author: By PUTNAM, J.

text:
    SERAN v. BIDDLE et al.
    Ohio Appeals, Fifth District, Stark County.
    Decided February 11, 1949.
    Ian Bruce Hart, William L. Hart, Jr., Canton, for appellant.
    D. Deane McLaughlin, Pros. Atty., Paul M. Perkins, Canton, for appellees.

      For Common Pleas see 54 Abs 539.
   OPINION

By PUTNAM, J.

This action originated in the Common Pleas Court of Stark County and is one in equity to enjoin the county commissioners from selling a portion of the county-home farm which they deemed no longer needed for public purposes. Upon final hearing below the decree was for the defendants and the injunction was refused. 87 N. E. 2d 492.

The appeal to this court is on questions of law and fact and was heard upon the transcript of the evidence given in the first trial.

One factual and two legal propositions are presented. The factual proposition is: Under the situation as shown by the evidence, was the action of the county commissioners in the attempted sale such an' abuse of discretion as to warrant a court of equity in substituting its judgment for theirs?

The first legal proposition is: Did the county have legal title to this land in view of the fact that, in the deed to the defendants “Stark County Ohio” was the grantee named, instead of the county commissioners and their successors in office?

The second legal proposition presents a problem of statutory construction. This is the phase strenuously argued by plaintiff, and the one to which we will direct our attention first.

Sec. 2447 GC, provides in part as follows:

“If, in their opinion, the interests of the county so require, the commissioners may sell any real estate belonging to the county, and not needed for public use ⅜ * ⅝.”

This section in its essential features has been in the statute books for nearly 100 years. It was amended in 116 Ohio Laws, pt. 2, 149, in 1936. It was last amended with additions in 122 Ohio Laws, 373 and effective September 17, 1947.

In 1929, 113 Ohio Laws 528, the Legislature passed §§2557, 2557-1, 2557-2 and 2557-3 GC. These sections provide for, §2557 GC, the closing of the county home under certain circumstances; §2557-1 GC, the disposition of the inmates and future eligibility of others for county care; §2557-2 GC, the sale or lease of county-home-farm property; and, §2557-3 GC, the establishing of a “district home” in conjunction with other counties under certain conditions. It is with §2557-2 GC, that we are here concerned. It reads:

“After a county home has been closed the county commissioners may sell all or parts of the county home farm, or lease all or parts of it, or both, and all receipts from such sales or leases shall be paid to the county treasurer and credited to the general county fund and be subject to appropriation for such purposes as the commissioners may decide.”

Plaintiff maintains that the phrase, “after a county home has been closed the county commissioners may sell”, constitutes a condition precedent to the right to sell; and that the home in this case not having been closed, the right to sell does not exist. The question is: What was the intention of the Legislature? Does this section control or does §2447 GC, apply?

Those two sections are in pari materia and must be construed together. Applying certain rules of statutory construction, one answer is obtained; other rules produce a different result. In support of plaintiff’s position is the rule that where there are two statutes concerning the same subject matter, one general and one particular or special, the special prevails. Plaintiff also contends that the phrase is not ambiguous; and that the plain meaning of “after a county home has been closed” is a mandatory condition precedent. It is argued also that historically a county home is located in the country to afford the inmates work and rural surrounding, and a sale would prejudice their rights; and finally, that is the reasonable construction of the statutes.

The defendants argue and the lower court found that §2557-2, GC, was directory only, by applying the following-rules and reasons: First, §§2557-1, 2557-2 and 2557-3 GC, are all a part of one act which deals primarily not with the sale of county property or the county home but with providing a different setup for the care of indigent people of the county, and that this being so, the Legislature did not intend the incidental powers in-§2557-2 GC, to be a limitation on the general powers granted in §2447 GC. Second, there are no negative words in §§2557-1, 2557-2 and 2557-3 GC, denying the right to sell the property except under the condition named. Third, it is the duty of the courts to harmonize these statutes-if possible, which can clearly be done if §2557-2 GC, is construed as directory only. Fourth, an interpretation which makes the words directory is the only way the statute can have a reasonable operation.

It is the court’s mature judgment that §2557-2 GC, is directory only and we base that judgment not only upon the-above arguments but upon the following additional considerations which we deem important and ultimately controlling.

An important rule of statutory construction is that no construction should be adopted which would produce absurd or unreasonable results and that the Legislature cannot be-presumed to have so intended.

We must recognize the fact that the method of taking care-of indigent people has changed with the years. However, historically, as far as our search has revealed, it has never been the mandatory duty of a county to take care of its-paupers in an infirmary or county home owned and maintained by it. It could make contracts with other infirmaries. Some counties do not and never did operate infirmaries. Nor if a county home was established was it mandatory to place it in the country or to operate a farm in connection therewith, even though as a matter of fact most counties did both. During the rural era in Ohio, in most cases, it was more economical to raise part of the food for the inmates on a farm on which -they could do some work than to buy everything. Neither was there ever a mandatory duty to purchase a farm when the site was purchased; nor if a farm was purchased later that it all had to be purchased in one tract or at the same time. There is some authority,, the weight of which is open to question, that the various tracts had to be adjacent so as to touch one another.

Now if we give the section the interpretation which plaintiff claims, we would have to say that no matter what conditions arose and no matter when or in how many parcels or for what reasons the various tracts of a county home farm were purchased, not a square foot thereof could ever be sold without first' closing the county home. Then, too, we would have to say that since this power undoubtedly did exist, by virtue of §2447 GC, prior to 1929, some particular condition arose about that time which impelled the Legislature to change the rule. If so, what could it be?

Certainly it is the duty ot the county to feed the charges ■as economically as possible with the standard of ordinary ■subsistence. Certainly it is not economical to raise general farm produce or conduct general farming operations on $2,000-an-acre land; any farmer would so agree. That is the testimony in this case. It would be better to sell the farm ■and buy the food in the open market. Did the Legislature in 1929, knowing of the urban shift of population, intend to perpetuate such a practice? Again, every farmer knows that conditions and farm operations change over the years. At one time a farmer might want to to go in for milk production and accumulate a dairy herd- — say a registered Brown ■Swiss herd. If Bang’s disease wipes out the herd, he might want to switch to a corn-hog program. In such a readjustment it would be desirable to eliminate some pasture land and acquire some corn ground. Did the Legislature intend that the county commissioners should be so hog-tied by •statute that there never could be any readjustment of acreage on a county farm?

Take another illustration. Suppose a railroad would be located or a highway relocated or a dam built so as to cut ■off a portion of the farm and make it unavailable for practical use. Was it the intention to prevent a disposal of that .acreage and the acquisition of something more suitable? We do not think so.

Now let us inquire for a minute what, if any, conditions •arose about 1929 which would cause the Legislature to change ■a policy and so restrict a thereto necessary and obviously sensible grant of power? We can think of none. We can, however, see why the power to close a county home would be ■expressly given. Some of the reasons are:

1. The Department of Public Welfare was being expanded •and new ideas as to treatment of indigents advocated.

2. Ohio was becoming more urban and real estate values were changing.

3. Farms were being mechanized.

4. The population of county homes was decreasing.

5. Doubt existed among officials, local and state, as to the right of the county commissioners absolutely to close a county home and participate fully in the state welfare program' ■of consolidation and outside relief.

Those facts and others impel us to the conclusion that the main purpose of §§2557-1, 2557-2 and 2557-3 GC, was to provide tor the closing of a county home and to permit the making •of more economical and elastic arrangements. The power of sale was only incidental to the main purpose. We do not think the Legislature contemplated that all county homes would be sold. We do not think the Legislature contemplated that all county homes in connection with which there were farms would always be maintained in whole or in part by such farms. We cannot believe that the Legislature intended that farming operations should be conducted upon land the value of which had outgrown farm values.

We hold that §2557-2 GO, is directory and not mandatory.

The second legal proposition presented as to the ownership of the land is settled by the decision of the Supreme Court in the case of Carder v. Board of Commissioners of Fayette County, 16 Oh St 353, where it is held that a devise to the county is a devise to the board of commissioners of the county and vests title in it for the uses of the county.

This brings us to a consideration of the last problem presented, the factual one, as to whether the proposed sale is an abuse of discretion. The evidence in the case as to the value of the lands advertised for sale and the resulting effect of that sale on the remaining lands is somewhat in conflict.

The difference of opinion however, is not such as to impel this court to arrive at the conclusion that the decision of the county commissioners in acting in accordance with one set of witnesses was an abuse of discretion. After all this land was put up for public sale in accordance with the statutes governing such sales and after due advertisement and notice. It presumably brought what it was worth. No. fraud or irregularities are shown by the record. It might be true that at another time and under different conditions a better price could be obtained. However, this is a matter of judgment. It does not present such a situation where this court would be justified in substituting its judgment for that of the officials in whom, rightly, this discretion is imposed.

In view of the above considerations the decree must be for the defendants herein. It is so ordered.

Decree for defendants.

MONTGOMERY and McCLINTOCK, JJ, concur.


source: Caselaw Access Project

author: By THE COURT.

license: Public Domain

text:
    HOFFMAN CANDY COMPANY, Plaintiff-Appellee, v. DEPARTMENT OF LIQUOR CONTROL et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4357.
    Decided November 17, 1949.
    Jenkins, Schuessler, Wendt & Gill, Columbus, for plaintiff-appellee.
    Herbert S. Duffy, Atty. Geni., Charles T. Kaps, Asst. Atty. Geni., Columbus, for defendants-appellants.
   OPINION

By THE COURT.

Submitted on motion by the plaintiff-appellee seeking an order dismissing the appeal for the reason that the defendants-appellants have failed to file a bill of exceptions as required by §11564 GC. Counsel for the appellants admit that a bill of exceptions has not been filed in compliance with §11564 GC, but urges that the same has no application; that the Code has application only when the decision is not entered on the record, which is not the fact in the instant case; that on the contrary the decision of the trial court appears on the record, the same being the basis of this appeal. The failure to file a bill of exceptions within the time fixed by law does not deprive the court of jurisdiction to entertain an appeal in the case, but does incapacitate the court to construe the contents of the bill of exceptions for any purpose. Where it is claimed that the errors complained of appear from the pleadings and transcript of docket and journal entries, no bill of exceptions need be filed. Hulett v. Hulett, 18 Abs 63. Any error disclosed by the pleadings may be reviewed by the appellate court without the necessity of a bill of exceptions. Hughes v. Roberts. 18 Abs 62.

The motion to dismiss will be overruled.

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


author: By PHILLIPS, PJ.

text:
    JENNINGS et, Plaintiffs-Appellants, v. JENNINGS et, Defendants-Appellees.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3265.
    Decided June 13, 1949.
    Eugene Green, Youngstown, for plaintiffs-appellants.
    Howard M. Metzenbaum, Cleveland, for defendant-appellee, International Association of Machinists, District No. 14, Local Lodge No. 404.
    John J. Lynch, Jr., Youngstown, for defendant-appellee, Local Lodge No. 404 and the Officers thereof.
    Harrington, Huxley & Smith, Youngstown, for defendant-appellee, Truscon Steel Company.
   OPINION

By PHILLIPS, PJ.

Plaintiffs, representing themselves and all others similarly situated, namely minority group members of or represented by a voluntary labor organization, referred to hereinafter as the union, and acting in a capacity and for a purpose fixed by federal law, commenced an action in equity in the court of common pleas in which they sought an injunction against defendants from distributing a fund to persons to which and to whom reference is made herein later, a decree ordering the negotiation of a new collective bargaining agreement for the distribution of such fund in a manner different than that agreed upon previously, and other equitable relief.

In their petition filed in the court of common pleas plaintiffs alleged that defendant union is a voluntary unincorporated association duly certified as the exclusive bargaining agency for all machine shop employees of defendant corporation Truscon Steel Company, referred to here as the corporation, of which they are employees; that on July 21, 1947, the union entered into a collective bargaining agreement with the corporation, which provided inter alia that employees of that corporation who had suffered wage rate inequities from December 25, 1943, to March 31, 1947, should receive individual “lump sum” payments covering any amounts owed such employees during that retroactive period of time; that plaintiffs suffered “the vast preponderance of wage rate inequities”; that the corporation agreed to calculate such individual payments “as promptly as practicable after the date on which the assigned standard hourly wage rates became officially established”, and to disburse them to qualified employees “in accordance with an understanding to be reached” between the union and the corporation, which provided, among other things, that the total hourly payment should not exceed 3% cents an hour for each .hour worked during such period by all of the employees of defendant corporation represented by the bargaining unit; that effective April 1, 1947, all jobs represented by this unit were classified and assigned a standard hourly rate, and that the difference between the standard hourly rate assigned to the classification of any employee and the one he had previously received has been paid to each individual employee; that this difference of intra-plant wage inequity is far greater among employees in the bargaining unit who are not machinists nor die makers, as the majority of the members of such union are, than other members of such unit; that to prevent the agreed sum as inequity payments for the period prior to April 1, 1947, being allocated to the individual by the application of the same standard as used for the period after that date the majority of the union, who were machinists and die makers, voted at a union meeting to authorize the defendant corporation to pay each employee in the bargaining unit 3⅝ cents an hour for each hour worked during the retroactive period; that such agreement between the union and the corporation was executed on March 22, 1948; that such proposal and agreement violated legal and equitable principles, because it distributes money to members who during the retroactive period suffered no inequity or one less than 3% cents an hour at the expense of those who had suffered inequity; that the “union devised a scheme to deprive plaintiffs of the money they earned under the wage inequity agreement; and that the union “knowingly and deliberately set out to benefit the majority of the defendant union’s members” by such distribution.

Both defendants, union and corporation, demurred to plaintiffs’ petition on the grounds principally that the court of common pleas had no jurisdiction over the subject matter of the action, and that the facts alleged therein are not sufficient to constitute a cause of action against them.

Equity has very limited jurisdiction over the union, a voluntary organization, and as long as it acted in accordance with its valid rules, within the scope of the object for which it was formed, and with fidelity to any fiduciary duties it owed its members, equity will not interfere in an action brought by any of its members, and will not grant it relief in such an action when such relief can be obtained within the union. However, when it exceeds its powers, disregards its own rules, or does not observe its fiduciary duties, equity may enjoin it in an action such as we review.

The voluntary labor union, whose action is under review, was acting in a special statutory capacity and under and in accordance with the provisions of Section 9 (a) of the National Labor Relation Act which provides:—

“Representatives designated or selected for the purpose of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, hours of employment, or other conditions of employment.”

The foregoing section of the National Labor Relations Act also provides that the designated representative body must file with it a copy of its constitution and by laws; and a report showing, among other things, the procedure to be followed as to meetings, authorization for bargaining demands and ratification for contract terms.

Obviously the questions presented to the trial judge for decision were whether, as shown by allegations of the petition, the union, as bargaining agent, acted within the law and its power as such agent in concluding the agreement of March, 1948, and whether it violated any fiduciary duty it owed any of its individual members in the executed agreement; and the question presented to this court is whether the trial judge reached a correct conclusion in disposing of that question.

In the case we review, the union, acting as statutory representative in the collective bargaining contract with the corporation, has the responsibility of representing the interests of all the employees, minority as well as majority members, fairly and in good faith, without hostile discrimination nor impartiality; and was responsible for giving notice to all such members and employees of and opportunity for hearing upon its proposed action. 323 U. S. 192, 248.

The subject matter of the agreement, to which reference is made, was clearly within the power of the union as it obtained from the company an amount representing 3⅝ cents times the number of hours worked by all men in the bargaining unit during the retroactive period as an addition to the pay already received.

In conformity with the will of the majority and with its own rules of procedure the union, the association, could devote such amount representing additional pay, a result within the legal purpose of the union, to the purpose for which it was obtained by providing for its distribution to those for whom it was acting. See 5 C. J. C. 40, 72.

It did this by providing that each employee who worked on any position in the bargaining unit should be paid 3⅝ cents for each hour worked during the retroactive period; which constituted a flat rate payment for every one in the bargaining unit, and ignored as to each individual the relation between the actual rate of pay earned by him and the standard rate later set for his job classification. It amounted to an equal wage increase for all such employees for the period named.

The petition attacks this method of distribution as a violation of a fiduciary duty by the union, as bargaining agent, because it made an agreement in effect distributing among the majority sums of money allowed for inequities suffered almost wholly by the minority group. From this minority standpoint an element of discrimination and unfairness appears; andi from that point of view the action taken might be interpreted as having resulted from the tyranny of majority rule.

However, any beneficiary of such agreement may proceed in equity to compel the trustees to execute the trust; and a member of the union who can establish the existence of a trust impressed upon its property, of which he is a bene-flciary, may sue to enforce it as an individual. Wrightington, Unincorporated Associations, p. 241.

Coming now to consider the sum secured, the distribution of which is in question, we must decide whether the union, as. the bargaining agency, stands in the relation of a fiduciary to its members as beneficiaries. By the agreement executed July 21, 1947, the company agreed to pay an arbitrary determined amount to cover wage rate inequities for a certain retroactive period, and to disburse same to qualified individuals, “in accordance with an understanding to be reached” between the company and the union.

As stated heretofore, as the result of authorization by a majority vote at a union meeting, over the protests of the minority, this agreement was executed on March 22, 1948.

By the understanding of July 21, 1947, and agreement of March 22,1948, no identifiable individual shares nor interests were impressed on the amount arrived at which would require a court of equity to consider such sum a trust fund. By such majority action, each person represented shared in the fund; though it appears not in accordance with the sense of justice nor fairness to each such person.

Since such fund was created within the legal scope of the union’s activities as exclusive bargaining agent, the majority of its members, acting in compliance with the laws and useages. of the association in a regular and open meeting possessed authority to control the agent’s action as to the distribution of such fund. Accordingly, in the absence of collusion or discrimination amounting to fraud, and we find no charge of fraud as such made, resort to the intervention of a court of equity can not be had against the legal action of a majority, no matter how mistaken nor oppressive from a minority viewpoint such majority action may be.

As a general rule, courts will not interfere with the internal affairs of an organization such as the union was, nor attempt to make new contracts for the parties, particularly where the parties are a labor union on the one hand and an employer on the other. Courts have protected the right of union'members in enforcing an agreement made for their benefit, but courts have never gone so far as to order a new contract made at the request of a few dissatisfied members of the union.

The collective bargaining system and process would collapse eventually if in cases such as we review plaintiffs, dissatisfied minority members of a bargaining unit, could successfully invoke the jurisdiction of a court of equity to enjoin action by the majority members thereof, acting in accordance with the terms of an existing collective bargaining agreement, and compel the execution of a new contract, and thereby thwart the expressed will of the majority of the members of the union.

The rule of the majority is deeply rooted in our system of government, and is applicable to labor relations both within unions and in their dealings with employers as it is in all other relationships of life where it is applicable; and the supreme court of the United States has held collective bargaining agreements, such as that under consideration in the case we review, do not establish, but merely govern, the terms of the relationship existing between the union and the corporation.

In our opinion the petition does not allege a justifiable controversy between the union and the corporation, which is not concerned with and has no right nor authority to interfere with a strife between the members of nor a dispute within the union. We believe that before plaintiffs can invoke the jurisdiction of a court of equity in the case we review they must exhaust, and allege that they have exhausted, their remedies within the union or before administrative tribunals. See Brotherhood v. Railway Co., 159 Fed. (2d) 822; Tunstall v. Brotherhood, 323 U. S. 210.

Like the trial court we find no allegation of violation of any •equitable right of which plaintiff may complain, nor for which he may obtain the intervention of a court of equity. The court did not err to the prejudice of the plaintiffs in sustaining the several demurrers and dismissing plaintiffs’ petition at their costs; nor as counsel for plaintiff contend in their assigned ground of errors “in concluding plaintiffs do not have an identifiable interest and enforcible interest in the equity pay fund”, in “failing to find and rule as a matter of law that defendant union violated its statutory duty to represent plaintiffs without hostile discrimination”, nor that “the judgment of the court is contrary to law”.

The judgment of the court of common pleas is affirmed.

NICHOLS, J, BUCKLEY, J, concur in judgment.


author: By HORNBECK, J.

text:
    CHAMPION AMUSEMENTS COMPANY, Plaintiff-Appellee, v. BREHM et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4254.
    Decided November 4, 1949.
    Rodney B. Baldwin, Columbus, for plaintiff-appellee.
    Henry A. Reinhard, A. W. Geissinger, Columbus, for defendants-appellants.
   OPINION

By HORNBECK, J.

The appeal is on questions of law and fact from a decree of specific performance of a contract by which defendants were required to execute a deed to plaintiff for certain real estate described in a lease in which the defendants were the lessors and the plaintiff held the status of lessee by assignment.

The lease is set up in its entirety in the agreed statement of facts but the controversy arises upon the 10th paragraph of the lease, and particularly (b) thereof. Paragraph 10 provides:

“The Lessors do herewith acknowledge and confirm that immediately preceding the execution of this lease in accordance with the terms of an agreement entered into in writing, between the parties, the Lessors have purchased twenty-four (24) acres of the within demised premises from the Central Savings & Loan Society of Columbus, Ohio, for a consideration of Seven thousand three hundred and fifty ($7,350.00) dollars, part of which consideration had been paid in cash and part by the execution and the delivery of a note and purchase money mortgage, providing for payments of principal and interest in specified amounts. The Lessors do herewith agree to and with the Lessee that at any time during the first five (5) years of the duration of this lease, the Lessee shall have the right, privilege, and option of purchasing all of the demised premises in the within lease, namely, thirty-two (32) acres, for a total consideration of Twenty-thousand ($20,-000.00) dollars. In the event the Lessee shall within said term exercise the purchase option, the Lessors shall credit the Lessee toward the purchase price, the following:—
(a) The sum of Two thousand seven hundred ($2,700.00) dollars that has been paid as an advance rental intended to be applied as a credit for the rental period commencing July 1, 1951.
(b) All sums that have been paid by the Lessors as principal payments towards the note and purchase money mortgage held by the Central Savings & Loan Society for the purchase of the twenty-four (24) of the thirty-two (32) acres herewith demised.”

It is the claim of the appellee that it is entitled to a credit upon the purchase price of the full amount paid by the lessors on the principal sum due on the note and mortgage held by the Central Savings & Loan Society, as of the date of the election to purchase. It is the contention of appellants that the appellee is .entitled to credit only for sums due and payable on the principal of said note at the time when the election was made on the option to purchase. The appellee tendered the sum of $10,800.00 which, together with the $2,700.00, credited under (a) paragraph 10 of the lease, and $6,500.00, the full amount of the principal due on the Central Savings & Loan Society note, which sum had been paid in full, totaled the full purchase price of $20,000.00 provided by the lease.

Counsel for appellants insist that (b) of paragraph 10 of the lease is ambiguous. Appellee insists that its language is plain and distinct and it is agreed that if the court holds that the contract requires no further interpretation than is to be made from the language of the lease, this court would be required to reach the same conclusion as the Common Pleas Court. If, on the other hand, we determine that the language of the lease is ambiguous, then the cause will be continued to give counsel for the appellants the opportunity to produce testimony, the purpose of which is to clarify the language of the lease, particularly (b) paragraph 10.

We have carefully examined this lease in its entirety, with particular attention to paragraph 10. We find no ambiguity whatever in (b) of paragraph 10, in itself or in connection with any other part of the lease. The purpose of (b) was to define a credit upon the purchase price that was to be allowed the lessee if it elected to make the purchase. Paragraph (a), it is admitted, is definite in the amount of $2,700.00 and paragraph (b) was intended to define a further credit. It says, “All sums that have been paid” (that is to say, that have been paid if the lessee elected to purchase during the first five years of the life of the lease, “towards the note”) i.e., on the note, “held by the Central Savings and Loan Society”. If the note had not required the lessors to make full payment of the principal thereof up to the time that the option was exercised and such payment had not been made, manifestly, the lessee could not have claimed anything in excess of the payments due and made. But, if lessors chose to pay the note in full, then it was a sum paid on the principal “toward the note” and comes within the express language of the contract.

We can find no ambiguity whatever in the language employed in (b). If it is a harsh provision, it is so because the parties by their own language have defined their respective obligations and benefits.

Being of opinion that the contract requires no evidence independent of the written instrument to enable the court to make proper construction of the language employed and its meaning being clear, we are required to hold that the plaintiff is entitled to the relief sought and it will be so ordered.

MILLER, PJ, and WISEMAN, J, concur.


author: :By McClelland, j.

text:
    SANDS, Extrx., Plaintiff, v. ROSS et, Defendants.
    Probate Court, Franklin County.
    No. 135435.
    Decided November 28, 1949.
    Dwight A. Swisher, Columbus, for executrix.
   OPINION

:By McClelland, j.

This matter comes before the court upon the petition to construe the will of Jennie Lowry, deceased, and to sell real •estate.

The question raised involves a construction of the will. The will leaves the residue of the estate to two stepdaughters and a niece to be equally divided among the three. One of the stepdaughters predeceased the testatrix, leaving two children, which fact presents the question as to what becomes of her one-third of the residue.

Section 10504-73 GC, does not prevent a lapsing of this one-third of the residue, since stepdaughters are not considered “children or other relatives” within the meaning of that section. Kegler, Adm’x v. Kempter, 74 Oh Ap 279.

Counsel for the executrix raises the question as to whether or not the one-third of the residue left to the deceased stepdaughter should go to the two surviving residuary legatees or should go to the heirs of the testatrix as intestate property. While recognizing that the weight of authority is to the effect that the share passes as intestate property, counsel importunes this court to disregard, the general rule and to hold that the share goes to the two surviving legatees, since the general rule has been so severely criticised, even by those courts which, bcause of the precedent established in their states, feel bound to follow the general rule. Counsel calls attention to the fact that this question is one of first impression in Ohio and that consequently this court is free to adopt a rule which to it seems most reasonable.

In Page on Wills, Life Time Edition, Vol. 4, Section 1430, we find the following statement as to the weight of authority, supported by several annotations: “It is now settled, by the weight of authority, that a lapsed part of the residuum does not itself pass into the remainder of the residuum; but that it passes to the testator’s next of kin as intestate property.”'

A good statement of the general rule and also the criticism of the rule may be found in 57 Am. Jur. Section 1453, to-wit:

“Sec. 1453. Share of Residue. — It is, of course, clear that if a residuary gift to a single beneficiary lapses or becomes ineffective, the subject matter thereof will pass to the testator’s heirs as intestate property, and in most cases under a residuary gift to several persons nominatim, or in common, and not as a class, a lapsed portion of the residuary devise or legacy does not, in the absence of statute inure to the benefit of the other residuary devisees or legatees, unless the intention of the testator to that effect clearly appears; instead, such lapsed portion of the residuary estate is removed from the operation of the residuary clause and becomes intestate estate, passing to the heirs or distributees. Although this rule has. been consistently applied where the necessary conditions were present, there has been but little discussion of it in the cases, and only brief suggestions of the reasons underlying it have been given by the courts. The principle has evoked considerable dissatisfaction, even among those courts which recognize and follow it, and in a few jurisdictions it has been changed by statute. Some courts, in the absence of any statutory change, have refused to accept the rule, and, instead, have adopted the view that in the circumstances outlined, the lapsed portion of the residuary gift must be held to pass to the surviving residuary donees.”

A typical example of the criticism of the general rule is found in the. case of Gray’s Estate, 147 Pa. 67, to-wit:

“The rule thus established does not commend itself to sound reasoning, and is a sacrifice of the settled presumption that a testator does not mean to die intestate as to any portion of his estate, and also of his plain actual intent, shown in the appointment of general residuary legatees, that his next of kin shall not participate in the distribution at all. The rule is in fact a concession to the set policy of English law, nowhere more severely asserted than in chancery, to keep the devolution of property in the regular channels, to the heir and the next of kin, whenever it can be done.
“If the question were new in this state, speaking for myself, I should not hesitate to. reject the English rule as wrong in principle, and subversive of the great canon of construction,— the carrying out of the intent of the testator.”

See, also, 28 A. L. R. 127 and 139 A. L. R. 868 and annotations.

It is quite significant that no reported case in Ohio, as far as we know, raises the point proposed by counsel for the executrix. The closet case in point of fact that we have been able to find is that of Nelson v. Minton, Ex’r. 46 Oh Ap 39. There the testatrix divided the residue of her estate between the relatives of her deceased husband and her own relatives and mentioned them by name. Some of the mentioned relatives of her deceased husband were known to the testatrix to be dead when she signed the will. It was contended, in that case, that the intention of the testatrix was plain; that she intended to distribute one-half of her estate among the relatives of her deceased husband. The court, in that case, disposed of the question of intention when it said: “Now in this case the testatrix knew the devisees in question were dead when she signed the will. She also is presumed to know that devises to them lapsed and were void.” That court cites and quotes from Dildine v. Dildine, 32 N. J. Eq. 78, and we quote from the same case another apt sentence, to-wit: “A gift to persons named, in equal shares, creates, a tenancy in common unless when, under a will, it is clear that the testator intended that it should create a joint tenancy.”

The only difference between Nelson v. Minton, Ex’r, 46 Oh Ap 39, supra, and case at bar is the fact that some of the beneficiaries named in the will were known to be dead when the will was drawn, whereas in the case at bar the stepdaughter died after the will was drawn. Counsel in Nelson v. Minton exidently was claiming that the devise to the relatives of the deceased husband was a gift to a class and that consequently the survivors of that class should take the shares of the deceased devisees.

Despite the criticisms of the general rule as running counter to the intention of the testator, we are of the opinion that the general rule prevails in Ohio. We have the feeling that the reason no case can be found in Ohio in which the general rule has been attacked is the fact that the bar has also been of the opinion that the general rule prevails in Ohio.

Quite significant also is the fact that the Legislature had the general rule before it as far back as 1866 when it first deviated from the common law rule and enacted a statute dealing with the death of a residuary legatee. 63 O. L. 47, Effective March 20, 1866. That statute, from which our present statute, §10504-73 GC, was taken, limited its application, as does the present one, to “a child or other relatives of the testator”. Since the Legislature did not see fit at that time to make the law apply generally to all residuary legatees, but changed the common law rule only so far as it affected relatives of the testator, we cannot escape the conclusion that the rule in Ohio has been the general rule modified only to the •extent of the statute enacted in 1866 and its subsequent amendments.

A rule so well established becomes a rule of property and persons are presumed to, have that law in mind when they come to the drafting of their wills. Shumaker v. Pearson et al., 67 Oh St 330.

It is therefore our conclusion that the share of the residue devised to the stepdaughter, who died during the lifetime of the testatrix, lapses and goes to the heirs of the testatrix as intestate property, in accordance with the general rule. In reaching this conclusion we are supported by the action of the Legislature and the failure of the courts of Ohio to disturb the general rule.


text:
    HOOKS, Plaintiff-Appellant, v. METCALF etc., Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4348.
    Decided November 28, 1949.
    Draper, Lombardo & Morgan, Columbus, for plaintiff-appellant.
    Henry A. Reinhard, Columbus, for defendant-appellee.
   OPINION

By THE COURT.

This is a law appeal from a judgment of the Court of Common Pleas. All of the errors assigned are based upon the inadequacy of the judgment. The action was one for services performed for the defendant’s decedent over a period of several years and up until the time of(her death. The appellant urges that the value of the services performed by the plaintiff was not in conflict and therefore the judgment for the plaintiff for $1000.00 was insufficient as a matter of law. This would be true if the services were to the extent that the appellant contends, but there is a sharp conflict in the evidence upon this subject, such as the period of time over which they were performed, what the services consisted of, and the credits to which the defendant was entitled. There is evidence in the record tending to show that the plaintiff received a reduction in his rent owing to the defendant in consideration of the services performed and that later the payment of rent was discontinued entirely. A verdict will not be set aside on the ground that it is against the weight of the evidence if there is a substantial conflict of evidence upon a vital fact in the case. Where one witness contradicts another the court can seldom say as a matter of law that the verdict was against the weight of the evidence.

We find no error in the record and the judgment is affirmed.

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


author: By MILLS, J.

text:
    SCAMMAN, Extrx., Plaintiff, v. SCAMMAN, Defendant.
    Common Pleas Court, Montgomery County.
    No. 99401.
    Decided February 23, 1950.
    Landis, Ferguson, Bieser & Greer, Dayton, for plaintiff.
    Scharrer, Scharrer & Hanaghan, Dayton, for defendant.
   OPINION

By MILLS, J.

Plaintiff herein, executrix of the estate of George E. Scam-man, deceased, filed a petition in this court alleging that George E. Scamman died testate; that he was a resident of Scar-boro, Maine; that he died while in active duty for the United States Army on or about June 30th, 1943, and was declared officially dead by the United States Army on January 21st, 1946; that the last will and testament was duly admitted to Probate, plaintiff being named as executrix of said last will.

It appears that Mary E. Scamman is the widow of George E. Scamman, deceased, and as such obtained possession of the assets belonging to the estate of decedent, in the sum of $6,715.65, representing arrearage of pay from the United States Army due said decedent at the time of his death. Said sum was paid to the defendant by check dated May 28th, 1946 by the accounting officers of the United States Army.

Plaintiff claims that in her fiduciary capacity as executrix it is her duty to collect the assets of said decedent according to law; that defendant has refused and still refuses to pay the same.

The defendant admits all the facts with the exception that it is the duty of the executrix herein to collect the money from said defendant, and as her defense to the petition, defendant says she was married to George E. Scammon, deceased, on March 11th, 1943 and that he was a second lieutenant, declared officially dead by the United States Army on January 21st, 1946; that she was his wife up until the time he was declared officially dead and that there was due to her from said deceased husband and the United States 'Army the sum collected. She further says settlement was made with her according to the Act of February 28th, 1946, P. L. 306, which provides in substance as follows:

“Hereafter in the settlement of the accounts of deceased officers or enlisted persons of the army, where no demand is presented by a duly appointed legal representative of the estate, the accounting officers may allow the amount found due to the decedent’s widow, widower, or legal heirs in the following order of precedence: First, to the widow or widower, etc * *

Defendant further says no demand was presented to the accounting officers of the United States Army by the plaintiff, and prays plaintiff’s petition be dismissed.

To this answer a demurrer was filed by plaintiff herein, defendant, having in her answer admitted all the allegations of plaintiff’s petition, and set up as her affirmative defense the provisions of the Act of February 28, 1946, Public Laws, 306, and payment pursuant thereto, the plaintiff challenges the sufficiency of this defense.

Plaintiff herein claims that the legal rights of the decedent’s heirs or devisees vested at the time of his death and that no subsequent legislative act could constitutionally divest them of such right and cites the authority of 16 Am. Jur., Descent and Distribution, Section 16:

“There is a right to a succession to an ancestor’s property after his death according to the law as it existed at the time of his death. Such right is a vested right constituting property and entitled to constitutional protection as such, and hence, any statute depriving an heir or distributee to such right, without due process of law is unconstitutional and void. Accordingly, an estate must be distributed according to the laws of distribution in force at the time of the intestate’s death.”

The rule is again stated in the same work at Section 20, as follows:

“One has a vested right in property to which he succeeds under the law of descent and distribution immediately on the death of the ancestor. It follows that an estate must be distributed according to the law as it exists at the time of the death of the ancestor.”

It is the court’s opinion that laws governing succession to property after death are clearly matters for state legislature. The vested right is property which the law protects and is an immediate vested right of present or future enjoyment. To be vested in its accurate legal sense a right must be complete and consummated, and one of which the person to whom it belongs cannot be divested without his consent. A vested right is the power to do certain actions or possess certain things lawfully and is substantially a property right and may be created either by common law, by statute or by contract. A failure to exercise a vested right before the passage of a subsequent statute, which seeks to divest it, in no way affects or lessens that right.

Security Bank & Trust Co. of Miami, Okl v. Barnett, 36 P. 2d 874, 880, 169 Okl 298.

Quoting from City of Chicago v. Collin, 121 N. E. 751, 752, 304 Ill 270:

“While the general rule is that statutes are not to be given retrospective operation except where it is manifest that the legislature intended that they should have such operation, it is not competent for the legislature to give such operation to an act where it will affect existing or vested rights; a vested right being an immediate fixed right to present or future enjoyment.”

Quoting also from Black on Interpretation of Laws, page 256:

“When the effect of giving to a statute a retrospective construction would be to make it destroy or impair vested rights, or impose new penalties, forfeitures, liabilities, or disabilities, such construction will be avoided, and the statute will be held to apply to future acts and cases only, provided that this can be done by any reasonable interpretation of the language used by the legislature.”

The court must presume that the amount paid to the defendant, the widow of deceased, was for pay accumulated from the time he was missing until the time he was declared officially dead. The matter to be determined by this court is whether the sum due deceased at his death and collected by defendant herein was or was not a gratuity. If it be a gratuity and was paid to the widow under the act she would be declared a preferred payee, then this demurrer should be overruled. If it is a property right arising on a contract with the government, the amount due and payable to the deceased, at the time he was declared legally dead is a vested right and becomes a part of the estate of the deceased.

The court has found that the law of this case is expressed by the decision in the case of Campbell v. Oliphant, et al., heard at the September Term, 1947, Knoxville, Tenn. and cited in 185 Tenn. 415, and 206 S. W. 2nd 406.

It appears in that case the executor had collected the money from the general accounting officer of the United States Army and the father, Hayden Campbell, had brought suit claiming he was the next of kin entitled to pay and that the sum paid the executor, Oliphant, was a gratuity. Therein the chancellor held the funds to be the assets of the estate of Charles Campbell and should be administered by the executor, and from an adverse decree the father has duly perfected his appeal. The appellant is the father of Charles Campbell, who lost his life on a flight over Austria during the recent war. The appellee, Oliphant, is the executor named in the last will and testament of Charles Campbell, made shortly before he became a member of the Air Corps. Charles was reported missing in action July 26, 1944. An official finding of death was made by the war department on July 27th, 1945. Later the date of his actual death was established as July 26th, 1944, the information as to such fact not having been received by the war department, apparently, until a short time before December 13, 1945, and during the time intervening between the date Charles was reported missing in action and the official date of his death there accrued to him his salary or compensation the sum involved. Shortly after the official date of death, which was a year after Charles was reported missing, apparently Oliphant probated the will, qualified as executor, and collected the sum of money due, less certain deductions, the correctness of which is not involved. The funds in that case were collected by virtue of what is known as the Missing Persons’ Act, which is as follows:

“Any person in the active service who is officially determined to be absent in a status of missing, missing in action, interned in a neutral country, captured by an enemy, beleaguered or besieged will, during the time he is so missing, etc., be entitled to receive or to have credited to his account the same pay and allowances to which he was entitled at the beginning of such period of absence or to which he may become entitled thereafter, until it is established or determined that he is dead. During such period of absence, any allotment in effect at the beginning of absence, including allotments for the purchase of United States bonds, may be continued by the government. After the expiration of twelve months, a review of the case will be made, followed by a determination that the person is dead or that he is presumed to be still living. These provisions are administered by the branch of the armed service of which the person in question was a member.”

50 U. S. C. A. Appendix, Secs. 1001-1017, being an Act of March 7, 1942, Chap. 166, 56 Stat. 143, as amended by Act of July 1, 1944, Chap. 371, 58 Stat. 679.

American Law of Veterans, Sect. 913, p. 722.

At the end of the year, it not appearing to the contrary ‘death shall be presumed to have occurred for the purposes of termination of crediting pay and allowances, and such date shall be the day following the day of expiration of an absence of twelve months’.”

50 U. S. C. A. Appendix, sec. 1005.

The appellalnt, father, says that this fund was not earned, due or owing to Charles Campbell at his death and that Charles Campbell had no vested interest in it which could pass under the will, and that this was a contingent gratuity payable to the named heirs or kinsmen of the deceased in the event the missing soldier was ' not found alive during the year, and hence could not become a part of his estate which is subject to be willed by the decedent.

Further, it is said in this case, there is nothing in the Missing Persons Act to indicate that the Congress had any thought of tying it in with or to the Death Gratuity Act. This Act, the Missing Persons Act, is clearly for the use and benefit of the soldier. It is made to him presumptively as though he were alive. Under the act he is alive for at least twelve months unless the contrary appears. At the end of twelve months, nothing to the contrary appearing, he is presumed dead and his pay and allowances stopped. There is no gratuity. It is a contract with the soldier made by congressional enactment which becomes a part of every soldier’s contract with the government. It, by this very act, becomes an agreement on the part of the government that such and such will be done under certain conditions. For this reason the fund created under this act as paid to the executor herein became a part of the deceased soldier’s estate.

Considering some pertinent expressions, in the Act the government regarded the sum paid as a debt from it to Charles Campbell. The obligation is absolute. Any person missing, while thus carried, shall be entitled to receive or to have credited to his account. “Entitlement” shall terminate on finding of death. Also “Provided, that such entitlement to pay and allowances shall not terminate upon expiration of term of service during absence and in case of death during absence shall not terminate earlier than the dates herein prescribed.” 50 U. S. C. A. Appendix, Sec. 1002. And section 9 of the Act, 50 U. S. C. A. Appendix, Sec. 1009, reads, so far as pertinent as follows: “The head of the department concerned, or such subordinate as he may designate, shall have authority to make all determinations necessary in the determination of this Act, and for the purposes of this Act determinations so made shall be conclusive as to death or finding of death,” etc. “Payment or settlement of an account made pursuant to a report, determination, or finding of death shall not be recovered or reopened by reason of a subsequent report or determination which fixes a date of death except that an account shall be reopened and settled upon the basis of any date of death so fixed which is later than that used as a basis for prior settlement. Determinations are authorized to be made by the head of the department concerned, or by such subordinate as he may designate, of entitlement of any person, under provisions of this Act, to pay and allowances, including credits .and charges in his account, and all such determinations shall be conclusive,” etc.

This act resembles in its benevolent purpose pensions, compensation allowances, hospital and other privileges accorded fo members of the army and navy or their legal incidents. Pensions, compensation allowances, and death gratuities are .gratuities. They involve no agreement of the parties; and the grant of them creates no vested right. United States v. Cook, 257 U. S. 525, 527, 42 S. Ct. 200, 66 L. Ed. 350. On the other hand, this act is a part of the enlistment contract or agreement between Charles Campbell and the government. It therefore is property and creates a vested right. This contract is to be found in part of his enlistment contract, in part in the statutes enacted by the Congress and the regulations promulgated thereunder.

The syllabi in the above case reads as follows:

“Compensation to which missing soldier was entitled under Missing Persons Act for period from date he was reported missing in action until official date of death was due him as ■a contractual obligation of the government and not as a ‘gratuity’ and hence was payable to executor of his estate and became a part of estate.”
“Pensions, compensation allowances, are ‘gratuities’ and .involve no agreement of the parties and the grant of them ■creates no vested right.”

The court affirmed the lower court in the case of Campbell v. Oliphant, and expressed the law in the syllabi quoted above.

Counsel for defendant has cited the case of Judge Reed v. John Reed, reported in 53 Maine Reports, 527, the syllabi of which reads:

“By virtue of the Public Laws of the United States, c. 9, Paragraph 6, of 1861, and c. 144 paragraphs 1 and e, of 1862, the father, (if resident of the United States) of a deceased volunteer soldier is entitled to his arrears of pay and bounty. And the soldier has no right to dispose of either by will.
“Congress has a right to prescribe and determine what pay and bounty shall be given to a soldier, and to whom, in the case of his death, the terms of which had been established by Congress, and to which he assented by the act of his enlistment.”

There is a difference in the case at bar and the case cited under Public Laws of United States of 1861. In the case at bar the decedent enlisted and earned his money and it was due the executor or administrator, had one been appointed and had demand been made at the time he was declared legally dead. He was declared legally dead January 21st, 1946, and the law was passed February 28th, 1946; the executor was appointed March 19th, 1946, and defendant demanded and received payment May 28th, 1946, after the executrix was appointed, and it appears before a demand was made. A demand on the accounting officer after the payment was made would be a futile thing.

The petition sets forth plaintiff seeks to recover from defendant money which the defendant has collected which really belonged to the plaintiff as executrix. The accounting officer had a right to pay either one of them, but does that give the one not entitled to the fund the right to retain for her own use the amount of money which, by the very Act itself is a part of the estate?

Following Holmes v. Adams, Supreme Judicial Court of Maine, Decision Dec. 27th, 1912,

“The statutes in force at the time of one’s death govern the disposition of his estate.”

This was reported in 85 Atl. 492.

The act of congress under consideration in the instant case possesses the characteristics of the familiar “facility of payment” clause found in many life insurance policies.

The cases agree that the purpose of such a clause is to protect the insurer and facilitate the manner of payment of proceeds by the insurer, not to determine the right to proceeds as between conflicting claims. The case of Smith v. Massie, Inc., 179 N. E. 20 and Lutostanski v. Lutostanski, Conn., 181 A. 533 are cases holding that where an insurer acting under the facility of payment clause makes payment to a relative, the relative becomes a trustee accountable to the estate of the insured. It would seem that the same reasoning would apply to 10 USCA, page 68. The legislative history indicates the purpose of the act was merely to facilitate payment and protect the paying authorities, and not to determine the right to pay allowances as between adverse claimants. You will note that the statute provides “where no demand is presented by a duly appointed legal representative of the estate, the accounting officers may” and so forth. Certainly the statute in no way implies that allowances due' a deceased veteran are not part of his estate.

Therefore, the court is of the opinion that the money paid by the accounting officer to defendant, Mary E. Scammon, the widow of George E. Scammon, deceased, was money due to the deceased soldier under his contractual rights with the government and was not a gratuity, and upon his death was part of his estate and should be a fund of the administrator or executor.

Accordinglly, the court will sustain plaintiff’s demurrer to defendant’s answer herein.

Counsel will draw their entires accordingly.


text:
    MILLER, Plaintiff-Appellee, v. MILLER, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4312.
    Decided November 4, 1949.

      Abraham Gertner, Columbus, for plaintiff-appellee.
    Carl G. Nappi, Luther L. Boger, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This is an appeal on questions of law from the judgment of the Common Pleas Court of Franklin County, Ohio, overruling a motion filed during term to vacate and set aside a default judgment and to grant a new trial in an action for divorce.

On March 31, 1949, the plaintiff filed his action for divorce, alleging that the defendant had been guilty of gross neglect of duty. The defendant employed counsel, who conferred with counsel for the plaintiff in an effort to effect a settlement. After several conferences, negotiations were broken off on April 19, 1949. On May 18, 1949, the case was set for hearing as an uncontested case, at which time the plaintiff and two character witnesses appeared in court and gave their testimony. The court granted a divorce to the plaintiff and counsel for the plaintiff immediately presented an entry to the court which was approved and journalized on May 18, 1949.

The record shows that the defendant was in default for answer and that at the time the testimony was given before the court counsel for the plaintiff stated that he had conferred with counsel for the defendant sometime prior to the trial for the purpose of negotiating a settlement. No notice was given to the defendant or her counsel that the case had been assigned for trial, or that the plaintiff intended to present his evidence on a given date.

The record further shows that on the same day that the decree was filed counsel for the defendant learned of the fact that the case had been tried and the decree granted. The record further shows that on the next day, May 19, 1949, the defendant filed a motion “to vacate and to set aside the order and decree of this court entered herein on May 18, 1949 granting a divorce to the plaintiff, and to grant a new trial and to permit this defendant to file her answer herein instanter”. The answer, which shows a valid defense, was attached to and filed with the motion. The motion was based on five grounds: One, irregularity was practiced by the prevailing party in obtaining said decree; two, the final decree is not sustained by sufficient evidence; three, fraud was practiced by the plaintiff in obtaining his judgment or decree; four, fraud was practiced by the plaintiff and his witnesses in the presentation of evidence in that all of the evidence was not presented to the court, and material evidence was withheld; five, other reasons which will more fully appear upon the hearing. At the hearing counsel for the defendant substituted for the fifth ground of his motion the following: Failure of counsel for plaintiff to submit to counsel for defendant a copy of the decree filed herein in violation of Rule •8 of the Common Pleas Court. Counsel for the defendant then added the sixth ground, as follows: Failure to give to defendant, or her counsel, notice of the hearing herein had on May 18, 1949. The motion was heard on May 24, 1949, at which time plaintiff and the only two character witnesses who testified at the original hearing at the time the divorce decree was granted were examined and cross examined at length with reference to the testimony which they gave at the original hearing, for the reason that there was no record taken of the testimony at the original hearing. At the hearing on the motion the defendant and other witnesses testified relative to the relationship which existed between the plaintiff and the defendant and their conduct toward each other. Counsel for the plaintiff testified relative to the negotiations for settlement which had been conducted between counsel. The court at the end of the hearing overruled the motion. The entry overruling the motion was„ journalized on June 2, 1949. The notice of appeal was filed on June 3, 1949. The notice of appeal states that the order appealed from is the “judgment and decree rendered by the Common Pleas Court in the above entitled cause on the 18th day of May, 1949, and from an order overruling defendant-appellant’s motion to vacate and set aside said order and decree, for a new trial and to permit her to file - her tendered answer instanter”. The notice of appeal is sufficiently definite to show that the appeal is taken from not only the judgment and decree dated May 18, 1949, but also from the order overruling the motion to vacate and for a new trial, under date of June 2, 1949. In either case the notice of appeal was filed within time as required by the provisions of §12223-7 GC. Both orders were final orders from which an appeal may be taken. Sec. 12223-2 GC; McAtee v. The Western and Southern Life Insurance Co., 82 Oh Ap 131, 81 N. E. (2d) 225; Williams v. Martin, 82 Oh Ap 395, 81 N. E. (2d) 806; Caswell v. Lermann, 85 Oh Ap 200.

The defendant-appellant has assigned twelve separate grounds of error. Counsel has not discussed the errors assigned separately, but has been content to discuss them generally. The court does not believe a discussion of the separate grounds is required. In substance the errors assigned are: That the court erred in rendering judgment and in granting a decree to the plaintiff at the original hearing; that said-judgment and decree was not supported by sufficient evidence; that the testimony of the plaintiff was not corroborated; that the court erred in overruling the motion to vacate the judgment and decree and to grant a new trial; that the court, erred in excluding testimony offered by the defendant and admitting testimony offered by the plaintiff at the hearing on the motion; that the court erred in finding that there was. no irregularity on the part of the plaintiff or his counsel in obtaining the judgment or order dated May 18, 1949; that the judgment of the court below is contrary to the law.

After an examination of the record it is apparent that the-court and counsel at the hearing on the motion regarded the motion solely as a motion to vacate a judgment during term. The vacation of a judgment during term'lies within the sound discretion of the trial court. A reviewing court. will not reverse the judgment of the trial court in overruling a motion to vacate a judgment during term unless an. abuse of discretion has been shown. The trial court found that there was no fraud practiced by the plaintiff or his. witnesses in the presentation of the evidence at the original hearing, with which we agree. We find no error committed on the admission or exclusion of evidence. Furthermore, the-record does not support the contention of counsel for the defendant that a copy of the decree was required to be submitted to him for approval under Rule 8 of the Common Pleas Court, or that the defendant or her counsel were entitled to-notice of the hearing. The record shows that the defendant was in default for answer and her counsel had not entered an appearance in any manner whatsoever. In the light of the-factual situation which has developed in this case the court properly proceeded to hear the matter as an uncoritested case without notice either to the defendant or her counsel.

The defendant, on the hearing on the motion, failed to-show any legal reason for her failure to file an answer within rule or make defense at the hearing.

The motion filed by the defendant was essentially a motion for new trial which was seasonably filed. Since the amendment to §§11576 and 11578 GC, which became effective October 11, 1945, the sustaining of a motion for new trial necessarily requires the vacation of the previously entered judgment. Caswell v. Lermann, supra; McAtee v. The Western and Southern Life Insurance Company, supra, and Williams v. Martin, supra. Both matters are embraced in the motion.

Some of the grounds of the motion were equally pertinent in support of either a motion to vacate a judgment during term or motion for new trial. The defendant, although in default for answer, is not deprived of her right to seasonably file a motion for new trial. See Martin v. Martin, 54 Abs. 369.

The second ground of the motion was that the decree was not sustained by sufficient evidence. This is one of the grounds for a motion for new trial. Sec. 11576, paragraph 6, GC. It is also made one of the assignments of error. Since there was no record taken at the first hearing the court was required on the hearing on the motion to take testimony, which it did, relative to the evidence which was submitted at the first hearing. The same witnesses who testified at the first hearing testified in the hearing on the motion. The plaintiff was given ample opportunity, both on direct and cross examination, on the hearing on the motion to state what his grievances were against the defendant and to support the allegation in the petition that the defendant was guilty of gross neglect of duty. After testifying at length the plaintiff was asked the question whether there was any other testimony brought out at the original hearing in addition to what had been testified to on the hearing on the motion, including the testimony of the two character witnesses, to which he answered “I don’t believe there was, no.” The testimony, when construed most favorably to the plaintiff, does not show one scintilla of evidence which would warrant the court in granting a divorce on the ground of gross neglect of duty or any other ground. The plaintiff testified that his trouble was “in-law trouble”. The plaintiff contended that his father-in-law, for whom he worked, had too much to say with respect to the family affairs between the plaintiff and the defendant. “In-law trouble” does not constitute gross neglect of duty unless it so affects the conduct of one of the parties to the marriage relation so as to cause said party to commit a breach of duty toward the other. There has been no such showing made in this case. The record does not show that the plaintiff proved one single act on the part of the defendant which could in any manner whatsoever be considered as gross neglect of duty. There has been an entire failure of proof.

A reviewing court will reverse the judgment of the trial court in overruling a motion filed during term to vacate a divorce decree and grant a new trial, on the ground of abuse of discretion, where the record submitted shows a failure to prove any one of the statutory grounds for divorce.

The defendant contends that the judgment was contrary to law. The court granted the decree of divorce to the husband by reason of the aggression of the wife. In'the decree the court awarded seventy-five dollars per month as and for alimony until the defendant remarries or until the further order of the court. The court also made an order relative to the support and maintenance of each of the children. The court made no order with respect to the division of property. Sec. 11993 GC, provides in part that: “When the divorce is granted by reason of the aggression of the wife, the court may adjudge to her such share of the husband’s real or personal property, or both, as it deems just; * * Under this section there is no authority given to the court when a divorce is granted by reason of the aggression of the wife to award alimony to the wife. In Greene v. Greene, 54 Abs. 490, where a similar question was raised, the court held that an attempt to award alimony under such circumstances is void as being contrary to the provisions of §11993 GC. See also Kristo v. Kristo, 23 Oh Ap 29, 32, 154 N. E. 59. In Heflebower v. Heflebower, 30 O. C. A. 545, where a decree was entered similar to the one in the case at bar, the court, in discussing the effect of the decree under §11993 GC, held: “If a court makes a decree which is not within the powers granted to it by the law of its organization, the decree is void and it may be attacked collaterally in proceedings in contempt to enforce it”.

We conclude that under the provisions of §11993 GC, the decree entered was beyond the powers of the court and was, therefore, void and contrary to law. The judgment will be reversed and the cause remanded for further proceedings according to law on the ground that the motion for new trial should have been sustained on the ground that the judgment was not sustained by sufficient evidence and that the judgment was contrary to law.

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


author: Per CURIAM:

text:
    PROBALA, Plaintiff-Appellant, v. GUN AND TACKLE SHOP INC., Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21518.
    Decided January 5, 1950.
    David J. Miller, Cleveland, for plaintiff-appellant.
    Kitchen & Messner, Cleveland, for defendant-appellee.
    (GUERNSEY, PJ, MIDDLETON, J, of Third District: DOYLE, J, of Ninth District, sitting by designation.)
   OPINION

Per CURIAM:

In this appeal on questions of law, Andrew E. Probala, herein called Probala, brought suit in the Municipal Court of Cleveland, Ohio, to recover a money judgment against Gun and Tackle Shop, Inc., herein called Tackle Shop, upon a written contract of employment. The employment, it is claimed, was as a designer and supervisor of construction work on a store that Tackle Shop was establishing in Shaker Square in Cleveland. The compensation of Probala was to be a percentage of the cost of establishing and equipping such store.

The Tackle Shop, by way of answer, alleged that there was pending, prior to the time when Probala filed the instant law suit, in the Common Pleas Court of Cuyahoga County, an action brought by it against Probala;

“That said action is between the same parties as the parties to the within cause and for the same cause of action set forth herein, for the same relief, and for an amount exceeding the jurisdiction of the Municipal Court of Cleveland.”

The prayer of the answer asked that the case by Probala against it be “dismissed or abated and proceedings stayed pending the final determination” of the case in Common Pleas Court.

Probala filed a reply denying that the Common Pleas Court case would act to abate its claim and renewed its plea for a money judgment.

The bill of exceptions before us discloses that at the trial no witnesses were called by either party. Tackle Shop introduced in evidence as an exhibit a copy of the petition which it filed in Common Pleas Court, and Probala introduced in evidence, as an exhibit, a copy of the written contract which he claimed to have had with Tackle Shop.

The bill of exceptions discloses considerable discussion by the court and counsel concerning the nature of the pleadings filed and the effect of the case pending in Common Pleas Court.

The trial court determined that the answer of Tackle Shop was in reality a demurrer, and, upon consideration of such answer as a demurrer, entered an order overruling such demurrer and granted leave to Tackle Shop to plead further.

Thereafter, Tackle Shop moved for a rehearing, which was denied. Probala then moved for a judgment notwithstanding the decision, claiming the trial court erred in treating the answer as a demurrer, and saying that, there being no valid defense to his (Probala’s) claim, judgment for the amount asked should be awarded to him.

This motion by Probala, for judgment notwithstánding the decision, was overruled, and thereafter Tackle Shop filed an answer and cross-petition.

Thereupon, this appeal was taken, by Probala only, from the judgment overruling such motion for judgment notwithstanding the decision. ' The determinative question before us is: Is this a final order from which an appeal to this court may be taken?

Sec. 12223-2 GC, as amended effective September 30, 1947, sets out the definition of a final order. The first part of such definition is the only provision which we are required to examine. It reads:

“An order affecting a substantial right in an action, when in effect it determines the action and prevents a judgment * * * is a final order.”

The trial court did not determine the case on its merits. What the court did do was to reject the claim of abatement and continue the matter for the purpose of allowing a defense on the merits to be interposed by way of additional pleading.

The usual and orderly allowance of a continuance, or of leave to plead, matters resting within the sound discretion of the court, does not lay the basis for an appeal.

See:

Stautzenbach, Admr. v. Fritz, 71 Oh Ap 251; Leiberg, Admrx. v. Vitangeli, 70 Oh Ap 479.

We do not have the problem before us of the propriety of Tackle Shop to demur to Probala’s petition, or whether the fact that another case between the parties was pending in another court appeared on the face of the petition so as to give rise to a demurrer.

“At common law the pendency of another action was ground for abatement, and the Ohio statutes are but declaratory of the common law.” State ex rel v. Nolte, Mayor, 111 Oh St 486, at page 491.

Assuming that defense of abatement set up by Tackle Shop had been sustained, the action would not have been determined on its merits. The proceedings would have been stayed, pending disposition of the case in the Common Pleas Court.

1 C. J. S. Abatement & Revival, Sec. 2 and cases therein cited.

We think the converse of this rule should be applied herein, and that, where the defense of abatement fails, a hearing on the merits of the action should be allowed. The order of the trial court to continue the hearing and permit Tackle Shop to file an answer and cross-petition was not an abuse of discretion or prejudicial error.

We therefore determine that the overruling of the motion for judgment notwithstanding the decision was not error prejudicial to the substantial right of the plaintiff, and did not constitue a final order subject to review by this court.

Appeal dismissed. Exceptions noted.

GUERNSEY, PJ, MIDDLETON, J, DOYLE, J, concur.


author: By BUCKLEY, J.

text:
    THEISLER, Plaintiff-Appellee, v. LEONELLI, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3260.
    Ralph R. Thombs, Youngstown, for plaintiff-appellee.
    James C. Vitullo, Solomon Malkoff, Youngstown, for defendant-appellant.
   OPINION

By BUCKLEY, J.

This appeal came on to be heard upon questions of law, and was submitted to the court upon the assignments of error, bill of exceptions, briefs and argument of counsel.

For his assignment of error the defendant-appellant sets forth the following, to-wit: “Error in the court’s charge to the jury”.

In his brief the defendant-appellant takes exception to the instruction given by the trial court on the assured clear distance ahead doctrine.

It is the opinion of this court that such error is not well taken.

As set forth in the bill of exceptions, page 101, at the end of his instructions to the jury the trial court remarked:—

“That concludes the charge of the court unless counsel has something further.
“(Both sides confer with the court)
“Court: Ladies and gentlemen, that concludes the charge of the court and you will now retire in the company of the bailiff and when and if you have arrived at a verdict you will return to the court room. The alternate juror may remain just a few minutes, if you will.
“(Jury retired)
“Court: I think we can excuse you now.
“(Plaintiff excepts generally to the charge of the court)
“Mr. Malkoff: Defendant excepts generally to the charge of the court and specifically excepts to the charge on the assured clear distance ahead.”

It is the opinion of this court that the matter of instruction can not be made the basis of an appeal on questions of law unless the matter was brought to the court’s attention by a requested instruction, or unless the charge given was such as to deprive the party of a fair trial; such as to mislead the jury; or unless the court by. its statements has shown that an objection would be useless. See 2 O. Jur., Paragraph 746, Page 1394.

The foregoing article on instructions as set forth in the above cited volume of Ohio Jurisprudence further states:—

“It is well settled in Ohio that if a charge is good so far as it goes, its failure to deal with a particular question arising in the case or its omission of some matters which might have been included does not constitute reversible error unless the omission was called to the attention of the court by counsel and an instruction requested, provided the jury are not misled by the instruction given. This principle has been applied a great many times, in both civil and criminal cases.
“As has been remarked, although under the new and modern procedural act of Ohio governing civil cases, counsel are not required to make specific exceptions, the rule has not been modified that counsel cannot complain of errors of omission where they sit by and fail to make request for a more specific charge. The rule also applies with added force in criminal cases where counsel not only fails to request an additional instruction, but also expresses himself as satisfied with the charge as given, or states, when asked by the court if anything further is desired to be said to the jury, that nothing further is desired, or says or does nothing when the court asks-if there is anything further to be stated to the jury.”

In the instant case, as set forth by the bill of exceptions before this court, at the end of his instructions to the jury the court observed, that he had finished his instructions “unless counsel has something further”. As shown by the bill of exceptions both lawyers conferred with the court; but the bill of exceptions does not reveal that there was any request from the defendant-appellant to limit the application of the assured clear distance ahead doctrine as the court had defined it in his instructions to the jury. It is the opinion of this court that if the defendant-appellant believed that the doctrine of the assured clear distance ahead, as presented by the court, should have been limited, and the exceptions thereto made a part of the instructions, that the matter should have been called to the court’s attention and made a part of the bill of exceptions so that the court’s ruling on this matter might be properly before this court for examination.

In reviewing the testimony before the trial court there is very little controversy or difference as to the controlling facts. The testimony develops that Market Street and Woodland Avenue are public thoroughfares and intersect; that an electrically operated traffic control device controls traffic at said point of intersection; that the traffic on Woodland Avenue, east and west bound, had stopped for a red light as shown by the traffic signal, and that upon the light changing to amber and then green the Woodland Avenue traffic proceeded across Market Street; that among the cars proceeding west on Woodland Avenue was the Theisler car, in which plaintiff-appellee was a passenger; that a ear driven by Paul Ashton proceeded east on Woodland Avenue, and intending to make a left turn on Market Street paused at the intersection to give the west bound traffic on Woodland Avenue an opportunity to clear the intersection; that the Theisler car had proceeded west across the intersection at Market Street to the westerly side of Market Street when it was struck by the car of the defendant-appellant, which was proceeding south on Market Street. There can be little or no doubt from the testimony that the Woodland Avenue traffic had the right of way as disclosed by the testimony, and that the Theisler car was legally proceeding across the intersection when it was struck by the south bound car of the defendant-appellant. The collision occurred at approximately 1:00 P. M.; and according to all testimony the weather was clear and the streets dry.

It is the opinion' of this court that on the basis of the evidence and the instructions of the court that the jury could not have done otherwise than make a finding for the plaintiff-appellee.

On the basis of the instructions as set forth in the bill of exceptions this court is of the opinion that the same are somewhat abstract; and that the said instructions would be more ideally stated if they were founded on concrete examples and exemplifications of the law to the facts in the case. However, from the clarity and certainty of the testimony offered, we feel that the verdict of the jury could not have been changed, and that the instructions as given were not prejudicial to the rights of the defendant-appellant.

It is the opinion of this court that substantial justice has been done to the defendant-appellant; that his rights were not in any manner abridged or modified by reason of the instructions as given by the trial court; and that the verdict of the jury and the judgment of the court should be affirmed.

PHILLIPS, PJ, concurs in the judgment.

NICHOLS, J, concurs.


author: By THE COURT:

text:
    FRIEDMAN, Appellee, v. CINCINNATI LOCAL HOTEL EMPLOYEES ALLIANCE et al, Appellants.
    Ohio Appeals, First District, Hamilton County.
    No. 6032.
    Decided November 26, 1941.
    Fred Weiland, Cincinnati, Alfred D. Meitus, for appellee.
    J. W. Brown, for appellants.
   OPINION

By THE COURT:

This is an appeal on law and fact from a judgment of the common pleas court granting a permanent injunction, restraining the defendants from interfering with the plaintiff in conducting his business.

At the hearing in this court the plaintiff orally and in writing represented to the court that he no longer owned the business and on that ground moved to dismiss the appeal. 'That motion was overruled.

By agreement, the case was presented on the transcript of the evidence introduced at the trial in the common pleas •court and the stipulation that the plaintiff no longer owned the business.

As the sole basis of granting an injunction was and would be to protect the plaintiff in the enjoyment of his property rights, his non-ownership of the described property at this time precludes this court from granting an injunction, and requires the dissolution of the injunction granted by the common pleas court. An order to that effect may be entered.

There remains only the issue as to the court costs, and in this sort of a case the awarding of costs rests in the sound discretion of the court. In the exercise of this discretion it is not necessary nor would it be to determine with exactitude the breadth of the injunction which should have been granted. If, under the law and the facts, the plaintiff was entitled to some of the relief awarded, then this court would not be justified in imposing the entire burden of the costs upon him, even though he was not entitled to all the relief prayed for and granted. We have examined the transcript of the •evidence and the applicable law for that purpose only.

While it was held in Crosby v. Roth, 136 Oh St, 352, by a divided court that there was no right to peaceful picketing in the absence of a trade dispute, in the restricted sense of a dispute, between the plaintiff and his own employees, that decision was nullified as an authority on that point by the decision of the Supreme Court of the United States in the case of American Federation of Labor v. Swing, et al., 312 U. S. 287, the syllabus of which is:

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

In Milk Wagon Drivers’ Union v. Meadowmoor Dairies 312 U. S. 275 decided by a divided court on the same day as American Federation of Labor v. Swing supra, the court held that the right to peacefully picket would be forfeited by resort to such violence as would excite fear that violence would be resumed and thereby give to picketing a coercive quality beyond its legitimate persuasive force. In that case the evidence showed a continuous course of violence of various sorts which clearly stamped the general purpose of the defendants to intimidate rather than to persuade. It was in the light of that background that the court sustained the injunction against all picketing, but even then the court was careful to point to the condition on which the continuance of the injunction was predicated by saying: “It (the injunction) is justified only by the violence that induced it and only so long as it counteracts a continuing intimidation”.

The record in this case shows sporadic acts of violence and there is evidence that some of these acts are imputable to the defendants. However, there is no such continuous or systematic resort to violence as to indicate an intent to employ pickets as instruments of intimidation instead of agencies of persuasion.

All the cases hold that freedom of speech and of the press are among the liberties guaranteed and protected by the due process clause of the 14th Amendment. They are the fundamental freedoms and are the pillars upon which all others rest.

In our opinion the acts of violence shown in this record were not so blended with the picketing as to give color to the whole as an attempt at intimidation through force, violence, and putting in fear, thereby working a forfeiture of the otherwise constitutional right of freedom to speak the truth. But we are of the opinion that the evidence of violent acts was sufficient to justify a reasonable fear of recurrence and to form the basis for an injunction against force and violence and limiting picketing in such a way as to guard against irritating incidents.

The Plaintiff did not, in our judgment, sustain all the allegations of his petition and was not entitled to the broad injunction for which he prayed. Some of the costs incurred resulted from the plaintiff seeking greater relief than that to which the law and the facts entitled him, and that, therefore, the costs in this case should be assessed equally against the parties.

The injunction is dissolved and judgment for one-half of the costs will be rendered against the plaintiff and one-half against the defendants.

MATTHEWS, PJ, HAMILTON & ROSS, JJ, concur.