text:
    DANIS, Admr., Plaintiff-Appellant, v. NEW YORK CENTRAL RAILROAD COMPANY, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22259.
    Decided December 3, 1951.

      A. D. Nesbitt, Charles Redmond, Cleveland, for plaintiff- ' appellant.
    Paul Lamb, Cleveland, for defendant-appellee.
   OPINION

By SKEEL, PJ.

This appeal comes to this Court on questions of law from a judgment entered for the defendant by direction of the Court upon defendant’s motion at the conclusion of the plaintiff’s case.

The plaintiff, a lady sixty-eight years of age, was walking north on the west side of West 61 Street from Clark Avenue toward the right of way of the defendant railroad company. When she got to the crossing she stopped while a west-bound train passed by. When the train had passed, a crossing watchman stationed on the south side of the crossing, motioned the pedestrians, including the decedent, to proceed. There were two other pedestrians described in the evidence, who started across at the same time under the directions oí the crossing watchman. At this crossing the defendant maintains six tracks. The east and west bound main tracks are in the center, two freight tracks, one on each side of the main tracks, and a switch track on the outer side of each of the freight tracks. Two crossing watchmen were stationed at this crossing, one on the north side and one on the south side. There was a box car standing on the southerly switch track, just west of the crossing at the time of the accident.

As the decedent proceeded across the intersection, a train was approaching from the west, which, when she was directed to proceed over defendant’s tracks by the watchman, was obscurred from her view by the box car. When she was part' way across, the watchman on the south side “hollered” for the pedestrians, including the decedent, to come back, while the watchman on the north side was giving conflicting directions. The decedent was hit and instantly killed.

From an examination of the record, the plaintiff’s evidence supported in every respect the allegations of negligence set forth in his petition.

The only question, therefore, is, does the plaintiff’s evidence establish as a matter of law that his decedent was guilty of contributory negligence in crossing in front of an on-coming train?

The evidence which is relied upon by defendant is that after the decedent was advised to proceed across the intersection and she had gotten beyond the first track where a box car was so placed as to block the view to the west, she had, by the undisputed evidence, a clear view in the direction from which the train was approaching and, in the exercise of ordinary care, should have discovered the danger.

The evidence shows that decedent walked from 15 to 20 feet before reaching the track where she was struck by the on-coming train, and for that distance there was a clear and unobstructed view to the west. The evidence also shows that there was a great deal of noise about the intersection. An ice crusher was in full operation on the platform of the Ohio Provision Company, at the northwest corner of the intersection which added to the noise of the receding westbound train which had just passed. To add to the confusion the defendant’s watchmen were shouting contradictory instructions which way to go to avoid the immediate on-coming danger. The testimony of one of the pedestrians was in part as follows:

“A. You want me to tell what happened?

Q. Yes, tell what happened.

A. As the watchman told us to go, we started across and as we got half-way toward the tracks I heard a yell for us to go back

A. As we start across I got half-way onto the tracks and I heard the watchman holler for us to come back. At the time he hollered I don’t know what made me look up, but as I looked up I seen the train rushing down on me, and .1 naturally looked across again because they were across on that side and I seen them, but instead of going back I just ran straight forward as fast as I could because I was naturally scared and when I turned around that is when I heard that she had been hit.

Q. When you heard the watchman to tell you to come back do you know where Mrs. Julia Dianiska was with respect to that crossing?

A. I don’t believe she was quite as far as I was. She was heading onto the track I was on.”

The witness who was operating the ice crusher testified in part:

“Q. - - of the Ohio Provision. What, if anything did you observe about this crossing?

A. Noise, commotion, so I looked up. I don’t know what it was. I was at the truck when I heard the noise and wondered what it was from and heard the watchman, so I want to know what it was. The next I heard, hear locomotive whistle, bell ring. Then I stoop, pick up another piece of ice, put it in. When I looked I saw things fly in the air which was this particular woman. She landed about forty feet from where she was hit.

Q. When did you first observe the woman — when did you first see the woman before she was hit?

A. She was standing on the track when I saw her.

Q. What did you say the watchmen were doing?

A. They were motioning for her to go back.

Q. Which watchman was motioning for her to go back?

A. As much as I could see, both of them were motioning her to move, go back. One was motioning to go one way, the other fellow was motioning from the other side to go —

Q. Where were these watchmen stationed?

A. One was from Clark Avenue side.

Q. That would be the south side.

A. - - and one was from the other side, from north side.

Q. Which way was the north side watchman motioning her?

A. North side watchman was motioning her to go the other way ’from his side.

Q. You mean to go back to the south side?

A. Go back to the south side.

Q. Which way was the south side watchman .motioning?

A. He was motioning to her to move to the north side.

Q. Did you see this woman when she first started to cross the track?

A. No

Q. The first time you saw her, was when she was - - when you saw the watchman on each side-

A. Yes

Q. - - motioning in different directions?”

In passing upon the question of whether or not the plaintiff was legally prejudiced by granting the defendant’s motion for a directed verdict, we must construe the evidence most strongly in favor of the plaintiff. Hamden Lodge v. Ohio Fuel Gas Co. 127 Oh St 469; 189 N. E. 146. If, when considering the evidence in that light, reasonable minds could come to but one conclusion, which is adverse to .the plaintiff’s claims, it is the duty of the court to direct a verdict for the defendant. 39 O. Jur. 794.

It is a well recognized rule in this State that when a person is travelling along a highway, approaching a railroad grade crossing, it is his duty to look and listen for the approach of trains before going upon or over the tracks and one who goes upon a track without looking or listening and is injured by an approaching train, which, in the exercise of ordinary care he could and should have seen in time to avoid injury, is guilty of contributory negligence as a matter of law.

Detroit T. & I. R. R. Co. v. Rohrs, 114 Oh St 493, 151 N. E. 714; N. Y. C. & St. L. R. R. Co. v. Kistner, 66 Oh St 326; Penna. R. R. v. Rusznik, 117 Oh St 530, 159 N. E. 826; Kallmerton v. Cowen, 111 F. 297 (C. C. A. Ohio 1901).

When, however, the railroad company attempts to guard the crossing with gates or flasher signals or flagman, and one is lead to go upon the tracks because the gates are up, or a signal is given to proceed, the rule is somewhat modified.

It was held in the case of Erie Railroad Co. v. Schultz, 183 F. 673 (C. C. A. Ohio 1911) 'that a man driving a loaded wagon about to cross several parallel railroad tracks at a crossing where safety gates are located and in operation, and who has waited before a closed gate until a passing train has gone by, and for whom the gate has been lifted so that he may cross, does not still continue under the same absolute duty to look and listen as soon and as far as physical obstacles permit, which he would have borne if the crossing had been unguarded; but he discharges his legal duty if, under those circumstances, he uses his senses of sight and hearing for his own protection as soon as and as far as a man of ordinary prudence would do under similar circumstances.

In the case of Eastern Motor Dispatch Inc. v. Penna. R. R. 82 Oh Ap 428, the Court, had for consideration a case where the defendant employed a watchman at one of its grade crossings, who, as the plaintiff’s driver approached the crossing, waved both a white and a red light or lantern. The driver thinking the lights constituted a signal to cross the intersection, proceeded and a collision took place. The court held:

“1. The driver of a motor vehicle, in crossing railroad tracks outside a municipality, is chargeable with the duty to look and listen for approaching trains and to do it at a time and place and in a manner to make the looking and listening effective.

2. Where a defendant railroad employed a watchman at a crossing, whose duty it was to- warn persons of approaching trains, whether the driver of a motor vehicle in crossing the tracks exercised ordinary care must be determined in view of the conduct of the watchman.

3. Where a watchman at a railroad crossing waved both the red and white lights, a factual situation was presented which should have been submitted to the jury in determining whether the signal given to the driver of the motor vehicle was a warning to stop or an invitation to cross and whether the driver exercised ordinary care in crossing the tracks, and it was reversible error to direct a verdict for the defendant.”

In the case of Farley v. Norfolk & W. R. R. Co. 14 F. (2nd) 93 C. C. A. (4th Circuit; W. Va. (1926) there was for consideration the effect or inference to be drawn where a crossing watchman stood beyond the point of danger from which the plaintiff, á pedestrian, was attempting to cross over the tracks of the defendant.

There were four railroad tracks intersecting Fifteenth Street in Kenova, W. Va. Two of the tracks, one the main trunk and the other a passing track, belonged to the Chesapeake & Ohio R. R. Co. About 80 feet north of the Chesapeake & Ohio tracks were two tracks of the defendant. A watchman was employed to guard the crossing and was employed by both companies for that purpose. A passenger train was passing on the Chesapeake & Ohio main track and the watchman stood about fifteen feet north of the Chesapeake & Ohio main track with his “stop” sign in hand. The plaintiff’s decedent, a pedestrian, assumed that the position of the watchman indicated that the intersection was safe to the point where he was standing and started to walk over defendant’s tracks when he was hit and killed by defendant’s train backing over the intersection.

The Court, at page 95 of the opinion, said:

“The evidence is that a crossing watchman was provided at the crossing. This watchman was standing, not on the north side of the city track, to stop traffic from crossing that track in front of the backing cars, but 50 feet south of the belt line track, and was holding up his stop signal, and was stopping traffic at that point. This action on the part of the watchman was a notice to persons using the street that the point of danger was the place where he had taken his stand and raised the signal. It was a warning to go no further, but an implied assurance of safety in going that far. Persons using the street had the right to assume that they might proceed in safety to the point where the warning signal was displayed. When thus viewed, and we must view the evidence in the light most favorable to plaintiff on a motion to direct a verdict, the evidence showed more than a mere absence of the watchman from the place of danger at the time the cars were being backed; it showed an implied assurance on the part of the watchman that it was safe to proceed over the crossing to the point where he had raised his warning signal. Under these circumstances, it was for the jury to determine, after due consideration of all the evidence, whether the deceased exercised that reasonable care which the law requires. Casdorph v. Hines, 89 W. Va. 448, 109 S. E. 774; Hodgin v. Southern R. Co. 143 N. C. 93, 55 S. E. 413; 10 Ann. Cas. 417; McNamara v. Chicago etc. R. R. Co. 126 Mo. App. 152, 103 S. W. 1093; Fusili v. Missouri Pac. R. R. Co. 45 Mo. App. 535; 33 CYC 1126, 1127; Notes 10 Anno. Cases, 418 and 13 Anno. Cases 854, and cases cited.”

The case of Hines v. Smith, 270 Fed. 132 (C. C. A. Ohio 1921) involved the driver of an automobile who was attempting to cross the tracks of the Erie Railroad Company at Niles, Ohio. At page 138 of the opinion the Court said:

“The evidence is uncontradicted that the defendant had maintained gates at this crossing for some time prior to the accident, and that at the time Dr. Smith drove upon the crossing the gateman was in full view and the gates were open. While this fact did not relieve the traveler from exercising ordinary and reasonable care for his own safety, yet it does materially affect the question of contributory negligence. Thompson on Negligence, Sec. 1613. In the case of Blount v. Grand Trunk R. R. 61 Fed. 375, 9 C. C. A. 526 (C. C. A. 6) it is said in the opinion:

“‘It is undoubtedly true that the failure to lower the gates' modifies the otherwise imperative duty of travelers, when they reach a railway crossing, to look and listen, and the presence of such a fact in the case generally makes the question of contributory negligence one for the jury, when otherwise the court would be required to give a peremptory instruction for the defendant.’ Citing Burns v. Rolling Mill Co. 65 Wis. 312, 315, 27 N. W. 43; Stapley v. Railway Co. L. R. 1 Exch. 21; Glushing v. Sharp, 96 N. Y. 676; Cleveland C C & I R. R. v. Schneider 45 Oh St 678, 17 N. E. 321.

“It is also said in the opinion in the Blount case supra that:

“ ‘The fact is much more important where the traveler is driving a horse and vehicle than where he is walking because in the former case his attention is necessarily divided between the control of the horse and observation of the track, and his reliance upon the gates and the flagman must, in the nature of things, be greater than in the ease of a pedestrian.’

“In the case of Erie R. R. Co. v. Schultz, 183 Fed. 673, 106 C C A 23 (C. C. A. 6) it is said:

“ ‘In this court it has been distinctly recognized that the opened gate is in the nature of an invitation to cross, and that the presence of . such fact in the case generally makes the question of contributory negligence one for the jury, and that the same degree of watchfulness cannot be expected from the driver of a loaded wagon as from a pedestrian.’ ”

In the case of Blount v. Grand Trunk R. R. cited in the Smith case, supra, a pedestrian was killed while attempting to walk across the defendant’s tracks in Detroit, the crossing gates maintained by defendant not having been lowered at the time. The court held that because the deceased was a pedestrian he should have been able to avoid collision with the train and was guilty of contributory negligence as a matter of law. The headnote provides as follows;

“Contributory Negligence — Gates Up at Crossing Question for Court: The question whether a pedestrian was guilty of contributory negligence in not looking and listening at a ■railroad crossing for an approaching train, where the gates had not been lowered, is not a question for the jury, where the evidence leaves no doubt that, if such pedestrian had made any use of his senses, he could have both seen and heard, in due season, an approaching train, and thereby have avoided the accident which resulted in his death.”

The facts in this case were that the train was visible for a considerable distance even though it was in the night season and at page 379, Judge Taft said:

“It was a quiet night. There was no confusion at the crossing. There were no other trains in sight. There was nothing to distract Blount’s attention from the oncoming train except a self-absorption which in approaching a railway crossing is gross negligence. On these facts can reasonable men fairly reach any other conclusion than that Blount was wanting in due care in not observing his danger?”

This case is therefore distinguishable from the case now under consideration because of the fact that defendant’s watchman invited the decedent into a place of immediate danger and the conduct of the watchman thereafter, together with other circumstances, created great confusion which the jury could find would affect the ability of the decedent to protect herself.

See also: Phila. R. R. v. LeBarr, 265 P. 129 (C. C. A. Pa. 1920); Johnson v. Dir. Gen’l of R. R. 123 A. 484, 278 P. 491 (1924); Norfolk & W. R. R. v. Burton, 169 S. E. 560, 160 Va. 633 (1933); Missouri Pac. R. R. v. Wat, 52 S. W. (2d) 634; Pittsburgh C. C. & St. L. R. R. v. Staats, 149 N. E. 912.

The third, fourth and fifth paragraphs of the syllabus in the last cited case provide as follows:

“3. In action against railroad for death at crossing, based on alleged negligence of flagman in signaling decedent to cross, plaintiff was not required to allege any facts showing excuse on part of decedent for failing to observe approach of train.

“4. Signal given by watchman at railroad crossing, directing traveler on highway to cross, is an affirmative assurance that there is no danger, and one acting under such assurance is not required to exercise high degree of diligence that would otherwise be required.

“5. Fact that railroad placed and maintained flagman at crossing at which plaintiff’s decedent was killed, is a positive recognition that crossing was an unusually dangerous one and that service of flagman at that point was reasonably necessary to protect persons- using such crossing.”

From the foregoing authority, and under all of these circumstances, presented in this case, where a lady of 68 years of age, who in the first instance, was directed into a place of danger by the defendant’s crossing watchman whose job it was to advise street users of the danger of approaching trains, the question of whether she was guilty of contributory negligence because had she made timely observation to the west as she walked over the defendant’s tracks she could have seen the approaching train, is under the circumstances just referred to, a jury question, and to direct a verdict for the defendant under such circumstances constituted prejudicial error.

The action is reversed for error of law in directing a verdict for the defendant and cause remanded for further proceedings according to law. Exc. Order see journal.

HURD, J, THOMPSON, J, concur.


source: Caselaw Access Project

author: By STEVENS, J.

license: Public Domain

text:
    LUFT, Guardianship, In re.
    Ohio Appeals, Second District, Franklin County.
    No. 4617.
    Decided October 16, 1951.
    Willard W. Miller, Clarence M. Addison, Columbus, for appellant.
    J. Weller Igo, Robert R. Shaw, Columbus, for Guardian, Robert R. Shaw.
    HUNSICKER, PJ, DOYLE and STEVENS, JJ, of the Ninth District, sitting by designation.
   OPINION

By STEVENS, J.

This cause is before this Court for a second time upon the application of the ward for a termination of the guardianship of her property.

When the case was before this Court originally, the judgment of the Probate Court was reversed and the cause remanded with instructions to the Probate Court. In a concurring opinion,. Miller, J., stated that he was of the opinion the Court should have entered final judgment for the applicant, because her consent to the appointment of a guardian of her property “was not genuine and was given under an apparent misapprehension of her legal rights,” and hence the appointment was contrary to law.

A' consideration of all the evidence contained in this record impels the members of this Court to -unanimously conclude that the consent to the appointment of a guarlian, filed herein, was not voluntarily and freely given, in accordance with the requirements ••of §10507-2 GC; that the appointment was accordingly contrary to law, and the application to dismiss the guardian should have been sustained.

The judgment of the Probate Court is reversed, and the cause remanded to the Probate Court, with instructions to sustain the motion to dismiss the guardian, and terminate the guardianship.

HUNSICKER, PJ, DOYLE, J, concur.


author: HORNBECK, J.,

text:
    NATIONAL SURETY CORPORATION, Plaintiff-Appellee, v. BLACKBURN, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4421.
    Decided January 4, 1951.
    Samuel Luper, Columbus, for plaintiff-appellee.
    Roy C. Blackburn, Columbus, for self.
   OPINION

By THE COURT.

This is a motion to certify the record in this case for the alleged reason that the same is in conflict with the case of Blackburn v. Powhatan Point Board of Education, and being case No. 803 of the- Court of Appeals for the Seventh District of Ohio. This is not a reported case to our knowledge and no citation is given. Our examination of the appellant’s brief and quotations from the ease does not reveal that the Court held that an order striking a petition from the files is a final order. But even if it did so hold it would be vain for us to sustain the motion which would require the Supreme Court to restate the law, as we followed the decision of the Supreme Court cited in our original opinion, to wit, State v. Gilman, 136 Oh St 319.

A further reason for denying the motion is that under the concluding sentence of §1483 GC recognition and sanction are not to be accorded to unofficially reported opinions. Bevon v. Century Realty Co., 64 Oh Ap 66.

The motion will be overruled.

MILLER, PJ, WISEMAN, J, concur.

HORNBECK, J.,

concurs in the conclusion that it does not clearly appear that our judgment is in conflict with Blackburn v. Powhatan Point Board of Education.

Dissents from other parts of the opinion.

ON MOTION SEEKING DISMISSAL OF APPEAL

No. 4602.

Decided May 14, 1951.

OPINION

By THE COURT.

Submitted on motion by the plaintiff-appellee seeking an order dismissing the appeal for the following reasons:

“1. The order of the lower court entered December 14, 1950 is not a final order from which an appeal can be taken.

“2. No transcript nor Bill of Exceptions was filed by defendant-appellant within fifty days of the filing of notice of appeal dated December 26, 1950.”

The order appealed from is the following:

“On the 7th day of December, 1950 this matter came before the Court for a consideration of the paper writings filed by defendant denominated: ‘Petition for Re-Trial,’ ‘Motion for Judgment,’ ‘Demurrer’ and ‘Motion Concerning Attorney for Self.’

“It is the Order of the Court that all of said paper writings be and they are hereby sua sponte stricken from the files of this Court for the reason'that all matters relating thereto have been adjudicated by other branches of the Court.”

We are of the opinion that the first branch of the motion is well taken. The overruling of a motion for a new trial is not a final order. Young v. Shallenberger, 53 Oh St 291.

Neither is the motion for a judgment a final order to which error may be prosecuted. 2 Oh Ap 323; 20 O. C. C. (N. SJ

210. A ruling on a demurrer is not a final order. Holbrook v. Connelly, 6 Oh St 200; Realty Co. v. Smith, 23 O. N. P. (N. SJ 489; National Guarantee & Finance Co, v. Russell, 25 Abs 483. The overruling of the “Motion Concerning At-

torney for Self” is an interlocutory order and therefore not final. Heater Co. v. Stove Co., 41 Oh St 287; Canning Co. v. Weller, 9 Oh Ap 468.

The second branch of the motion will be overruled for the reason that it does not appear that a bill of exceptions is necessary to exemplify the errors complained of.

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


author: By THOMAS, J.

text:
    NELSON v. VAN HORN CONSTRUCTION COMPANY et.
    Common Pleas Court, Trumbull County.
    No. 59110.
    Decided July 9, 1951.

      Edward Powell, Referee, on behalf of board.
    Sieman & Sieman, Warren, for plaintiff.
    Otto Webber, Business Agent for A. F. of L.
    Ross Watkins, Labor Foreman.
    Clifford Moore, witness for plaintiff.
    THOMAS, J., of Geauga County, sitting by assignment.
   OPINION

By THOMAS, J.

Plaintiff appeals from an adverse ruling of the Board of Review of the Ohio State Bureau of Unemployment Compensation (herein called the Bureau), which held that he had not established his eligibility for unemployment compensation benefits and denied him the right to receive benefits for the week ending January 28, 1950.

Plaintiff is 58 years old, has a family, and is classified as a laborer.

Prior to being laid off because of lack of work he worked for the Van Horn Construction Company of Youngstown, Ohio, as a plasterer’s helper. For four or five years he had worked at the same line of work.

He journeyed to Louisiana in the latter part of July, 1950, and remainder until a week after Christmas when he returned to Warren.

In dispute are his efforts to obtain employment on and about January 23, 1950, when he applied to the Warren office of the Bureau of Unemployment Compensation. The evidence concerning this disputed period will presently be considered.

On February 8, 1950 a person connected with the Warren office of the Bureau took a statement from the plaintiff which the plaintiff signed.

It read: “I was L. O. L. W. from Van Horn plaster contractor on 7-13-49. I have not worked since 7-13-49 and have been looking for work — unable to get work.

I have made the following contacts for work in the last four weeks. Union Hall (every day). This is the only contact I make.

The above statement has been read to me and is true and correct.”

February 8, 1950 the administrator disallowed the plaintiff’s claim for benefits for the week ending January 27, 1950.

It found that “claimant’s only contact for work in the last four weeks has been in the Union Hall” and decided that:

“Claimant is not actively seeking work. Benefit rights shall be suspended as of January 22, 1950 in accordance with §1345-6-2 (4) of the Ohio Unemployment Compensation Act. Benefit rights shall remain suspended until Claimant re-establishes eligibility by actively seeking work on his own initiative.”

The plaintiff, on February 10, 1950, appealed from the administrator’s decision and stated on his notice of appeal that:

“I am actively seeking work and will name the contact I have made at the hearing.”

His appeal was heard on March 21, 1950, before a Referee who affirmed the administrator’s decision on April 17, 1950. A memorandum testimony was made by this Referee but no stenographic record was taken.

Application for leave to institute a further appeal from the decision of Referee was granted by the Board of Review and oral testimony was taken before a Referee on June 22, 1950. A stenographic transcript of the testimony is filed with this appeal.

On August 18, 1950 the Board affirmed the decision of the Referee of April .17, 1950. The Board’s reasoning in support of its decision, is here given:

“The statement given by claimant on February 1, 1950, and his testimony before the Referee on March 21, 1950, also the testimony of his witness shows that up to February 13, 1950, Claimant has not contacted any prospective employers in regards to finding employment except to report to his Union Labor Hall and at the Local Office on his claim.”

“Claimant having only reported to his Union Labor Hall could not say as of January 22, 1950, the date of the beginning of his benefit year, that he was available for suitable work and was actively seeking such work. Therefore, he has failed to meet the requirements of the above quoted law. (The Board had previously quoted §1345-6-a (4).

As amended, effective October 18, 1949, §1345-6-a (4), with the introductory sentence of §1345-6-a reads—

“No individual shall be entitled to waiting period or benefits for any week unless he or she (4) is able to work and available for suitable work and is actively seeking such work, either at a locality in which he has earned wages subject to the unemployment compensation act during his base period or at a locality where such work is normally performed; And”

It is essential to a determination of the questions raised on this appeal to ascertain the meaning of this fourth eligibility condition for unemployment compensation benefit rights.

. In the recent case of Shannon v. Bureau, 155 Oh St, 53, 44 O. O. 75 the Supreme Court considered the claim of a waitress whose efforts in seeking employment were limited to registering at the local employment office at the Ohio State Employment Service.

This claim accrued before §1345-6-a (4) as amended, became effective, but the Supreme Court decided the case after the effective date. The court’s reference to the present language is quite important.

After referring to the amendment of October 18th, 1949 in which reference the court significantly italicized “actively seeking such work” the court went on to say:

“If the present case had arisen after the amendment of the Statute, it could not have been argued that registration alone qualified the Claimant as being available. This amendment, we believe, merely clarifies and does not change the meaning of the word “available” as it appeared in the Statute previous to the amendment.”

From this language it is concluded that the general test adopted in the Shannon case for determining availability is deemed, by the court, to be equally applicable to §1345-6-a (4) as presently worded. This is the general test.

To be available for suitable work and to actively seek such work “the Claimant must act in good faith and make reasonable effort to find suitable employment. Mere registration and weekly reporting, without such reasonable effort, does not satisfy the requirement of the Statute in question and does not make the Claimant ‘available.’ ”

A sensible definition of the term “actively seeking work,” consistent with the Shannon ruling, is the one given by The Missouri Industrial Commission, February 3, 1949. C. C. H. paragraph 8150 p. 28,629.

“The ‘actively seeking work’ proviso of the law has no fixed or defined meaning. It is subject to interpretation in the light of the facts- of each particular case. This proviso is merely a guide provided by the Legislature to test a Claimant’s willingness to work. What constitues an active search for' work in one case may be totally inadequate in another case and vice versa. The true test is: Does a Claimant sincerely want work and has he acted in a reasonable way under his circumstances in trying to relieve his unemployment.”

It is interesting to note that a similar “willingness to work” test was adopted in connection with an analogous condition of the British Unemployment Insurance Law which required the Claimant to be “genuinely seeking work.”

A recognized Umpire’s decision (Final Report Royal Commission on Unemployment Insurance, 1932, page 323) thus defined the meaning of “genuinely seeking work.”

“In considering whether a person is genuinely seeking work the most important fact to be ascertained is the state of the applicant’s mind. If a person genuinely wants work, i. e. really prefers working for wages to living on benefit, it is probable that she is genuinely seeking it. But if a person prefers benefit to wages, or is content to be without work as long as she receives benefit, it may be presumed that she is not genuinely seeking it. Action is guided by desire, and, whilst few people genuinely seek what they do not desire, most people genuinely seek what they really desire.”

It should. be noted in passing that England, after three years experience (1927 to 1930)' with the requirement that a Claimant be “genuinely seeking work” found that it was unworkable, repealed it in 1930, and has never re-enacted it, either in words or in substance.

Therefore it seems consistent with the Shannon ruling to conclude that an unemployed person is “available for suitable work and is actively seeking such work” if, under the circumstances of his particular case he has acted to relieve his unemployment in good faith and in a reasonable way.

It is in accordance with this definition of §1345-6-a (4). that the ruling of the Board of Review will be tested.

In finding against the plaintiff the Board of Review had to find that under the circumstances of this particular case the plaintiff had failed, in good faith and in a reasonable way, to act to relieve his unemployment.

If this finding was not manifestly against the weight of the evidence or not unreasonable or not unlawful then it must be affirmed.

But if the Board’s finding was manifestly against the weight of the evidence or unreasonable, or unlawful, then it must be vacated and final judgment will be granted to the plaintiff.

First to be weighed is the 'conclusion of the Board, representing the first paragraph of the Board’s reasoning, that

“The statement given by Claimant on February 1st, 1950, and his testimony before the Referee on March 21, 1950, also the testimony of his witness shows that up to February 13, 1950, Claimant has not contacted any prospective employers in regards to finding employment except to report to his Union Labor Hall and at the Local Office on his claim.”

It is apparent from this statement that the Board places considerable stress on the testimony said to have been given by the plaintiff before the Referee on March 21st, 1950.

' This is emphasized by the following sentence contained in the Board’s Finding of Facts:

“Claimant testified before the Referee that on February 13, 1950 he contacted the Republic Steel Corporation in regards to obtaining employment and that was the first contact he made other than reporting to his Union Hall and reporting on his claim at the Local Office.”

Examination of plaintiff’s testimony on June 22nd, 1950, fails to reveal any testimony of the nature here referred to. Actually the Board is making an inaccurate reference to the so-called Memorandum of Testimony of the March 21st, 1950 hearing. The reference is inaccurate because that Memorandum states:

“Says Ravenna Arsenal 2/11/50 first place looked. Republic Steel on 2-13-50.”

The Referee’s cryptic synopsis of the plaintiff’s purported testimony however is at variance with. the plaintiff’s own testimony given before a Board Referee on June 22, 1950 and recorded by a stenographer.

It does not appear that the purported testimony of March 21st, 1950 was given under oath as was the testimony of June 22nd, 1950. But in any event a verbatim record of the earlier testimony of the plaintiff was made.

To understand his .testimony given on June 22, 1950, it is essential to know that The Niles Rolling Mill is owned and operated by The Republic Steel Corporation.

Q. After coming back from Louisiana did you start looking for any kind of work?

A. I went down to McDonald and I went to The Niles Rolling Mill.

Q. What was down at McDonald?

A. Steel Mill.

Q. Did you apply for work there?

A. Yes sir.

Q. How long after you came back from Louisiana did you go down there?

A. Couple of weeks.

Q. What did they tell you?

A. They were laying off men.

Q. Did you then go to any other place?

A. I went to Niles Rolling Mill.

Q. What did you go there for?

A. Went there to look for a job.

Q. Did you apply for work there?

A. Yes.

Q. What did they tell you?

A. Laying off men.

Q. How long after you came back did you go there?

A. The next day after*I went to McDonald, I went there.

On cross examination by the Referee, on June 22nd, 1950, ,it was brought out that ,the plaintiff went to Niles Rolling Mill (Republic) before he went to the “Unemployment Office.”

Q. Before you went to the Unemployment Office where did you go?

A. I went to Niles Rolling Mill.

Q. .That is before you went to the office at all?

A. Yes.

His sworn testimony makes it perfectly clear that plaintiff’s application at Niles Rolling Mill (Republic Steel) came before he reported to the Unemployment Office. Thus his application at Republic happened sometime • before January 23, 1950 the date of his application for unemployment compensation.

Yet the Board totally ignores this sworn testimony.

To credit a synopsis of purported testimony, while totally ignoring sworn contradictory testimony appears to be clearly unwarranted and unmistakably against the manifest weight of the evidence.

Furthermore the Board claims that the alleged testimony of the plaintiff is

“borne out by the testimony of Clifford Moore, Claimant’s witness who stated that it was the middle of February, 1950 that he first talked to Claimant after his return from Louisiana.”

However examination of Moore’s testimony fails to sppport the Board’s conclusion

Q. (By Referee) Can you tell me when it was you met this man, the first or middle or the last?

A. About the middle of February.

Q. And he was unemployed and was looking for work?

A. That’s right.

Q. He didn’t tell you when he had been to these places?

A. That’s right.

(Moore had previously testified that when they met .the plaintiff had mentioned McDonald and Niles Rolling Mill as places he was looking for work.)

Necessarily Moore’s testimony shows that the plaintiff had looked for work at McDonald and Niles Rolling Mill sometime prior to when they met in the middle .of February — and not about the middle of February as the Board seems to conclude.

The Board’s conclusion is further refuted by Watkin’s testimony. He testifies that when they met in January or February the plaintiff told him he had previously looked for work at Niles Rolling Mill.

The Board also relies on the statement prepared by a Bureau employee which the plaintiff signed on February 1st, 1950, and which says in part:

“Union Hall (every day.) This is the only contact I make.”

But on its face this statement is patently incomplete. For everyone concedes that the plaintiff was contacting the Employment. Service Local Office during this period. The statement, however, makes no reference whatsoever to that CONTACT. The statement therefore cannot be taken at its face value. As the plaintiff finally said in answer to a question by the Referee “Well it couldn’t have been a true statement.”

The record also names other places where the Plaintiff sought work without getting work at and prior to the time he applied for unemployment compensation on January 23rd, 1950.

A list of these places included Erie Railroad Freight Office, building construction at Vine and Market in Warren, and the Warren Garbage Agency.

The plaintiff testified that during the period .in question he was physically able and willing, but was unable to find work. He cited the coal strike as one reason for slack working conditions.

Nor was his inability to get work surprising in view of the extensive unemployment then existing.

Labor Market Information (regular official publication of the Bureau’s Department of Research and Statistics) reports monthly on general employment conditions throughout Ohio, and Labor Market Information (regular official publication of the Bureau’s Warren Office) reports monthly on employment conditions in the area of the Warren office. The information contained in both reports are official Government Bulletins which may be judicially noticed by this court. Corpus Juris Secundum, Evidence, Section 42 at page 606 and Atlantic Transport Co. of West Virginia v. Rosenberg Bros, and Co. 34 F. 2d 843. '

Under the heading “Ohio Labor Market, February 1950.” Labor Market Information (Ohio) No. 13 it was reported:

Coal Crisis continues * * *

“Unemployment hit an eight-year high last month * * * highest January since 1942. Nearly 4.5 million were out of work nationally ■' * * 73 out of every 1,000 in labor force, according to Bureau of the Census. Better than 200 thousand job-seekers were registered with Ohio State Employment Service on first of February. No one knows how many are unemployed, but not registered.”

Labor Market Information (Warren) for February 18th, 1950 reported

“Reversing the previous downtrend, employment in the Warren area has made a decided gain in recent weeks. A survey of 46 major firms shows the number at work increased around 1,165 between November and mid-January, total about 22,050. The employment rise during the 60-day interval was largely confined to the recall of persons previously laid off. Employment is still about 1,600 below the January 1949 level.

“Factories accounted for most of the job increase during the two-month period, by adding some 1,250 persons to their payrolls. The largest number of hires were reported among producers of primary metals, electrical machinery, and furniture. Small gains in non-electrical machinery and metal fabricating plants were more than offset by scattered losses in other industries. Non-manufacturers suffered slight cutbacks — mainly in construction and transportation and utilities * * *”

“There has been an increase in the number of persons looking for work recently. On February 1, some 2,925 were seeking jobs through the Warren office of the Employment Service — about 80 more than on the first of January * * *”

"During January some 225 positions were available through the Local Employment Service Office. At the beginning of this month around 60 of the openings remained unfilled. Currently in demand are stenographers, commission salesmen, and domestic workers.” (Emphasis ours.)

The record and the general employment data which properly may be noticed by this Court require the following conclusions of fact, relating to January 1950, and early February, 1950.

1. Unemployment was acute. The construction business was especially slack. The coal strike had caused lay offs. There were generally no labor jobs — the kind of work for which the plaintiff was suited.

2. Plaintiff did make reasonable efforts to get work. He contacted the Local Employment Office, his Union, and made an extensive independent search for work.

In good faith and in a reasonable way he acted to relieve his unemployment, thus establishing that he was available for suitable work and was actively seeking such work.

The Board’s finding to the contrary is manifestly against the weight of the evidence.

Secondly requiring consideration is the Board’s conclusion that by reporting to his Union Hall the plaintiff “could not say as of January 22, 1950, the date of the beginning of his benefit year, that he was available for suitable work, and was actively seeking such work.”

On the contrary it appears that under the facts here existing his regular reporting to his Building Trades Union did constitute availability for suitable work and an active search for work.

Plaintiff worked as a plasterer’s helper in the construction trade. He belonged to the A. F. of L. Union, presumably a consolidated Building Trades Local.

It is ordinarily necessary for a man in this field to endeavor to get his employment through this Union.

This was brought out in the Referee’s questioning.

Q. (By Referee) “It’s necessary for a man affiliated with your Union to get his work out of your office?

A. That’s right.”

Requests for employees come to the Business Agent from contractors though occasionally a contractor hires a man without the Union sending the man to the contractor, it was testified.

The situation is closely analogous to the nursing profession.

It is highly impractical and inefficient for á nurse to seek employment by individually contacting every hospital, every doctor and every nursing home who may need, a nurse.

Instead nurses engage nursing registries as their agents to seek employment for them. It saves useless and endless individual solicitation of jobs.'

Yet surely a nurse, who registers with each available Registry is actively seeking work just as much as the nurse who personally calls every hospital, every nursing home and every doctor in town in search of work. What she does herself she may do through an agent, especially when the latter method ■ is a far more efficient and effective way to secure nursing work.

When a worker in the construction field contacts his Union for work he is doing what the nurse does when she contacts Nursing Registries.

The building tradesman, by joining the Union, has engaged an agent to look for work for him when he is unemployed. He knows that in the construction fiéld substantially all employment is procured through the Union. He knows that contractors who- need help in most instances will call the Union for workmen.

Manifestly an unemployed building tradesman who sought out these same contractors — if the custom of- the trade permitted him — would thus be making himself available for suitable work, and would thus be carrying on an active search for work.

What he may do on his own surely is no less effective if his agent does the same thing for him. Contact with contractors through his Union is the legal -equal of individual contacts with those same employers.

It is, therefore, concluded that the plaintiff in continually seeking work through his Building Trades Union — which was unable to supply him with a job, made himself available for suitable work and actively sought such work as required by §1345-6-a (4), he having also, without success, continued to seek work through the Employment Service.

The ruling of the Board therefore is not only manifestly against the weight of the evidence, but it is also unlawful and unreasonable.

It is set aside and final judgment is granted the plaintiff.


text:
    JEFFERIS, Plaintiff-Appellee, v. NEVERS et, Defendants-Appellants.
    Ohio Appeals, Second District, Darke County.
    No. 685.
    Decided February 17, 1951.
    Spidel, Staley & Hole, Greenville, for plaintiff-appellee and for the motion.
    S. E. Mote, Greenville, for defendants-appellants and contra the motion.
   OPINION

By THE COURT:

Submitted on motion of plaintiff-appellee to “strike the bill of exceptions from the file and to dismiss the within cause for the reason that said bill of exceptions was not filed within 40 days of the entry of the Common Pleas Court overruling the motion of the defendants for a new trial.”

Judgment was entered on July 1, 1950. The bill of exceptions was filed with the Clerk of the Common Pleas Court on August 16, 1950, so that more than 40 days elapsed between the date of the overruling of the motion for a new trial and the filing of the bill of exceptions in the trial court.

Sec. 11564 GC fixing the time for filing the bill of exceptions as not later than 40 days after the overruling of a motion for a new trial has been held, without exception, to be mandatory as to the foregoing provision. Tenesy v. Cleveland, 133 Oh St 251; Humphrey v. Bailey, 16 Abs 1; Teegarden v. Teegarden, 80 Oh Ap 79; State v. Alessandro, 56 Abs 554, 93 N. E. (2d) 310. The bill of exceptions must be stricken from the files.

The motion asks that the appeal be dismissed. The appeal is on questions of law. An examination of the Assignments of Error is convincing that no one of them may be exemplified without recourse to the bill; without the bill there is nothing to adjudicate. The appropriate order is that the judgment from which the appeal is prosecuted be affirmed. Tenesy v. Cleveland, supra.

It will be so ordered.

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


text:
    PLAGENZ, Plaintiff-Appellee, v. HARRIS, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22248.
    Decided October 29, 1951.
    H. E. Elliott, Cleveland, for plaintiff-appellee.
    Martin & Martin, Cleveland, for defendant-appellant.
    (METCALF, J, of the 4th District sitting by designation in place of HURD, J.)
   OPINION

By THE COURT:

The assignment of error in this appeal on questions of law is to the effect that the judgment entry appealed from is indefinite, uncertain and inconclusive.

While the notice of appeal is on behalf of defendant, Philip Harris, only, the case is briefed and argued on behalf of both this defendant and his wife, Lucille Harris.

., It is urged that the entry should have set forth the specific interest that these defendants, or either of them, have in the proceeds of the sale.

An examination of the entry discloses that it provides for payment of costs, taxes, assessments, penalties and interest and the mortgage lien against the property, out of the proceeds of the sale thereof, and orders that the balance be paid to the Clerk, subject to the further order of the Court, as to distribution. The entry sets out the full amount due to plaintiff.

Under the'pleadings and findings of the trial court, there is nothing further it could have done, other than that for which'the entry provides. These two defendants cannot complain under the state of the record at this time, relative to the distribution of the balance remaining after the payments set out above. It is not incumbent upon the plaintiff to have determined any interest these two defendants may or may not have in the proceeds.

Appellant further urges that there is a resulting trust in this case in favor of Lucille Harris, but the record is silent as to this contention.

Any right or rights, either of these defendants may have in the proceeds before distribution to plaintiff under his judgment lien, may still be adjudicated.

See: §11737 GC, and Glethill et al v. Walker, 143 Oh St 381, and cases cited therein.

The judgment is affirmed. Exceptions. Order see journal.

SKEEL, PJ, METCALF, J, THOMPSON, J, concur.


author: By MILLER, J:

text:
    DUNCAN, a minor, In re.
    Ohio Appeals, Second District, Preble County.
    No. 126.
    Decided May 5, 1951.

      Julian E. Clark, Eaton, for plaintiff-appellee.
    Lloyd B. Bennett, Eaton, Mark T. Brown, Hamilton, for defendant-appellant.
   OPINION

By MILLER, J:

This is a law appeal from a judgment of the Juvenile Court for Preble County finding Judith Ann Duncan to be a dependent child'. Thé complaint specified certain facts upon which the allegation of dependency was based and at the outset of the hearing counsel for appellant moved that the complaint be dismissed for the reason that the allegations, even if proved, would not constitute a dependency under §1639-4 GC. This motion was overruled by the trial court, citing §1639-23 CG, which makes the complaint sufficiently definite by the simple use of the word “dependent.” We are in accord with the Court’s ruling on this motion. The pertinent part of the complaint under consideration provides:

“Judith Ann Duncan, age three years, who appears to be a dependent child, in that she is an adopted child, having been adopted in January, 1949, by Marie Duncan, the natural maternal grandparent of said child; that on December 25, 1943, prior to the date said adoption became final, said Marie Duncan placed said child in the home of the undersigned and her husband; that since said date the said Marie Duncan has not contributed in any way to the support of said child; that the undersigned and her husband are no longer able to take care of said child * *

It will be noted that the affidavit charges that the adopting parent has failed to support the child for approximately eighteen months and that the child appears to be a dependent. Although §1639-4 GC requires the Court to find that the child’s condition was due to no fault of the parent, guardian or custodian, the failure to make such an allegation does not deprive the Court of jurisdiction. The affidavit charges the child with being a dependent and whether the grounds set forth are sufficient requires further proof as to the fault of the adopting parent. The facts set forth are .not sufficient to establish a case of nondependency, and the facts in the case of Smith v. Privette, 13 Abs 291, are not applicable. In the cited case the Court held that even if the grounds set forth in the affidavit were proven, a dependency would not be established. Under §1639-23 GC the mere allegation of dependency is sufficient. In re Anteau, 67 Oh Ap 117.

The next question presented is whether the evidence was sufficient to sustain the judgment. The record reveals that Judith Ann Duncan was born on September 23, 1947, the illegitimate daughter of Elizabeth Ellen (Betty) Duncan. At that time Betty resided with her" mother, Marie Duncan, where she has resided continuously up to- the present time. On November 9, 1948, Marie Duncan filed her petition in Probate Court for the adoption of the child. Betty, the child’s mother, executed a consent to the adoption on November 18, 1948, which consent was filed on December 9, 1948. The decree for adoption was journalized on January 8, 1949. On December 26, 1948, Judith Ann was taken by her adopting mother and other members of the family to the State of Washington and she was left there with Mr. and Mrs. Paul Duncan for adoption.

The record does not show that Marie Duncan failed to make adequate provision for the health and comfort of the child, but on the contrary she did this by leaving the child with Mr. and Mrs. Duncan in the State of Washington, who gave her a good home and the proper care and attention. Several years later, however, a disagreement arose between the Paul Duncans and Marie Duncan, as a result of which the child was returned to Preble County, not to the adopting parent, but was taken directly before the Juvenile Court where an affidavit was filed charging the child with being a dependent.

In order to determine the status of this child it becomes necessary to examine §1639-4 GC which defines a dependent child as any child:

“1. Who is homeless, destitute or without proper care or support, through no fault of its parents, guardian or custodian.

“2. Who lacks proper care or support by reason of the mental or physical condition of its parents, guardian or custodian.

“3. Whose condition or environment is such as to warrant the state, in the interests of the child, in assuming its guardianship.”

Clearly, paragraphs 2 and 3 have no application to the facts presented. The child was not without proper care or support as this had been provided by Marie Duncan through her arrangement with the Paul Duncans, who had given the child a good home. The child was not homeless or destitute for Marie Duncan was demanding its custody, able to give it a good home, and being the adopting parent was entitled to the same.' There was no showing made that she was disqualified in any manner that would make her an unfit or unsuitable person. It is urged by the appellee that since the child was under two years of age at the time it was placed with the. Paul Duncans for adoption that there was a violation of §1352-13 GC. This section provides:

“No child under two years of age shall be given into the temporary or permanent custody of any person, association or institution which is not certified by the division of charities, department of public welfare, as provided in §§1352-1 and 1352-6 GC, without the written consent of the division of charities or by a commitment of a juvenile court. Provided such child may be placed temporarily without such written consent or court commitment with persons related by blood or marriage, * *

This argument must fail for two reasons: First, the record is silent as to any certification by the Division of Charities, the burden of which was upon the State; second, even if there had been a violation this fact alone would not make the child a dependent under §1639-4 GC. If this child became homeless, destitute or without proper care or support it would have been due to the fault of the adopting parent, for as previously stated she was able and qualified to give the child a good home. The statute provides that before the provisions enumerated under paragraph 1 of §1639-4 GC become applicable the parent must be without fault before it can be found to be a dependent child. The question of the jurisdiction of this Court to entertain the appeal has been raised by motion of the appellee, but we find no merit to this contention. See In re Hook, 55 Abs 73, affirmed in 149 Oh St 460.

Finding the evidence to be insufficient to support the judgment, the same will be reversed and the case ordered dismissed.

HORNBECK, PJ, concurs.

WISEMAN, J, concur^ in the judgment.


text:
    DAYTON (City), Plaintiff-Appellee, v. BUCHANAN, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2146.
    Decided March 28, 1951.
    Herbert S. Beane, City Atty., William P. Keane, Asst. City •Att'y., Dayton, for plaintiff-appellee.
    Herbert M. Eikenbary, Dayton, for defendant-appellant.
   OPINION

By THE COURT:

This is an appeal on questions of law from a judgment of the Common Pleas Court affirming that of the Municipal Court of Dayton, Ohio, finding the defendant guilty of operating a motor vehicle while under the influence of intoxicating liquor. The only error assigned is that the judgment is against the manifest weight of the evidence.

We have carefully examined the entire bill of exceptions and find that there is substantial evidence in the record which, if accredited, would prove all of the essential elements of the offense. It is true that the defendant offered testimony tending to disprove some of these essentials by a greater number of witnesses than those testifying for the prosecution thereby creating a conflict in the testimony which could only be passed upon by the trial judge, a jury having been waived. The sole question, therefore, becomes one of credibility of witnesses which was properly passed upon by the trial court.

Finding no error in the record, the judgment will be affirmed.

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


author: By CRAMER, J.

text:
    BOWLING v. BOWLING.
    Common Pleas Court, Butler County.
    No. 66146.
    Decided June 25, 1951.
    Páter & Pater, Harry T. Wilks, Hamilton, for plaintiff.
    J. Joseph Marr, Hamilton, for defendant.
   OPINION

By CRAMER, J.

This cause was submitted to the court upon the pleadings, evidence, arguments and memoranda of counsel.

Plaintiff, who is the divorced wife of the defendant, seeks to recover in this action upon what she asserts is a judgment rendered by the Circuit Court of Fayette County, State of Indiana, at the January 1947 term.

She alleges that there is due her on said judgment the sum of $918 and sets out the manner in which said sum is arrived at.

The answer of the defendant consists of a general denial.

Upon the trial, plaintiff offered and there was received in evidence, a certified copy of the claimed judgment sued upon. In substance the same recites that the matter came on to be’ heard upon the petition of plaintiff (the defendant in this cause) to modify a divorce decree theretofore granted by the Indiana court on the 10th day of January, 1945; that in said divorce decree the defendant (plaintiff in this cause) was given the custody and control of the minor children and an order was made for their support in the sum of $15 per week.

The purported judgment further recites that the court after hearing the evidence finds for the petitioner and that the decree should be modified in the following particulars: “That said plaintiff should pay to said defendant for the support of said children the sum of $10.00 per week beginning on the 22nd day of March, 1947 to the Clerk of the Fayette Circuit Court, and $10.00 thereafter until the further order of this court.”

It further recites that the plaintiff is in arrears in the payment of support of said minor children in' the sum of $402, and the plaintiff is ordered to pay $2.50 a week on said amount which is in arrears until said sum is paid. This instrument concludes with the following language: “It is therefore adjudged by the court that said divorce decree should be and is modified: that said plaintiff should pay the sum of $12.50 per week, $10.00 for the support of said minor children instead of $15.00 per week as now recited, and $2.50 a week until the payments which are now in arrears are paid in full, and said decree is hereby modified in said particulars.”

The defendant in this cause admitted that he is in arrears in the payment for the support of his minor children and that the amount claimed by plaintiff in her petition as being due under the purported judgment is correct.

It is defendant’s contention, however, that plaintiff is not entitled to recover for the reason that this court has no juris-, diction because the instrument sued upon (its authenticity is not disputed) is not a judgment. It is further urged that even if it be held that plaintiff has a valid judgment upon which she bases her action here, that it does not possess that finality which is essential to it being given full faith and credit under the Federal Constitution, Art. 4, Section 1.

The basis of the defendant’s contention is that this order upon which plaintiff has sued is not a final judgment. That since the court in Indiana has continuing jurisdiction over the question of support of children of divorced parents and that whatever orders such court makes are subject to modification, any order made by the court of original jurisdiction is not final and therefore not a judgment.

It should be pointed out here that there was no evidence offered in this cause as to what £he law of Indiana is in respect to this particular matter. The defendant in his memorandum sets forth some of the Indiana statutory provisions covering this subject but as hereinbefore pointed out, the same are not properly before us.

The plaintiff here places considerable reliance upon the case of Armstrong v. Armstrong, 117 Oh St 558, 160 N. E. 34, 35, 57 A. L. R. 1108.

In that case the plaintiff recovered a judgment in Kentucky in the sum of $5 per week for alimony and maintenance of two minor children of the plaintiff and defendant over whom in said action plaintiff had been awarded the custody. Plaintiff claimed that said judgment was a valid and subsisting one upon which she claimed a balance due her of $3,065. The answer of the defendant in that case asserted that by virtue of the Kentucky statutes it is provided that on final judgment the court may make orders for the care, custody and maintenance of the minor children of the parties and at any time afterward upon the petition of either parent, may reverse and alter the same, having in all such cases of care and custody, the interest and welfare of the child personally in view, and that said order was not. for a fixed, final-and definite amount and was not under .the laws of Kentucky a final order or judgment.

The court stated that the specific question to be decided in that case was “whether an order for alimony to be paid in future installments, entered by a Kentucky court, is within the protection of the full faith and credit clause of the United States Constitution and may be enforced in this state.”

The court held as follows:

Syllabus 1. “A judgment for alimony payable in installments, rendered upon entering a decree for divorce, constitutes a final judgment within the full faith and credit clause of the Federal Constitution so far as accrued installments are concerned, no modification of the decree having been made prior thereto, unless it appear from the law of the jurisdiction wherein the decree was granted that the power of modification expressly retained extends to accrued as well as to future installments of alimony.”

Par. 2 Syllabus. “Where a divorce was regularly decreed by a Kentucky court, and a sum payable in installments was awarded as alimony and for the support and maintenance of children of the parties, and there has been no modification of such judgment it will be enforced by the courts of Ohio under the full faith and credit clause of the Federal Constitution.”

The Armstrong case supra, in our opinion, is dispositive of the case at bar. Certainly it does not appear from the law of Indiana, wherein this judgment was granted, that the power of modification extended to accrued installments. It likewise is apparent here that no modification of this decree was actually made prior to the maturity of the accrued installments sued upon. It not only appears but it is admitted by the defendant that $327 of the total amount sued upon represents the sum of $402 — less credit of $75 — which the Indiana Court found the defendant was then in arrears. The remainder of the sum sought here is made up of arrearages accrued since the decree was modified on January 6, 1947.

The court is fortified in its conclusion here by the case of McPherson v. McPherson, 153 Oh St 82, 90 N. E. 2d 675. This case recites—153 Oh St on page 88, 90 N. E. 2d on page 676 of the report — the first paragraph of the sqllabus of the Armstrong case supra, and holds as follows: “Due and unpaid installments allowed by the court for the support of a minor child may not be modified.”

The court in the course of its opinion refers to the annotation in 157 A. L. R„ at pages 173-175. Also to the recent work of Nelson on Divorce and Annulment, Volume 3, page 537, wherein it is said: “The enforcement of an alimony or maintenance decree as to future installments stands upon a different footing than the enforcement of such a decree as to past due installments, since the decree is a continuing judgment as to future installments, while it is an ordinary judgment for debt or money as to those which are past due.”

The court also quotes from Restatement of Conflict of Laws, 518, Section 435, under “Comment,” wherein it is said: “A judgment or decree for alimony, rendered in another state, will be enforced only to the amount already accrued and due and only if the court which rendered the judgment has no power to modify the. amount already accrued.”

It is also pointed out that at page 553, Section 464, in the same work, it is said: “A valid judgment for alimony granted in one state can be enforced in another state to the extent of the amount already due and unpaid on the decree, and not subject to reduction.”

We find no merit in the claim of the defendant that the fact that here we have an order for the support of minor children rather than a decree for alimony in installments, renders the foregoing authorities inapplicable. It seems to us that the McPherson case supra definitely disposes of this contention adversely to the defendant. Besides, no distinction can logically be made on that ground.

We find, therefore, upon the issues joined in this cause in favor of the plaintiff, and that she is entitled to recover the sum prayed for, for which amount, together with her costs, judgment will be rendered in her favor and against the defendant.


text:
    SCHOBY, Plaintiff-Appellant, v. PETERSON et, Defendants-Appellees.
    Ohio Appeals, Second District, Madison County.
    No. 175.
    Decided March 2, 1951.
    George T. Tarbutton, Otis C. Buchanan, Columbus, for appellant.
    Frank J. Murray, London, Byron E. Ford, Columbus, for appellee, Andrew J. Peterson.
    H. H. Crabbe, London, for appellee, Edward F. Dorgan.
   OPINION

By THE COURT:

We have examined the record in this case, the bill of exceptions and briefs of counsel and are of the opinion that the trial court did not err in sustaining the motions of both of the defendants for a directed verdict. The plaintiff-appellant was clearly guilty, of contributory negligence as against the defendant Dorgan as found by the trial court. See Kormos v. Cleveland Retail Credit Men’s Company, 131 Oh St 471; Smiley v. The Arrow Spring Bed Co., 138 Oh St 81; Buddenberg v. Kavanaugh, 17 Oh Ap 252; Becker v. Dayton Power & Light Company, 56 Oh Ap 140. The only claim of negligence on the part of the defendant Peterson was based upon the fact that he was operating his car to the left of the center of the road. At page 97 of the record the plaintiff testified that at the time of the accident Peterson was not to the left of the center; hence this allegation must fail. We are in accord with the law set forth in the appellant’s brief qn concurrent negligence, but the same has no application here for the reason that no negligence is shown on the part 'of the defendant Peterson.

The Court made no finding as to the defendant Dorgan on this point but our examination of the record discloses that there was no evidence tending to establish the agency of the driver of the truck. Therefore, there was no evidence of negligence on the part of the defendant Dorgan.

The Court did not err in refusing to allow the plaintiff to amend his petition to conform to the alleged evidence by charging liability on the part of the defendant Peterson upon the ground of entrusting his car to an incompetent driver. There is nothing in the record to establish such a charge against the driver, and moreover the truck was not being-operated and had not been for several hours. There is no evidence of wilful and wanton misconduct on the part of either of these defendants. Therefore, the law cited on this question has no application.

Finding no error in the record the judgment will be affirmed.

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


author: By SKEEL, PJ.

text:
    BURTON, INC., Plaintiff-Appellant, v. DURKEE et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22217.
    Decided November 26, 1951.

      Ansel B. Curtiss, Leekie, McCreary, Schlitz, Hinslea & Petersilge, Cleveland, for plaintiff-appellant.
    W. Dean Hopkins, McDonald, Hopkins & Hood, Cleveland, for defendants-appellees.
   OPINION

By SKEEL, PJ.

These appeals come to this Court on questions of law from a judgment entered by the Common Pleas Court of Cuyahoga County for the plaintiff oh its petition, and for the defendants on their cross-petition.

The plaintiff filed its petition seeking a judgment for an amount claimed to be due from the defendants as the unpaid balance for the construction of a dwelling house on the property of defendants. The plaintiff claimed that the construction of the house was, by the terms of the contract between the parties, to be qn a cost plus fee basis, and that a balance of $14,871.91 remains due and unpaid.

The defendants, by cross-petition, claim the contract was for a fixed price of $27,000.00, plus $2700.00 to be paid the plaintiff for overhead and profit. It is further claimed that the plaintiff failed to finish the work and that the defendants expended $8800.00 for that purpose and that the defendants overpaid the plaintiff about $4000.00 after allowing all proper charges for- extras.

The Court found for the defendants on the issue of what the contractor was to receive, that is, that the contract was for the fixed amount of $27,000.00 and $2700.00 fee. The Court also found' that the plaintiff, in addition to said amounts, was entitled to a ten percent “tolerance” and after allowing for extra work or costs incurred because of change of plans, and deducting therefrom the cost of finishing the building of about $2000.00 after the plaintiff left the job, there was due the plaintiff $5558.66.

Both parties gave notice of appeal, which appeals have been presented together on questions of law.

Plaintiff claims the following errors:

“1. The court’s finding of fact upon which the judgment and decree are grounded are:

(a) inconsistent with the facts plead by both parties.

(b) Contrary to the undisputed evidence.

(c) unsupported by any evidence.

(d) against the great weight of the evidence.

(e) in conflict with and contradictory of the postive, clear an unambiguous language of that portion of the contract which the parties had reduced to writing or “integrated.”

2. The Court erred in awarding to plaintiff interest on the principal amount found due it only from the date' of the decree.

3. On the undisputed evidence in the record, the judgment and decree should have been for the plaintiff in the full amount claimed by it.

4. The Court erred in overruling plaintiff’s motion for new trial.” \

The defendants claim the following errors:

“1. That Finding of Fact No. 8 is not supported by evidence, is contrary to the 'clear and uncontradicted evidence, and is against the weight of the evidence.”

Finding of Fact No. 8 is as follows:

“Two thousand dollars was the reasonable cost to defendants of the work and materials for said house for which defendants paid persons other than the plaintiff, but for which plaintiff was obligated to pay by its original contract with the defendants.”

Prior to September 22, 1948, Mr. Charles A. Burton, president of the plaintiff company, and Harvey B. Durkee had a number of preliminary talks about the plaintiff corporation building a residence for the defendants. As a result of these negotiations, the parties came to an oral agreement whereby plaintiff was employed to construct the defendants’ residence on defendants’ property on Clubside Road in the City of Lyndhurst. After such agreement was concluded, the plaintiff wrote defendants a letter dated September 22, 1948, to which the defendant, Harvey B. Durkee, replied on September 23, 1948. The letters were as follows:

“September 22, 1948.

Mr. Harvey B. Durkee

2459 Charney Road

University Heights

Cleveland 18, Ohio

“Dear Mr. Durkee

This letter is to confirm verbal agreement entered into September 22, 1948. between Harvey B. Durkee, — owner, and Charles A. Burton, Inc., Contractor, outlining the terms and general conditions under which a new house is to be built on Owner’s Sublot No. 28 Club SMe Road, Lyndhurst Park Estates, Lyndhurst, Ohio, according to plans drawn by Richard D. Mumper & Associates, Designers.

The Contractor is to have full charge .of the work with the exception of heating, wiring and KITCHEN EQUIPMENT which will be let directly by the Owner. The balance of the work is to be done on a cost-plus-a fixed-fee bases. The fee agreed upon is $2700.00. The job costs are to include all materials, labor, permits, taxes, and insurance, and all other costs and expenses incurred directly with the work, including Charles A. Burton’s time actually spent on matters pretaining to this job, either in the office or the field, at the rate of $2,625 per hour.

The Contractor agrees to place Henry J. Lippert in charge of .this job, and not to take him off for any of the Contractor’s other construction work except in an emergency.

The Contractor agrees to start the job promptly and to complete the work as rapidly as conditions permit.

The Contractor will render monthly detailed statements of expenditures. The Owner agrees to pay the Contractor once a month for said expenditures.

(signed) Harvey B. Durkee

Harvey B. Durkee, Owner

(signed) CHARLES A. BURTON INC. Contractor

By Charles A. Burton, President.”

“H. B. DURKEE ELECTRIC CO.

September 23, 1948.

Charles A. Burton, Inc.

1836 Euclid Avenue

Cleveland, Ohio.

Dear Mr. Burton:

Enclosed please find signed agreement as outlined per our verbal conversation and one important item we should keep in mind. The total cost which we aim to build this house for is approximately $27,000.00.

The permit has been taken out as of this date. Mr. Mumper (architect) will contact you regarding somé of the changes we made.

I am enclosing a quotation from the Quiggin Company which came to me when they estimated the heating.

Very truly yours

(signed) H. B. Durkee

H. B. DURKEE

THD:HBD

The defendant returned a copy of plaintiff’s letter, signed as indicated above.

At the time these letters were exchanged, setting forth the understanding of the parties, certain plans and specifications had been prepared by one Richard D. Mumper designated as a designer. He was not a registered architect. These plans, however, because of basic defects, were revised in some material respects after the construction work was under way, which changes in part, at least, were spoken of in the preliminary talks.

At the time of the agreement between the parties, the plans and specifications were incomplete and did not completely demonstrate the building the defendants desired to be built.

The first question presented by this appeal is whether or not the plaintiff corporation was to be paid for its work on a cost plus fee basis or was it to build the building for the definite price of $27000.00 plus $2700.00 for overhead and profit?

The letter which was signed by both parties states clearly that the plaintiff was to be paid on a cost plus fee basis. Most of the provisions of the letter, directing what should be included in the cost, would be meaningless if the agreement was for a fixed sum. The defendants’ letter returning the signed agreement does not, in fact, dispute these provisions but only suggests that it was expected that the part of the work to be done by the plaintiff was to cost about $27,000.00. This was an estimate only. The conduct of the parties gives support to this interpretation of the agreement as is also true of the defendants’ pleadings and evidence.

On cross-examination, Harvey B. Durkee said:

“Q. This letter says ‘the contractor is to have full charge of the work, with the exception of heating, wiring and kitchen equipment, which will be let directly by the owner. The balance of the work is to be a cost-plus-affixed-fee bases. The fee agreed upon is $2700.00.’ Now, then, Mr. Durkee, if Mr. Burton had agreed to build this house for $27,000.00 plus the fee, why didn’t you say so in writing?

A. Because I gave him the privilege of working near that price.

Q. In other words, it was a cost-plus-job, and not a fixed-price job?

A. I think so, approximately; we used the approximate price of $27,000.00 as I stated in my letter to Mr. Burton.

Q. You are merely claiming that Mr. Burton did give you an estimate of $27,000.00 and that you are entitled to rely upon that estimate; is that right?

A. Yes.”

We must conclude, therefore, that the court’s finding and judgment that there was an agreement to build the defendants’ residence for a definite price is not supported by credible evidence and cannot be sustained.

By the clear and undisputed admissible evidence, the defendants agreed to pay the plaintiff for the construction of their residence on a cost plus fee basis. Where the parties to a building contract in which the builder is to be paid on a cost plus fee basis, and before the job is completed, a dispute arises as to the amount then due, and because of the non-payment of the bills submitted as provided by the contract, the contractor refuses to proceed further and withdraws from the job, if such withdrawal is legally justified upon the facts, the owner is liable to the builder for the actual cost incurred to the date of' the termination of the agreement, together with the fee provided for in the contract, if that was a definite amount, provided the builder has not been guilty of malfeasance, extravagance, wastefulness or negligence in the prosecution of the work and has proceeded with reasonable dispatch and due diligence to accomplish the provisions of the contract.

Having come to the conclusion that by the undisputed evidence the contract was on a cost plus fee basis, and entering the judgment which the trial court should have entered on that issue, that the contract was one for cost plus fee basis, we must, of necessity, reverse the trial court on the other issues presented by defendants’ answer to plaintiff’s petition, and by plaintiff’s answer to defendants’ cross-petition, as being contrary to the law of the case, it being evident that the defendants can have no cause of action on their cross-petition where the contract was on a cost plus fee basis.

The case is therefore remanded for retrial on the issues of the balance due to the plaintiff from the defendants, upon the rules of law hereinbefore set forth.

Judgment reversed and cause remanded. Exc. Order see journal.

HURD, J, THOMPSON, J, concur.


author: By HORNBECK, J:

text:
    SEELEY et, Plaintiffs-Appellees, v. PEOPLES TRANSIT COMPANY, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2056.
    Decided December 6, 1949.
    Frank W. Krehbiel, Dayton, for plaintiifs-appellees.
    Landis, Ferguson, Bieser & Greer, R. K. Landis, Jr., Dayton, for defendant-appellant.
   OPINION

By HORNBECK, J:

This- is an appeal on questions of law from a judgment of the Municipal Court of the City of Dayton for $270.00 and costs in favor of plaintiffs and against defendant, the judgment entered upon a finding of the trial judge, jury having been waived. There was also separate findings of fact and law.

Four errors are assigned. First, in finding that the defendant was negligent as charged; second, in failing to find that plaintiff was contributorily negligent; third, failure of proof of the ownership of the automobile involved; and fourth, error in the amount of the damages.

Upon the first two assignments there is presented only a factual issue which was for the trier of the facts to determine, who held in favor of the plaintiff upon the claim of defendant’s negligence and against the defendant on the claim that the plaintiff was • contributorily negligent.

The plaintiff’s theory of the case, to the effect that the operator of 'defendants bus entered the intersection in which the collision occurred when the traffic light was red against him, is supported by the plaintiff and three of his witnesses. Each of his witnesses says that the defendant entered the intersection against the red light and the plaintiff testifies that although he did not see the bus when it entered the intersection, the light was green for him when he moved into it. There is direct conflict with this testimony by that of three witnesses for the defendant — passengers on the bus involved in the collision — and by the operator of the bus, all of whom say that the light was green for the bus when it entered the intersection.

All of the circumstances attending the collision were before the trial judge and the case presents the ordinary test which must be applied in this Court, namely, was the conclusion of the trier of the facts so manifestly against the weight of the evidence as to shock the conscience of the reviewing court. We can not so find. There is ample support for the finding and judgment upon the issue of -the negligence of the defendant and of the contributory negligence of plaintiff Seeley, driver of the automobile which was damaged.

Upon the third assignment there was no issue as to the ownership of the automobile because of the statement of defense wherein it is admitted-that “as a result of that collision the automobile of Charles A. Seeley was damaged.”

Upon the fourth assignment of error there is support in the record for the amount of the judgment.

The judgment will be affirmed.

MILLER, PJ, and WISEMAN,,J, concur.


author: By BADER, J.

text:
    WASSERMAN et, v. WEST INDIA COFFEE CO. et.
    Common Pleas Court, Hamilton County.
    No. 117334.
    Decided March 14, 1951.

      Deibel, Elbrecht & Roberts, Cleveland, for plaintiffs.
    Spangenberg & Spangenberg, Albert C. Keeler, Cincinnati, for defendants West India Coffee Co., and Augusta Wasserman.
   OPINION

By BADER, J.

This cause comes before the Court on the separate demurrers of Augusta Wasserman, individually and as Executrix of the Estate of Isadore Wasserman, deceased, the West India Coffee Co. to the Fourth Amended Petition and the interrogatories attached thereto. The demurrers of the parties are similar and set forth the same grounds.

The grounds set forth in the demurrer to the interrogatories are as follows:

“First. That the information sought by the interrogatories is not pertinent or relevant to any issue raised in any of the alleged causes of action contained in the Fourth Amended Petition herein.

“Second. That the interrogatories do not call for information within the personal knowledge of this defendant, Augusta Wasserman, individually and as executrix óf the estate of Isadore Wasserman, deceased, but attempt to elicit hearsay information.

“Third. That the attached interrogatories have not been propounded in good faith, are vexatious and are intended to harass this defendant, and that the information requested in said interrogatories has already been sought by a deposition proceeding wherein the same or similar questions were propounded as against this defendant.”

The grounds set forth in the demurrer to the petition are as follows:

“First. That the plaintiffs above named do not have legal capacity to sue.

“Second. Misjoinder of parties defendant.

“Third. That several causes of action against several defendants are improperly joined.

“Fourth. That the instant action was not brought within the time limited for commencement of such actions.

“Fifth. That the said first, second and third alleged causes of action do not show facts sufficient to constitute a cause of action against this defendant.”

Sec; 12102-2 GC provides: “Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status or other legal relations thereunder.”

If plaintiffs bring their action for a declaratory judgment it is done by virtue of the authority of the foregoing statute.

Borchard,' Declaratory Judgments, Second Edition, on pages 25 and 26 says: “At the outset, it may be remarked that in form it differs in no essential respect from any other action, except that the prayer for relief does not seek execution or performance from the defendant or opposing party. It seeks only a final determination, adjudication, ruling, or judgment from the court, but the conditions of the usual action procedural and substantive, must always be present, namely, ■the competence or jurisdiction of the court over parties and subject-matter, the capacity of the parties to sue and be sued, the adoption of the usual forms for conducting, judicial proceedings (including process, pleadings, and evidence), the existence of operative facts justifying the judicial declaration of the legal consequences, the assertion against an interested party of rights capable of judicial protection, and a sufficient legal interest in the moving party to entitle him to invoke a judgment in his behalf.”

In the case of Driskill v. City of Cincinnati, 66 Oh Ap 372, 34 N. E. 2d 241, the Court said:

“1. A petition for a declaratory judgment is not sufficient against demurrer if there is not alleged facts which would give rise to a right-duty relation between the parties; which relationship is in dispute and which places the plaintiff in a position of peril or insecurity.

“2. A declaratory judgment can be rendered only in cases where there is a real controversy between adverse parties in a matter which presents a justiciable dispute.”

Sec. 12102-11 GC provides in part as follows: “When declaratory relief is sought all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding.”

1 In the case of Schriber Sheet Metal & Roofers, Inc. v. Shook, 64 Oh Ap 276, 28 N. E. 2d 699, the Court held: Syl. 4. “Sec. 12102-11 GC, which provides that in an action for declaratory judgment ‘all persons shall be made parties who have or claim any interest which would be affected by the declaration,’ allows joinder only of those persons legally affected and does not enlarge the procedure as to joinder of parties defendant.”

See also Alf v. Hunsicker, 82 Oh Ap 197, Syl. 3, 80 N. E. 2d 511.

An examination of plaintiff’s’ Fourth Amended Petition for Declaratory Judgment fails to reveal a’cause of action against either the West India Coffee Company or Augusta Wasserman, individually or as “Executrix of the Estate of Isadore Wasserman, deceased.”

The only allegations made concerning the West India. Coffee Company are that it is a corporation, and that it was the result of the incorporation of Samuel Wasserman’s business, formerly carried on by him, and that ninety-eight shares of the stock was placed in escrow prior to his death to be distributed after his death in a certain designated manner.

How can the corporation in which the decedent held stock during his lifetime successfully be made a party defendant to an action, merely because he owned its stock, with no other further facts stating a cause of action being alleged?

Borchard, 2nd Ed. of Declaratory Judgments, pp. 41 and 42 said: “Where the controversy not genuine or ripe for judicial decision, with a plaintiff and defendant having actually or potentially opposing interests, with a res or other legal interest definitely affected by the judgment rendered and the judgment a final determination of the issue, it would fail to present a justiciable dispute — not because it seeks a declaratory judgment, but because it lacks the elements essential to invoke any judgment from judicial courts.”

In the case of Schaefer v. First National Bank, 134 Oh St 511, at page 518, 18 N. E. 2d 263, at page 267, speaking of the Uniform Declaratory Judgments Act, the Court said: “But it is certainly alternative in the sense that it lies notwithstanding another remedy is available, in all those cases in which there is a real controversy between adverse parties in a matter that is justiciable and the court, in the exercise of a sound discretion, finds that speedy relief is necessary to the preservation of rights which might otherwise be impaired or lost.”

It has been held by some authorities that in an action for declaratory judgment it is not necessary to separately-state and number because “there is no misjoinder of causes of action or separate causes of action against several defendants” —because “there is only one cause of action which is for a declaratory judgment.” •

The alleged causes of action are set forth in plaintiffs’ Fourth Amended Petition. A search of the three causes of action fails at any point to set forth an “actual controversy” or a cause of action which is necessary to comply with the law of pleadings for a declaratory judgment as explained hereinabove.

The defendant, The West India Coffee Company, certainly has no interest in the stock formerly owned by Samuel Wasserman unless it purchased the stock, nor does it have any interest in the escrow agreement. If there were any claims against The West India Coffee Company on the part of the plaintiffs they certainly would be different than those which could be alleged by the plaintiffs against Augusta Wasserman, individually and as “Executrix of the Estate of Isadore Wasserman, deceased.”

It is alleged in plaintiff’s petition that both the Estate of Samuel Wasserman and Isadore Wasserman are in process of administration in the Probate Court of Hamilton County. Certainly if there is an action to produce concealed assets it would not be brought in the Common,Pleas Court if the Estate is in process of' administration in the Probate Court.

It appears to the Court that the subject-matter of this case has to do with two estates in process of administration in the Probate Court of Hamilton County, Ohio, and any action concerning concealed assets, or assets not accounted for, or having to do with escrow agreements of the two decedents or trust agreements comes within the jurisdiction of the Probate Court and not the Common Pleas Court.

Accordingly the demurrers of the defendants, The West India Coffee Company and Augusta Wasserman, individually and as Executrix of the Estate of Isadore Wasserman deceased, to plaintiffs’ petition are sustained for the reasons that there is a misjoinder of parties defendant, that the petition does not set forth facts sufficient to constitute a cause of action, and that the Court does not have jurisdiction of the subject-matter.

It appears to the Court that the interrogatories addressed to The West India Coffee Company and to Augusta Wasserman are not needed by the plaintiffs to properly plead their case, nor does it appear that they are pertinent, relevant or proper and for that reason the demurrers to the same are sustained.

Please present your entry sustaining the demurrers for the reasons set forth above at your earliest convenience. Plaintiffs may have twenty days within which to plead further if they so desire.


author: By MILLER, PJ.

text:
    DETELICH, Jr., d. b. a. GREEN PARROT INN, Plaintiff-Appellant, v. DEPARTMENT OF LIQUOR CONTROL, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4434.
    Decided October 2, 1950.

      Luchette & Hoffman, Masury, for plaintiff-appellant.
    •Hon. Herbert S. Duffy, Atty. Geni., Charles T. Kaps, Asst. Atty. Geni., Columbus, for defendant-appellee.
   OPINION

By MILLER, PJ.

This is an appeal from a judgment of the Court of Common Pleas dismissing an appeal from an order of the Board of Liquor Control.

The record discloses that the judgment was rendered in response to a motion seeking an order of dismissal for the following reasons:

(1) That notice of said appeal was not filed with the Board of Liquor Control.

(2) That said notice of appeal did not set forth therein a copy of the order of the Board of Liquor Control from which said appeal was taken.

In considering the first branch of the motion the facts ’disclose that the notice of appeal was timely filed in the appellate court and that a copy of the' notice was served upon the Department of Liquor Control by serving O. Fleckner, Director of said Department. The question presented is whether the requirements of §154-73 GC, were met, the pertinent part of which provides:

“Any party adversely affected by any order ’ of an agency * '• *, may appeal to the Common Pleas Court. * * *

“Any party desiring to appeal shall file a notice of appeal with the agency setting forth the order appealed from and the ground of his appeal * *

It will be noted that the statute requires that the notice be filed “with the agency.” Now was the filing with the Department sufficient to meet the statutory requirement or was it necessary that the notice be filed with the Board of Licmor Control? The term “agency” is defined by $154-62 GC, under which we conclude that both the Department of Liquor Control and the Board of Liquor Control are agencies. Since both are agencies further attention must be given to §154-73 GC, and determine, if possible, which agency or agencies are meant to be served. In so doing it will be noted that the statute refers to the order of “an agency.” Clearly, the agency making the order was the Board of Liquor Control. It will be further noted that the statute requires a notice of appeal to be filed “with the agency.” We conclude that by using the words “the agency” a definite agency is referred to, to wit, the agency making the order appealed from. The requirements of the statute are mandatory.

In the case of Lunch Co. v. Glander, 147 Oh St 147, at p. 150, Matthias, J., in speaking of a similar statute with reference to appeals to the Board of Tax Appeals said:

“The very statute which authorizes the appeal prescribes the conditions and procedure under and by which such appeal may be perfected. Where a statute confers the right of appeal, adherence to the conditions thereby imposed is essential to the enjoyment of the right conferred. ‘The party who seeks to exercise this right, must comply with whatever terms the statutes of the state impose upon him as conditions to its enjoyment.’ Collins, Exr., v. Millen, 57 Oh St, 289, 291, 48 N. E. 1097.”

We are therefore of the opinion that the proper agency was not served with the notice of appeal.

The next question presented is whether the appellant met the requirements of the same statute since he failed to set forth with the notice of appeal a true copy of the order from which the appeal was taken. The record shows that an instrument designated as “Appeal from Decision of the Board of Liquor Control” was filed with the notice of appeal which contained a statement setting forth the charges made, finding of the Board and the errors assigned. This, we think, constituted a substantial compliance with the mandatory reauirements of the General Code which were sufficient to confer jurisdiction upon the Common Pleas Court. In considering a similar requirement under §5611 GC which concerns appeals in tax cases, the Supreme Court restated the rule in the Lunch Co. v. Glander case, supra, at page 150, saying:

“This coúrt has heretofore held in the cases of Kinsman Square Drug Co. v. Evatt, Tax Commr., 145 Oh St, 52, 60 N. E. (2d), 668, and Dayton Rental Co. v. Evatt, Tax Commr., 145 Oh St, 215, 61 N. E. (2d), 210, that substantial compliance with these mandatory requirements constitutes a condition precedent to the right to be heard, upon appeal, by the Board of Tax Appeals and that a failure to comply therewith warrants the dismissal thereof by the Board of Tax Appeals.”

We are therefore of the opinion that the second branch of the motion should have been overruled, but since the first branch supports the judgment of the trial court, the same will be affirmed.

HORNBECK and WISEMAN, JJ, concur.


text:
    AMERICAN AUTOMOBILE FIRE INSURANCE COMPANY et, Plaintiffs-Appellants, v. THOMAS, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2140.
    Decided March 27, 1951.
    J. D. Chamberlain, Jr., Dayton, for plaintiffs-appellants.
    A. W. Schulman, Dayton, for defendant-appellee.
   OPINION

By THE COURT:

Submitted on motion of defendant-appellee to dismiss the appeal for failure to comply with Rule VII. The record shows that plaintiffs-appellants failed to file assignments of error or brief within fifty days after filing the notice of appeal on questions of law. This Court for many years has consistently held that where the appellant fails to file assignments of error and brief within fifty days after the filing of notice of intention to appeal, a motion to dismiss the appeal will be sustained-. See State ex rel. Merrill v. Moore, 83 Oh Ap 525, 82 N. E. (2d) 323, and cases therein cited.

Motion to dismiss is sustained.

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