text:
    STATE, Plaintiff-Appellee, v. HERTZ, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5180.
    Decided September 14, 1954.
    Frank H. Kearns, Pros. Atty., Columbus, for plaintiff-appellee.
    Carl C. Hertz, Columbus, in his own behalf.
   OPINION

By THE COURT.

This is a motion for leave to appeal from a judgment of the Common Pleas Court entered on March 19, 1952. The brief filed by the defendant-appellant discloses that he was indicted on several counts of uttering and delivering certain checks with intent to defraud and that he executed said checks as an officer of a corporation. To the indictment he entered pleas of guilty. He now urges that the indictment charges no offense against him, since he signed merely as an officer of a corporation. This Court held in the case of State v. Stemen, 90 Oh Ap 309, that a corporate officer may be guilty of the offense, under certain conditions, even though he did not sign the check, but instructed an employee to do so. The appellant further urges that the evidence was not sufficient to support a conviction. This may not be urged upon a plea of guilty. He complains also that his probationary sentence was revoked without submitting to him a written report of the investigation in compliance with §11521-1 GC. However, no showing is made that the Court used such a report. He states in his brief that:

“The appellant was summarily brought before the court and the Probation Department made an oral presentation of the alleged violation, and the appellant was then and there sentenced to the Ohio Penitentiary on five consecutive sentences. The proceedings were in violation of the appellant rights under §11521-1 GC.”

It therefore appears that direct proof of the violation was presented to the Court, and that the same did not result from any investigation report. We ñnd no showing of any abuse of discretion exercised by the Court in imposing sentence.

The motion will be overruled.

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


source: Caselaw Access Project

author: Per CURIAM.

license: Public Domain

text:
    ROCHFORD et, Plaintiffs-Appellees, v. SHEBAN et, Defendants-Appellants.
    Ohio Appeals, Seventh. District, Mahoning County.
    No. 3638.
    Decided April 5, 1954.
    Falls, Hazel & Kerr, Youngstown, for plaintiffs-appellees.
    Joseph Sheban, Youngstown, for defendants-appellants.
   OPINION

Per CURIAM.

Plaintiffs, John T. Rochford and J. Harry Rochford, sued defendants, Jennie Sheban and Joseph Sheban, in the Court of Common Pleas and alleged:—

“Plaintiffs say that at different times, defendants loaned them certain sums of money; that on or about the I7th day of April, 1950, the loans totaled approximately $2,000.00; that on said date as evidence of this indebtedness, plaintiffs executed and delivered to defendants a document involving Youngstown City Lots No. 31471 and 14306 to be returned to plaintiffs upon repayment of said loans; that plaintiffs are ready, willing and able to return said loans, but that defendants refuse to return said evidence of indebtedness; that plaintiffs at this time offer to repay said loans upon defendants returning said evidence of indebtedness.

“Plaintiffs further say that defendants have threatened to file said document thereby attempting to transfer title from plaintiffs to defendants.

“Wherefore, plaintiffs hereby offer to return said $2,000.00 to defendants and pray that the defendants be ordered to return said evidence of indebtedness to the plaintiffs; that the defendants be enjoined from recording said alleged document and attempting to transfer title from plaintiffs to defendants and for such other and further relief as the court deems just and proper.”

By answer defendants denied the allegations of. plaintiffs’ petition and alleged as follows:—

“Furthermore the defendant, Jennie Sheban, says that she purchased from the plaintiffs their undivided interest in two vacant lots and paid the full purchase price, but the deed is not placed on record pending certain procedure in the Probate Court.

“Wherefore, defendants pray that plaintiffs’ petition be dismissed at their own cost.”

In that action the trial judge held:—

“* * *.that the deed of March 15, 1950 was executed by the plaintiffs and delivered to the defendant, Joseph Sheban, under the conditions set forth in the petition; that said deed was given as security for the indebtedness existing from the plaintiffs to the defendant, Joseph Sheban, and was in effect a conveyance of an equitable interest to secure such indebtedness and was not in fact a deed delivered for the purpose of transfering title, and that the defendants did not purchase the land described in said deed and 'are not entitled to the legal title or interest therein.”

The trial judge entered judgment ordering:—

“* * * that the deed dated March 15, 1950 be delivered by the defendant, Joseph Sheban, to the Clerk of this court for delivery by the Clerk of this court to the plaintiffs for cancellation upon the payment by the plaintiffs to the Clerk of Courts of the sum of Two Thousand Dollars ($2,000.00) with interest at the rate of 6% per annum from the 15th day of March, 1950, the sum of Two Hundred Seventy-One and 50/100 Dollars ($271.50) with interest from November 23, 1948. and the sum of One Hundred Sixty-One Dollars ($161.00) with interest from the. 5th day of May, 1945, and that upon the delivery of said deed to the Clerk of Courts and the payment of said sums of money to the Clerk of Courts for defendants, that said deed will thereupon become null, void and of no further effect. Judgment against the defendants for costs.”

Defendants appealed to this court from the judgment of the trial court on questions of law and fact.

Subsequent to the transaction to which reference is made in such action the executrix of the estate of Mary C. Rochford sought an order of the Court of Probate of Mahoning County to- sell such lots to pay debts of her estate. In that action, in which defendant, Jennie Sheban, demanded a schedule of debts sought to be paid, which was not filed, she contended that the lots in question were devised to the daughters of Mary C. Rochford and not to defendants, John T. Rochford and J. Harry Rochford, in which action the Judge of the Court of Probate found that such lots were devised to defendants, Harry and John Rochford. Subsequently all the heirs of Mary C. Rochford, deceased, decided to divide her- estate between themselves equally instead of taking under the will.

Upon consideration of all of the evidence presented in this appeal upon questions of law and fact the court arrives at the conclusion that the plaintiffs have established by the degree of proof required, to-wit clear and convincing evidence, that the instrument purporting to be a deed was in fact executed and delivered as a mortgage and not as an absolute conveyance. Therefore the finding and decree of this court is for the plaintiffs.

Defendants’ motion for findings of fact and conclusions of law is sustained, and this court adopts as its finding of fact and conclusions of law that made by the trial court, namely:—

“The court finds from the evidence that at the time the instrument of April 17, 1950, was signed the relationship of client and attorney existed and had for some time existed between the parties as well as that of debtor and creditor.

“The court finds that the indebtedness of plaintiffs to defendant Joseph Sheban is $2000.00, with interest from March 19, 1950; $271,50, with interest from November 23, 1948; and $161.00, with interest from May 5, 1945.

“The court finds as a matter of law that it is against the policy of the law and the principles of equity when applied to the evidence herein to hold the instrument in question, regardless of its form, to be anything other than evidence of the indebtedness existing between the parties and as security therefor.”

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


author: By HORNBECK, J.

text:
    ABDONEY, d. b. a. SARATOGA CLUB, Appellants, v. BOARD OF LIQUOR CONTROL, Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5312.
    Decided October 20, 1955.
    DiSalle, Green & Haddad, Toledo, Ned W. Thomas, of Counsel, for appellants.
    C. William O’Neill, Atty Geni., Kiehner Johnson, Asst. Atty Geni., Columbus, for appellee.

      (MILLER, PJ, FESS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By HORNBECK, J.

This is an appeal from a judgment of the Common Pleas Court affirming an order of the Board of Liquor Control affirming an order of the Department of Liquor Control suspending on appeal the permit of appellant for violation of a provision of the Liquor Control Act. The charge is based upon a violation of §6064-22 GC, now §4301.22 R. C., which provided:

“(B) No sale shall be made to an intoxicated person.”

The charge was that,

“On September 11, 1954, the permittee or his agent or employee did sell on the permit premises intoxicating liquor, to wit, whiskey and mixed drinks, containing whiskey to Edwin Frost, who was then and there in an intoxicated condition.”

There are two transactions involved in the consideration of the charge. Frost, the person to whom it is charged the liquor was sold, was in the place of business of permittee and seated at the bar when the investigators of the Board entered the permit premises. The facts as developed by the testimony on behalf of the Department are not disputed as the permittee did not take the stand. From these facts we hold that the Board had the right to draw the following conclusions: That Frost at all times while under observation of the investigators and before taking the first drink was intoxicated; that while in that state he was served with one drink of intoxicating liquor, which he himself had ordered; that he was served with a second drink of intoxicating liquor which was ordered by another for the bar, that is to say, for all persons who were at the bar at that time. When this liquor was ordered and when placed before him, Frost was asleep. He did not order the second drink, nor did he consume it.

Coming to the question whether the providing of the first drink to Frost was a violation of the statute. Inspector Peden at page 13 of the record says:

“He (Frost) was talking to a man on his right, loudly, waving his arm. He had a drink when he walked in there, a mixed drink, and he ordered one drink. I don’t know if he paid for it or not, but when we ordered our drink, this man served him a drink and the man next to him.” (Emphasis ours.)

The liquor served in both drinks was shown to be intoxicating.

It appears upon the above quoted testimony of Inspector Peden that the first drink which he saw Frost consume was ordered by him and therefore sold to him. However, whether he did or did not specifically order the drink, it is manifest from all the testimony that it was served to him while seated at the bar. Does this constitute sufficient proof of a sale to him? We believe these facts and the presumption attending make prima facie proof of a sale to an intoxicated person which it was incumbent upon the permittee to meet, if he desired to rebut it.

Presumptions conform to the commonly accepted experiences of mankind and the inferences which reasonable men would draw from such experiences. It is common knowledge that the conduct of places where liquor is sold to the public under a permit from the Department of Liquor Control are operated for profit. Liquor is not given away in these establishments. To do so is contrary to common experience and is also unlawful by statute. But, if it is to be claimed that the liquor was given away or sold to some person other than Frost, it would be incumbent upon the permittee, upon the state of the proof, to establish it. When, then, it appears that Frost, seated alone at the bar, had a drink of intoxicating liquor immediately in front of him, which he consumed, a prima facie case is made that the liquor was sold to him. Shranko v. Board of Liquor Control, No. 4907, Franklin, 1953, 72 Abs 103.

In construing the term “sale” we adopt the usual statutory and commonly accepted legal definition and not that set forth in §6064.53 R. C. of the Liquor Control Act which by its terms does not control in this case.

We find insufficient proof of the charge as to a sale to Frost of the second drink of liquor. It is a material element under the statute. §6064-22 GC, and the charge against appellant, that the sale be made to Frost, the intoxicated person. The sale was made to the individual who bought the drinks for the bar.

Former §13198 GC, provided that it was an offense to buy intoxicating liquor for, or sell, or furnish it to an intoxicated person. Would there be any doubt that under the facts in this case the buyer of the second drink could have been prosecuted under the foregoing statute for buying intoxicating liquor for Frost? The foregoing statute and a statute in force when the charge was preferred against appellant, §12960 GC, prohibits the furnishing of intoxicating liquor to a minor but apparently does not include an intoxicated person. However, it could be made the subject of a rule by the Board of Liquor Control.

Although the proof requisite to establish a violation of statute under the Liquor Control Act is less than in a criminal prosecution, the elements constituting the offense are the same, and they must be established. This is true in all cases, but especially so by reason of the nature of the charge here under consideration. We express no final opinion upon the application of §4303.37 R. C., but call attention to the fact that it provides:

“No person shall violate §4303.01 to §4303.37 inclusive, R. C. for which no penalty is provided. Whoever is convicted of the violation of such section shall forfeit any permit granted to him by the Department of Liquor Control.”

The section here involved is §4301.22 GC.

The order of the Board was supported by reliable, probative and substantial evidence and the Common Pleas Court was correct in so holding. ' We recognize that the Common Pleas Judge upon review in that Court was of the opinion that there was no proof of violation of the. statute as to the first drink served to Frost, but that the proof was sufficient as to the second. We reach the same ultimate conclusion but upon a different theory than the Common Pleas Court Judge.

The judgment will be affirmed.

MILLER, PJ, FESS, J, concur.


author: By MILLER, PJ.

text:
    OPONOWICZ, Habeas Corpus, In re.
    Ohio Appeals, Second District, Franklin County.
    No. 5239.
    Decided June 28, 1955.
    Alfred Oponowicz, Columbus, on his own behalf.
    Hon. C. William O’Neill, Atty. Geni., Roger B. Turrell, Earl N. Merwin, Asst. Attys. Geni., Columbus, for respondent.
   OPINION

By MILLER, PJ.

This is an action in habeas corpus wherein the first question presented is whether the trial court had jurisdiction to sentence the relator after his release on probation from the Lima State Hospital where he had been committed as a mental defective.

The record discloses that the relator pleaded guilty to the charge of armed robbery on December 6, 1943, and that “in lieu of the sentence provided in the penal code for the crime of which he was convicted” he was ordered “confined indefinitely in the Lima State Hospital for the criminal insane, Lima, Ohio”; that on July 15, 1947, upon an application for release from Lima he was ordered released and “placed on probation for a period of five years under the supervision of W. B. Dillon on condition of good behavior,” etc.; that on March 9, 1948, he was found to be a parole violator and was ordered imprisoned in the Ohio State Penitentiary for an indefinite period.

It is urged by the relator that when he was released from Lima his release should have been absolute and not conditional and therefore the Court had no jurisdiction to sentence him upon being, found guilty of violating the terms of his probation.

After a careful examination of that part of §13451-20 GC applicable to the facts presented, we are in accordance with the views urged by the relator. This part of §13451-20 GC effective when the petitioner entered a plea of guilty to the charge against him, is as follows:

“If, upon consideration of such report and of such other evidence as shall so be submitted to the court, the court shall find that such prisoner is a mentally defective prisoner as defined in this act, and that the general welfare and general safety of the community require the indefinite commitment of such prisoner under this act, the court may, in its discretion, in lieu of sentencing such prisoner for the crime of which he has been convicted, enter an order of indefinite commitment of such prisoner to such available institution, * * *, as shall by the court be considered best adapted to carry out the purpose of this act in respect to such mentally defective prisoner. Any such order of indefinite commitment shall constitute a final order.” (Emphasis ours.)

It appears that the Court in its discretion elected to commit the prisoner indefinitely to the Lima State Hospital and this election was in lieu of, that is, in place of, or instead of, a sentence to a penal institution. Sec. 13451-22 GC, setting up procedure for the release of a prisoner committed as mentally defective, provides that when such a prisoner would be eligible for parole upon sentence for the crime of which he was convicted but not prior to that time, the superintendent of the institution wherein such prisoner is confined may file with the court in which the prisoner was convicted an application for his release. The section makes provision for two situations: (1) An application before the maximum term for which the prisoner could have been committed had expired; (2) Upon the expiration of the maximum term of imprisonent prescribed by law for the crime of which he was convicted. Then follows this provision:

“If, upon any hearing provided by this section the court finds that such prisoner is not, at the time of such hearing, mentally defective the court shall, if the maximum term of imprisonment prescribed by law for the crime of which such prisoner was convicted has not expired, grant such application upon such terms and conditions as the court shall prescribe. And, if such maximum term of imprisonment has expired, shall order the discharge of such prisoner and shall cause any such order of the court to be duly certified to the superintendent of the institution in which such prisoner is confined.”

Do the statutes providing that the commitment of a mental defective to an institution in lieu of a sentence for the crime of which he has been convicted support a subsequent sentence of the petitioner to the penitentiary? Or, in other words, is a new sentence such a condition as the court shall prescribe as contemplated by §13451-22 GC? In our judgment the court had exercised and exhausted its full jurisdictional authority to sentence when he committed the prisoner indefinitely to the Lima State Hospital. It is interesting to note that the successor section to §13451-20 GC, §2947.25 R. C., provides that after the preliminary report pursuant to the reference to a psychopathic clinic, the court “shall impose the appropriate sentence for the offense of which the person was convicted. At the same time the court shall enter an order of indefinite commitment of such person to the department, during the continuance of which the execution of sentence shall be suspended.” The section as now framed expressly authorizes the court to pronounce a sentence of imprisonment and also to suspend it and commit the prisoner to an appropriate institution. This power to sentence was not found in §13451-20 prior to the amendment, and the authority to parole was based upon the right to sentence. Sec. 13451-2 GC.

We are therefore of the opinion that the order revoking the parole and sentencing the relator for the robbery committed in 1943 was illegal and void.

The record reveals further that while the relator was on probation he committed another offense of armed robbery for which he was indicted, convicted and sentenced on March 3, 1948, to an indeterminate period in the Ohio Penitentiary. This sentence was to run consecutively with the one previously pronounced upon being found guilty of being a parole violator. It is urged that the subsequent sentence is enforceable only if the prior sentence is a valid judgment; that since it is established that the prior sentence is void, the subsequent sentence never became operable; that its very foundation has been removed and it cannot stand alone. The relator cites the cases of Ex Parte Jordan, 7 O. N. P. 563, and Woodford v. State, 1 Oh St 428. We feel that these cases are not controlling for there is a difference in the factual situation. In the cited cases the prisoners were sentenced for a definite term for each offense, the latter to commence upon the expiration of the first sentence.

The Woodford case was a proceeding in error. The judge who wrote the opinion said, at the end thereof,

“The judgment, therefore, is not severable, and will have to be reversed in whole, * *

The judgment here is severable. The sentence of March 3, 1948, was pronounced by authority of §2166 GC and is completely independent of that part which provides that it run consecutively with the former sentence. The former sentence is a nullity and may be so considered and does not affect at all the validity or the term of the sentence under which the relator is properly held.

By the terms of the controlling statute “All terms of imprisonment of persons in the penitentiary may be ended in the manner provided by law.” The relator having been properly sentenced upon the one offense only may be held for that offense only and released at its expiration “in the manner provided by law.” The term of the relator under his valid sentence has not expired and he may not be released upon a writ of habeas corpus.

The writ will be denied.

HORNBECK and WISEMAN, JJ, concur.


author: By NICHOLS, J.

text:
    McCOY, In re.
    Ohio Appeals, Second District, Franklin County.
    No. 5099.
    Decided November 4, 1954.
    Frank H. Kearns, Pros. Atty., Victor E. Vaile, Jr., Joseph Poorman, Asst. Pros. Attys., Columbus.
    John H. Lewis, Columbus, for Henry McCoy, Grandparent.
    (MONTGOMERY, -PJ, of the Fifth District, GRIFFITH and NICHOLS, JJ., of the Seventh District, sitting by designation in the Second District.)
   OPINION

By NICHOLS, J.

This cause is in this court on appeal on questions of law. The record discloses that an action for divorce was instituted in Franklin County Court of Domestic Relations by Olga A. McCoy against Jesse McCoy, the parties being the parents of Ruby McCoy, a child about three years of age. In that proceeding a divorce was granted to the plaintiff Jesse McCoy, the defendant, although served with summons did not appear and made no claim to the custody of the child. On consideration of the fact that the mother had previously been committed to the State Hospital for the Insane, and the further fact that she had no home in which to care for the child, the Domestic Relations Court made no order with relation to its1 custody, but pursuant to the statute certified the record to the Juvenile Branch of the Court of Domestic Relations of Franklin County for disposition as to the custody of the child. The Juvenile Court heard the testimony of a number of witnesses, including the testimony of the grandparents of the child, which disclosed that these grandparents had taken the child from infancy and had supported it in their own home and apparently had supplied it with the necessaries of life. The grandparents were claiming that they should be given the custody of the child. The Juvenile Court had before it evidence of-the fact that Jesse McCoy, the father of the child, was an unfit person to have its custody; that the mother of the child was a proper person for its custody but that she had no home in which to rear it and she was required to work to support herself, the husband never having contributed anything toward her support.

The evidence further discloses that Jesse McCoy, the father of the child, had been accustomed to make his father’s home his own residence, although for a short period of time before the hearing he was not living in the home of his parents. He had been charged with various offenses during the preceding years and the Court was altogether warranted in finding that it would not be for the best interests of the child to remain in the grandparents’ home where Jesse McCoy would likely return for his residence.

Furthermore, the evidence disclosed that the mother of this child was never insane but had been afflicted with epileptic seizures. The medical testimony showed that she had either fully recovered from such epileptic condition or would eventually recover if the medication prescribed for her would be continued. There is some medical testimony that this child might inherit from the mother a tendency toward epilepsy.

The evidence further disclosed that these grandparents of the child and its father had destroyed the medicine which the mother had been taking to control the epileptic seizures with which she had been afflicted.

Furthermore, the evidence disclosed that the grandparents of the child had provided the mother with an apartment in which to live but that as soon as she got that apartment cleaned up and in order they would transfer her to another apartment and keep sending her from one apartment to another for the sole- purpose of having her clean up the apartments in which she was temporarily permitted to live. Altogether it was apparent that the Juvenile Court concluded that the grandparents were attempting to prevent the mother from reestablishing her physical condition to the end that she would not be able to procure an order of the Juvenile Court granting her custody of the child.

The evidence further disclosed that neither the father nor the mother of the child had ever contributed to its support, the father by reason of his unwillingness in that respect, and the mother by reason of her temporary disability due to the epileptic seizures with which she had been afflicted. In that state of the evidence the Juvenile Court found,

“This child is a dependent child. It hasn’t received a dime, according to the testimony of Mr. McCoy (the grandfather), from either parent during the time they have had the child. * * *

“The child should certainly receive better treatment, if it should become epileptic, than Mrs. McCoy had while she was living with these people. I appreciate the fact that the grandparents have become quite attached to the child and will become more so if the child is permitted to remain there, but it is the right of parents to have the custody of their child. There isn’t anything showing that Mrs. McCoy wouldn’t be and hasn’t been a proper mother to this child. The child is not going to be institutionalized at all. You can’t blame all this on Mrs. McCoy. I might make the observation here that Mr. McCoy, Senior, hasn’t had too much success with his family. It is certainly the desire of the Court that this child receive the proper home training. That is the foremost thought the Court has in mind. The Court is concerned only with the welfare of this child and not with how it affects the father or mother or grandparents.

“There is a possibility that Mrs. McCoy (the mother) will one of these days be able to take care of the child. When that time comes I believe she is certainly entitled to it.

* * * * *

“There is not any question in my mind at all but what the Court would have awarded the child to the mother in that case (the divorce), if she had been able to take care of it, but she represented to the Court that she was financially unable to take care of the child and until such time as she is, the Court will make other arrangements.

“The Court finds this child to be a dependent child and instructs the Juvenile branch of the Court to place it in a foster home until such time as the mother or the father or the grandparents or somebody else is in a position to properly take care of it. * * *

“We will refer it to the Catholic Welfare Agency.”

This Court of Appeals holds that the Judge of the Division of Domestic Relations properly considered the best interests of the child in making disposition of this case and properly arrived at a decision for the best interest of the child.

However, the appellant here raises another question in this case in which he claims that the Juvenile branch of the Domestic Relations Court had no jurisdiction to make any order with reference to the disposition of this child because no notice had been given to its father, Jesse McCoy. It is true that the statute requires notice to be given to the father of the child before a Juvenile Court may deprive a father of its custody. However, it is the finding of this Court of Appeals that when Jesse McCoy was made defendant in the divorce action in the Domestic Relations Court and was duly served with summons in that action, he was bound with knowledge that the divorce court had jurisdiction to make disposition of the child of the parties to that action. No new action was prosecuted to determine this child to be a dependent child and therefore a notice given to Jesse McCoy in the divorce proceeding was all the notice to which he was entitled. And by his failure to appear in that action he is estopped from now claiming that the Court was without jurisdiction to make the order here complained of.

The judgment of the Juvenile Branch of the Domestic Relations Court is affirmed.

MONTGOMERY, PJ, GRIFFITH, J, concur.


author: By FESS, J.

text:
    HANEWALD, d. b. a. LINDEN NITE CLUB, Appellant, v. BOARD OF LIQUOR CONTROL et, Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 5289.
    Decided October 28, 1955.

      ■ Milton L. Farber, Columbus, for appellant.
    Hon. C. Wm O’Neill, Atty. Geni., Kiehner Johnson, Asst. Atty Geni., Columbus, for appellees.
    (FESS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By FESS, J.

Appeal on questions of law from a judgment of the Common Pleas Court finding that the order of the Board of Liquor Control suspending appellant’s Class D-5 permit for a period of thirty days is supported by reliable, probative and substantial evidence, is in accordance with law, and affirming such order.

The appellant was charged with selling and allowing to be consumed in the permit premises beer to Charles Beebe, a minor aged seventeen years, and to Stephen Jones, a minor aged fifteen years, in violation of the Liquor Control Act and regulations of the Board. A review of the record discloses that Charles Beebe went to appellant’s place of business about 11:30 or 12:00 P. M. on October 30, 1954, and asked some acquaintances who were seated in a booth whether they were ready to go home. Among those in the booth was Stephen Jones. One of those in the booth said: “Come on, have a beer” and beer was ordered from appellant’s employee. The exact number of young people seated in the booth is not revealed, but four glasses of beer were set upon the table. Beebe testified that one glass of beer was placed in front of him but that he pushed it away and did not drink it. One of the inspectors, however, testified that the glass in front of Beebe had been partially consumed. The fifteen year old Jones is six feet, one inch tall and weighs 198 pounds. Plaintiff’s employees inquired of him as to his age and the boy showed him a draft card which later was discovered to be that of his older brother. Part of the beer in front of Jones was consumed. The beer delivered to the table was paid for by Beebe.

As to Beebe, it is contended that there was no sale, but we agree with the Common Pleas Court that there is reliable, probative and substantial evidence to refute this contention. The record is silent as to who ordered the beer, but when it was delivered one glass was placed in front of Beebe who paid for all four glasses.

The principal question raised upon this appeal is the contention of appellant that scienter on the part of the permit holder is an essential element upon which to predicate the suspension. It is asserted that the bartender exercised reasonable diligence to ascertain the age of Jones.

Sec. 4301.22 R. C. provides, in part, as follows:

“Sales of beer and intoxicating liquor under all classes of permits * * * are subject to the following restrictions, in addition1 to those imposed by the rules, regulations or orders of the Department of Liquor Control:

“(A) No beer shall be sold to any person unless he is 18 years of age. ***"

Where a statute defines an offense regardless of scienter, and the means of knowledge are available to the accused or the act is such as to impose a duty (in the interest of the public weal) upon the offender at his peril to ascertain the fact of violation, knowledge is not an' essential element to support conviction; but under a charge of violating a statute which does not by its terms include scienter as an element of the offense, where the means of knowledge or the circumstances are such that the accused is not bound at his peril to know the fact and obey the law, proof of knowledge of the fact is essential to support a conviction. State v. Williams, 94 Oh Ap 249. Since the means of knowledge of the minority of the purchaser are not available to the seller with any degree of certainty, were we construing §4301.22 R. C. as a case of first impression, it could well be held that proof of knowledge of minority is essential to support conviction.

But except as it involves construction of §4301.25 R. C. relating to suspension of permits, this case is not one of first impression. It has been held that a person who sells intoxicating liquor to a child under eighteen, thereby causing intoxication, induces its delinquency even though such seller honestly believed at the time of such sale that the child is of proper age. State v. Kominis, 73 Oh Ap 204. In the Kominis case the child while only fifteen years of age, was six feet, two inches tall, weighed 170 pounds and appeared older than his actual age.

Likewise in State v. Buttery, 95 Oh Ap 236, the contention of the defendant that proof of knowledge that he sold beer to a minor under eighteen years of age is an essential element of the crime was overruled. “In a prosecution for selling liquor to a minor, under a statute which forbids or makes unlawful such sale, but does not expressly or by clear implication make ignorance of minority a defense, the seller’s ignorance that the buyer was a minor, or bona fide belief that he was of legal age, is not available as a defense.” 115 A. L. R. 1230.

Ignorance of minority does not constitute a defense in a prosecution for contributing to the delinquency of a minor. State v. Davis, 95 Oh Ap 23. See also State v. Hannawalt, 26 Abs 641.

It is to be observed that in construing §4301.22 R. C., the rule of strict construction of a criminal statute is to be applied and proof of violation must be had beyond a reasonable doubt; on the other hand, §4301.25 R. C. is a civil statute requiring reliable, probative and substantial evidence to support revocation or suspension of a permit. In the instant case the minority of the boys in question is undisputed.

It is therefore concluded that in Ohio a permit holder sells intoxicants to a minor at his peril and may not be absolved from guilt by reason of ignorance of such minority.

Nevertheless, evidence of good faith, ignorance of minority, precautions taken by the permit holder to ascertain the age of a customer, and deceit practiced by the minor inducing a sale, is admissible at the hearing before the Board to be considered by it in the imposition of the penalty. Under the circumstances of the instant case the penalty of thirty days suspension appears severe, but does not constitute an abuse of discretion.

The judgment of the Common Pleas Court is affirmed.

MILLER, PJ, HORNBECK, J, concur.


text:
    ALLESANDRO, d. b. a. LUCKY STAR CAFE, Plaintiff-Appellee, v. BOARD OF LIQUOR CONTROL, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4783.
    Decided February 27, 1953.
    Paul F. Ward, Charles T. Kaps, Columbus, for plaintiff-appellee.
    Hon. C. William O’Neill, Atty. Geni., Ralph N. Mahaffey, Asst. Atty. Geni., Columbus, for defendants-appellants.
   OPINION

By HORNBECK, J.

This is an appeal from an order of the Common Pleas Court based on a separate action which order vacated a judgment which had theretofore been entered affirming an order of the Board of Liquor Control which had affirmed an order of the Department of Liquor Control revoking a D-5 permit of appellee.

The charge which the Department and the Board held to be established was that the permit holder by its agent and with its “knowledge and consent allowed to be kept and possessed upon the permit premises a quantity of narcotics, to wit, marijuana cigarettes, and that on said date the permit holder allowed and knowingly permitted the said cigarettes to be sold on the said premises, * *

Knowledge of the possession and/or sale of the cigarettes was a material element of the offenses charged. It was established, in considerable part, by the testimony of Robert Stewart who purchased the cigarettes in the permit premises on the evening of July 3, 1948. The purchase was testified by Stewart to have been made from a man by the name of Jones and the nine cigarettes purchased were taken from a package of 50 which were placed in a beer case on the barroom floor. Stewart said that at the time of his purchase a bartender, whom he positively identified as Mr. Fingerhurt, saw the sale and said “Good sale, Jones.”

After the present proceeding to vacate the order was filed, the deposition of Stewart was taken at the London Prison Farm where he was a prisoner and the substance of his statements was that he did not know Fingerhurt; that he did not know that he was the bartender back of the bar; that he was more inclined to say that it wasn’t Finger-hurt than that it was and that the officers who arrested him insisted upon him positively identifying Fingerhurt, pointing him out to Stewart and promising him immunity from prosecution if he so testified.

The grounds for the vacation of the judgment were that the order of the Board of Liquor Control was fraudulently obtained by reason of the false testimony of Stewart and by reason of coercion of the police officers in inducing him to testify falsely.

Appellants assign two grounds of error. One, in vacating the judgment of affirmance of the Common Pleas Court and reversing the order of the Board. Two, that the order of vacation was against the manifest weight of the evidence.

At the oral presentation of this appeal it was agreed by counsel for appellants that the Court upon the petition had the authority to vacate the order of affirmance and to remand the proceedings to the Board of Liquor Control for further consideration and action, but that the deposition did not support such action.

The judge who passed on the petition to vacate handed down a written opinion at the conclusion of which he stated that the order affirming the decision of the Board of Liquor Control would be reversed, and that “this cause be remanded to the Board of Liquor Control for rehearing with instructions to consider the deposition of the witness, Robert Stewart, or in the alternative that he be brought before the Liquor Control Board on rehearing of this cause and be permitted to testify.” The judgment entry carried the order of reversal but omitted the further language in the Court’s opinion heretofore quoted.

We have read the record before the Board on the appeal from the order of the Department revoking the appellee’s permit and the deposition of Stewart. Granting to the trial judge his right to weigh and resolve the testimony in the deposition, we cannot say that he erred in holding that the deposition of Stewart was so contradictory of his statements before the Board as to the knowledge of appellant of the possession of the cigarettes as to justify the order.

It is true that the false statements of Stewart would not support a vacation of the judgment under §11631 GC because Stewart had not been convicted of perjury at the time of the taking of his deposition. It is claimed that the.petition here was addressed to the equity side of the court and that fraud requiring a vacation was adduced though Stewart had not been convicted of perjury.

Reliance is had upon Power and Light Company v. Smith, 126 Oh St 611. We are inclined to agree that the citation supports appellee’s claim. Of course, there is no claim here, nor could there be, that the Board or the Department was involved in any manner with the so-called fraud. In most of the cases deciding the question one or both of the parties have been shown to be connected with the fraud upon which the court acted.

It is also' asserted that the action of the police officers did not constitute coercion.

It appears that the officers had known of Stewart’s connection with the sale of marijuana cigarettes and that Jones regularly frequented appellee’s place of business. Stewart had been arrested and agreed to cooperate with the officers in buying cigarettes and exposing the seller. At the time of the purchase and at the time of Stewart’s testimony he was in charge of the officers and under certain constraint. Their suggestion as to Stewart’s testimony, as given, together with their promise of immunity or leniency, permit the conclusion of coercion.

The judgment entry which is the order upon which the appeal is based is incorrect, in that it is incomplete and, as it stands, would completely annul the revocation of permit order of the Board and the Department. An order of the Court, in conformity to the written opinion, and that part of it which we have heretofore quoted, is not prejudicially erroneous under the evidence.

The order will be modified as hereinbefore noted and the judgment, as modified, will be affirmed and cause remanded.

WISEMAN, PJ, MILLER, J, concur.


author: By THE COURT. By THE COURT. By THE COURT. By THE COURT.

text:
    ALLESANDRO, d. b. a. LUCKY STAR CAFE, Appellant-Appellee, v. BOARD OF LIQUOR CONTROL, Appellee-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5163.
    Decided March 2, 1955.
    Abraham L. Adelstein, Columbus, for appellee.
    Hon. C. William O’Neill, Atty. Geni., Kiehner Johnson, Asst. Atty. Geni., Columbus, for appellant.
   OPINION

By THE COURT.

This cause was previously before this Court on appeal from a judgment of the Common Pleas Court. We modified the judgment and ordered the case remanded to the Board of Liquor Control for “rehearing with instruction to consider the deposition of the witness Robert Stewart or in the alternative that he be brought before the Liquor Control Board on rehearing of this cause and be permitted to testify * * *.” In compliance with this order the cause came on again for a rehearing before the Board at which time all the parties appeared by counsel only and the following stipulation was entered upon the record:

“It is stipulated and agreed by and between counsel for the permit holder, and counsel for the Director of the Department of Liquor Control, that the depositions of Robert Stewart may be introduced as ‘Defendant’s Exhibit A,’ and that the Board may consider them as newly discovered evidence.”

Thereupon, Mr. Krebs, a member of the Board, said:

“Your case will be taken under advisement, and your client will be notified of the decision of the Board.”

A record of the proceeding before the Board was certified to the Common Pleas Court in which it was stated that the record considered by the Board consisted of a transcript of the testimony taken at the original hearing and the deposition of said Robert Stewart. The Board again revoked the Class D-5 permit and from this order an appeal was taken to the Common Pleas Court which held that the Board had not granted a rehearing in accordance with its previous order and ordered the case again remanded to the Board for a “full and complete rehearing, with instructions to consider the deposition of the witness, Robert Stewart, or in the alternative, that he be brought before the Board of Liquor Control on rehearing in this cause and be permitted to testify.”

The question presented is whether the last order of the Board is in accordance with law. We can agree with counsel for the permit holder that the mandate issued to the Board required a hearing de novo of the charges against him unless stipulated otherwise. Counsel for the Board does not concur in this conclusion but they also urge that if a rehearing was required no objection was ever raised to the procedure adopted after the stipulation had been made; that the matter was submitted to the Board for its consideration upon the deposition and transcript of the testimony in the prior hearing. We think this inference is permissible from the conduct of counsel when the case came on for a hearing. If counsel desired to proceed in a different manner or offer new or additional testimony, this fact should have been made known and an objection entered when Mr. Krebs announced that the case would be taken under advisement. A general rule, with few exceptions, is that an appellate court will not review on a law appeal errors which were not preserved by objection to the ruling in the lower tribunal. The rule is stated in 3 O. Jur. 2d, page 38 as follows:

“* * * The law imposes upon every litigant the duty of vigilance in the trial of a case, and where the trial court commits an error to his prejudice, he is required then and there to call the attention of the court to that error. A just regard to the fair administration of justice requires that an opportunity should be given the court to avoid the commission of error upon trial, and that when an error is supposed to have been committed, there should be an opportunity to correct it at once, before it has had any ■ consequences.

“The forum of a reviewing court is not a place where for the first time a point which has not been deemed of essence at the trial and which has not been seriously pressed to the attention of the court is to -be brought to the front for the mere technical purpose Of securing a reversal of a judgment which the court finds-otherwise correct. The law does not permit the party to lie by, without stating the ground of his objection, take the chances of success on the grounds on which the judge has placed the 'cause and then, if he fails, avail himself of an objection which, if it had been stated, might have been removed.”

In Ruch v. State, 111 Oh St 580, the Court stated at page 589 that failure to object at the proper time to the admission of testimony material to the issue constituted a waiver of the rights conferred by statute. See also Wisler v. Wisler, 12 Abs 351; 3 Am. Jur. 40.

The judgment will be reversed and cause remanded to the Common Pleas Court for further proceedings according to law.

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

No. 5163. Decided April 25, 1955.

OPINION

By THE COURT.

This is an application for a rehearing in which it has been called to our attention for the first time that the transcript of the testimony submitted by the appellant has not been certified by the Board of Liquor Control. Sec. 119.12 R. C., provides that,

“* * * the agency shall prepare and certify to the court a complete record of the proceedings in the case.”

It will be noted that the foregoing section does not provide the manner in which the certification shall be made. An examination of the purported transcript of the testimony discloses that it is certified by Hazel Gibbon, Reporter, as being a true and correct copy. Since no provision is to be found in the Administrative Procedure Act on.this specific question the same must be governed by the provisions of the Appellate Procedure Act. A. DiCillo, Inc., v. Zoning Board, 59 Abs 513. The bill of exceptions provided for under this Act must be allowed and signed by the trial judge. Sec. 2321.07 R. C. Hence, the transcript of the testimony heard by the Liquor Board should have been certified by them in accordance with the aforesaid statute. This has not been done, so there is nothing before this Court indicating that the permit holder was granted a rehearing in compliance with our order.

The application will be allowed and upon further consideration the judgment of the Common Pleas Court holding that the Board had not complied with the former order of the Court will be affirmed.

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

No. 5163. Decided May 3, 1955.

OPINION

By THE COURT.

On April 25, 1955, this Court released its opinion holding that a transcript of the testimony was not properly certified by the Board of Liquor Control. We are still of the same opinion, but it appears that this defect was corrected by the following stipulation entered into by all of counsel in the case at that time, to wit:

“It is hereby stipulated and agreed by and between counsel for the appellant-appellee, Andre Allesandro, and the appellee-appellant, Board of Liquor Control, that the docket and journal entries in the Court of Common Pleas in the above matters, the Mandate of the Court of Appeals in case number 4783, the docket and journal entries in case Number 182,451 in the Court of Common Pleas together with all other original papers in the above matter, and the transcripts of the proceedings and testimony before the Board of Liquor Control shall be, and constitute a good and sufficient bill of exceptions.

(Signed) Paul F. Ward

Charles T. Kaps

Attorneys for Appellant-Appellee

C. William O’Neill

Attorney General of Ohio

Kiehner Johnson

Assistant Attorney General.”

The permit holder is now estopped to complain of the condition of the aforesaid transcript, hence the application for a rehearing is denied.

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

No. 5163. Decided May 18, 1955.

OPINION

By THE COURT.

This is an application for reconsideration of our opinion announced on May 3, 1955. Counsel for the appellant-appellee urges that the stipulation, entered into on September 20, 1954, providing that “the proceedings and testimony before the Board of Liquor Control shall be, and constitute a good and sufficient bill of exceptions,” does not cure the defect in the certification. (Emphasis ours.) We cannot agree with such a conclusion when proper consideration is given to the words emphasized, supra.

It also appears that counsel is uncertain as to what was meant when we used the expression “at that time” when we said “it appears that this defect was corrected by the following stipulation entered into by all of counsel * * * at that time * * The record discloses that there was a change of counsel after the stipulation was entered into and the term was meant to apply to all of counsel at the time the stipulation was agreed upon.

The application will be denied.

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


author: By HORNBECK, J:

text:
    EQUITABLE LIFE INSURANCE COMPANY, Plaintiff-Appellee, v. FOURMAN, Defendant-Appellant, and HAMILTON, Defendant-Appellee.
    Ohio Appeals, Second District Darke County.
    No. 711.
    Decided April 2, 1953.
    Marchal & Marchal, Greenville, for plaintiff-appellee.
    S. E. Mote, Greenville, for defendant-appellant.
    Spidel, Staley & Hole, Greenville, for defendant-appellee.
   OPINION

By HORNBECK, J:

This is an appeal on questions of law from a judgment in favor of appellee and directing the Clerk of Courts to pay to her the balance of a fund which had been paid into Court by the plaintiff Life Insurance Company, the proceeds of a policy of insurance, when it instituted its action.

The policy had lapsed for non-payment of premiums by the insured in 1934 and the company then placed it on a reduced paid up non-participating basis in the amount of $2535.00. This was the amount that was paid into Court.

In the policy originally, Alonzo Fourman, appellant, son of the in-insured, was the beneficiary. In 1929, the plaintiff company received a request for change of beneficiary to Evelyn Fourman, now the appellee, which request was signed by the insured upon a regular form provided by the company for that purpose. The policy had a proviso that a change of beneficiary should take effect only upon its endorsement on the policy by the company at its home office. The policy was not forwarded to the company and it was unable to secure it to make endorsement thereon of the change of beneficiary and the change had not been noted at the time of the death of the insured in April, 1948.

The original beneficiary, Alonzo Fourman, interpleading claimed to be entitled to the proceeds of the policy. Evelyn Fourman Hamilton inter-pleaded and claimed that she was entitled to the proceeds by virtue of the change of beneficiary by the insured in his lifetime in the manner heretofore stated.

It is the contention of appellant that when the company, after the lapse of the payment of premiums, had availed itself of the extended paid up non-participating provisions of the policy it thereby entered into a new contract and that as there was no endorsement on the policy pursuant to request by the insured for change of beneficiary, the attempted change was invalid.

The trial judge took testimony and among other evidence admitted a letter, appellee’s Exhibit No. 7, from Ira O. Young, agent for the company, in which was stated that appellant, Alonzo Fourman, did not assign his interest in the policy and that he had the policy but would not turn it over to the agent.

Two errors are assigned. One, the admission of the foregoing letter. Two, that the judgment of the trial court was contrary to law. We do not find either assignment well made. The cases cited by the trial judge in his opinion support the admissibility of the testimony as a part of the res gestae.

The second assignment of error is not well made because of the application of Atkinson v. Metropolitan Life Insurance Company, 114 Oh St 109, which holds that provisions in the policy such as are invoked here are for the benefit of the company and may be, and are, waived, if the insurance company interpleads as was the effect of its action here.

There is no doubt about the intention of the insured at the time of the change of beneficiary in 1929 to designate appellee as his beneficiary, and there seems no valid reason why it should not be effectuated inasmuch as the company has not elected to avail itself of the provision that the change of beneficiary shall be noted on the policy itself.

It should also be observed that the change of beneficiary in behalf of appellee was made in 1929, whereas the lapse and change in the policy to a paid-up non-participating contract did not occur until 1934. So that, to all intents and purposes, the change in beneficiary had been accomplished some five years prior to the lapsing of the policy.

We are in accord with the written opinion of Judge Riegel with which we have been favored.

The judgment will be affirmed.

WISEMAN, PJ, MILLER, J, concur.


author: By THE COURT.

text:
    ROLING et, Plaintiffs-Appellees, v. BOARD OF COUNTY COMMISSIONERS OF FRANKLIN COUNTY et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4945.
    Decided August 24, 1953.
    Wright, Harlor, Purpus, Morris & Arnold, John C. Harlor, Harry Wright III, of Counsel, Columbus, for plaintiffs-appellees.
    Frank H. Kearns, Pros. Atty., J. Baxter Evans and Paul W. Martin, Asst. Pros. Attys., Columbus, for defendants-appellants.
   OPINION

By THE COURT.

Submitted on motion of the plaintiffs-appellees seeking an order dismissing the appeal for the following reasons:

1. The order appealed from is not a final order.

2. The order appealed from is an interlocutory order.

The record reveals that the action was instituted in the Probate Court seeking, among other things, to have the tentative apportionment of the assessment against their properties, under Sewer Improvement Project No. 287, Sewer District Franklin No. 1, set aside and declared void. The judgment entry finds that the improvement in and of itself was lawful and should proceed; that the tentative apportionment was not lawful and should be modified in accordance with the formula set forth by the Court; that in order for the Court to make separate findings with respect to each of the claims for adjustment certain special facts of a technical nature had to be supplied to the Court and that since such facts were within the special confidence of the appellants and their staff, they should find such facts, modify the assessment pursuant to the formula set forth by the Court, report the amounts back, and at such time said amounts would be ordered assessed if no exceptions were filed thereto and sustained. In so ruling it appears the Court was attempting to follow the mandate of §6602-3q GC, which provides that in any appeal or in any separate proceedings by injunction the Court “shall make such order in the premises as it may deem just and equitable, and order any tax or assessment * * * levied in whole or in part, or perpetually enjoin it or any part thereof * *

We are of the opinion that the order appealed from is not final but merely interlocutory. A final order making the separate assessments has not been and cannot be entered until the appellants report back in accordance with the Court order. Therefore, there is no final order from which this appeal may be prosecuted. This proceeding was instituted under §6602-1 et seq, GC, and is a special proceeding requiring a strict compliance with the statutes relating thereto. The provision relating to appeals is found in §6602-3p GC, which provides that only a “final judgment” may be appealed, to wit, “the final judgment of the Probate Court may be reviewed by proceedings in error on appeal as in other cases * * *.”

A similar question was presented to this Court in the case of In re Thomas Will, 84 Oh Ap 30, 84 N. E. 2d, 294, where we said at page 296,

“A decree or order which leaves further proceedings necessary before the rights of the parties can be determined is an interlocutory order and not a final order.”

In Lamp Heater Co. v. Stove Co., 41 Oh St 287, at p. 292 the Court said:

“And in the state courts, when a cause is retained for reference to a master, for the purpose of ascertaining a material fact, the decree is interlocutory only, and does not become final until the whole merits of the cause have been disposed of and nothing remains for the further action of the court.”

Consistent with this quoted language the Court in Widows and Orphans Fund v. Church, 16 O. C. C. (N. S.) 248, held:

“the mere reference of a case determines no rights. It is not to be presumed that upon the coming in of a second report in this case an erroneous order will be made, based upon it, and, should there be, it will be time enough to complain of it after the final order is made.”

The motion will be sustained for the reason that this Court has no jurisdiction to review the proceedings of the lower court until the judgment therein is final.

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


author: By CONN, J.

text:
    BOYER et, Plaintiffs-Appellees, v. SPRINGFIELD (City), Defendant-Appellant.
    Ohio Appeals, Second District, Clarke County.
    No. 522.
    Decided November 8, 1955.
    Thomas E. Hackett, Springfield, for plaintiffs-appellees.
    Richard H. Wehler, City Solicitor, Joseph C. Brucker, Asst. City Solicitor, Springfield, for defendant-appellant.
    (CONN, J, of the Sixth District, sitting by assignment in the Second District.)
   OPINION

By CONN, J.

At the close of plaintiffs’ case and at the conclusion of all the evidence, defendant moved the court in each instance to direct the jury to return a verdict in its favor. Each of these motions was overruled and the case was thereafter submitted to the jury. A verdict was returned for plaintiffs in the amount of $1,000.00 and judgment entered thereon by the court.

The defendant filed its motion for judgment notwithstanding the verdict, which motion also was overruled.

An appeal has been taken by defendant to this court on questions of law and defendant assigns as error that the trial court erred in overruling said motions of defendant for directed verdicts and also erred in overruling defendant’s motion non obstante veredicto.

Following the overruling of said motion for a directed verdict at the close of plaintiffs’ evidence, this defendant proceeded to introduce its evidence, and thereby waived the alleged error of the trial court.

Broadly stated, the motions of defendant may be denominated demurrers to the evidence, and raise issues of law analogous to demurrers to pleadings. ;

If it appears that there is substantial evidence in the record of this case tending to support each and every issue on which plaintiffs have the burden of proof, it would follow that issues of fact were present and the errors assigned would not be well taken and should not be sustained. Moreover, the issues raised on defendant’s motions do not require this court to weigh the evidence.

We have carefully examined the evidence in relation to the issues raised on the pleadings. In our opinion, there is substantial evidence tending to establish the claim of plaintiffs that defendant had notice that the southerly end of Walnut Terrace, where plaintiffs’ dwelling house is located, was subject to flooding and was a “bad place flood-wise,” when the openings in the catch basins at this point were permitted to remain clogged with waste material.

The evidence also tends to show that prior to the heavy rain under consideration, the defendant did not have a sufficient number of employees to keep the openings in the catch basins located at the southerly end of Walnut Terrace free from leaves and waste material; and that at the time of the flood complained of and when it had reached a high point, debris was removed from the surface of one or more of the catch basins by a volunteer living in the neighborhood and thereupon the flood waters rapidly receded. It also appears that plaintiffs sustained certain damages proximately caused by the flood waters.

In view of the record in this case, it is our opinion that the defendant’s assignments of error are not well taken and that the judgment of the trial court should be affirmed. It is so ordered and the cause remanded for execution.

MILLER, PJ, HORNBECK, J, concur.


text:
    SLYH, Plaintiff-Appellee, v. SLYH, Defendant-Appellant.
    Ohio Appeals, Second District, Madison County.
    No. 199.
    Decided October 27, 1955.

      Forrest E. Sidener, Jr., London, for plaintiff-appellee.
    Herbert, Tuttle, Applegate & Britt, by C. Richard O’Neill, Columbus, John W. Tanner, London, for defendant-appellant.
   OPINION

By MILLER, PJ.

This is an appeal on questions of law from a decree of the Common Pleas Court granting a divorce to the plaintiff on the ground of extreme cruelty. There were certain further orders as to alimony and support money for a minor child of the parties, but they are not involved on appeal. The petition was in short form and after alleging jurisdictional facts charged that:

“Defendant has been guilty of extreme cruelty, the exact details of which will be shown at the hearing of this cause.”

The cause came on for trial and after the plaintiff had testified, defendant moved for judgment on the grounds that plaintiff had not stated a cause of action for extreme cruelty; had not come into Court with clean hands, in that he, by his own admissions, has been guilty of extreme cruelty and gross neglect toward the defendant; and, on the third ground, that if such cause of action ever did exist, that it was condoned by his continuing to have marital relations. The motion was overruled.

Defendant renewed this motion at the close of plaintiff’s case in chief, and it was overruled.

After the Court had granted the decree, defendant moved for separate findings of fact and conclusions of law which motion was sustained and the findings are before us.

Four errors are assigned: The first is that the trial judge erred in overruling defendant’s motion for a directed verdict at close of plaintiff’s own testimony and the second, that he erred in overruling the same motion at the conclusion of plaintiff’s testimony in chief.

It will be noted that the motion does not incorporate a request for judgment for failure of the plaintiff to prove the grounds for divorce set forth in his petition. It is only that he failed to state a cause of action. The petition was not tested by demurrer nor was there any motion to make it definite and certain. Such a petition has been held to be sufficient as against the claim of error in an Appellate Court. Oldham v. Oldman, 6 Abs 282. Formerly, the courts held that a petition in an action for divorce should specify some act or acts constituting the ground for divorce upon which the suit was predicated. Indeed, it is generally held that the rules of pleading in civil cases apply in divorce actions. However, there has grown up in more recent years a practice which is quite general, to charge only the ground of divorce which is to be asserted at the trial. Such a petition has been held sufficient in the absence of demurrer or a motion to make definite and certain. Seibel v. Seibel, 30 Oh Ap 198.

The first motion was properly overruled because it is not clear that it was directed to the evidence but to the petition and it was premature, the plaintiff not having completed his testimony in chief. The second motion was broad enough to test the sufficiency of the evidence to prove “extreme cruelty” at the conclusion of plaintiff’s case in chief and should have been sustained for the reasons we hereinafter discuss. The motion was not renewed at the conclusion of the whole case.

The clean hands doctrine, one of the grounds of the motion, may or may not be applied by the trial court at its discretion, provided, of course, that the party to whom the decree is awarded has made sufficient proof to authorize it. The ground of condonation is not well-made because it was not pleaded. Condonation has been uniformly held to be an affirmative defense.

The third assignment of error is “irregularity in the proceedings of the trial court amounting to abuse of discretion by which the defendant was prevented from having a fair trial. Without comment, we hold against appellant on this assignment.

The fourth assignment of error is, the judgment of the court is against the manifest weight of the evidence and is contrary to law.

Inasmuch as we have special findings of fact and conclusions of law, we test them to see if they are supported by the record. Most of the findings are not controverted in the evidence and we only consider those which are challenged by the appeal.

Paragraph No. 9:

“That the marriage of the parties, which has some inferences of ‘Badges of Fraud’ in the procurement on the defendant’s part, positively arose because defendant became pregnant before the parties were married, which marriage was at the demand and insistence of the defendant for the purpose of giving the child a name and was a marriage of necessity.”

Paragraph No. 12:

“That shortly after the marriage defendant maliciously premeditatedly and intentionally persistently and unjustifiably by words, acts and conduct attempted to enforce her will upon plaintiff with respect to her child born out of wedlock, which together with all the other facts and surrounding circumstances had the effect of permanently destroying the peace of mind and happiness and seriously affecting the ability to work of this plaintiff, so as to render the.marital relation intolerable.”

Paragraph No. 13:

“That the testimony of plaintiff was corroborated by testimony of his father, his mother and by defendant’s testimony and the proof is by satisfactory evidence.”

The conclusion of law is that plaintiff is entitled to a decree of divorce on the ground of the extreme cruelty of defendant.

Upon the testimony in this case there is very little material dispute of fact. The question presented is whether or not the facts which may be accepted as true constitute a ground in law for a divorce on the ground of extreme cruelty.

Three causes of the difficulties of the parties appear from the record.

1_The desire and purpose of plaintiff to divorce the defendant.

2— Their difference in religious faith.

3— Their acts and conduct respecting the place where the child of defendant should live.

The second and third causes were the bases of plaintiff’s action. The trial judge refused to support the second but granted the decree upon the third holding, that, as to it, the defendant was chargeable with extreme cruelty toward the plaintiff.

We hold that as to the first and second it is clear that the defendant was the aggressor and at fault. As to the third, that the act and conduct of defendant as shown by the record does not, if construed most favorably to the plaintiff, constitute a ground for divorce under the statute. That as to this cause of difficulty although both parties were culpable in engaging in the numerous and bitter quarrels, the defendant could not be blamed for the position which she maintained as to the right of her daughter to live with her.

The parties had been keeping company some little time before their marriage and plaintiff learned from defendant that she was pregnant. There is no question but that the plaintiff was somewhat perturbed about this information and the defendant suggested that they get married. They were married just a short time after the information as to the pregnancy was divulged. The plaintiff knew that the defendant had the daughter, T. Defendant testifies that it is not specifically denied that discussion was had before the marriage as to what disposition would be made of T., that plaintiff thought that she could live with the parties at the residence of his father with some suggestion that later she might be adopted by plaintiff. In any event, the parties by common agreement, went to the home of plaintiff’s parents to live. They were farmers and plaintiff was engaged in assisting his father in the operation of about 200 acres of land. He received over all about $25.00 per week as payment for his services and board and room for himself and wife. Although the plaintiff knew of T., unfortunately, the parties did not tell his parents of the situation although defendant suggested that that would be proper procedure. When the parents of plaintiff, particularly his father, learned about T., they refused absolutely to permit her to live at their home. T. was left with the parents of defendant in Columbus and defendant stopped to see her frequently which made her late in getting home from her work at a jewelry store in Columbus, which fact plaintiff resented. The situation respecting T. was a source of much of the difficulty which arose between the parties.

Defendant, prior to her marriage, had for about four years been employed at a weekly salary of about $45.00 per week and she continued to work until about a month before the birth of the child of the parties. After the birth of the child and for a short time before its birth, plaintiff did not work.

The parties held different religious beliefs. Plaintiff was a Methodist; defendant was a Catholic. Prior to the marriage the parties consulted a priest preparatory thereto. Plaintiff signed an agreement wherein he consented that any children born of the marriage would be reared in the Catholic faith.

Soon after the birth, the mother took the baby to' her church and had him baptized. This infuriated the plaintiff and no doubt entered into some of their discussions. However, it did not occur until long after the quarrels had begun. The two foregoing developments were the bases of plaintiff’s cause of action, and with another dispute the cause of the trouble between the young couple.

The decree was not grounded on the religious differences of the parties but because of the arguments and conduct of defendant respecting the place where T. should live.

There is no doubt that immediately after the marriage the husband wanted a divorce. This was known to his parents. After the parties moved to the home of plaintiff’s parents, they began to have arguments. The defendant, with typical mother instinct wanted her daughter T. to live with her. The impediment to this arrangement was the attitude of the father of plaintiff that he would not have T. in his home. This position, of course, he had full right to take, but that the support of T. was the stumbling-block does not seem to have been made known to the defendant. Indeed it need not have been insurmountable and there is no showing that any request was ever made of defendant that she provide the means to support T.

Notwithstanding defendant’s expressed desire to have her daughter with her, plaintiff indicated no purpose or intention whatever to set up another establishment or to work out some method whereby the cost of her support could be paid to his father. Thus, arose a stalemate insofar as the defendant was concerned.

Defendant received $10.00 per month from the father of T. This had not been paid at all times, but it is obvious that defendant was able with such an amount as she did receive from the father of T. together with her own resources to have paid for the support of her daughter at all times prior to the birth of the child of the parties.

The effect of the conduct of the plaintiff respecting the three matters of difference was an ultimatum to the defendant either that she divorce him, renounce her religion or withdraw her insistence that she have T. live with them at the home of his parents.

There is no doubt that these arguments thus produced occurred frequently and were protracted and distressing to both parties. It is probable that as to the divorce and the religion the plaintiff was the aggressor. It may be as to the place of residence of T. the defendant was the aggressor.

If there was cruelty in this case, it was toward the parents of the plaintiff who were attempting to be helpful to both the parties, but, in the main, doing for their son what the defendant desired to do for her daughter. If there was any difference in the extent to which the parties were affected by the quarrels, it would appear that the defendant was more distressed than the plaintiff. The mother of plaintiff tells about how the wife would come downstairs in the middle of the night crying, visibly affected and, on one occasion, left the house and went into a haymow. At these times she would say that her husband was insisting on a divorce.

Bearing upon corroboration, the parents said that although they heard the arguments, inasmuch as their bedroom was downstairs and the bedroom of the parties was upstairs, they, nor neither of them, could tell who started the discussions or what was said. Therefore, if it could be said that the plaintiff by his testimony made a prima facie case of extreme cruelty, the testimony of his father and mother is entirely inadequate to constitute corroboration upon any material element of extreme cruelty.

The cases cited by appellee as to the sufficiency of corroborative testimony may readily be distinguished from the facts here. In Detrick v. Detrick, 33 Abs 155, the plaintiff claimed and testified that her husband had struck her. As corroborative of this testimony, a neighbor said that the wife came running to her home in a nervous state with a lump on her forehead which grew in size while she remained there. Obviously, the plaintiff did not strike herself on the forehead and the fact that it was even then, when the neighbors saw her, swelling, certainly was corroborative of the fact that the wife had been struck. Likewise, Kleinhenz v. Kleinhenz, 22 Abs 658, where there was proof of ill treatment of the wife and it was held that the testimony of an individual living below the parties as to hearing screams of the wife at about the time that she had testified as to the ill treatment was corroborative of the mistreatment.

Here, in the first instance, there is no proof of extreme cruelty. Secondly, the corroboration is-not forthcoming because neither the father nor the mother of the plaintiff knew the subject matter of the quarrels nor the conversations or the arguments, who started them or who was to blame in bringing them about, especially is this true inasmuch as the religious differences went out as a ground for the divorce.

It is basic that in every cause for a divorce, save possibly impotency, the one who is held to be the aggressor must be at fault. He or she must do something which is entirely improper and not justified by any circumstances then appearing. A divorce is never granted against an innocent party. Nor will a divorce be granted either party if both prove their right to a divorce.

It cannot be said that the wife in taking the position which she had full right to maintain, namely, that T. be permitted to live with her and the plaintiff was committing any act of extreme cruelty toward her husband. When the plaintiff married the defendant with full knowledge that T. was her child, it was but logical to expect that she would want the child to live with them and she so expressed herself at all times. This was not unusual and to insist upon it was in no sense improper. If it could not be accomplished by bringing the child to live with plaintiff’s parents then he should have made arrangements for him and his wife to live someplace else.

Likewise, there can be no question on the testimony in this case that the husband agreed with full appreciation of what he was doing, that the child of the parties should be reared in the Catholic faith. When, then, the wife acted upon that promise, how can it be said that she committed extreme cruelty toward the defendant however it may have affected him. The trial judge was correct in refusing to so find.

Some blame seems to have been attached to the defendant because of her ponduct with the plaintiff before their marriage. Obviously, this improper conduct was chargeable equally to both the plaintiff and the defendant. She was no more an offender than he. Even if it could be said that his marriage to the defendant bore any badge of fraud, it was not in the case. The plaintiff did not charge fraud. The young-people had gotten themselves into a situation which was difficult and frightening. In the course that they followed, they acted wisely. However, the plaintiff did not have to marry defendant; he could have stood on his rights to live apart from her and not make her his wife, but he may have subjected himself to a paternity suit with the incident embarrassment.

Even after this divorce action was instituted, plaintiff under oath charged that the child to which the defendant gave birth after the marriage was not his child. By agreement, the wife consented to a blood test and although the test is not among the files, it is conceded that its disclosure did not support the contention of plaintiff that he was not the father of the child.

The attitude of the husband toward the wife respecting support for her and for their child is unusual. It is testified and not denied that he never gave his wife one penny during the time they lived together, except $10.00 which she had given him and he returned to her. He bought her no clothing, no clothing for the child; gave her no money even when she was required to quit work because of her pregnancy, and compelled to resort to her own funds. Then, after the suit was instituted, he gave her nothing except $5.00 which he sent to her. through his mother. Had she instituted a suit against the plaintiff on the ground of gross neglect of duty, she could have supported the charge. It is true that money matters were not the cause of any of the disagreements of the parties.

The situation of the parties is unfortunate and as it may be that their differences cannot be reconciled. However, that is not the basis for a divorce decree. Nor is the fact that the wife agreed that a divorce should be granted. There is a third party in every divorce action, the public. Divorce is a creature of statute and may be granted only upon proof of some cause of action created by the statute. The requisite proof does not appear.

The evidence in this case in the most favorable light to plaintiff does not constitute proof of extreme cruelty. The decree therefore is not only against the manifest weight of the evidence but is contrary to law.

The decree of divorce will- be revoked. The support and custodial orders are not in controversy.

HORNBECK, J, concurs.

WISEMAN, J, not participating.


author: By BARTLETT, J.

text:
    TEEGARDIN, Plaintiff, v. FOLEY et, Defendants.
    Common Pleas Court, Franklin County.
    No. 187616.
    Decided September 29, 1954.
    Hamilton & Kramer, Columbus, for plaintiff.
    Hon. C. William O’Neill, Atty. Geni., Hugh A. Sherer, Asst. Atty. Geni., Columbus, for defendants.
    James M. Hengst, Paul R. Gingher, David dayman, Shocknessy, Summers & Denton, Power, Griffith & Jones, Columbus, Spieth, Spring & Bell, Clarke and Costello, Howard M. Metzenbaum, Cleveland, for Amici Curiae.
   OPINION

By BARTLETT, J.

DEMURRER TO PLAINTIFF’S REPLY, AS INSUFFICIENT IN LAW OVERRULED.

Upon demurrer to a pleading,

“In thus passing upon the sufficiency of the facts alleged, the court is required to follow the code rule requiring pleadings to be construed favorably to the pleader, and to give to the language of the petition (or other pleading such as the answer or reply) a liberal construction * * * to sustain his pleading: * * * the court must make the most but of a pleading, and not the least.” 31 O. Jur. Pleading, Sec. 142, p. 700.

“The conviction entertained, conclusion reached, or judgment formed by the pleader upon his own conception of his cause can be afforded no effect or weight whatever upon demurrer.” Ibid.

■ “It is a universal rule, so well known as hardly to require citation of authority, that for the purpose of testing the sufficiency in law of the facts pleaded, — for its own purpose, — a demurrer confesses the truth of the proper and well pleaded averments of the pleading attacked, and whatever can, by fair and reasonable intendment be implied from those allegations, so far as is necessary to enable the court to determine the sufficiency of the pleading objected to, and no farther.” Ibid, Sec. 103, p. 661.

The common law rule that pleadings be construed most-strongly against the pleader — is completely abrogated in Ohio, by the code provision “that the allegations of a pleading shall be liberally construed, with a view to substantial justice between the parties;” (now §2309.40 R. C.) Ibid, Sec. 49, p. 58.

In view of the code requirement, and the fact that two judges of this court have reached opposite conclusions as to the constitutionality of the statutory law involved in the instant case, this branch feels constrained to overrule the demurrer to the reply herein, which is accordingly done, with the conviction that the issues involved should be heard on their merits in the trial court.

Entry accordingly, saving proper exceptions thereto.


text:
    MILLER, Estate of, In re: MILLER, Appellee, v. BARBER et, Appellants, MILLER, Appellee.
    Ohio Appeals, Sixth District, Sandusky County.
    No. 504.
    Decided June 14, 1955.

      Leo W. Kenny, John D. Starn, Fremont, for appellants.
    Young & Young, Norwalk, for appellee Mary Miller.
    Hull & Hawk, Fremont, for appellee Lee C. Miller, Exr. etc.
    (KOVACHY, PJ, SKEEL, J, HURD, J, of the Eighth District, sitting by designation in the Sixth District.)
   OPINION

Per CURIAM.

This cause has to do with the apportionment of $5250.00 which is part of the settlement of a wrongful death claim following the death of Perry Miller in an accident on September 14, 1951. The beneficiaries are the surviving spouse and three adult children. Those whose pecuniary interests were affected by the death of Perry Miller were unable to adjust their claims to the fund and the Probate Court of Sandusky County, upon having its jurisdiction invoked, divided the sum equally among them. The surviving spouse, Mary Miller, thereupon appealed to the Common Pleas Court on questions of law and fact and that Court, after a trial de novo, awarded the entire sum to her. Two of the children, Ruth E. Barber and Mildred E. Cloud, filed this appeal from the judgment of the Common Pleas Court on questions of law.

Appellants claim that a motion, made by them in the Common Pleas Court to dismiss the appeal for want of jurisdiction, was erroneously overruled. The journal entry of the Probate Court recites with respect to the hearing there that “the same was submitted to the court without a record having been taken thereof.”

It is well known that a probate judge hears many separate matters in the administration of an estate, despite the fact that the entire proceedings are recorded as one case under one number.

As the various facets of the case are brought to his attention, he becomes familiar with all of the factual aspects of the estate in relation to the different persons involved. He consequently is competent to decide questions presented to him without the necessity of a formal hearing and the taking or making of a record. That is what occurred in this matter before the Probate Court and as a result no bill of exceptions could be readied to appeal the judgment rendered directly to the Court of Appeals.

This is the very situation contemplated by the General Assembly of Ohio in enacting §2101.42 R. C. (§10501-56 GC). We hold, therefore, that the appeal on questions of law and fact to the Court of Common Pleas from the Probate Court was in accordance with the law applicable to the facts in respect of not taking a record in Probate Court, and that that Court had complete jurisdiction to entertain the cause and conduct a full hearing de novo to determine the issues involved. The motion to dismiss the appeal for lack of jurisdiction was properly overruled, and we, accordingly, affirm the same. In re Estate of Schneider, 81 Oh Ap 233.

Appellants assign as error the refusal of the trial court to receive in evidence the entire record of the administration of the estate in probate court. Clearly, such wholesale admission of records would bring into the evidence papers and documents wholly extraneous and foreign to the issues involved. We find no error in this regard.

The appellants complain that the trial court refused the son, Lee E. Miller, on cross-examination, to state whether his mother signed a deed to Don Young as Trustee to three parcels of real estate for his benefit. Since the son was testifying for the mother, appellee, it was proper for the appellants to attempt to show his interest or bias in the outcome of this lawsuit and not to permit an answer to the question propounded was error that was prejudicial to the substantial rights of the appellants. We likewise believe that the court was in error in npt permitting Lee Miller, also on cross-examination, to answer the question whether he was in need of money. The testimony, however, by Ruth Barber, on direct examination, about property deeded to her by her father, was properly stricken from the record- on the ground that such answer was self-serving and not the best evidence.

The appellants also say that the judgment and order was contrary to law. The record in this case discloses that Perry Miller and Mary Miller had extensive holdings separate and apart from each other. They had separate sources of income independent of each other. Each paid the taxes and provided for the répairs for their separate properties; they also carried individual bank accounts in their own names and accounted. to each other for advancements made by them back and forth.

The trial court awarded the entire sum to the widow on the theory that she was entitled to the care, support and services of her husband under the law. It is true the law presumes pecuniary injury to persons legally entitled to care and support from a decedent in an action for wrongful death. (Karr Admr. v. Sixt, 146 Oh St 527, parag. 4 of the syllabus.) But the evidence shows, under the peculiar facts and circumstances of this case, that no care and support was accorded to her and none, in fact, was expected or required by her from her husband. Her income was adequate for her needs, and such fact was fully appreciated by each. The presumption of law in that regard was thereby negatived by the facts. On the other hand, the record shows that the appellants were without money and living on a hand-to-mouth basis and that the father, during his lifetime, transferred certain real estate to them, recording the deeds, and later took the deeds back, which were not recorded, and permitted them to live on two of these properties rent free. It also appears that the executor of the estate in one case and Mary Miller in another case are demanding rent for the use of these homes from these appellants. Since, therefore, it is probable that they will be required to pay rent hereafter for the use of these homes, they have demonstrated that they have suffered a direct pecuniary loss through the death of their father and therefore, under the statute, qualify for participation in the fund. Moreover, the decedent left an estate worth around $190,000.00 of which 88% is real property. In his will, he gave his widow a life estate in most of his real estate and upon her death devised the remainder over to his children. It seems evident, therefore, that in the main he converted the money in his hands into real property. From such state of affairs it can be established with reasonable expectancy that the widow as well as the children had prospects of benefltting from monies that he may have accumulated during the years of his life expectancy had he remained alive and that they suffered pecuniary injury in that respect by his premature death.

It is stated in Karr, Admr. v. Sixt, supra, in parag. 6 of the syllabus:

“The term ‘pecuniary injury’, as used in §10509-167 GC comprehends essentially injury measured by the prospective advantages of a pecuniary nature which have been cut off by the premature death of the person from whom they would have proceeded * * *.”

In view of the above, the assignments of error that the judgment is contrary to law and against the weight of the evidence and that the trial court erred in overruling appellants’ motion for a new trial are. well taken and should be sustained. We hold, therefore, that the judgment is contrary to law and against the manifest weight of the evidence and that substantial justice has not been done the parties complaining.

The judgment in the Common Pleas Court consequently should be reversed and the cause remanded to that court for further proceedings according to law and not inconsistent with this opinion.

Reversed and remanded for further proceedings. Exceptions noted. Order see journal.

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


author: By PHILLIPS, J.

text:
    HARDWARE MUTUAL CASUALTY COMPANY, Plaintiff-Appellee, v. BLOOMBERG, d. b. a. BLOOMBERG PLUMBING COMPANY, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3540.
    Decided October 21, 1952.
    Rendinell & Powers, Youngstown, for defendant-appellant.
    Edward L. Williams, Youngstown, for plaintiff-appellee.
   OPINION

By PHILLIPS, J.

Abraham Brothers Company entered into an agreement in writing with Katzman Construction Company to remodel its store in Youngstown, Ohio.

Katzman Construction Company entered into a written contract with Isaac Bloomberg, d. b. a. Bloomberg Plumbing Company, to do the plumbing and heating work necessary to complete such remodeling.

Subsequently defendant agreed with Abraham Brothers Company to do additional work, not included in his contract with Katzman Brothers Company, which was done during such remodeling.

Before commencement of any work by Isaac Bloomberg the plaintiff insured him against loss resulting to him by reason of injury to property incurred through his own negligence.

During the performance of such additional work by defendant Bloomberg property of Abraham Brothers Company was damaged by-leakage as the result of which defendant Bloomberg prevailed in a tort action filed by Abraham Brothers Company against him in the court of common pleas.

Defendant incurred expenses incident to defending the action in the court of common pleas brought against him by Abraham Brothers Company, in which he prevailed, which expenses included attorney fees, which he contended the plaintiff was bound to pay by the terms of its contract of insurance, and which he requested it to pay, and which it refused to pay on the ground that its liability had terminated because the plumbing originally contemplated between Katzman Brothers Company and defendant was finished notwithstanding the heating work had not been completed.

Thereafter plaintiff filed a declaratory judgment action in the court of common pleas against defendant, numbered 135696 on the docket of that court, to have determined whether it was bound by the terms of its contract of insurance with defendant to pay to him his expenses incurred in defending the action brought against him by Abraham Brothers Company.

The trial judge found for the plaintiff, and entered judgment declaring that plaintiff was not bound by the terms of its contract of insurance to reimburse defendant for his expenses incurred in defending the action Abraham Brothers Company brought against him; that plaintiff is in no way legally bound to defendant Bloomberg under the pleadings and evidence in “said cross-petition of defendant Isaac Bloomberg, d. b. a. Bloomberg Plumbing Company, or in any other sum.”

The trial judge further found:—

“That the accident complained of occurred after the operation, out of which it is claimed the accident arose had been completed; that the operation will not be deemed incomplete because defectively performed; that the word ‘operation’ is not synonymous with ‘contract’ or legal agreement, but means the execution of the work embraced within defined limitations out of which the claimed accident arose; that the outcome of Case No. 131704 is not controlling, the policy providing in effect that the insured must defend within limits of the policy a suit which is groundless or not.”

Defendant appealed to this court from that judgment on questions of law.

By single assignment of error defendant claims “the trial court erred in its determination as a matter of law that the word ‘operations’ was not synonymous with ‘contract’ job but meant work embraced within defined limitations for in so doing the trial court ignored the precepts of all cardinal rules of construction.”

Defendant contends that in the court of common pleas “the question for decision resolved itself into judicial construction of whether the term ‘completion of operations’ as used in the policy contract referred to the whole job defendant-appellant was to do at the site, or whether it referred to isolated parts of the same job.”

Plaintiff argued that question negatively and defendant affirmatively in both the court of common pleas and this court, and claims that “his ‘operations’ were not complete since he still had work to do under his contract with the general contractor.”

Construing the lengthy policy of insurance in its entirety, as we must like all other contracts giving effect to the intention and express language of the parties to it, and applying the applicable rules of construction of the contract to the evidence, and especially the evidence of defendant that such injury to property occurred four months and one week after the plumbing was finished excepting inspecting the radiator, and without reference further to the provisions of the contract of insurance we conclude that the trial judge did not err to defendant’s prejudice as urged.

The judgment of the court of common pleas is affirmed.

NICHOLS, PJ, GRIFFITH, J, concur. .