author: By FRANCE, J. By FRANCE, J.

text:
    PUBLIC FINANCE CORP., Plaintiff, v. CALLOPY, Defendant.
    Ravenna Municipal Court.
    No. 4981.
    Decided August 31, 1959.
    Morris Mendelssohn, Youngstown, for plaintiff.
    William J. Smith, Ravenna, for defendant.
   OPINION

By FRANCE, J.

This matter was tried to the Court August 21, 1959, no jury being demanded, on the petition, the amended answer and plaintiff’s reply.

The petition recites the claim, now depressingly familiar to this court, that defendant obtained a loan; that as a condition of obtaining it he executed a financial statement purporting to list all his debts and liabilities; that several creditors were omitted from such list; that plaintiff relied on the statement and made the loan. By way of emphasis plaintiff concludes that defendant obtained “this said loan by making a materially false statement AND/OR false pretense.” (Emphasis added.) It concludes that there is now due and owing $248.72.

The answer, stripped of many evidenciary statements, stricken on motion, recites:

1— a denial of intentional failure to list creditors

2— a denial of reliance by plaintiff on such statements as may have been unintentionally incorrect.

3— discharge in bankruptcy in a proceeding in which plaintiff’s claim was listed.

Plaintiff’s reply, going somewhat afield, alleges that “the judgment” (?) “taken by plaintiff against the defendant was in the form of a cognovit promissory note with warrant of attorney thereto attached, duly executed by this defendant; that by virtue of the note the plaintiff is authorized to take judgment against him and others on the said note.” It further recites that defendant failed properly to list the claim in question by listing the creditor as “Public Finance Corp.” when it should have been listed as “Public Finance Corporation of Warren No. 5” in the bankruptcy proceedings.

To say the least, the state of the pleadings leaves something to be desired. Plaintiff has first embarked on a course of claiming that defendant obtained money by false pretenses, complete with the ear grating “and/or” allegation in no less than five places in his petition; in his reply he shifts ground to allege some sort of pre-existing judgment, source unknown.

Such confused pleading illustrates the almost pathological desire of small loan company counsel to anticipate and avoid an expected bankruptcy defense. Such is not the office of a petition! Defenses which are affirmative must be set up in answer and if set up, then and only then should be met by proper averments in the reply, as in the instant case by the recital of facts bringing the debt within section 17 (c) of the Bankruptcy Act (11 U. S. C. Sec. 35 [cl):

“A discharge in bankruptcy shall release a bankrupt from all his provable debts whether allowable in full or in part except such as . . . are liabilities for obtaining money or property by false pretenses or false representations.”

See Ohio Finance Co. v. Greathouse, 64 Abs 1, 3 (7th District Court of Appeals). This is not a question of plaintiff’s shifting its claim from contract to tort or tort to contract, but of avoiding an affirmative defense correctly set up. While fact pleading is the rule in Ohio, counsel should not lose sight of the fact that pleadings, properly drawn, frame issues which are progressively narrowed as they develop, and as an end result a limited number .of contra verted issues of fact are presented to the trier of the facts for decision. The series of maundering claims presented by the pleadings in this case measurably increased the length of the proceeding and at times left counsel in some confusion as to the real point at issue.

The one issue clearly and properly raised by plaintiff’s reply was that the claim was not discharged by bankruptcy because it was identified as “Public Finance Corp.,” instead of “Public Finance Corporation of Warren No. 5.” In the face of all the exhibits it is clear that the correct address was given for the creditor in the bankruptcy schedules, that notice of the proceeding would logically come to plaintiff at the address listed and the receipt of such notices was not denied. If the crossing of a “T,” the dotting of an “I,” or the abbreviating of the word corporation to corp., are to be allowed by state courts to upset the liberal provisions made by federal statute for discharges in bankruptcy, then there is no point to honest debtors seeking the relief of bankruptcy, for minor scrivenor’s errors will be present in any type of judicial proceeding. In this respect, the court does not believe that the facts at bar bring the case within the rule laid down by the Seventh District Court of Appeals in Public Finance Corporation No. 1 v. Menelle, an unpublished, per curiam, opinion relied upon by plaintiff. Plaintiff’s claim on this point is rejected.

The principal issue of the case, however, was whether a financial statement made by the defendant, in which five debts existing at the time were omitted, was relied upon by plaintiff in making its loan. It is clear that failure to list standing alone, unless relied upon by the creditor, is insufficient to upset the bankruptcy discharge. Syllabus 1, Ohio Finance Co. v. Greathouse, supra; In re Hose, 80 Abs 236 (Referee— Northern Dist., Ohio); In re Holbrook, 80 Abs 186 (Northern Dist. Ohio) and numerous cases therein cited.

The undisputed facts in this regard are:

1— That the loan in question was a renewal of an existing loan then past due.

2— That the net proceeds of the loan in cash to defendant were approximately $12.00, the balance of the loan of $251.00 being used to retire the pre-existing loan of plaintiff.

3— That defendant did not expect to receive any cash at all at the time of the loan.

4— That the note in question was drawn before defendant arrived, after being summoned by plaintiff to plaintiff’s loan office.

5— That chattel mortgage security, the same as for the pre-existing note, was taken for the note in question.

6— That the note was unpaid — (But the note has stamped on its reverse side the legend “Reduced to judgment 9-22-58 Municipal Court of Youngstown, Ohio, Case No. 37364 Frank R. Franko, Judge”).

7— That defendant’s schedules in bankruptcy listed at least five creditors not listed in his financial statement given to plaintiff.

Only two essential facts (which are really the same fact differently stated) are in dispute:

No. 4740.

Did plaintiff’s agent actually tell defendant at the time of making the written statement “Just list three creditors; that’s all that’s necessary”?

Did plaintiff actually rely on the statement as given in making the loan?

On the first point the logic of time, circumstance and the nature of plaintiff’s own printed form supports defendant’s version. The loan was hurriedly consummated at plaintiff’s — not defendant’s — instance; it was a renewal; and there were only six (6) spaces provided for the listing of all possible creditors of a prospective borrower. As this court observed in Sun Finance and Loan Co. v. Cononico, No. 5146, given the large number of creditors enjoyed (?) by the average Finansmall loan customer, the printing of forms which leave space for only five or six of them is a highly suspicious circumstance. No person who has watched and listened to the hundreds of television ads placed by small loan companies could doubt that their appeal is made to those with countless numbers of pressing small claims. Judges, especially municipal judges whose pay scale could well make them small loan customers, are not so wrapped in a protective shield of cotton wool as to remain ignorant of such advertising appeal and may therefore take judicial notice of it. Until the small loan companies make their financial statement forms consistent with their advertising, courts can scarcely be blamed for viewing with the suspicion the claim that postage stamp size space on a form is expected to produce an exhaustive list of creditors.

Against all these facts is posed the single answer of plaintiff’s manager to a very leading question:

“If you had known about these other bills (of defendant) would you have made the loan?” “No.” Such an answer, in the opinion of the court, is preposterous, and one which reflects seriously on the intellectual integrity of the witness, to say nothing of the dead-pan forensics of counsel. Under the circumstances, there was no credible evidence of reliance on the financial statement.

Defendant, having proved his bankruptcy discharge against plaintiff’s claim, and there being no credible evidence that plaintiff relied on any false financial statement, plaintiff’s claim fails.

Journal entry entering finding and judgment in favor of defendant shall be submitted by counsel, and if not so submitted by September 10, 1959, will be filed by the Court.

PUBLIC FINANCE CORP., Plaintiff, v. CALLOPY, Defendant.

Attachment [Abs & O. Jur.] §414

1. A discharge in bankruptcy antedating the rendition of a judgment valid on its face may be shown as a defense to a proceeding in aid of execution on that judgment in a court other than the one in which the judgment was rendered. (Sec. 2329.02 R. C.)

HEADNOTE BY EDITORIAL STAFF

HISTORY: — Motion to discharge attachment. Motion granted. For further history see Omnibus Index in bound volume.

OPINION

By FRANCE, J.

It appears from the evidence herein that defendant executed cognovit note in favor of plaintiff sometime prior to May 1958, on which there was a balance due on May 19, 1958, the sum of $230.00. On that date defendant filed voluntary petition in bankruptcy correctly listing plaintiff’s (judgment creditor’s) name, address and amount due in his schedules. The record is silent as to whether plaintiff participated in the bankruptcy proceeding, which terminated in defendant’s discharge on September 9, 1958.

Almost immediately after the granting of the discharge, on September 27, 1958, plaintiff took judgment in Youngstown Municipal Court and immediately forwarded certificate of such judgment for the purpose of instituting proceedings in aid of execution thereon.

The record forwarded by the Youngstown Municipal Court is exceedingly meagre and does not show on its face that the judgment there taken was by confession under warrant of attorney. But from a study of the sequence of dates involved, and proof that the defendant has been for some years a resident of Portage County, and at no time since May 1958, was he in Youngstown or even in Mahoning County to receive service of process, it is apparent that the judgment could rest on no other basis than confession, and that a cognovvit judgment was involved. Nor does the record indicate that execution was ever issued and returned prior to the isuing of the process in aid of execution.

Upon issuance by this court of notice to Hiram College, the claimed judgment debtor’s debtor, the defendant filed motion to stay proceedings for the purpose of filing motion to vacate the judgment of Youngstown Municipal Court. Such motion to vacate was then filed, but subsequently withdrawn, apparently in reliance on Friedman Finance Co. v. Shirley, 168 Oh St 273, and motion to discharge the attachment was filed herein. The matter came on for hearing on the latter motion. Evidence, including the schedules and discharge in bankruptcy, testimony on the identity of the debt and the nature of the Youngstown judgment was offered.

Decision is complicated both by the vagueness of the 1957 amendments to §2329.02 R. C., and the sweeping nature of the decision of the Supreme Court in Friedman Finance Co. v. Shirley, supra. The amendment merely states:

“Notwithstanding any other provision of the Revised Code, any judgment issued in a court of record may be transferred to any other court of record. Any proceedings for collection may be had on such judgment the same as if it had been issued by the transferee court.”

Without indicating the nature of the documents or proceedings required to effectuate the transfer. See Zimmerman, Municipal Court Practice, 1958 Supp., 156-7. As a result many municipal courts, following the line of least resistance, or of greatest ease, have resorted merely to forwarding the old form of certificate of judgment for lien (§2339.04 R. C.), a procedure disapproved by Paulino, J., in Ohio Loan and Discount Co. v. Brown et al, 79 Abs 280.

Even assuming, however, that the judgment was in this case correctly transferred ( — and defendant does not challenge the effectiveness of the transfer — ) the Shirley case imposes a great strain on pre-existing notions of the bench and bar concerning collateral attack as reaching the merits of a decision of a court of record which unquestionably had jurisdiction of subject matter and person. Under the Shirley rule a discharge in bankruptcy antedating the rendition of a judgment valid on its face may be shown as a defense to a proceeding in aid of execution on that judgment.

The Shirley case involved aid of execution in the same court which rendered the judgment, in which case the entire file of the case is before the court in the proceedings in aid of execution. Correlatively the final decision refusing aid of execution goes into the file of the original judgment and this, baekhandedly, becomes a final order restraining further proceedings on its collection.

Where, however, a transfer of judgment under statute is involved (a possibility apparently not considered by the Supreme Court) confusion is endless and at least two equally vicious types of collateral attack are permitted. First, a valid discharge in bankruptcy is permitted to be set at naught in a later proceeding in a state court without even a suggestion of requiring the pleadings to set up fraudulent or criminal incurrance of the discharged obligation as required by Sec. 17(c) Bankruptcy Act.

Second, the resulting judgment in one state court is permitted to be attacked in turn by way of defense in a proceeding ancillary and supplemental to it and, as in the instant case, in a court removed in space and time from the granting court.

The fact that the two permitted attacks are, in this case, mutually compensating and self correcting gives the rule no particular virtue, it would require no vivid imagination to conceive, in such situation, a re-transfer of the underlying judgment back to the issuing court, and proceedings in aid instituted either there or in another to which the judgment would be again transferred, permitting a seemingly endless series of adjudications of the same question in many different courts. The end result is not likely to be very impressive so far as public confidence in the court system is concerned.

This court is constrained to follow the very explicit ruling of the Supreme Court in the Shirley case, which leaves no opportunity for an exception based on change of identity of the court which passes on proceedings in aid of execution. It does so reluctantly and in the hope that the high court will reconsider the basis of the Shirley decision and place it squarely on approval of Dye v. Bertram, 5 O. D. Rep. 508, which holds that discharge in bankruptcy terminates the power to confess judgment contained in any instrument of indebtedness before the bankruptcy court at time of discharge. Such a holding would give some finality to discharges in bankruptcy and prevent litigants from endlessly re-litigating the same question in a series of courts.

Journal entry discharging the attachment and ordering release of attached funds to the defendant, at costs of plaintiff judgment creditor, with proper exceptions to judgment creditor, will be entered.


source: Caselaw Access Project

author: By JONES, J: By JONES, J:

license: Public Domain

text:
    CROW, Disbarment of, In re.
    IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION.
    No. 18299.
    Law.
    September 28, 1959.
   OPINION

By JONES, J:

This is a proceeding in disbarment under a rule to show cause why the respondent J. Harvey Crow should not be disbarred from practice in this court in view of the judgment of disbarment entered by the Court of Appeals for Champaign County, Ohio.

For the purpose of considering the case, the pertinent chronology follows:

Upon certain specifications (11 in number) filed by a Committee of four, appointed by Judge Marion B. Owens of the Champaign County Common Pleas Court, on February 4, 1955, disbarment proceedings were instituted against Crow. Of the eleven specifications, six were abandoned at trial and a demurrer sustained as to another. Crow was found guilty under specifications 2, 4, 5 and 7 and judgment of disbarment was entered thereon on May 14, 1955. Respondent appealed to the Court of Appeals for Champaign County, which court, upon motion of Crow, entered a stay of execution of the Common Pleas judgment of disbarment, May 23, 1955.

On the 7th day of April, 1956, the Court of Appeals entered an order reversing the judgment of disbarment of the Common Pleas Court for Champaign County and remanded the case to the Common Pleas Court lor the sole purpose of adopting findings of fact and conclusions of law. In re Crow Disbarment, 73 Abs 421 (1956). (For earlier proceedings in the Court of Appeals reference is made to 72 Abs 406 et seq.)

On August 16, 1956, the Common Pleas Court for Champaign County, without further hearing and in response to the order of the Court of Appeals, filed its findings of fact and conclusions of law and entered an order of disbarment, without opinion. On appeal and motion of Crow the Court of Appeals stayed execution of the order of disbarment of the Common Pleas Court, August 20, 1956.

On the 24th day of May, 1957, upon hearing, the Court of Appeals affirmed the judgment of the Common Pleas Court of Champaign County and issued a special mandate to the Court of Common Pleas to carry its judgment into execution.

On December 18, 1957, respondent Crow appealed to the Supreme Court of Ohio, where his appeal as of right was dismissed for the reason that no debatable constitutional question was involved. See 167 Oh St 165. On June 24, 1958, certiorari was denied by the Supreme Court of the United States, 357 U. S. 927.

Thereafter, acting upon the certification of the final order of the Court of Appeals for Champaign County, under Rule 1(e) of the rules of this Court, a rule to show cause was issued, directed to the respondent Crow on November 4, 1957, requiring him to file his response on or before November 26, 1957.

In response to such rule, Crow filed, on November 26, 1957, what he designates an Application, setting forth a recital of matters before the Champaign County courts. Incorporated in the response there is a large number of affidavits purporting to challenge the veracity of witnesses regarding some of the charges laid in the specifications, and statements impugning the integrity and morality of several of the persons and officers participating in the disbarment proceedings. Thus the matter stood for hearing here.

Included in the statements and matter in respondent’s Application are reviews of specifications abandoned and not made a part of the disbarment order. For clarification, the specifications upon which the disbarment proceeding was prosecuted and judgment entered are as follows:

“SPECIFICATION NO 2

“That said J. Harvey Crow has been guilty of misconduct in his said office as attorney at law involving moral turpitude as follows:

“That during the month of March 1951, the said J. Harvey Crow acting as an attorney at law and as an officer of this Court did represent to and advise one Edith Butcher, at that time defendant in a divorce action brought by her husband, Elmer H. Butcher, in the Common Pleas Court of Tuscarawas County, Ohio, to make a fictitious reconcilation with her husband for the purpose of obtaining a dismissal of the action in Tuscarawas County and filing a divorce action on her part in the Common Pleas Court of Champaign County, Ohio, thereby effecting a change in jurisdiction; that the said J. Harvey Crow did take the said Edith Butcher in his automobile to Newcomerstown, Tuscarawas County, Ohio, and advised her husband, Elmer H. Butcher, that she desired a reconciliation on religious grounds and that she intended to return to the home of the said Elmer H. Butcher and live with him as his wife thereafter if he would dismiss the pending divorce action in Tuscarawas County against her; that he advised the said Edith Butcher to, through deceit and fraud, procure the presence of her husband, Elmer H. Butcher, in the City of Urbana, Champaign County, Ohio, and thereupon to provoke a fight with her husband by taking his pocket book and car keys and then send for the said J. Harvey Crow so that he could witness a possible physical encounter between she and her husband if same ensued; that the said J. Harvey Crow did thereupon unlawfully and fraudulently procure a wallet containing money and other valuable documents and car keys, all of which were the property of said Elmer H. Butcher, and by unlawfully and fraudulently retaining possession of said property of said Elmer H. Butcher procured the signature of said Elmer H. Butcher to a separation and property settlement agreement with his said wife; that the said J. Harvey Crow having, through conspiracy with said Edith Butcher, obtained the dismissal of the divorce action in Tuscarawas County, Ohio, thereupon on April 2, 1951, instituted a petition for divorce on behalf of said Edith Butcher against Elmer H. Butcher in the Common Pleas Court of Champaign County, Ohio, in Case No. 22677; that during the pendency of said action in the Common Pleas Court and while said J. Harvey Crow was representing said Edith Butcher as an attorney at law and officer of this court, he persuaded the said Edith Butcher to accompany him to Cuyahoga County, Ohio, for immoral purposes; that at the hearing in Champaign County, Ohio, on the divorce petition he failed to advise this Court of his own misconduct and that of the plaintiff in said divorce action, but notwithstanding said misconduct, misrepresented to this court that the said Edith Butcher was a woman of good moral character and was entitled to divorce.

“SPECIFICATION NO. &

“That said J. Harvey Crow had been guilty of misconduct in his office as an attorney at law involving moral turpitude as follows:

“That during January, 1952, the said J. Harvey Crow acting as an attorney at law and representing one Howard Heck in a divorce action against his wife, Leah Heck, in Case No. 22912 in this Court, called upon said Leah Heck and represented himself as an insurance claim adjuster and being otherwise unknown to the said Leah Heck; that the residence occupied by Howard Heck and Leah Heck had recently burned and upon obtaining Leah Heck’s signature in the form of an endorsement on a check from an insurance company covering the fire loss, for the first time revealed his true identity as J. Harvey Crow, and advised Leah Heck that he represented her husband and was prepared to file a divorce proceeding against her, and endeavored to persuade her not to contest the action; that later, during the pendency of this said case, and after the attorney at law representing Leah Heck had advised her not to sign any papers whatsoever, without his knowledge and advice, and had informed J. Harvey Crow that such was the case, the said J. Harvey Crow procured one Howard Rust to visit said Leah Heck and again try to obtain her signature upon papers effecting the eventual settlement.

“SPECIFICATION NO. 5

“That said J. Harvey Crow has been guilty of misconduct in his said office as an attorney at law involving moral turpitude as follows:

“That during the year 1952 the said J. Harvey Crow acting as an attorney at law and officer of this Court, immediately prior to the trial of Case No. 22808, Chester Boitnott v. Mary Boitnott, in this Court, said J. Harvey Crow approached one of the witnesses in the case before trial, towit, one Constance Edna Bright, and requested that she testify as to certain matters between the plaintiff and defendant and upon her refusal to testify as requested by him threatened the said Constance Edna Bright with full exposure by the said J. Harvey Crow of alleged misconduct on her part.

“SPECIFICATION NO. 7

“That said J. Harvey Crow has been guilty of unprofessional conduct in his said office as an attorney at law involving moral turpitude as follows:

“That the said J. Harvey Crow, acting as an attorney at law, during the year 1953, obtained from one Eugene Fields, the sum of one hundred dollars ($100.00) allegedly for the purpose of posting a bond in the Municipal Court of Urbana, Ohio, on behalf of the said Eugene Fields and represented that said bond was required by said Municipal Court in order for the said Eugene Fields to retain his liberty; that no such bond had been required in said criminal proceedings against said Eugene Fields by said Municipal Court; that no such bond in the sum of one hundred dollars ($100.00) was ever posted by said J. Harvey Crow and the said J. Harvey Crow refused to return said one hundred dollars ($100.00) to said Eugene Fields, and refused to account for the same.”

Much of the attack upon the specifications (including those abandoned and dismissed) is directed to the alleged failure of the Committee members to investigate the facts by consulting, in advance, with persons whom the respondent states would know the truth; some of the affidavits relate to disqualification of one of the Judges in a case of Crow’s, subsequent to the disbarment proceedings; there is attached a long list of persons who have filed a testimonial to the high standing and good professional and personal character of the respondent.

Other matters are attached to and recited in the respondent’s Application which have little bearing on or relevancy to the question of whether Crow should be disbarred from practice in-this Court.

A hearing in open court has been granted to the respondent; full consideration has been given the matters and reasons presented by Crow why he should not be disbarred from practice in this Court. In considering the matters presented by the respondent, the Court has undertaken within its capacity to sift the wheat from the chaff in the cumbersome, confusing and unclear record presented. We have been mindful of the requirements and principles set forth by the Supreme Court of the United States in Theard v. United States of America, 354 U. S. 278 (June, 1957) and Selling v. Radford, 243 U. S. 46. The rule provided by these decisions in essence is that a member of the Bar of the District Court, admitted to practice in its Court solely on the basis of his license to practice in the State Court, may not be disbarred in the District Court summarily upon the certification of the member’s disbarment by judgment of the State Courts. He is to be given something more than a perfunctory hearing; not, as I understand the decisions a trial de novo, nor a review of the State Court judgment as upon appeal. It is my opinion that this Court has fully complied with the principles laid down in those decisions and the hearing given here is in accord with and satisfies the Supreme Court rule as announced in Theard v. United States and Selling v. Radford, supra.

In sum, the written response of the respondent Crow is almost entirely devoted to the alleged lack of credibility of everybody connected with the prosecution of the proceedings against him.

What of the findings and conclusions entered by the Common pleas Court and adopted and affirmed by the Court of Appeals? They sustain specifications 2, 4, 5 and 7. Certainly, if the matters charged in these specifications were presented to and believed by the county court to be true, there was ample ground to justify the action of the Champaign County courts; there was no infirmity of proof, the weight and credit to be given it was for the trial court; except for his attack on the character, motives and credibility of witnesses used by the Committee, no showing has been made that respondent did not have every opportunity to present his case. In my opinion, a fair hearing and review were accorded him by the Common Pleas Court and the Court of Appeals. What was presented there would have been adequate for disbarment here.

As to the legal questions raised by respondent, he complains that his rights were denied him, to his prejudice, by lack of venue and by the appointment of a three-judge court to hear his disbarment proceedings; also, that an affidavit of prejudice was filed by him against one of the three judges, upon which no hearing and decision was made. It is sufficient to say that all these questions were considered and determined by the State Courts adversely to the respondent and, as I think, correctly so.

As to the attack upon venue, the challenge was made at the beginning of the hearing and determined adversely to the respondent; the judgment of the trial court upon that question was affirmed by the Court of Appeals. Not only do I think this question of law, like the others, is res adjudicata, but it is my judgment that it was correctly decided. The respondent concedes that the Champaign County Common Pleas Court had jurisdiction of the subject matter (the alleged misconduct took place there), and further concedes that if he resided in Champaign County, that Court would have had complete jurisdiction.

It is not reasonable to assert that because the attorney resides in another county he is not amenable to the jurisdiction of the court in the county where his alleged misconduct took place. To put it another way, — it would be doubtful whether respondent could have been brought to the Bar of the Cuyahoga County Court, where he lived, to answer for misconduct which occurred in Champaign County. An attorney’s license to practice in Ohio is State wide and he may be called to answer for misconduct in any county of the State where it is charged that he committed unprofessional acts. This view of the matter is supported by consideration of §4705.02 R. C., and by the Court of Appeals, opinion in In re Crow Disbarment, No. 138, reported in 73 Abs 421, supra. If the foregoing case is not res adjudicata as to this question, it is the law of Ohio and, under Erie v. Tompkins, 304 U. S. 64 (1938), is decisive.

As to respondent’s complaint about three judges sitting in his case, it never has been questioned that the Chief Justice of the Supreme Court of Ohio may designate judges of one county to hold court in another county and it has been the practice at times for three judges from outside counties to be appointed to hear disbarment proceedings, as was done here.

The respondent contends that only the judge, or a single judge, is legally constituted to function in Champaign County because the law provides for only one judge for that County. The respondent did not raise the question before or during the trial in the State Court, in fact he acknowledged the power and propriety of appointing a three-judge court to hear his disbarment proceedings as stated in his Petition for Writ of Certiorari filed in the United States Supreme Court, on page 7, as follows:

“The Chief Justice of the Supreme Court of Ohio, who is authorized to make such appointments, assigned three judges to hear this disbarment case, assigned for hearing April 18th, 1955.”

I think it should be said that the power to have more then one judge sit is implicit in §2503.04 R. C., and Section 3, Article 4, Ohio Constitution; and that it is inherent in the powers of the Chief Justice and the Common Pleas Judges to designate additional judges to assist. In re Quimby, 18 Oh Ap 142; In re Burch, 73 Oh Ap 97; State, ex rel. Crotty v. Zangerle, 64 Oh Ap 511, 514; Hawke v. LeBlond, 108 Oh St 126, et seq. What conceivable right of the attorney is denied him and what possible prejudice could or would result?

As to the failure to hear the affidavit of prejudice filed by respondent against one of the three judges, it was disclosed at the hearing here that the affidavit was filed one year after the Common Pleas Court had entered an order of disbarment. (See §2701.03 R. C.) It further appeared at the hearing that even at that untimely date an opportunity was given to the respondent to present evidence in support of the affidavit but he failed to do so, because, as he asserted, the Chief Justice of the Supreme Court of Ohio then was without jurisdiction to hear him.

There was no rehearing required of the Common Pleas Court in the reversal and remand by the Court of Appeals; upon making of findings and conclusions in compliance with the order of the Court of Appeals, the Common Pleas Court reentered its original order and judgment of disbarment. Thus the respondent’s claim of a timely affidavit of prejudice in respect of this subsequent action of the trial court is wholly without merit. See In re Crow Disbarment, 73 Abs 426, of the opinion.

It is my considered judgment that no right was unlawfully denied the respondent and that no prejudice resulted from the rulings of the State Courts on those questions and that due process was accorded him by the State Courts.

It recently has come to my notice that subsequent to the commencement of this proceeding, Crow has been cited for contempt by the Supreme Court of Ohio for refusal to comply with the disbarment order (that is, he continued to practice law despite the State Court’s order of disbarment). Under the citation in contempt he was ordered to surrender his license to practice or be sentenced to serve six months in jail for such contempt. See Case No. 35825 — Ohio Supreme Court, Journal No. 43, page 166. It is my understanding that Crow has surrendered his license to practice.

Having given full consideration to the matters contained in Crow’s response to the order to show cause and to the statements made by him in the oral hearing had in open court, I am convinced that the respondent should not be permitted to practice further in this Court. Accordingly, an order of disbarment from further practice in this Court will be entered.

Addendum:

It is thought appropriate to add hereto the chronology of an earlier disbarment proceeding against the respondent Crow. He was admitted to the Bar of the Court on August 20, 1929. On January 18, 1935, he was disbarred by the Court of Common Pleas for Stark County, Ohio. An order suspending him from practice in this Court was entered January 28, 1935, and on September 8, 1937, an order of disbarment was entered in this Court on the basis of the Stark County disbarment. On February 3, 1950, Crow was reinstated by the Stark County Court, and, on March 2, 1950, on the basis of the Stark County action, Crow was reinstated in this Court.

CROW, Disbarment of, In re.

No. 18299. Law.

Decided October 30, 1959.

Courts [Abs & O. Jur.] §254

1. A motion for a new trial in the District Court upon the grounds movant was denied due process in the trial court will be denied where such claimed error was considered not well taken by the state Court of Appeals and the Supreme Court of the United States.

HEADNOTE BY EDITORIAL STAFF

HISTORY: — Motion for a new trial. Motion denied. For further history see Omnibus Index in bound volume.

OPINION

By JONES, J:

In the respondent’s motion for a new trial there appears for the first time in these proceedings a charge that he was denied due process because the Champaign County Common Pleas Court required him to proceed with his trial there without giving him an opportunity to take depositions. (Paragraph 5 of his motion for new trial.)

This charge was not included in his response (Application) to the rule to show cause issued by this court; nor was the charge presented orally or in respondent’s briefs at the hearing of his case in open court. It appears, however, that he did assign such action by the trial court as error in his appeal to the Court of Appeals of Champaign County, and the following appears in the Per Curiam opinion of that court of May 8, 1957:

“We have carefully read and considered the record in its entirety, as well as the thirty-nine errors assigned as bases for the reversal of the judgment.

“As to none of the errors specified do we find reversible error to be shown by this record, nor do we find the judgment to be manifestly against the weight of the evidence.

“It is the unanimous conclusion of the members of this court that the judgment under review should be affirmed, and it is so ordered. Affirmed.”

The respondent’s charge here made was embodied in assignments of error Numbers 10 and 22 of the thirty-nine assignments referred to in the Per Curiam opinion. Thus, the charge introduced for the first time here, was considered and decided by that court on review.

The respondent made this same charge a basis for error before the United States Supreme Court in the disbarment proceedings in that Court. See 1(a) of “Questions Presented For Review,” Petition for Writ of Certiorari in The United States Supreme Court. As noted in this court’s memorandum of September 28, 1959, the United States Supreme Court, after consideration of his response to its rule to show cause, entered an order of disbarment from practice in that Court.

Surely, upon these facts as to the proceedings in the two courts mentioned above, the respondent has had due process. I can find no ground for granting a new trial and the motion accordingly is denied.

      . It appears however that the Supreme Court of the United States, on June 1, 1959, Misc. Docket 594, in effect overruled these cases by disbarring Crow from practice in the Supreme Court upon an order to show cause to which he had filed a return, — without a hearing and without opinion except dissenting paragraphs by Justice Douglas, concurred in by Justice Black.


author: By KOVACHY, J. By SKEEL, J.

text:
    STAUB, Plaintiff-Appellee, v. MULARCHIK, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24819.
    Decided November 19, 1959.
    Hyman Blum, for plaintiff-appellee.
    Homer W. Giles, for defendant-appellant.
   OPINION

By KOVACHY, J.

This is an appeal on questions of law from a judgment entered on a verdict rendered by a jury of 12 in favor of Herbert Staub, plaintiff, and against Myron Chicota and Paul Mularchik, defendants, in the Court of Common Pleas of Cuyahoga County. Defendant, Paul Mularchik, only is appealing.

Plaintiff and defendant-appellant were duly licensed real estate salesmen employed by a duly licensed real estate broker, Myron Chicota, who conducted a real estate office in the city of Strongsville, Ohio. Chicota had other activities and spent little time in the office. Paul Mularchik managed and conducted the affairs of the real estate office. A parcel of land was sold producing a commission of $5000.00. Plaintiff in his third amended petition averred that:

“It was orally agreed between him and the other two (2) Defendants that if they or either of them would procure a buyer and sell this property that the defendant, Myron Chicota, would receive one-half (Vzi of the commission and that the Plaintiff herein would receive one-fourth (%) of the commission and the Defendant, Paul Mularchik, would receive the other one-fourth (%) of the commission.”

The record shows a motion for a directed verdict by defendant Mularchik at the close of plaintiff’s evidence and again at the close of all the evidence. These were overruled.

The trial judge in charging the jury said that the sole and only issue for it to decide was whether there was an oral contract made between the plaintiff and the defendants under which it was agreed, that if the plaintiff or Mularchik, or either of them, would procure a buyer and sell the property in question, then defendant Chicota was to receive one-half of the commission, defendant Mularchik was to receive one-fourth of the commission, and plaintiff Staub was to receive the remaining one-fourth of the commission. The unanimous verdict of the jury indicated that it found such an agreement to have been made.

The appellant presents but one assignment of error in this court:

“* * * that the trial court errored (sic) in denying Defendant’s ''Appellant herein) motion for a directed verdict at the conclusion of the Plaintiff’s (Appellee herein) case (R. 85, 86), or at the conclusion of all the evidence (R. 128), which error was prejudicial to the rights of the Appellant herein.”

The record shows that the appellant went forward with his defense upon the overruling of the motion for a directed verdict at the close of plaintiff’s case. He, as a consequence, waived any error that may have been committed by the court with respect to that motion. Halkias v. Wilkoff Co., 141 Oh St 139, 47 N. E. 2d 199; Wilkeson v. Erskine & Son. Inc., 145 Oh St 218, 61 N. E. 2d 201. As a result, we have before us but one question for determination, namely: should the court have granted the motion for a directed verdict at the close of all the evidence?

The parties conceded in the trial of this cause that the defendant Chicota was entitled to one-half of the commission as the broker in the transaction and that he instructed the escrow agent to pay the remaining one-half of the commission to defendant Mularchik.

The bill of exceptions discloses evidence of a substantial nature that it is customary in the real estate business for salesmen to agree upon the proportion each is to receive of a commission allotted to them in a given transaction; that the appellant Mularchik was in charge of and, managed the real estate office for broker Chicota; that plaintiff-appellee and defendant-appellant orally agreed to divide the commission allocated to them in the real estate transaction in question equally between themselves as an incentive to carry on the business oí the office, regardless who was the procuring cause of the sale; that each played some part in the attempt to sell the parcel of land in question; and that defendant Chicota knew of the understanding between Staub and Mularchik concerning this eommissio.n

We are of the opinion that the record shows a prima facie case was made out against the defendant Mularchik under the third amended petition, which required the court to submit the case to the jury for determination. We hold, therefore, that the trial court committed no error in overruling the motion of the appellant for a directed verdict at the close of all the evidence presented in the case.

Judgment affirmed.

HURD, PJ, concurs.

SKEEL, J, dissents.

DISSENTING OPINION

By SKEEL, J.

This appeal comes to this court on questions of law from a judgment entered for the plaintiff on the verdict of a jury against both defendants in the Court of Common Pleas of Cuyahoga County. The defendant, Chicota, did not appeal. The defendant, Mularchik: who was made a defendant upon the filing of an amended petition, is the appellant in this appeal He claims the following error:

“The appellant, for its assignment of error, says that the trial court errored (sic) in denying Defendant’s (Appellant herein) motion for a directed verdict at the conclusion of the Plaintiff’s (Appellee herein) case (R. 85. 86). or at the conclusion of all the evidence (R. 128), which error was prejudicial to the rights of the Appellant herein.”

The action was begun by the filing of a petition naming as the only defendant Myron Chicota who is a licensed real estate broker. The plaintiff is a licensed real estate salesman as well as a lawyer. The plaintiff had become a salesman for Chicota with respect to some property located on Shurmer Road (mistakenly called Sherman Road in the pleadings) in Strongsville, Ohio. The defendant not only was a real estate broker who had an exclusive right to sell the property in question but also had an interest in the property. As a broker doing business under the name All State Realty, Chicota first engaged the plaintiff. Herbert Staub. as a licensed real estate salesman, and then Paul Mularchik and Steven Drabik were added to the sales force as salesmen. Paul Mularchik acting as sales or office manager. It was expected that Chicota would allot the property in question and build and sell residences but the project could not be financed so he decided to sell the tract of land. The real estate salesmen stayed on for that purpose and also to develop a real estate busines. Before the property was sold, that is about December 28. 1955, Steven Drabik left the employ of Chicota. The property was finally sold whereby a commission of five thousand dollars was earned, the agency (Chicota) having the right to half of the commission. The other half or twenty-five hundred dollars, was paid by a check on the escrow account to Paul Mularchik by the order of Chicota, the plaintiff claimed a right to that part of the commission payable to the salesmen of the agency for consummating the sale and, therefore, brought this action against Myron Chicota as defendant, seeking a judgment against him in the sum of twenty-five hundred dollars. He alleged in his first petition that the defendant, a licensed real estate broker, promised to pay him one-half of the $5,000 commission or twenty-five hundred dollars for the sale of the Strongsville tract. It is further alleged that the property was sold in January, 1956, and that there was due him from the said defendant the full amount of twenty-five hundred dollars. The plaintiff verified under oath as true the foregoing facts as set out in his petitio.n The defendant demurred to the petition but before the demurrer was ruled upon, filed an answer whereupon the demurrer was dismissed. The plaintiff then, with leave of court, made Paul Mularchik a new party defendant and filed an amended petition.

By his amended petition, plaintiff alleged that Chicota was a licensed real estate broker and that Mularchik was a licensed real estate salesman working with the plaintiff for the defendant Chicota. He further alleges that in the latter part of 1955, the defendant Chicota, as a broker, was attempting to sell some property in Strongsville and that he turned the “attempted sale” over to the plaintiff and the defendant Mularchik. He then alleges:

“Plaintiff further says that the defendant, Myron Chicota, promised to pay, both the Plaintiff and the new party Defendant Mularchik, one-half (Vz) of any commission due for the sale of the above property; that said property was sold in January, 1956; that both Defendant, Paul Mularchik and the Plaintiff were the procuring cause of the sale * * *” resulting in a commission of five thousand dollars whereby plaintiff was entitled to one thousand two hundred and fifty dollars as his share; that defendant Chicota caused to be paid to the new party defendant one-half of the entire commission or twenty-five hundred dollars well knowing the plaintiff was entitled to one-fourth of the commission. Plaintiff prayed for a judgment against both defendants on the foregoing allegations of fact for $1250.00.

A demurrer was filed to the amended petition by the new defendant Mularchik but before it was ruled upon, a second amended petition was filed by the plaintiff upon leave granted.

The second amended petition alleges in part:

“Plaintiff for. his cause of action says that in the latter part of the year 1955, the Defendant, Myron Chicota, as a broker, had a listing to sell property located at Sherman Road in the City of Strongsville, Ohio, and that he turned over said listing to the Plaintiff, who, thereafter, worked with the Defendant, Paul Mularchik, as partners in the sale of this property with the understanding that if they, or either of them, would sell this property, that they would receive one-half (%) of the commission from the Defendant, Myron Chicota, and that said one-half (Vz) of the commission would be divided equally between the Plaintiff and the Defendant, Paul Mularchik. Plaintiff says that it is the custom in the real estate business to split commissions in the manner and form aforesaid.”

It is further alleged in the second amended petition that the sale of the property was concluded, and a commission of five thousand dollars became due, twenty-five hundred being payable to-Myron Chicota, as broker, and twenty-five hundred to be divided between the plaintiff and the defendant, Paul Mularchik, as salesmen. That the defendant, Myron Chicota, in order to defraud plaintiff out of his part of the commission, directed the escrow agent to pay, and the said escrow agent did pay, twenty-five hundred dollars directly to Paul Mularchik who refused to pay this plaintiff his share of twelve hundred and fifty dollars for which judgment is asked against both defendants.

By a third amended petition filed upon leave, the plaintiff says that the defendant, Chicota, turned over to him his (Chicota’s) exclusive listing on the Strongsville property “for the purpose of selling this property and that Plaintiff herein thereafter obtained the assistance of the defendant, Paul Mularchik, to work with him jointly and with the permission of the Defendant, Myron Chicota, in the procuring of a buyer for this property.”

“Plaintiff further says it was orally agreed between him and the other two (2) Defendants that if they or either of them would procure a buyer and sell this property that the Defendant, Myron Chicota, would receive one-half (Vz) of the commission and that the Plaintiff herein would receive one-fourth (V±) of the commission and the Defendant Paul Mularchik, would receive the other one-fourth (!i) of the commission.” It is also alleged that this manner of splitting commissions is customary in the real estate business. The petition continues by saying that the property was sold, a commission of five thousand dollars was earned, of which the defendant, Chicota, as agreed, was to receive twenty-five hundred dollars, and Mularchik was to receive one-half of the remainder ($1250.00) and the plaintiff was to receive a like amount. This pleading then alleges:

“Plaintiff further says that the sale of the aforesaid property was escrowed with the Cuyahoga Abstract Title and Trust Company, and unbeknown to this Plaintiff and without his permission or consent, both the Defendants conspired to defraud him (Plaintiff) out of his share of the commission amounting to One Thousand Two Hundred Fifty Dollars ($1250.00) in that the Defendant, Myron Chicota with the consent and knowledge of Defendant, Paul Mularchik, instructed the Cuyahoga Abstract Title and Trust Company to pay to Paul Mularchik, out of said funds, both shares due Paul Mularchik and the plaintiff herein, totalling Two Thousand Five Hundred Dollars ($2500.00), all to his (Paul Mularchik) unjust enrichment in the amount of One Thousand Two Hundred Fifty Dollars ($1250.00).”

It thus appears that this lawsuit was begun by the plaintiff alleging that there was due him (a licensed real estate salesman) from his employer (a real estate broker) the sum of $2500.00 as a commission for his services in the sale of property listed with his employer for sale. Such claim was changed by an amended petition in which, after naming a new party defendant (Mularchik) it was alleged that the plaintiff and Mularchik, both real estate salesmen, were employed by the defendant broker (Chicota) to work on the sale of property listed with the broker; that through the efforts of both salesmen, the property was sold whereby they were each entitled to $1250.00 for which sum plaintiff asked judgment against both defendants. The second amended petition alleged that plaintiff received the exclusive listing for the property from the broker, Chicota, and that the defendant, Mularchik, joined him (the plaintiff) as a partner and that each, by virtue of the partnership, was entitled to one-half of the salesman’s portion of the commission. The claim of a partnership is completely abandoned in plaintiff’s third amended petition which is based upon an alleged oral agreement between the defendant Chicota (broker), the defendant Mularchik, and the plaintiff. The third amended petition also alleges that both defendants “conspired to defraud” plaintiff, in that the defendant, Chicota, with the knowledge and consent of defendant, Mularchik, ordered the escrow agent to pay to Mularchik all of the salesmen’s portion of the commission, which was done.

It must be noted that the alleged agreement upon which plaintiff’s claim for a commission finally came to rest, although directly in conflict with his previous claims, as set out in his successive petitions, was as follows:

“Plaintiff further says that it was orally agreed between him and the other two (2) Defendants that if either of them (probably meaning the plaintiff and Mularchik) would procure a buyer and sell this property that the Defendant, Myron Chicota (broker), would receive one-half (V2) of the commission and that the Plaintiff herein would receive one-fourth (%) of the commission and the Defendant, Paul Mularchik, would receive the other one-fourth (*4) of the commission.”

This allegation is followed by a claim of conspiracy between his employer and his fellow employee (Mularchik) to defraud him of his share of the commission.

There is no allegation in the third amended petition that the defendant Mularchik ever promised to pay the plaintiff, as his personal debt, any part of the commission that might become due him (the plaintiff) from his employer and there is no attempt in the evidence to support the allegations of conspiracy and fraud.

The evidence in the case as presented by the plaintiff shows that the defendant, Chicota, as a real estate broker, employed the plaintiff and the defendant, Mularchik (and one Steven Drabik), as real estate salesmen. There is not a shred of evidence that the plaintiff employed Mularchik to work with him on the sale of the property in question. They were fellow employees of the defendant, Chicota. Whatever agreement there was, if any, as exemplified by whatever evidence there is on the subject, was between plaintiff and Mularchik, as to the basis upon which a split of the commission (due from their employer) between the salesmen would be had. The defendant broker, Chicota, was not a party thereto or is it alleged or claimed that he was a party to any alleged understanding as to a split in commissions between the plaintiff and Mularehik. It was never even suggested that one salesman would become personally liable to the other for any part of whatever commission was earned.

The plaintiff, as a witness, when first asked about how commissions were to be paid, said: “Oh, Mr. Mularehik suggested that in view of the fact that we had been unable to develop the allotment, put in streets, sewers, so forth, that the allotment should be sold as a whole, and regardless of who sold it, or to whom, we would all divide the commission, the three of us.” (By the three of us was meant Staub, Drabik and Mularehik). His testimony further was to the effect that shortly after (Drabik left the agency) * * * it was at that time agreed that Mr. Mularehik and I would split fifty-fifty, and both of us would help to give Mr. Drabik something for his time that was spent down here.” The plaintiff also testified:

“Q. Was there any discussion as to how much that commission would be?

“A. At that time we didn’t know what the selling price would be.

“Q. I am talking about the percentage.

“A. It would be divided equally between the three.

“Q. Where would Chicota come in?

“A. Receive the fifty per cent as the broker.

“Q. And the other fifty would be divided between you, Mularehik, and this Drabik?

“A. That is correct, sir.”

He further testified that, “One morning Mr. Mularehik and I were sitting in the office and Mr. Chicota came in. He said he was very tired, and finally he completed the signing up of the escrow, and he said ‘in about ten weeks — or ten days or two weeks, you boys will have your money.’ ” His testimony further shows that when salesmen agree on a split of commissions, particularly where the employer is not a party to, or present when, such understanding is had (as is the ease here), one of them would tell the broker of his agreement or understanding to enable the broker (if he has no other agreement with his salesmen) to make proper distribution. There is no evidence of any such notice to the defendant Chicota.

The plaintiff called Steven Drabik who testified, in part:

“Q. At the second meeting, was there any discussion about commissions?

“A. Well, the discussions, I think that we had at that time, were more or less that inasmuch as there was no more homes to be sold, because they weren’t going to build any more, there was no money to build, it was advisable for us to get together and if anybody, or if any one of us should make a deal of any kind, we would split the commission among ourselves, inasmuch as we were all doing the same amount of work, and all working pretty hard.

“Q. What do you mean, ‘all of us’?

“A. Between the three of us. In other words, the broker would naturally get his share, one-half of whatever the commission might be, and the other three would split the other commission.

“Q. Who was meant by the three?

“A. Mr. Mularchik, Mr. Staub, and myself.

“Q. Let me get you straight. You say there was a discussion held, it was agreed that regardless who did the work, who did the selling, who did anything, it would be split three ways. I mean that fifty per cent. Is that right?

“A. So long as the three of us were together, that is the understanding I had, that it would be split three ways evenly.

“Q. You say that took place at the second meeting?

“A. At the second, or possibly the third meeting. We had meetings almost every week there.

“Q. Was Mr. Chicota present at any of these meetings?

“A. Not at the real estate office that I can recall. We had one or two meetings at his house. He was always busy trying to get that building program underway, and he was very seldom at the office.”

The foregoing evidence, which was repeated in two or three other places in the record, to the effect that the salesmen had agreed to a percentage split among themselves as to commissions earned, does not disclose a syllable of evidence that Mularchik, with his fellow employees, agreed to pay any sum whatsoever as his or their debt from whatever source received.

The debt upon which the plaintiff seeks to recover a judgment is that of the broker, the defendant Chicota. In this action the plaintiff nas already recovered his judgment against Chicota for the full amount of his claim which judgment has not been appealed. Inasmuch as the claims against Chicota, which were predicated upon his relationship as plaintiff’s employer and against Mularchik, the latter claims being based on an alleged oral agreement, are separate and distinct, this appeal will in no way affect his judgment against his employer.

It is clear that the evidence as set out goes no further than to show that as fellow employees of Chicota, they entered into a mutual understanding as to how commissions earned would be split. No consideration is evidenced in the record by which any salesman would become liable to the others as his personal responsibility for commissions becoming due from their employer. Nor was the employer a party to their mutual understanding. If it could be said that an actual contract is here established between the salesmen requiring one to pay the commission due from the employer to the other, then unless the contract be in writing, signed by the party to be charged, the agreement would not be enforceable under the Statute of Frauds. Nor can these employees dictate to their employer the manner in which he liquidates his debts to his employees. Here Chicota directed the commission paid to Mularchik. This could be for the reason that he, in the opinion of his employer, was the sole procuring cause of the sale whereby under his contract with the salesman, he was entitled thereto and the only way that Chicota could relieve himself of such debt was to disburse the funds as he did. The record can be interpreted as supporting this conclusion, m any event, the employer is privileged to discharge his debts as he chooses and if he is in error, he must stand the consequences. Such responsibility cannot be put upon an employee unless the employer is led into error to his damage by such employees- representations in which event, the action would be between such employee and his employer and not between employees.

The conclusion to be reached under the foregoing facts is that no cause of action is stated by Staub against Mularchik in the third amended petition and there is no evidence of an enforceable contract between Staub and Mularchik upon which this action may be maintained.

The judgment against Mularchik should be reversed and final judgment entered in his favor.


author: By TROOP, J.

text:
    SHAW JEWELERS, Plaintiff, v. WATKINS, Defendant.
    Municipal Court, Columbus.
    No. 94485.
    Decided October 28, 1959.

      Jos. L. Eisenberg, for plaintiff.
    Gerald J. Celebrezze, Asst. Atty. Geni., for defendant.
   OPINION

By TROOP, J.

This cause is on to be heard upon the motion of the Public Employees Retirement System, garnishee, to dismiss the subpoena issued herein.

The question raised by this motion is a constantly recurring one and although the decisions of this court in the past should tend to discourage creditors who attempt to attach funds in the hands of the Public Employees Retirement System, such attempts persist.

In the past counsel for the System has relied upon §145.56 'R. C., and has been sustained without any exploration of the basic question involved, which may be the reason the court has been confronted with that same problem for so many times. For the first time, so far as this court knows, the attorney general’s office has submitted testimony at the hearing and has prepared an excellent brief outlining in detail the procedure followed by the board and the law upon which that procedure is based, for which the court expresses sincere thanks.

As usual, the position of the System is the same. Reliance is upon §145.56 K. C., the pertinent part of which reads:

“The right of a person to a pension, as annuity, or retirement allowance itself, any optional benefit, any other right accrued or accruing to any person under §§145.01 to 145.57 inclusive, R. C., * * * are hereby exempt from any state, county, municipal, or other local tax, and shall not be subject to execution, garnishment, attachment, the operation of bankruptcy or the insolvency laws, or other process of law, and shall be unassignable except as specifically provided in such sections.”

The far reaching protection of this section seems not to be challenged except in the instances where a “member” leaves public employment and makes application to the board for the withdrawal of the funds accumulated to his credit in the System. Creditors who attempt to use an attachment or garnishment process, in order to reach the fund belonging to the detaching member, insist that at some point, perhaps at the time the application for withdrawal is filed, the funds are no longer those of the System or fund, but belong specifically to the member. Our present inquiry is to determine when membership ceases, and upon that cessation, if the withdrawing member’s accumulated savings fund is m such a state of complete release to be his absolutely and in such form as will make it subject to attachment.

Statutory provisions would seem to provide for clearly identifiable "members” accounts. Sec. 145.21 R. C., provides that there must be individual accounts for members showing the amount of his contributions and the interest accumulations. These individual contributions become a part of an “Employees Savings Fund” as provided by §145.23 (A) R. c., which section further provides that the fund shall be available for the return to the member, upon his withdrawal, of the sum accumulated in his individual account. Sec. 145.25 R. C., provides that each fund set up in §145.23 R. C., is a legal entity.

Money belonging to an individual member is clearly identifiable. The obvious legislative purpose was to preserve the contributions made by the individual to his uses. All of the funds for which provision is made in §145.23 R. C., are, however, under control of the board and, further, the section directs the transfer from one fund to another under prescribed conditions and also for the reduction and enhancement of funds upon the occurrence of certain events. There is no provision in the section under which a member can arbitrarily acquire his interest or automatically receive it under given conditions.

Membership in the system is compulsory for non-elective public employees (§145.03 R. C.), and voluntary for elective officials (§145.20 R. C.). They become “members” by either devise and a member is defined in §145.01 (B) R. C., as follows:

“ ‘Member’ means any person included in the membership of the public employees retirement system.”

It would seem from that definition that a public employee is a member as long as he is “included.” By whom or by what process the “including” is done is not too easily determined, but once in the system the employee continues as a member until something happens to terminate his “inclusion,”

See. 145.41 R. C., suggests that there are two ways to terminate membership. The language of the section is:

“Membership shall cease upon refund of accumulated contributions or upon retirement * * *.”

Retirement poses no problem for us and that concept is relatively simple. The other area is somewhat more complicated since there are choices available to the member who ceases to be a public employee. He may leave his contributions on deposit as provided in §145.41 R. C. The member may “exempt himself” and later “withdraw the exemption” and be reinstated in the System. (Sec. 145.28 R. C.)

Our problem arises, however, when the member ceases to be a public employee for any cause other than death or retirement and within ten years after cessation of service makes application for the return of bis accumulated contributions. The part of §145.40 R. C., applicable to that situation reads:

“Subject to such rules and regulations as are established by the nublic employees retirement board, upon application to the board within ten years of such cessation of service, shall be paid the accumulated contributions standing to the credit of his individual account in the employees’ savings fund,”

The brief of the attorney general filed upon behalf of the Public Employees Retirement System Board does not reveal a single rule or regulation passed by the board at anytime dealing with this matter. The exhibits attached to the brief reveal many situations in which board action has authorized the withdrawal of the application of the member and the cancellation of an already issued auditor’s warrant in order to enable the member to change his status or to permit payments to be made to a beneficiary. It would seem, therefore, that the board has established a policy which is the basis for the contention of counsel that “refund of accumulated contributions” occurs when the warrant covering the refund has been cashed, and not before.

It would appear that the legislature intended “rules and regulations” to be controlling. Counsel for the board well argues that “where the language of a statute is plain and unambiguous and conveys a clear and definite meaning” that courts should approach with fear and trembling. This court respects that rule but urges that the principle applies as well to §145.40 R. C., as to §145.56 R. C. A board rule, respecting the requirements of the administrative procedure act if it applies to this board, but in any event a rule or regulation, would establish clearly the time when “refund of accumulated contributions” occurs. Such a rule would also discourage the efforts of counsel for creditors of members to reach the funds of members before that time.

This court feels that the unusual protection afforded members of the System by §145.56 R. should not be construed to permit abuses, nor should those who administer the funds of the members lend their efforts to protect irresponsible members who avoid the payment of their just debts. It is the considered opinion of this court, however, that the many possible elections available to members upon termination and the ramifications of possible beneficiary interests arising out of pure contingencies, support the conclusion that all funds in the System are under the control of the board and that control is not relinquished until payment is consummated. A review of the chapter covering “Public Employees Retirement System” can lead to but one conclusion and that is the necessity for board control over all matters. Such control must extend to the point of final payment. There are probably many situations that would prove that contention. One possibility is striking. A warrant could be issued in response to an application by a terminated member for his accumulated contributions. He dies before cashing the warrant. His beneficiaries can now elect to receive the payments provided by the law. To permit attachment before the time of cashing the warrant would destroy rights clearly protected by §145.56 R. C., such a claim being within the phrase “any optional benefit, any other right accrued or accruing to any person.”

The motion of the Public Employees Retirement System is sustained and the subpoena issued herein is dismissed.


author: By SATER, J.

text:
    STATE, ex rel. JAN ROSS MOTOR CO., INC., Plaintiff-Relator, v. KING, Clerk of Courts, etc., et, Defendants-Respondents.
    Common Pleas Court, Franklin County.
    No. 200698.
    Decided August 4, 1959.
    Thomas W. Applegate, for plaintiff-relator.
    Earl W. Allison, Pros. Atty., Mark McElroy, Atty. Geni., for defendants-respondents.
   OPINION

By SATER, J.

The pleadings and record in this case show that relator brings this action in mandamus to compel respondents to issue to it in its own name an Ohio certificate of title to a new motor vehicle to which vehicle relator already holds a Manufacturer’s or Importer’s Statement of Origin. To buttress its action relator relies on Chapter 4505 R. C.; but the two pertinently operative sections of this chapter, viz: §4505.04 and 4505.05 R. C., secure title to a motor vehicle in whoever holds either an Ohio certificate of title or a Manufacturer’s or Importer’s Statement of Origin, depending on the disposition to be made of the vehicle, ultimate consumer use, or resale as by a dealer in motor vehicles.

Thus, the Court finds itself in the anomalous position of being asked by relator to require respondents to confirm, rather than to newly create, in relator a title which it already holds. State, ex rel. etc., v. Taggart, 134 Oh St 374, Re Estate of Case, 96 Oh Ap 289, Mielke v. Leeberson, 150 Oh St 528, and Standard Materials, Inc. v. Ins. Co., 58 Abs 393, all recognize the duality of certificate and statement, and the self-sufficiency of either as the facts of any particular case may indicate.

Relator is indubitably a locally domiciled Ohio corporation licensed to deal in motor vehicles according to the terms of its dealer’s license. To its application for an Ohio certificate of title to be issued to it in its own name, relator attached both a Manufacturer’s or Importer’s Statement of Origin for the motor vehicle in question, a 1957 Morris Minor 10-passenger bus duly identified by model and serial number, showing under oath that title to such vehicle, new, unencumbered and unregistered in any other state, had passed successively from Royston Distributors, Inc., Philadelphia, Pa., to Pringle Motor Service, Clarksburg, W. Va., and thence to relator, and also a purported power of attorney the necessity and sufficiency of which latter document is problematic. Respondents first issued to relator the desired Ohio certificate and then for reasons that then seemed sufficient to them cancelled it, refusing later issuance. In passing, we note that this Court is not bound by the reasoning underlying respondents’ official action so long as they arrived at the correct conclusion, “though the proceeding is shot through and through with irregularity or error.” West Ohio Gas Co. v. P. U. C. O., 294 U. S., 63, 70; 79 L. ed. 761, 768.

Suffice it to say that on refusal of issuance of the Ohio certificate relator applied for this writ. It alleges lack of any other remedy, but that assumes that it needs a remedy. It is further alleged that it has done everything required by law to secure the Ohio certificate but that is valid only if that effort is necessary to create, not to confirm title in it by duplication of indicia of title. And, consequently, its allegation that it can legally acquire title to the motor vehicle only through respondents’ action assumes that it has not already acquired title by its Statement of Origin and the action of the statutes noted above.

It is a fundamental principle that courts will not employ their coercive powers to compel the doing of a useless thing. Particularly is this true with respect to such a summary and expeditious process as mandamus. The writ is invariably withheld where it will be unavailing, nugatory or useless and its issuance an idle act. The writ will not be issued to compel the doing of a vain thing. State, ex rel. etc., v. Fimple, 91 Oh St 99, 101. Or to affirm what has already been done. State, ex rel. etc., v. Commission, 121 Oh St 352. As was said in State, ex rel. etc., v. Celebrezze, 147 Oh St 24, 26,

“It is well settled by the numerous decisions of this court that in exercising the extraordinary power of mandamus a court should take into consideration the facts and conditions existing at the time it determines whether to issue a peremptory writ; if it should affirmatively appear that no wrong could possibly be remedied or no right could possibly be enforced or promoted, the writ will be refused. State, ex rel. Stover v. Raschig, Dir., 141 Oh St 477, 49 N. E. (2d), 56, and cases therein cited.”

For more recent cases, see State, ex rel. etc., v. Klein, 88 Oh Ap 237, 242, and State, ex rel. etc., v. Silbert, 79 Abs 562. If one with no interest must fail (State ex rel. etc., v. Miller, 164 Oh St 163), so also must one whose interest is already attained.

In the case before us relator holds an unquestioned Statement of Origin; further the record is absolutely silent that relator has a general purchaser for the motor vehicle; further, the lack of even a prospective buyer is strongly explained by the fact that relator seeks a certificate in its own name rather than in the buyer’s name as is to be expected under §4505.06, par. 2 R. C. Relator, consequently has all the indicia of title that it presently needs. In view of the foregoing, the writ must be denied.

Since relator on the record lacks a buyer, we are not presently concerned with Board v. Memphis Auto Sales, 103 Oh Ap 347, wherein the operative facts are so meagerly set forth that little can be gleaned therefrom except that dealer Memphis had neither manufacturer’s contract of distribution nor statement of origin, and that that case was not one sounding in peremptory mandamus. When relator comes up with that general purchaser, there may well arise the question whether there exists prohibition of lawful occupation or mere regulation thereof as against unlimited indiscriminate competition which the Memphis case decries. Whether there will be involved §4517.06 (D) R. C., as in the Memphis case, or S4517.03E R. C. Why relator, nine months after the Memphis case came down, should amend its dealer’s license (see exhibit D) to include new cars of three foreign manufacture but still omit Morris Minor vehicles even after acquisition of the vehicle here in question. Whether the authorization (see photostatic exhibits D and E), to sell new vehicles being left blank, vests it with blanket authority to sell all sorts of new motor vehicles regardless of make or manufacturer. Whether that blank justified relator in selling for five years a variety of new vehicles such as Jaguar. Cadillac, Volvo, M G, Oldsmobile, Buick, Chevrolet and Pontiac. Whether witness John Ross of relator company was authorized to sell such cars new simply because relator had sold so many of them for so many years. What would become of the State’s statutes and power to regulate if Ross’s assumption on this matter were correct. Whether the State’s power to regulate, conceded in the Memphis case, will be served or crippled by authorizing any one dealer to sell both new and used vehicles, or whether that practice leads the general buver directly back to the pre-statute das^s of caveat emptor. Whether Memphis case is broad enough in doctrine to embrace witness Ross’ use of dummy leasing companies and his apparent familiarity with what he calls “bootleg” sales of motor vehicles. But since none of these questions is before us, the petition for a writ is as to them as premature as it is useless to the other.

A matter of decidedly secondary nature may at some future time arise either in this case or in some companionate litigation.

The garbled condition and sequence of the pleadings and events in this case lends superficial credence to the idea that the doctrine of the law of the case controls here a ruling on the merits. An examination of those pleadings in chronological order will never explain their tortuous and unbelievable sequence, but it will disclose the inapplicability of the doctrine of the law of the case We take the pleadings as stated.

(1) On March 4, 1958, there was filed herein a “Petition in Mandamus” praying issuance of an Ohio certificate of title, and accompanied by a precipe for summons. An hour later an alternative writ was issued. We are not favored with a transcript of what happened that day; so far as the file discloses, the signing of the writ was routine; (2) Eleven days later on March 15, 1958, an “Amended Petition In Mandamus” was filed. Since this is the petition upon which relator finally went to trial, four matters should be immediately noted. First, no motion, demurrer or other interlocutory pleading was ever filed to it; second, the wording of this amended petition is identical with that of the original except for the hand written allegations • that sales tax stamps were not attached to relator’s application to respondents because the desired certificate of title was for the purpose of resale — not for relator’s own use; third, from what appears later in the file, this amended petition was filed because at some unknown time or other, some unknown member of this Court had sustained respondent King’s “oral” motion to strike the original petition from the files; fourth, when this motion was made, to whom it was made, and on what it was based, are all unknown. Incidentally, no written leave is shown to file this amended petition. C3) On March 21, 1958, six days after the filing of the amended petition, respondents filed a demurrer not to the amended but to the original petition on the ground that it contained insufficient facts to state a cause of action, and was directed entirely and solely to non-payment of the Ohio sales tax. Why such a pleading should ever be filed beggars the imagination. This demurrer was never pressed for hearing and decision as our rules of Court require. (4) On April 9, 1958, twenty-five days after the amended petition had been filed by relator, relator filed its motion to reconsider the “oral” motion — still undated — of respondent King to strike the original petition from the files which was sustained on March 22, 1958. Why this motion was ever filed is also beyond the comprehension of this member of the Court; like the demurrer if it were overruled, nothing would be added to the case, if it were sustained the amended petition would go by the boards. (51 Despite that, a second member of this Court in a written opinion dated May 2, 1958, sustained the motion to reconsider. Solely for the purpose of expediting disposition of this case, we will pass any question whether this opinion did nullify the amended petition by, in effect, reinstating the original petition. This opinion was journalized May 20, 1958. (6) On May 31, 1958, respondents filed their answer described above to the amended petition. (7) On June 11, 1958, about five minutes before this case was heard on the merits, relator filed its reply also described above. (8) The remaining five minutes was taken up by this member of the Court signing and having filed an agreed entry overruling the demurrer nunc pro tunc any convenient date between the filing of the demurrer and of the answer and reply. That this member of the Court had had no opportunity to see, much less examine, the file in this case before the entry was handed up to him in what is now an obvious effort by the parties to ready the case for trial on the merits, is immaterial; what is material is the fact that all motions, demurrers, opinions and entries subsequent to the filing of the amended petition do not touch it and are simply so much paper.

Certainly such an amazing sequence can produce no law of the case. But if it did, the individual judge who tries a case has a right at the time the final judgment is rendered to correct any error of law that may have been made in any interlocutory orders or rulings, whether they have been made by himself or by any other judge of that court. Pagel v. Creasy et al, 6 Oh Ap 199, 204, Monfort v. Ellis, 16 O. C. C. n. s., 225, 243, 244.

Submit entry in accordance with the foregoing with exceptions to relator.


author: By DUFFY, J.

text:
    MILLER, Estate of, In re. CHILDREN’S HOSPITAL, Exceptor-Appellant, v. TAX COMMISSIONER, Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6022.
    Decided June 30, 1959.
    Vorys, Sater, Seymour & Pease, John C. Elam, James B. Linville, of Counsel, Columbus, for exceptor-appellant.
    Mark McElroy, Atty. Geni., Joseph D. Karam, Asst. Atty. Geni., Columbus, for appellees.
    (WISEMAN, J, of the Second District, sitting by designation in the Tenth District.)
   OPINION

By DUFFY, J.

Sarah Freeman Miller died testate on the 28th day of October, 1954, and made a specific bequest of $25,000 to the Board of Trustees of the Central Presbyterian Church with the following restrictions:

“The income therefrom shall be used by said board of trustees for such purpose or purposes as it deems proper. The principal shall always be retained, managed, controlled, invested, and re-invested as said board of trustees, in its absolute judgment, shall deem to be for the best interests of said trust estate.”

In the residuary clause of the will, the decedent’s attorney was given the residue of the estate to be distributed by him “to such charitable institutions in Columbus. Ohio, as he shall deem proper.” His judgment in the matter was to be final. The attorney, under the will, divided the money among several charitable institutions in Columbus, Ohio, among which was the Central Presbyterian Church, which was the same Central Presbyterian Church that had received the specific bequest.

All of the other charitable institutions were deemed to be tax-exempt except the Central Presbyterian Church. Inasmuch as the Children’s Hospital of Columbus, Ohio, was to obtain the remaining balance of the estate and, by a specific provision of the will, taxes were to be paid from the estate, the Children’s Hospital filed exceptions to the determination of the inheritance tax made by the Probate Court, and this was joined in by the church.

It is apparent from a reading of the decision of the Probate Court that the basis for its ruling was that the church was an institution not only for charitable purposes but also for religious purposes and therefore not entitled to the exemption granted to “an institution for purposes only of public charity,” as granted by §5731.09 R. C., in effect on the accrual date of the determination of the inheritance tax.

In their briefs both the appellant and the appellees cite many, many cases dealing with “religious and charitable institutions” and “institutions for purposes only of public charity.” Apparently, the most recent decision of the Ohio Supreme Court dealing with the subject is In re Estate of Seaman, 166 Oh St 51. The syllabus in that case is as follows:

“1. Charitable purposes include religious purposes.

“2. An institution organized and conducted for charitable purposes is an institution for purposes of public charity if its benefits are open and available to the public generally.

“3. If the benefits of an institution organized and conducted for religious and other charitable purposes only are open and available to the public generally, such institution is an ‘institution for purposes only of public charity’ within the meaning of those words as used in §5334 GC (§5731.09 R. C.).”

While it might be true, as the dissenting opinion indicated, that the holding in the case might be “vulnerable to the charge of judicial legislation,” it is the last pronouncement of the court on the subject.

It would appear from the record taken in this case that the Central Presbyterian Church is conducted for both charitable and religious purposes, and the record does indicate that these benefits are open and available to the public generally. In the Seaman case the bequest was to the Salvation Army, which the court found to be not only a religious group but also a charitable group and property received by them used for both purposes and thus exempt from the inheritance tax. It is apparent that the Supreme Court desired to include all religious institutions within the exemptions granted by §5731.09 R. C., so long as the benefits were open and available to the public generally. The case does not limit itself to the Salvation Army, and from the record it would appear that the Central Presbyterian Church is" entitled to the same exemption.

Judgment reversed and cause remanded.

BRYANT, PJ, WISEMAN, J, concur.


author: By HUNSICKER, PJ.

text:
    NANASHE, Admx., etc., Appellants, v. LEMMON, Appellee.
    Ohio Appeals, Ninth District, Summit County.
    No. 4747.
    Decided February 5, 1958.
    James M. Hinton, Edward Erickson, for appellant.
    Wise, Roetzel, Maxon, Kelly & Andress, for appellee.
   OPINION

By HUNSICKER, PJ.

This is an appeal on questions of law from a judgment entered on a verdict directed at the conclusion of the evidence presented by the appellant, Ellen Nanashe, who was plaintiff in the trial court.

Ellen Nanashe is the administratrix of the estate of Alexander Nanashe, her deceased husband. Mrs. Nanashe instituted an action for wrongful death against Gilbert LemMon, saying that he caused the death of Alexander Nanashe.

One June 21, 1956, the decedent was engaged in assisting his employer in excavating earth from certain lands in Akron, Ohio, so as to make the land level with the street. One man was operating a power shovel, and the decedent was helping determine the level at which the excavation was to be made (known as “shooting the grade”), oiling the shovel, and other related activities, such as checking on the distance of the excavation from neighboring property lines.

The excavation in area, on the morning of decedent’s death, was irregular. Work had begun on the property, which was located on the west side of Annadale Street in Akron, Ohio, four days previous to the occurrence herein.

On the morning of June 21, 1956, the area extended a distance of 200 feet west of Annadale Street. At the extreme west portion the excavation was 30 feet wide. Approximately 40 feet east of the west bank the area widened to about 150 feet, and that width continued east about 100 feet. It then narrowed and continued east to Annadale Street, where the excavation work had begun. The excavated area was about 7 or 8 feet below the land not excavated.

The power shovel was at the west end, in a northwest-southeast position. The embankment was to its west, and the position of the power shovel permitted the decedent to walk on the embankment around the west end of the shovel from the north bank to the south bank, or vice versa.

Alexander Nanashe was seen on the north bank of the excavation, near the property line, holding a ruler. Immediately prior to this he was seen on the south bank reading the transit used in fixing the level.

In order to load a truck with dirt, it was necessary that the trucks enter the area from Annadale Street. The truck was then placed with the front in a general easterly direction, toward Annadale Street, and the rear of the truck in a position to receive the dirt from the power shovel bucket.

Gilbert LemMon’s truck, the last of five trucks being loaded, was backed into place. He then got out of his truck and stood, facing west, by the side of the truck cab while the dirt was loaded. When the loading was completed, the shovel operator indicated a full load, and Gilbert LemMon got into his cab and drove toward the exist. The shovel operator then moved his shovel to straighten the bottom of the bank. No other truck was on the premises when LemMon pulled away from the shovel.

After completing the work on the bank, the shovel operator looked for his helper, and discovered his body lying on the ground, face down, in the excavated area, about 12 feet south of the bottom of the north bank and 50 feet east of the power shovel. The grade stake was lying just west of the body, parallel to the soles of his feet. The ruler decedent had been holding was immediately west of the grade stake.

The grade stake was broken and had the appearance of tire marks over it at the point of the break. The body had tire marks on it, which extended from the right knee across the entire body, crushing the head. A police officer who investigated the occurrence identified the tire marks as the “tread marks of the left rear dual of the truck that passed over the body.” The truck of Gilbert LemMon had, as the officer said, “identical marks as those that passed over the body.” On the left rear outside tire of the dual tires on LemMon’s truck was a blood spot.

The officers on the scene looked at the treads of some other trucks, and found none to compare with the tread on the body of the decedent, and made no other investigation as to the cause of death or as to the vehicle which passed over Nanashe’s body.

The shovel operator last saw Alexander Nanashe standing on the north bank, directly above the power shovel; a minute before that Nanashe was seen by the operator standing on the south bank. LemMon said he did not see Nanashe at any time that morning. He also said he saw no one ahead of him as he pulled out of the area being excavated, and he said he did not know if his truck ran over the deceased. He further said that nothing unusual happened when he drove out of the excavation area.

At the trial of the action for wrongful death, the court directed a verdict for Gilbert LemMon and entered a judgment thereon. An appeal was thereafter perfected to this court by Mrs. Nanashe as administratrix, the appellant herein.

The appellant says the trial court erred in the following respects:

“1. The court erred in sustaining defendant’s motion to arrest said cause from the consideration of the jury and to enter a verdict for the defendant, said motion having been entered by defendant at the close of plaintiff’s evidence.

“2. The court erred in the admission and exclusion of evidence.

“3. Other errors of law appearing in the record.”

The principal question to be decided herein is whether, giving the facts the most favorable interpretation in behalf of Ellen Nanashe, there is sufficient evidence, in behalf of the claims of Mrs. Nanashe, to present the matter to the jury. See: Wilson v. Peoples Ry. Co., 135 Oh St 547, at p. 551.

The circumstances surrounding the occurrence at the excavation gives rise to a very strong inference that the left rear tire of Gilbert LemMon’s truck passed over the body of Alexander Nanashe. The tire tread marks and the blood on the tire almost compel the conclusion that the LemMon truck crushed the body of the decedent.

As we view the evidence, a difficulty to be overcome, because of a lack of evidence bearing on the subject, is an explanation as to how Nanashe got down off the north bank on to the floor of the excavation. Was he knocked down by the bucket of the power shovel; did he slip off the rim of the excavation and strike his head, rendering him unconscious; did he suffer an attack of some nature, causing him to fall the 7 or 8 feet into the excavation, and which fall caused his body to roll into the path of the truck?

These are a few of the unanswered questions that no evidence in the bill of exceptions can solve.

All of the evidence discloses only that the outside left rear dual tire of the LemMon truck passed over the body. There is no evidence that any portion of the front of that truck struck Nanashe, nor that a front tire touched any part of his body. In what position, then, was Nanashe, if the truck was the instrumentality which knocked him down?

A picture of the truck is in the bill of exceptions, and a driver of such a truck could easily observe a man in front of the vehicle. The truck driver said he did not see Nanashe at any time that morning, and that he was looking ahead in the path which he took in driving toward the street exit. The fact that a rear tire passed over the body may give rise to conflicting inferences: first, that Nanashe was struck by the side of the truck; or, second, that he was lying on the ground when the truck came along.

If we accept the obvious and compelling inference that the LemMon truck ran over and crushed the body of Alexander Nanashe, can we then infer that the negligence of LemMon caused the death?

The inference of negligence must arise, not from the fact of death, but from the circumstances attending and surrounding the death. In other words, the inference of negligence must arise from the nature of the occurrence and the circumstances, and not from the mere fact of the occurrence.

Does the doctrine of res ipsa loquitur apply herein? This rule is stated in the case of Glowacki v. North Western Ohio Ry. Power Co., 116 Oh St 451, as follows:

“1. The rule of res ipsa loquitur is not a substantive rule of law. It is rather a rule of evidence which permits the jury, but not the court in a jury trial, to drawn an inference of negligence where the instrumentality causing the injury is under the exclusive management and control of one of the parties and an accident occurs under circumstances where in the ordinary course of events it would not occur when ordinary care is observed. It is an evidential inference, not controlling upon the jury, but to be considered by the jury under proper instructions. A like inference under like circumstances may be drawn by the court when the court is the trier of the facts.”

In 1 Shearman and Redfield on Negligence (Rev. Ed.), Sec. 56, at p. 150, the author says:

“The doctrine of res ipsa loquitur is not an arbitrary rule. It is rather a common-sense appraisal of the probative value of circumstantial evidence. It is a rule of reasonable inferences.”

In this action it was necessary for the plaintiff to establish by a preponderance of the evidence (1) a duty owed to the decedent; (2) a negligent breach of that duty; and (3) the death of Alexander Nanashe resulting proximately from the breach of that duty.

It follows from this, we believe, that before there could be a recovery by Mrs. Nanashe, she was required to establish, by evidence, circumstances from which it could fairly be inferred that there was reasonable probability that the occurrence resulted from the want of some precaution which LemMon might and should have taken, and Mrs. Nanashe should have shown what particular precautions should have been taken to avoid the accident.

The doctrine of res ipsa loquitur may in a proper case be invoked to supply some of the proof. This doctrine, however, was never intended to exempt a plaintiff from the burden of proving negligence, or establishing, by evidence, circumstances which make negligence a proper and logical inference.

The evidence shows that; the truck was being driven by LemMon; tire tread marks, like those on the truck, were on the body; the truck was the only vehicle leaving the excavated area after Nanashe was seen standing on the north bank of the land being excavated; Nanashe’s body was crushed; and the crushing that occurred would cause death.

From these facts it may logically be inferred that the truck was the instrumentality that could have caused the death of Nanashe. May it also be inferred that such death proximately resulted because of a failure of LemMon to exercise due care?

In order for a recovery herein we must infer that LemMon knocked Nanashe to the ground; that Nanashe, immediately prior thereto, was standing where he had a right to stand; and that, without fault on the part of Nanashe, LemMon, by not looking when he should have looked, and by not seeing when he should have seen, drove his truck onto Alexander Nanashe, thereby causing his death.

The circumstantial evidence in the instant case does not give rise to the inference of negligence by LemMon which proximately caused the death of Nanashe.

The jury would have been required to speculate and guess as to which of several events did transpire prior to the crushing of the body of Nanashe, and such guessing is not permitted under the law.

We have herein a different situation than is found in some of the Ohio cases where the rule of allowable inferences has been followed. See: East Ohio Gas Co. v. Van Orman, 41 Oh Ap 56; St. Marys Gas Co. v. Brodbeck, Admr., 114 Oh St 423.

In the case of Gedra v. Dallmer Co., 153 Oh St 258, the court held:

“1. In a negligence action, it is essential for recovery that plaintiff prove by a preponderance of evidence not only that defendant was negligent but also that defendant’s negligence was a direct or proximate cause of plaintiff’s injury.

“2. In a negligence action, it is not sufficient for plaintiff to prove that the negligence of defendant might have caused an injury to plaintiff but, if the injury complained of might well have resulted from any one of several causes, it is incumbent upon plaintiff to produce evidence which will exclude the effectiveness of those causes for which defendant is not legally responsible.

“3. In such an action, if the cause of an injury to a plaintiff may be as reasonably attributed to an act for which defendant is not liable as to one for which he is liable, the plaintiff has not sustained the burden of showing that his injury is a proximate result of the negligence of the defendant.”

The situation in the instant case compels us to determine that the appellant, Ellen Nanashe, did not sustain the burden of showing that the death of her husband was proximately caused by the negligence of Gilbert LemMon.

We have examined the other claimed errors, and find none prejudicial to the substantial rights of the plaintiff.

The judgment herein must therefore be affirmed.

Judgment affirmed.

DOYLE and STEVENS, JJ, concur.