teamsters Union with which the defendant union is affiliated.

The pickets carried various banners at the various times with various printed or painted words thereon which purported to acquaint the public with the nature of the dispute, under the freedom of speech doctrine recognized in labor disputes and otherwise. The court will discuss these banners more fully later. We do not have any of these banners in evidence, but only photographs of them supplied by both sides.

The evidence shows no violence and no intimidation and no threats. Patrons of plaintiffs’ place were not interfered with personally. Mr. Letzel, the business agent, when truck drivers would appear with deliveries or to solicit orders, would talk to them and ask their cooperation. There is no evidence that the true dispute was directly misrepresented to them by the defendants. They being members mostly of the Teamsters Union were reluctant to cross any picket line, especially one of a union affiliated with the Teamsters Union. So they refused to cross the line, or after calling their union were apparently advised against it until their union could check fully. In any event many members of that union, the teamsters, did testify for plaintiffs as to just what happened, which shows at least a friendly feeling toward plaintiffs in the situation.

As a result of non deliveries plaintiffs were deprived of some supplies, but the matter had not reached such a stage where plaintiffs could not carry on their business as far as the matter went.

Plaintiffs claim that the conduct of the defendants herein, through picketing, bannering, etc. is an unlawful interference with plaintiffs’ personal, property and contractual rights, and is an unlawful restraint of the trade and business carried on by the plaintiffs herein, and that said conduct on the part of the defendants herein constitutes an unlawful secondary boycott, and pray for a permanent injunction against all picketing, bannering, and such claimed unlawful conduct.

The defendants on the other hand claim the right to peaceably picket and to banner said plaintiffs’ business under the 1st and 14th Amendments to the United States Constitution and under Article I, Section 11 of the Ohio Constitution which, among other things, guarantee the right of freedom of speech.

DISCUSSION OF THE LAW

This court, on August 24, 1948, decided the case of Iacomini Restaurant Inc. v. Hotel and Restaurant Employees and Bartenders Local No. 181, et al, 54 Abs 33; 38 O. O. 552, and 85 N. E. 2nd, 534.

The syllabus as approved by this court held:

“A labor union does not lose its right to peacefully picket a non union business where the object is to secure a closed shop.”

In that case the business was non-union. There was no dispute of any kind between the employer and his employees. The union was picketing to force the employees to join the union, and to force the employer to get them to join, and to secure a closed shop. That case was affirmed by our Ninth District Court of Appeals, November 23, 1949, in Case No. 3964.

See also Clarks Lunch v. Waiters Union, 22 Oh Ap, 265.

This court, on October 11, 1949, decided the case of Foutts, Plaintiff, v. Journeymen Barbers Local 105, etc., Defendants. Summit County Common Pleas No. 169,512, which appeared in 55 Abs, 537, the syllabi of which, although drawn by that Digest, this court approves, and which syllabi are as follows:

(1) “A labor union has the right to picket peacefully the place of business of an employer providing there exists a lawful labor dispute between the union and the employer and providing the union does so in a manner which honestly and truthfully has for its purpose the informing of the public as to the dispute.

(2) “Where an employer has, for many years, owned and operated a union barber shop in strict compliance with all reasonable and lawful provisions of the employees’ union, that union cannot later require, under the terms of a new constitution and by-laws, that such employer become a nonparticipating member of the employees’ union to the exclusion of all others and under the compulsion that a refusal to do so would result in the loss of his union shop card and the resignation of his union employees.” (Emphasis by the court.)

See also Court’s Conclusions beginning on page 543.

The Ninth District Court of Appeals affirmed this court.

The Supreme Court of Ohio, in 155 Oh St, 573, reversed both lower courts, and held:

Syllabus (2) “The display of a union shop card is a representation to the public that the party displaying it is recommended by and has the approval of the union issuing such shop card.

Syllabus (3) “If such party is not so recommended, and does not have that approval, that representation is false and will necessarily tend to deceive the public.

(4) “A court of equity will not enjoin the removal of a union shop card where the party displaying it has no contractual right to continue its display and is no longer either recommended or approved by the union.”

In its majority opinion the Supreme Court of Ohio found, on page 579 (near bottom) “No picketing or threatened picketing is involved in the instant case.”

May I say that although no actual picketing had occurred, and no threat to picket was made actually, the union strongly contended through its witnesses and through counsel that it had the lawful right to picket.

To this effect see Judge Middleton’s dissenting opinion concurred in by the Chief Justice, where he found: (bottom page 587) “* * * and picketing — if union elects to exercise its’ asserted right to do so.”

In 1941 in Milk Drivers Union of Chicago v. Meadowmoor Dairies Inc., 312 U. S., 287, the Supreme Court held:

Syllabus:

(1) “A State is at liberty under the Fourteenth Amendment to use injunctive powers vested in its courts for the prevention of violence by labor unions in industrial disputes.

(2) “And where the controversy is attended by peaceful picketing and by acts of violence, and the violence has been such that continuation of the picketing will operate coercively by exicting fear that violence will be resumed, an injunction by a state court forbidding the picketing as well as the violence does not infringe the Fourteenth Amendment.”

The court said on page 294:

“The picketing in this case was set in a background of violence. In such a setting it could justifiably be concluded that the momentum of fear generated by past violence would survive even though future picketing might be wholly peaceful.”

Further the court held in Syllabus No. 5:

“The present decision does not bar resort to the state court for a modification of the injunction should that court find that the passage of time has deprived the picketing of its coercive influence.”

In other words, at that time peaceful picketing could again be resumed.

In the same case Justice Reed, dissenting, sai£ in part at page 320:

“This nation relies upon public discussion as one of the indispensable means to attain correct solutions of problems of social welfare. Curtailment of free speech limits this open discussion. Our whole history teaches that adjustment of social relations through reason is possible while free speech is maintained. * * * Free speech may be absolutely prohibited only under the most pressing national emergencies. * *

312 U. S. 321, A. F. of L. v. Swing (1941)

Syllabus:

“The Constitutional guaranty of freedom of discussion is infringed by the common law policy of a State limiting peaceful picketing by labor unions to cases in which the controversy is between the employer and his employees.”

On page 326 the court said:

“The right of free communication cannot therefore be mutilated by denying it to workers, in a dispute with an employer, even though they are not in his employ.”

The union sought unsuccessfully to unionize a non-union beauty-parlor business. Picketing of the shop followed. The court held peaceful picketing permissible. There was some claim or question of violence, and so forth, but for the purpose of the decision, the court said that the state of the record made it necessary to disregard the question of violence.

In the case of Crosby v. Rath, et al, 136 Oh St, 352, the Ohio Supreme Court enjoined all picketing, even peaceful picketing, on the grounds that there was no legitimate trade dispute. This case was decided in January, 1940.

It will be noted that the union here sought to unionize the restaurant involved, and that none of the employees belonged to any union, nor was there any dispute between the employer and employees. Furthermore, there was extreme violence before the temporary injunction was issued by the trial court. The slashing of patrons’ automobile tires, assaulting of employees and customers, throwing of stench bombs, and dynamiting of the employer’s former residence, and other acts of violence occurred.

In my opinion, under the opinion of the Supreme Court of the United States, in the case of A. F. of L. v. Swing, 312 U. S. 321, February 10th, 1941, discussed herein, there was a legitimate trade dispute, but even so, if the Supreme Court of the United States had let it in, and had decided it, peaceful picketing would not have been allowed, because the United States Supreme Court held (Feb. 10, 1941) in the Milk Drivers Union v. Dairies, etc., 312 U. S. 287, that where the violence is of such magnitude originally that.continuation of peaceful picketing will operate coercively, by exciting fear that the former violence will, be resumed, then all picketing will be enjoined.

It will be noted that the Ohio Supreme Court decision was in January, 1940, while the other two United States Supreme Court cases were decided February 10, 1941.

It will also be noted that the majority opinion makes no mention of the free speech doctrine laid down by the United States Supreme Court in the Swing and Milk Drivers cases. However, Judge Zimmerman in his dissenting opinion does recognize it and discusses it well and favorably as the law of the land.

Judge Myers, at page 356, concurring with the majority, pointed out that the union forfeited its right to peacefully picket by the extreme violence that occurred before the injunction against' picketing. This ties in consistently with the Meadowmoor Dairies Inc. v. Milk Wagon Drivers Union discussed herein, where there was likewise extreme violence.

See also Judge Day’s dissenting opinion, which upheld the right to peacefully picket.

From the very fine article of Clare Fahrer, senior student, Law School Cincinnati University, in Ohio Law Rep., May 31, 1948, citing many cases in re picketing, I quote:

“The United States Supreme Court denied certiorari of the Crosby case on the same day that the A. F. of L. v. Swing opinion was handed down. It may be that the existence of violence in the Crosby case was such that the court did not believe it was a proper link to fit in the chain of decisions on “picketing as free speech” * * *. Certainly the Ohio Supreme Court’s opinion paid scant heed to any question of infringement on the right of free speech. At any rate the rule of the Swing decision has been considered to be broad enough to limit substantially if not completely to overthrow the authority of Crosby v. Rath.”

The defendants, the union and its business agent, cite the identical case of Howard J. Irwin, plaintiff-appellee, v. International Brotherhood of Electrical Workers, etc., Defendants-Appellant, Case No. 3398, recently decided by the Seventh District Court of Appeals of Ohio.

The decision in full which I am informed was not appealed, is as follows:

“Plaintiff owns a tavern, situated in Youngstown, Mahoning County, Ohio, in which there was installed an automatic coin operated phonograph serviced by members of defendant-appellant, International Brotherhood of Electrical Workers of the American Federation of Labor.
“Plaintiff replaced that phonograph (which he did not own) by one (which likewise he did not own) not installed nor serviced by members of defendant union, from which he received a percentage of-the income derived therefrom.
“Plaintiff refused to yield to the peaceful requests of representatives of defendant union to install a phonograph serviced by its members.
“Thereupon one of defendant members at a time peacefully walked to and fro in front of plaintiff’s tavern carrying a manner containing the words ‘the music box in this establishment is not serviced by a member of the I. B. E. W., Local 442-H, A. F. of L,’ admittedly for the purpose of advertising ‘the fact that the phonograph in plaintiff’s establishment was not union serviced,’ intended ‘to persuade the public not to patronize’ plaintiff’s tavern, and with the result that certain suppliers of merchandise to plaintiff refrained from delivering same to such tavern.
“In the court of common pleas plaintiff sought an order permanently enjoining defendant union individually and its members collectively, from interfering with, bannering or picketing his tavern, or from interfering in any way with plaintiff, or any of his patrons. Upon hearing the trial judge found there was no labor dispute between employer and employee, and upon the evidence presented to him that it was unlawful for defendant union to picket plaintiff’s tavern, and permanently enjoined it:—
“ ‘1. From picketing, bannering, or patrolling the streets or sidewalks adjacent to, or in the vicinity of the plaintiff’s place of business; from loitering or congregating at or near any entrance to plaintiff’s place of business, or his residence, and from threatening to do so.
“ ‘2. From in any manner preventing, interfering with, impeding, delaying, or stopping any deliveries to the plaintiff of any merchandise or supplies of any nature whatsoever.
“ ‘3. From advising, protecting, aiding, or assisting any person or persons in the commission of the acts hereby restrained.’
“Defendant appealed from that order and judgment of the trial court on questions of law and fact, and the appeal was heard in this court de novo.
“While a member of the grievance committee of defendant union, who called at plaintiff’s place of business, testified that he was sent there to settle a ‘dispute,’ we find no evidence of a dispute, labor or otherwise.
“On the contrary there was only a peaceable request concerning servicing of the music box installed in plaintiff’s place of business, to which reference is made supra.
“Upon rejection of that request, one member at a time of defendant union carried a banner in front of plaintiff’s place of business, worded as set forth above, which, as disclosed by the evidence, was a truthful statement. During more than one occasion of such ‘picketing’ a member of the grievance committee and another member of defendant union sat in an automobile parked across the street from plaintiff’s place of business.
“Plaintiff’s evidence discloses that ‘there was no threat made’ (sic), and no violence of any kind committed, no attempt to intimidate supplies of merchandise made, thus distinguishing this case from the case of Crosby, Appellant, v. Rath, et al, Appellees, 136 Ohio St., 352.
“Our decision is based entirely upon the Fourteenth Amendment to the Constitution of the United States, guaranteeing freedom of speech to all of its citfeens, limited of course, to the right to speak the truth.
“Therefore it is the finding of this court that plaintiff has not established his right to the relief sought in his petition.
“The finding and decree of this court is for defendants, and plaintiff’s petition is dismissed.” (Emphasis by the court.)

WAS THE DEFENDANTS’ CONDUCT A SECONDARY BOYCOTT?

The Supreme Court of Ohio in the case of Anderson Sons Company v. Local Union No. 311 Teamsters, etc., decided February 13, 1952 (Ohio Bar February 18, 1952) and which will appear as 156 Oh St, 541, held the following in syllabi 1 and 2 in defining what is a secondary boycott:

“1. Workers may by means of peaceful and lawful picketing or bannering announce their grievances to the public and thus persuade or seek to persuade prospective employees as well as prospective customers of the person against whom the picketing or bannering is directed from dealing with such a person.
“2. A boycott may be defined in general terms as a concerted refrainment from business relations with another, or a concerted persuasion of third persons outside the combination to so refrain. It may be primary where there is a concerted refrainment from business relations with another, or by peaceful means a concerted inducement of others outside the combination to so refrain; or it may be secondary where there is not merely a concerted refrainment from business relations with the person against whom the boycott is directed or by peaceful means a concerted inducement of others outside the combination to so refrain, but an exercise of economic pressure upon such others to cause them to refrain from business relations with the person against whom the boycott is directed, through fear of loss or damage to themselves if they refuse to do so.”

This case cites many authorities of interest to counsel. I will not attempt to discuss the facts or law cited fully.

I rather agree with Judge Zimmerman in his dissenting opinion at page 565, where he says: “The term ‘secondary boycott’ is elusive of any concrete definition.”

However I do not find any similarity between the facts in the instant case and the Anderson case above. Our facts do not fall within the definition in the syllabus or that from 24 O. Jur., 676, Section 61, cited by the court on page 563 of the Anderson- case, with approval, as follows:

“A secondary boycott is a combination not merely to refrain from dealing with a person, or to advise, or by peaceful means persuade, his customers to refrain from dealing with him, but to exercise coercive persuasion upon such customers, actually causing them to withhold or withdraw their patronage from him through fear of loss or damage to themselves * * (Emphasis by the court.)

The plaintiffs operating the restaurant and bar are financially interested with Haradakis, the juke box owner, sharing in the gross take therefrom in a substantial way.

For all practical purposes they are all engaged in a joint enterprise as to said music box under the ruling of our Supreme Court in Bennett v. The Sinclair Refining Company, 144 Oh St 139.

The instant case does not involve any unlawful combination in restraint of trade or secondary boycott. It does not involve interstate commerce, so the so called Taft-Hartley Act is not applicable.

By means of peaceful picketing or bannering, through the press, via radio and the like, unions may acquaint the public under the doctrine of freedom of speech, under the Constitution, with their grievance, and this is true even though incidental hardship and damage may result.

Likewise the plaintiffs here, by banners or otherwise, may acquaint the public with the fact that they have no dispute with their union waiters, etc., and as to what the real dispute is, so the Teamsters Union members will know that it is not a teamsters strike or picket line, and that its waiters, etc. are not on strike, and that no strike is going on.

It is obvious that the Fifth District Court of Appeals did not consider its case, which was practically identical, as a secondary boycott, but decided that case solely on the right of freedom of speech.

CONCLUSION OF THE COURT

Under the facts and the law, the court concludes that this is not a case of secondary boycott.

Under the facts and the law there is in the court’s opinion a labor dispute, and even if that is not technically true under the authority of the case of the Fifth District Court of Appeals set forth fully herein, the defendants under the freedom of speech theory would have the right to peacefully picket the plaintiffs’ place of business so long as what is represented to the public by word of mouth or banners carried is the truth.

There has been no force or violence or threats, and no such conduct will of course be permitted.

Patrons, employees, tradesmen, truckers and the like are not to be prevented from going to and from the place of business, although they may be peacefully acquainted with the dispute.

The signs carried, or word of mouth representations, shall speak the truth, to-wit, “that the music box therein is not serviced by union labor.” Nor shall the banners or oral representations attempt by larger print or otherwise to leave the false impression that it is a teamsters picket line. The present type banners in evidence, by photographs, are improper and cannot be used, because they do create that impression.

Some union members of the teamsters union, upon contacting their union, refused to cross the picket line, which was their privilege. That may have been due in part to a mistaken feeling that the teamsters union was really involved. However at the trial several union teamsters did testify for plaintiffs as to what occurred when they appeared to deliver goods.

The court finds that one picket at a time is reasonable and sufficient. No more will be permitted at one time. This does not mean that any union officer can also be on the scene.

Outside of the Youngstown case cited here, in full, this matter is new as far as the court can find, except as to the general labor law cases cited. In view of this fact, it is not beyond the realm of possibility that counsel may be able to work out some reasonable truce while the case is going through the courts, without prejudice to any rights the parties may have as the case is finally determined.

The petition of the plaintiffs is dismissed in so far as the injunction is concerned against peaceful picketing, which is allowed under the regulations the court has laid down.

Exceptions to the plaintiffs and defendants both.

Journal entry may be prepared along the lines indicated. Costs are taxed against plaintiffs.


author: By THE COURT:

text:
    STATE, ex rel. WENDT et, Plaintiff-Relators, v. SMITH et, Defendants-Respondents.
    Ohio Appeals, Second District, Greene County.
    No. 519.
    Decided March 24, 1951.
    Paul E. Layton, Fairborn, for plaintiff-relators.
    Smith & Smith, Xenia, for the Board of Elections.
    Shoup & Hagler, Xenia, for Lowell Fess, defendant.
   OPINION

By THE COURT:

This action in mandamus was instituted in September, 1950, by relators claiming to be residents and electors of Bath Township, Greene County, Ohio, and that they were entitled to vote at the coming November general election.

Issues have been made up by an answer of defendants Board of Elections, Greene County, and by answer of Lowell Fess, who was made a party defendant on his own motion.

The prayer of the petition is for a writ commanding the defendants to provide, for the registration of relators, a place to vote, and to accord them the right to vote in the general election of November 7, 1950. An alternative writ was issued responding, in part, to the prayer of the petition and thereafter, before election date, was ordered withdrawn.

At the out-set we are confronted with the fact that there is a strong probability that the issue has become moot because of the fact that should plaintiffs maintain their case the relief sought in the petition could not be granted as the date of the election to which the writ of mandamus, if issued, would apply has passed. However, inasmuch as counsel have presented the case and briefed it, we briefly consider it.

We have examined the briefs and the law and although the question is not free from doubt, it is our judgment that the Attorney General in his opinion No. 1705 has properly resolved the issue. He held in the 4th syllabus of his opinion that

“Exclusive jurisdiction of Skyway Park and Skyway Lodge has been accepted by the United States by a letter of November 4, 1949, which was sent to the Governor of Ohio by the Department of Air Force of the United States.” and that by reason of this action of the United States “the inhabitants lose their right to vote as electors of Skyway Park Precinct, Bath Township, Greene County, Ohio.” 3rd syl.

The argument of counsel, very properly, is directed to the decisive question, viz; whether the United States has by appropriate and valid action assumed exclusive jurisdiction of the land whereon relators reside.

It would serve no good purpose to labor the question in as much as, in our judgment, the Attorney General has properly analyzed the facts and construed the law as it affects the decisive issue.

The judgment will be that the prayer of the relators be denied and the petition dismissed.

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


author: By THE COURT.

text:
    STEWART, Guardianship, In re.
    Ohio Appeals, Second District, Franklin County.
    No. 4752.
    Decided April 22, 1952.
    Bougher & Scarberry, Columbus, for appellant, Agnes F. Stewart.
    John H. Summers, Columbus, for Charles H. Kent, Guardian.
   OPINION

By THE COURT.

This is a motion to dismiss the appeal on law and fact for the reason that said appeal does not present a chancery question. The record reveals that the order appealed from is one appointing a guardian for Agnes F. Stewart, an incompetent person. This is not a chancery case. In re Guardianship of Moyer, 68 Oh Ap 319, the third syllabus provides:

“A proceeding for the appointment of a guardian is not a chancery case within the meaning of that term as used in Section 6, Art. IV of the Constitution of Ohio, and an appeal on questions of law and fact from an order making such appointment cannot be taken.”

This Court has held that,

“An appeal on questions of law and fact does not lie from an order of the Probate Court adjudging a person to be incompetent and appointing a guardian of his estate.” In re Jacobs: Jacobs v. Jacobs, 60 Oh Ap 551.

The motion will be sustained, but the cause will be retained for determination on questions of law as provided by §11564 and §12223-22 GC. The appellant will be granted leave to perfect said appeal in accordance with Supplement to Rule VII of this Court.

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


author: OPINION By DAVIES, J.

text:
    WATERS, In re.
    Probate Court, Hamilton County.
    No. 181931.
    Decided October 18, 1951.
    George F. Eyrich, Jr., Cincinnati, for The Western Bank and Trust Company, Executor of the Estate of Myrtle lone Waters. Deceased.
    C. William O’Neill, Atty. Geni., Columbus, for the Department of Taxation of Ohio.
   OPINION

By DAVIES, J.

This matter comes before the court upon the exceptions of The Western Bank and Trust Company, executor of the estate of Myrtle lone Waters, deceased, to a former order of this court taxing the succession of an $18,974.50 bequest to Elizabeth B. Dent at the rate of seven per cent without a $500.00 (rather than at the rate of five per cent with a $500.00) exemption.

The testatrix died on March 24, 1951. Her son, Barret Waters, predeceased her, and his “widow,” the said Elizabeth B. Dent (formerly Elizabeth B. Waters), subsequently and before the death of the testatrix remarried. Elizabeth’s husband also was alive when the testatrix died.

Under these circumstances, the court is asked to determine if, on March 24, 1951, Elizabeth B. (Waters) Dent was the “widow” of Barret Waters.

Sec. 5334 GC, Sub-Section 3, provides that in levying an inheritance tax upon a succession of property passing to or for the use of “a wife or widow of a son” or the “husband of a daughter” of the decedent, the exemption shall be five hundred dollars, and (under the provisions of §5335 GC) the rate shall be five per centum on such portion of the value'of the property transferred up to and including the twenty-five thousand dollars as shall be in excess of the five hundred dollar exemption.

If, under the provisions of Sub-Section 3 of §5335 GC, Elizabeth B. Dent was not the “widow” of Barret Waters on March 24, 1951, she is not entitled to any exemption and the succession to her would be taxed at the rate of seven per centum.

The question whether or not the Legislature of Ohio intended for inheritance tax purposes that a widow of a son would lose her status of “widow” upon remarriage is not clear in the statutes, and there has been no direct court holding upon the question in Ohio. Outside of Ohio, diversified opinions have been rendered under facts similar to those in the case before us for consideration.

The general definition of the word “widow” is a woman who has lost her husband by death and has not married again. Webster’s New International Dictionary, Bouvier’s Law Dictionary. However, courts in determining legislative intent in using the word “widow” have ascribed a modified and less restrictive meaning to the term “widow.”

As stated, some cases hold that upon remarriage a “widow” ceases to be a “widow.” Thus, in Com. v. Powell, 51 Pa. 438, a collateral inheritance tax exemption in favor of “the wife or widow of a son” was held not to inure to the benefit of such a widow who married before the testatrix died. The court reasoned that, under these circumstances, the claimant could not be the wife of the testator’s son because he was dead, nor could she be his widow, for she was again married, and declared that the word “widow” was exclusively descriptive of an unmarried condition.

It has been argued by counsel for the Tax Commission that the case of Tax Commission of Ohio v. Hirsch, 31 Oh Ap, 325, and Attorney General’s Opinion 3113, O. A. Vol. 1, 1922, p. 398, supports the Commission’s view that, in the instant case, Elizabeth B. Dent is not entitled to the five hundred dollars exemption and that the bequest to her should be taxed at the rate of seven per centum.

We do not agree with this contention.

In the Hirsch case, the court considered what rate of taxation should be fixed upon a succession to a son-in-law of the testator who survived the testator’s daughter.

It was claimed by the exceptor in this case that a son-in-law comes within the descriptive words of paragraph 3 of §5334 GC, “the husband of a daughter of the decedent,” and by reference takes the five hundred dollar exemption and the rate provided for in paragraph 2 of §5335 GC.

The Tax Commission, however, claimed that, as the son-in-law, he would take as “widower” and would not be a husband of a daughter, but, on the contrary, would be the widower of the daughter and would be taxed under the provisions of Sub-Section 3 of §5335 GC.

The court held that, when in sub-paragraph 3 of §5334 GC, a certain exemption was provided for “the wife or widow of a son” and “the husband of a daughter,” the Legislature did not intend, under the phrase “the husband of a daughter,” to include the “widower of a daughter” and give the “widower of a daughter” the exemption provided under sub-paragraph 2 of §5335 GC, for a “widow of a son,” and the court fixed the tax to the “widower of a daughter” at a beginning rate of seven per centum without exemption, as provided in Sub-Section 3 of said §5335 GC.

The cited Attorney General’s Opinion likewise holds that the words “husband of a daughter,” as used in sub-paragraph 3 of §5334 GC, do not include the “widower of a daughter.”

Neither the Hirsch case nor the Attorney General’s Opinion directly, or by implication, indicate if a “widow” of a deceased husband upon remarriage ceases to be his “widow.”

We have found a number of court decisions in other states which hold that a “widow” continues to bear the relationship of “widow” to a deceased husband after her remarriage.

In the case of In re Solms’ Estate, 98 Atl. Rep. 596 (Pa..), the court, in considering the meaning of the word “widow,” said “there seems to be no inflexible rule, certainly none in Pennsylvania, that the word ‘widow,’ when used to denote relationship to a legatee or donee, necessarily means the wife who shall survive him, when another was his wife at the making of the will or trust deed. In such case, who was really intended should be determined by a consideration of the entire instrument, aided by the rules of construction.”

In Meeker v. Draffen et al., 94 N. E. Rep. 626, it was held that the term “widow,” as used in a will, was not restricted to his wife at the time the Will was made, but included the wife who survived him.

In Clay v. Edwards, 84 N. J. L. 221, 86 A. 548, the phrase “husband of a daughter,” found in the inheritance tax laws, was held to include within its meaning the surviving husband of a deceased daughter, even though he subsequently married.

In Brady v. Banta et al., 26 Pac. Rep. 441, the court found that “when real estate descends to a widow and children as a homestead, and such widow marries again, but with her children continues to occupy said real estate as a homestead, the marriage of said widow does not destroy the homestead character of said real estate so as to subject it to the payment of the debts of the decedent.”

The court, in the case of Mathews v. Maraden, 71 Mont. 502, 230 Pac. 775, in considering a statutory election of a “widow,” concerning a dower in her deceased husband’s estate, held that the remarriage of a widow did not deprive her of the right to elect to take one-half interest in the estate of her deceased husband in lieu of dower, and held that the word “widow,” as used in the statutes of Montana, referred to the person and not to her then state or condition.

In In re McArthur’s Estate, 292 Pac. Rep. 469, the court held that the sister and sole heir of a deceased brother was entitled, on death of widow, to his share of a community estate, regardless of widow’s remarriage.

In the case of In re Ray’s Estate, 35 N. Y. Supp. 481, the court considered the taxability of a bequest to a son-in-law under a statute which provided that property passing to a “wife or widow of a son” or “husband of a daughter” was not taxable when less than $10,000.00 in personal property. In that case a bequest of less than $10,000.00 was made to a son-in-law who survived his wife and also the testatrix, who was the mother of his wife. Before the death of the mother, the son-in-law remarried.

The court exempted the bequest from tax because it reasoned that the phrase “husband of a daughter” of testator includes the husband of a deceased daughter, though he remarried.

The court, to support its position, conceded that “in a technical sense, a man whose wife is dead is not a husband, still, in a sentimental and social sense, by common usage as well as by statute, such a person, upon the settlement of estates especially, and in some other matters generally, is recognized and designated as ‘husband’ instead of ‘widower,’ which perhaps more accurately describes his relation to his dead wife.”

The court also pointed out that if a wife survives a husband, she is described sometimes as “wife” and sometimes as “widow.”

The court finally contended that if the legislature had intended not to use the word “husband” in that sense, it would have made its meaning clear, definite and certain by saying the “husband of a daughter, if she be living.”

In commenting upon the meaning of the classification “widow of a son,” the court commented as follows:

“A woman, though the wife of another, is still the widow of her former husband; though married to another woman, the husband is still the widower of his former wife: and, this being so, both come, not only within the language of the law, but within its just and reasonable construction. The law invests them with the name of ‘husband’ or ‘wife’ or ‘widow’ for certain legal purposes, and under these names, although the designation may not come within the definition of the dictionary, property may vest in them, whether it comes to them by legacy or otherwise. Notwithstanding 'the definitions of the words ‘wife,’ ‘widow,’ and ‘husband,’ we apprehend it is not our duty to accept them in place of the statutes of this state, which make use of these words, whether correctly or not, to designate persons entitled to certain legal rights. The words ‘wife,’ ‘widow,’ and ‘husband’ have obtained a legal use and significance in the settlement of estates which may not correspond to the technical definition of the lexicographers, but it is the duty of courts to give that effect to these words which long use and custom have sanctioned. Until the legislature has removed all doubt by plainly saying that the ‘husband of a daughter, if she be living,’ or the ‘widow of a son, if she be unmarried,’ are exempted from the tax, courts are justified in giving that interpretation to the transfer tax act which will make effective the objects of the law, and confer upon heirs and legatees the benefit which the legislature intended.”

We believe that the Legislature of Ohio, by use of the phrase “widow of a son” found in Sub-paragraph 3 of §5334 GC, used the word “widow” as being descriptive of, and the means of identifying, a certain individual woman who has lost her husband by death, rather than as referring to the unmarried status of such individual, and did not intend that, upon remarriage, such person would cease to be the “widow” of her deceased husband.

Accordingly, the exceptions of The Western Bank and Trust Company, executor of the estate of Myrtle lone Waters, deceased, will be sustained, and the succession to Elizabeth B. Dent, as the widow of Barret Waters, shall be taxed at the rate of five per centum, as provided in Sub-paragraph 2 of §5335 GC, with an exemption of five hundred dollars, as provided in Sub-paragraph 3 of §5334 GC.