author: By WALSH. J.

text:
    ELLIOTT, Trustee, Plaintiff, v. HINKLE, Extrx. et.
    Probate Court, Butler County.
    No. 6986.
   OPINION

By WALSH. J.

This matter came on for hearing upon a petition of the Trustee wherein he prays the judgment and direction of the Court in regard to the true construction of the provisions of the Will of Louis Sebald, deceased, and as to the duties of said Trustee in the premises, and a determination of those persons who constitute the present beneficiaries of said Trust and the proportions to which each are entitled to share in the Trust income.

The Court does find that there has been a proper service upon all parties interested, either by way of waiver, representation by counsel, or legal publication. That matter now being properly before the Court, the Court does have authority and jurisdiction to proceed and determine the issues herein.

Louis Sebald, a resident of Middletown, Butler County, Ohio, died testate, on the 26th day of November, 1914. His Will, which was duly probated December 2, 1914, and upon which Letters of Executorship were issued to Elsie Sebald and Carrie Hinkle, reads as follows:

“IN THE NAME OF THE BENEVOLENT FATHER OF ALL:
“I, Louis Sebald, of Middletown, Butler County, Ohio, being of full age, of sound and disposing mind and memory and under no restraint, do hereby make, publish and declare this as and for my last Will and Testament, hereby revoking and declaring null and void, all other Wills and Testaments by me made heretofore.
“ITEM FIRST. It is my will, and I hereby direct, that all my just debts, expenses of my last illness and funeral expenses, be first paid out of my estate as soon after my decease as may be found convenient by my Executrixes, hereinafter named.
“ITEM SECOND. I hereby give, devise and bequeath Three Thousand Dollars ($3,000.00) of Irrigation Bonds, to my four (4) children, Carrie Hinkle, Elsie Sebald, Harry Sebald and Walter Sebald.
“ITEM THIRD. All of my household furniture to be divided among my two (2) Daughters.
“ITEM FOURTH: I hereby direct that my Executrixes, hereinafter named, shall sell, at either Public or Private sale, as to them may seem best, all unimproved lots owned by me in the City of Middletown, Ohio and lots I own at Florence, Alabama, and to make, execute and deliver unto the purchaser or purchasers, a good and sufficient deed for the same; and, in order to make such sale, said Executrixes are authorized to subdivide or further subdivide any or all of said lots, and to employ an Auctioneer or Agent, to assist them in the making of such sales; the proceeds of such sale to be divided in the manner hereinafter stated.
“ITEM FIFTH. All of my improved real estate, being the business houses and flat buildings fronting on Third Street, in Middletown, Ohio, and the two (2) residences which I own, fronting on Broad Street, in the City of Middletown, is hereby given, devised and bequeathed unto my Daughter, Elsie Sebald, as Trustee, to have and to hold the same, for the uses and benefits, as follows:
“A. To rent all of said real estate, to collect the proceeds thereof, pay all of charges for taxes and assessments, keep the improvements thereon insured against loss by fire or other unavoidable casualty; to make all necessary repairs or improvements on said buildings and to divide the remainder of such proceeds equally among my said four (4) children, namely — Harry Sebald, Walter Sebald, .Carrie Hinkle and Elsie Sebald; such division to be made each three (3) months, or oftener, if she so desires.
“B. My said Trustee shall have and hold said real estate as such Trustee and for the Purposes above mentioned, for the life of all of my children; and in case any of said children shall die during the life of any of my children, the proportion of such income, rents, issues and profits, that may be payable hereunder, to such child so deceased, shall be paid to the child, or children, of such deceased child, during the life of any of my children.
“C. Upon the death of all of my children, such Real Estate is hereby given, devised and bequeathed unto the child or children of my children, or their legal representatives.
“ITEM SIXTH. All the residue of my Estate, including all of the proceeds of the sale of unimproved lots, I do hereby give, devise and bequeath unto my four (4) children, to wit; Elsie Sebald, Carrie Hinkle, Walter Sebald and Harry Sebald, each to have one-fourth thereof; but in such distribution, my Son, Harry Sebald, shall account for an advancement to him amounting to the sum of $1,106.37; and my Son Walter Sebald, shall account as an advancement, to him of the sum of $106.37.
“ITEM SEVENTH. I do hereby further direct that the Trustee of the said real estate herein appointed to collect the rents, incomes and profits and to look after the real estate devised to such Trustee, shall be paid a reasonable compensation, not to exceed three percent. (3%) of the amount of rents, incomes and profits collected for the use of such real estate.
“ITEM EIGHTH. In case of the death of my said Trustee or her removal from the City of Middletown, the Probate Court of Butler County, Ohio, is hereby requested to'appoint any other of my children, resident of the City of Middletown, as such Trustee, with similar powers as is herein granted to the Trustee herein appointed; and, in case none of my children reside in the City of Middletown upon the death of such Trustee or her successor, and any of my children are still living, the Probate Court of Butler County, Ohio, is hereby authorized and empowered to appoint some judicious person, resident of the City of Middle-town, to act as such Trustee, with similar powers and similar limitations as to compensation as is herein stated for the Trustee herein appointed.-
“ITEM NINTH. I do further direct that no bond be required of my daughter, Elsie Sebald, as such Trustee, during her incumbency as such.
“ITEM TENTH. I do hereby nominate and appoint my two (2) daughters, Elsie Sebald and Carrie Hinkle, as the Executors of this, my last Will and Testament, and I do hereby direct that no bond be required of them for the faithful performance of their duties; and I do further direct that no appraisement be required to be made of my estate.
“ITEM ELEVENTH. It being my intention to provide an income for the support of my children during their respective lives, I do therefore direct that no portion of said income shall be liable for the payment of any debt or debts contracted by any of my children prior to my decease; that no portion of said income shall ever be liable for any of such debts so contracted prior to my decease.
“IN TESTIMONY WHEREOF, I have hereunto set my hand, at Middletown, Ohio, this eighteenth day of October, in the year of our Lord, One Thousand Nine Hundred and Fourteen.
(Signed) Louis Sebald”

The testator left surviving him, four (4) children; Elsie Sebald, Carrie Hinkle, Harry Sebald and Water Sebald. On December 9, 1914, there was filed in the office of the County Recorder of Butler County, Ohio, “Certificate to Recorder, Real Estate Devised by Will.” This Certificate was filed in the Probate Court, of this County, on April 3, 1915, and describes that real estate contained in Item Fifth of the Will of Louis Sebald.

In the Inventory and Appraisement of the testator’s estate, listed one (1) share of stock of the Cincinnati and Dayton Railway Company, One Hundred ($100.00) Dollars par value, and three (3) shares of Western Land and Irrigation Company stock, One Thousand ($1,000.00) Dollars par value each, as of no value. The household goods were not appraised. Under Schedule “E,” there is shown a deposit in the Merchants National Bank, in the amount of One Thousand-Five Hundred-Fifty Dollars and Forty Seven Cents ($1,550.47), and under Schedule “G,” accounts receivable in the amount of Three Hundred Nineteen Dollars and Fifty Cents ($319.50). There was no appraisal and no description of the Real Estate owned by the testator at the time of his death. Total assets were computed to have been One Thousand-Eight Hundred-Sixty Nine Dollars and Ninety Seven Cents ($1,869.97). Three (3) Accounts were filed by Elsie Sebald, beginning March 3, 1916, and ending July 8, 1918, which after careful examination by this Court, appears to be a combination Executor and Trustee report. The Third Account includes the sum of One Thousand ($1,000.00) Dollars as part payment for lots on Crawford Street. This item indicates to this Court that all the assets to be distributed under Item Sixth of the Will, had not yet been received, nor totally disbursed. Said Third Account, filed July 8, 1918, although signed by Elsie Sebald as Trustee, does contain assets with which she and Carrie Hinkle were chargeable with in the estate as Executrixes, and such Account shows a balance of One Hundred-Eleven Dollars and Eighty Three Cents ($111.83) undisbursed.

There have been no further'Accounts filed, either by the Executrixes or by the Trustee. No exceptions were ever filed, and the Court had duly approved them. The Third Account shows a distribution to Harry Sebald as his particular share of the rents under the Trust. One of the allegations of the Petition, is that Walter Sebald, is deceased, leaving no children surviving him. There was testimony that he did die in the State of California, but there was no testimony whatever as to his marital status; whether he had" died testate or intestate, nor the exact date of his death.

Harry Sebald died leaving the following issue known to have survived him, to wit: Doris Harter, Dick Sebald, Harry Sebald, Louis Sebald, Paul R. Sebald, Vada D. Skotnicky and Katherine Sebald Smith who died in 1937, leaving three (3) children, Herbert J. Smith, Robert W. Smith and William W. Smith.

After the death of Walter Sebald, the Trustee divided the rents and profits in three (3) proportions; one-third to Harry Sebald, one-third to Carrie Hinkle and one-third to Elsie Sebald.

After the death of Harry Sebald the rents and profits accruing under the Trust were then divided; one-third to the seven (7) children of Harry Sebald, one-third to Carrie Hinkle and one-third to Elsie Sebald. Upon the death of Katherine Sebald Smith, one of the children of Harry Sebald, the remaining six (6) children, of Harry Sebald, then received one-sixth of the one-third share that was apportioned to their father Harry Sebald during his lifetime. Herbert J. Smith, Robert W. Smith and William W. Smith, the children of Katherine Sebald Smith, who died in 1934, received that portion which their mother received during the year 1937.

The testator left a piece of improved real estate located at 301 Crawford Street, which was not described, nor included specifically, in the Testamentary Trust.

The Trustee had included this particular real estate in the Trust Estate from the time of her appointment as Trustee to the date of her death May 29, 1956, and had disbursed the profits from the rentals thereon, along with the other moneys derived from the real estate she held and managed as Trustee.

Elsie Sebald had married Shelby J. Anderson, and her estate was duly administered in the Probate Court of Butler County, Ohio, under the name of Elsie S. Anderson a/k/a Doris E. Anderson, and listed her husband Shelby J. Anderson as the surviving spouse, and the only person entitled to inherit from said decedent, under the statute of Descent and Distribution, if said decedent died intestate. Elsie Sebald Anderson did leave a Last Will and Testament, which was properly admitted to probate, and in said Will, after providing for the debts and costs of administration of the estáte, did give, devise and bequeath all the rest and residue of said estate, both real and personal, absolutely and in fee simple, to her husband Shelby J. Anderson. A First and Final Account in said estate was filed December 10, 1956, and subsequently approved and the estate closed.

Carrie Hinkle is the sole survivor of the four (4) children of Louis Sebald, deceased.

The Plaintiff, being in doubt as to the provisions of said Will, and his duties, thereunder, asks the Court’s determination of the following questions:

1. Is the real estate (improved) located at 301 Crawford Street, properly included as an asset of the Trust?

2. If it is not so included, then what disposition should be made of the real estate, and what steps should the Trustee take with regard to the income received from said property, since the death of Louis Sebald in 1914?

3. What persons constitute the present beneficiaries of said Trust, and in what proportion are they entitled to receive the net income of the Trust, as provided in the Testator’s Will?

4. If the chldren of Katherine Sebald Smith are entitled in said Trust, should the Trustee pay to them from the income of the Trust, the entire amounts to which they would have been entitled, and if so, are they entitled to interest on such unpaid amounts?

5. If the Court found that the children of Katherine Sebald Smith are entitled to such payments, then in what priority are such arrearages to be paid?

By way of answer, Louis Sebald, son of Harry Hebald, who was a son of the testator, asserts that the real estate (improved) located at 301 Crawford Street, is properly included as an asset of the Trust. That in the event the Court would hold that it was not considered such an asset of the Trust, then it would pass though the residuary clause of the original Will. Further, that Carrie Hinkle is entitled to one-fourth of the income, and that the surviving children of Harry Sebald being Doris Harter, Dick Sebald, Harry Sebald, Louis Sebald and Paul R. Sebald and Vada D. Skotnicky are entitled to one-quarter of the Trust income. That the other one-half of the income, not being provided for in the Trust, should be held by the Trustee, to be distributed under Item Fifth (C), upon the death of the last of .the original four (4) children of Louis Sebald.

The answer of William W. Smith, Robert W. Smith and Herbert J. Smith, children of Katherine Sebald Smith, deceased, alleged that they had received their mother’s distributive share through the Calendar Year 1937. but have received nothing since that time, and claim full entitlement to their distributive share by virtue of Item Fifth of the Last Will and Testament of the deceased testator. These defendants contend that they are entitled to a per stirpes share in the Trust and that they are entitled to a full legal interest on the amounts due them under the terms of the Trust; that they are also entitled to first priority of payments after the debts of said Trust are paid.

Does the wording in Item Fifth of the Will, create a Trust in the improved real estate located on Crawford Street, in Middletown, Ohio? Are they sufficient as precatory words, to show a clear, intention of the testator, to have such parcel of real estate included in the Trust? This Court has searched at great length for a judicial determination of a similar factual situation. It could find none.

The authorities are in agreement that the words cannot be implied from the words of the instrument, where express terms are unambiguous. (Citing Broadway Building Company v. Salafice, et ux, 45 A. L. R. 847.)

The testator, Louis Sebald, using the words “all of my improved real estate,” and then proceeding to describe the location of said real estate, designates particularly, that real estate to be controlled by the Trust. The testator, in Item Sixth directs that all the residue of his estate be given, devised and bequeathed to his four (4) children. This Court, in attempting to understand the intentions of the testator, must recognize uhe fact that he had previously, in his Will, provided for the disposition of all unimproved real estate, and by the Testamentary Trust, that improved real estate which he described. Why then would the testator use the word “Devise” in Item Sixth, if he had already made disposition, in his Will, of all the real estate, improved and unimproved.

The testator is presumed to know the meaning of the words used, and he is presumed to know the law which would govern the use of such words.

Therefore, it is the opinion of this Court, that the Crawford Street property was not intended to be included in the Testamentary Trust, and passed to the four (4) children, Elsie Sebald, Carrie Hinkle, Harry Sebald and Walter Sebald, in equal proportions, under Item Sixth of his Will.

The Trust property was transferred to the Trustee, Elsie Sebald, by virtue of a “Certificate to Recorder,” which merely set forth therein, Item Fifth of the Will. As will be noted, it did not contain a description of the improved real estate on Crawford Street.

It follows, that since title to the Crawford Street property, never vested in Elsie Sebald, Trustee, the successor Trustee can make no disposition of it; and that a Trustee, in the management and the collection of rents from the Crawford Street property, acted only in the capacity of an agent for the owners of that real estate.

The question raised as to what steps the successor Trustee should take, with regard to the income received from the Crawford Street property, and the income from the Trust, since the death of Louis Sebald in October of 1914, poses a difficult and serious problem.

From the date of the death of the testator, the Trustee made distribution to the testator’s four (4) children. No Court action was ever instituted from the beginning of the Trust. There was no question of the validity of the Trustee’s action and conduct; it is presumed that the Trustee made correct accountings as to the management, collection and disbursement of the moneys received by her. The children of the testator accepted their share of the rents and profits from the Trust, which included the rents from the Crawford Street property, and they acquiesced in the conduct of Elsie Sebald.

In 1934, Katherine Sebald Smith died intestate. Her three (3) minor children received, through their father as natural guardian, the share that their mother would have been entitled to. This arrangement was carried on until 1938. Walter Sebald died in California in 1937. Testimony concerning income tax records of the Trustee was that Walter Sebald had received his one-fourth distributive share until his death. There is no testimony or evidence to the effect that Walter Sebald died leaving a child or children. No such claim has been asserted.

■ From January 1938, to May 29, 1956, the date of the death of Elsie Sebald Anderson, the income was divided in the following manner: one-third to Elsie Sebald, one-third to Carrie Hinkle and one-third to the living cnildren of Harry Sebald. No payments were made to the children of Katherine Sebald Smith.

As to the determination of the question as to whether or not the children of Katherine Sebald Smith were, and are, entitled to that share of the income of the Trust and from the Crawford Street property, it is again one of determining the intention of the testator. It is obvious that he did desire to preserve the Trust Estate for his children, and for any child or children of deceased child or children.

The question has been raised, that because of the terms of the Will, if a son or daughter would die, without leaving children, then that share which the deceased children would have been entitled to during life, should be held to be distributed under Item Fifth (C) upon the death of the last of the original four (4) children of Louis Sebald.

The Court is of the opinion that this contention is untenable since the testator has definitely shown that he wanted, and does want, the income of the Trust property distributed, and that the Trust created primarily ror the protection and benefit of his four (4) children, did not cease to be a benefit to any child or children of any deceased child of the testator. That the only reasonable and proper effect of his intention, would be that not only his children’s children, but also his great grandchildren share proportionately from the Trust.

The Court, in arriving at this conclusion, lays great stress upon the provisions of Item Fifth, Paragraph (C), wherein it provides for the distribution of the real estate upon the death of the surviving children of the testator. Certainly, the testator is presumed to recognize the fact that there would be monies in the hands of a Trustee, for distribution along with the real estate, upon the death of his last surviving child. He is then directing that the “child or children of my children, or their legal representatives” shall receive the undisbursed income and profits from the Trust'. There is no reason that the testator would intend that any sums of money which would be going to his children during their life, and to their children upon death, should be held by the Trustee and allowed to accumulate and finally distributed when the Trust is terminated. It is equally clear to this Court that the testator, since he directed the children of Katherine Sebald Smith, or their legal represenatives, to receive their mother’s share upon the termination of the estate should also receive her share to which she would have been entitled prior to the termination of the Trust.

The Court cites, as some of the authorities to substantiate its contention that the true intention of the testator that the children of Katherine Sebald Smith be recognized as beneficiaries under the trust: Estate of Hunt, American State Reports 19, page 640

Wills: — Bequests to children does not include grandchildren or issue generally, except from necessity, which occurs when the Will would remain inoperative unless the sense of the word “children” is extended beyond its natural import, or where the testator has clearly shown by other words that he did not intend to use the word “children” in its proper, actual meaning, but in a more extensive sense.

In the case of Cummings v. Plummer, 48 American Reports, page 167

The Court held that “a direction in a Will to distribute among the testator’s children and grandchildren does not include great grandchildren,” presents a different situation and expression of law, which this Court does not believe to be applicable. There, the estate was to be converted into cash and the executor to make distribution between the children living and the children of his deceased children, if living at the time. A deceased child of the testator had a deceased child leaving great grandchildren of the testator. In that case the Court said that the language used in the Will clearly indicated an intention or desire on the part of the testator to exclude the great grandchildren from participating in the distribution of his estate, as the Will directs the. executor, after conversion of the real estate into money, to make distribution thereof, among the testator’s children, living “and the children of his children if living at the time.” By such provision it is apparent that the testator intended to confine the distribution of his estate, as to the children of his deceased children, to those of them who might be living at the time of making distribution.

Scott, Guardian v. Nelson, Executor, 29 American Decisions 266

Will, Intention of Testator Governs Construction of. A technical signification of words must yield to testator’s intent as benefits from whole will.

Children. — This word when used in a Will, does not ordinarily include grandchildren; but grandchildren and great grandchildren may take under this word, if necessary, to accomplish the testator’s intentions.

Instructions were requested that if the Court found the children of Katherine Sebald Smith, entitled to their deceased mother’s share, then should interest be allowed on the unpaid money and should the Court recognize a priority on their claim against any distribution to other beneficiaries. In answering, the Court must recognize that these children were minors of tender years when their mother died and had no opportunity to present any defense or assert any claim until after reaching the age of majority. True, years have elapsed since that time, but the Court feels that there was also a legal burden upon those who accepted the benefits of the Trust, and who could have availed themselves of the advise and instructions of a Court of competent jurisdiction, as to whether or not the proportions that they were receiving were legally justified.

Thus, the Court is of the opinion that no rights have been lost by the children of Katherine Sebald Smith in asserting their claim at this late date. That the shares of which they are entitled to be paid to them by the Trustee, together with interest, at the legal rate, from the time each payment is due thereon, and that such payments of income and interest, be paid out of the Trust income now in the possession of the Trustee, and can be considered as payment having a priority in the distribution tq all beneficiaries,

In conclusion, it is the opinion of the Court that the persons who constitute the present beneficiaries of said Trust and the proportions under which each is entitled to share in the Trust income are as follows:

Beneficiary Proportion

Carrie Hinkle, daughter of testator y2

Living children of Harry Sebald deceased, son of the testator, being:

Doris Harter 1/7 of y2

Louis Sebald 1/7 of y2

Harry Sebald 1/7 of y2

Dick Sebald 1/7 of y2

Paul R. Sebald 1/7 of y2

Vada D. Skotnicky 1/7 of y2

The three (3) children of Katherine Sebald Smith, deceased, daughter of Harry Hebald, deceased (who was a son of the testator) being:

Herbert J. Smith 1/3 of 1/7 of %

William W. Smith 1/3 of 1/7 of %

Robert W. Smith of 1/7 of 1/3 %

An entry may be drawn in accordance with this opinion.


source: Caselaw Access Project

author: By PAULINO, J.

license: Public Domain

text:
    OHIO LOAN AND DISCOUNT COMPANY, Plaintiff, v. BROWN et, Defendants. OHIO LOAN AND DISCOUNT COMPANY, Plaintiff, v. CROSSING, Defendant.
    Municipal Court, Ashtabula.
    Nos. 20029 and 19577.
    Decided September 9, 1958.

      Robert B. Ginley, Cleveland, for plaintiff.
    Dennis F. Dunlavy, Ashtabula, for defendants Brown.
    Shane & Sheldon, Ashtabula, for defendant Crossing.
   OPINION

By PAULINO, J.

The plaintiff, a corporation with offices at 247 Euclid Avenue, Cleveland, Ohio, obtained a judgment in the Parma Municipal Court, Cuyahoga County, in each of the above cases, against defendants residing in Ashtabula County. Thereafter certificates of judgment were issued from the Parma Municipal Court, which were subsequently filed in the office of the Clerk of the Ashtabula Municipal Court, in Ashtabula County.

Proceedings in Aid of Execution were instituted in this court on the certificates of. judgment against the defendants who immediately filed motions for an order to set aside the garnishment proceedings, contending that there was no authority under the statutes for the filing of certificates of judgment from one municipal court to another, and for which reason any proceedings filed thereunder were null and void.

The court sustains the motions of the defendants in each case on the ground that under §2329.02 R. C., the proper procedure to be pursued thereunder is the transfer of a judgment from one court of record to another court of record and that such a transfer of a judgment has the effect of removing the judgment from the court in which it was granted to the transferee court, and that once so removed it no longer remains the judgment of the issuing court, but becomes the judgment of the transferee court as though the judgment had originally been granted by the transferee court, and that thereafter all post judgment proceedings must of necessity be filed in the transferee court.

The only provisions relating_ to certificates of judgments issuing out of a municipal court are contained in §2329.04 R. C., which provides for the filing in the office of the Clerk of the Court of Common Pleas of any county in the state of a certificate of judgment issued from an inferior court.

Proceedings in Aid of Execution herein filed are hereby ordered dismissed.


author: By PHILLIPS, J.

text:
    DONLIN, a Minor, Plaintiff-Appellee, v. INDUSTRIAL COMMISSION OF OHIO, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3848.
    Decided April 4, 1957.
    Traxler & Beil, Youngstown, for plaintiff-appellee.
    William Saxbe, Atty. Genl., John R. Barrett, Asst. Atty. Genl., Columbus, for defendant-appellant.
   OPINION

By PHILLIPS, J.

Defendant, Industrial Commission of Ohio, called the Commission, appealed to this court on questions of law from a judgment of the court of common pleas entered upon a jury verdict for plaintiff in her appeal to that court from the denial by the commission of plaintiff’s application for the right to participate in the Workmen’s Compensation Fund of Ohio because of the death of her father. Robert Donlin, called decedent, upon whom plaintiff was solely dependent for support on December 19, 1953, when decedent died.

Ruling upon plaintiff’s motion to dismiss defendant’s appeal this court held “that the motion to dismiss the appeal should be sustained as to the judgment rendered after the overruling of the motion for a new trial, but that the motion to dismiss should be overruled as to the judgment rendered upon motion for judgment notwithstanding the verdict."

At the time of his death decedent was employed by Swedlow Plastics Company of Youngstown, a corporation, called the company, 'which was amenable to and complying with the provisions of the Workmen’s Compensation Act of Ohio, in cleaning canopies to be placed in the oven of a furnace heated to a temperature of 350 degrees Fahrenheit, and was working three feet distant therefrom.

On defendant’s appeal to the Supreme Court that court reversed the judgment of this court, and in the final paragraph of the opinion written in the case reported in 166 Oh St 27, said at page 29:—

“The judgment of the Court of-Appeals so far as it sustains the motion to dismiss the appeal is reversed, and the cause is remanded to the court of appeals to consider the issues raised by the assignment of errors filed in that court.”

Now we proceed to consider the issues raised in this court.

There is evidence that on December 19, 1953, plaintiff was subjected to heat which allegedly caused him to fall striking his head against the dry smooth concrete floor on which he was standing when he fell, fracturing his skull which directly and proximately caused his death on that date.

Defendant admits that decedent sustained an accidental injury on December 19, 1953, and concedes that his injury was received in the course of his employment with Swedlow Plastics Company, and says by brief “for the decedent was at his station of duty during his regular working hours when he sustained the injury,” but contends “that the decedent’s accidental injury did not arise out of the decedent’s employment.”

There is conflicting evidence as to. whether decedent worked in unusual heat or under unusual working conditions on the day of his death, whether he worked in the normal temperature of or in a temperature higher than the temperature throughout the plant.

Witness Dorling, an inspector for Swedlow Plastics Company, testified:—

“A. Well, that one day it seemed to be extra hot. It was really, oh, I would say it was pretty close to a hundred, because I myself made a comment myself that it was really warm in here today.
“A. Oh, I would say they usually keep it up pretty warm, around 78, 80.”

There is evidence that on the day he fell decedent worked next to an oven where he did not work regularly, and in the vicinity of which the temperature was extremely high.

Defendant contends that the trial judge erred to its prejudice “in admitting over objections made at the rehearing and renewed upon trial opinions and conclusions of the coroner gained through hearsay and not within facts gained through personal knowledge of said coroner,” which opinions and conclusions were contained in decedent’s death certificate Defendant supports its contention by citation of §§3705.05 and 313.10 R. C., and Carson v. Metropolitan Life Insurance Co., 156 Oh St 104, and Stough v. Industrial Commission, 142 Oh St 446.

We find no*error prejudicial in this respect as claimed by defendant.

Arguing its assigned ground of error that the trial judge erred in ruling generally on the objections of counsel for the plaintiff since such objections were devoted specifically to the right of counsel for the employer to participate in the proceedings it appears that counsel for plaintiff specifically objected to each and every question asked by counsel for Swedlow Plastics Company, decedent’s employer, in cross-examination of plaintiff’s witness Magnér, which objections the trial judge sustained. Defendant contends this is contrary to the provisions of §4123.51 R. C., authorizing such cross-examination and participation by employer’s counsel, and denying the defendant showing “decedent’s physical condition, general health and condition of well being prior to his death.”

The trial judge did not deny defendant the right of cross-examination, and we believe did not err to defendant’s prejudice as charged in this assigned ground of error.

In cases like the one we review “it is necessary for plaintiff to show by a preponderance of the evidence that he received an accidental injury in the course of and arising out of his employment” and “the evidence so produced must remove the case from the realm of speculation and conjecture.” In support of this contention defendant cites Aiken v. Industrial Commission, 143 Oh St 113; McNees v. Cincinnati St. Ry. Co., 52 Oh St 277; Pfister v. Industrial Commission, 139 Oh St 399; and Drakulich v. Industrial Commission, 137 Oh St 82.

We believe that plaintiff showed by the required degree of proof that decedent received an accidental injury in the course of and arising out of his employment with defendant corporation on the day and at the time alleged.

Plaintiff’s evidence disclosed a causal connection between plaintiff’s employment and death. Defendant’s evidence disclosed no such causal connection between plaintiff’s employment and death thus presenting a question for the determination of the jury, which as we view it is the controlling issue in this appeal and thus releases the trial judge from the charge of commission of error in overruling defendant’s motion for judgment to be entered in its favor notwithstanding the verdict of the jury returned against it and judgment of the trial court entered thereon.

While the weight of the evidence was assigned as a ground of error it was withdrawn by counsel for the Industrial Commission in open court. Accordingly, we will not pass upon that assigned ground of error, and by such action do not intend to nor believe that we are failing to comply strictly with the order of the Supreme Court “to consider the issues raised by the assignment of errors filed in that court.”

The test which we have applied in determining whether the trial judge erred in overruling defendant’s motion for judgment to be entered in its favor notwithstanding the verdict of the jury rendered against it is as announced in 145 Oh St 218, Wilkeson v. Erskine & Sons, whether the evidence presented was such that reasonable minds could not differ and could come to but one conclusion, and as evidenced by our decision have reached the conclusion that reasonable minds could and possibly would differ as to whether or not decedent received an accidental injury in the course of and arising out of his employment with defendant which caused his death.

It is common knowledge, to which we need not resort as there is undenied evidence, that it was much hotter near the furnace than in other parts of defendant’s plant; that when working three feet from the furnace, which was heated to 350 degrees, from which heat was escaping from cracks in the doors of the furnace, plaintiff clearly was subjected to a temperature higher than the “hundred” degree prevalent throughout the rest of defendant’s plant on the day in question, which, as stated supra, normally was 78 to 80 degrees where decedent was ordinarily employed, and to the heat of which he was accustomed.

Having, as we interpret our duty; obeyed the instructions of the Supreme Court completely to consider the issues raised by the assignments of error filed in this court and disposed of each assigned ground of error separately and at some length, as indicated herein, the judgment of the court of common pleas is affirmed.

NICHOLS, PJ, GRIFFITH, J, concur.


author: By BOPE, J.

text:
    MILES, Plaintiff, v. WOLFE, Defendant.
    Municipal Court, Findlay.
    No. 48.
    Decided August 24, 1956.
    Robert E. Fuller, for plaintiff.
    William C. Foster, for defendant.
   OPINION

By BOPE, J.

This is an action on an account, for an equal one third of a bill for funeral expenses, brought by the funeral director against one of three adult children of the decedent. It appears that the decedent’s estate was insufficient to cover any substantial part of the bill, and that the defendant’s brother and sister have each paid an equal one-third of the amount thereof.

The petition is in the short form authorized by statute. Defendant filed an answer of general denial, and has vigorously contested any liability.

After close and careful consideration, the court has determined that there are two questions to be decided here which, when settled, dispose of the case, namely: first, was the credit for these funeral expenses extended by the plaintiff to this defendant, and second, was such extension of credit authorized?

(Based on analysis by Judge Roscoe G. Hornbeck in a similar case, Stocker v. Arnold (1934), 18 Abs 213.). .

The same questions may be reached in another way, thus: the case was tried on the theory of contract, and the effect of general denial was to require plaintiff to prove, by a preponderance of the evidence, all the essential elements of contract which he would have had to allege and prove at common law before the adoption of the statute permitting such action to be brought by a petition in the short form on an account. Two of these elements were request and promise, being closely related and which, if they existed in this case, would, undoubtedly constitute the authorization mentioned above as required by Judge Hornbeck.

(References: Bates’ Pleading, 4th ed., Secs. 761-b, 2637 et ff., 2652; 1 O. Jur. Accounts, pg. 180 to 195, Sec. 6 to 18; 42 O. Jur., Work, Labor and Materials, pg. 483, Secs. 2, 3 and Parts II and IV.)

The first question posed, namely was the credit for these funeral expenses extended by the plaintiff to this defendant, is decided in favor of the plaintiff. The court so finds from the evidence, as a matter of fact, and without difficulty. The statement of account shows this was done, and the defendant did not really object to this evidence, call for any other sales tickets, time cards, books of account or seriously contend that such extension of credit was not made.

The second question is more difficult, and is the real question in dispute. Was such extension of credit authorized? In other words, did this defendant order (or request) this funeral, and did he make any promise (expressly or by implication) to pay for it? Defendant vigorously'denies that he did either.

Let’s consider the facts. Both parties stated that the defendant visited the plaintiff’s place of business in company with his brother and sister and took part in the selection of a casket. The brother testified that defendant picked one out and said he liked it and “that’s the one we bought.” The defendant testified that he picked out a first and second choice; that he said to the plaintiff, “I’m not doing it, they are,” and left. The plaintiff testified that he showed 18 caskets to the three visitors, that there was some conversation both among the three and with him but, frankly, he didn’t remember what was said or by whom, other than that the brother, Clarence, asked him if he would take a note from Ralph for a share of the expense and he said he would. No note was given. This testimony was given more than two years after the events took place.

In Stocker v. Arnold the petition was on an account but the proof consisted of circumstances tending to show an express contract. The jury was instructed that they must find'an express contract wherein the defendants agreed to pay. They found for defendants, a finding reversed by the Court of Appeals as to the defendant son, on the weight of the evidence. The instruction, however, was held correct.

In the case at bar I believe the plaintiff relies not upon an express promise but upon an implied promise, to complete a contract. I quote from 42 O. Jur. 483, Work, Labor and Materials, Sec. 2:

“Contracts are ordinarily divided into express and implied contracts. Implied contracts are of two general classes, viz., contracts implied in fact, and contracts implied in law, otherwise known as quasi or con-1structive contracts. A contract implied in fact arises where circumstances have arisen or acts have been done which, according to the ordinary course of dealing, or the common understanding of men, show a mutual intention to contract. Both in express contracts and in contracts implied in fact, the consent of the party is necessary to the making of the contract.
“A contract implied in law, otherwise known as a quasi or constructive contract, is not a true contract; the contract is a mere fiction used to adapt the cause of action to the remedy of assumpsit. Such contracts are founded: (1) upon a record, (2) upon a statutory, official, or customary duty, or (3) upon the fundamental principle of justice that no one ought unjustly to enrich himself at the expense of another.”

In the following section of the same work it is said at page 484:

“A meeting of the minds is essential to a contract implied in fact, —as distinguished from a constructive contract or one implied in law,— just as it is in an express contract.”

Coming now to decide this case, in the light of the above principles, the cumulative effect of the evidence is such as to leave me unconvinced that the defendant herein ever intended to pay any part of the expenses of his mother’s funeral. It seem to me that there was no meeting of his mind with that of the plaintiff on this point, in the absence of which I must hold that no true contract existed, either express or implied in fact.

Can a constructive or quasi contract be raised and held to exist here? Frankly, I would very much like to do so, for otherwise we have the sorry spectacle of an able-bodied man of mature years and responsible position in life accepting the benefit to himself and his family of having his mother decently buried in a casket of his own choosing, and then, through a technicality, evading the strong moral obligation of paying his fair share of the cost.

But I take it that the parties to this suit want me to decide the case on the basis of what the law is, not what it perhaps ought to be. Now I may be misaken, for here we are getting into deep water, but this is what I think is the law of Ohio:

In the leading case of Railway Company v. Gaffney (1901), 65 Oh St 104, Chief Justice Minshall says at page 113:

“. . . . where the procedure of the common law prevails, by the adoption of a fiction in pleading — that of a promise where none in fact exists or can in reason be supposed to exist — the favorite remedy of implied assumpsit could be adopted. This was so in that large class of cases, where suit is brought to recover money paid by mistake or (which) has been obtained by fraud. Here it is said the law implies a promise to repay the money, when it was well understood that the promise was a mere fiction, and in most cases without any foundation whatever in fact. The same practice was adopted where necessariés had been furnished an insane person, or a neglected wife or child. In all these cases no true contract exists. They are .... termed quasi contracts .... no more is meant than that the law imposes a civil obligation on the defendant to restore money so obtained, or to compensate one who has furnished necessaries to his wife or child, where he has neglected his duty to provide for them, or, by reason of mental infirmity, is unable to obtain them for himself . . . .”

In this language, as applied to the case at bar, I think the key word is “duty.’ It is well recognized that a husband and father owes a legal duty to provide necessaries for his wife and child, but it has never been held, to my knowledge, that an adult child owes a legal duty, enforceable by civil action in the courts, to provide necessaries for his parent, even though aged and indigent. On the contrary, it has been stated positively that the very opposite is the ride of law. 30 O. Jur., Parent and Child, pages 630 and 632. And I do not believe that a claim for furnishing funeral services stands any higher than one for furnishing necessities of life, such as groceries. For me to declare such a legal duty to exist would be the first time such a rule were announced in Ohio. Perhaps such a rule is needed, to further the ends of justice. But in view of our statutory provisions for the burial of indigents at public expense, I do not believe it exists at present.

For the reasons given above, finding and judgment will be granted, reluctantly, for the defendant. An entry may be prepared so recording the action of the court, saving exceptions to the plaintiff.


author: Per CURIAM.

text:
    SNYDER, Plaintiff-Appellant, v. ISALY DAIRY COMPANY, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3939.
    Decided October 25, 1957.
    Norman A. Rheuban, Youngstown, for plaintiff-appellant.
    Carlyle & Carlyle, Youngstown, for defendant-appellee.
   OPINION

Per CURIAM.

The trial judge sustained defendant’s motion for a verdict to be directed in its favor made at the close of plaintiff’s case in her action to recover damages against defendant, a corporation engaged in the processing, manufacture and sale of dairy products, for injuries allegedly sustained as the result of “eating an adulterated ice cream cone purchased from the defendant” in Girard, Ohio.

Plaintiff bottoms her right to a new trial upon error of the trial judge to her prejudice in sustaining defendant’s objections to plaintiff’s testimony, in overruling plaintiff’s objections to defendant’s questions, and in sustaining defendant’s motion for a directed verdict at the close of plaintiff’s case and entering judgment accordingly, and by reason of such alleged errors she claims the judgment of the trial court is contrary to law.

Plaintiff bases her claim of being served adulterated ice cream upon leakage of ammonia gas in the ice cream hardening room of defendant’s ice cream manufacturing plant, which she claims contaminated the ice cream sold to her. Such leakage was conceded by defendant, and as a result of such leakage defendant’s supervisor warned the management of its Girard Store to check ice cream received at that store.

The manager of defendant’s Girard store testified concerning the warning by defendant’s supervisor as follows:—

“A. I had received either from the plant or from my supervisor, it has been quite a long time ago, they had had a little trouble in the plant with an ammonic leakage on that particular day. My attention was, he called me at the house, and I went down and checked the ice cream and to my knowledge there was nothing wrong with what we had gotten from the plant.
<i:H * *
“Q. Now, Mr. Miller, you stated you were not working the following day, the day Mrs. Snyder’s complaint was made?
“A. That is right, when the supervisor called me and I went back down to the store and the order came in to check the ice cream.”

There is evidence that the Girard store was notified of the ammonic leak prior to the sale of the ice cream cone to plaintiff and the sale of ice cream cones to some seventy other customers none of whom had complained of becoming ill as the result of eating the ice creapi. There is no evidence that the Girard store warned plaintiff of such leak or possible contamination of the ice cream served to her in a cone.

There is no direct evidence that the ice cream sold to plaintiff was in the hardening room of defendant’s ice cream manufacturing plant at the time of leakage of ammonic gas, or was or could have been contaminated by the leakage; nor that the warning was anything more than a precautionary routine warning to the manager of its Girard store issued by defendant company under such circumstances.

There is evidence that upon starting to eat some of the ice cream plaintiff detected a taste and smell which plaintiff described as “like after a fire cracker blew,” and that her husband tasted the ice cream cone and threw it away, although he ate his own ice cream cone which came from the same can as that served to plaintiff, and that he did not have any ill effect. Plaintiff became ill within an hour after eating the ice cream, and was hospitalized for eleven days suffering from what her physician diagnosed as “acute gastro-enteritis,” of which her physician “couldn’t give exactly the etiology.”

We concur in the statement of counsel for plaintiff by brief that;—

“The sole issue presented is whether plaintiff’s evidence presented a question for determination by the jury, giving it the most favorable construction to the plaintiff. If reasonable minds could arrive at different conclusions on the issues involved in this case, they must be determined by the jury.”

In the fourth paragraph of the syllabus in the case of Hamden Lodge No. 517, Independent Order of Odd Fellows, et al, v. The Ohio Fuel Gas Company, 127 Oh St 469, it is said:—

“Where from the evidence reasonable minds may reach different conclusions upon any question of fact, such question of fact is for the jury. The test is not whether the trial judge would set aside a verdict on the weight of the evidence.”

Sec. 3715.21 R. C., provides:—

“No person shall sell, offer for sale, or have in his possession with intent to sell, diseased, corrupted, adulterated, or unwholesome provisions without making the condition thereof known to the buyer.”

Plaintiff relies upon the case of The Great Atlantic & Pacific Tea Co. v. Hughes, 131 Oh St 501, to secure a reversal of the judgment of the trial court. The third paragraph in the case reads as follows:—

“A charge of the sale of food in violation of the statute may be sufficiently shown to require submission of the question for the determination of the jury, though there be no proof of its unwholesomeness by chemical or bacteriological analysis or examination.”

Under the facts adduced in this case there was evidence from which reasonable minds could arrive at different conclusions as to whether the ice cream furnished by defendant to plaintiff was unwholesome and produced the results which plaintiff claims.

The judgment of the court of common pleas is reversed and the cause is remanded to the court of common pleas for further proceedings.

NICHOLS, PJ, GRIFFITH and PHILLIPS, JJ, concur.


author: By THE COURT.

text:
    BROCK, Plaintiff-Appellant, v. BARTLEY, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5663.
    Decided October 1, 1957.
    Curtis & Duncan, Lawrence R. Curtis, of Counsel, Columbus, for plaintiff-appellant.
    Sebastian, Fais & Durst, Arthur M. Sebastian, of Counsel, Columbus, for defendant-appellee. .
   OPINION

By THE COURT.

This is a law appeal from a judgment of the Common Pleas Court, rendered upon the verdict of a jury, in favor of the defendant. The only error alleged is that the judgment is manifestly and clearly against the weight of the evidence. We have carefully examined the entire record and find that there was a direct conflict in the evidence on several factual questions which were decisive of the issue in the case. The credibility of the witnesses and the weight to be given to their testimony is a function resting solely with the jury and not with an appellate court. We find that there is substantial evidence in the record which supports the judgment and therefore the judgment may not be said to be against the manifest weight of the evidence.

The judgment will be affirmed.

PETREE, PJ, BRYANT and MILLER, JJ, concur.


author: By McBRIDE, J.:

text:
    PETTY, Plaintiff, v. DAYTON MUSICIANS’ ASSOCIATION, Defendant.
    Common Pleas Court, Montgomery County.
    No. 111352.
    Decided February 24, 1958.
    G. E. Miller, Dayton, for plaintiff.
    F. W. Howell, M. E. Schlafman, Dayton, for defendant.
   OPINION

By McBRIDE, J.:

The plaintiff alleges in his amended petition that he was the agent, or personal representative, of various musicians, most of whom were members of the defendant musician’s association, Local 101, American Federation of Musicians; that in December 1955, the defendant association published and distributed to its members a notice not to accept or negotiate contracts from plaintiff, a former sub-booking agent. Plaintiff then characterizes the “above complained of” and “said action” as willful, unlawful and malicious, and requests damages for loss of his means of earning a livelihood in the amount of $20,000.00.

By answer the defendant admits the publication of its notice to its members and claims privilege. Defendant further admits that plaintff was a sub-booking agent and that it is true that this relationship was terminated under its rules.

By reply, plaintiff denies “he was solely a sub-booking agent,” denies that the American Federation of Musicians was the organization which forbade defendant’s members from doing business with him and denies any privilege as asserted by the defendant.

The case was submitted to the court on a motion for judgment on the pleadings.

After this matter was argued and submitted on the motion for judgment on the pleadings the plaintiff filed a second amended petition without leave of court and to this second amended petition no action has been taken by the defendant or by the court. Under these circumstances, the issues having been drawn, the court disregards the second amended petition. It may be noted by way of dictum that it appears that the only change is an allegation that the notice alleged was published and distributed not only to the membership but “to other persons.” In view of several decisions in which similar notices were mailed to third parties, it does not appear that the change in the second amended petition is significant.

Since the first impression of the court, when this case was submitted on motion to the original petition, was that it sounded in libel it should be pointed out that the basic right claimed here is interference with the right of contract by a third party. The pleadings fall short of a libel action. The words used are not actionable. The words are not claimed to be false. The plaintiff admits their veracity, the only issue in that respect being injected by way of reply in which plaintiff denies that the national organization, the American Federation of Musicians, not a party here, took any action. The plaintiff does not deny in his reply that his relationship was terminated by the defendant union.

The character of the defendant’s statement is such as to discourage the membership from doing business in the future with a person no longer recognized by the union. 33 Amer. Jur. 83, 30 Amer. Jur. 95.

The petition alleges publication only to defendant’s membership, thereby raising the issue of qualified privilege. This admission is not qualified by the reply which by inference appears to argue that the publication may have reached others. The plaintiff is precluded by his amended petition from arguing publication outside of the membership.

That the amended petition seeks to allege a tortious interference with plaintiff’s right to contract, and not libel, is apparent in the third paragraph in which plaintiff uses the conclusion of interference in two separate instances. The court finds that the plaintiff is not entitled to relief on the basis of libel, and this finding was agreed to by plaintiff in oral argument.

Interference with the right to labor or to contract is recognized as a distinct tort which in recent years has been given separate consideration. See 15 R. C. L. 41; 30 Amr. Jur. (95) 55; Labor Unions by Dangel and Shriber (1941), Chapter XVII on Interference with Employment, 55, 505, 520; Railroad v. Schaeffer, 65 Oh St 414 (blacklisting by employer).

It is not necessary to discuss the general aspects of this right of freedom from interference since the authorities generally recognize the equal if not superior right of union organizations in the interest of its membership to take steps appropriate and lawful to accomplish its purpose. Some authorities consider the right of the union “privileged” and others consider it an equal or superior right justifying acts not in themselves unlawful. The effect under either theory is to destroy any cause of action and prevent a right of recovery.

The following comments are pertinent to the subject of interference with employment of a union member by the union:

“A union member has no more right than a non-union member to complain of hardship caused to him through interference with his employment when the union acts lawfully. A union commits no wrong if under its constitution and by-laws it is given the power and right to take action reasonably calculated to advance its objects, even if such action involves interference with the employment of a member. The courts can give no redress for hardship to the individual which results from action reasonably calculated to achieve a lawful end by lawful means. It is not within the discretion of a court to enjoin the enforcement of the proper rules of a labor union. Voluntary orders by a labor union for the benefit of its members and the enforcement thereof within the union do not constitute ‘coercion’ because the members who are unwilling to obey the orders are free to withdraw from the union.”
“Where it is essential for a member to remain in a union in order to gain employment and the union illegally expels him, or refuses to recognize him as a member, he can recover for the wrong done him in depriving him of the means of earning a living. His right to follow a lawful occupation under existing conditions will be protected by the court. He can recover damages for the wrong done him in depriving him of his natural right to dispose of his labor to the best advantage. But the single circumstance that a person, by reason of his illegal suspension from union membership, is unable to secure work, while no doubt resulting in damage to him, does not of itself create a cause of action against the union if he has failed to exhaust his remedy within the organization as required by its laws. On joining the union he agreed to become bound by its rules and as an incident of that membership, he consented to be suspended or expelled in accordance with those rules.” Labor Unions by Dangel and Shriber (1941).
“Workers who in concert procure the dismissal from employment of an employee because he has been expelled or suspended from a labor union are liable to him for the harm caused thereby, if, but only if, the suspension or expulsion was wrongful and the employee has exhausted the remedies available within the union.” Restatement of the Law, Torts, Section 812, Page 169.

While recognizing the cause of action for inducing third persons not to deal with another, as pointed out in 219 111. 159, American Jurisprudence continues:

“It has been said, however, that one who purposely causes a third person not to enter into or continue a business relation with another in order to influence the other’s policy in the conduct of his business is privileged, if (1) the actor has an economic interest in the matter with reference to which he wishes to influence the policy of the other, (2) the desired policy does not illegally restrain competition or otherwise violate a defined public policy, and (3) the means employed are not improper.” 30 Amer. Jur., Section 46, page 95.

Also see 26 O. Jur. 605; 24 O. Jur. 635; Local 248 v. Solt, 8 Oh Ap 437.

In the instant case it is obvious that the local Musician’s Union has an economic interest in the matter of bookings of its members for performances, that the policy of regulating those who act as agents and book contracts with its members does not illegally restrain competition or otherwise violate public policy and that the means used of publishing a suspension notice in its house organ, are not unlawful or improper. It is clear on the face of the pleadings that there is no allegation relating to the existence of any violence, threats, intimidations, coercion or the like which are described only in plaintiff’s brief.

The plaintiff is not alleged to have been a member of the union and therefore he was not subject to discipline as a member; however, he was either licensed or otherwise formally recognized by the union as an official booking agent or sub-agent, a relationship of some nature which was admittedly terminated by the local union. Having obtained a benefit by such recognition and relationship, the plaintiff was to this extent subject to the discipline necessary and appropriate to its continuance or termination. The performance of his work for the membership was contingent upon the approval of the organized body which he served. The licensing of agents or sub-agents is a privilege extended by organized musicians for the benefit of its members. Such action is lawful and appropriate to the purpose of the union. It follows that regulations and controls, including termination of the relationship, is equally within the purpose and right of the organization.

Where a member of a union is expelled he has no cause of action unless he alleges and establishes that the action of the union was unlawful or violated the rights of the member under the constitution or bylaws of the association. Pfah v. Whitney, 43 Abs (App) 147.

Similarly, a party who is not a member but who has been licensed or approved as agent by the union has no cause of action against the union unless such party alleges that the action of the union was a violation of contract, if any, or was factually unlawful, or violated his rights under the constitution or rules of the organization whereby such rights were conferred upon him.

The authorities cited support the conclusion that the plaintiff cannot recover on these pleadings. Seymour Ruff & Sons v. Bricklayers Union, 163 Md 687, 164 A 752; Rhodes Bros. Co. v. Musicians Protective Union, 37 R. I. 281, 92 A 641; Porter v. King County Medical Society, 186 Wash. 410, 58 Pac. 2d 367; Edelstein v. Gillmore, 35 F. 2d 723.

An act in itself lawful or proper is not converted into an unlawful act merely by a general allegation in the petition which characterizes a lawful act as unlawful or malicious, and in such a situation pure characterization, even though improper or not objected to, does not give birth to a cause of action. Kisler v. Local, 165, 26 Oh Ap 284. In other words the only facts admitted are those facts well pleaded. The same rule of pleading may be applied on a motion for judgment on the pleadings. A bare characterization of unlawfulness is merely a legal conclusion and a wish of the pleader. Such a legal conclusion, unsubstantiated by facts which could give it life, has no standing in any court where issues must be presented and determined by facts in ordinary and concise language.

Motion of the defendant, Dayton Musicians’ Association, Local 101, for judgment in its favor on the pleadings is sustained.