author: By CONN, J:

text:
    KAVAS, Plaintiff-Appellee, v. BARRY, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23679.
    Decided May 23, 1956.
    Payer, Bleiweiss & Crow, for plaintiff-appellee.
    Anthony J. Trivison, John M. Drain, for defendant-appellant.
    (CONN, PJ, DEEDS and FESS, JJ, of the Sixth District, sitting by designation in the Eighth District.)
   OPINION

By CONN, J:

Plaintiff brought his action against defendant in the court of common pleas, seeking to recover damages for personal injuries alleged to have been sustained by reason of the negligence of defendant.

In his petition, plaintiff alleged that the defendant was the owner of a two-family dwelling house in the City of Cleveland; that on March 12, 1952, plaintiff, pursuant to the performance of his duties as a window washer, was on a ladder resting upon the outside of the second floor of said house to the rear, when, by reason of the negligence of defendant, the siding and rear porch support fastened thereto came loose, causing plaintiff to fall to the ground; that said siding was rotten and the support for said porch attached thereto was in an unsafe condition, all of which defendant well knew; that plaintiff sustained painful and permanent injuries, incurred medical expenses and lost wages as a direct and proximate consequence of defendant’s negligence, to his damage in the sum of $10,000.00, for which plaintiff prays judgment.

Subsequently, plaintiff’s petition was amended by interlineation, whereby he alleged injuries to his heart and liver and that pre-existing conditions of his heart and liver were aggravated. However, the jury was instructed not to consider any injury to the liver as no evidence of such injury was offered by plaintiff.

Defendant filed an answer and cross-petition, in which he admits ownership of said property and further answered by way of general denial. At the close of the evidence, the court granted plaintiff’s motion for judgment on defendant’s cross-petition.

Plaintiff’s petition contained five separate specifications of negligence on the part of defendant, as the proximate cause of the alleged injuries he sustained, but at the conclusion of all the evidence, in the absence of the jury, counsel for plaintiff informed the court that he wished to withdraw four of the five specifications of negligence and confine his case “solely to the issue of whether or not the defendant voluntarily undertook to repair the porch and failed to do so in a proper manner.”

Thereupon the court concisely restated the issue which would be submitted to the jury, and which plaintiff accepted, as follows:

“Did the defendant voluntarily undertake the repair and, second, having done so, did he do it in such a manner as to be careless under the law, and was that the proximate cause of any injuries sustained by plaintiff.”

The jury returned a verdict for plaintiff in the sum of $10,000.00. Thereafter, judgment was entered on the verdict and in said amount, from which defendant appeals to this court on questions of law.

Defendant relies on a number of errors of the trial court, which we abridge and restate as follows:

1. Plaintiff failed to substantiate the allegations in his petition as to his position at the time of his fall, or as to how the accident occurred, and that the verdict of the jury is against the weight of the evidence.

2. The court erred in its charge to the jury as to right of the plaintiff to be on the premises and as to duty of defendant in making repairs.

3. The court improperly withheld the entire allegations of plaintiff’s petition from the jury.

4. The court erred in failing to direct a verdict for defendant, and particularly in failing to direct such verdict on the contributory negligence of plaintiff as a matter of law.

5. That the verdict of the jury is excessive.

It is undisputed that defendant was the owner of the two-family dwelling house, and that plaintiff sustained some injury when he fell from the porch at the side and towards the rear of said house; that the tenants, desiring to have all the windows washed, except basement windows, arranged with plaintiff, an experienced window washer, to perform the labor; that the said dwelling house was not in good state of repair, particularly the front porch and said side porch; that a week or so before plaintiff was injured, defendant and a workman did some repair work to the side porch, but the evidence is in sharp conflict as to what repair work was done, having particular reference to the railing or banister.

The evidence is also undisputed that plaintiff undertook to perform said labor and had washed several windows, and in order to wash the windows of the upper apartment over the side porch, plaintiff placed his three-extension, 18-foot ladder on the floor of the side porch, and raised it up through a hole in the roof boards of said porch and leaned it against the side of the house.

From this point on, the evidence offered by plaintiff relating to the way and manner plaintiff fell from the porch, is confusing and in material respects conflicting.

There is also a substantial variance as between the allegations of the petition and the testimony of plaintiff. In his petition, plaintiff alleged that he was on the ladder on the outside of the second floor when the accident occurred, but as we shall point out later, plaintiff testified he had finished washing the window and had come down from the ladder.

As a part of plaintiff’s evidence in chief, the wife of the tenant downstairs testified that defendant had fixed the “rail” on the side porch on or “about a week maybe or so” before plaintiff fell off the porch, and that after defendant had worked on the porch, she had used it every day in shaking her rugs.

On cross-examination, this witness testified that the ladder plaintiff used to reach the window over the porch stood on the floor of the porch and leaned against the house; that plaintiff stepped down the ladder to the porch floor and turned to the left between the banister and the ladder; that he had in his hands “things to clean windows with”; that after plaintiff came down the ladder and turned to the left, he touched the banister “and the banister broke down with him.”

This witness further testified on cross-examination, that following plaintiff’s fall, the ladder still remained in its original position on the porch; that plaintiff, after his fall, got up and finished the windows, two in number, on the first floor.

On direct examination, plaintiff testified as to the way he set up his three-section ladder on the side porch, running it through an opening in the porch roof, so as to enable him to wash the upstairs window over the side porch; that after he had finished, he came down the ladder with his “squeegee” in his pocket and a little sponge “I had on the ladder”; that, when he got down, he took the ladders apart, and further said:

“I trying to turn around myself and I hit the railing with the ladder a little bit and all that railing and everything fly down, and I went with my ladder, with them, and I fell on my right side on a railing and ladder.”

Plaintiff further stated that he had finished all the windows before he fell, but later said he washed two windows on the first floor after he was injured.

On cross-examination, plaintiff testified that his ladder was in three sections, each six feet long, making an extension ladder 18 feet long; that he came down the ladder after he washed the window, took the ladders down, “all three together, one on top of the other and put them on my shoulder and trying to walk down from the porch, and I drag with the ladder to the railing.”

Plaintiff testified that he had put the ladders against the wall while he picked up his pail, and further:

“Then what did you do? A. I turned around and tried to walk down and I touched with the ladder the rail and in a minute my balance from the ladder went with them.
“Q. Then did you pick up your ladders after the pail?
“A. I had — I had the ladders on my shoulders already and reaching for the pail.”

It is quite clear from plaintiff’s testimony that he sustained his injuries after he had set the ladder on the porch floor and, while thus placed, he used the ladder to reach the window in the upper apartment, and had come down and re-assembled his ladder, placed it on his shoulder, turned to pick up his pail, lost his balance, “touched” the banister, and then fell, taking the ladder and railing with him to the driveway at the side of the porch.

It also appears that the banister was securely fastened to the porch post but due to decay of the siding, which plaintiff had observed while washing the window, the upper part of the porch frame pulled loose from the side and went down with the porch post, but it does not appear that any defect in the porch floor or banister caused the ladder to fall; or that any portion of the porch lumber struck plaintiff as it fell.

The trial court charged the jury that the plaintiff had the burden of proof to sustain his claims, by a preponderance of the evidence; that the defendant had undertaken to make repairs to said property; second, if you so find, did he do the work in a careless way; and third, was such the direct and proximate cause of plaintiff’s alleged injuries.

The court then charged the jury as follows:

“I say to you as a matter of law, that under the facts in this case that the plaintiff had a right to be on, at and near the premises for the purpose of washing the windows. I further say to you that one who voluntarily undertakes to repair premises which he owns and leases to somebody else is bound to use reasonable and ordinary care and deligence in making such repairs. The failure so to do would render him liable for injuries caused by want of such due care.”

After further charging the jury, that it must determine by a preponderance of the evidence if defendant had undertaken to “make these repairs,” the court said:

“Next, having undertaken it, did he do that in such manner as to leave the premises, that porch that is involved here, in a defective condition and was his failure tiras to do the cause of the fall, if the plaintiff did have such fall? * * *”

Thereafter, the court charged the jury fully on contributory negligence and on assumption of risk.

The determinative issue of fact in this case appears to be, what was the proximate cause of plaintiff’s fall and consequent injuries? As already pointed out, the court in the first instance charged the jury that plaintiff had the burden of proof to show that the alleged negligence of defendant was the direct and proximate cause of plaintiff’s injuries, but immediately following, in two instances, the court stated to the jury that failure of the defendant to use ordinary care in making said repairs would make defendant liable. The court also omitted, as above stated, to bring to the jury’s attention, that plaintiff had the burden of proof on the issue of causal relation.

Moreover, the court omitted to define or explain to the jury the term “proximate cause,” thus providing the jury with a yardstick in its determination of this material fact issue relating to plaintiff’s right to recover in this action.

This court has reached the conclusion that, on the whole record, to which attention has been called, the jury was confused and that its verdict is manifestly against the weight of the evidence and the judgment thereon should be reversed and defendant granted a new trial.

In view of our conclusion and that the case may be retried, we wish to make the following observations:

The record discloses that plaintiff received medical attention immediately following his injury, from a Dr. Walters, who took an x-ray of plaintiff’s chest and put a bandage on him; that he went to see this doctor ten or twelve times; that about a year later, he went to the Cleveland Clinic, as he had trouble breathing, where he remained six weeks. Later he went back a second time for three weeks and still later, he returned to said Clinic a third time for a period of seventeen days.

Plaintiff also testified that he had a Dr. Schur all the time, whom he described as his family doctor.

The records of the Cleveland Clinic were brought in and identified by its Medical Record Librarian, and marked Exhibit A, but were not introduced in evidence.

Neither Dr. Walters nor Dr. Schur were called as witnesses by plaintiff, and the record discloses no reason why this medical testimony was not given to the jury.

However, when the trial opened, plaintiff called as its first witness a Dr. Jerome Frankel, who qualified as a specialist on internal medicine, and who had examined plaintiff about three years after the injury and some months before the trial, and who also had taken from plaintiff a case history, but had not examined the hospital records, nor conferred with the attending physicians. The testimony of Dr. Frankel covered a broad field of physical infirmity, particularly relating to diseases of the heart, lungs, blood pressure, shortness of breath, etc., and was predicated only upon his personal observations at the time he examined plaintiff and on plaintiff’s case history.

Furthermore, Dr. Frankel testified in an argumentative fashion in support of his opinion, which in effect permitted plaintiff to cross-examine his own witness and to use this testimony as a means of presenting to the jury the soundness of the conclusion of plaintiff’s expert witness before the credibility of that conclusion had been attacked by cross-examination by opposing counsel.

Where a medical expert answers a hypothetical question based upon testimony properly admitted, such witness is permitted to give his reasons by way of explanation of his answer, but not to the extent as in the instant case. Fox v. Industrial Comm., 162 Oh St 569; Nelson v. Industrial Comm., 150 Oh St 1.

We observe further, that the court in its charge omitted to instruct the jury that it was incumbent on plaintiff to establish the premise included in the hypothetical question by a preponderance of the evidence, and further that expert testimony is entitled to just such weight as the jury deems it is entitled to.

Haas v. Kundtz, 94 Oh St 238; 39 O. Jur., Sec. 290, 993.

However, in the absence of objection on the part of defendant, or a request for further instructions by him, the error is nonprejudicial

We have considered the remaining assignments of error and have reached the conclusion that they were not prejudicially erroneous and should not be sustained.

Cause remanded to the common pleas court for a new trial, costs to abide final judgment.

DEEDS and FESS, JJ, concur.


source: Caselaw Access Project

author: By THE COURT.

license: Public Domain

text:
    AID INVESTMENT & DISCOUNT, INC., Plaintiff-Appellee, v. BAKER et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 5255.
    Decided April 6, 1955.
    Rowe, Dunkle & Davis, Columbus, for plaintiff-appellee
    Jack M. Parrish, Columbus, for defendant-appellant, Dorothy Grubb.
   OPINION

By THE COURT.

This is a motion to dismiss the appeal for the reason that the order appealed from is not a final order. The record discloses that the order to which the appeal is directed is one sustaining a demurrer to certain interrogatories. This is not a final order. See Stanley v. Martin, 12 O. C. C. (N. S.) 457.

The motion will be sustained.

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


author: By HUNSICKER, J:

text:
    MAUS, Plaintiff-Appellee, v. NEW YORK, CHICAGO & ST. LOUIS RAILROAD CO., Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23433.
    Decided July 8, 1955.

      Bernsteen, Bernsteen & Gaines, for plaintiff-appellee.
    Donald W. Hornbeck, for defendant-appellant.
    (STEVENS, PJ, HUNSICKER and DOYLE, JJ, of the Ninth District, sitting by designation in the Eighth District.)
   OPINION

By HUNSICKER, J:

John R. Maus, the appellee, was an employee of the appellant, The New York, Chicago & St. Louis Railroad Company (herein called the Nickle Plate), on February 24, 1953, when he was injured while working for the railroad, in an area known as the “scrap yard.”

The injury occurred at night, at a time when John R. Maus was required to operate a derail switch. In the course of going to the location of this switch, he slipped on some loose gravel, which was on the side of a small depression near the switch handle. Maus suffered injury to his back, his left knee, and his left knee joint.

The case was tried to a jury, and a verdict in the sum of $35,000 was returned in favor of the appellee, Maus.

It is from the judgment returned on this verdict that an appeal on questions of law is brought to this court for review.

In our consideration of this case, we deem only one matter necessary to discuss in this opinion. Our study of the assignments of error, the oriefs, the bill of exceptions and the exhibits, discloses that no error of a prejudicial nature intervened herein, unless it was error for the trial court to refuse to give a written requested charge before oral argument to the jury. This charge is as follows:

“I charge you as a matter of law that by virtue of the Internal Revenue Act of 1954, any amount received by the plaintiff as compensation for personal injuries is exempt from Federal Income taxation, and you must take this fact in consideration in arriving at the amount of your verdict in this case.”

If this written charge before argument is “a correct statement of the law, pertinent to one or more issues and applicable to evidence adduced in the case,” a mandatory duty devolved upon the trial court to give it to the jury. Sec. 2315.01 R. C.; Washington Fidelity National Ins. Co. v. Herbert, 125 Oh St 591; Bradley v. Mansfield Rapid Transit, Inc., 154 Oh St 154; Pickering v. Cirell, 163 Oh St 1.

In the case of Pickering v. Cirell, 163 Oh St 1, the court, at page 4, said:

“Instructions to a jury should bring into view the issues in a case and show how the jury should apply the evidence in the various aspects developed at the trial and should state clearly and concisely the issues of fact and the principles of law necessary to enable it to accomplish the purpose desired.”

Even though we assume that the charge as requested herein is an accurate statement of the law on the subject that a judgment for personal injuries is not considered income within the terms of the Federal Internal Revenue Act of 1954, yet we must consider whether this subject is “pertinent to one or more of the issues and applicable to evidence adduced.”

The Court of Appeals for this (Eighth) District, on a matter bearing some relationship to the instant ease, said:

“1. Where in a jury trial of a personal injury suit for damages, counsel for defendant in final argument states that any verdict awarded would be tax free, such remark, though improper, is waived upon failure of plaintiff to object at the time and request the court to instruct the jury to disregard the same.” (Emphasis ours.)

Pfister v. City of Cleveland, etc., 96 Oh Ap 185.

The subject discussed in this opinion is relatively new, and few courts of last resort have passed on the propriety of such a charge. See: Margevich v. Chicago & N. W. Ry. Co., 116 N. E. 2d 914; O’Donnell v. Great Northern Ry. Co., 109 Fed. Supp. 590; Dempsey v. Thompson, 251 S. W. 2d 42; and 9 A. L. R. 2d 318, et seq.

In the trial of actions under the Federal Employers’ Liability Act by an employee of the railroad for an injury received while in the course of his employment, a proper instruction permits the jury to assess, in addition to loss of wages, damages for pain, suffering and mental anguish. Kansas City Southern Ry. Co. v. Leslie, Admr., 238 U. S. 599, 59 L. Ed. 1478; Chesapeake & Ohio Ry. Co. v. Carnahan, 241 U. S. 241, 36 S. Ct. 594, 60 L. Ed. 979.

To permit an instruction, as requested herein, there should be an inquiry as to the amount allowed for actual loss of wages plus probable future loss of earnings, for, as to those matters, the injured person, if he had not been injured and had he continued to work, would have paid income taxes on all of his earnings. On the amount awarded for pain, suffering and mental anguish, no reasonable person would expect to pay or be assessed for income taxes.

The result of several such inquiries would so complicate the trial of a personal injury action into an intricate discussion of tax and non-tax liabilities, and so confuse the ordinary jury with technical tax questions as to defeat the purpose of a trial.

In the case of Bradley v. Mansfield Rapid Transit, Inc., 154 Oh St 154, at p. 168, the court said:

“* * * where an accurate statement of law is embodied in a timely requested written charge and such charge is pertinent to issues raised and applicable to the particular state of facts to which it is intended to apply, a mandatory duty devolves upon the court to give it in the form tendered.” (Emphasis ours.)

The written request to charge, in the instant case, was not pertinent to the issues raised, and the judge in the trial court did not commit prejudicial error when he refused to give such charge.

We find no error of a prejudicial nature in the within cause, and the judgment should therefore be affirmed.

Judgment affirmed.

STEVENS, PJ, DOYLE, J, concur.


text:
    STATE, Plaintiff-Appellee, v. HUPMAN, Defendant-Appellant. STATE, Plaintiff-Appellee, v. McGILL, Defendant-Appellant. STATE, Plaintiff-Appellee, v. THAMEL, Defendant-Appellant. STATE, Plaintiff-Appellee, v. HUPMAN, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    Nos. 5159, 5160, 5161 and 5162.
    Decided September 10, 1954.
    Frank H. Kearns, Pros. Atty., Lawrence A. Ramey, Earl W. Allison, Asst. Pros. Atty., Columbus, for plaintiff-appellee. -
    J. Paul Prear, Dayton, for defendants-appellants.
   OPINION

By THE COURT.

Submitted on motions of the plaintiff-appellee seeking orders dismissing the appeals on law and fact for the reason that there is no authority for this Court to entertain such appeals. The judgments appealed from are ones of convicting and sentencing the defendants-appellants for refusing to testify before a committee of the General Assembly of Ohio, in violation of §12845 GC. Since these are criminál proceedings, they are not chancery cases and such appeals may not be maintained. State v. Rickman, 23 Abs 207; State v. Walls, 27 Abs 545; 2 Ohio Jur. (2d) 693.

The motions will be sustained but the cases will be retained for determination on questions of law. The appellants will be granted leave to perfect said appeals in accordance with Supplement to Rule VII of this Court.

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


author: By THE COURT. By MILLER, PJ.

text:
    KENILWORTH MANUFACTURING COMPANY, Plaintiff-Appellant, v. SHARWELL TOBACCO COMPANY, etc., Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5317.
    Decided August 26, 1955.
    Robins, Metcalf & Alton, Columbus, for plaintiff-appellant.
    Isadore Topper, R. Brooke Alloway, Columbus, for defendant-appellee.
   OPINION

By THE COURT.

The defendant-appellee has filed two motions in which the following relief is sought:

1. An order dismissing the appeal as one on question of law and fact, for the reason that the action is not a chancery suit but an action at law; and for the further reason that the appellant has failed to file an appeal bond within the time required for the filing of a notice of appeal.

2. An order to require the plaintiff-appellant to furnish additional security for costs herein for the reason that the plaintiff-appellant is not a resident of Franklin County or the State of Ohio and the security heretofore furnished is not adequate.

The record discloses that the action is one upon an account and therefore it is not a chancery case. It further appears that no appeal bond has been filed and the time for such filing has now passed.

The first branch of the motion will be sustained but the case will be retained for determination on questions of law only and the appellant will be granted leave to perfect such an appeal in accordance with Supplement to Rule VII of this Court.

Next, considering the second branch of the motion, it appears that the plaintiff-appellant is a nonresident as alleged and that only the sum of $25.00 has been deposited as security for court costs. This appears to be inadequate and the same will be ordered increased by the sum of $275.00. The appellant will be granted five days from the date of the entry journalizing this decision in which to comply with this order.

Decided February 2, 1956.

Robins, Metcalf & Alton, Jack R. Alton, of Counsel, Columbus, for plaintiff-appellant.

Isadore Topper, R. Brooke Alloway, Columbus, for defendant-appellee.

MILLER, PJ, HORNBECK, J, concur.

WISEMAN, J, not participating

No. 5317.

(FESS, J, of the Sixth District, sitting by designation in the Second District.)

OPINION

By MILLER, PJ.

This is a law appeal from a judgment of the Common Pleas Court rendered upon the verdict of a jury. The action is one upon an account brought in the short form, for merchandise sold and delivered. The defense was a general denial. The evidence offered by the plaintiff, if accredited, was sufficient to establish an outright sale of the merchandise to the defendant. On the other hand, the defendant offered substantial evidence that no sale was intended; that the merchandise was placed with the defendant on a consignment basis and was not to be paid for until sold. The plaintiff is seeking payment for the unsold merchandise. The Court charged the jury on the issue presented as follows:

“Now, the issue in this case is very simple, was there a sale, an outright sale? If there was, then the defendant is owing to the plaintiff the amount asked for in the petition. If it was a conditional sale, that is, if it was consigned to be paid for only if sold by the defendant, then the plaintiff is not entitled to recover anything, except what has been sold, what was sold, and the only evidence in this case is that payments were made for all the items which were sold. So, as I say, the issue is simply was there an outright sale or was it as Mr. Sharwell contends, a conditional sale, a consignment of merchandise to be sold by him and paid for by him if sold, and if not, then the merchandise was to remain the property of the plaintiff.
“Now, it is for you to determine that issue, and if you find that the plaintiff has failed to prove that it was an outright sale, then you will bring in a verdict for the defendant; otherwise, you bring in a verdict for the plaintiff.”

At the conclusion of the charge counsel for the plaintiff requested the Court to charge the jury further with respect to §1315.20 R. C. The Court refused to comply with this request which the appellant urges was prejudicial error. An examination of the cited section reveals that it is prefaced by the words,

“Unless a different intention appears, the following are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer: * * *.”

Here the intention of the parties appears to be clear if the evidence of either of them is believed; hence, the statute can have no application. If credence is given to the evidence offered by the plaintiff the transaction constituted an outright sale and the time of passing of title to the property is not material since it is admitted that the defendant accepted delivery of the goods. On the other hand, if that of the defendant were accepted, title to the property never passed, and the plaintiff failed to sustain the burden of proof. The evidence offered by the defense is well epitomized by Mr. Sharwell, who testified in behalf of the defendant at page 44 of the record that Mr. Litsky, the agent for the plaintiff, told him while endeavoring to get the order, “What have you got to lose, * * * if you don’t sell them, they belong to me.” The appellant is urging that the jury should have been instructed with reference to the “sale and return” of merchandise in accord with §1315.20 R. C. We find nothing in the record which indicates that the merchandise sold was on a “sale or return” basis. The factual question was resolved in favor of the defendant. The verdict is sustained by substantial evidence and it therefore may not be said that it is against the manifest weight of the same as urged by the appellant.

We find none of the errors assigned well taken and therefore affirm the judgment.

HORNBECK and FES'S, JJ, concur.


text:
    GEORGE, Plaintiff-Appellee, v. COLUMBUS (City), Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5388.
    Decided December 2, 1955.
    Jesse G. Dickinson, Edmund B. Paxton, Columbus, for plaintiffappellee.
    Chalmers P. Wylie, City Atty., John W. E, Bowen, Asst City Atty., Columbus, for defendant-appellant.
   OPINION

By THE COURT.

Submitted on motion of the plaintiff-appellee seeking an order dismissing the appeal for the reason that the order appealed from is not a final one.

The record reveals that the order to which the appeal is directed sets aside a verdict of the jury in favor of the defendant and grants a new trial. Counsel for the defendant urges that the appeal is based upon prejudicial error committed by the trial court in overruling its motion for a directed verdict at the conclusion of all of the evidence before submitting the case to the jury. The defendant also contends the Court abused its discretion in sustaining the motion for a new trial. It has only recently been held by our Supreme Court that the overruling of a defendant’s motion for a directed verdict, which has been seasonably filed, is a final appealable order which may be prosecuted when a verdict is returned in favor of the defendant and a motion for a new trial is sustained. In the case of Richards v. Industrial Commission, 163 Oh St 439, syllabus 1, it is provided:

“Where in the course of a trial the defendant appropriately moves for a directed verdict, which motion or motions are overruled, a verdict is returned for the defendant, and plaintiff’s motion for a new trial is sustained, there emerges from such sequences of events a final appealable order, i. e., the overruling of the defendant’s motion or motions for a directed verdict.”

The plaintiff-appellee urges, however, that the defendant-appellant did not actually move for a directed verdict when it made the following motion after the arguments had been concluded but prior to the submission of the case to the jury:

“The defendant is moving for a directed verdict on behalf of the defendant on the basis of the pleadings and for the reason that no reply was filed in the case of an affirmative defense which appears in the answer.”

Although the motion makes no reference to the evidence, we are of the opinion that it was necessary for the court to consider all of the evidence together with the pleadings in order to pass upon the same. It was therefore in the nature of a demurrer to the evidence admitting all of the proven facts. Since the order overruling the motion is an appealable order we overrule the motion to dismiss and will consider the alleged error of improperly sustaining the motion for a new trial when the case comes before this Court for final determination.

MILLER, PJ, HORNBECK, J, concur.

WISEMAN, J, not participating.


author: By BIRRELL, J.

text:
    DROBA, M. D., Plaintiff, v. BERRY, M. D., Defendant.
    Common Pleas Court, Trumbull County.
    No. 64795.
    Decided December 22, 1955.

      Theodore T. Ivanchak, for plaintiff.
    James Mulcahy, for defendant.
   OPINION

By BIRRELL, J.

The petition for a declaratory judgment requests this Court to determine the validity of a contract of partnership entered into between Plaintiff and Defendant with respect to the following sentence in Section A of the Amended Article XI of said partnership agreement, to-wit:

“Further, Dr. Droba agrees that in lieu of not having made any original capital investment at the initial date of the agreement, he will not practice medicine or surgery for a period of ten (10) years, whether by himself or as a member of a partnership, in said Kinsman, Trumbull County, State of Ohio, or within a radius of thirty (30) miles from said point.”

The Plaintiff, Dr. Droba, on May 24th, 1953 had entered into a partnership agreement with the Defendant, Dr. Berry, for a term of three years. Dr. Berry had established himself in Kinsman, having purchased a large dwelling in which his office was situated. He had already been drafted by the United States Army, and the date , of his entrance into service had been postponed in order to permit him to find some one to carry on his established medical practice in Kinsman. Dr. Droba was completing his internship in a hospital in Erie, Pennsylvania, and was ready to launch into the practice of medicine. Their contract of partnership provided that in the event one of the partners was called into the Armed Forces, the remaining partner should pay the rent of the office space in Defendant’s building, at the rate of three hundred dollars a month, pay all expenses of continuing the partnership, and receive ninety per cent of the profits. Either partner was granted the right, upon ninety days notice, to dissolve the partnership, and if the partnership should be dissolved by either partner Dr. Droba agreed, among other matters, to remove himself from Kinsman as above set forth. When it was learned that Dr. Berry was leaving for the Service, Article XI of the partnership agreement was amended to which Amendment allusion will be made later.

The general rule in matters of this kind is substantially as follows:

“A contract in restraint of trade in which the restraint is partial only, reasonable and not oppressive, and in which a valuable consideration has passed between the parties, is one which the law will enforce.” 11 O. Jur. (3d), §114, p. 353.
“A physician may validly agree to limit or restrict himself in the practice of his profession within certain reasonable limitations of time and territorial area where ancillary to the formation of a partnership.” 41 Amer. Jur. No. 5 p. 136.

The Ohio Courts have repeatedly affirmed the foregoing and applied the same not only to general employment but to contracts of physicians. The rule laid down is as follows:

“All contracts in general restraint of trade are opposed to public policy and void; and those in partial restraint are also illegal, except when founded upon a valuable consideration, and when good reasons appear for entering into the contract. Before such a contract can be enforced, it must appear from the pleadings and proofs; 1. That the restraint is partial; 2. Founded upon a valuable consideration; and 3. That the contract is reasonable and not oppressive. Lange v. Werk, 2 Oh St 520.”

This ruling has ben referred to, emphasized, and approved in the following cases:

Thomas v. Admr. of Miles, 3 Oh St 274, “Reasonable and proper.”

Grasselli v. Louden, 11 Oh St 349 @ p. 357 Quoting: “We cannot see how a better test can be applied to the question, whether reasonable or not, than by considering whether the restraint is such only as to afford a fair protection to the interests of the party in favor of whom it is given, and not so large as to interfere with the interests of the public. Whatever restraint is larger than the necessary protection of the party, can be of no benefit to either; it can only be oppression, and if oppression, it is in the eye of the law unreasonable. Whatever is injurious to the interest of the public is void on the ground of public policy.

Lufkin Rule Co. v. Fringeli, 57 Oh St 596, “Shown to have been reasonably necessary.”

Robey v. Theatre Co., 126 Oh St 473, “Reasonable and not oppressive.”

Briggs v. Butler, 140 Oh St 499, “not unreasonably restrictive upon the right of the employee and does not contravene public policy.”

Ewing v. Davis, 2 C. C. ns 90, affd. 71 Oh St 471, “not unreasonable, nor oppressive, nor against public policy.”

The Paragon oil Co. v. Hall, 7 O. C. C. 240, “Such only as affords a fair protection * * * and not so large as to unnecessarily interfere with the interests of the public.”

Kevil v. Standard Oil Company, 8 O. N. P. 311, “not more extensive than is necessary to enable the party * * * to enjoy the fruits of his contract.”

Harry Livingston Inc. v. Stern, 69 Oh Ap 105 @ p. 108, “It is observed that the radius agreed upon covers its business activity.”

Gates-McDonald Co. v. McQuilkin, 33 Abs 481, “The test generally applied in determining the validity of a restrictive comment is whether or not the restraint is necessary for the protection of the business or good will of the employers and if so, whether it imposes on the employee any greater restraint than reasonably necessary to secure to the business of the employer or the good will thereof such protection.”

Dance Studios v. Witter, 62 Abs 17 (a veritable mine of references), “The Courts must consider whether said restraint is reasonable as to (1) the employer, (2) the employe, and (3) the public.”

Hubman Supply Co. v. Irvin, 67 Abs 119, “Irreparable injury, actual or threatening, must be proved in order to grant injunctive relief.”

That the foregoing is the general rule is clearly adduced from the following quotations:

Williston on Contracts, No. 1636 Vo. 5 p. 4580.

“It is everywhere agreed that in order to be valid a promise imposing a restraint in trade or occupation must be reasonable. The question of reasonableness is for the Court, not the Jury; and in considering what is reasonable, regard must be paid to (a) the question whether the promise is wider than is necessary for the protection of the covenantee in some legitimate interest, (b) the effect of the promise upon the covenantor and (c) the effect upon the public. If the restraint imposed is greater than is necessary for the protection of the covenantee the promise is necessarily invalid.”

And Pomeroy’s Equity Jurisprudence, Vol. 3, No. 934 (c) pp. 687-9:

“As to what constitutes a reasonable restraint it is ordinarily held that each case must be governed by its own peculiar circumstances. Courts no longer fix arbitrary rules as to geographical bounds and time limits beyond which a contract to forbear from competition will not be enforced. * * * Public welfare is first considered, and if it is not involved, and the restraint upon one party is not greater than protection to the other party requires, the contract may be sustained. The question is, whether in the particular circumstances the contract is or is not reasonable.”

It should be noticed that every decided case has placed emphasis upon the “reasonableness” of the restraint and generally the statement is made that the question of reasonableness must be determined upon the peculiar facts of each case.

Limitations as to space have been upheld to the following extent:

One city lot, Grasselli v. Lowden, 11 Oh St 349.

One square, Stephens v. Pahl, 23 O. N. P. NS. 377.

Four squares, Peterson v. Schmidt, 13 O. C. C. 205, 7 O. C. D. 202.

A whole city, Thomas v. Miles, 3 Oh St 274; Morgan v. Perhamus, 36 Oh St 517; Empson v. Bissinger, 8 O. D. Rep. 629; Barnett v. Glober, 8 Abs 75.

A whole county, Lange v. Werk, supra; Ewing v. Davis, 2 O. C. C. N. S 90; Affirmed 71 Oh St 471.

But limitation to a State has been held invalid: Lufkin v. Fringeli, 57 Oh St 596; Paragon Oil Co. v. Hall, 7 O. C. C. 240; Hubman Supply Co. v. Irvin, 67 Abs 119.

Cases generally limiting restrictions as to space are quoted in the following annotations:

98 A. L. R. 963; 52 A. L. R. 1362; 67 A. L. R. 1002; 29 A. L. R. 1331; 58 A. L. R. at p. 157; 20 A. L. R. 841 p. 867; 9 A. L. R. 1456 @ p. 1473.

By reference to the cases cited at 58 A. L. R. it will be noticed that the limitation discussed in the greater portion of them is either within a certain locality or within less than five miles of such center. The limitation as to distance is perhaps lessened by the age of the decisions. Possibly the advent of the automobile has extended the reasonableness of the distances.

The question raised directly in our case is whether the restriction to a distance of thirty miles is unreasonable.

Kinsman is a township five miles square, located in the north-east corner of Trumbull County. A doctor residing in Kinsman would naturally draw his practice from the township and from the surrounding territory closer to Kinsman than to other localities wherein other doctors reside. The nearest doctor to Kinsman on the north is in the Village of Andover, twelve miles north of the Defendant’s residence in Kinsman; to the northeast the nearest doctor is located in Jamestown, eight miles away; to the east the city of Greenville, a busy industrial city which supports numerous doctors and a fine hospital, is only ten miles away, although by improved road the distance is quoted as fourteen miles; to the south-west the village of Cortland is twelve miles away. From these villages and cities doctors may be called to compete for business in the mutual territory between their individual residences and that of the Defendant in Kinsman.

At a slightly greater range of distance to the southwest (21) miles is located the city of Warren, which supports many doctors, three large hospitals, and is surrounded by thickly populated suburban area wherein doctors who practice both inside and outside of the city live. The City of Niles, with several doctors, is twenty-two miles from Kinsman; the City of Girard with other doctors is located approximately twenty-five miles from Kinsman; the Village of Hubbard with several doctors, is located twenty miles south of Kinsman, and the City of Youngstown (population approximately 200,000) with many doctors, physicians, surgeons and specialists, together with numerous hospitals is located twenty-seven miles from Kinsman. The territory surrounding these industrial centers and known as the Mahoning Valley, is a thickly populated and an extremely busy territory, all of which, is located between twenty and thirty miles from Kinsman. To the south and east eighteen miles from Kinsman is the City of Sharon with its suburban cities of Sharpesville and Farrell in the Shenango Valley supporting other doctors and hospitals all within twenty miles of Kinsman. Considering the comparatively immense number of doctors practicing in the territory slightly more than ten miles from the Village of Kinsman, and the tremendous need of doctors, physicians and surgeons by the people living in this highly industralized Mahoning and Shenango River Valley, it would seem that the Defendant neither reasonably nor seriously could claim that these doctors are competing with him for Kinsman Township, nor would these doctors claim that the Defendant living in Kinsman was competing with them for any portion of the industralized territory located within thirty miles of Kinsman. To describe the situation and state the case on which the Defendant must depend for the validity of the thirty mile restriction is sufficient to show its unreasonableness.

It is possible, of course, that practitioners in certain specialized fields of medicine may or might claim that competition would be harmful within thirty or even one hundred miles of each other, where such fields are limited to a few very skilled specialists. It is possible, as shown by the cases above referred to, that in the mercantile world competition may be multiplied and extended by those who have acquired special knowledge of technical methods over a broad territory extending beyond the limits of large cities or counties or even possibly of states. It might be possible in certain skilled instances that thirty miles is not an unreasonable limitation wherein a physician should be restrained from commencing his practice. In this case neither the Plaintiff nor the Defendant claims to be a specialist. Plaintiff was completing his internship in the summer of 1953 when this partnership was formed. His experience in the practice of medicine was limited to two years at the date of dissolution of the partnership. Such experience was in general country practice. It seems impossible that this younger man, after two years only of practice in the locality of the older man, could by any range of imagination compete with the older man at any place within the thirty mile area outside of the immediate territory surrounding the township of Kinsman.

Under all the peculiar circumstances of this case the Court is inclined to the belief that the provisions of the contract restricting the practice of the Plaintiff to points beyond “the radius of thirty miles” from Kinsman is wholly unreasonable, and consequently invalid. This limitation is not divisible. When the terms of the contract itself are not divisible the Court is not permitted to make a new contract for the parties, and under such circumstances the provisions of the contract, in respect to the 30-mile limitation is void.

Gates-McDonald Co. v. McQuilkin, 20 O. O. 88; 33 Abs 481; Lange v. Werk, Supra; Grasselli v. Lowden, supra.

As a declaratory judgment the Court finds that the thirty mile restriction in Article XI of the contract of partnership is unreasonable under the circumstances of this case, and that Plaintiff has no obligation to the Defendant in that respect. A Declaratory Decree may be drawn. The costs may be assessed equally against both Plaintiff and Defendant, this type of action being for the advisory benefit of both parties.


author: By DEEDS, J.

text:
    LYNCH, Admr., Plaintiff-Appellee, v. ROMAS, Defendant-Appellant, and ROMASCO et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 5373.
    Decided March 22, 1956.
    Lynch & Rosenberry, Edward F. Lynch, of Counsel, Columbus, for Administrator, plaintiff-appellee.
    Charles M. Rosenberry, Jr., Columbus, for defendant-appellant, Mary B. Romas.
    Lurie & Gifford, Estel O. Gifford, of Counsel, Columbus, for defendants-appellees, Anthony Romasco and George Romasco.
    (DEEDS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By DEEDS, J.

This appeal on questions of law is from a judgment of the Probate Court of Franklin County in an action by the appellee Edward F. Lynch as administrator, pursuant to §§2123.01 and 2123.02 R. C., seeking a determination of the heirs and their interests in the estate of the decedent, Samuel J. Romas.

The defendant-appellant, Mary B. Romas, claimed and alleged in her answer to the petition of the administrator in the Probate Court that she was the surviving spouse of the decedent by virtue of a common law marriage, and it is conceded that defendants-appellees, Anthony Romasco and George Romasco, are adult sons of the decedent.

In our view of the record now before us for review, the question determinative on this appeal is whether the defendant-appellant, Mary B. Romas, was prohibited from testifying when objection was made by the sons as heirs of the decedent, pursuant to §2317.03 R. C., which section provides, in part, as follows:

“A party shall not testify when the adverse party is the guardian or trustee of either a deaf and dumb or an insane person or of a child of a deceased person, or is an executor, or administrator, or claims or defends as heir, grantee, assignee, devise, or legatee of a deceased person,” ete.

It is not contended that the appellant Mary B. Romas can be considered as coming within any of the exceptions provided in the foregoing section of the Revised Code, but it is urged that she should be excepted from the disqualification, notwithstanding the Legislature did not provide that a person claiming to be the common law surviving spouse should be excepted and therefore be considered competent to testify.

The pertinent sections of the Revised Code pursuant to which the appellee as administrator of the estate of Samuel J. Romas commenced the proceeding and in which the judgment of the Probate Court now before this court for review was entered, are as follows:

“Sec. 2123.01 R. C. When Proceedings to Determine Heirship may be had.
“Whenever property passes by the laws of intestate succession, or under a will to a beneficiary not named in such will, proceedings may be had in the probate court to determine the persons entitled to such property.”
“Sec. 2123.02 R. C. Petition; defendants.
“In a situation described in §2123.01 R. C., the executor or administrator may file in the probate court of the county where the estate is being administered a petition signed by such executor or administrator or his attorney, which petition shall be verified. The surviving spouse and the legatees and devisees, or the heirs and distributees of the decedent, including those whose names are unknown, shall be made parties defendant. The petition shall contain a concise statement of the pertinent facts and shall conclude with a prayer for the determination of the heirs and distributees of such decedent or of the devisees or legatees not named in the will and their respective interests in the estate.”
“Sec. 2123.05 R. C. Finding and Order
“At the time assigned for the hearing of a proceeding set forth under §2123.01 R. C., or at any time to which said hearing may be adjourned, the probate court may hear proof taken by commission, or by witnesses produced in open court, of the facts set forth in the petition, and shall, if satisfied from the evidence, find and adjudge who are or were the heirs or next of kin of the decedent, and entitled by the laws of this state to inherit the estate of the deceased, or the devisees or legatees named or unnamed in the will, which finding and adjudication shall be entered on the journal of the court, which entry, or a certified copy thereof, shall be prima facie evidence of the facts therein found.”

It is the contention of counsel for Mary B. Romas and also the administrator, that the claimed interest of Mary B. Romas, as surviving spouse, is not adverse to the administrator or the estate of the decedent, and also that her claim is not adverse to the interests of the sons of the decedent as heirs of the estate, notwithstanding as the surviving spouse, if established as such, she would deprive the heirs of a substantial portion of the estate.

In support of their contention, the administrator and counsel for Mary B. Romas rely mainly on the announcement of the Probate Court of Franklin County in Eagleson, Admr. v. McKee, et al., decided November 18, 1939, 33 Abs 33, wherein it is stated in the opinion by McClelland, J., as follows:

“At the trial of this case, which consumed a portion of several days, William S. McKee was offered as a witness. Counsel for the daughters of Mrs. McKee objected to the testimony of Mr. McKee, alleging that he was incompetent as a witness by virtue of the provisions of §11495 GC. This question has caused the court a considerable degree of difficulty, and it seems that if the statute were strictly enforced, Mr. McKee would be an incompetent witness. But, upon an examination of the cases in which the validity of a common law marriage was in question, the alleged surviving spouse was permitted to testify. Without going into a discussion of the various authorities cited, we will simply announce our conclusion, and that is this court feels that the alleged surviving spouse is competent to testify as to all facts supporting the various elements necessary to constitute a valid common law marriage. The marriage relationship is not presumed as a matter of law, but it must be proven, and, until it is proven, it is our opinion that the surviving spouse is not precluded from testifying by virtue of the above named statute.
“We therefore hold that Mr. McKee was a competent witness to testify as to all facts tending to support his contention that a valid common law marriage was consummated between the parties.”

The administrator and counsel for Mary B. Romas also emphasize and urge in support of their contention, a decision also rendered by Judge McClelland in the Probate Court of Franklin County, in O’Shaughnessy, Admr. of the Estate of Thomas C. Walsh, deceased, v. Stofft, defendants, decided October 20, 1953, 67 Abs 389.

It should be noted in our view, that the witness Maizie Walsh Stofft whose testimony was sought to be excluded on the ground of her incompetency as a witness in the Walsh estate, supra, was claiming an interest in the estate as the sister of the decedent and therefore as an heir of the decedent, who died intestate.

It is significant in the view of this court that the decision of Judge McClelland in the Probate Court in O’Shaughnessy as administrator of the Walsh estate, supra, followed by a number of years the decision by the same court in Eagleson, Admr. supra, and that in the later decision, the learned Probate Judge made reference to and approved the holding of the Court of Appeals in the case of Brawley, appellant, v. Thomas, Admr., et al., appellees, 82 Oh Ap 400.

The Probate Judge stating in the opinion in O’Shaughnessy, Admr., supra, in reference to the Brawley case, supra, as follows:

“In our examination of the law and the court decisions construing same, we find that the purpose of the statute is to maintain mutuality between the parties. In this case certain persons claim to be heirs of the decedent. One claims to be the sole heir and impliedly the other defendants claim to be heirs of the decedent. Their interests are not adverse to each other. The gist of the action is to determine who can prove that they come within the classification set forth by the statute of descent and distribution. It is our opinion that any heir can testify for the reason that his claim is not adverse to the estate, nor is his claim adverse to any other heir.
“Our attention has been called to the case Brawley, appellant, v. Thomas, Admr. et al., appellees, 82 Oh Ap p. 400, in which case the court held that where the petitioner claims to be the common law wife of the decedent and the adverse parties defend as heirs and administrator of the estate of decedent, the petitioner is incompetent to testify, over objection, as to facts tending to establish the alleged common law marriage. In that case a certain woman claimed to be an heir by virtue of an alleged marriage to the decedent. That claim, if sustained, of course, would reduce the value of the interests distributable to the heirs, and therefore would render the parties adverse to each other. In the present case there is no attempt to reduce the value of the estate. The only question in this estate is to whom or between whom the estate should be distributed. By permitting all the heirs to testify, no one can be injured and we are serving the cardinal purpose of the statute, which is to put all witnesses upon the same basis.”

We do not consider that the later announcement of Judge McClelland of the Probate Court of Franklin County supports the contention of the administrator and counsel for Mary B. Romas that Mary B. Romas making claims as the surviving spouse was not an adverse party to the heirs and the administrator, and therefore was not disqualified from testifying in this proceeding in the Probate Court.

It is stated in the 2nd proposition of the syllabus in Brawley, appellant, v. Thomas, Admr., et al., appellees, supra:

“2. In such a proceeding, where the petitioner claims to be the common law wife of the decedent, and the adverse parties defend as heirs and administrator of the estate of decedent, the petitioner is incompetent to testify, over objection, as to facts tending to establish the alleged common law marriage.”

In the very forceful opinion written by the late Honorable Judge Metcalf in the Brawley case, supra, the question of the adverse interest of one claiming an interest by reason of a common law marriage is ably analyzed with citations and announcements by the courts of last resort in a number of the other States in the nation, in support of the conclusion reached that a party claiming as a common law surviving spouse is not competent to testify over the objection of the heirs. It is considered appropriate therefore to quote quite fully from the opinion of Judge Met-calf in the Brawley case, supra, as follows:

“The trial court in rejecting that testimony relied on the case of In re Estate of Goettge, 32 Abs 620, in the Probate Court of Tuscarawas County, wherein it was held that under §11495 GC, a woman who claims to be the common-law wife of a deceased person, and as such entitled to property owned by him, is incompetent to testify to any facts tending to establish the marriage relation between her and the deceased in a proceeding where such alleged wife is a party.
“In the 1943 Cumulative Supplement to 26 to 43 O. Jur., 4397, in commenting that in a proceeding for appointment as administrator by an alleged common-law widow, petitioner may not testify as to the marriage by reason of §11495 GC, as against the objection of an heir at law of decedent and citing the Goettge case, supra, the statement is made that that case was affirmed by the Court of Appeals, December 11, 1940. However, we have been unable to find the Court of Appéals opinion if it was reported and therefore cannot ascertain whether this particular point was settled, because in that case, as in the instant case, the trial court after ruling out the testimony of the alleged common-law widow stated in substance that this proffered testimony had been considered but without effect.
“In Catlett v. Chestnut, Exr., 107 Fla., 498, 146 So., 241, 91 A. L. R., 212, Paragraph 17 of the A. L. R. headnotes states:
“ ‘A woman claiming a widow’s share in a decedent’s estate is disqualified by interest to testify as to facts establishing her marriage to the decedent, under a statute excluding interested persons from testifying in regard to any transaction with a person since deceased as against his personal representative or persons claiming through him unless testimony as to the transaction is given by the adverse party.’
“In paragraph 18 of the same headnotes, it is said:
“‘An alleged common-law marriage with a person since deceased is a “transaction,” within a statute,’ such as here under consideration.
“The Supreme Court of Kansas, in the case of Shorten v. Judd, 56 Kan., 43, 42 P., 337, 54 AM. St. Rep., 587, reversed the judgment of the lower court, wherein a mother who was united in interest with her son attempted to establish a common law marriage and therefore his legitimacy, because the mother had been allowed to testify as to the common-law contract even though she later in the case renounced any interest in the estate, the court saying on page 47:
“ ‘It would not do to allow her (the alleged common law widow) to experiment with the double claim in behalf of herself and her son until the close of the evidence and then make her incompetent testimony competent for her son by withdrawing her own claim. On account of this error the judgment must be reversed; but, as Mrs. Mott has now disclaimed any interest, she will be a competent witness as to the alleged marriage on the next trial.’ See also, paragraph two of the syllabus.
“It is interesting to note on page 46 of the foregoing case, that it was stated by Martin, C. J.:
“ ‘It is virtually conceded in the briefs of defendant in error John Judd that Sadie Runkle Mott (the alleged common-law widow) was incompetent, under Section 322 of the Code (similar to §11495 GC) to testify as to the transaction or communication with William Judd (the alleged common-law husband) relied on as proof of the marriage; but it is claimed that the error was cured by the renunciation made on her behalf.’
“Under a statute similar to that of Ohio, the Supreme Court of Illinois, in the case of In re Estate of Maher, 210 Ill., 160, 71 N. E., 438, held in the third paragraph of the syllabus:
“ ‘A woman whose claim as being the lawful widow is denied by others having or asserting interests, as heirs, in the estate of her alleged husband, is incompetent to testify to the fact of her marriage in a proceeding in which she seeks, as distributee, a portion of all his personal property, until her status as a widow has been established by the adjudication of a competent court.’
“In discussing that point, in the body of the opinion, the court said on pages 169, 170:
“ ‘The person who in this cause seeks to establish the fact that she was the wife of the deceased at the time of his death, if she testify, is testifying against the heirs of the deceased, and to do that she is incompetent. The theory of the statute is, that as the mouth of the deceased is closed by death, the mouth of the living who asserts a claim against the dead shall be closed by law.’
“The court then pointed out the danger of permitting such testimony and the power that would accrue to one claiming such marital status with a decedent, and said that it is precisely such an evil that the Legislature intended to prevent by the enactment of the statute.
“The majority rule throughout the various jurisdictions is set forth in 28 R. C. L., 514, as follows:
“ ‘It has been held in a number of cases that where a woman claims to have been the wife of a deceased person, and as such to be entitled to property owned by him, she is incompetent to testify to any facts tending to establish the existence of the marriage relation between her and the deceased.’
“This is an adverse proceeding and it is our conclusion that the plaintiff, Mable Brawley, was not a competent witness to testify, over objection, as to facts tending to establish her alleged common-law marriage to the decedent, Ted H. Wolfe, by virtue of §11495 GC, the adverse parties defending not only as administrator but as heirs at law, and none of the exceptions enumerated in that section applying.”

It is also considered by this court that the decision of the Court of Appeals for Richland County in the case of Dibble, appellant, v. Dibble, Admx., et al., appellees, 88 Oh Ap 490, Is also persuasive and must be considered as being highly pertinent in a determination of the issue under consideration here.

It being stated in the syllabus in Dibble v. Dibble, supra:

“1. In an action to determine heirship, wherein the plaintiff claims to be the surviving spouse of the decedent by reason of a common-law marriage, and the adverse parties defend as heirs and administratrix with the will annexed of the decedent’s estate, the plaintiff may not, over the objection of the defending administratrix, testify to facts tending to establish the existence of the claimed common-law marriage. (Sec. 11495 GC.)”

In the opinion in the Dibble case, it is stated:

“The record shows that the evidence in this case is undisputed, leaving only questions of law for decision. The plaintiff offered herself as a witness, but the court, upon objection of Jewell G. Dibble, personally and as administratrix, ruled that she was incompetent to testify by reason of the inhibitions of §11495 GC. Thereupon her testimony was proffered for the record in detail and at length as to the circumstances of her marriage with the decedent. This action is the basis of the first assignment of error and it seems logical to consider it now. No other evidence encompassed by the proffered testimony was produced as to a ceremonial marriage, it being claimed by counsel that none was available.
“The case of Brawley v. Thomas, Admr., 82 Oh Ap 400, 81 N. E. 2nd, 719, cited by appellee Jewell G. Dibble, is in direct point. The syllabus of that case is as follows:
“ T. In a proceeding for determination of heirship (§10509-95, et seq., GC), the petitioner is not entitled to a jury trial.
“ ‘2. In such a proceeding, where the petitioner claims to be the common-law wife of the decedent and the adverse parties defend as heirs and administrator of the estate of decedent, the petitioner is incompetent to testify, over objection, as to facts tending to establish the alleged common law marriage.’
“The facts are similar. A motion to certify the record of that case to the Supreme Court was made and overruled. Appellant contends that decision is wrong under the rule of necessity and by virtue of the pronouncements of the Supreme Court in the case of Smith v. Barrick, 151 Oh St 201, 85 N. E. 2nd, 101. We are not persuaded that the iatter case is in direct point.
“In the case of Markley v. Hudson, 143 Oh St 163, 54 N. E. 2nd, 304, the court at page 169 used this language: ‘Unfortunately, neither of the parties concerned was able to testify, the voice of William T. Markley having been stilled in death and that of Mrs. Markley through mental ineompetency.’
“Possibly a fair inference from this language would be that if Mrs. Markley had not been mentally incompetent she could have testified. However, that question was neither raised nor directly determined by the court.
“In view of the fact that the question was directly raised and decided in the Brawley case, supra, which case the Supreme Court refused to admit, and since the facts in that case are very similar to the facts in the instant case, upon the reasoning contained in that case we are constrained to hold that the plaintiff’s testimony as to the alleged marriage was not competent, and that the trial court did not err in so determining.”

We are therefore impelled from the standpoint of reason and the greater weight of the decisions of the courts to find and determine that the Probate Court was not in error in ruling that Mary B. Romas was incompetent to testify in this proceeding.

Therefore, considering the evidence in the record, excluding the testimony of Mary B. Romas, we find from the testimony of several witnesses that the decedent and Mary B. Romas had lived together for a number of years and were reputed and treated as husband and wife in the community and at social gatherings and also among their relatives, but we are unable to reach the conclusion that the proof attained to that state of being clear and convincing as required by the law of the State as announced by the Supreme Court.

The established rule in this State and also the reasons for the rule were stated by the Supreme Court in In re Estate of Redman: Hiland, appellee, v. State of Ohio, appellant, 135 Oh St 558, as follows:

“By the Court: The sole question presented in this case is whether there was a common-law marriage between the parties. The essential elements of a common-law marriage in this state were announced in the case of Umbenhower v. Labus, 85 Oh St 238, 97 N. E., 832. The following essential requirements for such a marriage are stated in the syllabus of that case:
“ ‘An agreement of marriage in praesenti when made by parties competent to contract, accompanied and followed by cohabitation as husband and wife, they being so treated and reputed in the community and circle in which they move, establishes a valid marriage at common law, and a child of such marriage is legitimate and may inherit from the father.’
“So-called common-law marriage contravenes public policy and should not be accorded any favor, indeed, it is quite generally condemned. It is well settled in Ohio that to establish a common-law marriage, all the essential elements of such a relationship must be shown by clear and convincing evidence. The statutes of Ohio contain definite regulations and requirements and prescribe rigid standards to which applicants for marriage license must conform. While these statutory provisions do not of themselves specifically prohibit marriage without the formalities enumerated by those provisions, such informal marriages are seldom recognized and are held valid by courts only to protect the rights of innocent persons. In the Umbenhower case, supra, the legitmacy of a child was involved and was an important factor in the decision of that case. Even in such cases, the essential element of such marriage must be established by the degree of proof stated.”

The rule was restated by the Supreme Court in Markley et al., Appellees, v. Hudson (Markley) et al., appellants, 143 Oh St 163, appearing in the syllabus as follows:

“1. An agreement to marry in praesenti, made by parties competent to contract, accompanied and followed by cohabitation as husband and wife, with the result that they are treated and reputed as husband and wife in the community in which they reside, constitutes a common-law marriage.
“2. While such agreement to marry in praesenti must be proved by clear and convincing evidence, it may be established by proof of the acts, declarations and conduct of the parties and their recognized status in the community in which they reside.”

We note also from the opinion of the court as contended by counsel that the Supreme Court distinguished the Redman case, supra, from the Markley case, supra, for the reason as stated that the proof in the Red-man case, supra, required that a distinction be made but the Supreme Court did not undertake to establish a different rule respecting the degree of proof required to establish a common-law marriage relationship.

Therefore, finding no error in the record to the prejudice of the appellant, and also that the determination by the Probate Court is not manifestly against the weight of the evidence, it follows therefore that the judgment of that court is affirmed.

Judgment affirmed and cause remanded.

MILLER, PJ, HORNBECK, J, concur.


author: By ALLEN, Circuit Judge.

text:
    VYE v. PARKER.
    United States Court of Appeals, Sixth Circuit.
    No. 11957.
    Decided June 16, 1954.

      Bruce Parkhill, Chicago, Ill., Harry S. Manchester, Youngstown, for appellant.
    Ashley M. Van Duzer, Thomas A. Quintrell, Cleveland, Lewis L. Guarnieri, Warren, for appellee.
    Before ALLEN and McALLISTER, Circuit Judges, and FORD, District Judge.
   OPINION

By ALLEN, Circuit Judge.

The sole question presented in this appeal from a judgment of the District Court dismissing an action for broker’s commission is whether the case should have been submitted to the jury. The appellant had been instructed by appellee to sell the stock of The Sandard Transformer Company, an Ohio corporation of which appellee was president and majority stockholder. Through his wife and daughter’s holdings appellee had complete control of the stock. He desired to sell the business but wished to continue to control and operate the company and to maintain and protect his organization. Appellant suggested that Illinois Institute of Technology, an educational institution, might be interested and appellee authorized appellant to take up the matter with the institute. Appellee set the price of the business at $2,500,000 and made his retention of control as managing head of the business and protection of his organization a condition of the sale. This was specifically admitted by appellant. Appellee wanted a down payment of $500,000 but later this requirement was withdrawn. Also he desired to carry out the transaction in such a way that corporation and personal taxes should be minimized. Appellant suggested that if the property was sold to a non-profit organization such as the institute the income of the company might be held tax exempt. But agreement was never reached as to the correctness of this proposition, concerning which appellee’s advisors were extremely doubtful. The institute itself said that it could not consider any deal based upon tax exemption of the operating company. However, it declared it was interested in acquiring appellee’s business and wished to retain him and his organization. Several negotiations along these lines were held between appellee and representatives of the institute. At a meeting in Chicago February 21, 1950, after a conference with the president and assistant secretary and treasurer of the institute (R. J. Spaeth), appellee and appellant met with Louis S. Hardin, counsel for and a trustee of the institute, who had specialized in federal taxes. Hardin assured appellee that the institute would endeavor to obtain exemption from income taxes for the operating company, and suggested that the institute form an independent foundation to make the purchase and organize a Delaware corporation to operate the business. Hardin explained the institute’s view of the advantages of organizing the new foundation and of having the Delaware corporation carry out the purchase, said that the institute did not wish to furnish management and would give appellee a management contract which Hardin agreed to prepare. He stated that the institute was not concerned about term or salary and that appellee might have anything within reason he wanted. Appellee did not know what term or salary he wanted. On the matter of control of the board of directors of the operating company Hardin suggested that appellee name a minority of the board and choose the majority from the 60 trustees of the institute. Appellee at the close of this meeting said he was generally satisfied and agreed that Hardin should prepare the necessary papers to reduce “the oral agreement to writing.”

The draft contracts prepared and forwarded to appellee included a management contract with appellee, a contract of sale of The Standard Transformer Company, and an indenture. The amount of down payment of the business was left blank in the contract of sale, which ran to the technology foundation instead of to the institute. The term and the amount of salary were left blank in the employment contract. When the papers were presented to appellee’s attorneys, they advised him that the proposed contracts did not protect him and he refused to go on with the deal. Appellant claims that the conversation of February 21, 1950, of appellee with Hardin, in which appellee stated that he was generally satisfied and agreed that papers should be prepared to reduce the oral agreement to writing, taken together with the preliminary negotiations, constitute evidence of a completed contract under which appellant secured for appellee a purchaser ready, willing and able to buy, thus entitling him to a commission. Hence he contends that the District Court was required to submit the case to the jury.

The District Court in a memorandum, part of which is appended in the margin, held that appellant did not produce a purchaser willing and able to buy upon the terms laid down by appellee and dismissed the complaint. We think the judgment must be affirmed.

Appellant’s contention that this case was required to go to the jury is based upon loose statements by appellee, such as that he was generally satisfied and that a deal to sell the stock had been secured by appellant. But appellant’s obligation was not satisfied unless he did more than generally to satisfy the appellee. If on the undisputed facts no contract was secured conforming to the terms laid down by appellee and never withdrawn and if no purchaser was secured ready, able and willing to buy, the judge was required to take the case from the jury.

Appellee’s principal terms which were a condition of the sale and were never changed were: (1) that the price should be $2,500,000; (2) that the operation should be subject to his complete control through a long-term employment contract in which he should direct the operation and the protection of his organization. In the contract submitted by Hardin appellee’s term of employment and the amount of his salary were not fixed; his office was not defined. Hardin stated that appellee could have anything “within reason;” but this is not a legally enforceable contract term. What is within reason to one person may be totally unreasonable to another and this statement had no legal force and effect. As to control, this was proposed to be obtained by appellee’s choosing a minority of the directors and choosing the remaining majority from the institute’s own directors. In view of these undisputed facts the District Court correctly found that Hardin’s propositions on behalf of the institute constituted a counter-offer differing so substantially from appellee’s proposal that it could not be considered an acceptance. Cf. Rowe v. Shilby, 86 U. S. App. D. C. 74, 179 F. 2d 807, 18 A. L. R. 2d 373.

Moreover, appellant did not produce a purchaser able to buy. On February 21, 1950, and during all the period involved, the contemplated foundation proposed by the institute was not in existence. It was proposed that this foundation should own the shares of a Delaware corporation to be newly formed, which was to acquire the assets of The Standard Transformer Company and operate its business. Whatever assets the non-existent foundation might have in the future would be derived from appellee’s company. Appellee was to be paid with a note issued by the Delaware corporation. The institute, a solvent corporation, refused to buy the stock and a new corporation was to assume the obligation. Thus the party with whom appellee was dealing was eliminated and a new party was substituted, certainly not able to buy. Since it was not yet in existence it could hardly be said to be ready and willing.

In the original negotiations appellee specifically stated that any proposition was to be subject to the approval of his attorneys. This condition was never modified, as appellant conceded, and it was recognized by the institute. The institute’s president wrote appellee that they would be interested in hearing “about the report from your group,” and on April 21, 1950, appellant wrote appellee that the school should “come up with some concrete proposal in black and white so that your own attorneys could weigh all the angles.” The attorneys specifically rejected the contracts submitted.

The institute itself did not consider that the contract submitted to appellee in accordance with the negotiations of February 21 were binding contracts. The minutes of the institute for June 12, 1950, described the matter as being in the stage of negotiation. Appellant and Spaeth both treated it as an open transaction. In his letter of July 18, 1850, after the contracts were rejected, Spaeth expressed his regret upon the ground that the institute had been proceeding “along the line you wanted’- and in his letter of August 7, 1950, he said, “We are quite disappointed that we will not be able to proceed with our negotiations.” In his letter of July 18th to appellee Spaeth said, “Certainly you have every right to change your minds prior to making a final decision. * * *” The agreements, if any, were only tentative. They do not constitute a contract. Restatement of the Law of Contract, Section 26, Comment a. Cf. 1 Williston, Contracts (Rev. Ed.) 54, §27. So long as they were in negotiation the seller could withdraw. Hale v. Kumler, 6 Cir., 85 F. 161. Both parties expected contracts to be drawn which would cover the important matters upon which no agreement had been reached. In its submitted form the employment contract was lacking in the most material terms and was not enforceable and did not constitute a basis for recovery of real estate commission under Ohio law. Pfanz v. Humburg, 82 Oh St 1, 91 N. E. 863, 29 L. R. A., N. S. 533; Patton v. Alessi, 42 Oh Ap 91, 180 N. E. 387; Cline, Inc. v. Union Thread Co., 73 Oh Ap 393, 29 O. O. 97, 56 N. E. 2d 517. Since the contract of sale failed to meet the conditions of appellee’s oiler and since appellant did not secure a buyer ready, willing and able, appellee was entitled to terminate the brokerage contract. Cf. Brenner v. Spiegle, 116 Oh St 631, 636, 639, 157 N. E. 491; Restatement of Agency, Section 453, Comment b.

The judgment of the District Court is affirmed.

Judgment affirmed.

      . “The defendant Parker was desirous of relieving himself of the incidence of potential taxation implicit in his corporate situation, as well as his individual tax status. He engaged the plaintiff to sell his stock at a fixed price, on a long-time installment basis, under a contract that would leave him in control and protect his key employees. He obligated himself to pay the plaintiff a commission of three per cent upon the consummation of an agreement which accomplished the objectives sought and still protected him in his control of his company and the assurance of retention of his loyal employees.
      “Did the plaintiff produce such a purchaser and was a contract consummated, incorporating the basic requirements which formed the consideration for the brokerage contract?
      “The fact is, as I appraise the evidence not in material dispute, that the purchaser produced by the plaintiff transformed the defendant’s objectives into proposals which were more in the interest of the purchaser, and while providing for payment of the defendant’s price over a long period, left him without control of the company, or even reasonable security for his property, himself, or his employees.
      “What it seems to me happened was a reversal of the original purpose or objectives of the defendant, which resulted in the plaintiff furnishing a purchaser that proposed terms designed to insure its future, without responsibility, and put the defendant to the task of accepting or rejecting what might appropriately be called counter proposals.
      “While it is true that the defendant at Chicago, on February 20th or 21st, 1950, did tell Hardin, a trustee and general counsel for the Illinois Institute in charge of the negotiations, that the proposals put forward by him, Hardin, were ‘generally satisfactory,’ there was left open the final decision when the drafts should be prepared and presented.
      “It is my considered judgment from this evidence that the draft presented did not embody those basic requirements that the defendant had consistently stated were essential to the sale of his stock.
      “I find no issue of fact of a substantial character which would control decision. What I decide is that there was no meeting of the minds, considering the evidence not materially at variance and in the light most favorable to the plaintiff’s case. The parties, as I see it, were still negotiating-on May 17, 1950. What the trustees of the institute did on April 21, 1950, was to accept the proposals drafted by one of its members, who was also general counsel, which assumed no responsibility or commitment, but assured the institute of control and ultimate possession of the defendant’s property without investment of anything. That was a contract satisfactory to the trustees of the institute, but it hardly could be said to embody the essential protective covenants that the defendant engaged the plaintiff to secure for him in the sale of his stock.
      “To consolidate and summarize my conclusions in the foregoing premise, 1 do not think the contract as drafted and presented to Parker incorporated or made provision for several of the requirements specified by him, the minds of the purchaser and the seller had not met as to several of the essential provisions, and certainly in such circumstances the agreement can not be said to have been consummated.
      “The drafted papers did not represent or exemplify an acceptance of the terms and requirement of Parker’s offer to sell.”


author: By HOLTSBERRY, J.

text:
    KIRKPATRICK, Plaintiff, v. KIRKPATRICK, Defendant.
    Common Pleas Court, Licking County.
    No. 40820.
    Decided June 28, 1956.

      Glenn Kreider, Newark, for plaintiff.
    Joseph P. Kinneary, Columbus, for Frances Carleen Barkoci.
   OPINION

By HOLTSBERRY, J.

On March 11,1954, Dean Kirkpatrick was awarded a decree of divorce from Frances Kirkpatrick, and it was ordered by the Court that the custody, care and control of the three small minor children of the parties be confided to said Dean Kirkpatrick. The decree specifically contained the clause until further order of this Court.

At the time of the decree, and during the pendency of the suit and prior to its commencement, said minor children had resided with their father and paternal grandparents on a farm near Utica, in Licking County, Ohio. The mother’s whereabouts were unknown and service was obtained pursuant to statute by publication.

Where a court has jurisdiction to hear and determine the application for divorce and where the minor children of the parties actually reside with plaintiff in said county where the petition is filed and the action is pending, the jurisdiction also extends to the determination of the custody of said minor children. (Black v. Black, 110 Oh St 392.)

Said minor children, following the award of custody, continued in the custody of their father at the grandparents’ residence for some time, until the father’s death. Following his death the mother appeared on the scene and took the children away.

Sec. 3109.06 R. C. provides in part: “In any case where a court of common pleas, or other court having jurisdiction, has made an award of custody or an order for support, or both, of minor children, the jurisdiction of such court shall not abate upon the death of the person, awarded such custody but shall continue for all purposes during the minority of such children, and the court, upon its own motion or the motion of either parent or of any interested person acting in behalf of the children, may proceed to make further disposition of the case in the best interest of the children, or if the children are under eighteen years of age, it may certify them, pursuant to this section to the juvenile court of any county for further proceedings, * * *”

The paternal grandparents of said minor children have filed motion herein to be made parties in this proceeding and after proper notice the Court permitted and allowed them to become parties. Said grandparents have made application to this Court for the custody of the children on the grounds that she is an unfit person. Effort to notify her of the pendency and hearing date on said application was attempted in two Ohio counties without success. When the new parties learned of the whereabouts of the mother in West Virginia, an affidavit was filed herein by the paternal grandmother stating that serviée could not be made of said notice in the State of Ohio, and pursuant thereto this Court, on March 6, 1956, made an order by journal entry, that notice of hearing and copy of application be issued to the Sheriff of Licking County, Ohio, ordering him to appoint and authorize the Sheriff of Brooke County, West Virginia, where said mother was residing, to serve said notice of.hearing and copy of application with proper endorsement on the back of said notice and to make proof of said notice by affidavit, and the same to be returned to this Court with affidavit thereon. Pursuant to this command, the Licking County Sheriff on March 6, 1956, authorized and appointed Thomas Boyd, Sheriff of Brooke County, West Virginia, to serve the notice of hearing and copy of the application and make return thereof according to law. On March 28th, the Sheriff of Brooke County, West Virginia, by affidavit, stated that he served said Prances Carleen Kirkpatrick, by handing to her personally, a copy of the notice and application on March 28, 1956, and the return of the Sheriff of Licking County states that on March 31,1956, the Sheriff of Brooke County, West Virginia, made return of said writ with the endorsements thereon.

Said Prances Carleen Kirkpatrick, now Prances Carleen Barkoci, through her attorney, has filed a motion herein to quash and set aside service of notice of hearing and application for custody of minor children, expressly and specifically refraining from entering her appearing in this action for any purpose other than to object to the jurisdiction of this Court over her person. The consideration and decision on this motion is the only matter now before this Court.

Counsel for said mother strongly relies on the case of Vida v. Vida, 86 Oh Ap 139. Counsel contends that §2309.69 R. C., providing that service of a notice shall be made as required for the service of a summons is a controlling statute herein, and that this section, together with the related code section provided services of notice as construed and interpreted in the Vida Case requires this Court to quash the service of notice.

A question on a motion to quash service in a somewhat similar sitúation, but pertaining to alimony arose recently in Franklin County, wherein that Court of Appeals sustained the trial court’s finding that it had jurisdiction of the person of the defendant where notice was given by registered mail in Connecticut pursuant to rule and order of the Franklin County court. In said case the Court of Appeals for Franklin County found that its judgment was in conflict with a judgment rendered by another Court of Appeals in the case of Vida v. Vida, 86 Oh Ap 139, on the same question, and certified the record to the Ohio Supreme Court for review and final determination. On April 18,1956, in Van Divort v. Van Divort, 165 Oh St 141, our Supreme Court decided this matter and handed down a decision which should result in a landmark in such cases. In fact, an obstruction of some years duration has been blasted from the trail of progress by our Supreme Court’s practical and logical reasoning in the Van Divort Case.

The Supreme Court in practical application has said that mere technicalities, where no substantial rights are transgressed or parties prejudiced, should never be permitted to barricade a trial court’s continuing interest to insure the present and future welfare of its wards— the innocent parties of the broken home.

The Supreme Court quotes with approval 2 Nelson on Divorce and Annulment (2 Ed.j 457 and 458 Section 17.22.

“An application to change or modify alimony or support money is generally regarded as incidental to, and a step in the original suit * * *. It has been declared that the welfare of minor children is of so much concern to the public that the court probably can, if it sees fit, act on its own motion, whenever it comes to its attention in any manner that the children of divorced parents are in want, to require additional maintenance.”

At page 144 of the Van Divort Case our Supreme Court states that “Under the continuing jurisdiction of the court in such an action, the filing of a motion for modification of the decree for support is not the institution of a new or original proceeding but of one ancillary and incidental to the original action.” No new service of summons on a party is necessary to give the court jurisdiction to make further orders as to minor child support. The party remains subject to the jurisdiction of the court in that regard, without reference to the place of his residence or further steps to acquire jurisdiction of his person.”

It is stated in 17 American Jurisprudence, 520, Section 686, that “In such cases, the jurisdiction so acquired will be regarded as furnishing the scintilla of jurisdiction necessary in the subsequent proceeding for the modification of the original decree.”

The question remains what summons or notice piust be given to the opposite party of a motion or application to modify a former order with respect to custody or support. This Court must conclude that there is no provision in the statutory law of this State for any method of notice in such cases as the instant case and that the method and sufficiency of the notice given must therefore be left to the sound discretion of the court. The authority for such statement is found in the conclusion reached in paragraph 3 on page 145 of the Van Divort Case.

The record herein shows and the Court finds that the service of notice was in compliance with the Court order, and was personally received, and therefore, the notice was sufficient to give this Court further continuing jurisdiction to hear the application to modify custody.

The motion to quash and set aside the service of notice of hearing and application is overruled. Exceptions allowed.


author: By FESS, J.

text:
    CENTRAL OIL EMULSION CORPORATION, Plaintiff-Appellant, v. ROESCH, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5131.
    Decided February 21, 1956.
    Robert Dow Hamilton, Columbus, for plaintiff-appellant.
    J. Paul McNamara, Keith McNamara, Columbus, for defendantappellee.
    (FESS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By FESS, J.

Appeal on questions of law and fact from a judgment of the Court of Common Pleas finding on behalf of the defendant and dismissing the petition.

The petition alleges in part that on January 23, 1935, the defendant was issued one share of the common stock of the plaintiff, without consideration, by defendant, for the purpose of qualifying him as a director of the plaintiff. Plaintiff further alleges that it issued said share of stock to the defendant upon condition that defendant would hold the share in trust for the benefit of plaintiff and would receive dividends thereon only as long as defendant served as director or until demand was made for the return of the share, and that defendant would return the share to plaintiff upon ceasing to be a director.

Plaintiff further alleges that defendant’s tenure as director has terminated and that, although plaintiff has demanded surrender of the certificate, defendant has refused to do so. Plaintiff prays that defendant be ordered to surrender said certificate and for other relief.

Review of the testimony and exhibits discloses that two former partners—R. H. Shaffer and D. J. McSwiney—organized the corporation in September, 1934. At its initial meeting, the incorporators elected five directors, including the defendant and another employe. Shaffer and McSwiney, or their nominees, were thereafter issued 1937 shares each. Defendant was also elected Secretary and Treasurer of the corporation. At the annual meeting on January 8, 1935, the directors were re-elected and one share each was authorized to be issued to the defendant and one other employe, apparently for the purpose of qualifying them as resident shareholders and directors. Defendant’s share was thereafter issued on January 23, 1935, .and on January 30, 1935, the certificate was endorsed by him in blank and pursuant to instructions from one of the major stockholders, replaced by defendant in the corporation stockbook. As secretary of the corporation, the defendant had custody of the stockbook, including this share of stock. Defendant testified that in the fall of 1936, he had a conversation with Mr. Shaffer, who told him that he wanted defendant to have the share of stock “since I was a director and officer, and I was very active in the management of the concern.” He further testified that Shaffer shortly after the annual meeting in 1937, told him to pick up the stock and retain it in his possession. Shaffer, as well as McSwiney, emphatically denies this testimony of defendant.

Defendant’s services with the corporation were terminated in 1945, but no successor to defendant as director was elected in 1946 or 1947. Minutes of the Board meetings on March 1, 1946, and December 3, 1946, disclose that defendant continued as a Director but was not present. Mr. McSwiney testified that in 1946 and 1947 he secured proxies from defendant to vote his stock, and possibly in 1949 and 1950. At the annual meeting in 1948, the number of directors having been reduced from five to three, defendant was not re-elected. Minutes of the Board of Directors’ meeting held February 7, 1949, recite: “Authority was voted D. J. Mc-Swiney to purchase for treasury, stock held by Raymond Roesch.” Nevertheless, the books and records disclose that defendant was not only a shareholder of record but received dividends upon his share of stock in 1936, 1937, 1942, 1946, 1948 and 1949. No dividends were paid defendant thereafter. He likewise received notice of a special meeting of the stockholders in 1948. On several occasions after 1945, D. J. McSwiney obtained proxies to vote the defendant’s share from defendant. Apparently McSwiney secured these proxies in anticipation that Braden, the other nominal holder, might vote his stock with that of Shaffer, who held an equal number of shares with McSwiney. After unsuccessful negotiations with defendant to purchase this share of stock, in February, 1951, the Board authorized the institution of the instant action, which was filed in October, 1951.

It is recognized that it is normal corporate practice in closely-held corporations, to elect qualifying or “dummy” directors among relatives or employes. The common expedient employed is to have such nominal directors endorse their shares in blank, and return them to the corporation. In the event of discharge or retirement of any such director, his share can thereby be readily transferred to a successor.

Upon the evidence, we find that upon the issuance of the share to defendant in 1935, he became merely a shareholder of record and was not intended to become the beneficial owner thereof. But the certificate was actually issued to the defendant. It cannot be held that it was issued without consideration. It was issued for some purpose thought to be necessary for the conduct of the business of the company,—possibly under the mistaken belief that it was necessary to qualify the defendant as an officer, director or a resident shareholder. He endorsed the assignment in blank, which authorized its transfer upon the books of the corporation, and returned it to the corporation. So long as it remained there, it could have been transferred to another or converted into unissued stock by cancellation. But plaintiff took no such action, because of its desire to continue defendant as a shareholder of record. Defendant had no right to remove the certificate from the records of the company, which were in his possession as secretary, and by reason of taking the certificate into his own possession, would not acquire the beneficial interest in such share. Nor could he acquire the beneficial interest in such share by reason of the fact that one of the large shareholders of the company advised him to take it. Since he had no right to the possession of the certificate, the only manner through which he could obtain the beneficial interest therein would be pursuant to a reissue of the share to him by appropriate action of the Board of Directors.

As secretary of the company defendant held the share certificate in a confidential and fiduciary capacity. Having taken physical possession of the certificate from the company he now holds it as trustee ex maleficio. Since the defendant was a shareholder of record we do not regard the annual reports of the corporation to the Ohio Tax Commission disclosing that the corporation had a resident holder of one share of its stock as of particular significance. Nor do we regard the payment of dividends as conclusive evidence that the plaintiff acknowledged defendant as the beneficial owner of the share.

Finding and judgment for plaintiff. Cause remanded to the Common Pleas Court for further proceedings including execution for costs.

MILLER, PJ, HORNBECK, J, concur.