author: By McNAMEE, District Judge.

text:
    JOSEPH TURK MFG. CO. v. SINGER STEEL CO.
    United States District Court N. D. Ohio, E. D.
    Civ. A. No. 26814.
    Decided December 12, 1951.

      Morris Berick, Edwin Knachel (both of Halle, Haber, Berick & McNulty), Cleveland, for plaintiff.
    Ezra Z. Shapiro, Joseph H. Persky, Cleveland, for defendant.
   OPINION

By McNAMEE, District Judge.

Plaintiff is a corporation organized under the laws of Illinois and is a citizen of that state. Its business is the manufacture of furniture.

Defendant, an Ohio corporation, is engaged in the business of warehousing and jobbing steel at Cleveland, Ohio.

Steel Producers, Inc., is an Ohio corporation with its main office at Dayton, Ohio and a rolling mill located at Toronto, Ohio.

This action is based upon the claim that 171 tons of steel which had been delivered to Steel Producers, Inc., under an agreement reserving title in plaintiff, were converted by the defendant.

Defendant denies the alleged conversion and asserts the additional defenses:

1. That the title to the steel had passed to Steel Producers, Inc.

2. If title had not passed, the transaction between plaintiff and Steel Producers, Inc., was a conditional sale, and plaintiff’s failure to file the conditional sale agreement for record, as required by §8568 GC (§1319.11 R. C.), made plaintiff’s reservation of title void as to defendant, a subsequent purchaser for value in good faith.

3. That plaintiff is estopped to assert that defendant converted the steel.

The record discloses a series of relevant primary and collateral transactions requiring for their exposition a somewhat lengthy statement of facts.

In May, 1948 the Joseph Turk Manufacturing Company purchased 1,000 tons of steel sheet bars from a mill at Portsmouth, Ohio. This purchase was made for plaintiff by Briggs & Turivas, acting through its Vice President, Harry Alpirn. Plaintiff proposed to have the sheet bars rolled into steel sheets for use in the manufacture of furniture.

In June, 1948 plaintiff entered into a contract with Steel Producers, Inc., wherein the latter agreed to roll 500 tons of steel sheet bars for the plaintiff at a cost of $39.95 per ton. In consideration thereof plaintiff agreed to sell to Steel Producers, Inc., the balance of 500 tons of steel sheet bars at a price of $105 per ton f. o. b. Toronto, Ohio, to be paid for by applying the cost of rolling the first 500 tons on the purchase price and paying the balance to plaintiff in cash.

It was also expressly agreed that the 500 tons of steel bars sold to Steel Producers, Inc., were to remain the property of the Joseph Turk Manufacturing Company “until paid for by Steel Producers, Inc.”

No formal conditional sale agreement was executed or recorded, as required by §8568 GC (§1319.11 R. C.).

The 500 tons of sheet bar to be rolled for the Joseph Turk Manufacturing Company were received by Steel Producers, Inc., at Toronto, Ohio, between July 8 and July 17, 1948.

During the month of July 1948, Albert Singer, President of the defendant company, learned of the transaction between plaintiff and Steel Producers, Inc. Singer obtained this information from David Stein, who had acted as agent for plaintiff in negotiating the transaction between-plaintiff and Steel Producers, Inc.

On July 27, 1948 Albert Singer loaned Stein $2,500, taking as security therefor an assignment of Stein’s commission agreement with plaintiff. About this time Singer, at the solicitation of Stein, was also considering making a loan to Steel Producers, Inc. In this connection he made a trip to Toronto, Ohio, with Stein to inspect the rolling mill of Steel Producers, Inc. Stein knew all of the facts connected with the transaction between plaintiff and Steel Producers, Inc., having received from the principals copies of the letters embodying the terms of their agreement. He claims to have given all this information to Singer. This is denied by Singer.

Early in August, 1948 defendant received an inquiry from one of its customers for a substantial amount of 13 guage steel sheets. At this time the 500 tons of steel bar sold by Turk to Steel Producers had not been delivered; nor had these bars been manufactured or roled by the mill at Portsmouth, Ohio. Both Stein and a representative of the Singer Steel Company called Harry Alpirn of Briggs & Turivas, who, at their request, obtained the consent of plaintiff to a change in the foot-weights of the undelivered 500 tons of steel bars so as to make them suitable for rolling into steel sheets of 13 guage. The telephone call received by Alpirn from defendant was from either Albert Singer, President, or Mervas, then General Manager of the Singer Steel Company.

In this telephone conversation either Singer or Mervas told Alpirn that the Singer Steel Company “wanted to get the sheet bar rolled to 13 guage.” Alpirn inquired what foot-weight would be required, and was informed by the representative of the Singer Company to whom he was talking, that the mill would be able to make that determination from the size of the steel sheets that were specified.

In this same telephone conversation Alpirn told the Singer representative “that the sheet bar belonged to the Joseph Turk Manufacturing Company and we would have to take it up with them before we could get permission to change the size of the sheet bar.”

After obtaining the consent of the Joseph Turk Manufacturing Company to the desired change in the specifications of the steel bars, Alpirn so informed Stein, who notified Singer that Steel Producers, Inc., would be able to fill defendant’s order for 13 gauge steel.

On August 9,1948 Singer Steel Company placed an order with Steel Producers, Inc., for approximately four hundred tons of 13 gauge steel at $11.50 per hundred-weight, delivery to- be made within four weeks. This order was accepted by Steel Producers, Inc., on September 21, 1948.

Between September 28 and October 14, 1948 Singer paid $30,000 in advance to Steel Producers, Inc., to apply on its order of August 9, 1948 and made an additional payment of $5,000 on November 29, 1948.

The 500 tons of steel sold by the Joseph Turk Manufacturing Company to Steel Producers was shpiped from the mill at Portsmouth, Ohio, on or about September 27, 1948 and received by Steel Producers, Inc., in Toronto, Ohio, on September 28, 1948. Without making payment for the steel bars, Steel Producers, Inc., used a portion thereof to fill defendant’s order.

Steel Producers, Inc. commenced shipments on Singer Steel’s order for 13 gauge steel on October 23, 1948. A total of 145.8 tons were delivered pursuant to Singer’s order. This was processed out of 171 tons ofs sheet bar which was received by Steel Producers, Inc. from the Joseph Turk Manufacturing Company on September 28, 1948.

In October, 1948 Singer, together with Stein and one Galente, organized the G. & S. Corporation. Singer had a one-third interest in the company. Later in the same month the G. & S. Corporation loaned Steel Producers, Inc. the sum of $100,000, taking as security therefor a chattel mortgage on the equipment of Steel Producers, Inc., and an assignment from all of its stockholders of their interest in the corporation. At the time the G. & S. Corporation obtained signed, undated resignations from the officers of Steel Producers, Inc.

On December 7,1948, after learning that Steel Producers, Inc. had used plaintiff’s steel in filling the order for defendant, Joseph Byron, secretary of the Joseph Turk Manufacturing Company, together with plaintiff’s counsel, Philmore Haber, and Harry Alpirn, met Albert Singer in the latter’s office. Also present at this meeting were Frank A. Weidman, President of Steel Producers, Inc., and Messrs. Polizzi and Novasel, who were associated with Steel Producers, Inc.

At this meeting Singer admitted that he knew that steel of the Joseph Turk Manufacturing Company was used by Steel Producers, Inc., in filling defendant’s order. Singer also promised to pay for the steel that was used. In connection with these admissions and promises by Singer there was discussed a purchase by the Singer Steel Company from plaintiff of the unused portion of the latter’s steel at the mill in Toronto, Ohio. Thereafter counsel for the Singer Steel Company and counsel for the Joseph Turk Manufacturing Company met on several occasions and prepared drafts of an agreement embodying the proposals that defendant pay the Joseph Turk Manufacturing Company for the 171 tons of steel used by Steel Producers, Inc., in filling defendant’s order and the purchase by defendant of the unused portion of the steel belonging to Turk. While counsel were attempting to arrive at a satisfactory written agreement, Singer became convinced that he could not get the steel rolled at Steel Producers’ mill and refused to execute the contract.

No payment was made by Steel Producers, Inc. for the 500 tons of steel bars purchased by it from plaintiff.

There can be no doubt that plaintiff’s sale of 500 tons of steel bars to Steel Producers, Inc. was a conditional sale.

“A contract which provides that the chattel sold is to remain the property of the vendor until the purchase money is paid is a conditional sale [contract].” Bellish v. C. I. T. Corporation, 142 Oh St 36, 26 O. O. 234, 50 N. E. (2d), 147, 150; Speyer v. Baker, 59 Oh St 11, 51 N. E. 442; Schlitt v. Cleveland Store Fixture Co., 22 Ohio Cir. Ct. R., N. S., 168, 35 O. Jur. Sec. 260, p. 999.

As between the parties an unrecorded conditional sale is valid. 35 O. Jur. 1009; York Mfg. Co. v. Cassell, 201 U. S., 344, 26 S. Ct. 481, 50 L. Ed. 782.

Sec. 8568 GC (§1319.11 R. C.), provides in effect that a conditional sale agreement that is not executed and filed for record as therein specified shall be void as to “subsequent purchasers and mortgagees in good faith and for value, and creditors.”

The purpose of the recording statute is to prevent secret liens and to protect “subsequent purchasers and mortgagees in good faith and for value, and creditors” who have relied upon the possession of the vendee as evidence of his ownership of the property.

In Arthur v. G. W. Parsons Co., 224 F. 47-50, the Sixth Circuit Court of Appeals held:

“The purpose of the statute regarding record was to protect third parties dealing with the property by imparting notice to them of the condition of its title. Burbank v. Conrad, 96 U. S., 291, 292, 24 L. Ed. 731; [National] Register Co. v. Lesko, 77 Conn., 276, 280, 58 A. 967.”

In Kennison v. International Clay Machinery Co., 13 F. 2d 774-776, also decided by the Sixth Circuit Court of Appeals, it was held:

“Sec. 8568 GC (§1319.11 R. C.), does not require conditional sale contracts to be filed with the recorder until the seller surrenders the possession of the goods to the buyer.”

To the same effect is In re Imperial Brewing Co., 4 Cir., 127 F. 2d 766, 770, wherein the court quoted from Jones on Chattel Mortgages and Conditional Sales, Section 1072, p. 148, as follows:

“If the buyer be not in possession, one dealing with him for the property could not be deceived by the appearances of ownership which possession and use present. The reasonable construction of such a statute is that unless, and until, possession has been transferred, recording is unnecessary."

A conditional sale contemplates delivery of possession to the vendee and a reservation of title in the vendor. A conditional sale becomes effective upon delivery of possession.

In the light of the foregoing principles it is reasonable to conclude that by the use of the term “subsequent purchaser” the legislative intention is to extend the protection of the Ohio recording statute to purchasers who deal with the vendee after the latter obtains possession of the property which is the subject of the conditional sale. The term “subsequent purchaser” as used in the statute is therefore construed to mean one who purchases property from the vendee after the latter has acquired the possession thereof, or, as otherwise stated, a “subsequent purchaser” is one who purchases property in reliance upon the vendee’s possession as evidence of ownership.

The defendant Singer Steel Company’s contract for the purchase of steel from the conditional vendee. Steel Producers, Inc., was executed before the steel had been delivered to- the vendee. The steel bars were not delivered to Steel Producers, Inc. until September 28,1948. The defendant placed its order for steel sheets with Steel Producers, Inc. on August 9, 1948. This order was accepted on September 21, 1948. The defendant did not rely upon the vendee’s possession of the property and was not a “subsequent purchaser” as that term is used in §8568 GC (§1319.11 R. C.). If this determination be correct, it is decisive against the claim that the conditional sale from plaintiff to Steel Producers, Inc. is void as to the defendant.

It also appears that defendant knew of plaintiff’s reserved interest in the steel bars which were to be used by the vendee in executing defendant’s order for steel sheets. ' The record discloses that at the time of the sale from plaintiff to Steel Producers, Inc. “steel was scarce.” The supply was inadequate to meet the demands of industry. Users of steel were hard put to obtain sufficient quantities to meet their needs. In these circumstances the sale of steel from a user of that commodity to a steel rolling mill was no ordinary or customary transaction but one calculated to excite interest and curiosity. Such a sale came to the attention of Albert Singer at a time when he made a loan to the agent who negotiated the deal and while he was contemplating a larger loan to the purchaser of the steel. These factors might well be supposed to evoke a lively interest in the details of the transaction. Stein had full knowledge of the facts relating to the sale from plaintiff to Steel Producers, Inc. including plaintiff’s reservation of title. He testified that he gave all of this information to Singer. This is denied by Singer. But in the context of the circumstances above noted it is unreasonable to suppose that Singer did not inquire and become fully informed about all of the facts that were known to Stein.

When there is added to these considerations the definite statement of Alpirn to either Singer or Mervas that the steel bars belonged to Turk, and Singer’s admissions of knowledge on December 7, 1948, the conclusion becomes inescapable that Singer knew of plaintiff’s reserved interest in the steel bars sold to Steel Producers, Inc. Singer was put squarely on notice of plaintiff’s ownership of the steel bars before they were delivered and before defendant purchased the steel sheets from Steel Producers, Inc. Defendant also knew of Steel Producers’ need of working capital. The defendant paid $30,000 to Steel Producers, Inc. in advance of deliveries on its order. This was done, according to the President of Steel Producers, Inc. to enable that company to “meet pay rolls” and to pay rentals. The chief officer of defendant joined with others in forming a corporation that loaned $100,000 to Steel Producers, Inc. Defendant was charged with knowledge of Steel Producers’ probable inability to pay for the steel bars, but apparently made no inquiry whether such payment had been made.

The foregoing facts demonstrate a lack of good faith. It is therefore held that defendant, having purchased the property before its delivery to the vendee, was not a “subsequent purchaser” within the meaning of that term as used in §8568 GC (§1319.11 R. C.), and that, in any event, defendant was not a “subsequent purchaser * * * in good faith.” The conditional sale was valid between the parties and valid also as to the defendant.

The defense of estoppel may be dismissed with brief comment.

“It is essential to the existence of an equitable estoppel that the representation, whether consisting of words, acts, or omissions, of the party against whom the estoppel is asserted shall have been believed by the party claiming the benefit thereof and that he shall have relied thereon and been influenced and misled thereby.” 19 Am. Jur., Sec. 83, p. 730.

This is also the rule in Ohio. McGovern v. Knox, 21 Oh St 547; Ayres v. Cook, 140 Oh St 281, 23 O. O. 491, 43 N. E. (2d), 287; Martin v. Steinke, 22 Oh Ap 146, 154 N. E. 47.

Defendant relies upon acts of plaintiff which did not come to defendant’s attention at the time of their execution. The receipts for the steel bar which were drafted by plaintiff on or about Sptember 27, 1948, — plaintiff’s letter of October 1 to Steel Producers, Inc. in re payment, — and plaintiff’s invoices of October 19, 1948, — were all subsequent to the date of defendant’s contract of purchase, and it does not appear that defendant had knowledge of the existence of these instruments at the time they were received by Steel Producers, Inc. It may be added that plaintiff’s conduct in drafting and forwarding these instruments to Steel Producers, Inc. was entirely consistent with plaintiff’s reservation of title. Defendant was not influenced or misled by these acts of plaintiff.

Defendant also relies upon plaintiff’s consent to a change in the footweight of the steel bars as a basis for its defense of estoppel. Defendant is in no position to invoke the doctrine of estoppel on this ground. In his testimony at the trial Albert Singer denied any knowledge of the change of foot-weights. Defendant cannot adopt the inconsistent positions of disclaiming knowledge of a facet in the sworn testimony of its principal officer and assert through its counsel that it was misled by knowledge which it has disavowed. Moreover, defendant’s claim in this regard is without merit. The evidence establishes that defendant knew of the change in foot-weights and actively participated in efforts to secure the change. It is further established that at the time of the change in footweights defendant was informed by-plaintiff’s agent, Alpirn, that the steel bars belonged to plaintiff.

As hereinabove noted, defendant agreed to purchase the steel before Steel Producers, Inc. obtained possession of the property. Therefore its further claim of estoppel based upon possession of the steel bars by the conditional vendee is without factual support and must also be rejected.

There is nothing in the record to support the further claim of defendant that plaintiff granted actual authority, express or implied, to Steel Producers, Inc. to sell the steel bars before paying the purchase price.

There is no dispute between the parties that a sale of property by a conditional sale vendee who has not acquired title is a conversion of the property and that an action lies against a purchaser from the original wrongdoer. Sec. 8403 GC (§1315.24 R. C.); Sanders v. Keber & Miller, 28 Oh St 630; Hamet v. Letcher, 37 Oh St 356. Plaintiff is therefore entitled to recover from defendant.

Ordinarily the measure of damages is the market value of the property at the time of conversion. Defendant’s evidence of market value is $52 per ton. In the light of market conditions as shown by the record, this figure is unrealistic.

Plaintiff submits testimony tending to show a market value of $131.06. In opposition to the acceptance of plaintiff’s evidence of market value, defendant argues that plaintiff is limited in its recovery to $105 per ton, which represents its qualified interest in the property as a conditional sales vendor. This argument is sound. As stated in McCormick on Damages (1935), Sec. 123, p. 465, note 7:

“Conditional seller under timber contract recovers against one who purchases from buyer only the price fixed in the original conditional sale, but not the market value.”

See also Lugenbeal v. Lemert, 42 Ohio St 1; McCormick on Damages, p. 465, Sec. 123; 53 Am. Jur., p. 905, Sec. 120.

The amount of plaintiff’s recovery is limited to $105 per ton. However, before entering judgment the court will await further information in re the matter referred to in a separate memorandum forwarded to counsel.


source: Caselaw Access Project

author: By MILLER, J.

license: Public Domain

text:
    SPARKS, Plaintiff-Appellee, v. Y. & T. COMPANY. Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4591.
    Decided January 29, 1952.
    Arthur L. Spielmann, Columbus, for plaintiff-appellee.
    Cowan & Adams, Paul W. Martin, of Counsel, Columbus, for defendant-appellant.
   OPINION

By MILLER, J.

This is a law appeal from the judgment of the Municipal Court of Columbus, Ohio. The action was one to recover rent paid on real estate in excess of the maximum fixed by the Office of Price Administration. The petition sets forth a cause of action seeking triple damages in the sum of $930.00 and $50.00 attorney fees.

The answer was a general denial. A cross-petition was also filed in which the defendant sought $500.00 for the conversion of certain furniture.

Upon the issues drawn trial was had, the Court entering up judgment for the plaintiff for the sum of $360.00 plus $100.00 attorney fees.

The error assigned is that the judgment is contrary to law in that the plaintiff was allowed a greater sum for attorney fees than he had sought in the petition, to wit, $100.00, whereas the petition sought only $50.00.

Although not separately stated and numbered, the petition in reality sets forth two causes of action: one for the recovery of the excessive rent payments in the form of triple damages, and the other for attorney fees for the collection of the same. Sec. 11305 GC defines what the petition must contain and provides that if the recovery of money is demanded the amount shall be stated. As the plaintiff only sought $50.00 in the cause of action seeking attorney fees, his recovery must be limited to that amount. The record reveals that the summons contained the endorsement that the amount sought was $980.00. Therefore the Court had jurisdiction to enter the judgment which we find to be erroneous in amount only. The judgment will be modified and since the recovery for rent is not in dispute we will enter the judgment that should have been entered, to wit, judgment for the plaintiff for $360.00 and $50.00 attorney fees.

HORNBECK, PJ, WISEMAN, J, concur.


author: By MERRICK, J:

text:
    WISHNEK et, Plaintiff, v. GULLA, Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 648998.
    Decided October 13, 1953.
    Julius A. Negin, Cleveland, for plaintiff.
    Miller, Davis & Folk, Cleveland, for defendant.
   OPINION

By MERRICK, J:

This action is before the Court on a demurrer to plaintiff’s petition. A recitation of some of the facts is necessary for a full comprehension of the question presented.

Defendant is a licensed surveyor. Plaintiff contends that he engaged defendant to survey a parcel of land and to set stakes for the construction of a building. Plaintiff complains that defendant “did so carelessly and negligently perform his said services that he wrongfully staked the above described premises.”

Plaintiff’s petition was filed June 1, 1953. It contains the allegation that the services were completed on March 28, 1952. Defendant’s demurrer contends that the action .is one for malpractice and must be brought within one year as provided in §2305.11 R. C. If this is a claim arising out of malpractice, the action would be barred one year after the termination of the relationship, regardless of the knowledge of the injury by the complainant. DeLong v. Campbell, 157 Oh St 22.

In his brief, counsel for defendant lays great stress upon the fact that about 20 years ago Ohio enacted legislation, licensing and controlling persons “practicing the profession ... of surveying.” Sec. 4733.01 and §4733.02 R. C. In this act is contained the language:

“ ‘Practice of surveying’ means that branch of engineering and applied mathematics which teaches the art of surveying and measuring the area of any portion of the earth’s sur7 face: . . .”

The provisions of the Ohio Revised Code, further provides for examination and minimum educational qualifications before licensing.

Ohio also licenses accountants, architects, attorneys, auctioneers, barbers, commission merchants, cosmetologists, dentists, embalmers, funeral directors, gristmillers, innkeepers, nurses, optometrists, pawnbrokers, pharmacists, physicians, limited practitioners, real estate brokers, secondhand dealers, steam engineers, boiler operators, and veterinarians. In most instances, an examination and educational requirements or experience are conditions precedent to the issuance of the license. These statutes use various terms in describing the types of avocation, viz: “practice,” “Occupation,” “business,” “art” and “profession.” Court decisions and opinions have attached to the following of many licensed occupations, the titles which rank them as professions. One decision in Ohio describes a barber’s violation of the sanitary regulations as "unprofessional conduct.” Kelso v. Cashem, 36 Abs 348.

To properly define the issue presented in the case at hand, it would seem that a full understanding should be had as to what was meant by the word malpractice when it was written into the statute of limitations.

By act of the Ohio General Assembly passed May 18th, 1894, amending §4983 Revised Statutes, being the one year limitation, actions for malpractice was made part of that section. Prior to that date malpractice was not named or mentioned, in terms, in any section of the statute of limitations.

The intent of the lawmakers is to be sought first of all in the language employed, and if the words be free from ambiguity and doubt, and express plainly, clearly and distinctly, the sense of the lawmaking body, there is no occasion to resort to other means of interpretation. The question is not what did the General Assembly intend to enact, but what is the meaning of that which it did enact. Slingluff v. Weaver, 66 Oh St, 621.

For obvious reasons, courts ought not to add uncertainty to the meaning and effect of the language used in an enactment by restricting the accepted and generally understood meaning of common words. Such a restriction by construction is justifiable only when the restricted use is made to appear by the act itself or by related legislation. Smith v. Buck, 119 Oh St, 104.

Primarily — that is, in the absence of anything in the context to the contrary — common or popular words are to be understood in a popular sense; Common Law words according to their sense in the common law; and technical words, pertaining to any science, art or trade, in a technical sense. It is a familiar rule of construction, alike dictated by authority and common sense, that common words are to be extended to all the objects which, in their usual acceptance, they describe or denote. Sutherland Statutory Construction, Vol. 2, Sec. 389.

Malpractice as a word descriptive of a type of conduct has varied meanings. It could be properly used in most any instance where a person pursued a course of activity which was evil, or produced evil results. With that broader expanse of the word we are not to be concerned, if it has a narrower meaning when considered in a statute of limitations. There it is attached to a cause of action for damages and must be so interpreted.

The word malpractice as contained in statutes of limitation has been given a restricted meaning to confine it to indicating a corrupt or culpably incompetent practitioner of either law or medicine. Leitch v. Mulcahy, 31 N. Y S. 2nd, 874. In Words and Phrases, Permanent Edition, Vol. 26, page 248, is a list of the professions to which the term has been applied in a purely legal way. Only the following are listed:— attorney, chiropractor, dentist, nurse, osteopath, physician and veterinary. There are many cases in Ohio and elsewhere applying the shorter term statute of limitations to malpractice actions brought against attorneys and it would be needless to attempt an analysis of them. It will be noted that in each of the other classifications referred to, that some practice of medicine is involved. The citation of veterinary is referred to as involves a violation of a prohibitive statute restricting the use of narcotics. There is no listing of the profession of architecture, surveying, or engineering in any of their branches.

The case cited by Words and Phrases, supra, which- seems to include an action against a nurse as coming within the malpractice statute was reversed by the Appellate Division of the First Division of the New York Supreme Court. This case is reported: Isenstein v. Malcomson, 236 N. Y. S. 641. In reversing the lower court the opinion of the Court uses this language:

“In any event, with respect to the main question, we con-elude that malpractice is to be considered in its primary meaning, and as generally understood by the ordinarily intelligent and reasonably informed person, and, in this respect, according to such common usage and acceptance, it has continuously been intended to import an improper treatment or culpable neglect of a patient by a physician or surgeon. As an added significance it has been used to indicate a corrupt or culpably incompetent practitioner of either law or medicine, but in no instance is it found to have possible application to a nurse, nor is there anything in the text of this complaint which indicates that the gravamen of the action is other than the negligent conduct and reckless, careless, and incompetent performance of common duties of a person engaged in an employment for such specified duties, as distinguished from lack of or improper performance of work requiring purely professional skill.”

This reasoning was followed in a later New York case wherein the court held:

“ ‘Malpractice’ within the two-year statute of limitations did not apply to a pharmacist, who when requested to supply a salve to reduce a swelling on a hand applied surgical treatment causing an incision to be made resulting in injury.” Rudman v. Bancheri, 22 N. Y. S., 2nd, 875.

The writer of this opinion has examined this question as defined and digested in many available law dictionaries, digests and reference books which discuss the subjects of malpractice and limitation of actions. I fail to find a single reported case in which the tort or contract breach of an architect, surveyor or engineer came within the purvue of the term malpractice as used in any code of civil procedure. Counsel have not cited any case upon the same subject.

To co-ordinate the reasoning of this opinion, it is obvious that engineering is a licensed profession in the layman’s use of the word profession, but nowhere does the law bring that profession within the benefits or handicaps afforded law and medicine in defining the extent to which the word malpractice may be interpreted in a statute of limitations. It is the opinion of this court that the conduct complained of may be a breach of contract but cannot be construed as malpractice, and therefore the one year statute of limitations does not apply.

The demurrer will be overruled and defendant may plead under rule of court.


author: By BARTLETT, J.

text:
    FAWCETT, Appellant, v. BOARD OF LIQUOR CONTROL, Appellee.
    Common Pleas Court, Franklin County.
    No. 186339.
    Decided April 7, 1953.
    Trivison & Drain, Cleveland, for appellant.
    C. William O’Neill, Atty. Geni., Ralph Mahaffey, Asst. Atty. Geni., Columbus, for appellee.
   OPINION

By BARTLETT, J.

BOARD OF LIQUOR CONTROL ORDER (REJECTING APPLICATION FOR D-l AND D-2 PERMITS), AFFIRMED

This is an appeal under §154-73 GC, seeking reversal of the order of the Board of Liquor Control, affirming the action of the Director of Liquor Control finding it inadvisable to issue D-l and D-2 permits to appellant, for permit premises within a distance of 500 feet from the boundaries of the parcels of real estate having situated thereon a school and a church. The proper notice was served under §6064-16 GC, and the authorities in control of said school and church appeared, before the said Board, and objected to the issuance of said permits, as will appear more fully in the record.

The appellant claimed said permit premises were not within 500 feet walking to or from said church and school, but admitted the properties of the church and school are within 500 feet on a straight line from the permit premises. The section of the Code in question, §6064-16 GC, supra, does not warrant the construction offered by the appellant. (See affidavit in support of notice of appeal); and the Court holds said church and school are within the 500 feet mentioned in said section of the Code.

The granting of permits is a matter for the judgment and control of the department of liquor control; and a permit is issued as a mere privilege and not as a matter of right, Per Curiam opinion of the Supreme Court, Board v. Tsantles, 156 Oh St 512, 514 and 515.

The Court may not substitute its judgment for that of the agency. Farrand v. State Medical Board, etc., 151 Oh St 222. In the foregoing case Turner, J., on page 224 observed:

“The purpose of the General Assembly in providing for administrative hearings in particular fields was to facilitate such matters by placing the decision on facts with boards and commissions composed of men equipped with the necessary knowledge and experience pertaining to a particular field.”
“The requirements of §6064-16 GC, that where the business of an applicant for a liquor permit is to be operated within 500 feet of a school, church, library or public playground, written notice of the application must be given the authorities in control of such organization, and that a full and complete hearing before the Director of Liquor Control must be afforded, were enacted solely for the benefit of such organization, * * (Emphasis ours.) Meyer v. Dunifon, Director, etc., 88 Oh Ap 246.

Miller, P. J., delivering the opinion in the foregoing case on page 247 says:

“Since the Board of Liquor Control was the trier of the facts, it possessed wide discretionary powers * * *. It must be conceded that the objection by the church authorities to the issuing of these permits * * * constituted a valid objection under §6064-16 GC.”
“The courts must exercise care not to place themselves in the position of usurping the ‘regulation and control of the liquor traffic’; and should carefully avoid hampering the agencies duly authorized by constitutional enactment to provide such regulation and control; otherwise the courts may find themselves responsible for the de-control of such liquor traffic.” Olteanul Cultural and Athletic Club v. Board of Liquor Control, No. 186,609, on the dockets of this Court.
“The requirement of notice to the authorities in control of such organizations (Sec. 6064-16 GC), was never intended as an invitation to do a vain thing, merely to object without hope of preventing that which they believed affected the very life of the church * * V’ Olteanul Cultural and Athletic Club v. Board, etc., supra.

The hearing before the Director of Liquor Control (Sec. 6064-16 CG) is limited to the “advisability” of the issuance of the permits, and certainly reasonable minds can agree in the instant case that the Director had ample evidence to warrant a finding that the issuance of the two permits in question, was not advisable.

This Court is not required to determine the issue as to “advisability” of issuing such permits; but only to find whether the order of the Board, in the exercise of its discretion, upon consideration of the entire record, “is supported by reliable, probative and substantial evidence and is in accordance with law.” (Sec. 154-73 GC.)

This Court so finds and, therefore, affirms the order of the Board and dismisses the appeal. The application for the issuance of the permits is refused.

Entry accordingly with exceptions by counsel for appellant.


author: Per CURIAM.

text:
    WATERHOUSE v. HOOVER et.
    United States Court of Appeals, Sixth Circuit.
    No. 11563.
    Decided March 31, 1953.
    Robert Adair Black, Robert N. Gorman, Cincinnati, John L. Vest, Walton, Ky., Herbert Barnhorn, Reading, on the brief, for appellant.
    Robert L. Peters, Augustus Beall, Jr., George E. Whitman, Cincinnati, on the brief, for appellees.
    Before SIMONS, Chief Judge, and MARTIN and MILLER, Circuit Judges.
   OPINION

Per CURIAM.

This is the clearest kind of case for the application of the rule established by Erie Railroad Co. v. Tompkins, 304 U. S., 64, 11 O. O. 246, 58 S. Ct. 817, 82 L. Ed. 1188. The United States District Court for Southern Ohio, upon the direct authority of Elsen v. Hughes, 87 Oh Ap 413, 43 O. O. 168, 94 N. E. (2d), 567, a decision by the Court of Appeals of Ohio affirming a judgment of the Court of Common Pleas of Hamilton county, entered summary judgment for the defendants below from which the plaintiff has appealed to this court.

On labored reasoning, appellant seeks to differentiate the instant case from the aforementioned Ohio decision, in which the Supreme Court of Ohio denied a motion to certify and thereby made the judgment of the state court of appeals final. The effort to differentiate is in our judgment not well grounded.

The plaintiff in this federal court action averred that he is the owner of and entitled to immediate possession of an interest in certain parcels of land situated in Hamilton county, Ohio. He sought to nullify the effect of an adjudication fifty years ago by the Court of Common Pleas of Hamilton County, in a will contest, that a certain paper propounded as the last will and testament of his grandmother, Hester P. Waterhouse, was void and not her will. He avers that he was an infant at the time of such will contest and was not made a party defendant, although he had a contingent interest in the estate. He avers further that the adjudication was invalid for the reason that no summons was issued on the petition to contest the will.

He makes the additional contention that neither the same parties nor the same lands are involved in the instant controversy as were involved in the Ohio state court case. It should be pointed out, however, that the original complaint in the federal court action included the same lands covered by the action in the state court, certain of the lands having been excluded by a subsequent amendment of the complaint. Nevertheless, the complaint in the federal court, as amended, related to the remainder of the same tract which was the subject matter of the state court action.

The record discloses that the origin of title to the property now involved and that involved in the state court case was the same, in that, in both cases the title originated from the conveyance of the same tract of land by a single instrument and constitutes a single chain down to the time when various portions of the tract were conveyed to various parties.

The United States District Court found that, as a matter of fact, the issues in this case bearing on the validity of the provisions to contest the will of Hester P. Waterhouse were identical with the issues presented in Elsen v. Hughes, supra; and that the proceedings for the state court contest of that will had been found by the state court to be regular and valid, and in conformity with then existing law. The district court adopted the finding of the state court.

The district court found, moreover, that the issues in the present case in respect of the title and possession of the present holders of the real estate in question, based upon a sheriff’s deed executed and delivered in pursuance of an order in a partition case in the Court of Common Pleas of Hamilton County, are identical with the same issues as were presented in Elsen v. Hughes, supra. The Ohio state courts having found such decision to be regular and valid and in conformity with then existing law, the United States Court adopted the finding.

The district court also found that the issues in the instant case as to the statute of limitations and adverse possession as a bar to the present action by the plaintiff are identical with those raised in Elsen v. Hughes, supra. The Ohio state court having found that the plaintiff’s claim was barred by the statute of limitations as to adverse possession, the United States District Court adopted the finding.

The conclusion of law was then announced that the United States District Court had no alternative other than to follow the judgment of the state court rendered in Elsen v. Hughes, supra, and accordingly adjudged that the defendants (now appellees), who had moved for summary judgment, were entitled to have their motion granted. Judgment was duly entered to such effect.

We think the district judge was plainly right in his decision

In Elsen v. Hughes, 87 Oh Ap 413, 415, 43 O. O. 168, 94 N. E. (2d), 567, 568, the Court of Appeals affirmed a judgment quieting the plaintiffs’ title to the tract of real estate of which the land presently involved is a parcel and removed the cloud on such title from the claims of the defendants. It was pointed out that while the defendants, including the present appellant, being under twenty-one years of age, had not been made defendants in the action to contest the will of their grandmother, Mrs. Hester P. Waterhouse, trustees for them had been parties to the will contest.

The contentions of the contending parties were thus stated in the appellate court’s opinion: the defendants insisted that the failure to join them as parties to the will contest rendered void the judgment setting aside the will, in consequence of which they were entitled to take under the probated will, notwithstanding the judgment declaring it not to be the last will of their grandmother; and the rejoinder contentions of the plaintiffs were that the trustees who were parties to the will contest were the owners of the legal title of the shares which the daughters were immediate beneficiaries and the defendants remote and contingent beneficiaries; the trustee was the only necessary party to represent such contingent interest in the will contest; and it was not necessary to join either the immediate or the remote beneficiaries of such trust. The Ohio Court of Appeals then declared: “It is expressly provided by §11244 GC (§2307.08 R. C.), that a trustee of an express trust may bring an action without joining with him the person for whose benefit it is prosecuted. We find no statutory provision as to defending actions involving a trust estate, but it seems to us that the reason for the rule authorizing the trustee to prosecute an action applies with équal force to defending actions. And that seems to be the rule in the absence of any statute. * * *

“Although it may be that the defendants might have been proper parties to the will contest, they were not necessary parties, and their absence did not prevent the court from entertaining the will contest. The judgment setting aside the will was within the jurisdiction of the court and cannot be collaterally attacked. It may be, also, that the trustee did not properly defend the action. The remedy of the cestuis que trustents for any such dereliction would be against the trustee, and not by attacking the title of transfers, taking title in reliance upon the validity of the judgment. Judgment affirmed.”

It is obvious to us that the United States District Judge was correct in holding that the issues presented in the case at bar and those previously determined by the Court of Appeals of Ohio in Elsen v. Hughes, supra, are for all practical purposes identical, and that he properly performed his bounden duty under the mandate of Erie Railroad Co. v. Tompkins and the subsequently enacted statute, U. S. C., Title 28, Section 1652, to follow and apply the decisions of the Court of Appeals of Ohio to the facts of the instant case.

Accordingly, the judgment is affirmed.


author: By THE COURT. By THE COURT.

text:
    SWEET, Plaintiff-Appellant, v. BIG BEAR STORES COMPANY et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4684.
    Decided February 20, 1952.
    Herbert & Domey, Alex S. Dombey, of Counsel, Columbus, for plaintiff-appellant.
    Wright, Harlor, Purpus, Morris & Arnold, Earl F. Morris, of Counsel, Columbus, for defendant-appellee, Big Bear Stores Company.
    Luther L. Boger, Huntington Carlile, Columbus, for defendant-appellee, Forrest R. Sparks.

      Decided March 7, 1952.
   OPINION

By THE COURT.

Our examination of the record in this case discloses that Judge King properly applied the legal principles pronounced in the case of Kroger v. McCune, 46 Oh Ap 291, and therefore did not err in directing a verdict in favor of the defendants at the close of the plaintiff’s case.

The judgment will be affirmed.

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

ON MOTION TO CERTIFY CAUSE

No. 4684.

OPINION

By THE COURT.

This is a motion to certify this cause to the Supreme Court of Ohio as being in conflict with the decision of the Court of Appeals for Summit County in the case of Fox v. Schechter, 57 Oh Ap 275. While in the Fox case there was some evidence in the record as to the length of time the foreign substance was on the floor and which does not appear in the case at bar, the Court disregarded this fact when it said at page 279:

“If the jury concluded that it was more probable that defendant dropped the fruit, no further evidence was necessary on that branch of the case.”

This Court followed the case of Kroger v. McCune, 46 Oh Ap 291, which held contra to the above quoted legal principle. In other words, we held that the jury is not to be permitted to speculate as to the cause of the substance being on the floor. The trial Court at page 124 of the record was of the opinion that the Fox case was opposed to the Kroger case and counsel for the appellee, Big Bear Stores Company, recognized it also at page 9 of its brief, saying:

“This court, neither in the McCune case nor in any other floor-slipping case, and other courts in Ohio except in the Fox case, have not sanctioned such principle.

The motion will be sustained.

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


author: By CROSSLAND, J:

text:
    LYNN, Plaintiff, v. ESTADT AND INDUSTRIAL COMMISSION OF OHIO, Defendants.
    Common Pleas Court, Muskingum County.
    No. 38441.
    Filed March 30, 1953.
    Richard N. Larrimer, Columbus, Ralph G. Marshall, Zanesville, for plaintiff.
    C. William O’Neill, Atty. Genl., Columbus, Chalmers D. Wylie, Asst. Atty. Genl., Jay Zellar, Zanesville, for defendants.
   OPINION

By CROSSLAND, J:

Plaintiff’s petition alleges that he is entitled to participate in the Workmen’s Compensation Fund of Ohio because he “sustained a crushing injury to the chest when struck by a falling coal car” on March 18, 1949, and the only evidence relating thereto was his own testimony that he slipped and fell against a corner of a coal car, hitting the left side of his chest, unreported by him until months later, in a small mine operated under lease by the Estadt brothers, who were uninsured although then having three employees.

The only claim made in the evidence for participation in the Fund is that a pre-existing lung condition was aggravated or accelerated by the alleged injury of March 18, 1949, a distinct departure from the issue raised by the petition and answered, met and resisted by the defendants.

There is no question of the fact of a pre-existing lung condition, described by Dr. Powelson as “extensive old fibrotic involvement of the bronchial tubes” and by Dr. Mark as “pneumoconiosis” and both physicians undertook to explain rather laboriously how such pre-existing condition would be affected by an assumed traumatic injury, but from each of their own examinations they knew full well that the claimant was not in good physical condition on and before March 18, 1949, although asked to assume that he was “in good condition” at that time.

The overwhelming testimony of numerous defense witnesses as to the previous ill-health of the claimant and of established circumstances to which such testimony is directly related is merely corroborative of plaintiff’s own supporting medical evidence in that regard.

Clearly the assumptions of fact invoking the opinion testimony of Drs. Powelson and Mark being not only contrary to the manifest weight of the evidence but essentially untrue under the issues made by the pleadings, the expressions of opinion are themselves wholly irrelevant and of no probative value whatever.

In the Court’s view, it is not merely a question of whether an expert opinion is or is not against the manifest weight of the evidence, even though it can be said very frankly that it is often extremely difficult to rationalize the fantastic labyrinth of explanation by which some medical opinions are arrived at and it causes one inevitably to wonder just how much of what is said is really believed by the witness. Fundamentally, it is a question of whether an opinion based on any factor or factors assumed for the hypothetical question but in fact afterward found to be contrary to the manifest weight of the evidence constitutes any substantial evidence either to warrant or support a verdict for the plaintiff, and, as here, in the face of a motion by defendants for judgment non obstante veredicto.

This Court considers that an expert opinion can be no better than the evidence to support the hypothetical question that invokes it and that when any one of the material factors contained in such question as an assumption of fact is successfully contradicted by the manifest weight of the evidence it then follows that the opinion itself is thereby rendered valueless as inconsequential and as irrelevant to the issue of compensable disability.

An appeal to the Courts from a decision of the Industrial Commission adverse to a claim for participation in the Workmen’s Compensation Fund was never intended as an open sesame to free handed gratuity at the expense of the legitimate rights of those workmen who are properly entitled to its benefits or of the contributors thereto. Nor was it intended as a game of chance in which expert medical opinion too often lends itself to highly speculative impulses seemingly designed to baffle, dominate and outwit lay juries.

Justice seeks to ascertain the truth. The truth is ba«ed upon actual fact. In this case it .is plainly shown that the claimant was in ill-health, not good condition, before March 18, 1949, defense evidence thereof merely confirming plaintiff’s own medical testimony to that effect. Nor was there the slightest evidence or suggestion of any kind of a crushed or otherwise traumatically injured chest and no slightest pretense thereof was even indicated. The basic premise of plaintiff’s claim is pure fiction and any conclusion of direct and probable relationship between a traumatic injury and existing disability is pure fantasy.

Accordingly, reasonable minds can reach but one conclusion from the evidence and that is that there is not substantial evidence to support the petitioner’s claim or to warrant the jury so finding and that the verdict herein should be and therefore is set aside, defendant’s motion sustained and judgment rendered for the defendants. Exceptions to plaintiff.


author: By THE COURT:

text:
    RECK, Plaintiff-Appellant, v. BEACHLER, Jr., Defendant-Appellee.
    Ohio Appeals, Second District, Miami County.
    No. 465.
    Decided March 12, 1952.

      Spidel, Staley & Hole, Greenville, for plaintiff-appellant.
    Faust & Faust, Troy, for .defendant-appellee.
   OPINION

By THE COURT:

This is an appeal on questions of law from the judgment of the Common Pleas Court of Miami County.

, Plaintiff in her petition charged the defendant with malpractice. The defendant filed a motion to make the petition definite and certain, which was sustained. The plaintiff filed an amended petition which did not fully comply with the order of the court. Defendant filed a motion to strike the amended petition from the files on the ground that the amended petition did not comply with the previous order of the court. The motion to strike was sustained, and the plaintiff electing not to plead further, the action was dismissed.

A motion to strike from the files for failure to comply with a previous order is a recognized procedure. An order dismissing the action of plaintiff for failure to comply with a former order to make petition definite and certain, the plaintiff electing not to plead further, will not be reversed unless it is clearly shown that the court abused its discretion. Rudd v. City of Reading, 64 Oh Ap 308; Vol. 31 O. Jur., page 885, Sec. 293; Vol. 2 O. Jur., Part II, pages 1068, 1070, Sec. 591. An abuse of discretion is not shown by the mere fact that the members of the reviewing Court would have exercised that discretion differently if sitting as a trial court. Vol. 2 O. Jur., Part II, Page 1063. We cannot say that the trial court abused its discretion in sustaining the motion to make definite and certain and in dismissing the action for failure to comply with the order.

Judgment affirmed.

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


text:
    DAYTON (City), Plaintiff-Appellant, v. CAVERLEE, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2120.
    Decided November 16, 1950.
    Herbert S. Beane, City Atty., William P. Keane, Asst. City Atty., Dayton, for plaintiff-appellant.
    Nolan & Boesch, Dayton, for defendant-appellee
   OPINION

By THE COURT:

This is a law appeal from the judgment of the Court of Common Pleas reversing that of the Municipal Court of Dayton, Ohio. The defendant was charged with and found guilty of operating a motor vehicle in violation of Ordinance No. 307 of the City of Dayton, which reads as follows:

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

The affidavit charged the defendant with operating a motor vehicle within the City of Dayton without due regard for the safety and rights of pedestrians and drivers and occupants of all other vehicles, and so as to endanger the life, limb or property of persons in the lawful use of the said public thoroughfare in the following particulars, to wit: while operating the said motor vehicle, eastwardly on Ernst Avenue, he struck one William K. Smith who was pushing his Ford coupe, which was being steered by one Cathy Willingham, eastwardly on Ernst Avenue.

We have examined the bill of exceptions and find that the evidence discloses that at about 12:30 in the morning William K. Smith was pushing his automobile from the rear on an icy street, the battery being dead, and he was endeavoring to push the car down grade while his friend was at the steering-wheel. The defendant approached from the rear in his automobile, driving at not to exceed twenty miles per hour. The pushed car was in the middle of the block where the lighting was poor. The defendant did not see the car ahead of him .until he was within approximately 60 feet of it. He applied his brakes throwing his car into a skid whereby he lost control striking the car ahead and crushed the legs of Mr. Smith between the two bumpers. The street at this place was one solid sheet of ice.

The Common Pleas Court was of the opinion that a prima facie case was made by the prosecution but that the testimony of the defendant was sufficient to create a reasonable doubt as to his guilt and that therefore the judgment was against the manifest weight of the evidence. It will be noted that there is nothing in the record indicating the manner in which the defendant’s automobile was being operated other than his own testimony. The Appellate Court was of the opinion that in order to constitute a violation of the ordinance the operation of the automobile should be such as to amount to a reckless disregard of consequences, an indifferent feeling or attitude such as would make one intend to do the things which were the natural and probable consequences of his indifference or reckless conduct. The Court noted further that the statute contained no specific requirements; that if the statute were loosely construed we would have the anomalous situation of its being easier to convict a person of a crime for being negligent than it would be for him to recover in a civil action for negligence. We are in accord with the legal conclusions as set forth by Judge Cecil in his decision announced in this case.

The record discloses that a judgment entry of guilty was never journalized in the trial court but the entry overruling the motion for new trial was properly filed. The appellant urges that since the Municipal Court of Dayton is a court of record, that there is no final order to support this appeal. Judge Cecil also recognized this defect and said that if it were not for the fact that the judgment should be reversed that he would have remanded the case back to the Municipal Court for the journalization of the entry. This may nave been the proper procedure, but we can see no harm in expressing an opinion on the subject which would be the judgment of the court were the record properly completed. We are of the opinion that the overruling of the motion for new trial was not an appealable order; the basis for judgment is a sentence and a judgment is essential to an appeal. We had a similar situation in the case of Columbus v. Treadwell, 46 Abs 367, 65 N. E. (2d) 720, wherein we held that since the sentence appeared in the bill of exceptions, although it was not carried on the half sheet or journal, and since counsel had prosecuted the appeal through the Common Pleas Court and had prepared all of the briefs, the Court passed on the errors assigned with the understanding that the judgment entry would be spread upon the record nunc pro tunc. If such an entry is prepared and filed in this case the judgment of the Common Pleas Court will be affirmed and if not the judgment of the Common Pleas Court will be reversed for want of jurisdiction.

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


author: By THE COURT.

text:
    DWORKEN, Plaintiff-Appellant, v. COLLOPY, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4474.
    Decided November 2, 1951.
    Jack B. Dworken, Morton R. Dworken, Cleveland, Irwin W. Barkan, Columbus, for plaintiff-appellant.
    C. William O’Neill, Atty. Genl., John W. Hardwick, Asst. Atty. Genl., Columbus, for defendant-appellee.
   OPINION

By THE COURT.

Submitted upon motion of the defendant-appellee seeking an order dismissing the appeal on questions of law and fact for the reason that this Court has no jurisdiction to entertain such an appeal. The action seeks an order restraining the defendant from enforcing certain provisions of the Unemployment Compensation Act as being in violation of the Constitution of the United States and of the State of Ohio. The action originated in the Court of Common Pleas and is not an appeal from a decision of the Board of Review. See. 1346-4 GC is therefore not applicable. The action is one in chancery and is appealable on law and fact. City of Newark v. American Bottle Co., 100 Oh St 541.

The motion will be overruled.

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


author: By CRAMER, J.

text:
    LEAHIGH et, Plaintiffs, v. BEYER et, Defendants.
    Common Pleas Court, Butler County.
    No. 69734.
    Decided July 13, 1953.
    Martin A. Coyle, Hamilton, John A. Lloyd, Jr., Cincinnati, for plaintiffs.
    Sol Goodman, Cincinnati, for defendants.
   OPINION

By CRAMER, J.

This cause is before the court upon the motion of the defendants for an order dissolving the temporary restraining order heretofore issued and for judgment in their favor on the pleadings. In view of the fact that a ruling on the latter portion of the motion would probably be dispositive of the former, we proceed to rule first upon the motion for judgment upon the pleadings.

The petition discloses plaintiffs on behalf of themselves and other members of Local Union No.. 233 UAW-CIO — hereinafter referred to as the local — seek to enjoin a run-off election based upon the results of an election held on May 12, 1953 for the election of officers of the local. The plaintiffs claim that the election of May 12, 1953 was illegally conducted and not in accordance with the international constitution and the by-laws of the local.

They allege they protested the manner in which said election was conducted to the membership and also that they sought information from the president of the local and the regional director for “procedure to be followed in perfecting a protest to said election held on May 12, 1953.”

It is asserted that the officers and president of the local refused to furnish the information so requested.

They then proceed to set out that they requested the chairman of the local committee and the regional director that the scheduled run-off election to be held May 27-28. 1953 be “held in abeyance until such time as the plaintiffs’ protest of the election of May 12, 1953 could be finally and conclusively decided by the proper legal bodies and that said Beyer and Ross have flatly refused to comply * *

It is then asserted that the plaintiffs have no legal remedy and that by virtue of their protest filed they manifested “their intentions to exhaust all available remedies to contest the results of said election of May 12, 1953.”

They seek to permanently enjoin the holding of the run-off election “until such time as the proper bodies have made a final settlement and adjudication of all the issues contained in the protest of the original election held May 12, 1953.”

A temporary restraining order was allowed enjoining the holding of the run-off election while it was in the process of being conducted.

The answer of the defendants denies that either the original election of May 12, or the run-off election was in any way improper but rather both were in accordance with the international constitution and the rules and regulations of the local.

The answer further alleges that the plaintiSs filed a protest to the election at a meeting of the membership and a majority in attendance voted against the protest. That under the constitution of the international the general meeting of the local union members “shall be the highest authority for handling problems within the manufacturing establishment.”

The defendants then set out Article 30, Sections 3 and 6 of the international constitution, which provide for the manner and time in which any member can appeal from “the action, decision or penalty of his subordinate body.”

There are further alleged, the provisions of the constitution which prohibit a member or a subordinate body from appealing to a civil court for redress until “he or it has exhausted his or its right of appeal under the laws of this international union.”

It is asserted that the plaintiffs failed to take such appeal provided in Article 30, Section 3, and have failed to exhaust their remedies within the international union.

To that answer plaintiffs filed an amended reply which, after generally and specifically denying all the allegations of the answer which are not admissions of the allegations of the petition, asserts that the provisions of the international constitution quoted in the answer are inapplicable to the protesting of local union elections. They further claim that even though applicable to the protesting of such elections the constitution makes no provision for a stay of a run-off election as sought by plaintiffs.' They then allege that they have taken every step to conform to the procedure, insofar as possible respecting protesting a local election in the event it be determined that the constitution does set forth such a procedure.

It is further asserted that in the event Article 30 of the international constitution is applicable to the protesting of local elections, Section 2 of that article which requires that the decision of the lower tribunal must be complied with before the right of appeal can be accepted by the next tribunal in authority denies them the opportunity to obtain the stay of the run-ofi election.

The plaintiffs, at the outset, insist that a judgment on the pleadings in favor of the defendants is unavailable to them since the pleadings raise issues of fact and not of law.

True it is, that a judgment on the pleadings may be given only when taking all the averments of the pleadings as they stand, they present merely a question of law.

Is that the situation here presented?

An examination of the pleadings reveals that the only issue of fact raised by them is whether the original election was or was not legal and in accordance with the constitution, and rules and regulations, and whether the run-off election was being conducted regularly or would be held in conformity to or in violation of the international constitution and the rules of the local.

These issues of fact, in our opinion, are inconsequential and may well go undetermined or even found adversely to or in favor of plaintiffs or defendants without in the slightest affecting the legal question squarely raised by the pleadings.

Those questions are — since the constitutional provisions as pleaded in the answer are admitted (it is only their applicability which is disputed) — as follows:

(1) Does the constitution, particularly those portions of Article 30, set out in the answer, provide a remedy — set up the procedure for — protesting local union elections and for appeal?

(2) If so, does plaintiffs’ failure to avail themselves of and exhaust such remedies and procedure preclude a court from granting them the relief prayed for?

While it was asserted in oral argument that the national executive board has interpreted Article 30 as being applicable to election protests, the pleadings do not disclose that, and even if they did, we cannot be bound nor guided by such interpretation.

It is our opinion that on their face, the portions of Article 30 of the national constitution quoted in the answer are applicable to and provide for protesting local union elections and the procedural steps to be taken on appeal from the decision of a subordinate body on such questions.

This conclusion comes as a result of applying the usual and well settled rules of constitutional and statutory construction.

It is a well recognized principle of law that members of a union, by adopting a constitution and by-laws and providing regulations for settling their own disputes, and by establishing their own tribunals of original and appellate jurisdiction, become bound thereby and will be required to avail themselves of and to exhaust all internal remedies provided by such constitution and by-laws before resorting to courts for relief.

See National Union v. Owens, 119 Oh St 94; Gallagher v. Harrison, 86 Ohio Ap 73, 40 O. O. 494.

In the annotations found in Volume 168 A. L. R., at page 1463, the following is quoted with approval:

“So that only upon the clearest kind of showing, either that the constitution and rules are violated by the decisions of the tribunals set up by them (referring to voluntary associations such as unions) or that the remedies provided by the parties in their agreements for appeal from, or review of, the decisions of their own constitution the tribunals are non-existant or unreasonable, should the courts permit their jurisdiction' to be invoked.”

In the case of Reigel v. Harrison, 157 Fed. (2d), 140, at page 146, Judge Martin, Circuit Judge, made the following observation in the course of his opinion:

“As found by the district court, Reigel has not exhausted his remedies within the Brotherhood; and this being true, he is not entitled to maintain this court action. The decision of the district court was in conformity with the controlling law — that of Ohio, which is consistent with the general law.”

That case holds that its decision is in conformity' also with a number of Ohio cases therein, such as Meyer v. Jenkins, 63 Oh St, 101, 4th syllabus thereof; Hahn v. Elliott, 28 Abs 353; also, Boblitt v. Railway Co., 73 Oh Ap 339, 28 O. O. 65, Mace v. Carpenters, etc., 31 O. N. P., N. S. 17.

The case of Meyers v. Bethlehem Corporation, 303 U. S., 41, is likewise cited.

The syllabus in the Mace case, supra, is as follows:

“Membership in a trade union is in the nature of a contract, under which each member agrees to be governed by its constitution and rules; and where, under such rules, complaints of an undividual member against injustices of the association officers are required to be tried before a trial board of the association and an appeal taken within the association before recourse to the civil courts, the latter tribunals are without jurisdiction in such cases until the remedies afforded by the constitution of the association have been exhausted.”

In the course of Judge Darby’s opinion in the Mace case, he quotes the following from the case of Hickey v. Baine, 195 Mass., 446, which was an action in mandamus for the purpose of securing possession of an office in the union:

“The rights of all the members of this voluntary association must be settled according to the provisions of the constitution which they have adopted. Accordingly before these petitioners can invoke the aid of court to secure them in the offices to which they severally claim to have been elected, it must be shown that they have exhausted the remedies available to them within the association, and according to its rules.”
“* * * If the action of the board was wrong, whether because they had no jurisdiction of the question or because they took an erroneous view of either the law .or the facts, there was a further remedy open to the petitioners under the con-, stitution by appeal under Section 106 to a convention to be held under Section 108. It is impossible to read this • constitution without seeing plainly that it was intended and purported to supply a full system of government by which the rights of all its members and rights and duties of all its officers among themselves should be determined and regulated under the management and control of the general executive board, which according to Section 8 is to decide all questions of usage wherein the constitution is silent, and with a final and complete control in convention to be held subject to the desire of the majority of the local union * * *. In our opinion, according to the decisions above cited, it was the duty of the petitioners to exhaust their remedies by appeal to such a convention before coming into the courts!”

It does not appear from the pleadings that the remedies provided under the constitution will be fruitless or that the appeal will not be treated fairly by the appellate tribunals.

Plaintiffs apparently do not too seriously contend that the foregoing is not the law but insist that they are entitled to relief here because the constitution provides no relief for them since there is no provision for staying a run-off election pending the final determination of the validity of the election upon which the run-off is based.

Furthermore, under the constitution the decision of the membership — rejecting the protest — must be complied with before the right to appeal can be accepted by the next tribunal.

Therefore, it is claimed that resorting to the internal remedies and following the constitutional procedure would be futile and useless.

They claim they would have to abide by the results of an illegal election while the appeal was being processed, which might easily mean that the newly and illegally elected officers would serve their full terms in office before the appeal would be finally determined.

Such observations, in our opinion, are neither tenable nor afford a basis for granting plaintiffs relief in a court of equity for the following reasons:

(1) No individual property rights of any of the plaintiffs are in any manner affected or involved in the action of the defendants sought to be relieved against.

Judge Skeel in the case of Findlay v. Duffy, 88 Oh Ap 159, 43 O. O. 451, in his opinion stated:

“The right to seek the power of injunctive relief in a court of equity cannot be invoked unless and until it is made to appear that a property right has been invaded for which there is no other adequate remedy afforded.”

(2) Membership in a union is in the nature of a contract under which each member agrees to be bound by its constitution and rules. Here the plaintiffs as members of this local agreed to the provisions now complained of. This they are not permitted to do.

(3) The procedure for appeals provided in the constitution —the requirement therein that the appellant abide by the decision appealed from — the failure to provide therein for a stay of the ruling from which the appeal is taken — are not violative of “due process.”

“The right of appeal or review is not essential to due process provided due process has already been accorded in the tribunal of first instance.”

See 12 Am. Jur., Section 638, pages 327-328; see, also, State of Ohio v. Edwards, 157 Oh St, page 175, 47 O. O. 122.

Therefore, even if the constitution here involved did not provide for any appeal from the decision of the membership affirming or rejecting a protest of an election, no valid objection could be ihade to the constitution on the ground that it violated due process of law. That being true plaintiffs cannot be heard to complain against the provisions of a constitution which determine and prescribe the manner in which such an appeal is to be taken. Nor that the constitution fails to make provision for staying of proceedings pending an appeal.

The pleadings do not state, nor can it be inferred therefrom that the internal remedies provided for in the constitution fail to accorq to the members bound thereby “substantial or practical justice” or deny them the “protection of their democratic processes.”

Finding, as we do, from the pleadings that plaintiffs have failed to exhaust all remedies within the union and that such remedies are neither in violation of their fundamental rights, nor constitute a denial of due process of law, the defendants are entitled to a judgment in their favor upon such pleadings. Dissolution of the temporary restraining order heretofore issued therefore follows.


author: By KLOEB, District Judge.

text:
    McGLONE v. GOMPERT et.
    United States District Court N. D. Ohio, W. D.
    Civ. No. 6849.
    Decided June 12, 1953.
    Robert B. Gosline, Shumaker, Loop & Kendrick, Toledo, for plaintiff.
    Young & Young, Norwalk, Leo W. Kenny, Fremont, for defendants.
   OPINION

By KLOEB, District Judge.

This is an action for specific performance of an alleged agreement to make wills in favor of plaintiff or, in the alternative, for damages for breach of the alleged agreement.

The complaint in this case was filed on July 16, 1952. Plain- ' tiff is a citizen of the state of Illinois and defendants are citizens of the state of Ohio. Diversity of citizenship is, therefore, the ground for jurisdiction of this court.

Plaintiff alleges that she is the daughter of Otto H. Lantz, deceased, and the stepdaughter of Martha A. Lantz, deceased, who was the second wife of Otto H. Lantz.

Defendant Urban Gompert is the executor of the estate of Martha A. Lantz, having been duly appointed and qualified by the Probate Court of Sandusky county, Fremont, Ohio. Defendant Clara Gompert is the sole legatee and devisee of the estate of Martha A. Lantz under the last will and testament of the deceased. The defendant Urban Gompert, as an individual, is the husband of the defendant Clara Gompert.

Plaintiff alleges that, on April 23, 1947, Otto H. Lantz and Martha A. Lantz entered into a contract for the benefit of plaintiff, whereby it was agreed that Otto would, by will, leave his entire estate to Martha, with the provision that if Martha predeceased him then his entire estate would pass under his will to plaintiff, Berniece L. McGlone; that Martha agreed that she would, by will, leave her entire estate to Otto, with the provision that if he should predecease her she would leave her entire estate, by will, to plaintiff Berniece; that, pursuant to said contract and agreement, and on the same day, April 23, 1947, at Lansing, Michigan, Otto and Martha executed mutual wills in which each left his or her entire estate to the other or, in the alternative, to Berniece if the other should predecease the surviving spouse; that subsequently, on August 14, 1949, Otto died; that his will was probated, his estate administered and all the assets thereof passed to Martha; that, on August 29, 1951, Martha, in violation of the contract, executed a second will by which she revoked her will of April 23, 1947 and devised and bequeathed all of her estate to defendant, her sister, Clara Gompert; that, on October 12, 1951, Martha died a resident of Fremont, Sandusky county, Ohio.

Amended answers were filed by the defendants in due course.

On November 10, 1952, defendant Urban Gompert, as executor, propounded certain interrogatories of plaintiff. Interrogatory No. 1 is as follows:

“State whether the alleged contract referred to in the complaint was oral or in writing.”

On November 24, plaintiff answered the interrogatories and the answer of interrogatory No. 1 was as follows:

“The contract referred to in the complaint was an oral contract later reduced to writing by the execution of mutua] wills by Otto H. Lantz and Martha A. Lantz in Lansing, Michigan, on April 23, 1947.”

On December 4, the depositions of Harry D. Hubbard, Esquire, who was the attorney who drafted the wills for Otto and Martha in Lansing, Michigan, and of Mrs. William Noonan, who was the stenographer in'the office of Mr. Hubbard, were filed.

On December 8, defendants moved the court for summary judgment. A memorandum in support of the motion was duly filed, a memorandum in opposition thereto was filed by plaintiff, and a reply memorandum was filed by defendants.

On December 30, the depositions of Urban and Clara Gompert were filed and, on February 2 and February 20, 1953, depositions of Mary Jane Krug, a cousin of plaintiff, and of Helen Snyder, an aunt of plaintiff, and of John J. McGlone, husband of plaintiff, and the deposition of plaintiff herself were filed.

Copies of the wills of Otto and Martha and of the second will of Martha are attached to the depositions.

On page 10 of the brief of plaintiff opposing defendants' motion for summary judgment, we find the following:

“As has been pointed out before, the defense of the statute of frauds is not made by either of the amended answers. However, to avoid the necessity of awaiting the filing of an amended answer to renew the motion for summary judgment, we believe that it is permissible and appropriate for the court to consider this defense in the same manner as if it had been pleaded.”

The answers to the interrogatories and the depositions are submitted to the court for consideration in connection with the motion for summary judgment.

It appears that Otto and Martha had both been married prior to their marriage in the year 1926; that plaintiff Berniece was the issue of the first marriage of Otto; that Martha’s only child by her first marriage had died prior to 1926; that, in the year 1926, Otto and Martha were married and upon their marriage established their home in Toledo, Ohio, and that there were no children as the issue of this marriage; that Otto was a structural engineer engaged chiefly in the business of drafting for construction purposes, and that the depression beginning in the fall of 1929 was unkind to him in that he lost his worldly possessions as well as his position as an engineer; that, during the depression years, Otto and Martha visited frequently with the defendants in Fremont, Ohio, and the defendants gave them some material assistance while Otto was out of work; that thereafter Otto and Martha moved to Lansing, Michigan, where he obtained a new position arid began to acquire some money, bonds and real estate; that he was the owner of an interest in certain real estate which he had inherited at Massillon, Ohio; that, on April 23, 1947, Otto and Martha appeared at the office of Harry D. Hubbard, attorney at law, in Lansing, Michigan, for the purpose of making their wills; that in the will of Otto he provided in item second thereof that Martha should have the life use and income of the garage building in Massillon, Ohio, so long as she remained the widow of Otto, but upon her death or remarriage then all interest in the garage was to pass to Berniece; that under item third all the rest and residue of his estate was to pass to Martha, and under item fourth of the will was the provision that if Martha should predecease him then all of his property was to pass to Berniece. In the will of Martha, she provided in item second thereof that all of her property at the time of her death should become the property of her husband Otto, and in item third she provided that if Otto should predecease her then she devised and bequeathed all of her estate to her beloved daughter Berniece.

Nowhere in these wills of April 23, 1947 is any mention made or is there any reference to any contract or agreement to make these wills, nor is mention made in either of the wills of the making or the existence, or the contents of the other will; neither will makes reference to the other.

Plaintiff’s position is set forth on page 6 of her brief opposing defendant’s motion for summary judgment. We And there the following:

“The circumstances surrounding the execution of the mutual wills of Otto H. Lantz and Martha A. Lantz establish a contract to make mutual wills leaving all property to the plaintiff, Berniece L. McGlone, which contract was partially performed by the execution of these wills.”

On page 10 of the deposition of Harry D. Hubbard, attorney at law, he attempts to set forth the conversation that occurred between Otto and Martha and himself as their attorney at the time that he drafted the wills. In answer to the question as to what conversation took place between the three of them, he replied:

“I discussed with them the parcels of property, or the various pieces of property they owned. One of them was an undivided interest in a garage property in Massillon, Ohio, which Mr. Lantz had an interest in They told me that they wanted their wills drawn alike, that they both wanted their property — or the survivor of the two of them — that their property go to the daughter of Mr. Lantz and the stepdaughter of Mrs. Lantz. The discussion was that whatever the survivor of them had left, that she was to have this property, and I was to draw the wills pursuant to that understanding between them, which I proceeded to do.
“They were very much in agreement. The wills were drawn with the complete understanding, agreement, and direcction of them, in the presence of each other.”

In the depositions of Mary Jane Krug, Helen Snyder and John J. McGlone, they recite conversations had with Martha late in the year 1949, and shortly after the death of Otto, in which they say that Martha wanted them to know that she and Otto had mutually agreed to have their property go to Berniece on their deaths.

Do the circumstances surrounding the execution of the wills of Otto and Martha establish a contract to make mutual and irrevocable wills leaving all property to the plaintiff Berniece under admissible evidence in this case?

In 32 O. Jur., at page 225, we find the following:

“Sec. 18. Evidence. — It is well” settled that matters of evidence are matters of remedy, and it follows that the law of the forum will determine the admissibility, competency, quality and degree of evidence.” (There follows numerous citations of Ohio authorities, including the Supreme Court of Ohio.)

Sec. 11494 GC (§2317.02 R. C.), reads, in part, as follows:

“Privileged communications and acts. — The following persons shall not testify in certain respects:
“1. An attorney, concerning a communication made to him by his client in that relation, or his advice to his client; * * *.”

In the case of Emley, Exrx. v. Selepchak, 76 Oh Ap 257, at page 262, 31 O. O. 558, 63 N. E. 2d, 919, 922, we find the following:

“Another exception, based upon the same principle of confidentiality, is ‘when the same attorney acts for two parties having a common interest, and each party communicates with him. Here the communications are clearly privileged from disclosure at the instance of a third person. Yet they are not privileged in a controversy between the two original parties, inasmuch as the common interest and employment forbade concealment by either from the other * * *: VIII Wigmore on Evidence, 3d Ed., Section 2312.”

We conclude that the testimony of attorney Hubbard concerning the communications had between himself and his clients Otto and Martha are privileged, and that they are not admissible at the behest of a third party, in this case plaintiff Berniece L. McGlone.

Sec. 10504-3a GC (§2107.04 R. C.) reads as follows:

“Agreement enforceable, when. — No agreement to make a will or to make a devise or bequest by will shall be enforceable unless such agreement is in writing, signed by the party making it or by some other person by his express direction, in which latter case the instrument must be subscribed by two or more competent witnesses who heard such party acknowledge that it was so signed by his direction.” (Eff. Sept. 2, 1935.)

In the case of Snyder v. Warde, Admx., 151 Oh St, page 426, 39 O. O. 253, 86 N. E. 2d, 489, decided May 25, 1949, paragraph 1 of the syllabus reads as follows:

“An oral contract to make a will is unenforcible by virtue of §10504-3a GC (§2107.04 R. C.), and payment of consideration by one in whose favor the contract is made, whether that payment consists of money or pecuniarily compensable services, will not remove such a contract from the operation of the section.”

In the case of Sherman v. Johnson, 159 Oh St 209, 50 O. O. 257, 112 N. E. 2d, 326, 328, decided April 22, 1953, paragraph 2 of the syllabus reads as follows:

“Where a writing does not contain words which can be reasonably construed as words of promise or agreement or as an indication of any contract or agreement, such writing cannot be a memorandum or note of any agreement within the meaning of §8621 GC (§1335.05 R. C.), or an agreement in writing within the meaning of §10504-3a GC (§2107.04 R. C.).”

Paragraph 4 of the syllabus reads as follows:

“By virtue of §10504-3a GC (§2107.04 R. C.), an agreement to make a will or to make a devise or bequest by will is not enforcible under any circumstances unless it is in writing. (Paragraph one of the syllabus in Snyder v. Warde, Admx., 151 Oh St 426, 39 O. O. 253, 86 N. E. 2d, 489, approved and followed. Paragraph two of the syllabus in Ayres v. Cook, 140 Oh St 281, 23 O. O. 491, 43 N. E. 2d, 287, so far as it refers to §10504-3a GC [§2107.04 R. C.] overruled.)”

Even assuming the testimony of the witness Hubbard to be admissible, the alleged contract or agreement in this case, being an oral one, is not enforcible under the provisions of §10504-3a GC (§2107.04 R. C.).

There has been much indiscriminate reference, by counsel in this case, to a so-called “mutual will” and to a “joint will” or a “joint and mutual will” and many authorities have been cited to the court that involve a joint will of husband and wife or a joint and mutual will. Unquestionably, there is more likelihood of discovering a contract or agreement between a husband and wife in a joint and mutual will than in separate wills. However, we are not here dealing with a joint will or a joint and mutual will. We are dealing with simultaneous or concurrently executed wills of husband and wife that were not wholly identical in their nature.

In the case of Flower v. Flower, 32 Oh Ap 350, 166 N. E. 914, in paragraph 2 of the syllabus we find the following:

“Although provisions of mutual wills and subsequent circumstances may be such that contract to make mutual wills must be conclusively inferred, mere fact that wills are executed concurrently with full knowledge of their contents on part of testators will not be sufficient to imply such a contract.”

On page 351 of 32 Oh Ap, on page 914 of 166 N. E. of the opinion by Williams, Judge, we find the following:

«<* * * There is, however, no other proof whatever of the existence of an agreement between the parties in regard to the making of such wills, and neither will makes any reference to the other.”

It is to be noted that this case was decided on December 10, 1928, about seven years before the enactment of §10504-3a GC (§2107.04 R. C.).

Continuing on page 351 of 32 Oh Ap, on page 914 of 166 N. E., we find the following:

“The husband, George Flower, died before his wife, and she made another last will and testament by which she revoked the one above referred to previously made by her. The contention of the plaintiff is that there is an implied contract between the two testators to leave their property to each other.
“The provisions of mutual wills and the surrounding circumstances may be such that a contract to make mutual wills must be conclusively inferred. Doyle v. Fischer, Exr., 183 Wis., 599, 198 N. W. 763, 33 A. L. R. 733. The mere fact, however, that wills are executed concurrently, with full knowledge of their contents on the part of the testators, will not be sufficient to imply such a contract. Edson, Exrx. v. Parsons, Exr., 155 N. Y., 555, 50 N. E. 263; Coveney v. Conlin, 20 App. D. C., 303.”

Even were §10504-3a GC (§2107.04 R. C.), not in existence, we find nothing in these simultaneous and concurrently executed wills of Otto and Martha nor in the circumstances surrounding the execution of the wills from which a contract to make irrevocable wills could be inferred.

In the case of Kenney v. Kenney, Admrx., 45 Oh Ap 249, 186 N. E. 853, decided January 9, 1933, paragraph 2 of the syllabus reads as follows:

“Execution of mutual wills by brothers, conveying portions of their property to each other, held insufficient alone to establish contract to make mutual wills, that would satisfy statute of frauds (§8617 et seq, GC [§1335.01 R. C.]).”

Sec 8617 et seq, GC, were made applicable to wills by the Ohio courts prior to the enactment of §10504-3a GC.

Turning to Supreme Court decisions in the state of Michigan, where apparently no section comparable to §10504-3a GC (§2107.04 R. C.), is in effect, we find the case of Keasey v. Engles, 259 Mich., 178, 242 N. W. 878. On page 879 of 242 N. W., we find the following:

“The rather common expression that a joint and mutual will is irrevocable by the survivor, after the death of one party to it, is not technically and legally correct. It is the contract to make the will, not the will itself, which is irrevocable. * * *”

In the case of Elmer v. Elmer, 271 Mich., 517, 260 N. W. 759, at page 761 we find the following:

“We agree with the trial court in his finding when he said: ‘Therefore, this court is of the belief that the proofs merely establish the fact that there was a desire — you might say a mutual agreement — between them at the time, that they then wished their son to have this property when they were Doth through with it. But there is not sufficient evidence in my judgment to establish by any slight preponderance any agreement between Mr. and Mrs. Elmer that neither would change the wills that were made without the consent of the other. And it is necessary to establish that in order for the plaintiff to prevail.’ ”

In the case before us we find no hint or suggestion in the wills of Otto and Martha, or even in the testimony of attorney Hubbard, if it were admissible, that indicates any desire or agreement upon the part of Otto and Martha to make irrevocable wills.

In the case of Schondelmayer v. Schondelmayer, 320 Mich., 565, 31 N. W. 2d 721, at page 723, we find the following:

“* * * In Eicholtz v. Grunewald, 313 Mich., 666, 21 N. W. 2d 914, 918, we said:
“ ‘However, the mere fact alone that two identical wills are made by husband and wife does not suffice to establish an oral agreement, to make mutual reciprocal wills, each to be binding on the other * * *.’
“ ‘ “It is contract to make joint and mutual will, not will itself, that is irrevocable by survivor after death of one party to it.” Keasey v. Engles (syllabus) 259 Mich., 178, 242 N. W. 878.’ ”

In the case of Paris v. Scott, 267 Mich., 400, 255 N. W. 216, we find the following:

“In 1929 each made a will leaving all his estate to the other and executed deed of his real estate to the other.- The wills and deeds were kept in a safety deposit box. The scrivener testified that they told him they had agreed to do this and that the survivor was to leave his remaining estate to plaintiff. There was further testimony that, after the will was made, one or the other told friends they had agreed to will their property to each other and the survivor was to leave the residue to plaintiff.” 255 N. W. at page 216.
"The testimony preponderates that Fred and Alice Paris intended plaintiff to take their estate on death of the survivor. But the question is whether they contracted to that effect. The gist of the action is that a binding contract was made between them so that failure of Fred to make the intended will was a fraud upon Alice, who had performad her part of the agreement.” 255 N. W. at page 217.
“Without attacking the credibility of any of the witnesses, the case presents persuasive indices that the conversations relied upon were merely expressions of intention rather than of a contract which Fred and Alice Paris considered binding on them.” 255 N. W. at page 217.

We are of the opinion that the testimony of the witnesses Mary Jane Krug, Helen Snyder and John J. McGlone concerning conversations had with Martha shortly after the death of her husband, Otto, are not admissible to prove a contract to make a will under the provisions of §10504-3a GC (§2107.04 R. C.), but even were such section of the law not in existence, we would receive such testimony with extreme caution and be inclined to look upon it as reciting mere expressions of opinion upon the part of Martha and not as going to the heart of the question of whether a contract was actually made between Otto and Martha to make irrevocable wills. In the uncontroverted'testimony of Clara and Urban Gompert, we find ample reasons to cause Martha to revoke her former will in the interest of her own welfare and physical well being during the remaining years of her life.

The motion for summary judgment is sustained and the complaint is dismissed.

In view of the detailed opinion herein rendered, findings of fact and conclusions of law may be dispensed .with.

An order may be drawn accordingly.