author: Per CURIAM. GUERNSEY, Presiding Judge

text:
    MILLER v. MILLER.
    Ohio Appeals, Third District, Henry County.
    Decided December 17, 1949.
    Otto W. Hess, David Meekison, Napoleon, for plaintiff-appellant.
    Corrigan, McMahon & Corrigan and Squire, Sanders & Dempsey, Cleveland, for defendant-appellee.
   OPINION

Per CURIAM.

This is an appeal from an order of the Common Pleas-. Court of Henry County, Ohio, overruling the amended verified motion of Otto Miller, Jr., for an order modifying the former-order, judgment and decree of the Court of Common Pleas: entered on the 5th day of July, 1934, in Journal 32, page 316, of said court, wherein the plaintiff, Otto J. Miller, Jr., was-ordered to keep Policies numbered 1426599, 1426560 and' 1426561 in full force and effect during the lifetime of said Otto Miller, Jr., oy paying the premiums thereon; and the-further order of the court entered October 24, 1935, wherein the defendants, Proctor Patterson, Earl P. Disbro, John B. Dempsey and Elizabeth Clark Tyler Miller, as fiduciaries, out-of the trust fund designated in said order and decree were-directed to pay the quarterly premiums amounting to $485.25-per quarter on said policies; and wherein this plaintiff, Otto-Miller, Jr., was ordered to obtain three separate policies upon his life, which were obtained from the Sun Life Assurance-Company of Canada, Montreal, Canada, and being numbers. 1484551, 1484552 and 1484553 which replaced said policies heretofore set forth, so as to release the said Otto J. Miller from, all obligations of paying the premiums on said policies of insurance, and directing the said Earl P. Disbro, John B. Dempsey, The National City Bank of Cleveland, and Elizabeth. Clark Tyler Miller and their successors, if any, to refrain from further payment of the premiums accruing on said policies,. and ordering that plaintiff may be permitted to cancel said, policies and receive the cash surrender value thereof, and. for all proper relief.

The minor children of Otto J. Miller, Jr. and Irene Miller are the beneficiaries of the policies of insurance mentioned.

Upon their faces, the orders sought to be nullified appear to-have been made by the court of its own volition and not with the consent of or in conformity with an agreement of the-parties.

No effort has been made by any of the parties to have the-entries of said orders corrected by nunc pro tunc entries to-show that such orders were made with the consent of or pursuant to the agreement of the parties.

As that part of the original decree for divorce, which has-not been modified, prescribed that “the defendant Irene-Miller be and she hereby is awarded alimony for her support and the support of the minor children aforesaid, in the sum of $350.00' a month beginning as of June 1, 1934, until, the further order of the court,” the orders sought to be modifled can not be construed as being made for the maintenance and support of the children of the parties, the beneficiaries of the policies of insurance, during their minority, and can only be construed as purporting and attempting to create an estate for said minor children extending beyond their minority.

In the case of Thiessen v. Moore, 105 Oh St 401, 137 N. E. 906, where the order of the court differed from the orders under consideration in the instant case, in that the wife was •decreed the sum of $10 per month for her support and maintenance, and was further decreed a life estate in certain real estate, and no provision other than a provision under consideration by the court was made for the benefit of the children, it was held that an order of the same general character as the orders under consideration in the instant case was beyond the jurisdiction of the court in an action for divorce and was absolutely void, and for that reason subject to collateral attack.

The record does not disclose that the wife objected to the provision for the benefit of the children of the parties, which is the matter under consideration in the instant case. The same situation obtained in the case of Thiessen v. Moore, supra. By express terms the provision could have been made a part of the alimony allowance to the wife, as the wife’s interest in the welfare of the children would have constituted sufficient consideration moving to her for the making of the allowance in such a manner. If the provision was not, by express terms, made a part of the alimony allowance, and it was the intention of the court that it should have been, said orders could have been corrected by a nunc pro tunc entry to expressly make the provision as a part of such alimony allowance.

It would further appear that as the orders of the court, in the absence of anything appearing to the contrary, are presumed to have been properly made in the exercise of its jurisdiction, it would be presumed, nothing appearing to the contrary, that the orders in question were made in the exercise of the jurisdiction of the court to allow alimony to the wife notwithstanding it is not expressly so prescribed in the entry of judgment, and that such presumption would be particularly applicable to the instant case, as it appears from the judgment entry that the husband was possessed of ample property at the time the divorce decree was rendered, to warrant such an allowance as alimony in addition to the sum of $350 per month specifically allowed to the wife as alimony for the support of herself and minor children.

Furthermore, it might be considered that Otto J. Miller, Jr., by moving to modify the provisions as to insurance, made by the court in its decree of divorce, by substituting other provisions, and procuring the court to make such modification of the original order, had acquiesced in the provisions as modified, and by his acquiescence therein and subsequent acquiescence over a long period of years in the payment of the insurance premiums as prescribed in said orders, without any attempt to secure modification of said provisions until the filing of the motion for modification thereof under consideration, is estopped to deny the validity of said orders.

Notwithstanding these considerations we are constrained to follow and apply the decision of the Supreme Court, in the case of Thiessen v. Moore, supra, holding that provision of a divorce decree of the same general character as those in question in this action is absolutely void by reason of the court being without jurisdiction to make it, and therefore hold the provisions of the divorce decree and modification thereof with reference to such insurance in the instant case absolutely void.

As the provisions are absolutely void, acquiescence of the party sought to be bound thereby in the making of such provisions did not serve to make them effective, and his subsequent acquiescence over a long period of years in the payment of the premiums of insurance as prescribed in said orders without attempting to have said decree modified, does not estop him from now seeking modification of said judgment as prayed for.

For the reasons mentioned, the judgment of the Common. Pleas Court overruling said motion for modification is reversed, and this court, rendering the judgment the Common Pleas Court should have rendered, adjudges said provisions, void and orders judgment and decree modified accordingly.

MIDDLETON and JACKSON, JJ„ concur.

GUERNSEY, Presiding Judge

(dissenting).

It is true that the orders sought to be modified, upon their faces appear to have been made by the court of its own volition and not with the consent of or in conformity with an agreement of the parties.

Furthermore, no .evidence was introduced upon the hearing of the motion for modification of such orders tending to prove that such orders were made with the consent of or in conformity with an agreement of the parties, and no effort has been made by any of the parties to have said orders-corrected by nunc pro tunc entry to show that they were made with the consent of or pursuant to an agreement of the parties.

As that part of the decree of divorce, which has not been modified, prescribed that “the defendant Irene Miller be and she hereby is awarded alimony for her support and the support of the minor children aforesaid, in the sum of $350.00 a month beginning as of June 1, 1934, until the further order of the court,” the orders sought to be modified can not be construed as being made for the maintenance and support of the children of the parties, the beneficiaries of the policies' of insurance, during their minority, and can only be construed as purporting to create an estate for said minor children extending beyond their minority.

In the case of Thiessen v. Moore, 105 Oh St 401, 137 N. E. 906, 908, where the order of the court differed from the orders under consideration in the instant case in that the wife was adjudged to “have and possess as and for alimony the sum of $400 in money,” and was further adjudged the sum of $10 per month for her support and maintenance, and was further adjudged a life estate in certain real estate standing in the name of the husband, and no provision other than the provision under consideration by the court which purported to give the minor children of the parties a remainder in fee in said real estate subject to the life estate given to the wife and a life estate reserved in the husband was made for the benefit of the children, it was held that in a divorce, alimony, custody, support and maintenance proceeding the court is without power to make a decree with reference to the maintenance of minor children beyond the date when such children shall arrive at their majority, and a decree such as that under consideration which purposes and attempts to direct the course of the succession to the title of real estate after the death of the parents is in that respect ultra vires and may be attacked in a collateral proceeding.

It will be particularly noted that in the decree of divorce in the instant case provision is expressly made for the support of both the wife and the minor children, but no provision is made for the wife specifically aparting to her any part of the property possessed by the husband at the time of the divorce decree.

It will also be noted from the decree of divorce in the instant case that the divorce was granted for the aggression of the defendant motioner, and that at the time of the decree he was possessed of an income of the $15,000 per year. payable quarterly, under and by virtue of a certain trust estate arising from the estate of one Marion c. Tyler, deceased, which was subject to being aparted to plaintiff in said divorce action.

In the case of State ex rel. Cook v. Cook, 66 Oh St 566, at pages 572 and 573, 64 N. E. 567, at page 568, 58 L. R. A. 625, the statutes of Ohio relating to the allowance of alimony, which were then in practically the same form as they were at the time of the entry of the divorce decree in the instant case, and as they are at the present time, were under consideration, and as to the liability of the husband thereunder, the court held: “The liability originates in the wrongful act of the husband, against the consequences of which the public as well as the wife has the right to be protected. Beyond this the provision for alimony is an allowance. It is in the nature of a partition. Recognizing the right of the wife to participate in the accumulations which are presumably the result of their joint efforts and joint economies, and having in mind at the same time any property which may have come to the husband by the marriage, the law wisely awards the wife a just and equitable proportion of the whole, and for purposes of convenient execution, and to meet all varying situations, this allowance may be made either in real or personal property, or both, or in money, payable in gross or in installments, as to the court may seem reasonable. The court does not decree alimony as a debt to the wife, or as damages to be paid to her by her late husband, ibut as a part of the estate standing in his name in which ;she has a right to share, fixed by the court in its discretion, and 'thus appropriated to her, and to which she thereupon becomes legally entitled.

In the case of Thiessen v. Moore, supra, by reason of the fact that a portion of the estate of which the husband was possessed was specifically aparted to the wife in addition to an allowance for her support, and no provision other than the provision mentioned in the decision of the case, was made for the benefit of the minor children of the parties, a presumption arose that such provision was solely for the maintenance of the minor children. As such provision extended beyond the date that said children would arrive at their majority it was held to be void.

No such presumption arises in the instant case, as a specific provision is made for the support of the wife and the minor-children of the parties, but no provision is specifically made for the wife, aparting to her any part of the property possessed by the husband; and, nothing appearing to the contrary, the presumption that arises is that the court, acting within the scope of its own jurisdiction and power, made the orders as to insurance in question in aparting to the wife her share of the property possessed by the husband at the time of the decree.

The wife’s natural interest in the welfare of her children and her possible future dependence upon the children for her support and maintenance constituted a consideration moving to her for aparting the estate of which her husband was possessed, in the manner mentioned, and she, not the husband, was the only one who was concerned by the manner, in which it was done.

The wife acquiesced in said orders by not appealing from', the decrees in which said orders were incorporated, and while-the husband’s acquiescence was not essential to the validity-of said orders, he acquiesced by not appealing from the original: decree of divorce and by moving for the modification of said! orders and procuring the court to modify the same, as shown by journal entry in Journal 33, page 101, filed October 24, 1935.

For the reasons mentioned, the orders sought to be modified are valid and subsisting orders not subject to modification, and the judgment of the Common Pleas Court overruling said, motion to modify should be affirmed.


source: Caselaw Access Project

author: By THE COURT:

license: Public Domain

text:
    THOROMAN, Estate of, In re.
    Ohio Appeals, Second District, Montgomery County.
    No. 1784
    Decided September 2, 1943.
    Iddings, Jeffrey & Weisman, Dayton, for executrix.
    Joseph W. Sharts, Dayton, for appellant.
   OPINION

By THE COURT:

The above entitled cause is now being determined on motion of executrix to dismiss the appeal on question of law and fact for the reason that this court does not have jurisdiction to try such an appeal.

The controversy arose in the Probate Court on the widow’s amended exceptions to the executor’s account.

Upon hearing, the exceptions were overruled in part and sustained as to one exception.

Within due time the widow filed notice of appeal on questions of law and fact.

We have no difficulty in determining that the appeal may not be heard de novo, since our court does not have jurisdiction to so hear except in chancery cases.

The courts in this state have definitely determined that exception to a fiduciary’s account is a statutory proceeding and hence not appealable de novo.

In re Gurnea, 111 Oh St, 715; In re Arrasmith, 54 Oh Ap, 391; In re Beach, 16 Abs, 655.

Counsel for appellant argues that the case really involves a construction of the will, and is therefore a chancery proceeding. We can not so hold, since any necessary reference to the will would be purely incidental.

Following our practice, we determine that the case may not be heard as an appeal on law and fact and will hold the case for determination as an appeal on questions of law. Thirty days will be given for the preparation and allowance of a. bill of exceptions.

We find that appellant has proceeded as though the appeal was upon law, that is a bill of exceptions has been filed, also assignments of error and briefs. Under the form of appeal this was irregular. If counsel for executrix will agree, the entry may contain the provision that the bill of exceptions may be accepted without refiling. If such an agreement is not obtained, then the same should be refiled as should the assignments of error and the briefs. The refiling should follow the filing of the entry as authorized under this opinion.

Entry may be prepared in accordance with this opinion.

BARNES, PJ, HORNBECK and GEIGER, JJ, concur.


author: Per CURIAM.

text:
    GALION (City) v. GALION (City) et.
    Ohio Appeals, Third District, Crawford County.
    Decided February 7, 1950.
    George H. Davies, Galion, Myers & Spurlock, Bucyrus, for plaintiff-appellee.
    Strelitz, Halberstein & Mitchell, Marion, Carl J. Gugler, Galion, for defendants-appellants.
   OPINION

Per CURIAM.

This is an appeal on law and fact.

The action was instituted in the name of the City of Galion, Ohio, by George H. Davies, its solicitor, against the City of Galion, Ohio, and The Ohio Public Service Company, an Ohio Corporation.

The petition recites that the plaintiff is a municipal corporation of the State of Ohio, with a population of more than 5000 citizens; that George H. Davies is now and was at the time mentioned in the petition, the duly elected, qualified and acting solicitor of the City of Galion, and that as such solicitor he brings this action on behalf of the City of Galion for the benefit of said city and taxpayers thereof; that the defendant, The Ohio Public Service Company is a corporation organized and existing under the laws of the State of Ohio, and is a public utility engaged in the business of manufacturing, selling and furnishing electric power and other utility products and services in the State of Ohio.

The petition also recites that on the 4th day of November, 1948, the council passed an ordinance known as No. 2796 which ordinance, in substance, provides that a right is granted to The Ohio Public Service Company to erect, construct, maintain and use the necessary poles, wires, conduits and such other structures, fixtures, and appliances, overhead and underground .as may be necessary or essential to enable The Ohio Public Service Company to transmit electricity through and along the streets, alleys, highways and public places of the City of Galion, Ohio, for the purpose of furnishing and supplying electric service to The Galion Iron Works & Manufacturing Company and to The Central Ohio Steel Products Company.

That in the title and body of the ordinance it is stated that the electrical energy now produced or that can be produced in the immediate future by the Galion Municipal Light Plant is wholly inadequate and insufficient to meet the demands of its customers; and further, that by reason of the lack of ability in the furnishing of power, the two manufacturing concerns above-named have been compelled to shut down at various times, resulting in loss of wages to employees and the loss of profits to the manufacturers.

That the local municipal light plant is in such a state of disrepair that it will take years to rebuild and repair the same so as to take care of the needs and demands of its customers.

That by reason of this failure of the municipal light plant to furnish dependable power at all times, The Galion Iron Works & Manufacturing Company and The Central Ohio Steel Products Company requested of council the permission to purchase power otherwise than from the municipal light plant.

The ordinance in question granted to The Ohio Public Service Company the right, for a 10-year period, to supply electrical service to these two manufacturing companies.

Said ordinance was passed on October 5, 1948, was filed with the Mayor October 8, 1948, was vetoed by the Mayor of said city on October 13th, 1948, and was repassed by the council over the Mayor’s veto, on November 4, 1948, and a referendum petition or petitions filed with the Mayor on December 3, 1948.

On November 24, 1948, The Ohio Public Service Company filed its written acceptance of said ordinance with the Clerk of the City of Galion, to which a reply amended was duly filed by the plaintiff.

A temporary injunction was granted to the plaintiff on the 13th of November, 1948, enjoining any activity on the part of the defendants under said ordinance “until said time as it could be determined that if any referendum, if filed thereto be filed in compliance with law and the Constitution of the State of Ohio, and if and' when such referendum has been duly and legally filed, any procedure under said ordinance is temporarily enjoined until such time as a favorable vote has been had thereon.”

Thereafter, the matter was heard on its merits on May 5, 1949, and on June 14, 1949, the court filed its findings of fact and conclusions of law indicating the issues in favor of the plaintiff and against the defendants, the temporary injunction to remain in full force and effect until Ordinance No. 2796 has been submitted to a referendum vote.

The court, by journal entry, on September 24, 1949, approved its separate findings of fact and conclusions of law, and awarded the relief prayed for in the petition, and made permanent, the temporary injunction theretofore allowed, until Ordinance No. 2796 had been submitted to a referendum vote of the electors of the City of Galion, Ohio.

The salient facts necessary for a decision in this case are not seriously disputed by any party.

The findings of fact of the trial judge are substantially correct, as follows:

That the City of Galion contains at least 5000 electors, and for many years and at the time of the passage of the ordinance, Ordinance No. 2796, owned and operated a complete electric power plant, including a distribution and generating system.

That the ordinance in question, namely, Ordinance No. 2796, was passed on October 5th, 1948, and vetoed by the Mayor of the City of Galion, Ohio, on October 13, 1948, and passed over the Mayor’s veto by the said council, on November 4th, 1948.

That the said Ordinance No. 2796 granted to The Ohio Public Service Company the right and permission, for a period of ten years from the effective date of the ordinance, to erect, construct, maintain and use the necessary appurtenances to enable it to transmit electricity through and along the streets and public places of the City of Galion, Ohio, for the purpose of furnishing and supplying electric service to The Galion Iron Works & Manufacturing Company and The Central Ohio Steel Products Company.

On November 24, 1948, The Ohio Public Service Company accepted the terms of the ordinance No. 2796, in accordance with the stipulations contained therein.

The Galion Iron Works & Manufacturing Company and The Central Ohio Steel Products Company are manufacturing corporations whose manufacturing plants are within the territorial limits of the City of Galion, Ohio.

A referendum petition or petitions were filed with the Mayor of the City of Galion, Ohio, on December 3, 1948, calling for a vote by the electors of Galion, Ohio, for approval or rejection of the ordinance in question.

That no other referendum petition or petitions of any kind have been filed with respect to said Ordinance No. 2796.

While it was not orally argued, the question is raised that the ordinance is void.

It must be borne in mind that this is an action not brought by an abutting property owner along the course proposed for the erecting of the structures and other things necessary for the connecting of the two manufacturing plants with the connections of the terminals of The Ohio Public Service Company, but is an action brought by the City of Galion.

The city had ample power to grant permission as is contained in Ordinance No. 2796 because such public purpose is not inconsistent with the use of the streets or its primary public purpose. Sec. 9193 GC. Sec. 9195 GC. 23 O. Jur., Sec. 353, Municipal Corporations, pages 566-567. 15 O. Jur., Secs. 51-52, Electricity, pages 535-536-537.

The issue readily presents itself as to whether the ordinance in question is subject to the constitutional provisions, otherwise known as a constitutional referendum, or whether it is such an ordinance as is subject to the statutory referendum.

If it is a statutory referendum, then the petition or petitions of referendum should have been filed with the City Auditor rather than the Mayor, and if a statutory referendum, this is a defect that is fatal to a proceeding under the statutory referendum.

All parties agree that the filing of the referendum petition or petitions was for the purpose of invoking a constitutional referendum which explains the filing of the referendum petition or petitions with the Mayor of the city, which was the proper depository for invoking a constitutional referendum.

This resolves the matter into the sole question for determination, without reference to a discussion of whether or not the duly passing of the ordinance was on the date of its original passage by the council, or on the date of the passage of the ordinance overriding the veto of the Mayor.

Unless the referendum can stand up under the filings heretofore made, it is too late now to invoke any referendum, and the ordinance became effective on November 4th, 1948. To invoke a constitutional referendum it is obligatory that the ordinance shall embrace the provisions that are contained in Art. XVIII, Sections 4 or 5 or 8 or 12.

These constitutional provisions provide, in substance: what must be acquired or established, the financing thereof, and the manner in which the referendum procedure shall be followed.

Section 4 is a delegation of power to municipalities to acquire, own, lease and operate a plant for the generation and distribution of electrical energy to be supplied to the municipality and its inhabitants; Section 5 provides the manner in which the municipality may proceed and exercise the power conferred by Section 4, while Section 12 is a grant of power to raise the money incidental to and for the purpose of the exercise of the power conferred by Section 4.

Section 4 of Art. XVIII, as applied to an electric public utility, comprises both a generating plant and distribution system; or, in other words, a complete electric public utility, and until these requirements are met, Section 4 of Art. XVIII has no application.

By the stipulations it is admitted that there is now, and for some time has been, a complete electric public utility in operation in Galion, Ohio, as a municipal plant. Shryock v. City of Zanesville, 92 Oh St., 375, 110 N. E. 937. Priest v. City of Wapakoneta, 24 Abs 214, 32 N. E. 2d 758; Id., 132 Oh St 527, 9 N. E. 2d 292.

It follows, therefore, that the ordinance in question is not subject to a constitutional referendum.

In view of our holding that no constitutional referendum can be had on the ordinance, it is unnecessary to determine whether the petition or petitions of referendum should have been filed within thirty days from August 5, 1948, when the ordinance was passed by council, or within thirty days from November 4, 1948, when the veto of the Mayor was overridden.

The injunction heretofore granted is dissolved and the petition of the plaintiff is dismissed, and costs are assessed against the plaintiff.

GUERNSEY, PJ, and MIDDLETON and JACKSON, JJ, concur.


author: By THE COURT: MATTHEWS, J,

text:
    BRENDAMOUR, INC., Plaintiff-Appellee, v. ARTHUR MURRAY DANCE STUDIO, INC., Defendant-Appellant.
    Ohio Appeals, First District, Hamilton County.
    No. 7342.
    Decided January 29, 1951.
    Barbour, Kimpel & Allen, Cincinnati, for plaintiff-appellee. Galvin, Tracy, Geoghegan, Levy & Milliken, Cincinnati, for defendant-appellant.
   OPINION

By THE COURT:

An examination of the record discloses no error, prejudicial to the appellant. The judgment is, therefore, afidrmed.

ROSS, PJ, HILDEBRANT, J, concur.

MATTHEWS, J, dissenting in separate memorandum.

MATTHEWS, J,

dissenting:

This is an appeal from a judgment rendered by the Municipal Court of Cincinnati, in favor of the plaintiff-appellee for damages caused to a stock of goods and fixtures by water.

The plaintiff alleged in its bill of particulars that the defendant was the occupant and in exclusive possession “of the second floor of the premises located at 529 Main Street, Cincinnati, Ohio, that said defendant occupies said premises by virtue of assignment to it of a certain lease originally held by Robert W. Knight from the estate of Bertha W. Harrison, owner of said premises. Plaintiff further says that the premises leased and occupied by the defendant are located directly above the premises leased and occupied by the plaintiff.”

The plaintiff also alleged that “on the night of December 14th, 1949, the defendant caused or permitted a certain toilet located in its premises to become stopped, whereby the water from the same overflowed and ran down into the store room occupied by plaintiff, causing the damage hereinafter-set forth.”

The plaintiff further alleged that “as a result of the carelessness and negligence of the defendant in permitting said toilet to overflow and the water to enter plaintiff’s store” its fixtures and stock of merchandise were damaged.

In its statement of defense, the defendant admitted that1 it and plaintiff were corporations, that it occupied and was in exclusive possession of the second floor of the premises located at 529 Main Street, Cincinnati, Ohio, and that said premises were directly above the premises leased and occupied by the plaintiff. The defendant further admitted “That on the night of December 14th, 1949, certain toilets located on the premises overflowed.”

At the trial without a jury, the plaintiff introduced evidence-that when its president arrived at its store on the morning of December 15th, 1949, water was running and dripping from the ceiling onto its fixtures and merchandise, that the water was turned off at the meter, but no evidence was introduced' as to its location, that the water then stopped dripping, and further proved the damage, and then rested. The defendant then moved for judgment, which the Court overruled. Thereupon the defendant rested without introducing any evidence.

It will be noted that no evidence whatever was presented as to what caused the toilet to overflow. The plaintiff alleged that it clogged, but the defendant did not admit that and there was no proof. All the record shows as to the defendant’s participation in this occurrence is what it admits in its answer or statement of defense and that is that it was in exclusive possession of the premises above the plaintiff’s premises, that it and plaintiff occupied their respective premises under leases from the same lessor, that a toilet was located on the floor occupied by it, which, on the night of December 14th, 1949, overflowed.

The cause of the overflowing is a matter of pure speculation, unless we can say that no matter what the specific circumstances may be, an inference may reasonably be drawn that the defendant’s negligence was involved.

Attention should be called to the fact that the instrumentality producing the damage was not in the exclusive possession of the defendant, disconnected from other instrumentalities in the possession and under control of others. The toilet located on the second floor of this building was a small part of a vast water works and sewage system. We do not know what caused it to overflow. If, as plaintiff alleged, but failed to prove, it became clogged, that clogging could have taken place far removed from defendant’s premises. Indeed, it could conceivably have occurred on the plaintiff’s premises and produced the overflowing of defendant’s toilet.

It should also be noted that the means of proving the cause of the overflowing of the toilet were as available to the plaintiff as to the defendant. In fact, plaintiff was on the scene first.

The trial .court found as its conclusions of law that:—

“The overflow of water from toilet in defendant’s premises was sufficient prima facie evidence to establish negligence against defendant in absence of some explanaiton negativing want of care on its part.”

Whether that conclusion of the trial court is justified is the question raised by this appeal. My associates are of the opinion that it is. I find myself unable to concur.

The plaintiff-appellant says that the question presented is whether the evidence and admissions in the pleadings call for the application of the doctrine of res ipsa loquitur. The plaintiff-appellee asserts that the doctrine is applicable.

As I understand the doctrine of res ipsa loquitur, it is no more nor less than a special instance of proof by circumstantial evidence, the test being the same as in all cases where it is claimed the fact is established by circumstantial evidence, and that is whether it can be said that the probative inference can be drawn without departing from the bounds of rationality, in other words, whether the conclusion is a rational inference or a mere guess. It is my belief that the conclusion that this toilet was caused to overflow because of defendant-appellant’s negligence is a mere guess or conjecture and not a reasonable inference from any admitted or proven circumstance.

Courts have found during the years from experience that the evaluation of evidential data and the drawing of inferences therefrom is perhaps the most difficult task with which they are confronted. To lighten this task, the tendency has been to establish rules and categories, notwithstanding the rarity with which specific circumstances repeat themselves. This tendency, to establish general rules, largely accounts for the doctrine of and the slogan res ipsa loquitur. Of course, in using the slogan, the fact that any circumstance in any case of any evidential value must speak for itself is not stated, although manifestly that is the fact.

The plaintiff-appellant seems to rely chiefly upon the case of Altman v. Devou, 18 N. P. (N. S.) 487 decided by the Common Pleas Court of Hamilton County. He argues that the facts and circumstances are identical and that the court held that the principle of res ipsa loquitur applied. I do not think the facts are identical. In that case the defendant was the owner of the entire building and in exclusive possession of the whole building except the first floor, which he had leased to the plaintiff. A water pipe burst. The case before us is a controversy between two tenants of portions of a building owned by their common landlord. It seems to me obvious that the possibility of an intervening agency, other than the tenant’s negligence causing a toilet to overflow, is greater than such an intervening agency explaining the bursting of a water pipe, rather than the failure of the owner to inspect and replace a corroded and defective pipe. Altman v. Devou was affirmed by the Court of Appeals without opinion.

The defendant-appellant contends that if the Court of Appeals in affirming Altman v. Devou meant to approve the opinion of the Common Pleas Court, it later changed its opinion as shown by its later decision of Heil v. Proctor, 12 Oh Ap 35. The decision was by different Judges and there is nothing in the opinion that conflicts with Altman v. Devou. The facts developed in Heil v. Proctor were much more detailed. The plaintiff and defendants in that case, as in this case, were tenants of portions of a building owned by their common lessor. The defendant — the lessee of the upper floor — was a book-binder. He carried the key to a room where a sink was located. On a Monday morning certain glue pots and other utensils, used by defendant in his business, were found in the sink; that soft, mushy glue had escaped from the pots and clogged the outlet resulting in water overflowing. There was evidence that the defendant relied on the lessor under certain circumstances to turn the water off in the hall. There were other circumstances developed.

The Court, without mentioning the doctrine 'of res ipsa loquitur, either expressly or impliedly, analyzed the evidence and reached the conclusion that there was sufficient circumstantial evidence of negligence to justify its submission to the jury. The court in passing upon a point of pleading could be said to have impliedly indicated its belief that more than the mere happening had to be alleged-. The averment of the petition was “That the defendant — negligently and carelessly caused and allowed large quantities of water to overflow said sink — and run and flow through the floors and down into the rooms occupied by the plaintiff as tenant.” There was no objection of any sort to this petition in the trial court, but on appeal it was urged that it was too indefinite. In passing upon this contention, the Court of Appeals said: “This court is of the opinion that the petition would be subject to a motion to make more definite and certain, but that the defendant having answered by a general denial and gone to trial without objection, it is too late thereafter to contend that the petition was insufficient.”

If the overflowing itself bespoke negligence on defendant’s part, the petition did not require any more definite averments.

It would serve no purpose to discuss the many cases in which courts have analyzed records to determine whether sufficient circumstantial evidence appeared to justify submission to the trier of the facts. It is a problem of sound reasoning in every case. The res ipsa loquitur doctrine cases differ only from other cases of circumstantial evidence in that in them there is usually, if not always, one dominating fact from which an inference may reasonably be drawn.

This whole subject was considered by the Supreme Court in the case of Soltz v. Colony Recreation Center, 151 Oh St, 503, in which it approved the refusal of the trial court to instruct the jury on the principle of res ipsa loquitur in an action to recover damages caused by a fire that originated in that portion of a building occupied by the defendant tenant. I quote the first paragraph of the syllabus to that case:

“The doctrine of res ipsa loquitur may be applicable where (a) the instrumentality causing the injury was under the exclusive management and control of the defendant and (b) ‘the accident occurred under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed.’ (Fink v. N. Y. Central Rd. Co. 144 Oh St, 1, approved and followed.)”

At page 511, the court said:

“In effect, before applying the doctrine of res ipsa loquitur, the court must be warranted in taking judicial notice of the fact that the accident does not happen in the ordinary course of events unless there is negligence. See Cincinnati Traction Co. v. Holzenkamp, supra, at 389. When ordinary care does not require a great amount of care, it will be just as likely, in the absence of evidence tending to prove negligence, that the accident was due to a cause other than negligence.”

It is my view that the defendant-appellant was only charged with the duty of exercising ordinary care in and about its premises, and that the- circumstances do not show that the operation of this toilet was in its exclusive control, or that in the ordinary course of events, the overflowing would not have occurred had ordinary care been observed.

It seems to me that to charge the appellant on this record is to impose liability without proven fault. It may be that sound policy would justify imposing such liability, but that is not the law of Ohio.

It also seems to me the court erred in admitting evidence of other instances of the overflowing of this toilet.

For these reasons, I favor the reversal of the judgment and entering final judgment for the defendant-appellant on its motion for judgment made at the trial.


author: By HUNSICKER, J.

text:
    GELMAN v. HOLLAND FURNACE CO.
    Ohio Appeals, Ninth District, Lorain County.
    June 8, 1948.

      Levin & Levin, Lorain, for appellant.
    Keep & Scholz, Lorain, for appellee.
   OPINION

By HUNSICKER, J.

In this appeal on questions of law and fact, the appellant (plaintiff below), Sarah Gelman, says- that she entered into a written lease with the appellee (defendant below), Holland Furnace Co., a corporation, whose principal place of business is in Holland, Michigan.

Appellant further alleges that: she understood the lease to be for one year, and, inasmuch as she is unable to read the English language, she did not know that there had been inserted in the lease a privilege to the appellee company of extending the lease for five successive periods of one year each; said option clause was inserted in the lease by appellee company wrongfully and with the purpose of defrauding and deceiving the plaintiff; the agreement as executed does not represent a meeting of the minds of the parties, nor the agreement of the parties; she has no adequate remedy at law. The prayer of her petition is that the option clause be rescinded, cancelled and declared null and void.

The appellee company admits the parties entered into a lease, and that there is a provision in said lease granting the appellee company the privilege of renewing the lease for five successive periods of one year each at the option of said company. It denies all other allegations of the petition.

The appellant filed a reply in this court, which denies those things in the answer not admitted in the petition, and alleges that the lease is not attested by two witnesses, is not recorded, and is hence void by reason of the provisions of §8510 GC.

The facts disclose that: appellant had leased the premises herein to appellee company for many years in a succession of one-year leases; the agents of the company brought to appellant, before the expiration of the term of the prior lease, the lease here under consideration; Mrs. Gelman could not read the English language; the agents of the company asked her to sign the written lease they had prepared, but did not state that it contained a renewal privilege; Mrs. Gelman, after keeping the lease several days in her possession, signed it and acknowledged it before a notary public; the lease was never read nor the contents thereof explained to Mrs. Gelman by the agents of appellee company, nor did she have anyone read it to her while she retained possession of it before she signed it; the agents of the company forwarded the lease to their home office, where it was signed and acknowledged by the proper officers of the company, and then it was delivered by the agents of the company to Mrs. Gelman; the lease was not attested in the presence of witnesses by either Mrs. Gelman or the officers of appellee company.

This hearing de novo has before it the reply, which was first filed in this court, and which was not before the court below for consideration. The defendant company did not demur or otherwise object to its being filed and considered, although in its brief it says the claim of invalidity by reason of the failure to have the lessor’s signature attested by witnesses is a departure from the allegations of the petition and hence cannot be considered here.

The cause of action is for cancellation and rescission of the option clause, based on its invalidity because of fraud and deceit in securing the execution of the lease. The reply says that the lease is void because not executed in conformity to law.

The lease was introduced in evidence and is before us for consideration. Prom a reading of the lease, it is evident that more than the first year of the term has elapsed before this case is heard by this court de novo.

Consideration should be given to all the evidence before us, to determine whether the plaintiff is entitled in this action to the relief she seeks, notwithstanding the reason assigned in asking for such relief.

Sec. 8510 GC, in its pertinent part, reads as follows: “A * * * lease of any estate or interest in real property, must be signed by the * * * lessor, and such signing be acknowledged by the * * * lessor in the presence of two witnesses, who shall attest the signing and subscribe their names to the attestation.”

Is a lease for one year, with an option in the lessee to extend such lease for five successive additional years, and “estate or interest in real property” that is required to be executed in compliance with §8510 GC?

“It has been decided, for the purpose of determining the applicability of a statute restricting the period for which a lease can be made, that the lease is invalid if the sum of the original term and the renewal term exceed the period named in the statute * * V’ 2 Tiffany, Landlord and Tenant, Sec. 219.

The lessee herein has the privilege of an extension under the terms of this lease. No new agreement and lease need be executed, and all that the lessee is required to do is give notice to the lessor of its intention to continue to occupy the premises. The appellee company would then hold the premises under the terms of the original lease. Gross v. Clauss, 6 Oh Ap 140.

It is well settled that a parol lease for a term not to exceed three years is valid if accompanied by a change of possession. If the lease in the instant case is for but one year, it is valid. If, however, the option period of renewal must be considered an integral part of the lease, which must be added to the year principally granted, then the term of the lease is for six years and void because not properly attested by witnesses.

In the case of People’s Bldg., Loan & Savings Co. v. McIntire et al., 14 Oh Ap 28, the court held that:

“1. A lease of real property for a term of one year with an option of renewal for four consecutive years is an interest in real property within the purview of §8510 GC, requiring acknowledgment and attestation.
“2. Such a lease is void when not properly acknowledged and attested, and a lessee in possession thereunder is a tenant from year to year, at the will of the lessor, and subject to all the provisions of the lease excepting duration.” See also: Hodesh v. Hallerman, 45 Oh Ap 278, at page 281, 186 N. E. 921; Gross v. Clauss, supra, 6 Oh Ap at page 143.

The lease herein sought to grant an interest in real property for the full term of six years named therein, and such lease was required to be attested in conformity with the provisions of §8510 GC.

The right of a landlord to cancel a defective lease in equity has not been passed upon by our Supreme Court in any case that has come to our attention; but that court, in the case of Wineburgh v. Toledo Corporation, 125 Oh St 219, 181 N. E. 20, 82 A. L. R. 1315, which was an action at law, in commenting on the early Ohio case of Richardson v. Bates, 8 Oh St 257, said, 125 Oh St at page 222, 181 N. E. at page 21: “Since that decision was made, this court has held that an entry by a lessee under a lease, defectively executed, for a term of years, at an annual rental, creates a tenancy only from year to year * * *.” The court further said, 125 Oh St at page 223, 181 N. E. at page 21: “Whether reformation or other equitable remedy is available to the landlord under this or similar circumstances, it is not necessary to decide in this action, for that question is not here presented.”

The majority rule is that equity will not assume an original jurisdiction to cancel an instrument that is void on its face, where no extrinsic evidence is necessary to establish its invalidity. Duhme, Adm’r v. Mehner, Adm’x, 6 Ohio Cir. Dec. 78, at page 79; 6 O. Jur., Cancellation of Instruments, pg. 541, Sec. 30; 4 Pomeroy’s Equity Jurisprudence, Fifth Ed., Sec. 1377.

There is, however, an ancient rule in equity jurisprudence that, where the jurisdiction of equity has been properly invoked, it may retain the entire case in order to do complete justice. This rule is especially true in those states where, as in this state, the distinction in modes of procedure between equity and law has been abolished. Art. XIV, Sec. 2, Ohio Constitution, and §11306 GC. 30 C. J. S.., Equity, § 73, note 39 on page 428, and cases there cited.

This rule has long been recognized in Ohio, as evidenced by the statement of Judge Spear, in the case of Gantz v. Gease et al., 82 Oh St 34, at page 46, 91 N. E. 872, at page 875, where he said: “And, applying the long-established rule of equity that where a court of chancery has obtained jurisdiction of a cause for one purpose, it may retain it generally and proceed to final determination of all matters at issue * * See also: McCormick v. McCormick, 124 Oh St 440, 179 N. E. 286; Lyons et al v. Chapman, 40 Oh Ap 1, 178 N. E. 24; 16 O. Jur., Equity, pg. 80, Sec. 34, and cases there cited; 1 Pomeroy’s Equity Jurisprudence, Fifth Ed., Secs. 231 and 241.

In the instant case we recognize that the cause .of action for cancellation on the ground of fraud and deceit properly invoked the equity powers of the court; and, when the invalidity of the lease on legal grounds was asserted, based on the provisions of §8510 GC, coupled with the claim of equitable relief, this court had before it a proper case in which to invoke the rule of equity that the entire case be retained in order to proceed to a final determination of all matters at issue.

Applying the equity rule of retention, we declare the lease void because not properly attested as required by §8510 GC, and decree its cancellation.

In view of the above decision, it is not necessary to pass on the question of fraud and deceit.

A decree for the appellant may be prepared, in accord with this opinion.

DOYLE, PJ, and STEVENS, J, concur.


author: By PER CURIAM.

text:
    LINARD v. PENNSYLVANIA RAILROAD CO.
    United States Court of Appeals Sixth Circuit.
    No. 11082.
    Decided April 21, 1950.
    Lyman Brownfield, Charles Schwenker, Columbus, for appellant.
    Porter, Stanley, Treffinger & Platt, Charles S. Gillispie, Columbus, for appellee.
    Before SIMONS, McALLISTER and MILLER, Circuit Judges.
   OPINION

By PER CURIAM.

The appellant appeals from a judgment dismissing his amended complaint.

The amended complaint alleges that on June 17, 1925, while riding as a passenger in an automobile operated by his father, he was struck by a train being operated by the defendant near Port Washington, Ohio, and suffered serious injuries thereby; that the accident was proximately caused by the negligence of the defendant; that he was 2% years of age at the time; that about two months after the accident the appellee obtained a release from liability to him in consideration of the payment of $25; that such release was obtained through proceedings in the Probate Court of Tuscarawas County, Ohio, instituted by his parents; that the institution of such proceedings and the execution of the release were obtained by fraudulent representations made by appellee to the appellant’s parents; and that by reason of appellee’s fraud and deceit the appellant was deprived of a valuable cause of action against appellee to his damage in the sum of $75,000, for which amount judgment was prayed. It also alleged that appellant was in active military service from March 26, 1943 to March 6, 1946, which prevented him from bringing the action during that period of time. Appellee’s motion to dismiss the amended complaint was sustained.

Sec. 11224-1 GC, effective August 2, 1927, provides that an action for bodily injury must be brought within two years after the cause thereof arose. Sec. 11229 GC provides that if a person entitled to bring an action is within the age of minority he may bring it within the limitation period provided after such disability is removed. The appellant became of age about January 1944. If he had not entered the military service the two foregoing sections of the Code would have extended the running of the statute of limitations until approximately February 1, 1946. Under the provisions of the Soldiers’ and Sailors’ Civil Relief Act, Section 525, Title 50 U. S. C. A., App. the period of military service is not included in computing any period limited by law for the bringing of an action. Accordingly, the statute did not commence running until his discharge from military service on March 6, 1946. The filing of an action by appellant for personal injuries was accordingly barred after March 6, 1948. The present action was filed on March 22, 1948, and is barred by the statute of limitations if considered as an action to recover for personal injuries caused by the negligence of the appellee.

Appellant contends that the action is one for relief on the ground of fraud, which, under §11224 GC may be brought within four years after the cause accrued. Realizing that an action to set aside the alleged voidable release would merely restore to him his right to sue in tort for the personal injuries suffered, and that such a tort action would be barred, he maintains that he has the right to sue for damages caused to him by the fraud and deceit of the appellee instead of electing to set the transaction aside for fraudulent representations.

We recognize the rule that where a contract has been procured by fraud the party defrauded has the election to have the transaction set aside and to be restored to his original position, or to sue in tort for the damages caused by the deceit or fraud of the guilty party. The rule has been applied by some courts to situations similar to those involved in the present case. Urtz v. New York Central R. R. Co., 202 N. Y. 170, 95 N. E. 711; Rochester Bridge Co. v. McNeill, 188 Ind. 432, 122 N. E. 662; Brown v. Ocean Accident & Guaranty Corp., 153 Wis. 196, 140 N. W. 1112. Other courts have denied a recovery in damages on the ground that the damage was too speculative, or that the proper procedure was for the plaintiff to first set aside the release which barred his action and then proceed upon his original cause of action based on negligence. Taylor v. Hopper, 207 Cal. 102, 276 P. 990; Whitman v. Seaboard Air Line Ry., 107 S. C. 198, 92 S. E. 861, L. R. A. 1917F, 717; Lomax v. Southwest Mo. Electric Ry. Co., 106 Mo. App. 551, 81 S. W. 225.

The question presented by the case at bar has not been passed upon by the Supreme Court of Ohio, but in Picklesimer v. Baltimore & O. Railroad Co., 151 Oh St 1, 33 O. O. 477, 84 N. E. 2d 214, 217, the Court had for consideration a similar situation and, although basing its decision upon another ground, it nevertheless indicated that the case was essentially one sounding in tort. The opinion said—

“Hence, although the plaintiff has injected the matter of fraud, the original basic elements of his case — ¿negligence, injury and proximate cause — remain unchanged, and there seems to be no persuasive reason for the application of a different rule. The simple addition of the claim of fraud cannot be regarded as a bit of legerdemain by which the plaintiff somehow has eliminated any of the original elements of negligence, injury and proximate cause.”

In Urtz v. New York Central Railroad Co., supra, relied upon by appellant, the Court recognized the practical difficulties of properly assessing the damages in such an action. The jury, assessing the damages would have to consider the probabilities of successful enforcement of the alleged cause of action, the extent and expense of the expected litigation, the law’s delays, and what another jury might have awarded the plaintiff if he had been successful in an action on the original tort. The difficulties in determining the proper value of such an alleged cause of action are very materially increased with the passage of time. In the present case, the death or absence of key witnesses and the failing memories of those who may be available after a lapse of twenty-three years would make the process one of speculation rather than any fair attempt to properly assess the damages.

The judgment is affirmed.


author: By GEIGER, J:

text:
    STATE, ex HODAPP, Plaintiff, v. HAINES, Defendant.
    Ohio Appeals, Second District, Montgomery County.
    No. 1614.
    Decided March 15, 1943.
    Dale Hodapp, William D. Schaeffer, Earl C. Null, Dayton, for plaintiff.
    Nicholas F. Nolan, Pros. Atty., Edward E. Duncan, Asst. Pros. Atty., Dayton, for defendant.
   OPINION

By GEIGER, J:

This is a mandamus proceeding originally brought in this court.

On May 27, 1942, (36 Abs 375), we rendered our opinion on the demurrer to the petition, overruling the demurrer. Since the demurrer was overruled the defendant has filed an answer and the matter is now before us on a demurrer by the plaintiff to the defendant’s answer. The petition in this case closely follows the form of the petition in State, ex rel. Zangarle, County Auditor, 135 Oh St 533. Due to the fact that the allegations of the petition and the determination of the Court are available in the above cited case of State v. Hodapp, we will refrain from setting them out again at length.

The relator in his petition prays that a temporary writ issue compelling the County Auditor to proceed to investigate and to assess against all immunity certificate holders and other persons who have failed to pay their proper and full personal property taxes for the years 1926 and 1930, additional taxes and penalties found to be due as provided by the statute, or to show cause why he has not done so. The defendant, Jesse Haines, has filed under date of June 12, 1942, a short answer. The first paragraph is,

“Now comes Jesse Haines, defendant, and admits that he is the duly elected and qualified Auditor of Montgomery County, Ohio, but denies all other allegations of the plaintiff’s petition.”

By way of further answer he says that he is willing to and expects to comply with all the laws to the best of his ability; that he is precluded from proceeding to assess the taxes on personal property for the years prior to 1932 by amended Senate Bill 13, effective ninety days after May 15, 1941.

Defendant asks the Court for further instructions as to his duties in the premises, if the Court finds that said amended Senate Bill and cognate sections of the General Code do not fully cover the matter alluded to in the petition, insofar as defendant’s duties are concerned.

The defendant further says that there are no assessments pending at the effective date of said Senate Bill relating to the estates mentioned in the petition, and he asks that the petition of the plaintiff be dismissed.

To this answer the plaintiff, under date of November 9, 1942, files a demurrer as follows:

“Now comes the plaintiff, State, ex rel. Dale Hodapp, and demurs to the answer of the defendant filed on the 12th day of June, 1942, for the reason that the same does not state facts sufficient to constitute a legal defense.”

The plaintiff then sets out a short memorandum supporting his demurrer, asserting that the only defense of respondent is an act of the Legislature, being §5398-2 GC, et seq, which did not become effective or operative until May 14, 1941, and which is unconstitutional.

The plaintiff cites a number of recent cases which he claims support the demurrer to the answer of respondent. See State, ex rel. Hostetter, Appellee, v. Hunt, 132 Oh St 568; State ex rel v. Zangerle, 135 Oh St 533; Black, et al., Appellants, v. Evatt, 138 Oh St 52; Ireland, Jr., Exr., Appellant v. Evatt, 138 Oh St 61.

In the view that we have taken of this matter now before -this court, we do not feel called upon to comment at length upon any of these cases, except to say that they raise interesting questions which may be of importance as the case progresses.

The matter is now before us on a demurrer to the defendant’s answer, and the first paragraph of that answer is in ■substance a general denial of all allegations of the plaintiff’s petition. The several defenses are not separately numbered, but are each found in separate unnumbered paragraphs of the answer.

The pertinent statutes touching demurrers to answers are: Sec. 11323 GC, “The plaintiff may demur to a counterclaim, set-off, or defense consisting of new matter, on the ground that ■on its face it is insufficient in law.”

Sec. 11325 GC, “The plaintiff may demur to one or more ■of several counterclaims, set-offs or defenses consisting of new matter, and reply as to the residue.”

“It is a fundamental rule of pleading that a general demurrer to any pleading containing two or more causes of action or defenses may not be sustained if any one of said causes of action or defenses therein is well pleaded.” Bates Pleading, Practice, Parties and Forms, 4th Ed. Sec. 401 F. Fidelity and Deposit Co. of Maryland v. Cleveland, 30 O. C. A. 321.

“A demurrer admits the truth of the traversable allegations of the pleading demurred to and this includes whatever may be implied from the allegations.” Bates Pleading, Practice, Parties and Forms, 4th Ed., Sec. 395.

“A petition or answer having one good count or defense is not reached by a general demurrer to the answer, though the other counts are bad. This being an analogy to the rule above stated that a general demurrer to a petition containing several counts is bad if there is one good count.”

It will at once appear upon examination of this answer that the first paragraph must necessarily plead a good defense inasmuch as it is a general denial of all the allegations of the petition.

If it has plead a good defense, then the general demurrer may not be sustained under the proper rules of pleading.

We need not further discuss the matter. Demurrer overruled.

BARNES, PJ, HORNBECK, J, concur.


author: By JACKSON, J.

text:
    REX v. LOCOMOTIVE ENGINEERS MUTUAL LIFE AND ACCIDENT INSURANCE ASSOCIATION.
    Municipal Court of Cleveland.
    No. A-139934.
   OPINION

By JACKSON, J.

This cause came on to be heard before the court upon the petition, amended answer and reply, agreed stipulation of facts, briefs, and oral argument.

The plaintiff herein Mary M. Rex, seeks through her petition to recover from defendant, The Locomotive Engineers Mutual Life and Accident Insurance Association the sum of Three Thousand Dollars ($3,000.00) with interest thereon from November 19, 1948,, as beneficiary under two certificates of life insurance issued by defendant to E. H. Rex, deceased husband of plaintiff, while said E. H. Rex was a member of defendant association. It is the claim of plaintiff that said certificates were in full force and effect at the time of the assured’s death November 17, 1948.

The defendant through its amended answer denies the right of plaintiff to recover on said certificates for the reason that the assured E. H. Rex, had failed to pay the assessments provided by the Association’s by-laws since October, 1933. To this amended answer the plaintiff has filed her reply denying the allegations in the defendant’s amended answer by reason of which the defendant seeks to avoid payment thereon.

The facts as agreed upon by the parties in the stipulation to the court are as follows:

1. E. H. Rex became a member of The Locomotive Engineers Mutual Life and Accident Insurance Association, a fraternal benefit society, on November 1, 1885, at which time said Association was an unincorporated association known as “The Locomotive Engineers Mutual Life Insurance Association.” At said time E. H. Rex applied for and received from said Association two certificates of insurance, each in the amount of $1500.00. The original application and certificates have been lost and cannot be produced. At said time the by-laws of The Locomotive Engineers Mutual Life Insurance Association provided, in part, as follows:

“Any member failing to pay an assessment when ordered, as provided in the By-laws, or within the prescribed time, shall forfeit his membership and shall forfeit all right and title he or his heirs may have to any benefit or claim in or against this Association.”

The said Insurance Association was incorporated on March 1, 1894. On April 22, 1914, the original certificates were replaced by two other similar certificates, each in the amount of $1500.00, bearing numbers 19955 and 19956, copies of which certificates (not including the endorsement on the reverse side thereof) are attached to. plaintiff’s petition. On April 22, 1914, the constitution and by-laws of defendant Association provided, in part, as follows:

“The regular 'application blank prepared and issued by this Association furnished to and signed by the applicant, the policy issued thereon, and the by-laws in force at that time or as amended from time to time, shall form the basis of the contract between this Association and the insured.”

2. The said E. H. Rex died on the 17th day of November 1948. At the time of his death, and at all times mentioned in the petition herein, the said E. H. Rex was a member in good standing in the Brotherhood of Locomotive Engineers, an unincorporated labor organization. The said E. H. Rex was survived by his widow, Mary M. Rex, plaintiff in this action. The plaintiff herein is the same person named as Mary M. Rex in the two certificates of life insurance numbered 19955 and 19956, copies of which are attached to plaintiff’s petition. Defendant admits due notice and proof of death of said E. H. Rex.

3. The Locomotive Engineers Mutual Life and Accident Insurance Association is a fraternal benefit society incorporated! under the laws of the State of Ohio without capital stock, organized and carried on for the mutual benefit of its members and their beneficiaries and not for profit, and having a lodge system with ritualistic work and representative form of government. Membership in said Association is limited to-persons who are and remain members of the Brotherhood of Locomotive Engineers, all members of which Brotherhood at-the time of their admission thereto must be locomotive enginemen in active service as such.

4. At all times mentioned in the petition prior to October 1, 1933, all of the certificates or policies of insurance of said Association were issued upon the assessment plan, under which plan all members, regardless of age, paid the same amount-per month per unit of insurance carried.

5. Effective July 1, 1921, the constitution and by-laws of said Insurance Association were amended by the addition of the following provision:

“All insurance certificates that have been in force continuously forty (40) years or more shall be ‘Paid-up’ certificates from and after July 1st, 1921.”

Prior to the adoption of said quoted provision neither the constitution and by-laws of said Association nor certificates issued by it provided for any form of paid-up certificate.

6. The said E. H. Rex paid all assessments required upon the aforementioned certificates issued to him from November 1, 1885 to November 1, 1925, the amounts of such assessments being the same as those required of all other members of the Association carrying certificates in the same amounts as the said E. H. Rex.

7. In accordance with the provision of the constitution and by-laws effective July 1, 1921 quoted above, the aforesaid certificates numbered 19955 and 19956 having been continuously in force for 40 years on November 1, 1925, became “Paid-up” certificates, and on or about said last mentioned date there was placed upon said certificates the endorsement shown on the reverse side of the copies of said certificates attached to the petition as EXHIBITS “A” and “B.” Said endorsement was made on said certificates solely as a consequence of the amendment to the constitution and by-laws as above quoted.

8. In the year 1930 The Locomotive Engineers Mutual Life and Accident Insurance Association, by action of the convention held in that year, eliminated from its constitution and by-laws the aforequoted provision concerning 40-year certificates becoming “Paid-up” certificates, but at said time members of said Insurance Association whose certificates had theretofore become 40-year paid-up certificates were not required to pay assessments thereon. All members whose certificates thereafter became in force continuously for 40 years were required to continue to pay assessments thereon.

9. In 1933, and effective as of October 1,1933, The Locomotive Engineers Mutual Life and Accident Insurance Association, by action of its convention, adopted amendments to its constitution and by-laws, which provided, in part, as follows:

“* * * on and after October 1, 1933, each and every member in good standing (or who is reinstated within 60 days thereafter) who holds a Certificate of Insurance issued prior to said date, shall pay monthly payments per One Thousand Dollars of Insurance at the premium rate indicated in.the following tables, according to the attained age of such member reckoned to nearest birthday on the 1st day of October, 1933, and the making of such monthly premium payments shall be compulsory regardless of the provisions in any By-Law heretofore in effect granting paid-up insurance after 40 years of membership or otherwise, or providing for assessments carried or to be carried for the member by the Association.”
“The President and General Secretary-Treasurer are authorized to issue benefit certificates * * * upon such plans as-shall be deemed by said officers to be for the best interests-of the Association, provided that any and all insurance features-in such certificates shall have premium rates and values based-upon the American Experience Table of Mortality and/or approved disability tables. The interest assumption in computation of premium rates and reserves on all such certificates-shall not exceed 3 %% per annum.”

10. The aforesaid certificates numbered 19955 and 19956 contained the following provision:

“Any member of this Association neglecting or refusing to-pay any assessment when ordered as provided in the by-laws. * * * shall forfeit all right and title to membership and be debarred from further participating in this insurance or benefits arising from the same.”

11. On October 1, 1933 the said E. H. Rex was 71 years of age, and the premium rate in the tables mentioned in the-aforementioned provision of the constitution and by-laws effective October 1, 1933, applicable to a member 71 years of age-was and is $1,045 per month for each $100.00 of insurance-carried. The said E. H. Clark Rex was fully informed of the adoption of the adequate reserve plan of insurance by- the aforesaid Insurance Association and of the amendment to-defendant’s constitution and by-laws effective October 1, 1933-as stated above. On and after October 1, 1933 the-said E. H Rex refused to pay any payments or premiums on the aforesaid certificates numbered 19955 and 19956, and did not pay any assessments, dues, premiums or rates of any kind orín any amount to the defendant Association on or after October 1, 1933 on the said numbered certificates.

12. Said E. H. Rex refused to surrender said numbered, certificates to said defendant Insurance Association, refused to take out new insurance at his then age of 71 years or to-pay the rates for new insurance at his attained age of 71 years, and refused to pay assessments, dues, premiums or rates of any kind on any form of insurance to defendant Association on and after October 1, 1933.

13. It is further stipulated and agreed that this case is: submitted to the court upon the petition, the amended answer, the reply, and this stipulation of facts, the defendant reserving and preserving its exceptions, as set forth in its amended answer, to the order of the court entered in this cause on or-about November 15, 1949, in respect of plaintiff’s motion to strike certain portions of defendant’s answer.

Plaintiff bases her right to recover principally upon two contentions:

1. That the assured, by virtue of the 1921 amendment to the By Laws of defendant Association and the endorsement on the certificates of “Paid-up” after having been continuously in force for forty years, on November 1, 1925 acquired a vested interest in said certificates which defendant Association could not impair by a later amendment such as was enacted to become effective October 1, 1933.

2. That even if an amendment could be effective as to the rights of an assured such amendment must be reasonable and the October 1, 1933 was unreasonable and confiscatory.

We shall discuss these contentions briefly.

1. Did the assured through the issuance by the defendant of “Paid-up” certificates pursuant to the 1921 amendment acquire a vested interest in said certificates such as could not be impaired by subsequent amendment?

In support of her contention plaintiff cites McKinney v. Order of United Commercial Travellers of America, 124 Oh St, 139 decided June 10, 1931.

This action was instituted in the Common Pleas Court of Franklin County and was based upon an insurance certificate issued by the defendant therein to one Francis W. McKinney who became a member thereof in December, 1901 and was accidently killed on November 25, 1927. Judgment for the defendant was affirmed by the Court of Common Pleas and thereafter the matter came before the Supreme Court. Speaking through Judge Allen the Supreme Court said:

“The pertinent language of the application signed by McKinney on November 14, 1901, and received at the office of the supreme council December 17, 1901, reads as follows:
“I hereby agree with the said order that I have read and will comply with the requirements of its articles of incorporation, constitution and by-laws, which, with this statement, shall be the basis of membership between myself and the said order. * * * I also agree that any misstatement or concealment of any fact shall cause a forfeiture of my membership in said order, and shall also cause, as to myself, and my beneficiary or beneficiaries, a forfeiture of all rights to indemnity, and to the recovery of anything whatsoever on account of any certificate, which may be issued by me by said order. I also agree that the said order shall not be liable to me, or my beneficiary or beneficiaries, in any manner under any certificate of membership which may be issued to me, except for bodily injuries sustained through external, violent and accidental means, and except as provided in the constitution and by-laws.”
“The certificate thereupon was issued by the order, and stated in its material portions that McKinney ‘is entitled to all of the rights and privileges of membership accruing to him under the constitution and he is hereby recommended to the fraternal courtesy of the brotherhood wheresoever dispersed.’ Neither the application nor the certificate made any reservation as to the future enactment of by-laws or amendments to the constitution. The assured did not agree in the application to be bound- by after-enacted regulations, nor was the certificate based upon any such agreement.”

The Court of Appeals had affirmed the judgment of the trial court upon authority of McGovern v. Brotherhood of Locomotive Firemen and Enginemen, 85 Oh St, 460; and Tisch v. Protected Home Circle, 72 Oh St 233.

However, the Supreme Court of Ohio distinguished these cases from the McKinney case, because in the Tisch case referred to above, the decedent agreed in his application to be bound by the

“Laws, rules and usages of the Order nor in force or which may hereafter be adopted.”

In the McGovern case above the applicant agreed to be bound by

“By-laws that may be hereafter enacted.”

Judge Allen then goes on to point out that the McKinney application contained no such agreement and therefore the insurance contract was based upon the By-laws and constitution in existence at the time of the application and the-Supreme Court concludes, therefore, that the decedent was not bound by amendments subsequent to his original application and acceptance into membership since his application contained no such agreement.

In the instant ease the original application of November 1, 1885 when decedent became a member and the certificates issued at that time can not be found but the By-Laws at that time had the following provision, “any member failing to pay an assessment when ordered, as provided in the By-Laws, of within the prescribed time, shall forfeit his membership and shall forfeit all right and title he or his heirs may have to any benefit or claim in or against this association.”

When the original certificates were replaced by two other certificates, copies of which are attached to plaintiff’s petition, on April 22, 1914, the. constitution and by-laws provided as follows: “The regular application blank prepared and issued by this Association furnished to and signed by the applicant, the policy issued thereon, and the by-laws in force at the time or as amended from time to time, shall form the basis of the contract between this Association and the insured.” We therefore do not have the same situation here as obtained in the McKinney case. The decedent herein as far as we are able to ascertain from the stipulation of facts, agreed to be bound by the by-laws then in force or as amended from time to time. Thereafter in 1921 he accepted the terms and conditions set forth in the amendment of 1921.

Can the plaintiff now be heard to complain because of a still later amendment of 1933? We think not.

We believe that under the facts submitted the decedent was subject at all times to subsequent amendments unless clearly unreasonable. The defendant in support of its contention that the privilege granted to the insured of exemption from dues and assessments, which was conferred by a' by-law enactment made thirty-six years after the insured became a member may be withdrawn by a subsequently enacted by-law set forth the following argument, “(1) that the insured’s original contract contained no provision for paidup insurance; (2) that the original contract did contain a provision that if the member failed to pay any assessment as provided in the by-laws or within the prescribed time he should forfeit all right and title to any benefit or claim against the Association; (3) the fact that when the insured accepted the new certificate in 1914 said certificate also contained the provision that any member refusing to pay any assessment as provided in the by-laws should forfeit all right and title to membership and be debarred from further participating in the insurance or benefits arising therefrom; (4) that at the time the insured accepted the new certificate issued by the defendant the constitution and by-laws of defendant provided that the by-laws in force or as amended from time to time should form the basis of the contract.

As is hereinafter shown, either with or without a provision in the by-laws (number [4] above) that by-laws as thereafter amended shall form a part of the contract, the privilege of exemption in this case was one which was conferred by a by-law enacted years after the original contract was made and may be removed by a subsequently enacted by-law.” We are in accord with this contention.

This brings us to the second contention of the plaintiff that the amendment of 1933 was unreasonable and confiscatory.

A long line of decisions held that there is a presumption of reasonableness in the By-laws of fraternal benevolent associations such as the defendant.

The history of fraternal benefit associations operating under an assessment plan shows that they were unable to operate successfully until they adopted an adequate rate basis which took into consideration the American Experience Table of Mortality and in all of the cases the courts have held that these associations and societies were justified in reorganizing and adopting an adequate rate basis for the assessments even though there might be a hardship imposed upon some of the members as a result of such change. In considering these matters the courts have taken into consideration that in a fraternal benefit society the insured are also the insurers and •.whatever benefits one benefits the other.

In Supreme Council v. Jordan, 117 Georgia 808, the court said:

“The society had the right to make reasonable by-laws. Under a certificate of this character the holder occupies toward the society a dual relation. He is a member of the corporation and as such bound by all reasonable by-laws enacted by the corporation, whether they come into existence before or after the issuance of his certificate. He also occupies the position of a person holding a contract with the society, and as such he stands upon the same footing as any other person making a contract with it. Both are bound by the terms of the contract. As a member he must comply with all the provisions of his contract, and the contract may stipulate that he shall be bound by by-laws; and if so, compliance with the by-laws becomes a duty under the contract. If, however, the contract provides for an obligation which is not in terms dependent upon by-laws, his rights as a contracting party are to be no more affected by the by-laws than if he were not a member of the corporation.”

In The United Order of Foresters v. Miller, Wisconsin 1922, 190 N. W. 197,

“The issue involved the power of the organization to cancel a by-law providing for old age benefits. The court said, ‘The Society was and can be no more than the fiscal agent of the members, their collector and their disburser. It can no more pay out more than the members furnish for that purpose than can the fountain throw its spray higher than its source. * * *’ It is urged on behalf of the holders of such old age disability certificates that the society is now estopped from asserting any right to consider the action taken in 1900 as anything but prospective in effect, by reason of its having failed to expressly declare that its action was affecting then existing contracts or from failing to directly notify such members of such a claim as is now asserted. The nature of the society, however, its representative form of government, the fact that such change did not affect any right for which such members had then paid any adequate consideration prevent the application of any principle of estoppel. Such promise of' plaintiff was part of a policy, certain, if long continued, to-wreck it, and the members of such a society have nothing approaching a vested right in a disastrous insurance system,”-

In Funk v. Stevens (Neb. 1918), reported in 169 N. W. 5, where the rates were increased in order to enable the association to meet the payments intended to be paid on the policies, the court said:

“Courts will not undertake to direct or control the internal policy of such societies. It is only when there is an abuse of their discretionary powers — an unreasonable and arbitrary invasion of private rights — that the courts interfere: ‘Now, if there is any one obligation of the society more binding upon it or its members than another, it is the promise made in the statement of the objects of the order to pay each member’s beneficiary $2,000 upon his death. In morals and in law that promise must, if possible, be kept. The member must not forget that he is an insurer as well as an insured. When the order is faced by inevitable financial ruin for want of funds impossible to be raised under the existing rule of assessment, no member can disassociate his certificate or contract and insist that the object of the fraternity is to pay him in full without reference to his fellow members.”

As was said in Case v. Supreme Tribe of Ben Hur (Neb. 1921) 184 N. W. 75:

“It is also true that in the absence of averment or proof to the contrary, it will be presumed that an increase of rates or change of plan of assessment to increase revenues was reasonable as to the amount of the increase in the charges, when it appears that the amended regulation was duly enacted by the association.”

Defendant also cites two cases involving the defendant which have been decided by the Courts of Pennsylvania and New York. One is the so-called Moon case entitled Moon v. Locomotive Engineers Mutual Life and Accident Insurance Association decided by Supreme Court of Pennsylvania January 6, 1842 and reported in 23 Atlantic 2nd, 474 and the Quigley case entitled Quigley v. Locomotive Engineers Mutual Life and Accident Insurance Association and reported in 244 Appellate Division 513, 279, New York 858 and affirmed by New York Court of Appeals 273.

The Moon case held,

“Where an incorporated, mutual protective and fraternal benefit society issued paid up beneficial certificates to a member in accordance with a by-law providing for paid up certificates after membership in society for forty years, and .society thereafter adopted an amendment to by-laws providing that all members holding certificates should make monthly payments, the amendment was applicable to paid up certificates and did not, when applied to certificates, ‘impair’ contractual rights of parties, and hence beneficiaries could not recover on certificates after member’s death where member had been given notice of amendment and did not resume payment or exercise option to take new certificates for a fraction of amount of old certificates.”

The Quigley case held,

“Furthermore, defendant deprived Quigley of none of his rights under his original certificates. They called for payment of assessments during life. At one time defendant granted him the gratuitous favor of releasing him from the payment of assessments. By the amendment of 1933 defendant did no more than to withdraw that favor, the benefit of which he had enjoyed for some years.”

The court thereupon comes to the following conclusion. That the plaintiff’s decedent was bound by subsequent amendments enacted by the defendant and said amendments were reasonable; that not having complied with the terms of the 1933 amendment plaintiff’s decedent was in default at the time of his death and plaintiff can not recover. The court thereupon finds and enters judgment for the defendant.