author: By DAVIES, J.

text:
    McADAMS, surviving spouse, etc., Plaintiff, v. BOLSINGER, Admr., etc., et, Defendants.
    Probate Court, Hamilton County.
    No. 14576.
    Decided June 27, 1950.

      Richard H. Pennington, Cincinnati, for H. C. Bolsinger, administrator.
    Walter K. Sibbald, Cincinnati, for Harry Elmer Cherrington and Earl John Cherrington.
    H: C. Bolsinger, Cincinnati, for The Norwood Federal Savings and Loan Association.
   OPINION

By DAVIES, J.

This matter came before the court on the petition of Myles McAdams, the surviving spouse of Elizabeth McAdams, deceased, to elect to purchase the mansion house at the appraised inventory value of $8000.00 as fixed by the appraisers. Said real estate was not specifically devised by the decedent. The petition was filed within one month after the approval of the inventory, proper service has been made upon all necessary parties, and there are no creditors of said decedent whose rights will be prejudiced by the conveyance of the mansion house to the surviving spouse.

This real estate is encumbered with a mortgage of record in the amount of $3852.75 payable to The Norwood Federal Savings and Loan Association.

By the terms of decedent’s will, her estate was to be equally divided between her surviving spouse and her two sons by a previous marriage, Earl John Cherrington and Harry Elmer Cherrington.

The mortgagee has not presented to the executor within four months of the appointment of such fiduciary its claim for the balance due on the mortgage.

Questions have arisen as to whether it is necessary that the mortgagee file its claim under the provisions of §10509-112 GC, before payment can be made to it for the balance due on its mortgage, and whether or not the surviving spouse in purchasing the mansion house at the appraised value must pay the inventory value of $8000.00 in addition to the mortgaged value of $3852.75, or, if the surviving spouse is entitled to purchase the mansion house for $8000.00 and either deduct from the purchase price the amount of the mortgage or pay the full purchase price of $8000.00 and require the fiduciary to pay the amount of the unpaid mortgage.

Sec. 10509-112 GC, provides that all claimants shall present their claims to the executor or administrator in writing, including claims arising out of contract, out of tort, on cognovit notes or on judgments whether due or not due, secured or unsecured, liquidated or unliquidated, and requires that all claims shall be presented within four months after the date of the appointment of the executor or administrator.

Since an executor or administrator of a deceased person’s estate usually cannot know of the existence of claims against an estate, or, if he does know of their existence, he cannot be presumed to know of their amount or justness, the law wisely provides that claimants “shall present their claims to the executor or administrator in writing,” and, so that estates may be expeditiously administered, the law further requires that “all claims shall be presented within four months after the date of the appointment” of the fiduciary.

As pointed out in the notes under section 3 on page 941 of Addams & Hosford’s Ohio Probate Practice, Volume 1, the law does not require the doing of an idle thing, and hence, as a general rule, no claim is required to be presented unless it is such a claim that the administrator or executor can legally refuse to pay it. If the character of a claim is such that no action of the administrator or executor can defeat the validity of the claim, then it would be useless to present it, so far as affecting the legality of the claim itself is concerned.

Thus, under the provisions of §10509-121 GC, the allowance made to the widow and children for their support for twelve months, debts entitled to a preference under the laws of the United States and personal property taxes and obligations for which the decedent was personally liable to the state of Ohio or any subdivision thereof need not be presented as a condition precedent to their payment by the fiduciary. For other exceptions see §11281,11402,11408,11410,11411 and 10509-216 GC.

It also has been held that, when the executor, at the time of his appointment, is already in possession of a note for collection, it is not necessary that the owner of such note present his claim thereunder to such executor. Gerhold v. Papathanasion, 130 Oh St 342, 4 O. O. 425.

It also has been held that, where a judgment is a subsisting lien on the lands of the debtor at the time of his death, it is not necessary to present such claim for allowance to the personal representative. Ambrose v. Byrne, 61 Oh St 146.

There is no provision, however, either in the law or decided cases in Ohio, which relieves a mortgagee from the requirement to present its claim to the executor or administrator in writing within four months after the date of the appointment of the executor or administrator setting forth the nature and amount of its claim, before payment of the mortgaged balance can be made out of the assets (other than the chattel or real estate covered by the mortgage or the proceeds derived from the sale of such mortgaged property) held by the fiduciary.

It is immaterial Whether or not the mortgagee in the instant case presented its claim in writing to the administrator, as will be hereinafter discussed.

We come now to the following question: When a spouse dies possessed of a mansion house which is encumbered with a mortgage given to secure a note of the deceased spouse, and the surviving spouse elects to purchase said mansion house at the appraised value as fixed by the appraisers, is such surviving spouse required to pay the balance due on said mortgage in addition to the value fixed by the appraisers?

Under the provisions of §10509-41 GC, every executor or administrator shall make and return on oath into court, among other things, a true inventory of the real estate of the deceased located in Ohio, based on values as of the date of death of the decedent.

Sec. 10509-42 GC, provides that the real estate and personal property comprised in the inventory, unless an appraisement thereof has been dispensed with by order of the court, shall be appraised by three suitable disinterested persons, appointed by the court.

Sec. 10509-56 GC, stipulates that the inventory shall be signed by the appraisers who shall certify that the inventory is a true and correct appraisement of the property exhibited to them.

By the provisions of §10509-61 GC, the appraisement of the real estate shall be conclusive for all purposes except inheritance tax when the inventory has been approved by the court unless a reappraisal is ordered.

Sec. 10509-89 GC, provides that at any time within one month after the approval of the inventory, the surviving spouse shall have the right to purchase the mansion house “at the appraised value as fixed by the appraisers” if a petition is filed as set forth in said section.

In the case under consideration, the “appraised value” of the mansion house, as fixed by the appraisers, was $8000.00.

For inheritance tax purposes, under the provisions of §5341 GC, it is the duty of the county auditor to fix the actual market value of any property the succession to which is subject to the levy of an inheritance tax. To appraise means to value property at what it is worth, and appraising property at “actual market value”-means “appraisement” at actual value. Tax Comm, of Ohio v. Clark, Exrx, 20 Ohio 166. For appraisement purposes, the terms “true and correct appraisement,” “true inventory,” “appraised value,” “actual market value” and “actual value” are synonymous.

“Market value” is the price which property will bring in a fair market after fair and reasonable efforts to find a buyer who would give the highest price for it, and is the price which can be obtained in open market on fair competition. Reigle v. State, 45 Oh Ap 251; 186 N. E., 875.

“Actual value” means the market value of a particular item of personal property or parcel of real estate free of, and without consideration to existing, encumbrances.

When Myles McAdams elected to purchase at the appraised value of $8000.00 the mansion house itemized in the inventory of his deceased spouse’s estate, he was entitled, upon payment of the sum of $8000.00, and upon compliance with the provisions of §10509-89 GC, to a conveyance of such property free from the mortgaged encumbrance.

We feel that it is unnecessary to enter into an extended discussion concerning the exact nature as to the estates and rights of a mortgagor and mortgagee since legalistic views of those rights differ materially in the various states and even within the confines of the same state. Generally speaking, for the purposes of this case, a mortgage is a conveyance of an estate or pledge of property, as security for the payment of money or performance of some other act, conditioned to become void upon such payment or performance. 27 O. Jur. 253.

A mortgagor, in Ohio, is commonly said to retain legal title as to all the world, at least while he remains in possession, until foreclosure, or until the title is passed to a purchaser at a foreclosure- sale. 27 O. Jur. 369.

The mortgagor has seisin in law. Culver et v. Harper et, 27 Oh St 464.

Upon the death of the mortgagor owning mortgaged property, his interest passes to his heirs or devisees, subject to the lien of the mortgage. Gill v. Finney, 12 Oh St 38; Straman v. Rechtine, 58 Oh St 443.

The executor or administrator is required to pay off the mortgaged debts of the decedent whom he represents, according to their priorities. Hall v. Musler, 1 Disney, 36; 12 O. Dec. Rep., 471.

Upon the death of a mortgagor having at the time of his death a right to redeem mortgaged property, that right is to be exercised by his heirs or devisees. Kelley v. Stanbery, 13 Ohio 408; Stover v. Bounds, 1 Oh St 107.

One having an interest in or lien on property, who pays off for his protection a prior encumbrance upon it, is entitled in equity to be subrogated to all the rights of the prior encumbrancer, and to enforce the security for his reimbursement out of the encumbered estate. Amick v. Woodworth et, 58 Oh St 86. A surviving spouse who elects to purchase at its appraised value a mansion house encumbered by a mortgage and pays off the balance of said mortgage, is subrogated to the rights of the deceased mortgagor who would be entitled to the proceeds of the mortgaged property.

The purchaser, at a foreclosure sale of mortgaged premises, acquires the interest and title of both the mortgagor and mortgagee and stands in the shoes of both or all persons in privity with them. Frische v. Kramer, 16 Ohio 125; §11694 GC; Taylor v. Fowler, 18 Ohio 567.

It is the duty of the court, under the provisions of §10509-89 GC, in “fixing the terms and conditions of payment to the executor or administrator for such property,” to approve a sale in which Myles McAdams, as surviving spouse, will pay the balance due on the mortgage of the loan association, or will assume (with the -consent of the mortgagee) payment of the balance due on the mortgage, and will pay to the deceased spouse’s fiduciary the difference between the appraised value of $8000.00 and the balance due on the mortgage on the mansion house, or, in the alternative, it is the duty of the court to approve a sale in which the surviving spouse will pay the fiduciary the appraised value of $8000.00 and require said representative to pay mortgagee the balance due on the mortgage, in which latter instance the surviving spouse will be entitled to a conveyance free of the mortgaged encumbrance. In said latter instance, the mortgagee will be entitled, without written presentation, under the provisions of §10509-112 GC, of his claim, to receive from the fiduciary the amount due on its mortgage.


source: Caselaw Access Project

author: By HUNSICKER, J:

license: Public Domain

text:
    CLEVELAND HEIGHTS (City), Plaintiff-Appellee, v. FRIEDMAN, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23406.
    Decided June 15, 1955.

      Robert Grogan, Prosecutor, Cleveland, for plaintiff-appellee.
    Howard M. Metzenbaum, Cleveland, for defendant-appellant.
    (STEVENS, PJ, HUNSICKER, J, DOYLE, J, of the Ninth District sitting by designation in the Eighth District.)
   OPINION

By HUNSICKER, J:

This is an appeal on questions of law from a judgment of guilty, as charged in an affidavit alleging the defendant-appellant, Allen Friedman, with a violation of §4549.05 R. C.

In this affidavit it is charged that Allen Friedman «* * * unlawfully, maliciously and without the consent of the owner did remove the keys from an automobile to wit: a Willys Jeep, owned by the Campus Drug Company * * * while same was parked at 13236 Cedar Road, Cleveland Heights, Ohio * * *.”

The appellant, Allen Friedman, says that:

“1. The affidavit does not allege an offense under §4549.05 R. C.

“2. The evidence did not sustain the finding.”

The section of the Revised Code (§4549.05 R. C.), which is the basis of the charge contained in the affidavit, is as follows:

“No person shall maliciously or with intent to steal or without authority from the owner remove from any motor vehicle any portion of the running or steering gear, pump, or any tire, rim, cover, tube, clock, casing, radiator, fire extinguisher, tool, lamp, starter, battery, coil, spring, gas or oil tank, bell or any signal device, speedometer, license number, horn, box, basket, trunk or carrier, shield, hood, oiler, gauge, grease cup, chain, lock nut, bracket, valve, bolt, rod, cap, screws, wire, spark plug, carburetor, ■ magneto, pipe, fan, belt, cylinder, switch, brake, electric bulbs, or any device, emblem, or monogram thereon, any attachment, fastening, or other appurtenance, or any part attached to said motor vehicle which is necessary in the use, control, repair, or operation thereof.

“No person shall knowingly buy, receive or have i* his possession any of such unlawfully removed articles or any part thereof.”

An analysis of the statute shows that it has application to the following persons:

1. One who maliciously removes from any motor vehicle; or

2. One who with intent to steal removes from any motor vehicle; or

3. One who removes without authority from the owner of any motor vehicle.

A further analysis of this section under consideration shows that it applies to many specific parts of a motor vehicle, and, as stated therein, “* * *, or other appurtenance, * * This phrase is not limited to a similar device named immediately preceeding this separate part of the section. In the judgment of this court, it does include an object so vitally necessary to the operation of the automobile as the keys to the ignition, and the keys-to the gasoline tank, which Allen Freidman removed from the motor- vehicle.

We conclude that the affidavit does charge an offense under §4549.05 R. C.

In a consideration of the second assignment of error, the trial court heard the witnesses testify and could believe all, any- part, or none of the testimony so given. The trial court chose to believe the prosecuting witness, and we cannot say that to do so was prejudicial error in this case. The fact that these keys were removed from the motor vehicle under the circumstances shown, is sufficient for the conclusion by the trial court that they were “maliciously removed” within the terms of the statute.

We therefore determine that, as to the second assignment of error, no error prejudicial to the substantial rights of the appellant, Allen Friedman, has intervened herein.

There has been no cross-appeal filed by the appellee challenging the penalty imposed by the trial court, and hence, we will not pass on that subject.

The judgment is affirmed. Exceptions. Order see journal.

STEVENS, PJ, DOYLE, J, concur.


author: By DRAPER, J.

text:
    GEIS CONSTRUCTION COMPANY, Plaintiff, v. BOARD OF EDUCATION, Defendant.
    Common Pleas Court, Franklin County.
    No. 193319.
    Decided September 22, 1955.
    Robert Emerson Potts, Robert Denzler Holmes, Columbus, for plaintiff.

      J. Ralston Werum, George Ruble, Jr., Assts. Pros., Columbus, for defendant.
   OPINION

By DRAPER, J.

This case arises in this court under and by virtue of §12148-3 GC, S2711.03 R. C., wherein it is provided:

“The party aggrieved by the alleged failure of another to perform under a written agreement for arbitration may petition the court of common pleas having jurisdiction of the party so failing to perform for an order directing that such arbitration proceed in the manner provided for in such agreement. Five days’ notice in writing of such application shall be served upon the party in default. Service thereof shall be made in the manner provided for the service of a summons. The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the agreement. If the making of the arbitration agreement or the failure to perform it is in issue, the court shall proceed summarily to the trial thereof. If no jury t-ial is demanded, the court shall hear and determine such issue. When such an issue is raised, either party may, on or before the return day of the notice of application, demand a jury trial of such issue, and upon such demand the court shall make an order referring the issue to a jury called and impaneled in the manner provided in civil actions. If the jury finds that no agreement in writing for arbitration was made or that there is no default in proceeding thereunder, the proceeding shall be dismissed. If the jury finds that an agreement for arbitration was made in writing and that there is a default in proceeding thereunder, the court shall make an order summarily directing the parties to proceed with the arbitration in accordance with such agreement.”

A hearing was held and the facts adduced were as follows: The Geis Construction Company, plaintiff herein, on January 14, 1955, entered into a contract with the Board of Education, Hamilton Local School District, Franklin County, Ohio, to furnish all the materials and perform all of the work shown on the drawings and described in the specifications entitled “An Elementary School Building, Southwest Corner Shook Road and State Route 665, Franklin County, Ohio (Dated October 18, 1954) including Addenda Nos. 1, 2, 3 General and Electrical (Combined) General, alternate No. 1, two additional class rooms; Electric Alternative No. 1, two additional class rooms, and deductive alternates 3, 4, and 5, prepared by F. F. Glass, Architect, 20 South Third Street, Columbus, Ohio,” acting as, and in these Contract Documents entitled, the Architect, under which contract the contractor “shall do everything required by this Agreement, the General Conditions of the Contract, the Specifications and the Drawings.”

This contract was the standard form of agreement between the contractor and owner for construction of buildings, issued by the American Institute of Architects (AIA), for use when a stipulated sum forms the basis of payment, and it is plaintiff’s Exhibit A, part 1.

Article 6 of this contract says:

“Article 6. The Contract Documents — The General conditions of the Contract, the Specifications and the Drawings, together with this Agreement, form the Contract, and they are as fully a part of the Contract as if hereto attached as herein repeated.”

The specifications, Exhibit A, part 2, are a part of this contract as set forth in Article 6 and consist of the General Conditions of the Federal Housing and Home Finance Agency (HHFA), office of the Administrator, Community Facilities and Special Operations, hereinafter called HHFA General Conditions, and the General Conditions of the contract for the construction of buildings, being a standard form of The American Institute of Architects and hereinafter called A. I. A. General Conditions.

A dispute arose over the furnishing by the contractor of Mitchell Mfg. Company Folding tables which F. F. Glass, the Architect, refused to accept, and the contractor further made a claim for $357.96 for additional fill material and $34.40 additional concrete footer work and hand excavation, which were not approved by the Architect.

The contractor then on June 13, 1955, served notice on the Board of Education that he had appointed Robert Emerson Potts to act as arbitrator on his behalf and requested the Board of Education to appoint an arbitrator on its behalf under Section 40 of A. I. A. General Conditions. This service of notice on June 13, 1955, was within the 10 day period required by Sec. 40 of A. I. A. General Conditions, the Architect’s decision having been rendered on June 8, 1955. The defendant Board of Education refused to act and the Contractor renewed its demand on July 5, 1955, by serving on the president of the Board an application for arbitration. The defendant Board has failed and refused to nominate a person as its arbitrator. Thereafter the contractor filed this action in the Common Pleas Court of Franklin County, Ohio, under §2711.03 R. C.

THE LAW

Sec. 2711.03 holds:

“* * * If the making of the arbitration Agreement or the failure to perform it is in issue, the court shall proceed summarily to the trial thereof. If no jury trial is demanded, the court shall hear and determine such issue. * * * If the jury finds that no agreement in writing for arbitration was made or that there is no default in proceeding thereunder, the proceeding shall be dismissed. If the jury finds that an agreement for arbitration was made in writing and that there is a default in proceeding thereunder, the Court shall make an order summarily directing the parties to proceed with the arbitration in accordance with such agreement.”

The sole issue before this Court is “Was there an agreement for arbitration? If so, was there a default in proceeding?” If there was no agreement for arbitration, then the court must dismiss the action.

A jury was not demanded; thus the Court must proceed to hear and determine the issue.

For this reason the second and the third causes of action will not be considered.

Whether this contract provides for arbitration depends upon its construction from the whole instrument. 11 O. Jur., 2nd, Contracts, Sec. 19, page 263 holds:

“It is a general rule as to the binding effect of contracts that in the absence of fraud or mutual mistake, a party who executes a written contract cannot say he was ignorant of its contents and thus escape liability. The party drawing the contracct is under no obligation to state the terms thereof to the other party where the other party is able to read the contract. It is the well-established principle that it is the duty of every person who enters into' a contract, to learn its contents before he signs it. * * *

“The acceptance of a written contract sufficiently indicates an assent to its terms whatever they may be; it is immaterial that they are in fact unknown. * * *”

Under this citation the parties are bound by the provisions of the contract herein, as there has been no showing to bring them into any of the exceptions above set forth.

The parties being bound by the contract, the Court is then left with the sole question of interpreting the contract from the four corners thereof to determine the rights of the parties on the question presented in this action.

11 O. Jur. 2d, Contracts, Art. 133, page 377:

“Principles of construction cannot be applied to vary the meaning of that which is otherwise clear and unambiguous * * *”

The Court is therefore presented with the problem of interpreting this contract and its provisions as they stand, inasmuch as no question has been raised that they were not clear or ambiguous.

Addendum No. 1 sets forth the following:

“1. Attention is called to the first paragraph at the top of page 15 of the specifications which shall be a part of the Special Conditions of the contract making HHFA general conditions supercede the A. I. A. General Conditions of the Contract in any case of conflict.”

At page 15 we read “The following General Conditions of the Federal Housing and Home Finance Agency, Office of the Administrator, Community Facilities and Special Operations are in addition to the A. I. A. General"Conditions and are a part of this contract and shall supersede the A. I. A. General Conditions in all points of difference.”

11 O. Jur. 2nd, Sec. 133, Contracts, p. 378:

“When a writing is worded in clear and precise terms, when its meaning is evident and tends to no absurd conclusion, there can be no reason for refusing to admit the meaning which it naturally presents.”

Certainly the provisions of the contract as herein set forth are worded so that no misunderstanding could arise to their meaning.

The HHFA conditions “supersede the A. I. A. General Conditions in all points of difference.” Thus, if there are points of difference which are irreconcilable, then the HHFA Conditions prevail as the parties are bound by their ccontract.

This brings us to a determination of Sec. 40 of the A. I. A. General Conditions and Sec. 38 of the HHFA Conditions.

Sec. 38 of HHFA Conditions states:

“Architect’s Authority: The Architect shall give all orders and directions contemplated under this contract and specifications relative to the execution of the work. The Architect shall determine the amount, quality, acceptability, and fitness of the several kinds of work and materials which are to be paid for under this contract and shall decide all questions which may arise in relation to said work and the construction thereof. The Architect’s estimates and decisions shall be final and conclusive, except as herein otherwise expressly provided. In case any question shall arise between the parties hereto relative to said contract or specifications, the determination or decision of the Architect shall be a condition precedent to the right of the contractor to receive any money or payment for work under this contract offered in any manner or to any extent by such question.” (Emphasis added.)

11 O. Jur. 2nd, Contracts, Sec. 224, page 480:

“* * * Building and construction contracts frequently provide that the approval, or estimate, or decision of the architect, engineer, superintendent or other person shall be a condition precedent to payment or shall be conclusive. Contracts which provide for the acceptance of a building by an architect and that his determination shall be final are lawful and are usually upheld. * * *”

See also Sec. 226, page 483, 11 O. Jur. 2d.

It is true as cited in Merrill-Ruckgaber Company v. U. S„ 36 Sup. Ct. 552:

“Parties to a contract may agree to submit differences of views in the interpretation of drawings and specifications to the decision of an architect or engineer, and the validity of such an agreement is unquestionable, in the absence of bad faith, fraud or a failure to exercise an honest judgment.” (Emphasis added.)

See also Reaugh Const. Co. v. Corlett, 23 O. N. P. (n. s.) 336; Fred R. Jones Co. v. Fath, 101 Oh St 47; also 12 Am. Jur. p. 898 and 899 to the effect that bad faith, fraud, or failure to exercise an honest judgment may give a contractor a right to recover, but that is not our question here. We are dealing solely with the question of “right to arbitrate under the contract.”

Sec. 40, A. I. A. General Conditions, provides for arbitration when disputes, claims, or questions shall arise.

“Art 40 Arbitration — All disputes, claims or questions subject to arbitration under this contract shall be submitted to arbitration in accordance with the provisions, then obtaining, of the Standard Form of Arbitration Procedure of the American Institute of Architects, and this agreement shall be specifically enforceable under the prevailing arbitration law * *

There is no dispute that the plaintiff contractor has complied with the procedure for arbitration if he is entitled to it under this contract.

Art. 40 of the A. I. A. General Conditions is in conflict with Sec. 38, HHFA Conditions and under addendum No. 1 of HHFA conditions and page 15 of HHFA conditions, Sec. 38 of HHFA must prevail, as the parties are presumed to have contracted to make the decisions of the Architect final unless Sec. 40 of A. I. A. General Conditions can be read into Section 38 of HHFA conditions under the language “except as herein otherwise expressly provided.”

This language cannot refer to Article 40 of the A. I. A. General Conditions but only to HHFA Conditions as there is no intent to be gleaned from the HHFA conditions that the A. I. A. General Conditions should be included, but quite the contrary, that the HHFA Conditions should supersede the A. I. A. General Conditions unless there is a specific provision to include the A. I. A. General Conditions in the HHFA conditions.

To what do the words “except as herein expressly provided” allude? They allude solely to exceptions which may be contained in the HHFA Conditions. At page 63 of the HHFA Conditions under title “Plumbing” appears this language:

“General Conditions: The Standard Form of the General Conditions of the HHFA and the A. I. A. General Conditions of the contract (Fifth Edition, Copyrighted 1937, Form A-2) issued by the American Institute of Architects, as well as the Special Conditions bound herewith, are a part of this specification, and the contractor shall consult them in detail for instructions pertaining to his work.” (Emphasis added.)

The same language is found at page 74 of HHFA General Conditions under the title “Heating and Ventilating Temperature Control.”

Does this language relate to other parts of the contract to allow plaintiff contractor to take advantage of arbitration under Article 40 of A. I. A. General Conditions?

The German Fire Insurance Co. v. Roost, 55 Oh St 581:

“Syllabus 1 — The meaning of a contract is to be gathered from a consideration of all its parts, and no provision is to be wholly disregarded as inconsistent with other provisions unless no other reasonable construction is possible.”

Can this Court reasonably construe the language used at page 63 and 74 of HHFA General Conditions to change the meaning of Section 38 of HHFA General Conditions to incorporate Article 40 of A. 1. A. General Conditions for arbitration?

The answer, we believe is obvious. The language used on page 63 and 74 relates solely to plumbing and heating and ventilating and the term therein used is “this specification,” showing that the intent of the parties was to limit this provision to those particular parts of the contract. For the Court to arrive at any other conclusion would mean that the Court was making a new contract for the parties.

CONCLUSION.

The parties and each of them are bound by the provisions of this contract. They have contracted that the Architect’s decision shall be final and conclusive; they have also contracted that the General Conditions of the HHFA shall supersede the A. I. A. General Conditions. Section 38 of General Conditions of HHFA being in conflict with Article 40 of A. I. A. General Conditions, Section 38 prevails. The Court’s sole function in this case being to find whether the contract provides for arbitration, and the Court finding that the contract does not provide for arbiration, the action is. hereby dismissed.


author: By THE COURT.

text:
    TIBBALS, Plaintiff-Appellee, v. COOPER, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4915.
    Decided May 28, 1954.
    Chamblin & Price, Columbus, for plaintiff-appellee.
    L. P. Henderson, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This is an appeal on questions of law from the judgment rendered in favor of the plaintiff by the Common Pleas Court of Franklin County, Ohio.

This case has been before this Court previously on appeal. The action was for an accounting by the cotenants who owned fractional interests in a residential property. The defendant-appellant has occupied the property since 1945, and has collected some rents. The trial court rendered a default judgment against the defendant-appellant on February 23, 1952, and in the judgment entry the trial court found that the annual rental value of the property was in excess of $840.00, as alleged in the petition. The court further found that the plaintiff and a co-defendant were entitled to an accounting for their respective interests in the rent income and profits and continued the matter for hearing thereon. From an order overruling defendant’s motion to vacate the judgment an appeal was taken to this Court. The appeal was dismissed for failure to comply with the rule of this Court with respect to the time for filing briefs. Later the matter of accounting was heard in the Common Pleas Court. Evidence was offered by the defendant-appellant on the question of the rental value of the premises. The plaintiff rested its claim on the former finding, and offered no evidence that the rental value was in excess of $840.00 annually. The Court allowed the defendant to take credit for repairs and expenditures during occupancy. However, the Court ruled it was bound by the former judgment as to the rental value of the premises, first, because the term had passed and, second, that the judgment was attacked on appeal which had been decided adversely to appellant. The effort made by the defendant to vacate that judgment failed, and the judgment having become final the trial court was bound thereby. But the appellant here contends that the Court was not bound by the judgment on the question of the rental value of the premises. This contention could prevail only if the Court, in rendering its judgment, did so without any supporting evidence. We have searched the record in its entirety and find it to be silent on this question. In the absence of affirmative proof to the contrary, we must indulge the presumption that the judgment was regular; a presumption of validity attends a judgment of a court of record of general jurisdiction, regular on its face. Vol. 23 O. Jur., page 1362, Sec. 1384.

We have carefully considered every. assignment of error and find none well made. Judgment affirmed.

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


text:
    STATE, Plaintiff-Appellee, v. GULLION, Defendant-Appellant.
    Common Pleas Court, Franklin County.
    No. 193502.
    Decided December 1, 1955.
    City Atty, for plaintiff.
    R. Brooke Alloway, Isadore Topper, Columbus, for defendant.
   OPINION

By DRAPER, J.

HEARD ON APPEAL FROM THE MUNICIPAL COURT OF COLUMBUS, OHIO

Defendant-appellant was adjudged guilty of a violation of §4399.16 R. C. at a trial in the Municipal Court of Columbus, Ohio, and an appeal was perfected by him to this court. Defendant made several assignments of error, but the question that is dispositive of the case on appeal is this:

“Does defendant fall within the classification of ‘tavern keeper’ within the meaning of §4399.16 R. C., so as to be chargeable with a violation of that statute?”

Sec. 4399.16 R. C. reads as follows:

“No tavern keeper shall permit rioting, reveling, intoxication, or drunkenness in his house or on his premises.”

Counsel for the State and for defendant agree, and the record shows, that on June 18, 1955, the defendant was the manager of the Fifth and Main Tavern, Columbus, Ohio, and was in charge of the premises, in the absence of the owner, one David Lerner.

Inspectors of the Department of Liquor Control on June 18, 1955, found three men in the bar whom testimony indicated to be intoxicated, and it was on this basis that the charge was filed and trial had in the Municipal Court.

In their appeal briefs counsel have not cited any cases construing the statute in question, and the court in its own research has found none. Reference has been made by counsel to various cases construing the words “tavern keeper” and “keeper,” and it is on this point that the case turns.

Sec. 4399.16 R. C. presently is to be found in Title 43, Liquor, Chapter 4399, Prohibitory Provisions and Crimes, as a result of the recodification of 1953. This section was not originally a part of the Liquor Control Act and has not become so by reason of the recodification. Throughout much of its long history, this section, with its predecessors, has been found in the criminal section of the code. It is certain that the section is criminal in nature, and is to be strictly construed.

While it would be straining the statute to consider it as being technically in pari materia with its fellow statutes in Chapter 4399, R. C., yet it is significant that the language of these other statutes is substantially different. Of the statutes §§4399.09 through 4399.17 R. C., each of which, save §4399.12 R. C. dealing with other matters, defines an offense punishable under the various branches of §4399.99, it is noteworthy that all except the instant statute begin with the words “No person * *

Sec. 4399.16 R. C., as noted supra, begins with the words “No tavern keeper * * It is apparent that the reviser of the code recognized and appreciated the distinction, and preserved it.

The obvious intent of the Legislature was to limit the crime to a certain class of persons, i. e., tavern keepers. There is a dearth of authority on what constitutes a tavern keeper, and no authority construing the phrase has been discovered with respect to the particular statute involved here.

In Curtis v. State, 5 Ohio 324, the syllabus reads:

“A person who makes it a business to keep a house of entertainment for travelers, is a tavern-keeper within the statute, although he has no liquor in his house, for any purpose.” (Emphasis added.)

In Hirn v. State, 1 Oh St 15, at page 19:

“The term tavern-keeper has for many years past been understood to import a person licensed to retail liquor at a house kept by him for public entertainment.” (Emphasis added.)

In 41 Words and Phrases, p. 113, we find several definitions of “tavern keeper”:

“A tavern keeper is one who obtains a license to keep a tavern and for whom it is kept, though another person as his agent may actually keep it. Commonwealth v. Burns, 27 Ky. (4 J. J. Marsh.) 177, 181.” (Emphasis added.)

“ ‘Tavern keeper’ is synonymous with ‘innkeeper’. It means a person who makes it his business to entertain travelers and passengers, and provide lodging and necessaries for them and their horses and attendants. Commonwealth v. Shortridge, 26 Ky. (3 J. J. Marsh.) 638, 640.” (Emphasis added.)

“The word ‘tavern keeper’, as used in Rev. St. S. 1564, * * * means a person a part at least of whose business is to sell intoxicating liquors. Jensen v. State, 19 N. W. 374, 375, 60 Wis. 577.” (Emphasis added.)

“* * * A person who makes it his business * * *. The Town of Crown Point v. Warner, N. Y., 3 Hill, 150, 156.” (Emphasis added.)

On the other hand, we read in the brief of the plaintiff-appellee the following language:

“Plaintiff-appellee contends that defendant is a tavern keeper within the construction of §4399.16 R. C.

“The early Ohio ease of Schultz v. State, reported in 32 Oh St 276 seems to be one of the only cases that the word ‘keeper’ has been interpreted. The Supreme Court, through Judge Day, at page 281 of this decision said:

‘The word “keeper” is defined to be one who has the care, custody, or superintendence of anything; as the keeper of a part, a pound, a gate, a prison, and (in the English Law) keeper of a forest, great seal, and privy seal. The word, therefore, does not necessarily mean ownership, but, while it may include an owner, it also embraces one who has the possession and control of á place, thing, or business.’

“The term keeper does not include a mere clerk or servant without managerial authority. State v. Berry 13 C. C. (N. S.) 206, 22 C. D. 250.

“A person may be convicted as the ‘keeper’ of a place without evidence that he is the owner or lessee. If he controls and manages it, he is presumed to be the keeper unless he proves that he is a mere employe. Belle Centre v. Welsh, 11 Dec. Rep. 41.”

The Schultz case, 32 Oh St 276, is admittedly persuasive, the more so since it construes the word “keeper” in a statute which deals with the subject of liquor and indeed at one time was the statute next adjoining an ancestor of the instant statute. However, persuasive as is this case, we do not feel that it is controlling. The definition of the bare word “keeper” in the Schultz case is one which we can accept in that case and still regard as not inconsistent with a different construction of the phrase “tavern keeper”, just as the words “book” and “keeper” separately used may well summon to the mind different concepts than when used in conjunction in the word “bookkeeper.”

The Berry case, 13 C. C. (N. S.) 206, is frankly bottomed on the Schultz case, and involves a corrollary of the ryle in that case. See page 208:

“This stipulation in connection with the other evidence brings the case within the dictum of Judge Day in Schultz v. State, 32 Oh St, on page 276, in which it is intimated, if not asserted, that the term ‘keeper’ does not include a mere clerk or servant without managerial authority.”

The defendant Killeen, a bartender in Berry’s place, was held to be not subject to an information charging a violation of §6942 R. S. in keeping a place where intoxicating liquors were sold in violation of law, even though Killeen actually made the sales shown in evidence, because it appeared that the owner of the place was present and in control at the time. Had the Court been required to find other and better grounds, we feel it could have done so.

The Welsh case we construe as more detrimental to the State’s case than helpful. On page 44, the last paragraph reads:

“It is further contended that the defendant was not the ‘keeper’ of the place, because there was no evidence that he was the owner or lessee of such place. There is evidence, however, that he had the custody, care, control, and management of the place and business. From such evidence a presumption arises that he was the ‘keeper’ of the place. If he was acting as a mere clerk, that is a matter of defense for him to set up. No such claim was made upon the trial. I am unable to see any error in the proceedings before the mayor. The motion for leave to file a petition in error is therefore overruled.” (Emphasis added.)

Chanock v. United States, 267 F. 612, D. C., 1920, is an interesting case which involved a bookkeeper and clerk in a hotel. It is, of course, well established that “hotel keeper,” “innkeeper” and “tavern keeper” are synonymous with regard to our purpose here. The pertinent language is as follows:

“It appears that defendant was bookkeeper and clerk in the Dewey Hotel, in this city. One Arnold, with his wife and daughter, registered at the hotel as guests. Arnold gave defendant two envelopes, containing securities and money, to be placed in the hotel safe. During the following night defendant opened the safe, took the securities and all of the money but $10 from the envelopes, and absconded. When arrested, the property was found in his possession.

“The judgment is challenged chiefly upon the ground that the indictment charged larceny, while the proof established embezzlement. Section 837 of the District Code provides:

“ ‘Any person intrusted with anything of value, to be carried for hire, or being an innkeeper and intrusted by his guest with anything of value for safe-keping who fraudulently converts the same to his own use, shall be deemed guilty of embezzlement and punished as provided in section eight hundred and thirty-four.’

“Section 834 relates to ‘embezzlement by agent, attorney, clerk, or servant.’ Defendant occupied none of these relations to Arnold, nor was he an innkeper, as defined in section 837. He was a mere employe of the hotel.”

A studied consideration of the cases cited and the arguments made lead this Court to the conclusion that “tavern keeper” within the meaning of §4399.16 R. C. is a technical, restricted word, which refers to the owner of a tavern business and not to a mere employee, even though he exercise certain managerial functions.

Indeed, it is a question whether even the owner of an establishment of the present day “bar and grill” type of establishment is within the concept of “tavern keeper,” but this question is not before the court.

The court is well aware of the desirability of a statute designed to forbid appropriate persons from permitting rioting, reveling, intoxication, or drunkenness on the premises of a permit holder. Sec. 4399.14 R. C, might well provide the guide for drafting such a statute, for it reads:

“No person who is the proprietor of any public dance hall, or who manages, or is in charge * * *.” (Emphasis added.)

If the Legislature in its wisdom seeks to accomplish such a purpose, it has the means available; but it is the Legislature alone which can create the offense, and for the Court to create the offense by construction of the statute as the Municipal Court construed it, would be a clear invasion of the exclusive province of the Legislature, as well as an infringement of the rights of the present defendant.

Because of the already extended length of this opinion, made necessary by the lack of reported cases on the matter, the Court has not examined the corollary problems of the distinction between an owner of a business and his manager, of matters in the nature of an estoppel to deny that one is a tavern keeper, or the criminal answerability of the tavern keeper for the acts of his agents or employees.

The judgment of the Municipal Court is reversed, and case dismissed.


author: By THE COURT:

text:
    STATE, ex rel. VILLAGE OF KETTERING, OHIO, etc., Relator, v. MONTGOMERY COUNTY BOARD OF ELECTIONS, etc., Respondents.
    Ohio Appeals, Second District, Montgomery County.
    No. 2343.
    Decided May 23, 1955.
    Beigel & Mahrt, by Jack E. Staley, Dayton, for the Village of Kettering, Ohio, Relator.
    Mathias Heck, Pros. Atty., By John P. McHugh, Asst. Pros. Atty., Dayton, for the Montgomery County Board of Elections, etc., Respondents.
    Coolidge, Becker, Wall & Wood, by Edgar J. Graef, Jr., of Counsel, Dayton, Amicus Curiae.
   OPINION

By THE COURT:

This matter is presented on demurrer to the petition in an original action for a writ of prohibition. The extraordinary writ of prohibition is never granted except upon a showing of a clear right. Where there is a doubt in the mind of the Court the writ is denied. The allegations in the petition do not show that there is a clear right to the writ; but rather it presents a doubtful case.

The demurrer to the petition is sustained.

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


text:
    SPENSKY, In re Petition for Writ of Habeas Corpus.
    Ohio Appeals, Second District, Franklin County.
    No. 5198.
    Decided March 7, 1955.
    Lyman & Lyman, Webster S. Lyman, Jr., Columbus, for petitioner-relator.
    Hon. C. William O’Neill, Atty. Geni., Thomas R. Lloyd, Asst. Atty. Geni., Columbus, for respondent.
   OPINION

By THE COURT.

This is an original action in habeas corpus wherein the relator is seeking his release from the Ohio Penitentiary upon the following grounds:

1. That the said petitioner, Edward Spensky, was illegally and fraudulently induced to plead guilty upon a promise of leniency by an officer of the court, the Columbiana County Prosecutor;

2. That the said petitioner was not allowed to change his plea to not guilty, thus, along with the above fraud, depriving him of a right to a fair and impartial trial; and

3. That the sentence imposed by the said Columbiana Court of Common Pleas was void and said court was without jurisdiction to sentence petitioner to the Ohio State Penitentiary.

The case was presented upon the stipulation by counsel that certain letters and affidavits submitted by the respective parties were to be considered as all of the evidence in the case.

We have carefully examined these documents and are of the opinion that they fail to establish by the proper degree of proof that the relator was fraudulently induced to enter a plea of guilty to the charge upon which sentence was pronounced. Counsel for the relator at the time of the trial states that the prosecuting attorney advised him that he would make a recommendation to the Court that the relator be given a suspended sentence; that if any such recommendation was made by the prosecuting attorney to the trial judge it was not made in open court. The record does disclose, however, that both of the arresting officers, as well as the chief of police, made such a recommendation to the court. The prosecuting attorney denies entering into any such agreement, saying,

“I explained to Mr. Alexander” (counsel for the relator) “that I could not negotiate any agreement with him concerning his client since my policy as Prosecuting Attorney was not to make any recommendations to the Court concerning disposition of cases and that I felt that the ultimate disposition in any case should rest entirely with the Court after I had furnished all the facts to the Court. Mr. Alexander suggested that his client would be disposed to enter a plea of guilty to the indictment if he could be assured that the sentence would be suspended and that he would be returned to Pennsylvania authorities as a parole violator. I told Mr. Alexander that I could not conclude such an agreement but I suggested to Mr. Alexander that he talk to Judge Joel H. Sharp, our Common Pleas Judge, and that if Judge Sharp would agree to make such a disposition of the case that I would not voice any objection.”

Concerning the second ground, urging that the relator was denied the right to a fair trial for the reason that he was not permitted to change his plea to “Not guilty,” the record reveals that after the plea of guilty was entered a motion was made to submit testimony in modification of sentence and this motion was sustained and parts of two days were consumed in this proceeding. At the close of the same, sentence was imposed after which a request was made to change the plea to “Not guilty.” Since we have found that no representation was made to the relator to induce the plea of “Guilty,” as the trial court must also have found, he was not entitled as a matter of right to enter the new plea. A party should not be permitted to trifle with the court in deliberately entering a plea of guilty one day and capriciously withdrawing it the next. 12 O. Jur. 262. We recognize that were he falsely induced to enter the plea of guilty, it would have been the duty of the court on motion to set the sentence aside and permit the change in plea to be made. Backenstoe v. State, 2 O. N. P. (N. S.) 178.

It is our conclusion that the relator was granted a fair trial and thereafter the court properly exercised its jurisdiction in imposing the sentence.

The writ will be denied.

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


author: By CECIL, District Judge.

text:
    NATIONAL BANK OF PAULDING, Plaintiff, v. FIDELITY AND CASUALTY COMPANY et, Defendants.
    United States District Court, S. D. Ohio, W. D.
    No. 1576.
    Decided December 31, 1954.

      Headley, Sibbald & Taft, Cincinnati, for plaintiff.
    Harshman & Young, Dayton, for defendant Fidelity & Casualty Co.
    Landis, Ferguson, Bieser & Greer, Dayton, for defendant Maryland Casualty Co.
   OPINION

By CECIL, District Judge.

The plaintiff, The National Bank of Paulding, brought this action against defendants The Fidelity and Casualty Company of the State of New York and Maryland Casualty Company, a corporation of the State of Maryland, to recover from each of said defendants, the sum of $15,000, which it claimed to be due under a surety bond issued by each of the defendants to secure the plaintiff against certain losses.

Each of the defendants has filed an answer in which it admits certain facts alleged by the plaintiff in its complaint.

Both of the defendants deny any liability under clauses “B” and “E” of the bonds, and further claim that the loss sustained by the plaintiff was money loaned to its customer, M. G. Stoller, and therefore, was not covered by the bonds by virtue of Section 1 (d) of the bonds. Another defense raised by the defendants is that the plaintiff failed to give written notice and proof of loss, as required by the bonds.

Photostatic copies of the bonds are attached to the complaint and are almost identical in content. The numerically numbered and lettered subdivisions that will be used in this decision are identical in both bonds.

Each of the parties has filed a motion for summary judgment and the case is now before the court upon these motions. The plaintiff’s motion is supported by affidavits of M. G. Stoller, Walter K. Sibbald, O. E. White and the supplemental affidavit of O. E. White. There is attached to the original affidavit of O. E. White photographic copies of documents to which reference will be herein made. The defendants took the deposition of O. E. White, which deposition was filed and is also before the court.

The court is of the opinion that there are no disputed facts before the court and that the pleadings, the affidavits and deposition contain all of the facts essential to decide the motions before the court. The facts, briefly stated, are as follows:

Prior to March of 1951, M. G. Stoller had engaged in an extensive business of bying, selling and warehousing seeds and grain at Paulding, Ohio, under the trade-name of Stoller Seed House & Elevator. For ten years or more, prior to March, 1951, Mr. Stoller had been a customer of the plaintiff bank. His custom was to carry on and make transactions with the bank in the following manner:

He would deliver a shipment of grain or seed to the railroad company and get from the railroad company a uniform order bill of lading consigned to the order of Stoller Seed House at the destination of his customer, with directions to the carrier to notify the customer at destination. He would draw a sight draft on the purchaser, payable to the order of The National Bank of Paulding, attach this sight draft and an invoice to the customer to the uniform order bill of lading and present it to the bank. The bank would credit Mr. Stoller’s account with the amount of the purchase order and send the draft and other papers to its correspondent bank in the city of destination. When the sight draft had been accepted and paid and the money returned to the plaintiff bank, it would charge Mr. Stoller’s account with discount at a given rate.

On or about the 15th day of March, 1951, Mr. Stoller began a series of eight transactions with the plaintiff bank which extended through March 24, 1951 and which cost the bank an initial loss of $141,555. In each of these transactions which caused the loss, Mr. Stoller obtained a credit to his account by presenting to the bank an entirely fictitious set of papers. Without having made any delivery of grain to the railroad, he prepared a uniform order bill of lading which was not signed by the railroad company and with it, presented to the bank an invoice and sight draft drawn upon an alleged customer with whom he had no pending transaction. The plaintiff claims that it is protected under paragraph (B) of the bonds which provides coverage as follows:

“Any loss of property through robbery, larceny (whether common law or statutory), burglary, theft, falses pretenses, * * * whether effected * * * with or without negligence on the part of any of the employees * * * while such property * * (is) lodged or deposited within an office or premises * * 15 (of the insured).”

The plaintiff claims further that it is also protected under Clause (E) of the bonds, w’hich provides coverage as follows:

“Any loss sustained by the insured through having in good faith and in the course of business, * * purchased or otherwise acquired, * * * or given any value, extended any credit * * * on the faith of, * * * any securities, documents, or other written instruments which prove to have been counterfeited or forged as to the name of any * * * issuer * * * or raised, or otherwise, altered, or lost, or stolen. * * *”

The defendants .claim that they are not liable to the plaintiff under the paragraphs in question by reason of the exception from coverage of Section 1 (d) of the bonds. Under the heading of “This Bond Does Not Cover” Section 1 (d) provides:

“Any loss the result of the complete or partial non-payment of or default upon any loan made by or obtained from the insured, whether procured in good faith or through trick, artifice, fraud or false pretenses, except when covered by insuring Clause (A) or (D).”

The above quotation is from the bond of the defendant The Fidelity & Casualty Company of New York. The analogous provision in the bond of the defendant, Maryland Casualty Company, is the same except that it excepts (E) as well as (A) and (D).

Counsel for the plaintiff claim that the transactions prior to March 14, 1951, were sales by Stoller of commercial paper to the plaintiff bank. In support of this claim, §§1301.63 and 1305.27 R. C. are cited. It is a fact in this case that when the bank sent these drafts through for collection, it requested that they be returned without protest in the event of non-payment. By the sections of the Ohio statutes above cited, the plaintiff bank took the foreign bills without recourse. This would indicate a sale. The fact that the plaintiff bank gave Mr. Stoller credit when these instruments were deposited with the bank and charged his account with interest when the money was received by the bank, is some evidence of a loan. Whether or not the transactions prior to March 14, 1951, are classified as loans or purchases seems to the writer of this opinion to be of little consequence. The court is primarily concerned with the nature of the eight transactions between March 14 and March 25, 1951. In the case of In re Grand Union Company (2 Cir.), 219 F., 353, a loan of money was defined. Syllabus 2 of that case reads as follows:

“A ‘loan of money’ is a contract by which one delivers a sum of money to another, and the latter agrees to return at a future time a sum equal to that borrowed. In order to constitute a loan, there must be a contract whereby in substance one party transfers to the other a sum of money which the other agrees to repay absolutely, together with such additional sums as may be agreed on for its use, and if such be the intent of the parties the transaction will be a loan, regardless of its form.”

In order to have a loan, there must be an agreement, either expressed or implied, whereby one person advances money to the other and the other agrees to repay it upon such terms as to time and rate of interest, or without interest, as the parties may agree. In order to have a contract, there must be a meeting of minds.

In the eight transactions here which caused the plaintiff’s loss and for which it seeks to recover against the defendants upon their respective bonds, there was no meeting of minds of the parties. The plaintiff bank expected a return of its money in the same manner that it had received it in the previous transactions.

Mr. Stoller intended to get a credit to his account. He knew that the documents which he presented were fictitious in fact, that the plaintiff would rely upon them as genuine and that the plaintiff would not or’ could not get its money back from the alleged customers against whom the sight drafts were drawn. These are the elements of the transactions which constitute the false pretenses upon which the plaintiff bases its claim. There were no elements of loans in these transactions.

The plaintiff claims that its loss is covered by paragraph “B” of the bonds. In order for the plaintiff to recover under these provisions of the bonds, it would be necessary for it to establish that the loss was sustained through one or more of the methods of loss enumerated in that paragraph.

In considering this phase of the case, the court is of the opinion that the items “false pretenses” and “larceny (whether common law or statutory)” are applicable. It is indicated above that the action of Mr. Stoller constituted the obtaining of money by false pretense.

Sec. 12447-1 GC, §2907.21 R. C., defines larceny by trick as follows:

“Whoever obtains possession of, or title to, anything of value with the consent of the person from whom he obtained it, provided he induced such consent by a false or fraudulent representation, pretense, token, or writing is guilty of larceny by trick.”

The court is of the opinion that the method of operation by Mr. Stoller fell within the provisions of this statute.

A question arises as to whether or not the word “property” embraces the loss which the bank sustained through these transactions. Mr. Stoller obtained a credit to his account in the plaintiff bank which he was able to check out in the form of money. Property is defined in these bonds to “mean money.”

Counsel for the defendants raised the further question that whatever the act of Mr. Stoller was or amounted to, it was not committed on the premises of the plaintiff bank. Some of these questions were decided by the United States Court of Appeals for the Eighth Circuit in Hartford Accident & Indemnity Company v. Federal Deposit Insurance Corporation, 204 F. 2d, 933. In this case money credited to an individual through the deposit of checks which the depositor knew were not good, was held to be property within the terms of a bond similar to the ones now before the court. The deposit of checks and the subsequent withdrawal of money established as a credit by reason of the check was held to have been committed- on the premises of the bank.

It was further decided by the court that the acts of the depositor amounted to obtaining money by false pretense. This court is of the opinion that false pretenses are more clearly established in the case at bar than in the case cited above.

The court reaches the conclusion that the plaintiff’s loss is covered by Clause “B” of the bonds.

Counsel for the plaintiff claim that the defendants are liable to the plaintiff under paragraph “E” of the bonds on the theory of forgery.

The court having arrived at the conclusion that the defendant bonding companies are liable under Clause “B” of the bonds, it is not necessary to consider further the question of whether or not the defendants are liable under paragraph “E” of the bonds.

The rule for construing an insurance policy was set forth by Mr. Justice Sutherland in the case of Bergholm v. Peoria Life Insurance Co., 284 U. S., 489, 52 S. Ct., 230, 231, 76 L. Ed., 416, as follows:

“It is true that where the terms of a policy are of doubtful meaning, that construction most favorable to the insured will be adopted. Mutual Life Ins. Co. [of New York] v. Hurni [Packing] Co., 263 U. S., 167, 174, 44 S. Ct., 90, 68 L. Ed., 235; Stipcich v. [Metropolitan Life] Insurance Co., 277 U. S., 311, 322, 48 S. Ct., 512, 72 L. Ed., 895. This canon of construction is both reasonable and just, since the words of the policy are chosen by the insurance company; but it furnishes no warrant for avoiding hard consequences by importing into a contract an ambiguity which otherwise would not exist, or, under the guise of construction, by forcing from plain words unusual and unnatural meanings.

“Contracts of insurance, like other contracts, must be construed according to the terms which the parties'have used, to be taken and understood, in the absence of ambiguity, in their plain, ordinary, and popular sense. Imperial Fire Ins. Co. v. Coos County, 151 U. S., 452, 462, 463, 14 S. Ct., 379, 38 L. Ed., 231.”

The court is of the opinion that the construction which it applies to the provisions of the bonds is reasonable and just, and it is arrived at without importing into the contracts any ambiguity which does not exist.

The defendants made a further defense that there was no notice of proof of loss, as required by the terms of the bonds. This defense seems to have been abandoned by counsel in their briefs. , Whether it is or not, the court considers that such defense is not tenable.

Counsel for the defendant, The Fidelity and Casualty Company of New York, in their brief submit a defense that the plaintiff bank failed to use prudence in connection with the transactions here involved. This defense was not pleaded in the defendant’s answer.

In paragraph (B) of the bond of this defendant, it is provided that the loss covered by this paragraph may be “with or without negligence on the part of any of the Employees.” Since the bond itself eliminates negligence of employees of the plaintiff, lack of prudence cannot be considered a defense.

Finally, the court concludes that the defendants are liable to the plaintiff upon the bonds in question and that the motion of the plaintiff for summary judgment should be sustained.

The motions of the defendants for summary judgment will be overruled.

Judgment will be awarded to the plaintiff against each of the defendants in the sum of $15,000 with interest from the 18th day of June, 1951.

An order may be drawn accordingly.


author: Per CURIAM:

text:
    ANDERSON, Plaintiff-Appellant, v. ANDERSON, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22875.
    Decided March 17, 1954.

      George W. Kerr, Corrigan, McMahon & Corrigan, Cleveland, for plaintiff-appellant.
    W. P. Clyne, Cleveland, for defendant-appellee.
   OPINION

Per CURIAM:

This case comes to this Court on questions of law.

On February 29, 1952, a decree of divorce was entered in the common pleas court of Cuyahoga County. The journal entry of the court incorporated a Separation Agreement in which the parties “acknowledged that they did execute the Separation Agreement — and that the same is their free act and deed” before a Notary Public in Cleveland, Cuyahoga County, Ohio, on August 23, 1951. The Separation Agreement contained the following provision:

“9. Should either party be granted a divorce from the other party, the provisions of this agreement shall be submitted to the court and as far as practicable shall be embodied in the decree of divorce.”

The court in its journal entry declared that:

“Said agreement is fair and reasonable and was reached without coercion and the court hereby confirms and approves the same. * * *.”

The divorce petition was filed September 12, 1951, and service was had on defendant by publication and summons with certified copy of the petition mailed to the known address of defendant in Florida.

On January 5, 1953, a motion to modify custody of children was filed in this same action by the plaintiff, Charles E. Anderson appellant here.

On January 10, 1953, motion to show cause and motion “for an order modifying the former order of this court * * *” were filed by the defendant, Mildred Anderson, appellee here.

The trial court overruled the motion of plaintiff appellant and granted the motions of defendant appellee.

In its journal entry of April 13, 1953, it stated inter alia:

“The court finds that the matter of a review of the decree of February 6, 1952 (and the separation agreement incorporated therein by reference) was brought forward by the motion of the plaintiff, and therefore the court has properly reviewed all the provisions contained in the decree and agreement insofar as they concern the support and maintenance of the said minor children. It being doubtful whether a full disclosure of the plaintiff’s financial position was revealed at the time when the decree was granted, the Court has fully reviewed the same upon the hearing of the plaintiff’s and defendant’s motions at this time.

“The Court finds that at the time when the decree was signed adequate provisions were not made for the minor children’s future welfare and education commensurate with plaintiff’s ability and his financial standing. In view of this, the Court further finds that the sum of $200.00 per month heretofore ordered by the Court for the support and maintenance of said minor children is inadequate and that since the original decree the income of the plaintiff has materially increased.

“The Court further finds that the plaintiff at the time of the decree, and now, is possessed of sufficient moneys, funds and income to provide for the creation of a Trust Fund, the principal and income of which" may be used adequately to provide for the college education and future security of the said minor children.”

The findings of the trial court, as stated in the portion of the journal entry set forth above, in our opinion constitutes clear error of law prejudicial to the substantial rights of the plaintiff appellant herein, which requires the reversal of its judgment with respect to the motion to modify, for the reason that the continuing jurisdiction of the court respecting the custody or support of the children is only for the purpose of modifying former orders thereto when substantial changes have taken place in the condition of the parties, which calls for and requires a modification of the former order.

By such determination we indicate no opinion as to whether a modification of the former order in this case should or should not take place. We merely say that if a modification be required it be based upon changed circumstances since the original decree.

14 O. Jur. 545 (Grounds)

Nash v. Nash, 77 Oh Ap 155.

Resort to §2325.02 R. C. is necessary for a judgment, rendered without other service than by publication, to be opened and a defendant allowed in to defend.

We find no prejudicial error with regard to the order on the motion to modify custody of children since we believe the exclusion of the evidence of the former Mrs. Cook proffered by the plaintiff, was proper.

We likewise find no prejudicial error as regards the motion to show cause.

The judgment on the motion of defendant appellee to modify is accordingly reversed and the cause remanded for further proceedings in conformity with this opinion.

Judgment affirmed in part and reversed in part. Exc. Order see journal.

HURD, PJ, KOVACHY, J, SKEEL, J, concur.


author: By LYBARGER, J.

text:
    RICHMAN BROTHERS CO., Plaintiff, v. AMALGAMATED CLOTHING WORKERS OF AMERICA et, Defendants.
    Common Pleas Court, Cuyahoga County.
    No. 641936.
    Decided June 27, 1955.
    Luther Day, Earl W. LeFever, George D. Bonebrake, George H. Rudolph, Jones, Day, Cockley & Reavis, Cleveland, for plaintiff.
    William J. Isaacson, New York City, N. Y„ Smoot & Riemer, Cleveland, for defendants.
   OPINION

By LYBARGER, J.

This cause comes before the court on what the defendants (hereinafter called “Amalgamated”) designate as a "Motion to vacate judgment and dismiss petition,” on the ground that this court lacks jurisdiction of the subject matter of the action.

It will be helpful to review what has happened here and in the federal courts before the filing of the present motion. This action arose in this court October 18, 1952, when The Richman Brothers Company (hereinafter called “Richman”) sought 'to restrain Amalgamated from picketing its stores in Ohio and fifteen other states.

On March 12, 1953,, this court overruled a motion by Amalgamated to dismiss the suit, holding that the National Labor Relations Board did not have jurisdiction over it, and that the state court did.

Amalgamated made an unsuccessful effort to remove the case to the United States District Court, and then asked that court to enjoin Richman from proceeding herein on the ground that the state court lacked jurisdiction over the subject matter of the action. On March 25, 1953, the District Court held that it was prohibited by Section 2283 of the Judicial Code from enjoining this court. This decision was affirmed March 30, 1954, by the United States Court of Appeals for the Sixth Circuit (211 Fed. [2d], 449 [55 O. O. 289]) and by the Supreme Court of the United States on April 4, 1955 (348 U. S., 643 [56 O. O. 249]).

Meanwhile this court heard arguments on Richman’s motion for a temporary restraining order against picketing and granted the same April 20, 1953. (See 51 O. O. 145.) 65 Abs 273.

Coming to a consideration of Amalgamated’s present motion, the court is first confronted by the procedural problem of how to deal with the motion. There has been no judgment of this court, as that term is used in the Revised Code of Ohio. Sec. 2323.01 R. C. says that “a judgment is the final determination of the rights of the parties in action.”

Here an injunction was ordered as a provisional remedy under authority granted in Chapter 2727 R. C. By like token a party may apply to the court to vacate such injunction (§2727.14 R. C.). The court, therefore, will treat Amalgamated’s pleading as a motion to dissolve the temporary restraining order of April 20, 1953, and will entertain such motion because since this court’s original order, the appellate courts of Ohio and the Supreme Court of the United States have handed down decisions which, Amalgamated contends, bear upon the issue here involved.

Amalgamated’s motion also prays that Richman’s petition herein be dismissed on the ground that this court is without jurisdiction. The question of jurisdiction is one which may be raised at any stage of a judicial proceeding. If-jurisdiction is lacking, it is a fatal defect. It is the facts of a case, not merely the words used to describe them, that indicate jurisdiction or the lack of it. Here the facts on which Richman bases its cause are fully set forth in the petition. Further, on the hearing they were brought to the attention of the court. They are reflected in the court’s opinion bearing on the temporary restraining order. It is impossible for the facts to have changed since the granting of the injunction. If, therefore, the court has jurisdiction it should proceed to hear the case on its merits, without further pleading. If it lacks jurisdiction, then without further pleading the cause should be dismissed, to the end that the question at issue may be speedily tested in the appellate courts.

With a view to passing on the issue here involved the court has reviewed the facts that are alleged in the pleadings; that were brought forward by Richman on the hearing in the form of affidavits; that were quoted in the briefs and arguments of counsel, and that are reflected in the opinions of the several courts which have passed on phases of the case.

Richman is a corporation of Ohio engaged in the manufacture and retail sale of wearing apparel, with eighteen stores in fifteen cities of Ohio and fifty-one stores in thirty-one cities of fifteen other states in the United States (plaintiff’s Exhibit 1, page 1). Amalgamated embraces labor unions, composed of clothing workers, which in 1951 inaugurated an effort to organize Richman’s manufacturing employees.

The gist of Richman’s cause of action is the general allegation in paragraph fourteen of its petition: “* * * the defendants are now engaged in carrying forward a conspiracy to cause economic pressure to be directed against plaintiff with the intention and for the purpose and objective of thereby causing plaintiff to force sufficient of its eligible employees to become members of defendant Amalgamated, so that defendant Amalgamated may become the representative of its such employees for the purpose of collective bargaining with plaintiff, regardless of the desires of a majority thereof.”

Richman alleges, and it is sustained by statements in defendant’s Exhibit 1 (the affidavit of George H. Richman), that Amalgamated has caused various Richman’s stores to be picketed “generally by one or two, in some instances by several, in others by many, pickets at each picketed store;” also that there have been “special sporadic picketing demonstrations” in front of individual stores in eleven cities, on which occasions “as many as fifteen to twenty and in some instances more persons,” would mill about in front of a store and so block “the entrance of the picketed store as to divert much of the pedestrian traffic on the sidewalk outwardly from the entrance” (plaintiff’s Exhibit 1, paragraph 18, page 8). At the same time, in neither Richman’s petition, nor its sustaining affidavits, are there allegations of “mass picketing” or “obstructing of the streets,” unless the statement just quoted can be construed as such. The court finds no allegation or proof of the use of force, violence or intimidation.

The federal appellate courts which have dealt with one phase of this case, having a transcript of record before them, have characterized the union effort as “peaceful picketing.” The Court of Appeals for the Sixth Circuit said in passing: “Nor is this a case of mass picketing, threatening of employees, obstructing-streets and highways, or picketing-homes.” See 211 Fed. [2d], 449 [55 O. O. 289].)

The Supreme Court says in the second paragraph of its decision: “Petitioner, an unincorporated association of clothing workers, was responsible for peaceful picketing of a number of respondent’s retail stores * * (See 348 U. S., 643 [56 O. O. 249].)

From the above, the court concludes that in spite of a number of “special, sporadic picketing demonstrations,” it is fair to denominate the actions by Amalgamated as peaceful picketing.

It is Richman’s contention that in the absence of any dispute between it and the union, the conspiracy of Amalgamated is contra to the public policy of Ohio and as an unreasonable restraint of trade is a violation of the Valentine Act, Chapter 1331 R. C.

On the other hand, Amalgamated takes the position that it had a right to engage in the activities above described, but that even if such were not the case Richman’s grievance against the union is within the exclusive jurisdiction of the National Labor Relations Board so that this court is without jurisdiction to entertain it.

Thus there is presented to the court the issue of whether or not, in view of recent appellate decisions, a state court has jurisdiction over this controversy or whether Richman must seek relief from the N. L. R. B.

When this court granted the temporary restraining order April 20, 1953, it held that Amalgamated had violated the public policy and laws of Ohio in that its actions were “for the unlawful purpose of forcing an employer to force * * * unionization of its help * * and that in doing so Amalgamated had “unlawfully injured * * *others in their rights.” The court grounded its opinion on Crosby v. Rath, 136 Oh St 352, 16 O. O. 496, and Anderson v. Brotherhood, 156 Oh St 541, 46 O. O. 460. In so doing the court was correctly interpreting the law in the light of the precedents then prevailing.

At that time the provisions of the National Labor Relations Act, as amended by the Taft-Hartley Act (29 U. S. C. A., Sec. 141, et seq.) were comparatively new and had not been extensively interpreted by the courts. Slowly, however, that process has gone forward, although even today, as Mr. Justice Frankfurter observed in Weber v. Anheuser-Busch, Inc., 348 U. S., 593, “the areas that have been pre-empted by Federal authority and thereby withdrawn from state power are not susceptible of delineation by fixed metes and bounds.” Nevertheless recent decisions have more clearly defined the boundaries between state and federal authority in labor disputes, and the court must take cognizance of them.

Two sections of NLRA as amended, that is, the Labor-Management Relations Act, are brought into focus in the instant case.

Section 7, defining “Rights of Employees,” says: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3).”

Section 8, on “Unfair Labor Practices,” says in part: “(a) It shall be an unfair labor practice for an employer—

“(1) to interfere with, restrain or coerce employees in their exercise of the rights guaranteed in Section 7.

<<* * *

“(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.

U* * *

“(b) It shall be an unfair labor practice for a labor organization or its agents—

“(1) to restrain or coerce (A) employees in the exercise of rights guaranteed in Section 7 * * *

“(2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3) * * *.”

A decision of far-reaching importance in interpreting the sections of N. L. R. A., as amended, here involved is Garner v. Teamsters’ Union, 346 U. S., 485, decided by the Supreme Court on December 14, 1953. The holding of the court is thus summarized by the Supreme Court of Ohio in Grimes & Hauer, Inc., v. Pollock, 163 Oh St 373, 56 O. O. 343:

“* * * a labor union peacefully picketed the premises of an interstate trucking company in Pennsylvania. Such picketing had for its purpose the unionization of the company’s employees. There was no labor dispute between the company and its employees and the company did not object to its employees becoming union members. At the instance of the employer, a Pennsylvania Court of Common Pleas enjoined the picketing as in violation of the State Labor Relations Act. On appeal the Supreme Court of Pennsylvania (373 Pa., 19, 94 A. [2d], 893), although finding that the object of the picketing was to coerce the employer to have its employees join the union, reversed the judgment of the lower court, on the ground that the situation came within the jurisdiction of the National Labor Relations Board to prevent unfair labor practices, and, therefore, state courts were precluded from assuming jurisdiction.” The Garner case did not hold that the state courts were deprived of jurisdiction in every case, since they may still exercise their “historic powers over such traditionally local matters as public safety and order and the use of streets and highways.” (Garner case, supra, page 488.) But it did clearly indicate that since Congress had pre-empted the field of unfair labor practices as defined in N. L. R. A., then the state courts must yield jurisdiction to the National Labor Relations Board in dealing with the unfair practices specified in the act.

The impact of the Garner case has been widespread. This is illustrated by the course of the case of Grimes & Hauer, Inc., v. Pollock in this court and the Court of Appeals for this district in Ohio.

The decision of this court, reported in 51 O. O. 143, held that: (Syllabus) “Picketing with intent of coercing an employer to assist the union in its effort to organize his business is unlawful in purpose and contrary to the public policy of the State of Ohio.” In reaching this conclusion the court relied on Crosby v. Rath, cited above, just as this court did in granting the temporary injunctioin herein.

On November 16, 1953, the Court of Appeals of the 8th District, reviewed the Grimes & Hauer case (115 N. E., [2d], 468) and sustained this court’s order against picketing, holding that the state court had jurisdiction. It quoted with approval from Bean v. Local Union No. 698, 94 Oh Ap 361, 51 OO 153, as follows:

“In the absence of a dispute between employer and employees, or between the union and the employer or employees, a labor union may not engage in organizational picketing, even though peaceful, for the purpose of bringing pressure to bear upon the employer to require his employees to join the union.” (Syllabus.)

After the Supreme Court of the United States handed down the Garner decision, the Court of Appeals granted a rehearing in Grimes & Hauer, Inc., v. Pollock, with the result that it reversed its original holding and decided, on the basis of the Garner case, that the Common Pleas Court of this county lacked jurisdiction because of the provisions of the Taft-Hartley Act. In 54 O. O. 433, the court’s decision is summarized in syllabus 2:

“Where members of a labor union picket plaintiff’s place of business for the purpose of coercing the plaintiff employer to get its employees to join their union, the picketing, even though peaceful and orderly, will not be enjoined by the state courts, since plaintiff’s complaint is exclusively within the jurisdiction of the National Labor Relations Board.”

The Grimes & Hauer, Inc., case was taken to the Supreme Court of Ohio, and a decision was there given on May 25, 1955. It is reported in 163 Oh St 372, 56 O. O. 341. In sustaining the Court of Appeals, the Supreme Court held that the Garner case was controlling. The law in the syllabus reads:

“Because of the decision of the Supreme Court of the United States in the case of Garner v. Teamsters, Chauffeurs & Helpers Local No. 776, 346 U. S., 485, where a labor union is in dispute with an employer engaged in interstate commerce over the unionization of the employer’s nonunion employees and the union pickets the business locations of such employer in an orderly and peaceful manner, a state court is without jurisdiction to enjoin the picketing; a controversy of this kind comes within the provisions of the Labor Management Relations Act (Section 151 et seq., Title 29, U. S. Code), as it relates to unfair labor practices; and the employer must, initially at least, pursue the remedy of presenting his grievance to the National Labor Relations Board.”

It is significant that the court had before it the Richman case, which had been decided April 4, 1955, and made this comment (56 O. O. at page 344):

“As to the case of Amalgamated Clothing Workers of America v. Richman Brothers (U. S., April 4, 1955), we adopt the comments of counsel for the defendants herein as follows:

“ ‘The precise issue decided by the United States Supreme Court in this case was that Section 2283 of the Judicial Code bars federal District Courts from enjoining an employer’s prosecution of state court action for injunction against pickketing. However, in so holding, the Supreme Court specifically affirmed that its decisions in Weber v. AnheuserBusch, Inc., 348 U. S., 593, and Garner v. Teamsters’ Union, 346 U. S., 485, had disposed of the issue of state courts’ power in peaceful organizational picketing cases saying:

“ ‘We may assume that the conduct in controversy (peaceful picketing) is subject to whatever relief the Taft-Hartley Act may afford, and, therefore is outside state authority ’ ”

An issue similar to that confronting this court arose in the Harlan Circuit Court of Kentucky and was finally decided by the Court of Appeals. Kentucky’s highest court, May 20, 1955. In National Electric Service Corp. v. District 50, United Mine Workers, reported in 28 Labor Cases 89,095, the circumstances resembled those in the instant case, although differing in some details.

The Circuit Court granted a permanent decree in 1953 enjoining the union from picketing National’s plant, from interfering with its business by means of threat and intimidation and from attempting to coerce its employees to designate the union as their bargaining representative contrary to a provision of a state statute.

With the decision of the Garner case the union moved to set aside the judgment on the ground that it was void for lack of jurisdiction.

The court’s holding is summarized in the syllabus:

“A change in law after the entry of a temporary or permanent injunctive decree is sufficient ground for modification or vacation of the original judgment, not by reason of the void or voidable aspect of the original decree, but through the equity court’s inherent power to correct that which it is no longer equitable to enforce. A court of equity which permanently enjoined a union from picketing an interstate employer’s premises on the ground that the picketing was being conducted for the unlawful purpose of coercing the employer to compel his eligible employees to become members of the picketing union had the right and duty to vacate the permanent injunction upon a showing by the union that under a rule established by the U. S. Supreme Court after entry of the injunction, the union conduct complained of was regulated by the NLRA and was within the exclusive jurisdiction of the NLRB. The equity court’s action was proper, although a year had elapsed from entry of the injunctive decree, where taken within a reasonable time after the rule had been fixed by the U. S. Supreme Court.”

In the last paragraph of its opinion the court said:

“In the case at bar, the trial court stated in its opinion the injunction was issued on the sole ground that the picketing had the unlawful purpose of coercing the employer to compel its eligible employees to become members of the union. The Garner case removed the power to use an injunction based on that ground. The Chancellor, in exercise of his inherent power, was well within his right and duty in setting aside the injunction because of the subsequent change in law.

The court has also reviewed the case of Weber v. Anheuser-Busch, Inc., cited above, and observes that it is authority for the proposition that a state court does not have jurisdiction to enjoin conduct which violates a state statute against restraint of trade but also comes within federal authority under the Taft-Hartley Act.

In his opinion in Amalgamated Clothing Workers v. Richman, cited above, Justice Frankfurter compared the situation in the instant case to that in the Weber case, saying in the first paragraph: “In this (the Richman) case we have to decide the question whether, under similar circumstances, a union has open to it * * * jurisdiction of a Federal district court * 4 This appears to be a studied observation that in general the circumstances of the two cases are similar.

Now the court has in view the contention of Richman’s learned counsel that the instant case may be distinguished from Garner, Grimes & Hauer, Inc., National Electric Service Corp. and Weber, cited above. In this connection the court’s attention has been directed to Radio Officers Union v. Labor Board, 347 U. S., 17, which interprets portions of the National Labor Relations Act and is authority for the proposition that Section 8 (a) (3) of the act “does not outlaw all encouragement or discouragement of membership in labor organizations; only such as is accomplished by discrimination is prohibited.” Counsel concludes that no unfair labor practice under NLRA is alleged or proved in the instant case because there has been ho effort toward discrimination by Richman.

The court observes, however, that when the temporary injunction was granted, before the decision of the Garner case and others mentioned above, this court acted because the picketing was “for the unlawful purpose of forcing an employer to force that unionization of its help which for years that same help has refused at the behest of Amalgamated.”

Sec. 8 (b) (1) of NLRA makes it an unfair labor practice for a union to coerce employees in the exercise of their rights under Sec. 7, among which is the right to join or to refrain from joining a labor organization. The court cannot conceive of the act even under the strictest interpretation, countenancing an effort by a union to do indirectly (coerce the employer to force unionization) what it cannot legally do directly (coerce employees to join the union). Here the question of discrimination would in no way be involved; the term is not used in this subsection of the law.

Commenting on the decision of the Court of Appeals in Grimes & Hauer, Inc., counsel for Richman said: “If it was actually held in the Grimes & Hauer, Inc., case that picketing for the purpose of forcing or attempting to force an employer to force its employees into a union constitutes an unfair labor practice under the proscription of Sec. 8 (b) (2) of NLRA, as amended, such holding is obviously based on a misconception that the Garner case so requires and is erroneous because * * * the Garner case lays down no-such requirement.” Be that as it may, the Ohio Supreme Court has now affirmed the decision in question and apparently interpreted the federal statute to mean the same thing as did the Court of Appeals.

As to National Electrical Service Corp., above cited, Richman’s counsel says that “the concluding paragraph of the opinion (quoted above) in the Kentucky case erroneously enlarges the holding of the Garner case.” The court cannot subscribe to this conclusion, feeling that the opinion goes no further than does that of the Ohio Supreme Court in Grimes & Hauer, Inc.

Every case differs in some particular from every other case. Distinctive features can always be found. However basic principles remain the same and apply to many combinations of fact. The similarities between the facts in the instant case and in the Garner case are striking, and what differences there are are not controlling.

In this case as in Garner, no labor dispute or strike was in progress, and the employer had not objected to its employees joining the union. Here, as in Garner, the union kept pickets at the employers’ places of business “to coerce (Richman) into compelling or influencing their employees to join the union.” Here, as in Garner, “the picketing was peaceful, but (Richman’s) business fell off * * * because * * * (others) refused to cross the picket line.” Here, as in Garner, the Common Pleas Court enjoined the picketing as in violation of state law. In Garner the Supreme Court held (346 U. S., 485, syllabus):

“Petitioner’s grievance was within the jurisdiction of the National Labor Relations Board to prevent unfair labor practices under the Labor Management Relations Act, and was not subject to relief by injunction in the state courts.”

This court is reluctant to disturb so salutary an order as that made when the temporary injunction was granted. Yet the court simply cannot fly in the face of so clear and unequivocal an opinion as that of Grimes & Hauer, Inc., in the appellate courts of Ohio, and the Garner case in the United States Supreme Court.

Had the court had the benefit of these holdings when the question of jurisdiction was first raised it doubtless would have arrived at the same conclusion then that it now reaches. In view of the decisions in the case cited, — handed down since the granting of the temporary restraining order herein, it is inescapable that this court does not have jurisdiction of the subject matter of the action. Richman’s remedy lies with the National Labor Relations Board.

For the above reasons the court dissolves the temporary restaining order of April 20, 1953, and dismisses Richman’s petition. An order based upon this decision may be drawn.

The plaintiff excepts.