author: By McCLELLAND, J.

text:
    CARL, Estate of, In re.
    Probate Court, Franklin County.
    No. 131667.
    Decided June 13, 1950.
    James H Larva, Columbus, for administrator.
    Loren G. Windon, Columbus, Asst. U. S. Atty. for United States Government.
   OPINION

By McCLELLAND, J.

This matter comes before the Court upon the application filed on October 24, 1949, for an order of this Court determining the right to priority of a claim by The United States of America against the estate of the decedent. The matter was submitted to this Court upon an Agreed Statement of Facts, the essential facts of which are that certain monies in the hands of the fiduciary are claimed by The United States of America growing out of the fact that certain portions of wages of the employees of the decedent were withheld in order to pay the income taxes of the decedent and also the Social Security taxes of the employees. In addition thereto, the Government claims interest which, together with their claim, amounts to the sum of $194.79.

On February 12, 1949, the administrator filed a Federal income tax return for the year 1948 for the decedent to the date of the decedent’s death, indicating in that return that the tax liability for that period was in the amount of $275.00, and that the amount that was withheld by the decedent’s employer was $426.50, which has resulted in an over-payment of $151.50. This amount was requested to be refunded to the administrator.

On May 21, 1949, the administrator received a check for said refund of the 1948 Federal income tax in the amount of $151.50, which amount was deposited in the administrator’s account and included in the first account filed September 19, 1949.

When the accounts were finally audited by the Internal Revenue Bureau, it was found that there was still the sum of $51.83 due to the Government, which sum was paid by the administrator.

The claim of The United States Government as filed with the administrator is as follows:

Income Tax of Employees withheld by decedent------$ 24.47
Social Security Tax of Employees withheld by decedent 12.28
Social Security Tax of decedent-------------------- 8.46
Deficiency and interest on 1947 income tax of decedent 112.58
Deficiency on 1948 income tax of decedent (return filed by administrator)------------------------- 37.00
Total______$194.97

Section 191, Title No. 31, United States Code is as follows:

“Whenever any person indebted to the United States is insolvent, or whenever the estate of any deceased debtor, in the hands of the executors or administrators, is insufficient to pay all the debts from the deceased, the debts due to the United States shall be first satisfied; and the priority established shall extend as well to cases in which a debtor, not having sufficient property to pay all his debts, makes a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed or absent debtor áre attached by process of law, as to cases in which an act of bankruptcy is committed.’’

Section 192 of the same Title is also as follows:

“Every executor, administrator, or assignee, or other person, who pays any debt due by the person or estate from whom or for which he acts, before he satisfies and pays the debts due to the United States from such person or estate, shall become answerable in his own person and estate for the debts so due to the United States, or for so much thereof as may remain due and unpaid.”

The Social Security law provides that when a portion of the employees wages are withheld by the employer, that fund constitutes a trust fund. An examination of the bank account of the decedent disclosed that after the employees of the decedent respectively were paid and a certain portion of their wages withheld, that withheld portion still remained in the general bank accounts of the decedent. The bank accounts disclose that at various times the account was so low in amount that it is apparent that the decedent commingled the trust funds with his own funds.

The author of the article in 26 Ruling Case Law, page 1358, Section 221, uses the following language:

The administrator, after analyzing the bank account of the decedent and applying the principle hereinbefore set forth, determined that the $51.83 constituted a special fund withheld for the United States and therefore paid the amount to the Collector of Internal Revenue.

We have hereinbefore stated that upon an examination of the return made by the fiduciary it was found by the Federal office that there was an over-payment of $151.50, which amount, as hereinbefore stated, was paid to the administrator. Facts developed subsequently disclosed that the estate was in fact indebted to the Federal Government at that time in an amount in excess of the amount of the refund, and, had the facts been known when the refund was paid, such a refund would not have been made.

As we have hereinbefore stated, when the employer withheld certain funds from his employees in order to pay the income taxes and the Social Security tax, the amount withheld immediately became a trust fund in the hands of the decedent, and, being a trust fund, the decedent could not change the character of same because its character was specified by the statute. When the $151.50 was returned it did not lose its character as being impressed with a trust, as it was paid under a mistake of fact.

It is therefore the holding of the Court that the administrator has in his hands the sum of $151.50 which is impressed with a trust for the benefit of the United States of America.

The decedent died intestate, leaving as his only heir a minor child. The minor child under §10509-54 GC, is entitled to an exemption of twenty percent of the gross estate, but in no event more than $1000.00. Inasmuch as the inventory of the estate was more than $5000.00 his exemption is fixed in the amount of $1000.00. The appraisers also set off to this minor child for a year’s support the sum of $1000.00. The question then is presented as to whether or not the claims of the United States Government are prior to the claims of the minor child for the exemption and for his year’s support.

This Court has made a searching investigation in order to find some case which decides this question. The only one which this Court has been able to find is Postmaster v. Robbins, reported in 19 Federal Case No. 11314. This decision was by the Circuit Court of Maine in its December term 1829, the syllabus of which is as follows:

“The act of congress of March 3, 1797 (1 Stat. 512) giving to debts due to the United States a priority over all other debts due from a deceased debtor, does not entitle them to receive their debt from the administrator prior to his payment of the allowance to the widow, made by the judge of probate under the state law regulating the descent and distribution of intestate estates.”

In our opinion the above mentioned decision was the construction of a statute which is in words almost identical with the statute now in existence, being Section 191 of Title 31 of The United States Code hereinbefore quoted. Certain language therein' is significant as follows:

“to pay all the debts due from the deceased.”

This Court is impelled to quote as follows from the foregoing decision. The Court uses the following language:

“The paramount authority of the laws of the United States will give to their debts a precedence before any debts privileged by the laws of the state. But the payments shown in the plea, with the exception of that for the expenses of the last sickness, can in no proper sense be called debts due from the deceased. The expenses of last sickness are named in the account in a general charge with the funeral expenses, so that it is impossible to separate them, and say what proportion of the whole was for one, and what for the other. So far as this item includes the expenses of the last sickness, it is clearly a debt due from the deceased, and must stand, in point of privilege, after that due to the United States. So far as it is composed of funeral charges, it is not a debt due from the deceased, but more properly a charge on the administrator. The statute of Maine does indeed seem to contemplate funeral expenses as a debt due from the deceased, and assigns it a privilege in the same grade with taxes and debts due to the state. I do not mean to question the competency of the legislature to assign to this claim against the estate of a deceased person any rank or privilege which may seem just; but it appears too clear to admit of controversy, that a man cannot contract a debt after he is dead. In the nature of things, funeral expenses are a charge on the estate in the hands of the administrator, and stand in the same privilege with other charges of administration. But this point does not necessarily arise in the present case, as it appears from the plea that the whole estate which has come into the hands of the administrator has been exhausted by the payment of the allowance decreed to the widow, and the ordinary charges of administration.”
“The important point in the case is, whether the priority established by the laws of the United States attaches to the estate in the hands of the administrator, so that their debt must be paid before the allowance, decreed by the judge of probate, to the widow, the administrator having notice of their demand before the payment is made. This is maintained for the plaintiff, and denied for the defendant. The suit is in the name of the postmaster-general, but he sues merely as trustee for the United States. The debt is properly their debt, and the recovery would be exclusively for their benefit, and it was not disputed at the argument that this debt has all the privileges that it would have if the suit were in the name of the United States. In support of this claim, it is contended that the word “estate,” in the statute, is in-ended to comprehend the whole property of which the deceased debtor is possessed at the time of his death, and that the priority attaches to the whole. Several decisions have been made on the construction of the priority acts, but no one of them has presented these statutes in the precise aspect that is exhibited by this case. In every instance it has been a contest between the United States and another creditor. In these cases it has been decided that the priority given by the law does not create a lien on the debtor’s estate, but merely makes the debt of the United States a privileged debt against the general assets of the debtor in the hands of his assignees or administrator, and rendering them personally liable, provided any other debt is paid before that due to the United States. * * * If the statute does not create a lien, it would seem it will not remove or supersede an existing lien, and this opinion is strongly intimated in the last case (Conrad v. Atlantic Ins. Co., 1 Pet [26 U. S.] 386) in which these acts have been brought to the notice of the supreme court.”

After discussing that phase of the matter a little further, the Court then uses the following language:

“But however this may be, the case may well be decided on narrower grounds. The language of the act of the United States is, 'when the estate óf the deceased is insufficient to pay all the debts due from the deceased, the debt due to the United States shall be first paid,’ giving a priority to the debt due to the United States over all other debts. It is clear, from this language, that the statute looks at no other charge on the estate of a deceased debtor than debts properly so called. The United States are satisfied in giving a priority to their claim on the estate over all other debts. The allowance to the widow is no more a debt of the husband than her right of dower. They are both of them charges on the estate, created by the law. They are not created, nor can they be defeated, by any act of his. The law of the United States does not, in its terms, give to debts due to them a priority over charges of this nature. Its words are satisfied by a narrower construction, and to give to it this enlarged operation would be giving it an effect, by interpretation, beyond the strict and proper meaning of its terms. It would also be trenching on the settled and deliberate policy of the state legislation, which has ordained that a part of the property of a deceased insolvent debtor shall be subducted from his estate for the benefit of his wife and minor children, before any part can be reached by creditors. On this construction of the statute, it becomes unnecessary to give an opinion on another point which was raised and discussed at the argument; that is, whether, as the state legislature, under our constitution, has the exclusive power to regulate the descent and distribution of estates, they have not also the paramount authority to determine what part of the estate of a deceased debtor shall be assets in the hands of his personal representative, for the payment of debts.”

We have quoted at length from the foregoing decision for the reason we believe it contains not only a proper construction, but the philosophy underlying the enactment of same.

“ ‘Widow’s allowance’ provided for under the laws of the State of Missouri (revised statute of Missouri, 1919,-105-109) is not a debt due from a decedent within the meaning of No. 3466 of the Revised Statute of the United States, but is a charge against decedent’s estate created by the law of the state, and takes priority in payment over Federal Taxes.” IT 2430, CB 1928, page 72.

“The widow’s allowance provided for under the laws of Colorado and funeral expenses are not debts due from a decedent but are charges against the estate created by the law of the state and have priority in payment over Federal taxes. Expenses incurred by reason of the last illness are debts from a decedent and are junior in order of payment to Federal taxes.” GCM 4217, CB 1928, page 162.

Sec. 10509-54 GC was enacted in 1931, and became effective on January 1, 1932. That same law abolished the vested of cohat right of dower, and the exemption provided for by §10509-54 GC was provided to compensate, at least to a certain extent, for the loss of the vested right of dower.

It is our opinion that the property exempt from administration is not a right of inheritance, but it is a' right growing out of the marriage relation, and, as we have heretofore stated, takes the place of the vested dower right. That right was a right of the wife and came into being immediately upon marriage.. It was an interest which she had in the real estate of her husband, and without any doubt any claims against her husband would not supersede or take priority to her right of dower if that question were ever presented. It follows therefore, that the exemption, property exempt from administration, belongs to the surviving spouse immediately upon the death of his or her spouse, and takes precedence over any claims of the United States by virtue of Section 191 hereinbefore set forth.

We are also of the opinion that the allowance to the widow or to the minor children for a year’s support under the decision in the Robbins case is also prior to any claims of the United States Government.

We now revert to the claim of the United States Government in the light of the foregoing authorities. As we have heretofore stated, the money which was withheld from the employees of the decedent was impressed with a trust for the benefit of the United States Government. When the refund of $151.50 was made to the administrator, it was made under a mistake of fact as to the exact amount which was owed to the United States Government. In our opinion, when this refund was made, it did not lose its character as a trust fund. Being a trust fund it was not a part of the estate of the decedent, as the decedent was only a trustee for same. The rights of the administrator in that case can rise no higher than the rights of his decedent.

It is therefore the finding of the Court that the United States is entitled to the sum of $151.50 from the assets now in the hands of the administrator, and the balance in his hands after deducting such proper charges as may be made against same, shall be paid to the guardian of the minor child and applied upon its allowance for its exemption. An order may be drawn accordingly.


source: Caselaw Access Project

author: By EMMONS, J.

license: Public Domain

text:
    STONE, Plaintiff, v. INDUSTRIAL COMMISSION OF OHIO, Defendant.
    Common Pleas Court, Summit County.
    No. 172724.
    Decided June 1, 1950.
    Richard Nye, Akron, for plaintiff.
    Herbert Duffy, Atty. Genl., T. Vincent Martin, Robert Halterman, Columbus, for defendant.
   OPINION

By EMMONS, J.

In this case Melvin Stone, the plaintiff, is appealing from an order of the Industrial Commission denying him the right to participate in the state insurance fund. A jury being waived by both plaintiff and defendant and trial being had upon the issues involved, the Court finds the following stipulation was made by the parties in the transcript:

“It is hereby stipulated and agreed by and between counsel for the Claimant and counsel for the State Insurance Fund that on February 15, 1947, the Claimant herein, Melvin E. Stone, filed his Form C-l with the Industrial Commission of Ohio, asking for Compensation and Medical Expenses, which application was given Claim No. 1747513 in the files thereof.
“It is further stipulated and agreed that the said application came on for hearing before the Canton District Board of Claims on October 14, 1947, at which time the following order was entered:
“ ‘Claim coming on for hearing upon report of investigation filed September 4, 1947, medical review on folder dated September 22, 1947, and all other proof on file, which matters after being duly and fully considered it is ordered that the claim be allowed.
“ ‘That compensation for temporary total disability be awarded from December 23, 1946, to January 19, 1947, both dates inclusive less the first seven days.
“‘That medical bills be paid as approved.
“ ‘The board further find from proof of record that all disability from which Claimant is suffering as a result of his injury is due to the fact that he had eighty-three and six tenths per cent vision in the left eye previous to the date of injury, and enucleation, and has therefore lost eighty-three and six tenths per cent vision of his left eye.
“ ‘It is therefore ordered that compensation be granted for permanent partial disability for such loss.’
“It is further stipulated and agreed that a copy of the said order was mailed to the Claimant under date of October 22, 1947, and that on October 28, 1947, within the statutory time for so doing, the Employer filed his Application for Reconsideration.
“That thereafter the said Application for Reconsideration came on for hearing before the Industrial Commission and on December 17, 1947, the following order was entered:
“ ‘After further discussion of this claim it is ordered that the Employer’s Application for Reconsideration be granted, and that the order of the Canton Board of October 14, 1947, be and the same is hereby vacated and revoked. It is ordered that this claim be referred to the Canton Board of Claims for further consideration with special attention to the evidence relative to the extent of the Claimant’s uncorrected vision in his left eye at the time of and prior to the injury upon which this claim is based.’
“It is further stipulated and agreed that thereafter the said matter came on for hearing before the Canton District Board of Claims, and on February 25, 1948, the following order was entered:
“ ‘Upon reconsideration of all proof on file it is hereby ordered that the claim be allowed and that compensation for temporary total disability be awarded from December 23, 1946, to January 13, 1947, both dates inclusive, less the first seven days; that medical and hospital bills be paid as approved.
“ ‘The Board finds that at the time of Claimant’s injury, October 10, 1946, the Claimant’s left eye was industrially blind and that he therefore suffered no compensible loss of vision in said left eye. It is ordered that compensation for permanent partial disability for loss of vision in the left eye be and the same hereby is denied.’
“It is further stipulated' that thereafter, to-wit; on March 3, 1948, a copy of the said order was sent to the Claimant by registered mail, and that on March 11, 1948, within the time for so doing, the Claimant filed his Application for Reconsideration, and, further, that on March 12, 1948, the Claimant filed an Application for Rehearing.
“It is further stipulated and agreed that on April 1, 1948, the said' matter came on for hearing before the Industrial Commission and the following order was entered:
“ ‘It appearing that the order of the Canton District Board of Claims at hearing of February 25, 1948, is sustained by proof of record and is not contrary to law, it is therefore ordered that same be affirmed and Claimant’s Application for Reconsideration filed March 12, 1948, be denied. The Commission further finds that said denial is for the reason that the loss of vision of the Claimant’s left eye is neither due to nor the result of the injury upon which this claim is predicated.’
“It is further stipulated and agreed that on April 8, 1948, a motion was filed by the Employer, the Star Drilling Machine Company, and that thereafter, to-wit, on June 24, 1948, the matter came on for hearing before the Industrial Commission and the following order was entered:
“ ‘After further review and discussion of this claim it is ordered that the motion of the Employer filed April 8, 1948, be denied. It is further ordered that this claim be sent to the rehearing section for proceedings upon the Application for Rehearing now on file.’
“It is further stipulated and agreed that thereafter, to-wit, on November 9, 1948, the Industrial Commission granted the Claimant’s Application for Rehearing and appointed a Referee to take testimony herein in accordance with the terms and provisions of §1465-90 GC in accordance with which order the within rehearing is being held.
“It is further stipulated and agreed that on and about October 10, 1946, the Claimant, Melvin Stone, was an employee of the Star Drilling Company which concern was a corporation doing business in Summit County and employing more than three persons regularly in and about the same work. That the said corporation was amenable to and had complied with the Workmen’s Compensation Laws of the State of Ohio by the payment of premiums into the State Fund.
“It is further stipulated and agreed. that the venue and jurisdiction of this matter is Summit County, Ohio.”
“It is stipulated and agreed by and between counsel for the Claimant and counsel for the State Insurance Fund that-the Claimant in this case, Melvin Stone, received an injury-in the course of his employment with the employer named,, the Star Drilling Machine Company, on October 9, 1946, while working on a hammer when compound flew up getting-into his left eye.
“That as a result of such injury he received burn and infection of the left eye resulting in the enucleation of the-said left eye, which enucleation was performed by Doctor-Perry of Akron, Ohio, on or about December 9, 1946.
“It is further stipulated and agreed that temporary total compensation and medical expenses for enucleation of the-left eye was paid by the Commission as heretofore stipulated.”'

In 1932 the plaintiff herein, Melvin Stone, had a cataract-removed from his left eye and thereafter his vision was 2' per cent without glasses and 83.6 with glasses. On November 26, 1940, the claimant became an employee of the Star Drilling-Machine Company until October 9, 1946, when he was injured in the course of and arising out of his employment with the said Star Drilling Machine Company, said injury directly resulting in the enucleation of his left eye.

It is the contention of the Commission that since the claimant had a vision of only 2 per cent without correction by glasses at the time of his injury he was, therefore, in a physical condition where he could not have suffered the loss of at least 25 per cent of his vision, and if such were true the Industrial Commission would have no jurisdiction to make an order from which this appeal could be made, for §1465-80 GC provides in part:

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

The claimant relies upon the fact that prior to his injury the vision in his left eye although 2 per cent without correction was increased by the use of proper glasses to 83.6, and therefore being over 25 per cent of his normal vision of 20/20 the claim was compensable and the Commission had jurisdiction.

Both sides support their contention by relying upon the case of the State ex rel Nastuik v. Industrial Commission of Ohio cited in 145 Oh St 287, in which case the Supreme Court refused a writ in mandamus to compel the Industrial Commission to allow workmen’s compensation for the loss of the sight of an eye through injury sustained in the course of and arising out of Nastuik’s employment where the said employee was industrially blind in that eye before the injury.

This was a four to three decision with Justice Williams writing the majority opinion and Justice Zimmerman the dissenting one.

The facts in this case were that Charles Nastuik was an employee of the Ohio Crankshaft, Inc., on January 7, 1943, and on that day sustained an injury to his right eye in the course of and arising out of his employment; that on February 25,1939, a Dr. Brunner, an eye specialist, made an examination of the claimant’s right eye and found that Nastuik had only a vision of 6 2/3 per cent which was unimproved by any glasses.

In his opinion on page 291 of 145 Oh St Justice Williams made this statement:

“Of course, in determining vision at a given time the Commission must take into consideration the improvement wrought by the use of fitted glasses.”

In the Nastuik case even with glasses the vision that the claimant had in his right eye was of a lesser per cent than was compensable under the Workmen’s Compensation Act, while in the present case Melvin Stone, the employee, had an uncorreeted vision of 2 per cent but a corrected vision with glasses of some 83.6 per cent.

In this day of eye strain it is common knowledge that without glasses many persons whose vision is practically normal with glasses would fall way below the 25 per cent of normal vision without them. Athletes, who are stars, may use contact lenses or well guarded glasses, and but for these would be hopeless in their field of endeavor. The same with doctors, scientists, accountants and peoples of all trades and professions. To say that one who has a normal vision of only 2 per cent but a corrected vision of 83.6 is industrially blind, is an absurdity.

The benefits of science and medicine are meant for the enjoyment of people, and where by a correction through scientific adjustments a person is blessed with greater sensory capabilities, those persons should be recognized for those greater sensory powers rather than to relegate them to an inferior status to which they must readily descend without corrective measures.

This Court is of the opinion that the claimant, Melvin Stone, should be given the advantage of his gains physically by correction, and when the advantage is taken away from him by an injury in the course of and arising out of his employment, he should be compensated.

The Court finds that the Commission had jurisdiction to hear this matter and make their order accordingly, and that such was an appealable order, and being so the Court has jurisdiction to find that the claimant is entitled to participate in the State Insurance Fund.

Journal entry to be prepared to conform to the Court’s finding, saving exceptions to the defendant.


author: By JONES, CJ.

text:
    DALEY v SEARS, ROEBUCK & CO.
    United States District Court, Northern District of Ohio, Eastern Division.
    No. 26591.
    Decided September 16, 1949.
    T. T. Sindell, Sindell & Sindell, Cleveland, for plaintiff.
    Thompson, Hine & Flory, Thos. E. Lipscomb, Cleveland, for defendant.
   OPINION

By JONES, CJ.

This is a removed action for damages for personal injuries. It is alleged that plaintiff was injured when he slipped and fell on the sidewalk, abutting defendant’s store at West 110th Street in Cleveland. It is further alleged that plaintiff’s fall was caused by defendant’s negligence in failing to take steps to reduce the icy condition of the sidewalk which, plaintiff says, was created by the passage of many automobiles between the street and defendant’s parking lot. More particularly the complaint charges that: “* * * said auto traffic in its movements of stopping, starting and skidding over the sidewalk area merging into the driveway at the point herein complained of, caused certain icy ridges and more than usually slippery areas at said point, so that the plaintiff was subjected to a hazard greater than he would have been placed in on any other portion of the easterly sidewalk of West 110th Street.”

Defendant has filed a motion to dismiss on the ground that the complaint does not state a claim upon which relief may be granted.

Plaintiff concedes that the abutting land-owner is not held liable for such injuries when the icy and snow packed condition of the sidewalk is the sole result of the interaction of the elements, but cites several decisions (not Ohio cases) wherein the abutting owners or occupants have been held liable where injuries to pedestrians were caused by the abuttors’ placing snow upon the sidewalk, pouring water on the sidewalk which later froze, and negligently removing snow from the sidewalk. In the case of Bennett v McGoldrick-Sanderson Company, 15 Wash. 2d 130, 129 P. 2d 795, 801, as cited by plaintiff, the Washington Supreme Court held that defendant gasoline station operator was not liable for injuries suffered by plaintiff who fell on the part of the icy sidewalk over which automobiles passed to get to and from the station. Plaintiff subscribes to the dissenting opinion in that case which held, in part, that: “The accumulation of ice upon the driveway, under the evidence, which caused respondent to fall was not solely a natural accumulation due to the elements, but the danger incident thereto was increased by acts for which the appellant alone was responsible.”

There is no allegation that defendant herein illegally or wrongfully used the portion of the sidewalk where plaintiff fell, or for how long the condition had existed, but only that it was being put to “excessive use.”

Plaintiff recognizes that there is little, if any, law to support his theory of liability but contends that “the law on sidewalks and their use by abutting owners must be viewed in our situation in the light of modern selling methods and store operations.”

Defendant cites Steinbeck v. John Hauck Brewing Company, 1916, 7 Oh Ap 18, wherein it was held by the Court of Appeals of Hamilton County that there was no liability on the part of an abutting owner to a person injured by falling upon the ice on the sidewalk, where the ice was formed by natural causes without any fault or act on the owner’s part, even though a city ordinance required removal of snow and ice from sidewalks by abutting owners.

In Turoff v. Richman, 1944, 76 Oh Ap 83, the Court of Appeals of Cuyahoga County held that a landlord was not liable to his tenant for injuries suffered when the tenant slipped and fell on ice which had accumulated over the driveway which other tenents of the apartment house used to gain access to their garages.

In order to establish a case for negligence it must be shown that the defendant owed a legal duty to plaintiff and that defendant breached that duty to plaintiff’s injury. In the instant case plaintiff claims that it was defendant’s duty to remove the “icy ridges” and “unusually slippery areas” from the sidewalk over which automobiles passed going in and out of defendant’s parking lot! It is not alleged that defendant negligently caused the icy ridges or unusually slippery areas to exist on that portion of the sidewalk or for what length of time the condition alleged had existed. Rather, it is clearly alleged that the slippery condition was caused by the passage of automobiles over that area. It is not alleged that the automobile traffic passing over the sidewalk, in response to defendant’s offer of parking space to customers, was wrongful or illegal. The only basis for a duty being owed by defendant to remove the ice, or otherwise reduce the slipperiness of the sidewalk, appears to. be the fact that the sidewalk was being put to “excessive use.”

No cases or legal principles are cited which hold that the use to which this sidewalk was put was excessive or that, even if excessive, such user places a duty to remove ice upon the defendant.

In this view of the matter the complaint, on its face, fails to state a cause of action upon which relief may be granted and defendant’s motion should and must be granted.

DALEY, Appellant, v. SEARS, ROEBUCK & COMPANY, Appellee.

United States Court of Appeals, Sixth Circuit.

No. 11067. Decided April 20, 1950.

Sindell & Sindell, Jack G. Day, Cleveland, for appellant.

Thompson, Hiñe & Flory, Thomas E. Lipscomb, Cleveland, for appellee.

Before ALLEN, McALLISTER and MILLER, Circuit Judges.

OPINION

Per CURIAM.

This cause was heard upon the record, briefs and argument of counsel;

And the Court being of the opinion that the ruling is controlled by Steinbeck v. John Hauck Brewing Co., 7 Oh Ap 18 and Turoff v. Richmond, 76 Oh Ap 83. See also: Den Braven v. Public Service Electric & Gas Co., 115 N. J. L. 543, 181 A. 46; Abar v. Ramsey Motor Service, 195 Minn. 597, 263 N. W. 917; Bennett v. McGoldrick-Sanderson Co., 15 Wash. 2d 130, 142-144, 129 P. 2d 795.

On the authority of said cases and for the reasons stated by the District Judge in his Memorandum Opinion, it is ordered that the Judgment of the District Court be affirmed.


author: By WISEMAN, J:

text:
    SHIVELY, Plaintiff-Appellant, v. SHIVELY et, Defendants-Appellees.
    Ohio Appeals, Second District, Montgomery County.
    No. 2086.
    Decided May 25, 1950.

      E. H. and W. B. Turner, Clinton S. Courson, Dayton, for plaintiff-appellant.
    Irvin Carl Delscamp, Dayton, for Walter O. Shively, defendant-appellee.
    Robert E. Cowden, Dayton, for John H. Shively, Sr., defendant-appellee.
   OPINION

By WISEMAN, J:

This is an appeal on questions of law from the Common Pleas Court of Montgomery County, Ohio, Division of Domestic Relations, in which the court decreed a divorce and alimony to the plaintiff.

Plaintiff-appellant appeals from the judgment for the reason that the court denied the plaintiff the right to an award of alimony out of the defendant’s assigned distributive share of the proceeds of the sale of the residence which was jointly owned by plaintiff and defendant and which was sold in a partition action in the Common Pleas Court of Montgomery County, Ohio.

The defendant,Walter O. Shively, filed a cross-appeal claiming that the alimony awarded the plaintiff is grossly excessive.

With respect to the factual matters both appeals are submitted to this Court on .the separate findings of fact and conclusions of law rendered by the trial court. No bill of exceptions has been filed.

The trial court found that the husband and wife acquired and at the time of the filing of the divorce action each owned the undivided one-half interest in a piece of real estate used as their residence. The husband separated from the wife in 1946. The husband, on December 19, 1947, filed an action in partition in the Common Pleas Court in Montgomery County, Ohio, praying for an order requiring the wife to suffer the sale of her interest therein. That the husband was entitled to an order of partition against the wife was decided by this Court in Shively v. Shively, 54 Abs 527, 88 N. E. (2d) 280. The opinion of this Court on this question was rendered November 23, 1948.

The findings of fact further show that the husband contracted debts and was hopelessly insolvent. The husband’s brother, who was made a party defendant in this divorce action, loaned the husband ten thousand dollars and co-signed his note for an additional ten thousand dollars to pay such debts. As security therefor, in April, 1948, the husband assigned to his brother his distributive share of the partition sale proceeds. This assignment was recorded on January 10, 1949.

On January 17, 1949, the wife filed this action for divorce and alimony on the grounds of gross neglect of duty and extreme cruelty, and specifically described the residence property which was later sold on partition. The defendant filed a cross-petition for divorce on the grounds of gross neglect of duty and extreme cruelty. In this action the wife moved for a temporary injunction to prevent the husband and his assignee from selling the residence property in the partition action. The motion was denied. Thereupon, the wife filed an action in mandamus in the Supreme Court to compel the respondent judge to allow a temporary restraining order in the divorce action restraining the parties in the partition action from proceeding with the sale of the property. This matter was presented to the Supreme Court on demurrer to the petition. The opinion of the Court in that case is reported under the title: State ex rel Shively v. Nicholas, Judge, 151 Oh St 179, 84 N. E. (2d) 918. The court held that a writ of mandamus may be employed to require the exercise of judicial discretion but not to control it. On page 181, in discussing the partition action and the effect of this Court’s final order on appeal, the Court says: .

“In the partition action the relatrix did avail herself of this remedy, and the Court of Appeals affirmed the decree of the Court of Common Pleas. The fact that the relatrix was unsuccessful in that appeal does not entitle her to substitute a writ of mandamus as an indirect means of perfecting a second appeal.
“In the divorce action the only matters presented to the respondent judge are the requests of the relatrix for a temporary restraining order and for temporary alimony. In denying a restraining order the respondent properly observed that the decree ordering the sale in the partition action had been affirmed by the Court of Appeals and had become final. The respondent trial judge hardly could be required or expected to reverse or interfere with a valid judgment of the Court of Appeals.”

After the decision of the Supreme Court was announced in the mandamus action, an order of sale was taken in the partition action. The property was sold in April, 1949. On April 30, 1949 the court in the divorce action issued a temporary restraining order against the Sheriff of Montgomery County, Ohio, restraining him from disbursing any of the proceeds of the sale, except for the payment of costs, until the final determination of this action.

The divorce and alimony action came on to be heard before Honorable Huber A. Berry, Judge of the Common Pleas Court of Shelby County, Ohio, who sat by assignment as a Judge of the Common Pleas Court of Montgomery County, Ohio. His opinion was announced on June 29, 1949. On request of the wife, plaintiff-appellant, the court rendered a separate findings of fact and conclusions of law on August 8, 1949.

The trial court dismissed the defendant’s cross petition and granted a divorce to the plaintiff on the ground of gross neglect of duty and extreme cruelty, and awarded her alimony. No question is raised with respect to granting the divorce to the wife. With respect to the husband’s assigned distributive share in the proceeds of the sale of the residence property which was sold in the partition action the trial court rendered conclusions of law as follows:

“3. This Court has jurisdiction to award the wife alimony out of the husband’s distributive share of the partition sale proceeds as against the husband had there been no valid assignment prior to the issuance of the temporary restraining order.
“4. The assignment by the husband to his brother of the husband’s distributive share of the partition sale proceeds prior to the filing of this action creates intervening rights in the husband’s brother and cuts off and is preferable to the wife’s right to such an award as against the brother, no fraud having been shown in the trial of the cause by the wife.
“5. The Plaintiff, Adele Shively, has no right to alimony out of Walter O. Shively’s distributive share of the proceeds of the sale of the real estate owned by said Walter O. Shively and said Adele Shively, and sold in said partition suit in the Common Pleas Court of Montgomery County, Ohio, as against the Defendant, John H. Shively, Sr.
“7. The assignment by Walter O. Shively to John H. Shively of his distributive share of the proceeds of the sale in the partition suit filed by Walter O. Shively against Adele Shively, being Case No. 98502 in the Common Pleas Court of Montgomery County, Ohio, was made to secure the payment of a valid indebtedness in the amount of $20,000.00 owing by said Walter O. Shively to John H. Shively at the time such assignment was made, and such assignment was without intent, either by Walter O. Shively, the Assignor, or John H. Shively, the Assignee, to defraud the Plaintiff of her right to alimony in Defendant’s property; and such assignment was made prior to the filing of the Plaintiff’s petition in this action and the obtaining of a temporary restraining order against the Defendant from transferring his property.”

The plaintiff-appellant assigns as her first ground of error the refusal of the trial court to restrain the husband and his brother from selling the residence property and evicting her from said property through the medium of the husband’s partition action. This Court held in Shively v. Shively, supra, that the husband may maintain an action in partition against the wife. No appeal was taken from the judgment of this Court. The right to institute and prosecute the action in partition includes the right of the Court to make such orders as will be necessary to carry the action to a complete consummation. The giving of possession to the purchaser, which would require the eviction of the wife, the payment of costs of sale, including compensation to the attorney for the plaintiff for legal services rendered in the partition action, fall in this category.

The granting, or refusal to grant, a restraining order under the facts fell within the sound discretion of the trial court. State ex rel Shively v. Nicholas, Judge, supra. The trial court exercised its discretion by refusing to grant a restraining order at that stage of the proceedings. With respect to this order we find no abuse of discretion. Subsequently, and seasonably, the trial court did grant a temporary order restraining the sheriff from distributing the proceeds of the sale until the final determination of the action for divorce and alimony. This restraining order protected the plaintiff in the event the Court should later find the assignment to the brother to be invalid and, also, found that the plaintiff was entitled to an award of alimony out of the husband’s distributive share of the proceeds of the sale.

The plaintiff-appellant contends for her second assignment of error that the trial court erred in denying the wife’s right to ah award of alimony out of the husband’s interest in the home itself or out of “assigned distributive share of the partition sale proceeds.” Under this assignment of error counsel for appellant urges two propositions:

“Issue I. The prior-attaching jurisdiction in the husband’s action to partition the jointly-owned home did not exclude or bar the trial court from subsequently acquiring the jurisdiction in the wife’s Domestic Relations action to award the wife alimony out of the husband’s undivided interest in the home itself.
“Issue II. Such subsequently acquired jurisdiction in the wife’s Domestic Relations action superseded, prevailed over and rendered nugatory the prior-attaching jurisdiction in the husband’s partition action.”

Appellant contends that from the filing of the action for divorce and alimony the jurisdiction of the court in the partition action was ousted. The question of law raised is of some importance due to the practice of filing a partition action by either the husband or wife against the other before a divorce action is instituted. Counsel for appellant approaches this matter from the viewpoint of conflict of jurisdiction. It is conceded that the general rule is that as between courts of concurrent and co-extensive jurisdiction, the court whose power is first invoked acquires the right to adjudicate upon the whole issue, to the exclusion of all other tribunals. Vol. 11 O. Jur., Page 726, Section 81. But it is claimed that the issue presented here requires the application of the well-established exception to the general rule, which is that the general rule has no application where the powers of the court first acquiring control of the subject of the litigation are so far limited, or defective, as to be unable to afford that relief to the parties to which they are either legally or equitably entitled. Vol. 11 O. Jur., Page 730, Section 83, Vol. 14, Am. Jur., Page 436, Section 243. In support of the last mentioned rule appellant cites numerous cases. In Dwyer v. Garlough, 31 Oh St 158, it was held that a prior assignment for the benefit of creditors does not exclude or bar a subsequent mortgage foreclosure action in the Court of Common Pleas. In that case the court points out that the Probate Court was limited in its remedy in that it could not sell inchoate dower rights, whereas the mortgagee could foreclose since the wife had signed the mortgage. In Robinson v. William, 62 Oh St 401, 57 N. E. 55, a foreclosure in the Common Pleas Court proceedings prevented a sale by assignee in the Probate Court. However, the court points out that the inadequate remedy in the Probate Court was due to the fact that other property was involved in the foreclosure action which was not embraced in the assignment.

In Hatch, Exrx v. Tipton, 131 Oh St 364, 2 N. E. (2d) 875, it was held that a prior partition action would not prevent a subsequent land sale proceeding in the Probate Court by the executrix of one of the co-tenants who died after the partition action had been instituted. Here again the court points out that the land sale proceedings afforded a more complete remedy. The case really turned on the effect of §10510-10 GC, which permits the sale of a fractional interest in a land sale proceeding in the Probate Court and the owners of other fractional interests may be made parties defendant and their interests subjected to a sale. In Stout v. Stout, 82 Oh St 358, 92 N. E. 465, the court held that it is the duty of the personal representative of the decedent to institute a land sale proceeding to pay debts unless the requisite bond is interposed. In Retterer v. Retterer, 20 Abs 393, the court rests its opinion on the duty enjoined on the administratrix to institute a land sale proceeding to pay debts under the provisions of §10510-2 GC, notwithstanding the prior filing of a partition action. See §10510-52 GC. The court, in Allen v Million, 35 Abs 13, 39 N. E. (2d) 880, follows the Retterer case. It has been held that the mere filing of a foreclosure action in a court of Common Pleas, without a showing of more, does not in and of itself oust jurisdiction of the Probate Court in a prior assignment proceedings. Havens v. Horton, 53 Oh St 342, 41 N. E. 253. In Fourman v. Fourman, 20 O. O. 54, Judge Mills of the Common Pleas Court of Montgomery County, Ohio, decided that while an action for divorce and alimony was pending between the husband and wife in the Court of Domestic Relations, a partition suit can be filed in the Court of Common Pleas of the same county making the plaintiff in the divorce case defendant in the partition suit. In that case the court very properly applied the doctrine of lis pendens inasmuch as the property in question was specifically described in the divorce action. In the instant case, the doctrine of lis pendens applies and, therefore, affected the rights of any person dealing with the property in question after the institution of the action for divorce and alimony inasmuch as the action for divorce and alimony specifically described the property sought to be sold in the partition action. No injunctive order was necessary. Cook v. Mozer, 108 Oh St 30, 36, 140 N. E. 590; Railroad Co. v. Brennan, 50 Oh St 589, 34 N. E. 1089; Tolerton v. Williard, 30 Oh St 579; Fletcher v. Fletcher, 15 C. C. 271, and Shafer v. Buckeye State Building and Loan Co., 37 Abs 62, 45 N. E. (2d) 421. However, it is not necessary to apply the doctrine of lis pendens to the rights of the assignee of the husband and no injunctive order against him was necessary for the reason that the assignee of the husband is made a party-defendant to the divorce and alimony action. In Locsaj v. Angelo, the Court of Appeals for Belmont County recently had before it an appeal in a divorce and alimony action and also an appeal in a partition action involving the same parties. The court held that the partition action could be maintained. However, it does not appear that the questions raised herein were presented to the court in that case. That case is now pending in the Supreme Co.urt. It does not follow that because a land sale proceeding in Probate Court supersedes and renders nugatory a partition action in the Common Pleas Court, which was held in Hatch, Exrx. v. Tipton, supra, that a divorce and alimony action supersedes and renders nugatory a partition action filed in the same court.

We now consider the nature of the actions involved and the extent of the jurisdiction of the court in each action. An action for divorce is statutory and not equitable. McPerson v. McPherson, 153 Oh St 82, 91, 90 N. E. (2d) 675; Mark v. Mark, 145 Oh St 301, 308, 61 N. E. (2d) 595, 599. An action for alimony does not invoke the equity powers of the court, but is controlled by statute. In re Cattell, 146 Oh St 112, 119, 64 N. E. (2d) 416; Durham v. Durham, 104 Oh St 7, 9, 135 N. E. 280; Marleau v. Marleau, 95 Oh St 162, 165, 115 N. E. 1009; DeWitt v. DeWitt, 67 Oh St 340, 347, 350, 66 N. E. 136; Owens v. Owens, 85 Oh Ap 414, 88 N. E. (2d) 922; McQuain v. McQuain, 55 Oh Ap 505, 509, 9 N. E. (2d) 893. Manifestly, the trial court in the instant divorce and alimony action exercised a limited jurisdiction, only that given by statute, and could not invoke equity powers.

Although a statutory action in partition is a civil action under the Code, it is equitable in nature. 30 O. Jur., pp. 880, 882, 885. In a partition action the court may invoke the powers of a court of chancery. Wagner v. Armstrong, 93 Oh St 443, 113 N. E. 397; Smith v. Rymkus, 73 Oh Ap 225, 228, 55 N. E. (2d) 676. The Common Pleas Court of Montgomery County, Ohio, in the partition action, exercised general equitable powers. It has been held that where a court of law and a court of equity have concurrent jurisdiction the latter will, in certain instances, prevail over the former. In Dwyer v. Garlough, supra, the court, on page 160, held: “Where a court of law and court of equity have concurrent jurisdictions over the same subject, it frequently happens that the former tribunal, because of inadequate or limited powers, is unable to afford that relief which a party has a right to demand, and which a court of equity is fully competent to give. In such case, a court of equity is clothed with compíete jurisdiction, and if necessary to the full protection of the rights of a party, will enjoin further proceedings in the action at law.”

The jurisdiction of the court first acquiring control over the subject of the litigation will be required to yield to a second action only where the court in the second action has the power to grant all the relief asked in the first suit and some additional remedy, in which its jurisdiction is found to be more adequate and complete. The inability of the court in the divorce and alimony action to exercise the powers of the court of general jurisdiction required in the prosecution of the action in partition is easily recognizable. The dissimilarity of the two actions and the relief sought is apparent. A temporary restraining order was granted restraining the disbursing of the funds in the partition action until the final determination of the divorce and alimony action. This order was wholly effective to protect such rights in the fund as the wife may be given by decree, if any. It is conceivable that upon the final determination of the divorce and alimony action the court may decide not to give the wife any alimony or at least not subject the husband’s interest in the real estate to a charge or a lien for the payment of alimony. The court having found the assignment of the husband’s interest to the brother to be valid the court did not decree alimony to the wife out of this fund.

While we have discussed at length the question of conflict of jurisdiction because it was urged so strongly by counsel for the appellant, we are of the opinion that a real conflict of jurisdiction did not exist. The partition action, and the divorce and alimony action, were filed in the same county and in the same court. The two actions were dissimilar in character, the one statutory and the other equitable in nature. Under §1532 GC, the judge of the Division of Domestic Relations is a judge of the Common Pleas Court of Montgomery County, Ohio. The same court had jurisdiction of both actions. The court had a right to proceed to a sale of the property in the partition action. The court in the divorce and alimony action had a right to and did temporarily enjoin the .distribution of the fund.

We find no basis for the contention that the filing of the divorce and alimony action ousted the jurisdiction of the court in the partition action.

Was the right which the husband had in the proceeds of the sale of the real estate assignable? We think so. In Vol. 3, O. Jur., page 246, Section 3, the rule is stated as follows:

“It may be stated as a general rule that all rights ad rem and in re, vested or contingent, possibilities coupled with an interest, and claims growing out of and adhering to property, both ex contractu and ex delicto, may pass by assignment.”

In Comer et al v. Dodson et al, 22 Oh St 615, the syllabus in part reads as follows:

“Where one of the parties in a proceeding in partition, during the pendency of the case, assigned to several persons specified amounts of his share of the money to be realized from a contemplated sale of the land, and afterward a creditor of the same party obtained judgment against him and levied an execution on his undivided interest in the land, also at the same time proceeded by' cross-petition to subject such interest to the payment of the judgment, and the proceeding in partition resulted in a sale of the land: Held—
“1. The lien acquired by the judgment creditor on the interest of the debtor in the land, was divested by the sale in partition, and his equitable right to that portion of the proceeds of the sale belonging to the debtor, having accrued after a part thereof had been assigned by the debtor, is subordinate to the rights of the assignees, and, in the distribution of the fund, the amount assigned to them must be first paid.”

In Shafer v. Buckeye State Building and Loan Co., 37 Abs 62, 45 N. E. (2d) 421, this Court in following the Comer case, held:

“2. A cotenant in a partition proceeding may, during its pendency, transfer his interest or encumber it, which may not affect the principal purpose of the suit, namely, to apart the land or to sell it, and if it be sold under court order, the rights and priority of those claiming under the cotenant will be transferred to the fund produced by the sale of the cotenant’s share of land.”

See also Ferguson v. Cackler, 4 O. N. P. 392. The trial court found in the instant case that the assignment to the brother was made in good faith and for value, that it was not made for the purpose of defrauding the plaintiff. The assignment was made and recorded in the partition suit prior to the time the divorce action was instituted. The assignment was valid and effectual to bind the husband’s interest in the proceeds of the sale of the real estate.

We now consider the cross-appeal filed by the defendant. For his only assignment of error the defendant claims that the alimony awarded plaintiff is grossly excessive. When a divorce is granted to the wife for the aggression of the husband, she shall be allowed such alimony out of his property as the court deems reasonable and equitable. §§11990 and 11991 GC. 14 O. Jur., page 465. The court should consider the pecuniary circumstances and earning capacity of both parties in fixing the amount of alimony to be allowed. 14 O. Jur., page 476. Broad discretion is allowed the trial court in making an award of alimony and unless the action taken is manifestly unjust and inequitable the award will not be disturbed. The amount of the allowance, in the discretion of the court, may be determined with respect to the necessities of the wife and the financial ability of the husband. The Appellate Court, in reviewing the judgment of the trial court, has the power to review the exercise of judicial discretion by the trial court. McGinnis v. McGinnis, 9 Oh Ap 81; Hathaway v. Hathaway, 3 Abs 228; Wirth v. Wirth, 5 Abs 148; Rodenberg v. Rodenberg, 35 Abs 475, 41 N. E. (2d) 266; Potts v. Potts, 40 Abs 54, 67 N. E. (2d) 326; Mooney v. Mooney, 48 Abs 229, 74 N. E. (2d) 272.

In the instant case the trial court found that the husband, for a period of 19 months after he left the home, contributed twenty dollars per week toward the wife’s support; that the wife had in her possession all of the property owned by the husband, or in which he held- an interest, as follows:

Proceeds in the amount of $434.36 derived from the sale of U. S. Bonds issued in the name of husband and wife

20 shares common stock National Cash Register Company in name of husband.

20 shares common stock in Allied Stores, Inc., in name of husband

20 shares common stock in Coty, Inc., in name of husband

20 shares common stock in Coty, Int., in name of husband

$507.18 in cash withdrawn by the wife from a joint account in Peoples Bank, on or about March 16, 1946

Household furniture and equipment of every kind formerly in the residence occupied by the husband wife

A $2,000.00 life insurance policy issued on the life of the husband in which the wife is designated as beneficiary

The trial court further found that the husband has no other property except his future personal earnings and is indebted in a total amount of $13,500.00.

As heretofore stated, the court found the assignment to the brother of the husband’s distributive share of the proceeds of the sale to be valid and found that the wife was not entitled to alimony out of this fund. The court, in its final order, dissolved the restraining order issued against the sheriff restraining him from distributing the proceeds of the sale. After the appeal was perfected, this Court issued an order against the sheriff restraining him from distributing the proceeds of the sale in the partition action.

No doubt a complete bill of exceptions would have disclosed how and from what source the property was acquired, the value of said property, the age of the parties and their state of health, the husband’s earning power and other facts which the Court may consider in determining an award of alimony. A complete record would have been extremely helpful in determining whether the award was fair and just. Although the findings and the decree are silent on the matter, it is admitted in the pleadings that there are no children. The answer alleges, and it is not denied, that the wife was about fifty-five years of age and the husband about fifty years of age. The husband also alleges in his answer, which is not denied, that he purchased the United States Bonds and the shares of stock in the National Cash Register Company, Allied Stores, Inc., Coty, Inc. and Coty, International; that he purchased with his own money all the household furniture before and after their marriage, which is reasonably worth $1,500.00. The trial court made no finding with respect to these matters. The failure to so find does not deprive the reviewing court of the right to consider such admitted and uncontroverted facts. Under §11329 GC, every material allegation of new matter- in an answer not controverted by the reply shall be taken as true. See Oliver v. Moore, 23 Oh St 473; Reiff v. Mullholland, et al., 65 Oh St 178, 62 N. E. 124; Rothman v. Engel, 97 Oh St 77, 119 N. E. 250.

The award of alimony is as follows:

“It is further ordered that Plaintiff be awarded as and for her alimony from the Defendant herein all stocks, bonds, furniture, household goods and the balance of cash from jointly owned bonds previously sold by Plaintiff, together with the sum of Twenty Four Hundred ($2400.00) Dollars, payable at the rate of One Hundred ($100.00) Dollars per month from the earnings of the Defendant, Walter O. Shively, beginning the first month after the entry granting the divorce and alimony to the Plaintiff in this case becomes effective.”

• Under the decree the wife will receive all the property owned by the husband, or jointly owned, and all money, amounting to approximately $941.54, all shares of stock, household furniture, and in addition is directed to pay the wife $2,400.00 out of his future earnings.

' It will be noted that the statutes (§§11990 and 11991 GC), authorize the court to award such alimony out of the husband’s property as the court deems reasonable and equitable. Formerly, the rule, which is still adhered to in some jurisdictions, was that an award of one-third or one-half of the property of the husband was deemed reasonable and equitable. Vol. 17 Am. Jur., page 469, Section 600. However, the modern trend is to award a much larger share to the wife if the circumstances warrant such larger award. The Ohio cases follow the more liberal rule. In Vol. 27 C. J. S. 970, the general rule, which seems to be the Ohio rule, is stated thus:

“There is no fixed rule for the determination of the amount of alimony; the amount to be awarded depends upon all the relevant circumstances, in the light of which it must be just and reasonable. The determination of the amount, rests in the sound discretion of the Court.”

On page 978 the text is as follows:

“While it has been held that an award of all the husband’s property to the wife is unwarranted, there are cases in which this has been done.”

In the footnote three cases are cited where the whole estate of the husband was awarded to the wife. In Simpson v. Simpson, 201 Ky. 282, 256 S. W. 412, the court held that in no case is the chancellor warranted in taking all the property of the husband as alimony for the wife. Mitchell v. Mitchell, 39 Wash. 431, 81 P. 913, where the wife was sickly and had the care of minor children, all the property being valued at $1,600.00, and where the husband was strong and able-bodied, the court upheld the award of all the property to the wife. In Ramsdell v. Ramsdell, 47 Washington 444, 92 P. 278, where the wife had the care of a minor child, all of the property of the husband of the value of $2,400.00 was awarded to the wife, and this award was not disturbed by the reviewing court.

While it is conceded that there may be circumstances under which it would be reasonable and equitable to award all the property of the husband to the wife as alimony, one member of the Court does not believe that the facts and circumstances in this case justify such award; that the statutes controlling do not authorize the Court to impoverish the husband, or. award alimony as punitive damages. Vol. 27 C. J. S. 970, 971. One member of the Court believes that where there are no minor children involved, and where from the state of the record it may reasonably be found that all the property owned by the husband, or jointly with his wife, was acquired through the husband’s own efforts before and after the marriage, a decree awarding all such property to the wife as alimony, and directing the husband to pay to the wife $2,400.00 in installments out of his future earnings, leaving the husband without any property whatever and with a valid indebtedness of $13,500.00 is neither reasonable, just, nor equitable. The majority of the Court is of opinion that we may not say the award is excessive. The trial judge had the right to make determination as to an equitable award of the property and to consider the most appropriate means of assuring to the plaintiff the full amount of that award. The Court had the right to make an alimony award in a lump sum, payable at once or in installments, which would include support for the plaintiff. There was a disparity of five years in the ages of- these parties. Had the Court made an award for support of $100.00 per month to the plaintiff it would not require many months to equal the total value of the property decreed to the plaintiff. In the light of the fact that the defendant had been improvident and had spent beyond his means and had incurred heavy indebtedness, the trial judge may have concluded that the only safe procedure to assure the payment of a sum to which the plaintiff would clearly be entitled would be by an award of the tangible property which the Court could reach. In the situation thus presented to the trial judge we cannot say that the award in the amount and the form in which it was ordered is excessive.

The judgment will therefore be affirmed and the restraining order heretofore issued against the sheriff- dissolved.

MILLER, PJ, and HORNBECK, J, concur.