author: By SAVORD, J.

text:
    NATIONAL CITY BANK OF CLEVELAND v. ERSKINE & SONS, Inc.
    Ohio Appeals, Seventh District, Mahoning County.
    Decided November 13, 1951.

      Harrington, Huxley & Smith, Youngstown, for plaintiff-appellant.
    David C. Haynes, Warren E. Grant, Youngstown, for defendant-appellee.
   OPINION

By SAVORD, J.

This is an appeal on questions of law from a judgment entered upon a verdict of the jury rendered on behalf of the defendant.

The factual situation as presented by the bill of exceptions in this case will be more easily understood by designating the parties as they stood in the trial court, — The National City Bank of Cleveland being the plaintiff and Erskine & Sons, Inc. the defendant.

The record discloses that for some time prior to the late months of 1948, the defendant was engaged, among other activities, in the excavating business and in strip mining. Late in November or early in December, 1948, a representative of the Gibson-Stewart Company approached Ralph J. Erskine, Jr., head of defendant company, and sought to interest him in the purchase upon behalf of defendant of a heavy dirt moving machine known as a Tournadozer, the same to be employed by defendant in lieu of lighter equipment then being used in its strip mining operation. After somewhat extended negotiations, defendant on December 7, 1948, signed a purchase order authorizing Gibson-Stewart Company to deliver to it a model C Tournadozer, complete with cab and swinging drawbar. It was understood that the cost of said equipment was to be $20,893.83 f. o. b. Cleveland, less an allowance in the amount of $5,000 made by Gibson-Stewart Company to defendant by reason of a model D-4 Caterpillar, which defendant was turning over to Gibson-Stewart Company, making the net price of the new equipment to the defendant $15,893.83.

On December 9, 1948, a representative of Gibson-Stewart Company contacted the Consumer Credit Department of plaintiff, seeking to determine whether plaintiff would purchase a note proposed to be executed by defendant and delivered to Gibson-Stewart Company in payment of the balance of the purchase price of said equipment. After investigation made through one of the references given by defendant to Gibson-Stewart Company, the plaintiff indicated its willingness to purchase such note.

On December 15, 1948, plaintiff executed a cognovit note payable to defendant in the amount of $16,529.58 and a chattel mortgage securing its payment. Shortly thereafter, Gibson-Stewart Company delivered the note and mortgage to plaintiff in contemplation of plaintiff purchasing the note, consistent with its previously expressed willingness to do so. Upon examination, it was discovered that Gibson-Stewart Company had not endorsed the note, that the note was dated December 15, 1948, whereas the mortgage was dated December 14,1948, and that in that portion of the mortgage making reference to monthly instalments the total amount of the mortgage was expressed as being less than the amount as set forth in the first portion of the mortgage, wherein the consideration of the mortgage was expressed. Because of these circumstances, the plaintiff returned the note and mortgage to Gibson-Stewart Company and the latter, acting through one of its officers, endorsed the note and, without consultation with or notice to defendant, caused the date of the mortgage to correspond with the date of the note and changed the total amount of the mortgage as it appeared in that portion of the mortgage referring to the payment of instalments, so that said amount corresponded with the principal of the note and correctly stated the amount of the mortgage as it appeared in the consideration clause of the mortgage. Thereupon. Gibson-Stewart Company returned the note and mortgage to plaintiff with a covering letter.

On December 23, 1948, plaintiff delivered to Gibson-Stewart Company its check in the amount of $15,893.83 as payment for the note, which check was cleared by Gibson-Stewart Company through Central National Bank of Cleveland and ultimately paid by plaintiff.

Approximately a week thereafter plaintiff notified defendant that plaintiff had purchased the note and at the same time sent to defendant a book containing twelve coupons, representing the instalments to become due, and indicating the time of payment of the several installments.

Shortly after the delivery of the Tournadozer to defendant, the latter experienced difficulty in its effort to efficiently operate the equipment and to effectively accomplish the purposes for which it was purchased. Tire evidence presents irreconcilable conflict as to the reasons producing such circumstances. Repeated efforts by representatives of Gibson-Stewart Company to convince defendant that if properly operated the equipment would produce the desired results were without avail. Defendants failed to pay the various instalments as same fell due under the terms of the note and mortgage.

On May 26, 1949, plaintiff, proceeding on the cognovit note, recovered a judgment against defendant in the amount of $16,262.93 with interest at 8% and costs, and invoked certain ancillary procedure to enforce the collection of the judgment.

On June 23, 1949, on motion of the defendant, the parties to the controversy appearing in open court and consenting, the trial court ordered the judgment of May 26, 1949, suspended, preserving any liens incidental thereto and otherwise protecting the interests of the parties. At the same time defendant was granted leave to withdraw the answer originally filed and the right to later plead.

In the answer subsequently filed, the defendant set forth four defenses which may be briefly but substantially summarized as follows:

The first defense was a general denial. The second defense, after alleging the facts as already detailed, averred that at the time of the purchase, the defendant made known to Gibson-Stewart Company the particular purpose for which the Tournadozer and equipment were required; that defendant having faith in the skill and judgment of Gibson-Stewart Company relied upon the representations of the latter that said Tournadozer and equipment were reasonably fit for defendant’s purposes and the agreement of Gibson-Stewart Company that in the event said Tournadozer and equipment were not proper and suitable for the uses of defendant the latter should and could return such property and that thereupon the sale should be cancelled and the defendant should be held free from any liability under and by virtue of the note and mortgage; that from the beginning the said Tournadozer was defective, unusable and unsatisfactory when sought to be employed by defendant for its purposes; that plaintiff is in the business of discounting notes, was acquainted with and did business with Gibson-Stewart Company; that at the time plaintiff purchased the note upon which the judgment is based plaintiff knew the details of the relationship between defendant and Gibson-Stewart Company and the agreement existing between them as seller and purchaser respectively; that there were erasures and alterations in said note and mortgage at the time of the purchase of said note and which plaintiff knew of and concurred in, but which were unknown to defendant; that by reason of the foregoing there was a defect in said note; that defendant was thereby put on inquiry and notice of said defect; that defendant is not a holder in due course of the note and that plaintiff as a result is subject to all defenses which defendant might assert against Gibson-Stewart Company, the payee of the note.

The defendant by way of third defense alleges that the note and mortgage were materially altered and that plaintiff being a party to such alteration, the note is unenforcible by plaintiff.

The fourth defense carries the allegation that plaintiff wrongfully seized and took into its possession the Tournadazer and equipment, converting them to its own use; that the value of the property was in excess of the amount of the note and interest thereon and that by reason of such fact the note is wholly paid and satisfied. All affirmative defenses set forth in defendant’s answer were controverted by plaintiff’s amended reply.

The issue being thus tendered, upon trial the jury returned a verdict in favor of the defendant. Motions for judgment notwithstanding the verdict and for new trial were overruled and judgment consistent with verdict rendered.

The plaintiff contends that (1) the verdict and judgment is not sustained by sufficient evidence; (2) that the verdict and judgment is contrary to law; (3) that the court erred in admitting over plaintiff’s objection testimony offered by defendant; (4) that the court erred in refusing to admit testimony offered by plaintiff; (5) that the court erred in overruling the motion of plaintiff for a directed verdict; (6) that the court erred in overruling plaintiff’s motions to strike out defenses pleaded by defendant and in refusing to withdraw same from consideration of the jury.

The trial, court apparently considered the one and all-important issue in this case as being the question of whether the plaintiff was the purchaser of the note in due course and without knowledge of any defect or infirmity in the title of Gibson-Stewart Company to the note at the time the latter negotiated it to the plaintiff. In the opinion of this court such appraisal of the issue was correct. Consistent with such approach, the trial court permitted the defendant wide latitude in the introduction of evidence tending to establish the nature and character of the Tournadozer and equipment; the alleged agreement between defendant and Gibson-Stewart Company with respect to its performance; the claimed right of the former to return it, if it proved unsatisfactory, and its asserted failure to meet and fulfill the purposes of defendant. All of this evidence having been received without suggestion by the trial court that its introduction was permitted for the limited purpose of lending such probative force as it might possess with respect to the one and only issue in fhe case, it is not unreasonable to believe that the jury could have concluded that the issue was one between Gibson-Stewart Company and defendant.

Plaintiff claiming to be a holder in due course and seeking to recover by reason of such fact, was required to prove four propositions, namely: (1) that the note was complete

Sec. 8161 GC, reads:

“To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating it, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith.”

Review of the record positively convinces that the plaintiff sustained its right to recover by a preponderance of the evidence. While the record discloses detailed and conflicting evidence, which in all probability would present an issue for submission to and determination by a jury, with respect to the respective rights of defendant and Gibson-Stewart Company, we are unable to discover any evidence of a substantial character tending to prove that plaintiff possessed any knowledge of the details of the transaction between defendant and Gibson-Stewart Company, had actual knowledge of any infirmity or defect in the note if there was any such infirmity or defect, or that plaintiff had knowledge of any facts, as a result of which its action in taking the note could be characterized as bad faith. We are unable to find from the record any proof tending to establish that plaintiff purchased said note under circumstances that would have excited suspicion in the mind of a prudent and reasonable person. The fact that plaintiff paid a substantial consideration for the note has persuasive force militating against such premises. The mere existence of such circumstances would not constitute a defense, unless the proof was sufficient to show that plaintiff acted in bad faith or with want of honesty. Johnson v. Way, 27 Oh St 374 et seq.; Kitchen v. Loundenback, 48 Oh St 177 et seq., 26 N. E. 979.

Consideration of the claim advanced by defendant that the alterations made in said mortgage after its execution by defendant were of a character to operate to destroy the negotiability of the note and defeat the right of the plaintiff to recover, satisfies that such claim lacks substantial merit. The note itself was not changed and the fact that it was attached to the mortgage did not make the note and mortgage one instrument. It is clear that the error in the figures as they appeared in the mortgage was apparent to the defendant at the time of execution of the mortgage; that the mortgage itself by express terms gave to the mortgagee the right to correct patent errors and fill in blanks and that the alterations were, in contemplation of law, immaterial in nature.

The trial court having correctly confined the controversy to the one issue, discussion of the other defenses asserted by defendant is not required and the foregoing conclusions being determinative of defendant’s cross-assignments of error, we indulge in no further discussion of the same.

By force of the foregoing, this court concludes that the trial court should have sustained the several motions of the plaintiff for a directed verdict in its favor and for judgment notwithstanding the verdict. This cause will therefore be remanded to the trial court with directions to set aside and vacate the order of June 23, 1949, suspending the judgment originally entered in favor of plaintiff on May 26, 1949, and to reinstate said judgment to full force and effect, allowing credit thereon in the amount of the proceeds arising by reason of the sale of chattel property heretofore had under order of the court.

FESS and CONN, JJ, concur.


source: Caselaw Access Project

author: By MERRICK, J:

license: Public Domain

text:
    DiVELLO, Admrx., Plaintiff, v. GARDNER MACHINE COMPANY, Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 623987.
    Decided November 29, 1951.

      Harrison, Spangenberg & Hull, Cleveland, for plaintiff.
    Frank Seth Hurd, Cleveland, for defendant.
   OPINION

By MERRICK, J:

This is an action for wrongful death. The petition alleges that plaintiff’s decedent was killed as a result of the disintegration of a grinding wheel being used in the usual manner at decedent’s place of employment. It is further alleged that decedent’s employer purchased the grinding wheel from defendant, who is engaged in the business of manufacturing and selling grinding-wheels. Two causes of action are pleaded. The second cause is in contract for breach of warranty.» The petition alleges that the defendant warranted said grinding wheel to be safe and suitable for use. The defendant has filed a motion to strike the second cause of action which under our practice is in substance a demurrer.

This poses the direct questions: If the evidence discloses that defendant manufactured the wheel, does the warranty, if any, extend to the employee using it in the conduct of the purchaser’s business? If the evidence discloses that defendant was not the manufacturer but was merely a dealer who sold the article to decedent’s employer, does the warranty, if any, extend to the employee using it in the conduct of the purchaser’s business?

This Court has attempted to co-ordinate some of the theories involved in this question in the case of Mahoney v. Shaker Square Beverages, No. 607,194, 64 Abs 200, decided on November 28th, 1951. Inasmuch as that involved the application of the pure food laws of this state, in some aspects, it differs from the case at hand. For the better understanding of the reasoning in this opinion it is necessary to incorporate some of the observations in the Mahoney case, especially our analysis and explanation of the decision in McMurray v. Vaughn’s Seed Store, 117 Oh St 236.

In the manufacture and sale of goods, the seller may not include therein, beyond the terms of the contract anything which, unknown to the buyer, will cause the latter injury. This extra duty to refrain from including in the article any dangerous substance unknown to the buyer may be illustrated in the bestowal of a gift from one to another. Even though there be no purchase price, one has no right to bestow an article containing a hidden danger on another as a gift, knowing that the use thereof by such other will cause the latter injury. But where there is a consideration the responsibility to refrain from including in any such article any hidden danger is very much greater. There is the obligation that the goods will be fit for the particular purpose intended and the further duty to refrain from including therein any hidden danger unknown to the buyer. Failure to meet the first obligation is a breach of warranty, express or implied; failure to meet the second duty is negligence. Sicard v. Kremer. 133 Oh St 294.

Though a tort is a breach of a duty which the law, in distinction from a mere contract, has imposed, yet the imposition of it may have been because of a contract, or because of it and something else combining, when otherwise it would not have created the duty. In such a case the party injured by the non-fulfillment of the duty may proceed against the other for its breach or for the breach of the contract, at his election, for one overlaps the other. Galveston Ry. Co. v. Hennigan, 33 Texas Civ. App. 314, 76 S. W., 452.

Circumstances constituting a breach of warranty may also be negligence. If the circumstances concern only the question of whether the product may properly be used for the purpose intended or represented, there is no negligence involved. But if the product sold is later found to be unfit for the use intended and also by reason of some unknown dangerous ingredient, injures the buyer, there is not only a breach of warranty but also negligence. In such a case the buyer, subject to the provisions of §11306 GC, may incorporate in his complaint all the ultimate facts tending to prove not only the breach of warranty but also the negligence involved. Sicard v. Kremer, supra.

Situations may arise where the facts and circumstances are so involved that the pleader is not certain whether the issue is one of implied warranty or negligence, or both. The facts and circumstances may be so complex that the question of whether there has been a breach of implied warranty, or negligence, would be for the jury under proper instructions from the court. Whether a given thing is dangerous may be sometimes a question for the court and sometimes for the jury. MacPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E., 1050.

The manufacturer of an appliance which if defective in construction will become inherently or imminently dangerous when used for the purpose for which it was intended, owes a duty to the public, irrespective of contractual relations, and it has been held in many cases that he will be liable to third persons for an injury directly caused by negligence in failing to make reasonable inspection of such defective appliance, where the injury was sustained while the appliance was being used for the purpose intended, and where the danger might reasonably have been foreseen by the manufacturer. Sewing Machine Co. v. Feisel, 28 Oh Ap, 155. Mazetti v Armour & Co., 75 Wash., 622, 159 P., 633.

An examination of the cases cited will disclose that, while the rule was originally applied where the article of sale was “inherently” or “imminently” dangerous, it is now commonly invoked in cases where the dangerous character of the thing is made imminent by defective construction, which is the result of negligence, or would be discoverable upon exercise of ordinary care in making a reasonable inspection.

While it is a general rule of law that manufacturer or seller is not liable for negligence in the manufacture or sale of an article to third pérsons with whom he has no contractual relations, that manufacturer may become liable if the article, defective in construction, will become inherently dangerous when used for the purpose for which it was intended. Tennenbaum v. Pendergast (C. P. Franklin County), 57 Abs 195.

. “In an action against manufacturer of boiler for death of employee of buyer of. boiler, resulting when boiler collapsed and employee was scalded, plaintiff was not precluded from recovery on ground that no contractual relations existed between decedent' and manufacturer since- boiler was a dangerous instrumentality.” Gilbride v. James Leffel Co., 37 Abs 457, 47 N. E., 2nd, 1015.

In the American Law Institute in the Restatement of the Law of Torts, Chapter 14, paragraph 398, page 1073, we find the following — “A manufacturer who fails to exercise reasonable care in the manufacture of a chattel which, unless carefully made, he should recognize as involving an unreasonable risk of causing substantial bodily harm to those who lawfully use it for a purpose for which it is manufactured and to those whom the supplier should expect to be in the vicinity of its probable use, is subject to liability for bodily harm caused to them by its lawful use in a manner and for a purpose for which it is manufactured.”

The exceptions to the so-called general rule that the manufacturer is not liable to a third party who has no contractual relation with him, for negligence in the manufacture or sale of the article which he handles, have been regarded as so numerous and so important that it may be doubted whether the above principle should be regarded as the general rule. Ill A. L. R., 1240.

The principle that the manufacturer or seller of goods is liable for injuries to persons due to defects therein, is not limited to things which, in their normal operation, are implements of destruction, but if the nature of the thing is such that it is reasonably certain to place persons in peril when negligently made, the liability attaches, irrespective of contract for failure properly to inspect and discover defects, coupled with knowledge of probable danger therefrom. MacPherson v. Buick Motor Co., supra.

That there is a liability upon a negligent manufacturer who sells articles knowing they are intended for resale to subpurchasers in clear from the trend of modern authorities. The only controversy is as to the basis of the liability, some holding that the implied warranties are made for the benefit of the subpurchasers and form the basis of liability, and others holding that there must be proof of negligence to impose a liability. Dow Drug Co. v. Niemann, 57 Oh Ap, 201.

Pennsylvania has a sales code similar to the Ohio Sales Act. In the case of Soganowich v. Hachikian, 348 Pa., 313, 35 A. 2nd, 343, the plaintiff, an employee of the purchaser of a drum of liquid caustic soda, was permitted to recover against the manufacturer of the soda who had equipped the drum with a defective plug. The plug came loose, spraying the employee with caustic which injured him.

In the case of Mannsz v. MacWhyte, 155 F. 2nd, 445, the United States Circuit Court of Appeals had this to say at page 449: — “Under Pennsylvania law the plaintiffs may approach the goal of recovery by two roads as they have attempted to do in the cases at bar: viz., (1) by proof of breach of express warranty, or (2) by negligence ... we think it is clear that whether the approach to the problem be by way of warranty or under the doctrine of negligence, the requirement of privity between the injured party and the manufacturer of the article which has injured him has been obliterated from the Pennsylvania law. The abolition of the doctrine occurred first in the food cases, next in the beverage decisions and now has been extended to Fhose cases in which the article manufactured, not dangerous or even beneficial if properly made, injured a person because it was manufactured improperly.”

In Illinois a workman was permitted to recover against the party who sold a machine to his employer. The balance wheel broke when in use and injured the workman. Davidson v. Montgomery, Ward & Co., 171 Ill. 355.

Ohio is a sales code state and the purchase of the grinding wheel in the instant case is controlled by §8395 GC, sub-paragraph 2, which reads as follows:

“When the goods are bought by description from a seller who deals in goods of that description, whether he be the grower or manufacturer or not, there is an implied warranty that the goods shall be of merchantable quality:”

When the vendee is injured as a result of an explosion of a cigar an action will lie against the immediate vendor. Dow Drug Co. v. Nieman, 57 Oh Ap, 190.

Co-ordinating the conclusions herein cited, this Court is of the opinion that the sale of the grinding wheel carried with it an implied warranty of merchantability and fit for the usages designed and that such warranty extended to the workman of the vendee who was injured in its ordinary use because of a latent defect and in the absence of contributory negligence such workman could recover on the basis of a breach of warranty against the party who sold the wheel to his employer.

This Court is of the opinion that a grinding wheel designed to be revolved at high speed is a dangerous instrumentality if containing a latent defect which causes it to disintegrate upon ordinary usage and a workman injured in such use may recover against the person who sold the wheel to his employer on the basis that it is negligent to sell such an instrumentality and that contemplation must be had for the usage to which it will be put and the liability of injury to those using it.

The motion to strike the second cause of action is overruled and defendant may plead in accordance with rule of court.


author: By SKEEL, PJ.

text:
    NYHUIS, Estate of, In Re: NYHUIS, Admr., Plaintiff-Appellant, v. BURCH, Jr., Gdn. et., Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22375.
    Decided April 21, 1952.
    W. K. Gardner, H. O. Ziegler, Cleveland, for plaintiff-appellant.
    E. L. Goette, for defendant-appellee.
   OPINION

By SKEEL, PJ.

This appeal comes to this Court on questions of law- from an order of the Probate Court of Cuyahoga County vacating and setting aside a former order of such Court dated July 11, 1950, settling the final account of Christian O. Nyhuis, as administrator of the estate of Estelle Nyhuis, a. k. a. Estelle Chavis, deceased.

Christian O. Nyhuis, claiming to be the surviving spouse of the deceased Estelle Nyhuis, a. k. a. Estelle Chavis, filed application for letters of administration of the estate of Estelle Nyhuis, a. k. a. Estelle Chavis, deceased, which application was granted and appointment made by the Probate Court of Cuyahoga County on January 24, 1948.

The face of the record shows Christian O. Nyhuis as husband and Beatrice Fernandez, daughter, to be the heirs at law of the deceased. The inventory and appraisal show the following assets subject to administration:

Bank Accounts 8132.05
Real estate 3100.00
11,232.05
Property exempt from adminis. 2,246.40
Net estate 8,985.65

Beatrice Fernandez, the record shows, was a daughter of the deceased, born prior to her alleged marriage to Christian O. Nyhuis on April 3, 1926. Beatrice Fernandez, now living in Pontiac, Michigan, is married and has been adjudged incompetent and at the time this proceeding was commenced L. C. Burch, Jr., was appointed and qualified as guardian of her estate.

On May 28, 1949, application for transfer of real property was filed and granted, whereby the real estate was transferred to said Christian O. Nyhuis and Beatrice Fernandez, one-half interest to each. On Nov. 30, 1949, the administrator filed his final account which in part set forth the following:

“Property received by Nyhuis exempt from administration 2246.40
Administrator’s fee 287.88
Distributive share received by Nyhuis 2142.22
Distributive share received by daughter 2142.22
Admr. attorney fees 575.00

After the account was filed, Beatrice Fernandez on Dec. 30, 1949, filed an application to pass the approval of such account because she desired to file a petition to determine heirs. Prior to that time, that is on Jan. 12, 1949, the then guardian of Beatrice Fernandez, incompetent, George A. Sutton of Pontiac Michigan, had forwarded to the probate court a petition to determine heirs, which was not filed because it was not presented as an adversary action. Before the attempt to file such petition, the husband of Beatrice Fernandez wrote to the Probate Court claiming that Christian O. Nyhuis had not been legally married to the deceased because of a previous marriage. The record further discloses that no steps were taken to challenge the account, and on July 11, 1950 the same was approved and journalized by the court. The account, as approved on its face, contains the following statement:

“The undersigned hereby acknowledges receipt of a copy of the foregoing administrator’s account and report of distribution and hereby evidences their approval thereof.
(Signed) Christian Otto Nyhuis George A. Sutton,
Guardian of Beatrice Fernandez, incompetent.”

On March 20th, 1951, the proceeding here being considered, was commenced by filing a motion to vacate the settlement of the administrator’s account approved July 11, 1950, upon the ground of fraud. The motion is supported by affidavit alleging that the fraud consisted of the distribution of assets to Christian O. Nyhuis as surviving spouse, when in fact he was not the surviving spouse or an heir at law of the deceased for the reason he was married to one Willda R. Sampsell on the 8th day of May, 1919, and that such marriage has continued until the date of this motion.

On May 23, 1951, three pleadings were filed, one seeking to remove Christian O. Nyhuis as administrator, one excepting to the final account because of the alleged wrongful distribution as set forth in the motion and affidavit to vacate the settlement of account, and the other to determine liability for loss caused by personal use of trust property by fiduciary in which petition the bonding company was made a party. These matters are still pending.

At the hearing of the motion to vacate, the evidence was directed to the one question as to whether Christian O. Nyhuis was legally married to the deceased during her lifetime. In support of the motion, counsel for the guardian of Beatrice Fernandez, produced the records of Probate Court of Cuyahoga County showing “a marriage license issued to Christian O. Nyhuis and Willda R. Sampsell on May 8, 1919, which license discloses that the marriage was solemnized by M. J. Penty, Justice of the Peace, on the date the license was issued and returned to Probate Court as provided by law.

It is the contention of the administrator that his alleged marriage with Willda R. Sampsell was of no legal effect because at the time it was solemnized Willda R. Sampsell was in law and fact the common law wife of Harry A. Kohler and therefore his marriage with the deceased at Erie, Pa., on April 3, 1926, constituted a valid marriage.

In support of this contention, considerable evidence was introduced with regard to the relation of Willda R. Sampsell and Harry A. Kohler, beginning in June or July, 1918. There is no conflict in the evidence with regard to the following facts testified to by Willda R. Sampsell, now known as Willda E. Pierce.

That Willda R. Sampsell and Harry A. Kohler met in the early summer of 1918 as employees of “Luna Park;” that after living together for about ten days, Willda said to Harry A. Kohler; “What do you say we get married? I don’t like this;” that shortly thereafter they went to Probate Court and got a marriage license (Mover’s exhibit 4 and 5) dated Aug. 2, 1918; that they went directly to Luna Park from the court house, where Harry A. Kohler with Willda announced to the other employees: “We just got married this morning and I want you to meet my wife.” There was a wedding supper and they then cohabited as man and wife.

In explanation of what subsequently took place, and also the grounds upon which the mover contends the foregoing conduct does not support the administrator’s claim that a common law marriage was established, the witness after giving the foregoing evidence, testified:

“Then we lived together for several months and I finally discovered through other people that you had to go through a ceremony by a minister to make it a marriage, so I kept begging the man to go through a legal ceremony.”

After August 2,1918, evidence was introduced both by Willda R. Pierce (Sampsell) and others that they lived together as man and wife and that they were known in the neighborhood where they lived, as man and wife.

It was after a doubt as to the legality of her relations with Harry A. Kohler and his continued refusal to go through a marriage ceremony after they had lived together for some time as man and wife that Willda R. Pierce (Sampsell) who met Christian O. Nyhuis through Harry, A. Kohler, went through the marriage ceremony with Nyhuis. She testified that after the ceremony she remained in his house only three days; that they did not cohabit as man and wife during that time, and after being told that all he wanted was a “housekeeper” she left and in a few days returned to live with Harry R. Kohler. A child was born to the Kohlers on April 12, 1920 and is recorded in the records of vital statistics of the City of Cleveland (Register No. 5743) as “legitimate.” Harry A. Kohler abandoned Willda in 1922 and she thereafter married Frank P. Pierce on Dec. 23, 1925, with whom she is now living and has, since the date of their ceremonial marriage. The record shows that Kohler is dead, the date of his death being in doubt, probably some time before 1932.

The mover, upon trial of the motion, bottomed his request to vacate the approval under the provisions of §10506-40 (a) GC which provides:

“Such order may be vacated for fraud, upon motions of any person affected thereby, or upon order of the court at its own instance, if such motion is filed or order is made within one year after discovery of the existence of the fraud. Any person who is subject to any legal disability may file such motion at any time within one year after the removal of such disability or within one year after he discovers the existence of the fraud, whichever is later, or his guardian or a successor guardian may do so during the period of such disability. If the death of any person occurs during the period within which he could have filed such motion, his administrator or executor may file such motion within one year after death.”

Fraud is the basis of the motion and the fraud relied on is that Christian O. Nyhuis was in law and fact not the survivor spouse of the deceased. From the record there is considerable doubt on what basis the court ordered the approval and settlement of the administrator’s account vacated by its order of May 18, 1951. The court said at the conclusion of the evidence:

“We have taken considerable evidence here, gone into the merits of the case almost, on the hearing of this motion to vacate. There is a controversy here and it cannot be heard except upon exceptions filed to the account. If the order approving the account is vacated, then you will proceed and we will hear it on its merits. All I have here now is a question of whether the Court should, under the circumstances, and from the facts as presented here a few days ago, vacate and set aside this record. I will hear from you on that.”

And again the court said:

“We have enough evidence to raise a doubt, a question in the mind of the court, and I think there is good cause for vacating the approval of the account. That is discretionary. If the court determines that there is good cause for so doing, he may vacate it. I think under the facts and circumstances brought out in this hearing on this motion, it is the plain duty of the court to afford them an opportunity to raise the question, but I don’t determine the issues right now.”

The record further discloses:

“The Court: I don’t have to find that these people were married.
“Mr. Gardner: Will the entry show that the court does not decide that question but vacates it on its discretion?
“The Court: I am just determining that there is good cause for vacating and setting aside the approval of the account, that’s all.
“Mr. Gardner: I am just afraid of the legal effect that by granting their motion they will argue that there was fraud.
“The Court: I can’t help what they will argue, but the court is making no other finding other than the granting of the motion to vacate and set aside the approval of the account.
“Mr. Gardner: On the ground that there is good cause shown without making any finding of fraud?
“The Court: That’s right.”
The journal entry however provides:
“The court being fully advised in the premises finds from the exhibits and testimony that said motion is well taken, and that the statements and allegations therein contained as well as the statements and allegations contained in the verification of said motion, are well taken and that the facts therein set forth constitute fraud and that therefore said motion should be granted.”

This journal entry is susceptible of two interpretations. One that sufficient evidence is established to show that the claims of the mover are “well taken” and for that reason, without finding “fraud” to have been actually established, approval of the account is set aside so that the question of fraud may be set up in filing exceptions to the account. If this be the holding of the court, then the order must be reversed because the court is without power to vacate the approval of the account under the circumstances of this case except fraud be established to the satisfaction of the court by clear and convincing proof.

The statute (§10506-40 GC, supra) provides that an order of the court upon the settlement of an account shall have the force and effect of a judgment. The only power of the court to vacate the judgment is provided in paragraphs (a), (b), (c) and (d) of the statute. The provisions of paragraph (b) can have no application here, as is true of (c) and (d). The mover was a party, was represented by a guardian, had full knowledge that the account had been filed for settlement and approval of the court, and consented to its approval as is shown on the face of the account in the settlement proceedings. We must therefore confine our consideration to the power conferred on the court by paragraph (a). This paragraph provides in part:

“Such order may be vacated for fraud upon motion of the person affected thereby * *

This is the ground set forth in the motion. No other provisions of the statute are relied upon or could be. A holding therefore that for “good cause” or “suspicion of fraud” the settlement entry of judgment is vacated, does not comply with the requirements of the statute and a vacation of the settlement of the account of the administrator of an estate for such reasons, without a finding by clear and convincing evidence that fraud, as claimed in the motion, has been established, must be reversed as contrary to law.

If the interpretation to be put upon the journal entry as above quoted is that the court found fraud to have been established, and that an order vacating the judgment settling the account of Christian O. Nyhuis as administrator of the estate of Estelle Nyhuis, a. k. a. Estelle Chavis, was entered for that reason then it is the judgment of this court that such finding is against the manifest weight of the evidence.

The fraud claimed is that Christian O. Nyhuis was not the surviving spouse of the deceased and had no legal right to participate in the proceeds of the estate. As set forth above, whether he became the lawful husband of the deceased by the ceremonial marriage performed in Erie, Pa. April 3, 1926, depends upon whether or not Willda R. Sampsell, prior to her ceremonial marriage to Christian O. Nyhuis on May 8, 1919, was in fact the common law wife of Harry A. Koehler. There is no contradiction in the evidence as to the relationship of Willda R. Sampsell (now known as Willda R. Pierce) and Harry A. Koehler. If what they did and intended to do on Aug. 2, 1918, constituted under the law of this state a common law marriage, then the question here presented must be resolved in favor of the administrator. Whether we agree that such relationships should be given legal sanction as is now the common law of this state, is for the legislature, not the courts, to decide. There are many cases where it would work a grave injustice to innocent persons not to hold persons who have assumed marital relations to the legal obligations that would have been imposed by a ceremonial marriage. In this case the failure to recognize the marital status of Willda R. Sampsell and Harry A. Kohler when established by sufficient proof, as legal at common law will put the stamp of illegitimacy on a young man and affect adversely the present marital status of his mother and stepfather, which for many years has been accepted and respected in the community, as well as branding the deceased and mother of the mover as living out the last twenty years of her life in an unlawful relationship. An attempt recently made to outlaw common law marriages by legislation failed, and so we must assume that it is the public policy of this state to give legal effect to such relationships when properly established.

The courts of Ohio have clearly defined the elements that constitute such a relationship. They are:

1. An agreement in praesenti to become husband and wife.

2. Followed immediately by cohabitation as man and wife, and

3. Holding themselves out publicly as husband and wife, and are so regarded in the community.

Umbenhower v. Labus, 85 Oh St 238; Markley v. Hudson, 143 Oh St 163, 54 N. E. (2d) 304; Gotterdam v. Gotterdam, 86 Oh Ap 29; Monroe v. Middle Atl. Trans. Co., 86 Oh Ap 277; Dibble v. Dibble Admr., 88 Oh Ap 490.

Paragraphs 3 and 4 of the syllabus of the last cited case provides:

“3. To prove the existence of a common law marriage, the agreement to marry in praesenti must be shown by clear and convincing evidence; however, this element may be established by proof of the acts, declarations and conduct of the parties and their recognized status in the communities in which they have resided.
“4. Where a valid common-law marriage is established, such status continues until legally dissolved by death or divorce.”

If the evidence clearly establishes a common law marriage, the fact that one of the parties subsequently expresses doubt as to the legality of the union, and the other refuses to have a ceremonial marriage, does not affect their marital status. Nor does the return of the unused license affect such relationship when once established. Here the only evidence before the court was to the effect that the parties agreed to marry; that they went to the probate court and got a license which is in evidence and shows the signatures of both parties. This is almost irrefutable evidence of their agreement to become husband and wife. On the same day both made public announcement that they had just been married and that they cohabited as husband and wife and were so known by their friends and people who lived about them.

Without any contradiction, except as might be created because of admitted subsequent conduct, to hold that the marital relationship between Willda R. Sampsell and Frank A. Kohler was not established by clear and convincing evidence is manifestly against the weight of the evidence.

For the foregoing reasons the judgment of the Probate Court vacating the settlement of the final account and distribution of assets is reversed and the cause is remanded for further proceedings according to law. Exceptions noted. Order see journal.

HURD, J, THOMPSON, J, concur.


author: By SKEEL, PJ.:

text:
    NYHUIS, Plaintiff-Appellant, v. PIERCE, a. k. a. NYHUIS, nee SAMPSELL, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22372.
    Decided April 21, 1952.
    William K. Gardner, Harold O. Ziegler, Cleveland, for plaintiff-appellant.
    Edward L. Goette, for defendant-appellee.
    Allen N. Corlett, Cleveland, for Amicus Curiae.
   OPINION

By SKEEL, PJ.:

This appeal comes to this court on questions of law and fact seeking a decree of annulment of an alleged marital relationship between the parties resulting from a ceremonial marriage. The grounds on which the plaintiff bases his case are that at the time of the ceremonial marriage between the plaintiff and the defendant, the defendant was the common law wife of Harry A. Kohler. The defendant’s answer joins in seeking the relief prayed for by the plaintiff.

The evidence given in support of the allegations of the petition is not in conflict. The trial of the case was assisted by Allen N. Corlett, Amicus Curiae, who represents the guardian of'the estate of Beatrice Fernandez, incompetent, the interests of said incompetent being in conflict with those of this plaintiff in a probate proceeding now pending in the Probate Court of Cuyahoga County.

The defendant, who was then known as Willda R. Sampsell, met Harry A. Koehler at Luna Park in June or July of 1918. They were employees of the park, the employment of Kohler preceding that of the defendant. The defendant testified that in June of 1918 she had no place to go and that things were “kind of bad” for her, that Harry asked her, “How would you like to get married?” and she said, “I would be certaintly happy to have a home of my own.” He said, “All right we will go down and get married tomorrow.” Harry A. Kohler and Willda R. Sampsell on August 2, 1918 procured a marriage license from the Probate Judge of Cuyahoga County, the application being signed by both parties as appears by the record. The record then discloses that the defendant testified that Harry A. Kohler said after the license had been issded:

“Now we are tied up for good.”
By the Court: “Did you assume you were married to him?”
A. “I did.”

They then went to Luna Park where, in the presence of other employees of the park Kohler said, “I want you folks to meet my wife. We were just married this morning.” There was a wedding supper that evening and the parties thereafter cohabited as man and wife. The uncontradicted evidence in the record also shows that they were known as Mr. and Mrs. Kohler in the neighborhoods in which they thereafter lived.

In explanation of her subsequent conduct, there came a time when she (the defendant herein — then known as Mrs. Willda R. Kohler) entertained a doubt as to her marital status with Harry A. Kohler. In answer to a question as to whether or not she.ever requested Harry A. Kohler to have a minister solemnize their relationship, she answered, “I did after a friend of mine had told me ‘You must go to a minister’.” There is no doubt but that after the license was procured and they both publicly declared themselves to have been married that following such declaration of marriage and by cohabitation and holding themselves out in the community as husband and wife, the defendant believed she was the lawful wife of Harry A. Kohler. It is also true that the neglect to carry out the request of Willda Sampsell (Kohler) to go through a ceremonial marriage, by Harry A. Kohler, was only because he did not think such procedure necessary. His answer to her request for a ceremonial marriage was said by her to be:

“He said we could not be tied any tighter if a minister had done it. However, I told him I was told by a friend of mine that we should be married by a justice of the peace or a minister. He said that we couldn’t be tied any tighter if we had been married by a minister or a justice of the peace.”

This answer conclusively shows he believed they were then husband and wife.

If the relationship of husband and wife at common law is once fully established, subsequent doubt thereafter by either party can have no legal effect.

The record discloses that after the defendant had talked to a friend about the necessity of a ceremonial marriage and Kohler put off her request to go to a minister, he (Kohler) introduced her to the plaintiff herein and suggested to her that Nyhuis was a good honest man and would make a good home for her. This was followed by the procuring of a marriage license by Nyhuis and Willda R. Sampsell, followed by a ceremonial marriage before a justice of the peace on May 8, 1919. Before this ceremony took place, the license procured August 2, 1918 was returned to the Probate Court. As to what took place after the ceremony, the defendant testified as follows:

“When we went home, Mr. Nyhuis was a bartender and he worked evenings, he went to work in the afternoon and when he came home and went to bed he said, ‘You sleep on the davenport, the bed is mine.’ Then on Saturday evening a lady came to the home and she became familiar with Mr. Nyhuis. I said, ‘He is my husband. If you feel that way I won’t live in the same house, I want a home,’ and I left the house that day and I never saw the man until Mr. Goette pointed him out in the court room. I wouldn’t have known the man and that’s the truth, Judge.”

The evidence is in agreement that Christian O. Nyhuis and Willda R. Sampsell never cohabited as man and wife. Shortly thereafter, she returned to Harry A. Kohler, lived with him as husband and wife and a child was born; the record of vital statistics of the City of Cleveland shows the registering of such child as “legitimate” and their relationship continued until Kohler abandoned his wife and child and left for parts unknown about 1922.

Thereafter, Willda R. Kohler (Sampsell) on December 23, 1925, married Frank P. Pierce with whom she is now living and has since the date of their ceremonial marriage. The record also shows that Kohler is dead, the date of his death being in doubt, probably some time before 1932.

The plaintiff after all of the foregoing proceedings, by ceremonial marriage on April 4, 1926, married Estelle Chavis at Erie, Pennsylvania, with whom he lived as husband and wife until her death in 1947.

As clearly established by the evidence, there can be no doubt but that a common law marriage was established between Willda R. Sampsell and Harry A. Kohler on August 2, 1918. The evidence shows that there was an agreement, in praesenti, to become husband and wife followed immediately by cohabitation as husband and wife and the holding of themselves out publicly as sustaining that relationship and that they were so regarded in the community.

Umbenhower v. Labus, 85 Oh St 238, 97 N. E. 832; Markley v. Hudson, 143 Oh St 163, 54 N. E. (2) 304; Dibble v. Dibble, Admr., 88 Oh Ap 490, 100 N. E. (2) 451.

We have therefore only to consider first, whether, because of the fact that the plaintiff was a willing party in creating the relationship which he now seeks to annul, is entitled to the assistance of equity and second, whether annulment is the proper remedy.

The first question has been decided in the affirmative in the well-considered case of Smith v. Smith, 72 Oh Ap 203. Motion to certify was overruled by the Supreme Court January 20, 1943.

In the Smith case the action was to annul a ceremonial marriage performed after the woman (defendant in the action) had been granted a divorce in Mexico, the court there acting without obtaining jurisdiction of the parties. The court held:

“(3) When a marriage ceremony is performed that is void because one of the parties is married to another at the time, either party may maintain an action for a decree declaring such ceremony a nullity.
“ (4) As the state has an interest in having the marital status .of persons determined, the right to maintain an action to have a void ceremony decreed to be a nullity cannot be defeated by the conduct' of the parties. The doctrines of estoppel, in pari delicto and clean hands have no application to such an action to prevent the court from entering a decree declaring the nullity.”

The undisputed facts here being considered present a far stronger case for the intervention of a proceeding in equity than was presented in the Smith case, supra. The parties in this action lived in the same house only three or four days after the ceremony and both deny that 'they ever cohabited as husband and wife. There are no claims advanced by either party against the other that would depend upon establishing marital relations between them such as claims for alimony, support or division of property. There is no direct evidence that Nyhuis was completely informed of the relations between Harry A. Kohler and Willda R. Sampsell. The public interest in having the legitimacy of the child of Harry A. Kohler and his common law wife, Willda, sustained as well as clearing her present marital status with Frank P. Pierce, is here presented as is also true of the marital status of the plaintiff and Estelle Chavis (Nyhuis) now deceased. The common law marriage of Harry A. Kohler and Willda R. Sampsell which is supported by clear and convincing proof makes the attempted ceremonial marriage of Nyhuis and Sampsell void ab initio. Such a holding clears for all time the muddy waters which otherwise engulf all those here involved.

In American Jurisprudence, Volume 53, at page 221, the third paragraph of Section 59, the author says:

“The general rule has been followed in cases where the public interest favors the annulment of a void marriage, that the doctrine of clean hands does not prevent one from coming into court and obtaining the annulment of a marriage. Such rule has been followed with respect to incestuous marriages, bigamous marriages, and marriages prohibited because' within a certain time after a divorce of one of the parties.”

And, at page 271, Section 148, the author says:

“It is within the legislative power to prohibit polygamy. A marriage, whether ceremonial or common-law, between persons one of whom is married to another, although he or she has been deserted by his or her spouse, is void, generally by express statutory provision, and not merely voidable. It may be treated so by the parties to it and by all the world, it is good for no legal purpose, it is not attended or followed by any of the incidents of a valid marriage; it gives rise to alimony; its invalidity may be asserted by anyone if the question becomes material; and no decree of its nullity is necessary although such a decree may be, and frequently is, obtained. ■
“The general rule Is that a subsequent marriage does not in itself in any case dissolve a previous existing one. A marriage is not dissolved by the fact that the wife, relying on the validity of a church divorce, became a party to another marriage ceremony.”

The statutory provision in Ohio prohibiting remarriage while a person has a husband or wife living is §8001-1 GC (former §11181 GC), and §12412 GC, provides the penalty for bigamy.

We must conclude therefore that a court of equity will entertain a suit for annulment under the circumstances here presented by the pleadings and evidence. Any other holding would be in conflict with the judgment in the Smith case, supra.

The remaining question is as to whether or not the action should be one for divorce rather than an annulment proceeding.

After this case was tried and decided in the Common Pleas Court, the Supreme Court rendered its decision in the case of Eggleston v. Eggleston, 156 Oh St 422. The syllabus is as follows:

“(1) Sec. 11979 GC, authorizing the granting of a divorce where ‘either party had a husband or wife living at the time of the marriage from which the divorce is sought,’ provides an exclusive remedy in cases involving that situation.
“(2) Where a decree of divorce is granted on the petition of a woman on the ground that the defendant had a wife living at the time of his marriage with the plaintiff, the court has jurisdiction to grant to the plaintiff alimony and other relief authorized by the statutes on divorce and alimony. (VanValley v. VanValley, 19 Oh St, 588, approved and followed.) ”

The facts and judgment of the Eggleston case, supra, are quite different and are clearly distinguishable from the instant case. In the Eggleston case the plaintiff lived with the defendant as her husband for many years, by which relationship children were born and property acquired. The plaintiff prayed for divorce, alimony and other relief authorized by the divorce statutes. The defendant assumed he had been divorced from his then wife prior to the ceremonial marriage with the plaintiff. Both parties believed that the defendant was free to assume a new marital status, the finding of fact being that the defendant had obtained a divorce, but the service was fatally defective which “fact was not known to either of the parties herein until recently.” Sec. 11979 GC (now §8003-1 GC) provided as one of the grounds for divorce:

“That either party had a husband or wife living at the time of the marriage from which the divorce is sought.”

The plaintiff in the Eggleston case was asking for relief under the divorce statute and was clearly entitled thereto. The Supreme Court said on pages 427 and 428:

“The effect of that holding is that, under the provisions of the statute authorizing a. divorce on the ground that either party had at the time of the marriage a husband or wife living, there is granted the right to the relief provided in the supplemental statutory provisions. In the annulment of the marriage contract the court instead of considering the plaintiff’s case for divorce under the statutory provisions authorizing the same deprives the plaintiff of any consideration of her claim for alimony to which she may be found to be entitled under the statute. The General Assembly specified certain grounds upon which a decree of divorce may be predicated, among them the particular ground involved in this case It is to be observed that ‘fraudulent contract’ is another ground specified as a ground for divorce, and that also goes to the validity of the marriage.
“It is our view, therefore, that §11979 GC, authorizing the granting of a divorce where ‘either party had a husband or wife living at the time of the marriage from which the divorce is sought,’ provides an exclusive remedy in cases involving that situation, and that in such proceeding the court is authorized to adjudicate the issue of relief incident to the granting of a divorce.”

Under the facts of the instant case, neither of the parties asked for nor are they entitled to any relief that is exclusively within the purview of the divorce statutes. They both seek only to have a court of equity decree that no lawful marital status was created by the attempted marriage of May 8, 1919. The law of this state has always held attempted marriages by parties already in lawful wedlock as absolutely void. See §8001-1 GC (former §11181 GC). And, where the facts do not require the use of the divorce statutes to protect rights of property or support, they should not be construed as being therein involved.

We hold, therefore, that under the facts in this case the action in annulment can be maintained.

For the foregoing reasons, decree is entered for the plaintiff. Exceptions noted. O. S. J.

HURD, J, THOMPSON, J, concur.


author: By HUNSICKER, PJ.

text:
    BACETTI, Appellant, v. NATIONAL TUBE CO., Appellee.
    Ohio Appeals, Ninth District, Lorain County.
    No. 1263.
    Decided June 18, 1952.
    Levin & Levin, Lorain, for appellant.
    Squire. Sanders & Dempsey, Cleveland, Fauver & Fauver, Elyria, for appellee.
   OPINION

By HUNSICKER, PJ.

Carlos Bacetti, herein called Bacetti, an employee of National Tube Company, herein called Company, was injured on July 30, 1948, while performing his usual work in the company plant. The nature of the injury was such that Bacetti was burned about the face, neck, ears and left forearm, when flames from one of the ovens in the plant were blown directly onto him as he was engaged in pushing a mud buggy in the vicinity of the oven.

The Company, a self-insurer, accepted the claim as to the skin burns and paid Bacetti temporary total disability until August 28, 1948, the date when Bacetti returned to work

Bacetti thereafter, on January 14, 1949, filed an application with the Industrial Commission of Ohio for an adjustment of his claim, stating that, as a consequence of the accidental injury of July 30, 1948, he suffered an injury to his eye resulting in an impairment of his vision.

The Company denied that Bacetti received an injury to his eyes, and, after a hearing by the Industrial Commission, the claim was not allowed. A rehearing was granted, and the claim again disallowed.

Bacetti then filed his petition in the Common Pleas Court of Lorain County for a determination of his right to participate in the workmen’s compensation fund. After a trial to a jury, a verdict was returned, finding that Bacetti was not entitled to participate in the workmen’s compensation fund.

From the judgment entered upon such verdict, Bacetti has appealed to this court on questions of law.

The first complaint of the appellant to which we direct our attention, is the claim that the trial court erred in giving a special request before argument submitted by counsel for the company. This charge was as follows:

“I charge you as a matter of law that, before plaintiff can recover from the defendant in this case, plaintiff must prove by a preponderance of the evidence—
“(a) that his claimed loss of vision was a direct and proximate result of the accident of July 30, 1948, and, in addition thereto, (b) that his loss of vision in the left eye is at least twenty-five percent (25%).
“In the event plaintiff fails to prove, by a preponderance of the evidence, either (a) or (b), then your verdict must be for the defendant.”

Counsel for Bacetti insist that it was error prejudicial to the substantial rights of Bacetti to give this requested charge to the jury, for the reason that it fails to take into consideration the question of acceleration or aggravation of a preexisting condition, and because the question of percentage of disability should not be submitted to the jury.

After carefully reading the testimony and examining the exhibits, we find that at no time did Bacetti claim any impairment of his vision prior to July 30, 1948. He testified and his witnesses also stated that he could see “good,” that there was nothing wrong with his eyes.

Counsel for Bacetti stressed the report of Dr. Sullivan, made as a result of an eye examination of Bacetti in Puerto Rico prior to Bacetti coming to Lorain. From all the testimony on this subject, we can find no claim of previous visual impairment. There is, of course, the claim that Bacetti had an “opacity at 2 o’clock.” This defect, if it may be so called. Dr. Stolzar said did not impair his vision. Dr. Stolzar further testified that such defect developed when Bacetti was between the ages of 15 and 20.

Dr. Cowen, who also found the “opacity at 2 o’clock,” said that, “assuming that his (Bacetti’s) eyes were normal on February 26, 1948, with my findings of April 12, 1949, * * * the accident that caused his injury would probably be the cause of his opacity of the media.”

We have searched the record, but have been unable to discover any basis for the claim that there has been an “acceleration or aggravation of a pre-existing condition.” There is also no basis in the testimony for a claimed injury to the right eye.

Coming now to the question of the charge to the jury that they must find the extent of disability in cases of claimed injury to an eye, our attention is called to that part of §1465-80 GC, which reads as follows:

“For the permanent partial loss of sight of an eye, 66-2/3% of the average weekly wages for such portion of one hundred twenty-five weeks as the commission may, in each case determine, based upon the percentage of vision actually lost as a result of the casualty, but in no case shall an award of compensation be made for less than 25 per cent loss of vision.”

We understand, of course, that the province of the jury in workmen’s compensation cases is to determine only the right of a claimant to participate in the fund set up by such legislation, the duty of providing the amount of compensation resting with the Industrial Commission. (Sec. 1465-90 GC.)

It is apparent from a reading of the petition and entire record herein, that counsel for Bacetti adopted the theory of his case to the view that in cases involving claims of injury to the eye, it becomes an obligation of the claimant to show at least a 25% loss of vision before participation in the fund may be declared by the jury.

From a reading of the language of the statute (§1465-80 GC), we, too, must adopt the theory first advanced by counsel for Bacetti. The only case cited to us covering this specific point, and the only case we have been able to discover, is that of Industrial Comm. v. Whitlatch, 20 Abs 145, adhered to on rehearing in 21 Abs 34. The Court of Appeals of Franklin County there said, at p. 147 of 20 Abs.:

“It would appear from a reading of this section (§1465-80 GC) that before a claimant is entitled to an allowance of compensation for a permanent partial loss of vision he must establish that he has suffered at least a 25% loss, and until such a percentage of loss is shown he is not entitled to recover.”

We therefore determine that the trial judge correctly charged the law when he required the jury to find that the claimant had at least a 25% loss of vision before such claimant was entitled to participate in the compensation fund.

We have examined all other claimed errors, and, although we do not recommend the type of cross-examination that was permitted when Dr. Cowen testified, we do not find error prejudicial to the substantial rights of the appellant.

Judgment affirmed.

DOYLE, J, STEVENS, J, concur.


author: By THE COURT.

text:
    JONES, Plaintiff-Appellant, v. GAREK et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4625.
    Decided November 2, 1951.

      Brownfield, Schwenker & Teaford, Joseph F. Ford, of Counsel, Columbus, for plaintiff-appellant.
    Richard W. Gordon, City Atty., Baxter Evans, Special Counsel, Edward J. Cox, Senior Asst. City Atty., Columbus, for defendants-appellees.
   OPINION

By THE COURT.

This is an appeal on questions of law from a judgment of the Common Pleas Court affirming an order of the Municipal Civil Service Commission of the City of Columbus reducing appellant from his position of Lieutenant in the Columbus Fire Department to Fire Fighter and suspending him for thirty days without pay.

The facts essential to an appreciation of the questions presented are that appellant, prior to the order complained of, had been for almost fifteen years an employee of the Columbus City Fire Division. At the time of his suspension he was stationed at No. 8 Engine House, 20th Street and Mt. Vernon Avenue, and just a short time before had been advanced to the rank of Lieutenant. A few days prior to November 28, 1950, there had been an unusually heavy fall of snow in the city greatly restricting traffic and resulting in the calling of members of the Fire Department to their respective stations. There is some question if an emergency was formally declared prior to the evening of November 28, but, in any event, an alert had been sounded and the appellant had reported on time on the 28th.

Prior to October 31, 1950, appellant had held the property in which he resided on a written lease by the terms of which he paid $75.00 per month as rent. The lease having expired the rent was raised to $132.00 per month and because of some difficulty between appellant and his landlord he had instituted an action in forcible detainer to recover possession of the premises in which appellant, his wife and two children lived. While the suit was pending the parties came to an agreement whereby appellant was to have the privilege of purchasing the premises, although the landlord was to take judgment on his action. Appellant was to make a down payment on the purchase price of $500.00 on or before November 27th, 1950, at 10:00 o’clock, A. M., in default of which appellant would enforce his judgment by a writ of restitution. On the 27th appellant contacted counsel for his landlord who informed appellant that because of inclemency of the weather counsel could not be at his office on the 27th but would be there on the 28th to accept the payment according to the contract.

Shortly after appellant reported for duty on the morning of November 28th he made application through his superior officer for leave for sufficient time to meet his appointment with counsel for appellant’s landlord. Appellant’s captain called the Chief of the department who refused to grant the leave based on the emergency order. Appellant requested and secured permission to speak to the Chief to whom he explained that the appointment was about a real estate transaction which was for his benefit and of grave concern to him. Later he sought and secured permission to talk to two Deputy Chiefs, without success. All of these conversations, necessarily by telephone, and the arrangements required to complete them took considerable time. In his dilemma, the dead line for his appointment approaching, appellant told his superior officer that he would leave to meet his appointment. He was informed that if he did he would be suspended. Appellant left the fire engine house at 9:25 A. M„ walked to his home, got the $500.00, then to the office of the attorney for the landlord by 10:00 A M., and made the payment on the purchase price, as he had agreed to do. He then went to the office of a friend, an attorney, and sought his assistance in enabling appellant to return to his work. The attorney called the Chief of the Fire Department in an attempt to arrange for appellant’s return and was then told that he had been suspended.

On November 30, 1950, at about 6:40 P. M. appellant was served with a written notice of his suspension as of November 28,1950, 9:25 A. M., setting forth two charges against him. This complaint was signed by the Chief of the Division of Fire and at the same time, by separate letter, appellant was notified by the Director of the Department of Public Safety that he would be given a hearing on the charges and specifications at 11:00 A. M., December 1, 1950. Appellant engaged counsel on the morning of December 1, 1950, who called the Safety Director and first was unable to contact him; later, reached him and attempted to secure a continuance of the hearing. As a result of this conversation he secured a continuance of one hour and a refusal of any further extension of time.

The appellant with his counsel attended the hearing before the Director of Safety. Protest was made against requiring appellant to submit to a hearing because he did not have opportunity to produce witnesses in his behalf but the hearing proceeded. The Chief of the Fire Department, two Assistant Chiefs and a Captain in the Engine House where the appellant was stationed testified in support of the charges against appellant. Appellant was the only witness offered in his behalf. At the conclusion of the hearing the Director of Safety found the appellant guilty as charged, ordered him reduced from his rank of Lieutenant in the Division of Fire to that of Fire Fighter and ordered him suspended for a period of ninety days.

An appeal to the Commission was perfected at which time it appears that the Deputy Clerk of the Municipal Court, the Chief of the Division of Fire, the Secretary of the Division of Fire, Assistant Chief of the Division of Fire and appellant appeared as witnesses. Thereafter, the Commission affirmed the action of the Director of Public Safety in the order demoting appellant in rank but modified the ninety day suspension to thirty days suspension. An appeal to the Common Pleas Court was noted with the result as heretofore stated.

The information respecting the proceeding before the Civil Service Commission is taken from a Certificate of the Proceeding by the Secretary of that Commission, but the record is not attached to or made a part of the bill of exceptions or the transcript of docket and journal entries.

There also appears as a part of the hearing before the Director of Public Safety what purports to be a copy of an affidavit of George H. Chamblin, attorney for appellant’s landlord, together with the notation, partly in ink and partly in pencil, “Admitted (in Civil Service hearing),” and it is stipulated that it was before the Commission. This affidavit completely supports the testimony of the appellant before the Director respecting the suit against him in Municipal Court, the agreement growing out of this suit, the taking of a judgment in forcible detainer, an agreement on the part of appellant to make the $500.00 down payment on purchase price on or before Monday, November 27, 1950; further, that in the event defendant should fail to raise and pay over said sum of $500.00 at the office of affiant on or before 10:00 A. M., November 27, 1950, “said judgment would be enforced and writ of restitution issued” on that day; that this time was extended to 10:00 A. M., November 28, 1950, and that appellant came to affiant’s office on that date and paid said sum.

As an exhibit attached to the record made in the hearing before the Director of Safety, there appears Rule 10 of the Civil Service Commission which provides, as in §486-17a GC, for an appeal by an employee who has been suspended by his appointing authority for disciplinary reasons and that upon hearing the Commission may affirm, disaffirm or modify the order of the appointing authority. (Emphasis ours.) There is a further provision in such appeals:

“the Commission will review the transcript of the testimony taken before the Director of Public Safety * * * and no further testimony shall be produced before the Commission from any witnesses (other than the appellant) who has testified in .the case, unless for good cause the Commission permits additional testimony.”

It will be observed that the notice served on appellant was not of a suspension by the appointing authority who is the Safety Director, nor was there any hearing by the Commission upon the sufficiency of the cause of the order set out in the notice.

Appellant assigns four errors:

(1) The appellant was never granted a hearing before the Commission within the meaning of §486-17 GC.
(2) There is no provision in law for the Commission to delegate by rule to the Safety Department the requirement placed upon said Commission by statute to conduct hearings.
(3) The appellant was not granted reasonable time in which to prepare for the purported hearing before the Safety Director; and
(4) In adjudging that there was sufficient cause for the Commission to make its order of reduction in rank and suspension of appellant.

We first consider the third assignment of error which is established. The written notice from the Safety Director and the suspension notice over the signature of the Chief of the Fire Department did not accord to appellant a reasonable time in which to make and file an explanation. This obligation is enjoined upon the appointing authority by our Supreme Court in State, ex rel. v. Witter, 110 Oh St 331.

The employee was notified at 6:40 P. M. on the 30th of November of his suspension and that his hearing would be conducted the next day at 11:00 A. M. Any explanation which appellant might offer must have been filed by the time of the hearing to be of any advantage to him. The notice gave him an over-all period of sixteen hours and twenty minutes, including the night season, between his notification and his hearing. It gave him but two hours during the business period of the day, viz., from 9:00 A. M. until 11.00 A. M., December 1, 1950. It is manifest that the intention of the Civil Service Law is that the suspended employee, as a protection to him, have reasonable opportunity to prepare and file his explanation. Such opportunity may require that the suspended employee secure legal assistance. Such assistance clearly was needed by the appellant to a proper explanation of his defense which was involved and extended. To limit him as he was limited was unreasonable and in violation of the express terms of the statute. As a matter of fact, probably because of a denial of sufficient time to prepare an adequate explanation, it was not filed with the Director of Safety before the hearing which he conducted. Nor was it filed at any time. Such explanation as the appellant was permitted to give was not before he appeared before the Safety Director, as is contemplated by law, but at the end of the hearing and after a number of his superior officers had testified against him and without any opportunity afforded him to corroborate by impartial witnesses the testimony which he had offered in his defense. Thus, the appellant was forced into the hearing over his protestations and without time or opportunity to properly present his case. At the end of the hearing appellant was adjudged to lose his rank as Lieutenant to attain which he had spent almost fifteen years in the service and was suspended for ninety days. The order was modified only as to the number of days of suspension.

It is suggested in support of the judgment that the appellant should have planned to meet his obligation on the purchase agreement at an earlier date than the 28th of November and thus have avoided the extremity with which he was confronted. This proposition fails to take into consideration that appellant had no reason to anticipate the unusual and unexpected development of the weather which created the emergency requiring his presence at his station on the day of his suspension.

Independent of the failure of appellees to observe the letter or the spirit of the statute, the pressing of appellant into the hearing before the Safety Director under the circumstances appearing in this record was an abuse of discretion, if not a denial of due process of law.

We are of opinion that the first and second assignments of error are supported by this record.

Upon the proceedings as conducted there were two orders issued against the appellant: The first, the temporary suspension, or layoff, by the Chief of the Fire Department; the second, the judgment and sentence, the subject of the second order by the Safety Director after the hearing on the complaint against the appellant. Although §486-17 GC says that §486-17a GC shall be given application in the suspension or reduction in rank of a member of a fire department, §486-17a GC treats of a removal of an employee at which time the final judgment in its entirety has been pronounced. There is then and in other comparable orders, something specific to which an appeal can be directed but the order served upon the appellant here was not intended to be final and the next step to be taken pursuant to this notice is set out by §486-17 GC.

Secs. 486-17 and 486-17a GC are identical in provisions requiring the furnishing of the employee with a copy of the order of suspension and in according to him the right to make written explanation and to have a reasonable time within which to make such explanation. They differ as to procedure subsequent to the giving of the notice and the filing of the explanation, if made.

Sec. 486-17 GC provides:

“Such order together with the explanation shall be filed with the commission and * * * the commission shall conduct a hearing following the filing of the order and explanation to determine the sufficiency of the cause of the order.”

This language in mandatory form enjoins upon the Commission, not upon any other authority, the obligation to conduct a hearing when the suspension order is filed with it and the object of its hearing is to determine the sufficiency of the cause of the suspension. It is inconceivable that the filing of appellant’s explanation after the final adjudication of the Safety Director on the complaint could be of any benefit to him. On the other hand, if the Commission had accorded him a hearing on the original order of suspension and upon his written explanation, if filed, had found in his favor, the proceedings would have been at an end.

The Commission by its Rule 10 has concluded either, that the hearing upon appeal is synonymous with the hearing provided for in §486-17 GO or, that the hearing by the Safety Director of the charge against the suspended employee meets the intendment of the hearing provided by §486-17 GC. We do not agree with either theory.

Because of our view of the other assignments of error we do not pass upon the 4th assignment.

The judgment will be reversed and cause remanded.

HORNBECK, PJ, MILLER, J, and NICHOLS, J, of the Seventh District, sitting by assignment, concur.


author: By LYBARGER, J.

text:
    METZENBAUM, Plaintiff, v. LYMAN, Senior et, Defendants.
    Common Pleas Court, Cuyahoga County.
    No. 631075.
    Decided October 21, 1952.

      John J. Brown, James Metzenbaum, Cleveland, for plaintiff.
    Burgess, Fulton & Fullmer, Cleveland, for defendants.
   OPINION

By LYBARGER, J.

In this action the plaintiff has filed an amended petition, in the first cause of action of which he sues defendants on a written contract to employ him as attorney to revive and prosecute certain claims for personal injury and property damage against the State before the Sundry Claims Board Plaintiff alleges that he faithfully represented defendants, and by reason of his efforts their claims were allowed. He says that there is due him according to the contract $3,750.00 which defendants have, upon demand, refused to pay. For his second cause of action plaintiff sues in quantum meruit, alleging that the reasonable and fair value of his services rendered on behalf of the defendants is $3,750.00 for which he asks judgment.

To this amended petition the defendants John and Emeroy Lyman have filed an amended joint answer. In their first defense they admit they entered a written agreement with plaintiff as alleged; that plaintiff undertook to represent them as attorney before the Sundry Claims Board; that plaintiff was present with them at a rehearing of their claims; that payment of their claims was allowed by the State. Defendants then deny all other allegations in the amended petition. For their second defense defendants allege that in March, 1948 plaintiff and defendants “entered into an oral contract of recission whereby said written contract was by mutual agreement terminated.”

The cause now comes before the court upon hearing of a motion by plaintiff that (1) defendants’ second defense be stricken as a sham; (2) the general denial at end of first defense be stricken as a sham; and (3) judgment be awarded as prayed for by plaintiff.

This requires the court to examine these preliminary questions:

(1) Under what conditions may an answer be stricken from the files as a sham defense?
(2) By what means may the court determine whether or not an answer, good on its face, actually does present a bona fide issue for trial?

The leading Ohio case dealing with the present problem is White v. Calhoun, 83 Oh St, 401. This case authorizes a court on motion to strike an answer from the files and give judgment against a defendant who resorts to a sham answer filed for the purpose of delay. The decision (page 407) points out that this is an inherent power of the court which “should be exercised wisely and with discrimination,” and that a motion to strike an answer as a sham should be “sustained only upon such showing upon the part of the plaintiff as leaves no question whatever of the truth and conclusiveness of plaintiff’s evidence.”

The decision in White v. Calhoun then goes on to say:

“A situation in which there is conflict of evidence upon any material point, or admitting of a rational doubt as to the proper order to be made, should result in the overruling of the motion.”

In Butterick Publishing Co. v. Smith, 24 O. N. P., N. S. 573, the court took notice of the above language of the Supreme Court and adopted it as a rule and guide for determining the matter then before it. Here then is an answer to the first question raised above as to the conditions under which an answer may be stricken from the files as a sham defense.

Obviously to determine whether or not an answer is a sham the court must have before it more than the pleading itself. In Butterick Publishing Co. v. Smith the manner of proceeding is set forth as follows (page 574):

“The motion of the plaintiff to strike the answer from the files and for summary judgment upon the petition was heard by the court upon the petition, affidavits in support of the motion, the exhibits and sworn evidence introduced by the plaintiff and defendant, including the testimony of the defendants * * *.”

In the case of White v. Calhoun, the court indicated that the defendant’s answer might be compared with his deposition taken subsequent to the filing of the answer, thus suggesting another means available for passing on the merits of the pleading when challenged. This court therefore answers the second preliminary question above by observing that the means available for determining whether or not an answer presents a sham defense are: (a) the pleadings, themselves, (b) affidavits, (c) exhibits, (d) depositions, and (e) evidence introduced by the parties upon hearing of the motion to strike.

Relying on all the sources of information which have been made available in this case to throw light on the nature of the answer of the two defendants, the court is convinced that the following material points have been established.

(1) The agreement of January 2, 1947 was a valid and binding contract between plaintiff and defendants whereby the latter agreed to pay plaintiff for his legal services. In his first cause of action plaintiff sues upon this contract for non-performance of it by the defendants.

(2) The defendants in the first defense of their amended answer, while making certain admissions, deny certain other allegations, among which: (a) that answering defendants were agents for their sons; (b) that plaintiff diligently prosecuted their claims; (c) that his efforts obtained the rehearing or final award, and (d) that they owe him any money as plaintiff alleges. In their second defense defendants claim that in March, 1948 by mutual agreement and consideration the original contract between them and plaintiff was rescinded.

(3) Defendant John Lyman in his deposition says that he “took the case away from” the plaintiff. He admits that, although he had gone to Columbus alone to talk over his claim with “some man” there, he did not follow through with a letter to him, as suggested, or take steps to handle his claim independently of the plaintiff.

A portion of his deposition introduced into evidence at the hearing indicates that in December 1950, Lyman went to the hearing of his claim with plaintiff, that plaintiff argued on his behalf, and that defendants received an award “as a result of that hearing.” He did not know whether plaintiff represented him as his lawyer but he did not deny it.

Defendant John Layman admitted that it was plaintiff who advised him that the checks in payment of the claims had come.

(4) The plaintiff in his affidavit and upon testimony at the' hearing swears that he never, at any time, agreed to a recission of the contract of January 2, 1947, and that the subject was not discussed by him and defendants.

(5) Plaintiff establishes that July 25, 1949 the defendant Emeroy Lyman wrote plaintiff sending him certain data to be used in preparing and prosecuting their claim, the same being sent sixteen months after the alleged termination of the contract whereby plaintiff was employed as attorney.

(6) It was the defendants who drove plaintiff to and from Columbus on December 12, 1950 for the hearing of their claim.

(7) Upon plaintiff informing defendant John Lyman that the claim settlement checks had arrived, said defendant for the first time refused to pay plaintiff, became abusive and threatened plaintiff with adverse publicity.

Included in the above summary is most of the evidence offered by the plaintiff on which he seeks to have both defenses stricken as shams. The defendant offered no evidence at the hearing except to call the court’s attention to certain portions of defendant John Lyman’s deposition which portions have been summarized above. The court is fully cognizant of its duty to apply to all evidence brought forth at the hearing the tests set up by the Supreme Court in White v. Calhoun. Is there any “question whatever of the truth and conclusiveness of plaintiff’s evidence?” Is there “conflict of evidence upon any material point?”

Turning first to the initial defense where by general denial defendants have sought to put in issue certain elements of the plaintiff’s case, the court observes no reason whatever for the defendants to deny the truth of the statement that they were acting for their two minor sons, the other defendants in the case. They brought forth no testimony to sustain such a denial. The point, however, is not a material one so far as the defendants John and Emeroy Lyman are concerned. In view of the evidence before the court, it is a manifest evasion for defendants to deny that plaintiff diligently prosecuted their claim and that as a result of his effort a rehearing was had and an award finally made. There can be no question as to the truth and conclusiveness of the plaintiff’s evidence on this point. It established that beyond any doubt the denials in defendants’ first defense are not bona fide but should be stricken as shams.

As to the second defense, is there any justification, from the evidence before the court, for defendants’ allegations as to a rescission? The defendants have offered nothing to indicate that there was any meeting of the minds in this respect whatsoever. The conduct of the defendants after the alleged rescission of March 1948, belies the fact of a rescission. They did nothing themselves to advance their claims at Columbus. They did not employ other counsel. Mrs. Lyman’s letter of July 25, 1949 clearly negatives the contention that the contract was rescinded, for in it she was dealing with plaintiff as attorney and furnishing him data for use in advancing defendants’ interests in the claims. Defendants continued to accept plaintiff’s services, they took him to the hearing December 12, 1950 where he presented their claims. Obviously they benefitted by his services, for at that hearing their claims, although twice rejected years before, were allowed.

The court cannot fail to observe the striking difference between the allegations in the present second defense and in the one formerly filed, wherein defendants contended that plaintiff in December, 1950 “agreed to render further services herein without charge to the defendants.” That would be a most unusual and dubious contract for any attorney to make under the undisputed circumstances of this case. Still if it were true when alleged in the first answer it would likewise be true when defendants swore to the amended answer. Why then was it abandoned by defendants, since (if true) it might explain why plaintiff had represented defendants at the crucial hearing of December 12, 1950? Having dropped such allegation, defendants can no longer rely upon it or bring it forward as a defense. The circumstances of its having been alleged and then abandoned lends color to the plaintiff’s contention- that both of defendants’ second defenses (in the present and former pleadings) were and are shams.'

The court is convinced that there can be “no question whatever of the truth and conclusiveness of plaintiff’s evidence.” Also there is no “conflict of evidence upon any material point” to warrant this case going to a jury. The defendants are seeking to put the burden upon the plaintiff of offering proof on points to which, the evidence offered at the hearing indicates, no real controversy exists.

The facts in the instant case are close to those in Butterick Publishing Company v. Smith cited above. There,, after a general denial, defendants set up a second defense alleging an oral accord, a satisfaction which disposed of the contract between the parties. Just as in this case, so in the Butterick case, defendants’ claim conflicted with that of the plaintiff, but the court was not deterred thereby from hearing the evidence and deciding the motion. There was written evidence in the form .of letters which obviated defendants’ contentions.

In deciding the present case this court may properly adopt much of the language of the Butterick case. At page 577 the court said:

“From these and other letters it is clear beyond a doubt that the minds of the parties never met upon the terms of any settlement. The proposition offered by the plaintiff or its salesman was never accepted by the defendant. There was no accord and no satisfaction. Even an unexecuted accord without performance is not a good defense. Frost v. Johnson, 8 Ohio, 393.

“However, in this case, there was merely an argument back and forth concerning a settlement. Hence the attempted defense of the answer that there was a complete accord and satisfaction is a subterfuge and a sham and can not be permitted to delay the collection of a just claim.

“This court is jealous of the right to a trial by jury and would not deprive any one such trial if there was any issuable fact upon which a meritorious defense could be predicated. However, to quote the language of our Supreme Court in White v. Calhoun, 83 Oh St, at page 405:

‘“It seems idle in this day, when the efforts of lawyers, some of them at least of the highest class, are being strenuously exerted in the direction of securing a more speedy administration of justice, to talk about a right of a defendant to stand for months and perhaps years upon a sham defense, thus preventing judgment, a defense which will crumble at the first assault upon it when the case is reached. The very statement of the proposition condemns it. It is simply a bold proposition the effect of which is to obstruct the due administration of justice.’
“A defendant should not be permitted to file false and fictitious pleadings and thereby delay for months the collection of a claim already long overdue.”

In the instant case the court is convinced by the evidence offered at the hearing that the defendants, in their zeal to get something for nothing, have not only imposed on their eminent counsel (who have here done their duty by their clients with due regard for the ethics of the profession), but also defendants have interposed a sham defense deserving of being stricken from the files.

The court therefore orders that the general denial at the end of John and Emeroy Lyman’s first defense be stricken from the files; that the second defense of the amended joint answer of the defendants John and Emeroy Lyman be likewise stricken. The court awards judgment to plaintiff and against defendants John and Emeroy Lyman as prayed for in plaintiff’s amended petition.

Plaintiff may prepare a journal entry suitably embodying these findings. Defendants except.