text:
    HOCK, In Re: Neglected.
    Ohio Appeals, First District, Hamilton County.
    No. 6893.
    Decided December 15, 1947.

      Taft, Stettinius & Hollister, Cincinnati, for petitioner, appellee
    Carson Hoy, Pros. Atty., Thomas Stueve, Asst. Pros. Atty.,. Cincinnati.
    Aaron T. Grad, Cincinnati, Fogle & Fogle, Marietta, for respondents-appellants.
   OPINION

By ROSS, PJ.:

This is an appeal upon questions of law from a final judgment of the Court of Common Pleas of Hamilton County,. Division of Domestic Relations. The notice of appeal was-filed by “Pete Hock, a minor, by Pietro Muscari, his father and next friend, and Pietro Muscari and Jane Muscari, a minor, the latter by Pietro Muscari, her husband and next-friend, respondents-appellants.”

The judgment from which this appeal upon questions of .law was taken is in the following terms:

“This day appeared in open Court Pete Hock, alleged by •petition heretofore filed herein to be a neglected person, and the Court, after hearing the testimony and after full investigation and consideration, finds that the allegations of said petition are true and that the said Pete Hock, a boy, of the age of 1 year, on or about the 22nd day of July, 1946, is in fact neglected.

“It is therefore ordered and adjudged by the Court that the said Pete Hock be and he is hereby permanently committed to the care, custody, maintenance and control of The Children’s Home, Cincinnati, O. and to any person or persons whom it may select in accordance with said act, to remain under the care and control of said The Children’s Home, Cincinnati, O. and subject to its rules until he arrives at the age of twenty-one years, or until discharged by this Court or by due process of law.

“It is further ordered by the Court that the said Pete Hock shall be immediately placed in custody of Frederick A. Breyer to be by him conveyed to the said The Children’s Home, Cincinnati, O. and that a commitment, in accordance with the judgment herein, be issued and delivered to the said Frederick A. Breyer to be by him returned and filed with this Court.”

The entry embodying this judgment is a printed form, the spaces containing pen and ink insertions and even stamps.

This judgment was rendered at the termination of a hearing .initiated by the filing of a petition, the body of which is in the following terms:

“Your petitioner, Duana W. Christy, a resident of said County, :and a responsible person, respectfully represents unto your Honor that Pete Hock, a boy of the age of 1 year on or about the 22nd day of July, 1946, now within said County, is a neglected person, in this: that the said Pete Hock lacks proper parental care by reason of the faults and habits of his parent, and that the said Pete Hock is now in the custody of Duane Christy, Children’s Home, Cincinnati, O.

“Your petitioner therefore prays this Honorable Court to inquire into the alleged neglect of said Pete Hock, and of the truth of the matter herein contained in pursuance of the statute in such case made and provided, and make such order in the premises as to this Honorable Court may seem meet ;and proper.”

The petition is also in a printed form, with pen and ink insertions.

It will be noted that the petition charges the neglect of a parent, which is not stated.

No motion to dismiss this appeal has been filed, but it is, suggested by the Prosecuting Attorney of Hamilton County, who orally and in his brief states he represents the trial court,, that the foregoing judgment does not constitute a final order from which an appeal on questions of law may be taken to the Court of Appeals. The basis for this contention is the absence of language in §1639-51 GC. It is asserted that the General Assembly has failed to provide for an appeal upon questions of law from a judgment of the “Juvenile Court” in actions, such as the one herein involved.

In 1944, the Constitution of Ohio was amended, giving the General Assembly power to fix the jurisdiction of the Court of Appeals in the review of judgments of courts of record. The General Assembly has' since the effective date of such constitutional amendment enacted no .legislation affecting the jurisdiction of this Court in the review of the instant judgment. Such jurisdiction, therefore, must be predicated upon the jurisdiction of this Court under the Constitution prior to such amendment; the provision of the 1944 amendment to the Constitution being merely permissive, and such amendment retaining the jurisdiction in review as before existent. Youngstown M. Ry. Co. v. Youngstown, 147 Oh St, 221.

It is to be noted that after the 1912 amendment of Art. IV, Section 6 of the Ohio Constitution, prior to the enactment of the modification of the Appellate Code, (§12223-1, et seq.) effective January 1, 1936, the wqrd “appeal” denoted, as far as the Court of Appeals was concerned, a trial de novo limited to the review of a chancery case, now under such amended procedure styled an appeal upon questions of law and fact. While what is now termed an appeal upon questions of law was effected by the filing of a petition in error.

The Supreme Court has often iterated the pronouncement that the jurisdiction of the Court of Appeals to review judgments of courts of record, whether upon petition in error or appeals on questions of law was fixed by the constitution, Art. IV, Section 6, and so, beyond the power of the legislature to increase or diminish. State, ex rel. v. Wallace, 107 Oh St, 557. See, also, Werner v. Rowley, 129 Oh St, 15, 18.

It is immaterial, therefore, whether the section of the General Code noted fails to give the Court of Appeals jurisdiction to review the instant judgment or not, and even if that section, or some other section enacted before the effective date of the 1944 amendment of Article IV, Section 6 of the Ohio Constitution, had prohibited a review of such a judgment as is here considered, no impairment of the full jurisdiction' to review such judgment under the provisions of Article IV, Section 6 before amendment could have existed.

The judgment here considered is a final judgment of a court of record of the State of Ohio, and as such is subject to review by this Court upon questions of law. It is not subject to review upon questions of law and fact, simply because it is not a decree in a chancery case.

The contention of the Prosecuting Attorney contained in his suggestion that this Court has no jurisdiction to review the instant judgment upon questions of law must, therefore, fail. If such contention is to be considered as a motion to dismiss this appeal, it is overruled.

By the proceeding here under consideration, the “petitioner” seeks to have a judicial determination that the minor involved, a child one year old, is a neglected person, as defined in §1639-3 GC, which provides in part:

“For the purpose of this chapter the words 'neglected child' includes any child:

“1. Who is abandoned by its parents, guardian or custodian.

“2. Who lacks proper parental care by reason of the faults or habits of its parents, guardian or custodian.”

The child in question is the son of the. appellants, Pietro Muscari and Jane Muscari, husband and wife, legally married, with an established and fully adequate residence and home in the City of Marietta, in which the parents of the child live, in a present status beyond any criticism, under ideal conditions, and which home is maintained by the father of the child by virtue of a more than competent income which he receives from an employment as a highly skilled electronic engineer, both parents having experienced a more than usual education, the father holding degrees of Bachelor and Master of Science.

Now it appears from the “petition” that the particular specification mentioned in §1639-3 GC, upon which the charges against the parent are based is paragraph 2, for it is stated that the child in question “lacks proper parental care by reason of the faults or habits of its parents.”

It clearly appears from the evidence, as has been stated, that the present status of this married couple in their home in Marietta is ideal.

It also clearly appears from the evidence that the petitioner has resorted to facts antedating the present status in an attempt to sustain his charges.

This whole matter might be disposed of with the brief conclusion that no such incident or fact now has any* effect upon the status of these parents or in any way prevents their home from being an ideal place for this child to be reared, and that no fault or habit of either parent can now cause a lack of proper parental care. Deference to the trial court and counsel requires a more detailed statement of the facts, upon which such conclusion is based.

The father of the child was born June 24, 1904 in this Country, taken to Italy when one year of age, and returned here when aged 13 in 1917. By industry and self-denial, he secured a thorough education, both general and technical, permitting him to hold continuous responsible positions as an electronic engineer. He was married and had five children.

In 1944, the father fell in love with his present wife, the mother of the child here involved. As a result of the meretricious relationship of these parents the child in question was born July 22, 1945. Jane Muscari (nee Hock) the mother, was at that time almost seventeen years of age, having been born August 19, 1928. Pietro Muscari was 41 years of age.

No one, including these parents, attempts to justify the conduct of either.

It is apparent that the situation thus presented produced a most complicated problem for all those concerned. Obviously in view of the change in the affections of the father, his first wife was entitled to and did secure a divorce on June 19, 1945. Prior to filing of the petition for divorce the father signed over to his first wife all of his real property and then and continuously thereafter made provision for the education, maintenance, and support of his children. It appears from the evidence that some time prior to the birth of this child, Pietro and Jane, mistakingly seeing no other alternative available, decided to leave Marietta. After an absence of some weeks, however, they returned. The father of Jane sent her to Florida and then to Maple Knoll Home in Cincinnati, where she gave birth to the infant “Pete”. The infant remained in the home and Jane was sent to Berkley, Michigan to complete her education.

Two things are apparent, the parents of this child earnestly desired to have it under their care, and the parents of Jane were determined to prevent this if possible. They refused to have it in their home and have steadily exerted themselves tin an effort to prevent the father securing its custody.

While Jane was in Berkley, Michigan, Pietro, the father, sought to obtain custody of his child through a writ of habeas corpus. Jane resisted this action, claiming the child for herself, and Pietro was denied a writ. It appears that this strange action on the part of Jane was caused by information given her that Pietro had remarried. This information was false, but the effects of this false information was to produce a temporary estrangement between Pietro and Jane, which was dissipated immediately upon Jane’s discovery of the truth. With this exception, the relationship of Pietro and Jane has been continuously characterized by affection and his regard. With this exception, they have continuously had one desire, to-wit: to have the joint custody, care, and love of their child. And even this instance of the habeas corpus proceeding indicates a separate desire for the care of the infant.

Another result of the false information given Jane was to cause her to sign a surrender of the child. This is not in evidence, and is admitted by all parties to be of no consequence, in that any authority or waiver represented by the instrument was later unequivocally revoked when Jane became advised of the truth as to Pietro. Jane and Pietro were married in Oakland, Maryland (a state not requiring waiver by parents of a minor) on April 26, 1947, established a home in Marietta, and have continued to reside there in perfect, harmony. It appears that Jane is again to become a mother in the coming year.

The parents of the infant Pete requested The Children’s Home to give them custody of their child, tendering the sum of $600.00 to cover the cost of its care in that institution. Their request was refused and the money returned, upon the basis of the surrender executed by Jane, although previously revoked in a letter to the home. The parents were also notified that the baby had been placed in an adoptive home.

The conflicting interests centering about this child thus, became apparent. Through .the technicality of this proceeding appears the contest of foster parents versus actual, natural parents.

Whether this situation be considered from such technical viewpoint or from a position dictated by considerations of' humanity, or again from the standpoint of the best interests of the child, which in truth is the essential consideration, it seems that the claim of the natural parents should prevail. This conclusion is contrary to the finding of the trial court which, however, must be sustained, if it is to stand, by evidence indicating that now, by reason of “faults or habits” these natural parents should not have their own child. It is the present status of these parents that is under consideration.

It has been suggested that if these parents are not fit to have the child, the subject of this proceeding, then their child to be born in the coming year, and all other children born to them, should be instantly taken away for the same reason. At first this suggestion bears the ear marks of absurdity, and yet, upon mature consideration, why is it not a fair statement? If because of their past dereliction, now wholly dissipated by a status recognized by society as legal and proper they may not have this child, why should they ever be permitted to retain the custody of their children?

What of the child? That its foster parents — when a legal adoption is permitted * (no adoption proceeding having been yet accomplished) may give the child a good home and properly rear it, may be admitted. Either home for the next few years would make little difference in the child’s welfare. But what of the future?

Sooner or later the child will know that it is an adopted child, and even if that knowledge is gained in later years, it can never occupy the same status or have the same comfortable feeling of normalcy which is enjoyed by those children who grow up to adult age in the home of their own parents.

By the judgment of the trial court, a permanent continuing stigma has been placed upon its parents. It is a matter of fair speculation, whether or not when this child reaches adult age and become aware of all the facts, it will be grateful to any court which has so stigmatized its parents and removed it from natural love and affection which it would have received had it been permitted to go to them upon their request made at the earliest moment they were permitted to offer it a suitable home.

The natural parents of any child' have a predominant right to its custody and care, which can only be abrogated when it clearly appears that they have forfeited that right by conduct which will impair the present and future welfare of their child. It cannot be supposed that the General Assembly intended by its enactment of §1639-3 GC, to decree otherwise.

A human life is the subject of consideration here, not merely the temporary custody of a baby. What is done in this proceeding permanently affects the whole course of such human life. A grave and serious step in the course of that life is here taken not lightly to be accomplished by the use of printed 'forms, or hasty routine.

This is not a proceeding in which punishment is to be meted to the adult parents for a grave dereliction of social obligation.

This child is to be placed in its norma] environment under the continued care of its natural parents, or it is to be separated therefrom, and by the irrevocable decree of a court of justice, presented as a gift to those who though capable and able to furnish it home and education, still now and always will be but foster parents, with all the limitation such title connotes.

It is difficult to conceive of any justiciable subject upon which courts may be required to pass which assumes the grave importance incident to the determination of what shall be the environment of a human life, especially when such determination is made shortly after such life has come into existence. The decree of disposition may result in a happy life of service, or it may be permanently calamitous in its effect upon all concerned. The function of adjudication of the issues thus involved places a heavy burden upon the tribunals appointed to effect their determination.

It is the conclusion of this Court that there is no evidence in the record sustaining a finding that the parents of this child are not fit and suitable to be its natural guardians and custodians, or that any fault of which they might have been guilty in the past has present efficacy to cause their child to be the subject of legal neglect, as defined by the statutes of this state.

The petition should have been dismissed by the trial court for such complete failure of proof, and the judgment which the trial court should have rendered is now rendered by this court and the petition is dismissed.

ROSS and HILDEBRANT, JJ, concur in syllabus, opinion & judgment.

MATTHEWS, PJ, concurs in syllabus <Sz judgment.


source: Caselaw Access Project

author: By McClelland, j.

license: Public Domain

text:
    THURN, Estate of In Re; THURN, Plaintiff, v. GOETZ et, Defendants.
    Probate Court, Franklin County.
    No. 125047.
    Binns & Tresemer, Columbus, on behalf of Katherine Jacobs and Alois H. Thurn.
    M. L. Bigger, Columbus, on behalf of Francis L. Goetz.
   OPINION

By McClelland, j.

This matter comes before this Court upon the Petition, filed herein by the Executor of the will of Alois Thurn, for a construction of the will of the deceased, the Answer of Alois H. Thurn and Katherine C. Jacobs, together with evidence presented at the hearing of the matter.

Alois Thurn died on June 28, 1947, leaving a last will and testament and codicil, both of which were admitted to probate on the 5th day of July 1947. The will was executed on the 9th day of September, 1937, and the codicil above named was executed on the 24th day of December, 1946. The will contains a number of items, one of which bequeathes the sum of $200.00 to a village in Wurtemburg, Germany, in another he gives the sum of $200.00 to St. Anthony’s Hospital, in another he gives to Reverend Edmund A. Burkley, the sum of $1000.00, for the benefit of St. Mary’s Catholic Church, and $100.00 to St. Vincent’s Orphan Asylum. He also gives to each of his grandchildren who may be living at the time of his death, each $100.00.

Item Five of his will contains the following language:

“1 give and bequeath unto Mary Goetz, my wife’s niece, the sum of One Thousand ($1000.00) Dollars; and in the event she should not survive me, then I give and bequeath the same to her children, share and share alike.”

Item Eight of the will confirms a gift which he had prior thereto made to his sons Alois H. Thurn and Herman A. Thurn.

By Item Nine of his will he gives to his two sons Alois H. Thurn and Herman A. Thurn, and to his daughter Katherine Jacob, the sum of $2000.00.

By Item Ten of his will he gives the residue of his estate to Mary 'Thurn, his widow, for and during her natural life, and, upon her death, he gives and bequeathes the residue to his three children, naming them, Katherine Jacob, Alois H. Thurn and Herman A. Thurn, share and share alike.

Item Eleven of his will contains the following language:

“I hereby direct and declare that in the event any of my children should attempt either directly or indirectly, to contest the validity of this my will, or if any one of my aforesaid children should present any claim against my estate based upon alleged services rendered me by any of them, or based upon any claim of whatsoever kind, nature or description, then and in such event any devise or bequest herein made to such child contesting or attempting to contest my will, as aforesaid, or presenting any claim against my estate of whatsoever kind, nature or description, shall be and is hereby can-celled and to be of no effect to the same extent as if such child had not been mentioned .in this my will.”

The codicil which was executed on the 24th day of December, 1946, contains the following language in Item Five thereof;

“It is my will, and I hereby give and bequeath to Mary Goetz, my wife’s niece, of Columbus, Ohio, the sum of Five Thousand Dollars, ($5000.00) in consideration and in appreciation of her faithful services; and in the event she should not survive me, then I give and bequeath the same to her children, share and share alike. The foregoing bequest to Mary Goetz is hereby made as an addition to the bequest to her contained in Item V of said will, and is to be deemed and taken as if originally inserted in Item V of said will.”

The petition by which this matter is brought before the Court recites that Mary Goetz, one of the specific legatees in the will and codicil, died intestate on March 7, 1948, leaving certain persons as her heirs at law who are now parties to this action, and that Francis L. Goetz has been appointed administrator of the estate of Mary Goetz, deceased. The petition further recites that on March 16, 1948, the defendants, Francis L. Goetz, Mary Catherine Goetz, and Sister M. Cecilia Stella, (Loretta Goetz), representing themselves to be the only living heirs and legal representatives of Mary Goetz, deceased, filed an action in the Common Pleas Court against KacherineJacobs, Alois H. Thurn, Executor of the Estate of Alois Thurn, deceased, and Alois H. Thurn, Administrator of the Estate of Herman Thurn, deceased, wherein they seek specific performance of a certain alleged contract, and for alternative relief in damages in ease the Court finds they are not entitled to the equitable relief prayed for.

The petition further recites that the same persons, on May 5, 1948, filed a claim with the executor for the sum of $75,000.00 damages for alleged premature death of Mary Goetz, caused by extraordinary services rendered Alois Thurn, during his. lifetime, and for neglect and failure to carry out ah agreement, as between Mary Goetz and the deceased Alois Thurn. Said agreement was disallowed, and the same parties on July-6, 1948, filed a suit in the Common Pleas Court of Franklin County, Ohio, on said claim.

The plaintiff claims that he is in doubt as to the true and. proper construction of said last will and testament and codicil, and as to the proper procedure thereunder, and asks the instruction of the Court as to whether said bequests to Mary Goetz are, pursuant to the provisions of said Item Eleven of said will, cancelled by the aforesaid conduct of defendants, in prosecuting claims in the Common Pleas Court against the Estate of Alois Thurn, deceased, and if-not so cancelled, then as to whether payment of said bequests to Mary Goetz, by such Executor, and acceptance thereof by her administrator would constitute satisfaction to the Estate of Mary Goetz and acquittance to the Estate of said Alois Thurn.

Upon a hearing of this matter it developed that counsel for the Executor of the will of Alois Thurn, contends that there is a latent ambiguity in the will and that by reason thereof it is necessary for the Court to determine whether or not the testator considered Mary Goetz as one of his children, and, if so, whether she is subject to the punitive provisions of his will.

The one cardinal principle in the construction of wills is that the Court should, if possible, put himself in the position of the testator at the time of the execution of the will, in order to ascertain his intent. If the language of the will is plain and unambiguous, then the Court is not permitted to

receive any testimony in order to ascertain the intention of the testator.

At Page 612 of Vol. 41 O. Jur, we find a definition of patent and latent ambiguity, as follows:

“A patent ambiguity is one which appears on. the face of the language or the instrument, for example, when the expressions of the language or instrument are so defective that a court which is obliged to place a construction upon them cannot, placing itself in the situation of the one making them, ascertain therefrom his intention.

A latent ambiguity is one which does not appear on the face of the language used, or the instrument being considered; it exists when the words apply equally well to two or moré different subjects or things. Such an ambiguity arises when the will contains a misdescription of the object or subject, as when there is not such person or thing in existence, or, if in existence, the person is not the one intended, or the thing does not belong to the testator.”

At Section 1623, page 650, Vol 4, Page on Wills, we find a discussion of patent and latent ambiguity, in which the author uses the following language:

“A patent ambiguity is one which is apparent upon face of an instrument, as where in wills the same tract is disposed of in different clauses to different individuals. A latent ambiguity is one which is not discoverable until extrinsic evidence is introduced to identify the beneficiaries or the property disposed of by the will, when it is developed by such evidence, either that the description in.the will is defective, or that it applies equally to two or more persons or things. This distinction has been repeatedly recognized by the courts, and many modern decisions say that extrinsic evidence is admissible to explain a latent ambiguity but not to explain a patent ambiguity. This form of stating the law of evidence is, to say the least, unfortunate. An examination of the adjudicated cases will show that even the courts which insist most strenuously upon the distinction admit evidence of the surrounding facts and circumstances which tend to put the court in the position of the testator. Indeed, from the nature of the case, no court can be safe, except in the most extreme and glaring cases, in holding that an apparent inconsistency upon the fact of the will is really an ambiguity before it has heard extrinsic evidence of these surrounding facts and eircumstances. It may easily happen that what appears to be, at first glance, an ambiguity is seen to be a disposition thoroughly consistent and harmonious when the court is one in the position of the testator. On the other hand, the courts, which say in general language that extrinsic evidence is admissible to explain an apparent ambiguity, recognize in actual practice a sharp distinction between the extrinsic evidence of the surrounding facts and circumstances, which they admit very freely, and evidence of testator’s intention direct, which they admit very sparingly.”

Then, further along in the same section, the author uses the following language:

“That the distinction is not founded upon sound principle can be seen from the fact that even the courts which have most frequently invoked it, regularly proceed, in deciding cases, so to explain the distinction between the patent and latent ambiguities as to eliminate it practically from the discussion, and instead use the distinction between evidence of testator’s intention direct and evidence of the surrounding facts and circumstances as the fundamental distinction to be observed. Some jurisdictions have abandoned the distinction between latent and patent ambiguities for purposes of determining questions as to admissibility of evidence, and hold that extrinsic evidence may be received to resolve either, the result sometimes being reached by statute, and it has been stated in at least one jurisdiction that extrinsic evidence, whether of surrounding circumstances or of declarations of testator, is admissible only when there is an ambiguity ón the face of the will.”

In the light of the foregoing statements, we go back now to examine the will of Alois Thurn. By Item Five of his will he refers to Mary Goetz as “my wife’s niece”. He does not refer to her as a child. Nor does he- refer to her children as his grandchildren.

In Item Eight of his will, he refers to Alois H. Thurn and Herman A. Thurn as his sons.

By Item Nine of his will, he refers to Alois H. Thurn and Herman A. Thurn as his sons, and to Katherine Jacobs as his daughter. Then in Item Ten of his will he provides that “subject to the foregoing provisions of his will, he devises all the rest of his property to his wife Mary Thurn, for and during natural life”. He then provides that upon her death he gives, devises and bequeathes the same to his three sons, naming them, to-wit: Katherine Jacobs, Alois H. Thurn and Herman T. Thurn, share and share alike.

Then in Item Eleven of his will, he provides that in the event any of my children should attempt either directly or indirectly to contest the validity of his will, or if any one of my aforesaid children should present any claim against my estate based upon alleged services rendered me by any of them, or based upon any claim of whatsoever kind, nature of description, then and in such event any devise or bequest herein made to such child, shall be and is hereby cancelled and to be of no effect to the same extent as if such child had not been mentioned in his will.

This Court has carefully examined the entire will and is frank to say there is no ambiguity on the face of the will.

It is the contention of counsel for the Executor that the circumstances existing at the time Mr. Thurn made his will would induce the Court to find that there is a latent ambiguity proven by such circumstances, and in support of that contention certain testimony was offered but which was objected to by counsel for the. administrator of the Estate of Mary Goetz. The Court received this testimony subject to consideration and later ruling. The Court has examined the transcript of that testimony and from a careful consideration of same the Court finds that there is no evidence in that testimony to the effect that Alois Thurn ever recognized Mary Goetz as one of his children.

We therefore hold that there is not only no patent ambiguity nor is there a latent ambiguity. The Court feels that the testimony proffered by the plaintiff should be considered, and, after consideration of same, the Court finds that it does not disclose a latent ambiguity.

It is therefore the opinion of this Court that Mary Goetz was not referred to or considered in the will of Alois Thurn as his child or to be considered as such. Neither she nor the person or persons who succeeded to her interest are subject to the punitive provisions of- his will by having presented a claim against his estate.

The next question which the Court is called upon to decide is whether or not the bequest made to Mary Goetz or her children by the will and codicil of Alois Thurn do cancel or pay the claims upon which suit has been brought in the Common Pleas Court. An excellent discussion of this phase of the law is contained at page 1076 and the following pages of Vol. 57, American Jurisprudence, the text of which we will not take the time to quote.

Another discussion of this same phase of the law is found in Vol. 86 A. L. R. at page 15, and the following pages. At page 15 we find the following statement by the author of that article:

“The rule that a legacy given by a debtor to his creditor equal to or exceeding the debt in amount is to be deemed a satisfaction of the debt, though well established, is regarded with great disfavor, and that the courts almost universally manifest a strong disinclination to enforce it. Consequently, very slight circumstances are considered sufficient to take a case out of its operation.”

Then at page 17 we find the Modern rule as follows:

“The dissatisfaction of the courts with the rule, and their disposition to evade its application, have given rise to what is sometimes spoken of as the modern rule — that a legacy shall not be deemed a satisfaction of a preexisting debt, unless it appears to have been the intention of the testator that it should so operate.”

This proposition has been followed by the Supreme Court of Ohio in the case of Lessee of Elizabeth Wormen v. William Teagarden, reported in the 2nd Oh St, page 380.

The Supreme Court has also adopted the same principle in its decision in the case of Bowen v. Bowen, 34 Oh St, page 179.

In the case of McNeil v. Pierce, 73 Oh St, page 7, in syllabus One thereof, contains the following language:

“1. A legacy reciting that it is “in consideration of her care for my invalid mother many years preceding her death, and also her care of my infant son” does not imply a debt but a bounty. It is not an acknowledgment of a legal obligation and when pleaded in an action, barred by the statute of limitations, to recover for such services, does not remove the bar of the statute.”

Upon an examination of this will it is our opinion that Alois Thurn did not recognize Mary Goetz as his creditor. He was simply expressing his appreciation for her services to him by providing a bequest of $1000.00, and also by providing a bequest of $5,000.00 by his codicil made on December 24, 1946. Had he recognized Mary Goetz as a creditor and mentioned the amount or approximate amount which he owed her, and had he referred to this amqunt as relation of debtor and creditor and then recited that the bequest was in payment of that obligation, the Court would be compelled then to sustain the contention of the plaintiff. But he did not so provide. The Court is compelled to take the language as it is found in the will. Inasmuch as Alois Thurn did not recognize Mary Goetz as a creditor, and did not provide that the bequest should be in payment of any existing obligations, we are compelled to hold that the bequests to Mary Goetz contained in the will and codicil are valid bequests and the Executor is directed to pay same.

As to admissibility of the pleadings in the case filed in the Common Pleas Court, the Court finds that they are not admissible in this proceeding and therefore sustains the objection to their introduction. An order may be drawn accordingly.


author: By SKEEL, PJ.

text:
    CRITERION SERVICE INC., Plaintiff-Appellee, v. EAST CLEVELAND (City), Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21334.
    Decided July 5, 1949
    Rocker & Schwartz, Cleveland, for plaintiff-appellee.
    E. A. Binyon, Cleveland, for defendant-appellant.
   OPINION

By SKEEL, PJ.

This appeal comes to this court on questions of law and fact from a judgment and decree for plaintiff in the common pleas court of Cuyahoga County.

The plaintiff is in the business of Outdoor Advertising. The manner in which it conducts such business is by leasing or otherwise acquiring the right to use wall space on the outside of buildings and then installing wall boards approximately four feet by seven and one-half feet thereon and posting upon such boards the advertisements of those who-contract for such services. The plaintiff had for a number of years conducted a part of its business in the City of East Cleveland having maintained approximately fifty boards upon, buildings within said city.

There are three Ordinances of the City of East Cleveland which control the right to erect and maintain billboards. Section 27 of the Building Code which requires that all billboards shall be constructed and maintained in conformity with Ordinance No. 963; Ordinance 963 in part providing the-manner in which all billboards shall be built and maintained, as also providing the owner or erector shall first obtain a, permit from the inspector of buildings. Ordinance No. 1575-which is the zoning ordinance of the City of East Cleveland which in part provides that advertising signs and billboards,, except for accessory uses, are excluded in U-3 Districts (retail, store districts) but permitted in U-4 (commercial) districts.

The plaintiff had maintained advertising boards of the-type above described upon buildings in U3 districts of the city for a number of years without procuring a permit as provided' by ordinance. The city ordered defendant to remove said, boards. Thereupon plaintiff offered to take out permits and pay whatever fee was by law imposed therefor but the city refused through its building inspecting department to issue-permits. To prevent the city from removing plaintiff’s boards, in the U3 districts this action was filed seeking a permanent, injunction.

Plaintiff’s petition, after alleging the foregoing facts, says:

“Plaintiff says that said ordinance insofar as it prohibits-such signs in U3 Districts is unreasonable, oppressive, burdensome, unlawful and void and constitutes a confiscation of' property and depriving plaintiff of its property without due process of law; that in the guise of regulations prohibits the exercise of a lawful and legitimate business in said city in violation of the Constitution of the United States and the State of Ohio.”

The answer of the defendant alleges that the City of East Cleveland has by ordinance No. 1575, established a zone plan for the city and alleges further that plaintiff’s petition does not state a good cause of action.

Upon issues joined, the court found for the plaintiff and restrained the defendant from interfering with plaintiff’s advertising boards located in the U3 districts.

This being an appeal on questions of law and fact we are not concerned with the results below but must look to the issues as presented by the pleadings and the evidence introduced in this court in support of or contradicting the claims of the parties. There are two preliminary questions:

Is injunction the proper remedy under the facts here presented, or is plaintiff’s remedy to be found in an action in mandamus?

It being admitted that the plaintiff did not follow out the provisions of the ordinances of East Cleveland wherein upon refusal of the building department to issue permits the applicant may take an appeal from such refusal to the board of zoning appeals and from an adverse ruling before such appeal board, a review is provided for before the City Commission, may the plaintiff seek redress in the court without first having complied with such administrative proceeding?

Upon these two claims of defendant we hold for the plaintiff. It is the claim of plaintiff that the zoning ordinance is unconstitutional and void as to its application to plaintiff’s business and that therefore it cannot be compelled to show an attempt to comply with the provisions of the ordinance. The cases cited by defendant are in support of circumstances where the plaintiff is seeking to compel the city to afford plaintiff the benefits of an ordinance. They are, therefore not in point upon the issues here presented. The plaintiff may seek relief by injunction against an ordinance which he claims to be unconstitutional and void without first complying with the administrative procedure provided for by such ordinance.

We come now to the question of whether or not the provisions of the zoning ordinance prohibiting advertising signs and billboards except as they may be displayed as an accessory use to the lawful business conducted upon the property in U3 districts under the zoning ordinance of the City of East Cleveland is unconstitutional in that they are “unreasonable, oppressive, burdensome, unlawful and void and constitute a confiscation of property and the depriving plaintiff of its property without due process of law.”

In Zoning Law & Practice, by Yokley, paragraph 35 at page 53 under the title “Presumption of Validity” we find the following:

“It must be borne in mind, however, that the strong presumption in favor of the validity of a legislative act likewise applies to municipal zoning ordinances.”

It is for the legislative authority of a city and not the courts to determine the text of regulations to be embodied within .the terms of a zoning ordinance. Only in the event that it is made to appear by clear and convincing proof that the terms of such ordinance are “unreasonable, oppressive and confiscatory” will a court intervene.

The right of the City of East Cleveland to pass a complete zoning ordinance is not questioned by the plaintiff. The plaintiff’s contention is that the provisions of the zoning ordinance are oppressive and unreasonable as they apply to its business of building and maintaining advertising wall boards. The purpose of a zoning ordinance is to district the territory of a municipal corporation so that the several uses for which such property may be legally employed will be, insofar as is possible, separated into zones so that the greatest benefit as to one use may be achieved with the least possible detriment to property employed for other uses. In other words, to separate residential districts from commercial districts and to separate both of these from property zoned for industrial use.

The Supreme Court of the United States has held that where a complete plan of all the territory of a municipal corporation is worked out with reasonable regard for the general rights of all, such an ordinance is a constitutional exercise of the police power of such municipal corporation because as was said in the case of Windsor v. Whitney, 95 Conn. 357:

“It betters the health and safety of the community; it betters the transportation facilities and it adds to the appearance and wholesomeness of the place, and as a consequence, it reacts upon the morals and spiritual power of the people who live under such surroundings.”

Zoning ordinances involve a reciprocity of benefit as well as restraint.

The leading case in Ohio is that of Pritze v. Messer, 112 Oh St 629. In that case the defendant, Messer, applied to the building commissioner of the City of Cincinnati, after hours on March 31, 1924, for a building permit to build a one hundred room apartment building which was to be ten stories high; the building to be located at Mitchell Avenue and Reading Road in said city. On April 1st, effective May 4, 1924, the City Council of Cincinnati passed a zoning ordinance. It was conceded that if the . zoning ordinance was valid the building could not be erected in the district in which such lot was located. Excavations were begun and were about completed when the plaintiff brought his' action to enjoin the defendant from building the apartment building, because it did not comply with the provisions of the zoning ordinance.

The defendant’s contention was that the zoning ordinance was unconstitutional in that it deprived him of the full use of his property without due process, in violation of Art. 1, Sec. I and Sec. 19 of the Constitution of Ohio and Art. XIV of the Amendments to the Constitution of the United States.

The validity of a zoning ordinance enacted by a city council is founded on Art. XVIII, Sec. 3 of the Constitution of Ohio and §§4366-1 to 12, inclusive, GC. Sec. 4366-8 GC provides as follows:

“Whenever the city planning commission of any municipality or any board or officer with city planning powers, whether such commission, board or officer is created under state statute or municipal charter, or the planning commission of any village appointed under the provisions of §4366-7 GC certifies to the council or other legislative body of the municipality any such plan for the districting or zoning of the municipality according to the uses of buildings and other structures and of premises, then said council or other legislative body, in the interest of the promotion of the public health, safety, convenience, comfort, prosperity or general welfare, may regulate and restrict the location of buildings and other structures and of premises to be used for trade, industry, residence or other specified uses, and for said purposes divide the municipality into districts of such number, shape and area as may be deemed best suited to carry out the purposes of this section. For each of such districts regulations may be imposed designating the kinds or classes of trades, industries, residences or other purposes for which buildings or other structures or premises may be permitted to be erected, altered or used subject .to special regulations.”

In sustaining an injunction entered against the defendant preventing him from building the apartment house in violation of the zoning laws of the City of Cincinnati, the court held in the second paragraph of the syllabus:

“An ordinance enacted by a municipality under Article XVIII, Section 3 of the Ohio Constitution and under §§4366-1 to 4366-12 GC, dividing the whole territory of the municipality into districts according to a comprehensive plan which, in the interest of the public health, public safety and public morals, regulates the uses and the location of buildings and other structures and of premises to be used for trade, industry, residence or other specific uses, the height, bulk, or location of buildings and other structures thereafter to be erected or altered, including the percentage of lot occupancy, setback building lines, and the area of yards, courts and other spaces, and for such purpose divides the city into zones or districts of such number, shape and area as are suited to carry out such purposes, and provides a method of administration therefor, and prescribes penalties for the violation of such provisions, is a valid and constitutional enactment.”

The right of a city to classify its territory into use zones, under a complete zoning ordinance, must be liberally construed not only as it may affect the public health, morals, and safety, but also as such classifications are deemed necessary in promoting the public convenience, comfort, prosperity and general welfare and in giving consideration to these questions the council may be motivated in part at least by esthetic considerations. There certainly is no difference in principle in prohibiting an apartment house from being built in a single residence zone than that of excluding billboards or wall boards from the retail store district.

See Murphy Inc. v. Westport, 131 Conn. 292.

Outdoor Advertising is a business that is subject to classification as is- all other commercial enterprises. In the case of Euclid v. Ambler, 272 U. S. 365, the court sustained a zoning ordinance which prohibited billboards from four of the six use districts in the city.

See also: State ex rel v. Hauser, 17 Oh Ap 4.

It must be noted that the zoning ordinance here being considered does not prohibit plaintiff from conducting its business in that portion of the city designated as U4 district. The ordinance in part provides:

“Section 3-3:

Class U3 uses: (local retail store)

(1) Bank, Office, Studio. Telephone exchange. Wholesale sales office or sample room. Gasoline and oil filling station. Battery or tire service station. Ice Delivery station. Retail greenhouse or nursery.

(2) Retail trade or shop for custom work or the making of articles to be sold at retail on the premises. Restaurant, Theater, Moving Picture Show, Bowling Alley. Miniature Golf or similar minor amusement enterprise. Any wholesale or retail sales use not included in any other class, provided such use is not noxious or offensive by the reason of the emission of odor, dust, smoke gas or noise.

Section 3-4:

Class U4 uses: (Commercial)

(1) Billboard or advertising sign.

(2) Skating rink or dance hall if operated as a business for purposes of private profit. • * *

Section 6. Local Retail Store District. * * *

(b) An accessory use customarily incident to a Class U3 use shall also be permitted in a Class U3 district provided such accessory use is located upon the same lot with the building or use to which it is accessory. A private garage permitted as an accessory use in a U3 district may have 200 square feet floor area for each family occupying or permitted to occupy the premises. Mechanical power in excess of 3 H. P. employed in the operation of any machine, shall not be permitted as an accessory use. The killing, dressing or live storage of poultry shall not be permitted as an accessory use. A class U6 or U7 use shall not be permitted as an accessory use.”

We conclude, therefore, in line with the foregoing authorities, that the plaintiff has failed to show by the proper degree of proof that the provisions of Section 3-3; Class U3 uses for local retail stores which excludes billboards and advertising boards, except such as constitute an accessory use, is unconstitutional and void.

The briefs of plaintiff seem to indicate that some of plaintiff’s boards were in a Class XJ4 use district although the record is not clear on this point. As to such boards, if they meet the requirements of the building code, as to materials used and construction, then the plaintiff would have a clear right to a permit for their continued use. An application for a permit for such boards should be made, and if refused and subsequent procedure providing for appeal is utilized without avail, an action in mandamus would be proper to protect the plaintiff’s rights thereto.

Decree for defendants. Exceptions. Order see journal.

McNAMEE, J, HURD, J, concur.


author: By HILDEBRANT, J.:

text:
    GALLAGHER, Plaintiff-Appellant, v. HARRISON, etc., et al., Defendants-Appellees.
    Ohio Appeals, First District, Hamilton County.
    No 7018
    Decided May 23, 1949.
    Paxton & Seasongood, Cincinnati, for plaintiff-appellant.
    Nichols. Wood, Marx & Ginter, Cincinnati, for defendantsappellees
   OPINION

By HILDEBRANT, J.:

This law and fact appeal tried de novo in this Court arose as a controversy within an organized labor union, to-wit: the Brotherhood of Railway and Steamship' Clerks, Freight Handlers, Express and Station Employes, an unincorporated labor union, international in scope, with a membership of approximately 300,000 persons, belonging to hundreds of affiliated and subordinate local lodges, all governed by a written constitution.

It becbmes apparent at once that the rights involved have common origin in the constitution of the union.

Membership in the Brotherhood is voluntary and the members are obligated and qualify by taking a ritualistic oath, conforming to certain provisions of the union constitution, and including in part the following:

“I will obey the Constitution and Laws of this Organization, and all orders emanating from its proper offices when in conformity therewith; I will not knowingly wrong or defame a member myself, or allow it to be done by others, if in my power to prevent it.

“I will assist a member at all times insofar as my means or ability will permit and will guard a member’s interest as my own.

“1 further promise and declare that I will not under any circumstances resort to or bring suit in any court or courts either Federal or State until after I have exhausted all my rights and used all means at my command within and under the laws of the Brotherhood.”

Plaintiff, for a number of years prior to 1943, had been a member of the Brotherhood and of its affiliated local lodge in New York City, No. 2125, made up of employees of the Railway Express Agency.

Defendants, Grand President Harrison, Grand Secretary-Treasurer Ziegler, and Vice Grand President Morgan are officers of the Grand Lodge of the Brotherhood; defendant, William Winston is a member of the Brotherhood- and was Chairman of the Credentials Committee of the 1947 Grand Lodge Convention held in Cincinnati, May 12-17, 1947; defendant Monaghan is a member of the Brotherhood and Financial Secretary of Local Lodge No. 2125, New York City.

On complaint made to the Grand President by defendant Monaghan that plaintiff had violated Article 27 of the Union Constitution, he was expelled from the Union on the order of the Grand President, which expulsion was, on appeal, upheld by the Grand Executive Council of the Brotherhood. Plaintiff failed and refused to appeal the action of the Grand Executive Council to the Grand Lodge Convention at Cincinnati in May, 1947, as he had a right to do under the union constitution, and thereby failed to exhaust all remedies within the union.

Thereafter, in March, 1945, plaintiff brought an action against Monaghan — 58 N. Y. S. (2) 618, in the Supreme Court of New York for New York County against defendant Monaghan as Secretary-Treasurer of Local Lodge No. 2125, and obtained a judgment against the Local Lodge, quoted as follows:

“FIRST: That the defendant, its agents, officers, servants and employees are hereby enjoined from interfering with the rights of the plaintiff as a member and as Chairman of the defendant association and from interfering with his right to participate in the activities, meetings and deliberations of the defendant association and to exercise, all rights, privileges and duties as a member and Chairman of the defendant association.

“SECOND: That the plaintiff recover judgment against the defendant association in the sum of One Thousand Two Hundred ($1,200) Dollars together with costs and disbursements of this action as taxed in the sum of $130.75 and that plaintiff have execution therefor.”

The relief sought here is for mandatory injunction, restoring him to membership in the union, and damages.

The facts appear at length in the excellent opinion of the Common Pleas Court, Schneider, J., with whose reasoning and conclusions this Court is in accord.

In this kind of action, it has become the generally accepted law, as stated in Internatl. Union v. Owens, 119 Oh St, 94, 98-99:

“It is a well-settled principle of law, recognized by the courts of this state'and by the courts of other states, that the members of a fraternal association by adopting a constitution and by-laws and providing reasonable rules and regulations for settling their own disputes, and by establishing their own tribunals of original, intermediate, and appellate jurisdiction, become bound thereby, provided such constitution, by-laws, rules and regulations do not contravene the laws of the state. It is also well settled that the members of such an association must conform to the reasonable rules and regulations thereof and must exhaust all remedies within the association and before such regularly constituted tribunals.”

It is further generally accepted, as stated in the syllabus of Mace v. Carpenters & Joiners of America, et al., 31 N. P. (n. s.) 17:

“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 individual 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.”

Also, we cite, with approval Boblitt v. C. C. C. & St. L. Ry. Co., 73 Oh Ap, 339, the first paragraph of the syllabus:

“When the duly adopted laws of a voluntary labor organization provide for the final settlement of disputes among its members by a regularly constituted standing committee of members, its action thereunder is final, and conclusive and will not be disturbed by the courts unless it was unreasonable, arbitrary, capricious or oppressive.”

We would further note that conduct of union officers in settling a dispute among the membership arbitrarily outside of or contrary to the union constitution, or in any manner in denial of due process of law would not be conclusive upon the courts But, we refer to the concurring opinion of Stuart, J., in Boblitt v. C. C. C. & St. L. Ry. Co., supra, wherein the following appears:

“It was said in Richards v. Morrison, 229 Mass., 458, at page 460, 118 N. E., 868:

“ ‘The plaintiff, by becoming a member of the association, agreed to be bound by its rules and subject to its discipline. As one of the incidents of membership, he consented to accept liability to expulsion, ordered in accordance with its regulations. When the action of the association or of its officers is challenged in respect to the exercise of the power of expulsion, the court does not sit in review upon the wisdom or expediency of their conduct. The decision of the organization and its officers acting in good faith in accordance with the rules on that subject is the final tribunal. There is no general appeal to the courts.’ ”

Generally, as to the requirements of due process, it is stated in 12 Am. Jur., p. 327:

“Generally speaking, due process is satisfied by one hearing which furnishes a full and fair opportunity within the rules hereinbefore discussed. No rehearing or review is necessary.

“A hearing before judgment, with full opportunity to present all the evidence and the arguments which the party deems important, is all that can be adjudged vital under the guaranty of due process of law. Rehearing or new trials are not essential to due process of law, either in judicial or administrative proceedings. One hearing, if ample, before judgment satisfies the demand of the Federal Constitution in this respect.

“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.”

However, plaintiff here contends we never reach application of the principles cited above, for the reason that the defendants, other than Monaghan, although not parties to the New York suit, are bound thereby on principles of res judicata and estoppel by judgment, by reason of being privies thereto, and that such judgment is effective and must be enforced in this Court against them.

The claim of privity is based in part, and the first line of cleavage between the parties here is bound up in the allegation contained in the first paragraph of the petition before this Court, that membership in the local No. 2125 automatically conferred membership in the Brotherhood.

This allegation cannot be sustained under the constitution here involved, which is dual in character and clearly gives separate entity to the Brotherhood from the local lodges. It is denominated “Constitution of the Grand Lodge, Statutes for the Government of Lodges and Protective Laws of the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes.”

In the Constitution, page 73, the following appears:

“STATUTES for the GOVERNMENT OF LODGES Under the Jurisdiction of the Grand Lodge of the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes.

PREAMBLE

For the purpose of effecting uniformity in the administration of privileges and benefits to its members, the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes ordains the following Constitution for the government of subordinate lodges.”

Then articles 33 to 43 provide the separate constitution for the subordinate lodges.

The constitution of the Grand Lodge vests supreme and complete authority and control of all members and subordinate units in the Grand Lodge itself and the various provisions as to membership clearly show control to be vested in the Grand Lodge. In the Statutes for the government of lodges, Article 34, which sets forth the eligibility requirements for membership, the extent of that control as provided by the constitution is indicated by Section B:

The Grand President, when he deems it necessary in the interests of the Brotherhood, may make exceptions to this Section.

The Brotherhood and these defendants other than Monaghan were not parties to the New York suit, no order was made or attempted to be made against them, and from the dual character of the Constitution, it appears none could be made against them, so that the New York judgment could not be binding upon them unless their conduct in connection with that suit was of such a character as to bring them within the rule of privity.

The record is replete with evidence of the interest taken in, and assistance given the local lodge in the New York suit by certain of the Grand Lodge Officials; they furnished documents, suggested* the attorney employed by the local lodge, paid attorneys’ fees and expenses after the judgment and urged an appeal, which the local refused to take. These activities, however, fall short of the generally accepted requirements illustrated by the following cases:—

State of Ohio v. Cincinnati Tin & Japan Co., 66 Oh St, 182, wherein it is stated in paragraph 1 of the syllabus:

“To constitute the record of an action a bar of res adjudicata it must appear in the record itself that the party against whom it is offered was a party or privy in blood or estate to the former action, or assisted in the prosecution or defense thereof for some benefit of his own.”

Fish v. Vanderlip, 218 N. Y. 29, paragraph 1 of the syllabus:

“The general rule is that a former adjudication to be available as a plea must have been a previous determination of the same issues between the same parties or their privies. Under the term ‘parties,’ in this connection, the law includes all who are directly interested in the subject-matter, and had a right to make defense, or to control the proceedings, and to appeal from the judgment.”

At page 37, quoting from Bigelow v. Old Dominion Copper M. & S. Co., 225 U. S. 111, 126, it is stated:

“ ‘To conclude Bigelow by the New York judgment, it must appear that he was either a party or a privy. That he was not a party to the record is conceded. He had no legal right to control the proceedings, nor to appeal from the decree. He was, therefore, a stranger, and was not concluded by that judgment as a party thereto. That he was indirectly interested in the result because the question there litigated was one which might affect his own liability as a judicial precedent in a subsequent suit against him upon the same cause of action is true, but the effect of a judgment against Lewisohn as a precedent is not that of res judicata, and the Massachusetts court was under no obligation to follow the decision as a mere judicial precedent. Nor would assistance in the defense of the suit, because of interest in the decision as a judicial precedent which might influence the decision in his own case, create an estoppel as to Bigelow.’ ”

And, at page 40, it is stated:

“We conclude that the matters pleaded in the fifth separate defense in the amended answer do not suffice to make the judgment in the Municipal Court suit available to the appellant by way of estoppel. It is easy to conceive of a case where it would operate most harshly to hold a person bound by a former judgment adverse to his interest, merely because he had aided in combatting it, but without any legal right to control the course of the litigation, or to appeal from the adverse judgment although it was palpably erroneous.”

Since the record here reveals merely assistance without control or right to appeal, we conclude these defendants, other than Monaghan, not bound by the judgment of the New York Court.

Monaghan, being a party in the New York suit, is bound by that judgment which is enforceable here. By that judgment, Monaghan is enjoined from interfering with the rights of plaintiff as a member and chairman of local 2125, and from interfering with his right to participate in the activities, meetings, and deliberations of local 2125, and in the exercise of all rights, privileges, and duties as a member and Chairman of local 2125.

It is claimed Monaghan defied the New York decree in that (a) he refused to accept Gallagher’s tendered dues or recognize him as a member of local 2125; (b) refused to recognize Gallagher as duly elected and qualified delegate to the 1947 convention; (c) usurped the office of delegate and received emoluments thereof belonging to Gallagher, and that the relief against Monaghan should be (1) injunction similar to the New York decree, amplified to declare membership in the local entitles plaintiff to membership in the Brotherhood. (2) Adjudication Gallagher being the duly elected and qualified delegate to the Convention, Monaghan had no right to serve as alternate and by so doing usurped the office of delegate and deprived Gallagher of the emoluments thereof. (3) Money judgment against Monaghan for the same.

As to A above, the record shows that Monaghan accepted the tendered dues and transmitted same to the Grand President, who refused the payment and returned the certified check to plaintiff. Ex. 35, galley 50, reveals that Gallagher testified that at no time between April, 1943 and the time of tendering his check, February 9, 1945, was any attempt made by any one to expel or suspend him for non-payment of dues, That subsequent to that time, Gallagher has been accepted as a member, elected to office in December, 1946, and by the local as delegate to the 1947 Convention. If he has enjoyed this membership. without being out of pocket his dues, it is difficult to see how Monaghan’s handling of the tendered dues is in violation of the New York decree.

As to B above, there is nothing in the record to show Monaghan’s attitude toward Gallagher as the elected delegate of 2125, and his was not the responsibility of seating or not seating Gallagher, and there is no evidence of his interference in the determination not to seat Gallagher in any way.

As to C above, the element of usurpation by Monaghan individually is lacking, his non-interference in seating being noted above. Ble sat as alternate delegate, as required by his election and duty to his local lodge and if he had refused to sit in violation of that election and duty, leaving his local without representation in convention, no emoluments would have accrued to Gallagher.

As to 1, declaring membership in the local entitles Gallagher to membership in the Brotherhood — the New York decree did not so declare, and certainly Monaghan is without authority to act in that connection and the views of this court on the subject are as set forth earlier in this opinion.

For the reasons given, the Court finds that Monaghan has not violated the New York decree, hence the relief prayed for against him must be denied.

The claims of denial of due process directed at the procedure and hearing and appeal within the union and at the provisions of the Constitution itself were litigated all the way to the Supreme Court of the United States. The Sixth Circuit Court of Appeals decision being reported in Reigel v. Harrison, 157 Fed. (2) 140, resulting in an adjudication that due process was not denied. In the change in the Constitution whereby the Grand President rather than a committee on committees selects the Committee on Appeals, we find nothing not consonant with due process.

In addition here, Gallagher testified before the Grand Executive Committee, Ex. 3, page 53: “I will say I have had a full and free hearing.” This would seem to satisfy the requirements of due process, at least up to that point. As to delay of an appeal until the quadriennial convention, Gallagher abandoned his appeal thereto and waited until the convention was in session to bring this suit. Had he instituted suit at once, claiming hardship and denial of due process of law by delay, the court would have determined the adequacy and fairness of the union proceedings at once, and if entitled to relief, it could have been granted. Having voluntarily delayed, he can not now be heard to complain on that score.

By'the’procedure followed here of preliminary investigation, formal hearing with opportunity to defend in person, represented by counsel, and appeal, where an admittedly full and fair hearing was accorded, with final appeal provided for, but unavailed of, it appears that meticulous observation of the rights of the plaintiff here has been accorded in the instant case.

Under the settled law, no course is open to this court but to dismiss the appeal, for failure to exhaust the union remedies.

A decree similar to that of the trial court may be presented.

ROSS, PJ, HILDEBRANT & MATTHEWS, JJ, concur in opinion & judgment.


text:
    MODRZYNSKI, Plaintiff-Appellee, v. LUST, Defendant-Appellant. MODRZYNSKI, Plaintiff-Appellee, v. LUST, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    Nos. 21294-21295.
    Decided July 18, 1949.

      Philip C. Barragate, Cleveland, for plaintiffs-appellees.
    McKeehan, Merrick, Arter & Stewart, Leroy B. Davenport, R. Crawford Morris, Cleveland, for defendant-appellant.
   OPINION

By SKEEL, PJ.

These causes come to this court on appeal on questions of law from a final order of the common pleas court overruling defendant’s motion for judgment at the conclusion of plaintiffs’ case, which motion was renewed and again overruled at the close of all the evidence, and from a final order overruling defendant’s motion for judgment after the jury was discharged because they were unable to agree upon a verdict.

The plaintiffs are husband and wife. They each brought a separate action against the defendant for malpractice, growing out of a major operation performed by the defendant on Edna F. Modrzynski, the operation being what is known to medical science as a total hysterectomy.

After the operation had been performed, and the plaintiff, Edna F. Modrzynski had been discharged from the hospital, she developed symptoms of burning, urging and incontinence. After an examination made by the defendant, he referred Mrs. Modrzynski to Dr. Laughlin, a specialist in Urology. Dr. Laughlin’s examination disclosed the patient’s bladder inflamed and infected. He also found several “bladder stones.” He testified that he found no surgical damage to the bladder walls. This plaintiff’s complaint of burning, urging and incontinence continued. Dr. Laughlin again examined her with about the same result, but a further examination a few days after September 20, 1946, almost three months after the first operation, disclosed a leak in the bladder, known to medical science as a vesicovaginal fistula. After two unsuccessful attempts by Dr. Laughlin to repair the leak, Mrs. Modrzynski went to another doctor who in April, 1946, successfully repaired the fistula.

After the defendant had finished the hysterectomy operation and the patient had been returned to her room, a catheter was inserted into her bladder and a mixture of blood and urine was discharged, which discharge continued until a few days before she left the hospital. Both plaintiffs testified that when this fact was called to the attention of the defendant directly after the operation, he said “I nipped her bladder.”

The plaintiffs’ cases are based upon their contention that defendant was negligent in puncturing the bladder during the hysterectomy operation and in failing and omitting to repair such puncture after it had been made.

The defendant’s claim of errors are as follows:

“1. Error of said court in overruling the motion of defendant appellant made at the close of plaintiff’s evidence that the jury be directed to return a verdict in favor of defendant appellant or in the alternative, that the evidence be withdrawn from the consideration of the jury and judgment be entered in favor of defendant appellant.

2. Error of said court in overruling motion of defendant appellant made at the close of all the evidence, that the jury be directed to return a verdict in favor of the defendant-appellant or in the alternative, that the evidence be withdrawn from the consideration of the jury and judgment be entered in favor of defendant-appellant.

3. Error of said court in overruling defendant-appellant’s motion for judgment in his favor. notwithstanding the discharge of the jury.”

The burden of proving negligence and proximate cause in a malpractice case is upon the plaintiff, and the fact that an injury has been suffered will not, without affirmative evidence tendered by the plaintiff, as to the cause and effect of such injury, be presumed to have been the result of the doctor’s negligence. Ault v. Hall, 119 Oh St 422.

By the great weight of authority, when the physician’s want of skill or lack of care in the treatment of a patient or in conducting a major operation is in question, expert medical testimony is necessary to establish the claimed negligence of the physician and that such negligence has some causal connection with the claimed injury. What is or is not standard practice and treatment in a particular case, or whether the conduct of the physician measures up to the standard is a question for experts and can be established only by their testimony.

The only exception to such rule is that where the want of skill or lack of care is so apparent as to be within the comprehension of laymen and requires only common knowledge and experience to understand and judge it, expert evidence is not essential. 141 A. L. R. 5 at page 12.

There seems also to be great unanimity in the cases that the plaintiff must establish that the claimed injuries were a probable result of the physician’s negligence when established and not that such result was a mere possibility.

The Supreme Court of Ohio in dealing with the need for expert testimony relating the injury to the alleged negligence of the physician and that such evidence must establish a probability, not a mere possibility of such causal connection, said in the case of Drakulick v. Industrial Commission. 137 Oh St 82:

“Since the issue of causal connection between an injury to a person’s back and his subsequent death from cancer of the liver, involves a scientific inquiry, such causal connection must be established by the testimony of medical witnesses competent to testify on this subject.

Testimony that a person’s death from cancer of the liver could have resulted from a previous injury to his back is insufficient to prove causal connection between such injury and death. The proof in such case must establish a probability, not a mere possibility of such causal connection.”

In its opinion the court said at page 88:

“The medical testimony, even if the affidavit of Dr. Schwarzell had been admitted, was insufficient to prove causal connection between the injury and the cancer which caused death. The testimony must establish a probability, not a mere possibility, of such causal connection. The testimony to the effect that the injury could have resulted in the malignancy does not meet that test.”

“The case of Drew v. Industrial Commission, 136 Oh St 499, 26 N. E. (2d) 793, involving the inquiry as to whether an injury from a fall produced partial paralysis of the body, is authority for this proposition. Judge Williams speaking for this court said:

‘Some of the expert medical witnesses testified that the paralysis could come from a fall causing a lesion or broken blood vessel in the brain; but there was medical testimony to the contrary. Of course, evidence that the paralysis could be caused by injury sustained in the fall consisted wholly of the opinion of physicians. Standing alone, sueh evidence would be insufficient to prove a traumatic origin of the paralysis. Proof of possibility is not sufficient to establish a fact; probability is necessary.’ See also Kuhn v. Banker, 113 Oh St 304, 312, 13 N. E. (2d) 242.”

See also: Wharton v. Lang, 18 Abs 147; Davish v. Arn, 32 Abs 646; McCarthy v. Industrial Commission, 33 Abs 103; Brazis Admr. v. National Tel. Supply Co., 38 Abs 57; Shepard v. Ins. Co., 152 Oh St 7 at page 12.

In the case of Brear et al v. Sweet et al, 155 Wash. 474, 284 Pac. 803, the court had for consideration almost the identical question that is presented in the case now being considered. The physician in that case was charged with negligence in removing a uterus, it being claimed that he negligently cut the bladder during the operation, making a large hole causing leakage. The plaintiff testified that after the operation, the defendant said to her “I cut the bladder.” There was no medical evidence on this question other than that there was a possibility that the bladder might have been cut. There was also evidence that the plaintiff’s condition could be accounted for by other circumstances.

“The evidence further shows that immediately after the operation a retention catheter was employed and that after this was finally removed on the third day, appellant voided naturally until the evening of the eighth day after the operation, when urine was discovered leaking from the vaginal tract. The concensus of medical testimony is that the history of the patient during the seven or eight days immediately following the operation conclusively shows that the bladder was not punctured during the operation. All of the physicians who testified on both sides united in saying that in an operation such as this, it is necessary to peel as close to the bladder as it is possible to do without injuring the walls of the bladder. Two physicians who assisted in the operation, the nurse and Dr. Sweet, testified that the walls of the bladder were not cut during the operation and all of the physicians who testified agreed that the history of the case so indicated. The concensus of all of the medical testimony on both sides of this case is that vesicovaginal fistula may follow a hysterectomy for cancer, and the fact that it does follow is no evidence of lack of skill in the performance of the operation.

The law is well settled that facts such as these relating to difficult operations call for knowledge far beyond the ordinary layman, and that resort must be had to the testimony of expert witnesses for light on the question whether or not the respondent has been guilty of negligence. James v. Gigsby, 114 Kan. 627, 220 P. 267; Dishman v. Northern Pacific Beneficial Assoc. 96 Wash. 182, 164 P. 943.

We are unable to find any evidence in this case from which the jury would be permitted to find that the bladder was cut during the operation. There was no immediate escape of urine, no manifestations of a cut and the two attending physicians, the nurse and the operating surgeon all testified that there was no cut. No surgeon who testified on either side of the case having before him the full history of the case as well as the result of examination made would venture the opinion that appellant’s bladder had been cut. Indeed, most of them united in saying that the history of the case indicated the contrary. The nearest that any physician came to testifying as to an act of negligence was a suggestion on the part of one of the medical experts called by the appellant who testified that the operating surgeon might have peeled too close to the bladder and thus somewhat weakened the walls. But this was not the theory on which the case was tried or submitted to the jury and is not the theory of the complaint. The charge of negligence is that while performing the operation, the bladder was cut and it was on that theory that the case was submitted to the jury, all other questions of negligence were withdrawn from the jury and the only assignment of error is the granting of the judgment n.o.v.”

From the record before us we find no medical evidence relating to the nipping of the bladder as a probable cause of the burning, urgency and incontinence suffered by the plaintiff subsequent to her operation or that there was any causal connection between such claimed nipping and the vesicovaginal fistula which was subsequently found by Dr. Laughlin. Nor is there any medical evidence to support the evidence of the plaintiffs that Dr. Lust admitting nipping Mrs. Modrzynski’s bladder which claim is completely denied by the defendant.

It therefore was the duty of the court to grant the defendant’s motion for judgment at the conclusion of receiving all of the evidence and the motion for judgment notwithstanding the disagreement of the jury.

For the foregoing reasons the judgment of the common pleas court is reversed and final judgment is entered for the defendant appellant. Exceptions. Order see journal.

McNAMEE, J, HURD, J, concur.


author: By McClelland, J.

text:
    FAELCHLE, Estate of In Re.
    Probate Court, Franklin County.
    No. 95355.
    Decided September 1, 1942.

      Horace A. Kerr, Columbus, for Ray Hauntz, Executor and Harry Faelchle. Est. of Christena Faelchle.
    Dale Rapp, Columbus, for Charles L. Eesley, Executor. Est. Christ (Christian) Faelchle.
   OPINION

By McClelland, J.

This matter comes before the Court upon tlie application of Charles L. Eesley, the Executor of the will of Christ (Christian) Faelchle, in Case No. 100762, in which application he seeks an order from this Court requiring the Executor of the Will of Christena Faelchle, to pay to him the statutory exemption allegedly due the decedent by virtue of the provisions of §10509-54 GC. The application recites that Christena Faelchle died November 2, 1941, leaving an estate which was appraised at $10,708.91, and leaving surviving her a spouse Christian Faelchle,' who died on July 11, 1942. The application further recites that the appraisers of the Estate of Christena Faelchle failed to include and set off to Christian Faelchle, surviving spouse, the statutory exemption as provided by §10509-54 GC, and further says that he as the Executor of the will of the surviving spouse is entitled to the exemption in the sum of $2141.78.

Upon a hearing of this matter the Court finds the allegations of the petition hereinbefore set forth to be allegations of fact. It was further disclosed from the testimony that Christian Faelchle was at all times after the death of his wife and until his death of full age, and sound mind. It is also found that he had never made a demand for any of the personal property as provided for in §10509-54 GC, nor did he make a demand for such statutory exemption. It is also found that Christian Faelchle, the surviving spouse, never made- an election as to whether he would take under the will or under the statutes of descent and distribution. Under the circumstances, he is presumed to have elected to take under the will, and the Court so holds.

Upon an examination of the will we find that Christian Faelchle was devised a life interest in one-third of the entire estate of his deceased consort. No mention was made of the statutory exemption. That being the case, Christian Faelchle was not barred of his right to receive the portion of the estate known as the exemption as provided by §10599-54 GC.

Counsel for the executor of the will of Christena Faelchle takes the position that inasmuch as the surviving husband did not make a demand for the exemption he has waived same, and that the right to demand the exemption does not pass to his personal representative. It is also the contention of counsel that under the wording of the exemption statute a sum of money less than twenty percent may be set off by the appraisers of the estate. This contention how requires a careful examination of §10509-54 GC. The statute reads as follows:

“When a person dies leaving a surviving spouse, * * * the following property if selected as hereinafter provided, shall not be deemed assets or administered as such, and must be included in the inventory of the estate: (here follows a list of the property which may be selected) to be selected by such surviving spouse, or if there be no surviving spouse then by the guardian or next friend of such minor child or children, not exceeding in value twenty percent of the appraised value of the propertly, real and personal, comprised in the inventory, but in no event is the value of the property not deemed assets to be more than twenty five hundred dollars, if there be a surviving spouse, nor more than one thousand dollars if there be no surviving spouse”.

It is the opinion of this Court that the words “following property specifically refers to the chattel property recited therein.” It is also the opinion of this Court that the words “not exceeding in value twenty percent of the appraised value of the property” is a limitation upon the amount of chattel property which may be selected by the surviving spouse. The statute also contains the following language:

“or, if the personal property so selected be of less value than the total amount which may be selected as herein provided, then such surviving spouse, guardian or next friend shall receive such sum of money as shall equal the difference between the value of the personal property so selected and such amount, and such sum of money shall be a charge on all property, real and personal, belonging to the estate, prior to the claims of all unsecured creditors of the deceased or of the estate”.

The statute specifically prescribes who should make the selection of the chattel property. It is quite obvious that this provision is strictly a personal provision as far as the surviving spouse is concerned and for his particular benefit. Should there be no surviving spouse, then the selection may be made by the guardian or next friend of the minor children. Inasmuch as it is our opinion that this is a personal privilege and for the personal benefit of the surviving spouse and the minor children, if any, the right of selection does not pass to the personal representative of either.

Further considering the above mentioned statute it is our opinion that only the personal chattels so selected do not become a part of the estate of the deceased, but belong to the surviving spouse immediately upon his selection of same, and his title therefor relates back to the date of the death of the decedent.

We now come to consider that portion of the exemption payable in money, which arises by reason of the inadequacy of the value of the property selected, or, its value being less than the exemption, or the failure of the surviving spouse to make such selection.

This Court has held in the case of McDonald v. McDonald reported in 5 O. O. at page 32, that the exemption of the surviving spouse payable in money, or that portion payable in money, is a debt against the estate of the deceased, is a charge against same, and as such, a debt which alone would authorize the bringing of a suit to sell real estate for the payment of same. The statute specifically makes this portion of the exemption a charge against the entire estate of the deceased, and directs that it shall be paid in preference to all unsecured claims against the estate.

Our attention has been directed to the decision of the Court in the Estate of Shive, reported in 65 Oh Ap page 167. In that case there was an allegation of fraud. The matter of fraud was considered only with reference to the right to reopen the estate after the statutory time had elapsed. The existence of fraud in that case had no bearing whatsoever upon the court’s consideration of the right of exemption under the statute. At page 168 of the opinion, the Court uses the following language:

“In Ohio, the right of exemption of the surviving spouse is clearly fixed by §10509-54 GC, which makes the amount of the exemption a charge upon the decedent’s real estate where there is insufficient personal property against which to set off the exemption, and provides that the property included within the provision ‘shall not be deemed assets or administered as such, but must be included and stated in the inventory of the estate’.”

At page 169 the Court uses the following language:

“The courts of Ohio seem to hold uniformly that this property is not part of the estate but belongs to the surviving spouse by virtue of the marriage relation, and that a fiduciary is not entitled to compensation on the property included in the exemption.”

With particular reference to the facts in that case, the Court uses this language:

“We believe that the title to the property to the amount of the exemption vested in Ada Belle Shive immediately upon the death of Simon A. Shive, and consequently upon her death was part of her estate. It follows therefore that the estate of Ada Belle Shive is clearly entitled to 20 per cent of the estate of Simon A. Shive subject however, to the limitations as to the amount set forth in §10509-54 GC, as found by the Probate Court and affirmed by the Court of Common Pleas, the judgment of which should be and hereby is affirmed in this respect.”

We are not entirely clear as to the meaning of the Court in the above quoted language. As we have heretofore stated the chattel property, if and when selected, does become the property of the surviving spouse or minor children, and is not a part of the estate of the deceased, because the title relates back to the date of death. We cannot make such a finding as to the portion of the exemption payable in money. That is a charge against the estate and becomes a debt against the estate, and so remains until it is paid. If it is a debt against the estate, the relation between the estate and the surviving spouse in that particular is that of a debtor and creditor, a secured creditor however. It is quite obvious upon a careful examination of the provisions of §10509-54 GC, that the right to an exemption grows out of the marriage relation. That being the case, it is the duty of the fiduciary to see that this exemption is set off.

With reference to such portion of the exemption which is payable in money, the statute reads that the surviving spouse, guardian or next friend “shall receive such sum of money.”

It therefore appears that it is the duty of the fiduciary in the absence of a selection of chattel property by the surviving spouse, to set off the exemption to the surviving spouse. In case the surviving spouse does select at its appraised value, then it is the duty of the fiduciary to set off the difference between the amount so selected and the amount of the exemption. This portion of the exemption being a secured claim against the estate, and a claim which grows out of the marriage relation, is such a claim as passes to the personal representative of the surviving spouse. Having arrived at that conclusion, and applying that to the case at bar, we must hold that the Executor of the will of Christian Faelchle is entitled to the sum of $2141.78, being twenty percent of the gross value of the Estate of Christena Faelchle, deceased.