author: By THE COURT: By THE COURT:

text:
    VAL DECKER PACKING CO., Plaintiff-Appellant, v. TREON, Defendant-Appellee.
    Ohio Appeals, Second District, Miami County.
    No. 451.
    Decided November 18, 1950.
    Estabrook, Finn & McKee, Dayton, for plaintiff-appellant.
    Shipman & Shipman, Troy, for defendant-appellee.
   OPINION

By THE COURT:

This is an appeal on law from a judgment rendered in favor of defendant-appellee by the Common Pleas Court of Miami County.

Plaintiff-appellant instituted an action for a declaratory judgment wherein it alleges that it was the owner of a farm in Miami County which the defendant operated for the plaintiff from 1942 to 1948 under an oral agreement whereby each was to receive fifty per cent of the profit; that from time to time accountings had been made and profits equally divided; that defendant failed to properly account for certain dairy operations. Plaintiff further alleges that some time prior to September 16, 1946, plaintiff and defendant orally agreed to undertake the feeding of 270 western feeder steers on said farm, the plaintiff to purchase and pay for the same, the defendant to receive as added compensation for the care of said cattle the sum of $20.00 per day; that the cattle were purchased by the plaintiff and delivered to said farm; that said cattle were retained on the farm for 30 days, after which 266 steers were delivered to and slaughtered in the packing plant operated by the plaintiff. The 4 steers remaining were kept on the farm and subsequently sold and the proceeds accounted for. Plaintiff further alleges that defendant claims fifty per cent of the alleged profit realized on the 266 steers; that plaintiff tendered a check to the defendant for $793.13 covering the agreed sum of $20.00 per day for a 30-day period, and $193.13 for the cost of feed furnished from defendant’s stock; that defendant accepted, retained and later cashed the check which was tendered in full satisfaction of any and all claims of defendant arising out of said transaction. Plaintiff prays for a declaratory judgment with respect to the rights, duties and liabilities of the parties arising out of said oral agreement.

To plaintiff’s petition defendant filed an answer and cross-petition in which the defendant admits certain allegations in plaintiff’s petition but denies that there is anything due from defendant to the plaintiff under the regular partnership agreement for the operation of the farm; then follows a general denial. The defendant as a second defense, and by way of cross-petition, alleges that the plaintiff and defendant entered into an oral agreement with respect to the 270 steers, which provided that after said steers were sold all costs of purchase and feeding and other expenses in connection therewith should be deducted and the profits should be equally divided between plaintiff and defendant; that it was further agreed that in the event no profit was realized the plaintiff was to pay the defendant $20.00 per day for his care of the cattle. Defendant further alleges he cared for said cattle for a period of thirty days and at the end of said period the cattle were taken from the farm and slaughtered by plaintiff company. Defendant alleges that he received plaintiff’s check in the amount of $793.13 and was advised by the officers of plaintiff company that the check covered the defendant’s compensation at the rate of $20.00 per day; that he was further advised by the plaintiff, through its officers, that there was no profit realized on the transaction involving the 266 steers; that on or about January 15, 1947, he was advised by the officials of the plaintiff company that unless he cashed the check and accepted said payment he would receive nothing for his work and that said officers reiterated that said cattle were sold at a loss and that by reason of such fraudulent representation he was induced to cash the check.

Plaintiff further alleges that subsequently he learned that a profit had been realized on the transaction involving the 266 steers slaughtered by plaintiff company; that one-half of said profit amounted to $7,644.94, and that after deducting therefrom the amount of the check ($793.13) there was due defendant from the plaintiff the sum of $6,851.71 with interest at six per cent from October 19, 1946.

To the defendant’s cross-petition the plaintiff filed an answer consisting of three defenses. In the first defense plaintiff admits certain allegations in the cross-petition and reiterates its claim that defendant was to be compensated for his work in caring for the steers at the rate of $20.00 per day; and then follows a general denial. In its second defense plaintiff alleges that no profits were realized on said transaction. For its third defense plaintiff alleges that defendant received $793.13 in full satisfaction of any obligations due the defendant by reason of said transaction. Plaintiff further alleges that on January 14, 1947 the regular partnership operation of the farm was accounted for and settled; that on July 23, 1947 another accounting and settlement was had between plaintiff and defendant involving the regular partnership operation of the farm, and again upon the termination of de-. fendant’s tenancy in March, 1948, a final accounting and settlement was had involving the regular partnership operation. To this answer of the plaintiff the defendant filed no reply.

It was stipulated and agreed by the parties to submit the issues to a jury. The jury rendered a verdict for the defendant for the amount prayed for. Plaintiff’s motion for new trial was overruled and judgment entered on the verdict.

The first error assigned is that the court erred in overruling plaintiff’s motion for a directed verdict at the close of defendant’s case. Plaintiff contends that since the defendant did not file a reply to plaintiff’s answer to the defendant’s cross-petition, the allegations of plaintiff in its answer respecting the accountings and settlements arrived at between plaintiff and the defendant on January 14, 1947, July 23, 1947 and in March, 1948, respecting the regular partnership operation of the farm, were not controverted and therefore, must be taken as true; that said settlements operated as full settlements for all obligations. In our opinion the accountings and settlements involving the regular partnership operation of the farm did not encompass and were not intended to include obligations or rights of the parties arising out of the oral agreement involving the 266 steers.

Plaintiff contends that defendant’s acceptance and cashing of the check dated December 14, 1946 constituted an accord and satisfaction. Defendant admits he received $793.13 by check on the transaction. Accompanying the check was a letter signed by Walter O. Decker, Vice-President of plaintiff company, which the defendant received, the pertinent part being as follows:

“We are pleased to enclose our Check No. 3654 in the amount of $793.13, covering the feeding and handling of the 266 steers which were returned to our plant on October 18th and 19th, 1946.
“This check, as above, covers 75 bu. corn, etc. * * *. As per our agreement we are also allowing you $20.00 per day for 30 days feeding of these cattle, amount $600.00. Thus the total amount due you is $793.13, which we trust that you will find in order.”

Plaintiff contends that the words “The total amount due you is $793.13” shows an intention on the part of plaintiff that the check was given in full satisfaction of defendant’s claim on this transaction. The defendant offered evidence that before the check was cashed an officer of plaintiff company informed the defendant that if he did not accept and cash the check he would receive much less than the amount of the check. In Vol 34 A. L. R., page 1036, the controlling rule is stated as follows:

“By the great weight of authority the acceptance and use of a remittance by check, purporting to be ‘in full,’ or employing words of similar import, or accompanied by a letter to that effect, amount to an accord and satisfaction of the larger claim of the creditor, assuming that the claim was unliquidated or disputed, so that an express agreement to accept, and the actual acceptance of, the smaller amount in full satisfaction, would have been binding.”

In Vol. 1 O. Jur., page 164, the text is as follows:

“But where there is a controversy existing between the' parties regarding the amount due, the tender by the debtor of a check marked ‘in settlement of account in full,’ and the acceptance and use of it by the creditor, operates as an accord and satisfaction.”

In support of the above text the case of Bettman v. Sporkin, 6 Oh Ap 23, is cited. See also Vol. 1 Am. Jur. page 223, Section 22; Vol. 1 C. J. S. page 523, Section 33; Wellnitz v. Dependabilt Homes, 48 Abs 371, 74 N. E. (2d) 776; Platt v. Penetryn System, 151 Oh St 451, 86 N. E. (2d) 600.

We are of the opinion that it may be reasonably implied from the words used in the letter and the statement by the officer of plaintiff company that the check was intended to be payment in full for the amount due the defendant and that the defendant was informed of plaintiff’s intention. However, the defendant claims that he was induced to accept the check by reason of the alleged fraudulent representation made by the officers of the plaintiff company to the effect that no profit had been realized on the transaction. The plaintiff contends that the defendant did not rely on such representations and, therefore, the defendant has not proven all of the elements of fraud. The defendant, in giving his reason for cashing the check, testified as follows:

“After I got that I had to make out my income tax and I knew that I had this much money coming, I knew the cattle made that much money — Plaintiff’s objection overruled — and I knew that I had this much coming, I knew the- cattle did not lose money, so I cashed the checks and had my tax made out.”

It must be observed that under the oral agreement, as the plaintiff understood it, the plaintiff was to pay the defendant $20.00 per day for the care of the cattle, and under the agreement as alleged in the defendant’s cross-petition he was to receive $$20.00 per day and, according to his testimony, he was to receive a reasonable sum for his work, if no profit was made. Under either version of the oral agreement the defendant was entitled to $20.00 per day or a reasonable sum for his work. This situation explains the statement of the defendant to the effect that he knew he had that much money coming. The plaintiff claims that the defendant did not rely on such representations and points to the statement of the defendant to the effect that he knew the cattle did not lose money. The evidence is in conflict as to the weight and grade of the cattle and the market price at the time of slaughter. The defendant introduced evidence in support of the allegations in his cross-petition that the plaintiff company, through its officers, falsely represented that no profit had been made on the transaction. The defendant testified that one of the Deckers told him: “We didn’t make any money. They didn’t weigh any more than they did in Kansas,” and “Bob, them cattle didn’t make any money. We took them cattle in at 21c”; that one of the Deckers brought out to the farm company records to show the defendant that the company at the time of slaughter had purchased other cattle at 20c-22c and 23c per pound. The defendant had no knowledge of the truth or falsity of these representations. The president of the plaintiff company denied that he had told the defendant that the cattle lost money and testified: “In fact, I didn’t know whether they lost money or made money, to tell the truth about it.” In view of this statement, how can it be claimed the defendant did not rely on such representations? In determining whether the defendant relied on the representations of the plaintiff that no profit was made on the transaction, the statements made by the plaintiff and defendant must be considered in light of the method of doing business, as well as the conduct of the defendant before and after the check was cashed. For a period of years it was the practice for the plaintiff and defendant to make semi-annual settlements for the regular partnership operation of the farm. The plaintiff kept all the records and semi-annually would make up a written report of receipts and disbursements and send it, together with a check for the amount due, to the defendant. The defendant accepted the reports and checks and raised no question as to their accuracy. The defendant testified: “Because I trusted Bill Decker to be honest and faithful with me.” The evidence shows that in July, 1947 the plaintiff notified the defendant to vacate the farm in March, 1948, which he did. This action was instituted in May, 1948. For a period of many months after the check was cashed the defendant accepted the situation and it was only after the elapse of six or seven months that he had his records examined by a friend and then made a claim. The statement of the defendant that he knew the cattle did not lose money may be regarded as an expression of an opinion and does not take from the jury the determination of the question as to whether the defendant relied on the representations of the plaintiff. In view of the entire factual development we cannot say that reasonable minds could not differ on this matter. Whether or not fraud was proven, and whether defendant relied on the false representation, was a factual matter for determination by the jury. The facts in this case fall within the principle of law laid down in Pope v. Mudge, 108 Oh St 192, 140 N. E. 501, wherein it is held:

“it is error for the court to direct a verdict against the plaintiff, where, by giving to the evidence the most favorable interpretation toward him which any of the evidence will reasonably warrant, there is some evidence tending to support the allega? tions of the petition.
“If, in ruling upon a motion to direct a verdict, the court is required to detect the truth from conflicting evidence of the same or different witnesses, the motion should be overruled.”

In the case of Pope v. Mudge the plaintiff, who was asking relief on the ground of fraud, had stated in a deposition that he did not believe the things that Mudge said about his attorney. The court in its opinion, on page 198, in discussing whether this statement of the plaintiff was sufficient to take the case from the jury on the question of non-reliance on the representations made, said:

“In his charge to the jury sustaining the motion and directing the verdict he quoted at considerable length from the deposition wherein Pope asserted that he did not believe the things that Mudge said about his attorney, and were there no other testimony in Pope’s deposition than that quoted the action of the trial court in directing a verdict would not be disturbed by this court. * * * While he did categorically deny that he believed the statements, he also undertook to describe the effect of the statement upon his mind and his resultant conduct thereafter.
“In arriving, therefore, at the probable truth of the matters testified to by him, it requires the consideration of his physical and mental condition as disclosed by the deposition and other evidence, consideration of inconsistent and contradictory answers in connection with each other and other evidence, consideration of the conclusions of the witness in connection from which such conclusions were drawn, whether such facts warrant the conclusions, whether the conduct of the witness was consistent with the conclusion he declared, if not, whether the expressed conclusion is to be believed in preference to the conduct, the succession of events, as detailed by the witness and other witnesses, in connection with the admitted fact that he had a verdict for the sum of $25,000. * * * In short, in detecting the truth of the matters testified to, it requires the exercise of the function of a trier of facts, whose privilege it is to believe testimony which he finds worthy of belief and to disbelieve testimony which he finds unworthy of belief. Such is the function of a jury.”

In our opinion the trial court properly submitted to the jury the issue as to whether the defendant relied on the representations of the officers of the plaintiff company. All the other elements of fraud clearly appear. Since the jury returned a general verdict without interrogatories we may assume that this issue was resolved in favor of the defendant. On this issue, and all the determinative issues in the case, the evidence was in conflict. There is sufficient evidence on this issue to support the verdict of the jury.

Plaintiff contends the court erred in refusing to give two special instructions to the jury requested by the plaintiff. The special instructions submitted failed to include a finding by the jury on the issue of fraud. Since the instructions requested not only stated principles of law applicable to certain issues in the case, but also required the jury in the event it resolved certain issues in favor of the plaintiff to return a verdict for the plaintiff, it was defective in that it did not include a finding by the jury on the issue of fraud.

Plaintiff contends the court erred in overruling plaintiff’s motion for new trial on the ground of misconduct of the jury.» The motion for new trial was supported by affidavits to the effect that the jury deliberated twenty-one minutes before reaching a verdict. There is no statutory provision prescribing the length of time a jury shall deliberate before reaching a verdict. In Vol. 64 C. J., page 1019, Section 808, the rule is stated as follows:

“While the verdict should be the result of sound judgment, dispassionate consideration, and conscientious reflection, and the jury should, if necessary, deliberate patiently and long on the issues which have been submitted to them, yet, where the law does not positively prescribe the length of time a jury shall consider their verdict, they may render a valid verdict without retiring, or on very brief deliberation after retiring, although the trial court may, in its discretion, cause the jury to reconsider the case if their decision is so hasty as to indicate a flippant disregard of their duties.”

In Vol. 39 O. Jur., page 1072, Section 342, the Ohio rule is stated:

“The law does not prescribe any length of time that a jury shall remain out in the consideration of their verdict; this, according to the general rule, is a matter addressed to the discretion of the trial court.”

Finding no error in the record prejudicial to the rights of the plaintiff the judgment is affirmed.

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

ON APPLICATION FOR REHEARING

No. 451. Decided December 21, 1950.

By THE COURT:

This matter was submitted to the Court on application for rehearing. While the rules of Court do not now provide for filing such application, this Court will recognize such application and pass on any matter of merit which is raised. Motion of defendant-appellee to strike the application for re-hearing is overruled.

The only matter raised in the application which has not already been considered by the Court and reflected in its opinion is the line of testimony which appears on page 170 of the record where the defendant-appellee testified he had certain information which was not furnished by the Deckers. Plaintiff-appellant cites this line of testimony to show that defendant-appellee did not rely on statements made by the Deckers. However, the record clearly shows that the information which came to the defendant-appellee related to the price at which the beef was sold by the Decker Company to its dealers and had nothing to do with the market price of the beef on hoof.

The testimony does not show a definite and certain spread between the market price of the steers on the hoof and the price at which the packing company delivered beef to the dealers. Whether or not profit was made on the transaction was determined by the weight of the steers and the market price on the hoof at the time of slaughter. One of the elements that entered into the market price was the grade of the cattle at the time of slaughter. Whether the defendantappellee relied on the statements made by the Deckers was a factual matter to be determined by the jury.

Application denied.

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


source: Caselaw Access Project

author: By MCLAUGHLIN, J.

license: Public Domain

text:
    SCHAFER v. BOARD OF EDUCATION OF ALLIANCE CITY SCHOOL DISTRICT et.
    Common Pleas Court, Stark County.
    No. 91039.
    Decided August 8, 1950.
   OPINION

By MCLAUGHLIN, J.

The pleadings, consisting of the petition of the plaintiff and the composite answer of the defendants and the reply of the plaintiff present one issue of fact, as follows: Did plaintiff, Russell E. Schafer, resign his position as Superintendent of the Alliance City Schools at the meeting of the School Board held on May 29, 1950?

The petition of the plaintiff claims, in substance, that plaintiff is the duly elected, qualified and acting Superintendent of Schools of Alliance City School District, Stark County, Ohio, by virtue of election, employment and appointment thereto by the Board of Education of Alliance City School District, as previously constituted for a period of five years, beginning August 1, 1949, and ending July 31, 1954.

It is claimed in the composite answer of the defendant that the plaintiff resigned his position at a meeting of the Alliance Board of Education held on May 29, 1950, and that at said meeting the board duly accepted the plaintiff’s resignation.

Certain facts about the meeting of May 29 are important. First of all, that was the same evening on which another meeting, called in the record the Coppock meeting, was held. The Coppock meeting was called for 8 P. M. It was in commemoration of one of the high school teachers who was retiring after long years of service, and Mr. Schafer was to have a prominent part in the program. It was the Monday evening just previous to the week of Commencement. It was after an affidavit had been filed in the Alliance Municipal Court against Mr. Schafer, the plaintiff, charging him with assault and battery on one of his pupils named Hawkins, and the whole matter is referred to in the record as the Hawkins incident. This meeting of the Board of Education was held at the regular meeting place, but the record shows that the Board could not have been together as a group for a period of time over thirty-five minutes, at most. All board members were present. Plaintiff was present. The regular clerk was absent and was not notified, of the meeting, although the record shows he did attend the Coppock meeting and was therefore available for this board meeting.

In support of defendant’s claim of plaintiff’s resignation and its acceptance by the board on May 29, 1950, the minutes of that gathering show the following:

“Mr. Schafer was then asked to rejoin the meeting, which he did. Mr. Robertson informed him that the Board desired his resignation. Mr. Schafer then said ‘When do you want my resignation?’ Mr. Robertson then said ‘We would like to have it now with your service to terminate July 31, 1950.’ Mr. Schafer said ‘If that is what you want there is nothing else for me to do. How long do you want me to remain around here? My usefulness is now through.’ Mr. Robertson said ‘You need not remain around after commencement.’ Mr. Schafer said during the meeting when the Barry Hawkins matter was referred to T realize that I have made a serious mistake.’ He also stated that he had only hit the boy once.
“A discussion was then had by the members of the Board and Mr. Schafer with respect to the manner and time for the release of the news of Mr. Schafer’s resignation. It was stated that perhaps it would be better for Mr. Schafer and the graduating class activities if the news was not released until after commencement. Then Mr. Schafer said ‘It makes no difference to me when the announcement is made. It will be on the streets tomorrow anyway. It makes no difference to me whether you announce that it was a voluntary resignation or a resignation by request.’ ” (End of quoted minutes.)

Everyone there, except plaintiff, knew why they were there and what they wanted to accomplish. Their purpose of meeting together was to get plaintiff to resign his position. This was a serious and very important business. The employment or retaining in their employ of a Superintendent of Schools is perhaps the most important of all matters that can come to the attention of any School Board. The clerk of the board was not notified of this gathering and was not present. No explanation was given as to why he was not there. Apparently he was available and this court, knowing his faithfulness to duty, does not look with favor upon this arranged absence. This court ventures to say that if the regular clerk had been there, the confusion and uncertainty as to what actually happened there would have been avoided. However, the clerk was not a member of the board, his attendance is not a prerequisite to a lawful meeting. There is conflict in the testimony about the choosing and functioning of a clerk pro tempore. A presumption favors the regularity of proceedings of a School Board, which this court applies to this meeting and therefore accepts the story that Mr. Olds was duly chosen clerk pro tempore as provided by law, and even though he states that he made no notes at the gathering and had nothing to tie his minutes to, 12 days later, except his own memory, and even though he apparently participated in a studied attempt, aided by another board member, and board counsel, to doctor the minutes of the purported meeting, this court applies the presumption of regularity and accepts the minutes so prepared, as the best evidence of what did happen.

The board knew or should have known that plaintiff was under pressure of the Hawkins incident, of the Coppock party and of approaching commencement. These circumstances together with others lend themselves to a picture of entrapment and certainly give credence to plaintiff’s story that what he did say at the meeting was. under duress.

Accepting the doctored minutes as the best evidence of what actually took place at this May 29 meeting, this court is of the opinion that what plaintiff did say, he said under undue pressure and was not legally bound by it. Further, this court is of the opinion that what he did say did not amount to a resignation in any event.

Certain legal requirements apply to meetings of the Board of Education and the cases of Ohio are explicit to the effect that these requirements are mandatory and non-compliance therewith invalidates all proceedings which take place.

Sec. 4834-2 GC provides as follows:

“Absence of Clerk. If a clerk of a board of education is absent from any meeting of the board of education the members present shall choose one of their number to serve in his place pro tempore.”

And §4834-3 GC provides:

“Record of Proceedings. The clerk of the board of education shall record the proceedings of each meeting in a book to be provided by the board for that purpose which shall be a public record. The record of proceedings at each meeting of the board shall be read at its next succeeding meeting, corrected, if necessary, and approved, which approval shall be noted in the proceedings. After such approval, the president shall sign the record and the clerk attest it.”

Sec. 4834-1 GC provides, in part, as follows:

“Quorum: ‘yea’ and ‘nay’ vote. * * * Upon a motion to adopt a resolution * * * to employ a superintendent or teacher * * * the clerk of the board shall publicly call the roll of the members composing the board and enter on the records the names of those voting ‘aye’ and the names of those voting ‘no’ * *

This court is of the opinion that the words “to employ” as contained in §4834-1 GC embody and epcompass the words “not to employ” and the words “to accept or not to accept a resignation” and the words “to retain or not to retain a Superintendent of Schools.”

We find in the opinion of Hart, J. in the case of State ex rel. Rutherford v. Barberton, 148 Oh St, 242, 35 O. O. 222, at the bottom of page 245, these words:

“* a- * it would seem .to follow that the determination not to employ must be reached by the same formality and solemnity as was required to affect his original employment. In other words, it would require Board action at a regular meeting or a special meeting for that purpose * *

Certainly, such a matter is all important and serious. The business of employing or ceasing to employ or accepting a resignation, which means the termination of the employment of a Superintendent of Schools, is one of the most important if not the most important of matters, that any School Board has to consider at any time, and we therefore hold that it comes within the purview of the statutory provision requiring the calling of the roll for “aye” or “no” vote and the entering of such upon the public records.

Sec 4834-3 GC contains the provision that the record of proceedings at each meeting of the board shall be read at its next succeeding meeting, corrected, if necessary, and approved, which approval shall be noted in the proceedings. It does not state that they shall be read, corrected and approved at the next regular meeting or at the next special meeting, but the Legislature intended, evidently, that the records of proceedings of a meeting should be read, corrected, if necessary, and approved at the next meeting of the board, be it special or regular, because that is the time when the matter of the whole proceedings is fresh in the minds of the board members and the time when they are best able to make corrections and approvals.' Any other method leads to confusion and uncertainty, as it did in this case.

A careful perusal of the minutes of the May 29 meeting and a minute examination of all the quotes of Mr. Schafer therein, does not disclose any words of actual or factual resignation. Nor does the same careful examination disclose any words of actual or factual acceptance of any resignation.

However, if the court were to hold, and it does not here do so, that there was sufficient words said in the May 29, 1950 gathering of the School Board to constitute a valid resignation and an acceptance thereof, we do hold that the proceedings of that gathering respecting and pertaining to the Schafer matter are a nullity because of non-compliance with statutory requirements which we hold to be mandatory.

Likewise, all proceedings with reference to the Schafer matter become a nullity by reason of non-compliance of the mandatory words of §4834-2 GC, which require that the record of the proceedings of each meeting be made in a book to be provided by the board for that purpose, and which shall be a public record, and that the record of proceedings at each meeting of the board shall be read at its next succeeding meeting, corrected, if necessary, and approved, which approval shall be noted in the proceedings.

The issue of fact is therefore resolved in favor of the plaintiff.

' There is also presented an issue of law, upon which issue it is the further finding of this court that Mr. Schafer did resign in writing, which is Plaintiff’s Exhibit 1, in this case:

“May 30, 1950

Mr. H. Gordon Robertson, President,

Alliance Board of Education,

American Steel Foundries,

Alliance, Ohio.

Dear Mr. Robertson:

There must be some more pleasant way to earn a living than being a superintendent of schools and I hope to find some such a way. Therefore, will the Board of Education please accept my resignation as of July 31, 1950?

Until that time I will perform such duties as the Board may desire me to do to the best of my ability. I will appreciate it if this resignation is accepted by the Board at its earliest possible convenience so that I may be free to begin other plans.

I appreciate the cooperation which the Alliance Boards of Education have given me while I have been Superintendent of Schools and I sincerely hope the work of the schools goes forward to the full satisfaction of all who are interested.

Sincerely yours,

RESrdl (Signed) Russell E. Schafer”

and that by the withdrawal in writing, which is Plaintiff’s Exhibit 2 in this case:

“Alliance, Ohio

June 3, 1950.

Alliance Board of Education,

Alliance, Ohio.

Attention: Mr! H. Gordon Robertson,

President.

I hereby withdraw my resignation as Alliance Superintendent of Schools heretofore given on May 30, 1950.

Respectfully yours,

(Signed) Russell E. Schafer

Russell E. Schaffer”

any act by way of accepting the resignation was a complete nullity. We reach this conclusion as to the law by virtue of the decisions of State ex rel. Rutherford v. Barberton, 148 Oh St, 242, 35 O. O. 222, State ex rel. Staley v. Lakewood, 47 Oh Ap, 519, and Babbitt v. Shade, 60 Oh Ap, 100, 13 O. O. 447, particularly pointing out the fifth syllabus in the Lakewood case, which reads:

“Officer’s resignation to take effect in future may be withdrawn before effective date thereof, even against will of body which has accepted it.”

By withdrawing his resignation before the effective date, the Board of Education of the Alliance City School District were placed in the position, in the event they desired to dispense with the services of the plaintiff as Superintendent of Schools, of being obliged to file charges to remove him, according to law.

The issue of law is therefore resolved in favor of the plaintiff.

It will therefore be ordered that the restraining order pendente lite heretofore issued by this court be made permanent and the court will find and declare that the plaintiff, Russell E. Schafer, is the duly acting, appointed and elected Superintendent of Schools of the Alliance City School District, and is entitled to continue in such office until July 31, 1954, unless and until his contract of employment between the Board of Education of Alliance City School District and the plaintiff, Russell E. Schafer shall hereafter be terminated in accordance with the laws of the State of Ohio.

The court will further find and declare that the defendant Board of Education was and is without rights to declare or treat plaintiff’s office of Superintendent of Schools of the Alliance City School District as vacant and that no such vacancy has existed at any time since Mr. Schafer and the defendant board consummated his present contract of employment.

Plaintiff to prepare entry. Exceptions to the defendants.


author: By HORNBECK, J.

text:
    SHEARER, Plaintiff-Appellant, v. STATE MEDICAL BOARD, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4412.
    Decided June 14, 1950.
    Hon. Herbert S. Duffy, Atty. Genl., Joseph F. Ford, Asst. Atty. Genl., Columbus, for plaintiff-appellant.
    Waymon B. McLeskey, Columbus, for defendant-appellant.
   OPINION

By HORNBECK, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court affirming the action of the appellee in suspending, for one year, the certificate of appellant to practice Osteopathic Medicine and Surgery.

Twelve errors are assigned. The numbered headings in the assignments of error are not conformed to in the brief of the appellant which sets up the questions presented under seven headings, as follows:

1. Was William Henning “an illegal practitioner of medicine” in connection with the alleged treatment of Dwight Williams?

2. If so, did the appellant have any “professional connection with” said Henning?

3. If not, did said appellant lend his name to said Henning?

4. Was the conduct of Dr. J. H. J. Upham as a member of the Board prejudicial to the appellant?

5. Was appellant given a fair hearing by said Board within the meaning of Article I, Section 16 of the Ohio Constitution and the Fourteenth Amendment of the Constitution of the United States?

6. Did the Common Pleas Court err as to the basis of its decision?

7. Was the fact that the appellant was not served with a certified copy of the order of suspension prejudicial?

We will not discuss categorically the questions propounded in appellant’s brief.

The charge may be divided into two parts:

1. That on or about June 7, 1946, the said Ernest F. Shearer, D. O., induced one Dwight B. Williams, a patient or Dr. Benedict’s to go to William Henning for treatment and that on June 7, 1946 and at various times thereafter, William Henning prescribed and treated Dwight E. Williams for which treatments he was paid.

2. That other patients of Dr. Benedict were induced' by Ernest F. Shearer, D. O., to go to William Henning for treatments.

Number 1 is completely covered and supported by the testimony of Williams. Number 2 is supported only by hearsay testimony which was not objected to and therefore has some probative value. Number 1 alone, in our judgment, is sufficient to constitute a violation of §1275 GC.

• It is asserted that it does not appear in the occurrence, the subject matter of the claim against the defendant, that he had any professional connection with or lent his name to Henning, an illegal practitioner. It was amply proven that Henning was an illegal practitioner and again, assuming the truthfulness of Williams’ testimony, that he had connection with Shearer that was professional in its character was, upon the advice of Shearer, taken to Henning for professional medical diagnosis and treatment. That pursuant to this connection Dr.- Henning did treat and administer medicine to Williams. This, if established by the requisite degree of proof, in our judgment, meets the intendment of paragraph 4 of the language of §1275 GC “having professional connection with” an illegal practitioner of medicine.

It appears that during the hearing Dr, J. H. J. Upham, a member of the plaintiff Board, passed one or two notes to Mr. Ford, counsel for the plaintiff. One note only is found and made part of the record which reads:

“Did not Shearer testify that Mrs. Holmes worked exclusively for him?”

We cannot say that this. act on the part of a member of the Board indicated prejudice against the defendant. It does not appear that the note was passed secretly. There is nothing in the question which indicates any animus or feeling on the part of the writer. The information sought was germane to the factual matters to be determined. The writer could himself have made the inquiry of the witness. There would have been no impropriety if he had orally requested either counsel to propound the question. In all the action was neither erroneous nor prejudicial.

It is urged that because of the composition of the Board, mostly medical doctors, it was impossible for the defendant, an osteopath, to have a fair trial and that the hearing before this Board as constituted was a denial of the due course of law provision of the Bill of Rights of the Ohio Constitution and the “due process” clause of the Fourteenth Amendment to the Federal Constitution. Academically there is some logic in this argument but we would not hold at this late date that the Medical Act is unconstitutional. It has been tested as to its constitutionality. Shaw v. State, 101 Oh St 507; Newmuth v. State, 101 Oh St 508, 160; and Williams v. Scudder, 102 Oh St 305.

It is also claimed that the order of the Board is invalid because no certified copy accompanied the notice of suspension contained in the letter from the Board to Dr. Shearer. In view of the obvious fact that Dr. Shearer had full and complete notice of the action of the Board and was enabled to avail himself of all remedies set up by law to test the validity of the action of the Board, it is our judgment that this failure to send the certified copy of the order of suspension did not invalidate the order of the Board.

It is assigned that the Common Pleas Court erred as to the basis of its decision in the finding that the appellee “has not been guilty of an abuse of discretion or acted arbitrarily or capriciously.”

The judgment entry in the Common Pleas Court on the appeal says:

“The court on consideration thereof, and being fully advised in the premises, finds that the action taken by the State Medical Board is in conformity with the law and the said appellee has not been guilty of an abuse of discretion or acted arbitrarily or capriciously.”

In the written opinion of the Common Pleas judge on review, he uses this language:

“We have no right to disturb the conclusions and finding reached by the Board unless such findings and conclusions disclose that the Board was guilty of an abuse of discretion, i. e. that the Board upon the record before it acted arbitrarily and capriciously. We are unable to say that the Board in its finding was guilty of an abuse of discretion or that its action was unreasonable and oppressive.”

Upon the subject matter in the controlling statutes, §154-67 to §154-71 GC, inclusive, and the interpretation of the Supreme Court of §154-73 GC in Farrand v. Medical Board, 151 Oh St 222, in the hearing before the Board in this case it was required to follow the rules of civil procedure and to weigh the evidence and place the burden of proof by a preponderance of the evidence upon the Board when the appeal was prosecuted. The Common Pleas Court determined the appeal as upon questions of law and should have applied the test which would be appropriate in civil appeals. So that, one of the questions before the Common Pleas judge was whether or not the action of the Board was against the manifest weight of the evidence. There is a difference between action which is an abuse of discretion and action which is against the weight of the evidence.

Judge Zimmerman in the opinion and the court in the syllabus recognize this differentiation in Steiner v. Custer, et al., 137 Oh St 448. Second syllabus:

“The meaning of the term ‘abuse of discretion’ in relation to the granting of a motion for a new trial connotes more than an error of law or of judgment; it implies an unreasonable, arbitrary or unconscionable attitude on the part of the court.”

The test of the reviewing court to be applied to the order of the Board was whether or not it was against the manifest weight of the evidence. Inadvertently, no doubt, the trial judge failed to test the order by the correct principle of law controlling.

We have observed in some of our opinions that certain acts of administrative Boards are to be tested as upon abuse of discretion, as late as Strohm v. Board of Liquor Control, Franklin County, No. 4333, rendered March 10, 1950 (57 Abs 378), we said that,

“The Department did not abuse its discretion in rejecting the application on the ground of location of the business.”

This was a review of the action of the Board in rejecting the application of the appellant for renewal of certain liquor permits. There was no dispute as to the fact upon which the Board predicated its ruling. Our observation in this situation was correct. So, in the instant case if the Board upon the application of the preponderance of the evidence rule properly found either charge against the defendant to have been proven then it could in the exercise of its discretion determine what punitive measures should be taken under the applicable law.

We have purposely expressed no opinion on the question whether or not the Board acted against the weight of the evidence in making its finding that the charges against the defendant were proven. This prerogative in the first instance should be exercised by the Common Pleas Judge on the review. The cause will be reversed and remanded to the Common Pleas Judge to determine this one question. We have passed on all other errors assigned. The judgment entry should provide that no assignment of error is established except No. 6, that the Common Pleas Court erred as to the basis of its affirmance, viz., that the Board did not abuse its discretion in finding the charges against the defendant to be proven.

Some observation is made in appellant’s brief of the dissent in this Court in State v. Henning, 83 Oh Ap 445. It will be observed that State v. Henning was a criminal prosecution and also that the charges here against the defendant are more specific than in the Henning charge. Some observation is also made as to Farrand v. Medical Board, 151 Oh St 222. The courts inferior to the Supreme Court will, of course, accept the adjudication in this case but we are satisfied that amplification will be required when an appeal reaches the Supreme Court, wherein the Common Pleas Court of Franklin County has granted a request for the admission of additional evidence and it has been received. How shall it be considered inasmuch as the Board did not have such evidence before it and therefore had no opportunity to pass judgment upon it? Is there any other manner in which the Common Pleas Court can consider and determine the newly discovered evidence except as upon de novo hearing? If not, then we have the anomoly of the court reviewing some of the testimony as upon questions of law and some as upon questions of fact. Sec. 154-73 GC is a hybrid in the law which it is difficult to classify, without qualification, under either of the recognized types of appeal.

Judgment accordingly.

MILLER, PJ, concurs.

WISEMAN, J, concurs in judgment.


author: By CONN, PJ:

text:
    PETRICH et al, etc., Plaintiffs-Appellees, v. PETRICH, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21934.
    Decided December 11, 1950.
    G. C. Hafley, Cleveland, for plaintiffs-appellees.
    Stephen A. Zona, Austin T. Klein, Cleveland, for defendant-appellant.
    (CONN, PJ, CARPENTER, J, FESS, J, of the Sixth District sitting by designation in the Eighth Appellate District.)
   OPINION

By CONN, PJ:

Andy Petrich and Emil Olds as executors of the estate of Peter Petrich, deceased, on December 13, 1949, brought an action for a declaratory judgment in the Probate Court against Pauline Petrich and the legatees and devisees under the will of the said decedent.

The facts alleged by plaintiffs’ material here are as follows:

John Petrich died testate May 17, 1949, his will having been executed on October 18, 1947, copy of which was attached to the petition; that said John Petrich and Pauline Lisuch entered into an antenuptial agreement, copy of which was also attached to the petition; that on January 17, 1948, said parties were married; that on June 9, 1949, the defendant, Pauline Petrich, appeared in person in the Probate Court to make her election and the Court explained the provisions of the will and her rights under the law, and she thereupon elected to take under the law; that on June 13, 1949, the appraisers returned the inventory and appraisal of the property of decedent and this return shows that the appraisers set off to Pauline Petrich $2,000.00 for a year’s support and the further sum of' $2,500.00 to her as exempt from administration. Under his will, the testator devised and bequeathed all his property to his children and the issue of any deceased child.

The antenuptial agreement recites that the parties contemplate marriage and contains the usual provisions that by virtue of their marriage neither party shall have or acquire any right, title or claim in and to the separate individual real and personal estates of the other.

In the amended answer and cross-petition of Pauline Pet-rich, the averments of the petition above referred to are admitted. It is further alleged that plaintiffs had knowledge of the existence of said antenuptial agreement, but at no time prior to the filing of said petition was it disclosed to the Court or in any way set up in the proceedings on the estate, within the six months period following their appointment as executors, and that said agreement was disregarded as disclosed by the inventory and appraisement made and subsequently filed in the Probate Court.

It is further averred that Pauline Petrich is illiterate, that she at the time of the execution of said agreement had no knowledge of business or of her legal rights under the statutes of descent and distribution, and that she was not represented by counsel or informed of the amount and value of decedent’s property. Said defendant prays that said agreement be declared null and void and ordered rescinded and her rights secured.

On May 15, 1950 the Probate Court dismissed plaintiffs’ petition and also, the amended answer and cross-petition “on the grounds that the pleadings were not filed within the statutory period.”

From this order the defendant, Pauline Petrich, appeals on questions of law and assigns as error the action of the Court dismissing her answer and cross-petition.

Sec. 10512-3 GC provides as follows:

“Any antenuptial or separation agreement to which the decedent was a party shall be deemed valid unless action to set it aside is begun within six months after the appointment of the executor or administrator of the estate of such decedent, or unless within such period of time the validity of such agreement is otherwise attacked.”

It is conceded that no action to set aside the antenuptial agreement had been begun within the six months’ period. It is urged, however, that the failure on the part of the executors within the six months’ period to bring said agreement into the estate and to the attention of the Probate Court Judge, in order that he might fully explain defendant’s rights thereunder at the time she made her election to take under the law, said defendant having had no counsel; also, the allowance to her made by the appraisers of a year’s support and statutory exemption; that these facts and circumstances amounted to a waiver and had the effect of lulling said defendant to sleep on her rights and that said executors in equity should not be permitted to assert the above statute of limitations. There appears to be some merit in this contention. 25 O. Jur. 633, Sec. 287; 634 Sec. 288.

It is easily inferable that if the Judge of the Probate Court had had knowledge of the existence of the antenuptial agreement, Pauline Petrich would have been advised of the legal effect of same and that following her election she would have consulted a lawyer.

The allegations in defendant’s answer and cross-petition, under the rule of liberal construction applicable here, appears to present an issue of the validity of the agreement on the ground of “fraud in the factum,” which if established would render the antenuptial agreement void. Compare Picklesimer v. B. & O. Railroad Co., 151 Oh St 1.

It follows that if the contract in the instant case were void, there would be no basis upon which the six months’ statute of limitations could be applied in this action. In other words, under the answer and cross-petition of defendant, somewhat inartfully drawn, the issue presented was not exclusively one of law. 31 O. Jur. 878, Sec. 287.

It is our opinion that material fact issues were raised on the pleadings and that the answer and cross-petition of defendant could not be summarily dismissed without first an adjudication of these issues. The order of the Probate Court being prejudicial to the rights of defendant, Pauline Petrich, is reversed and cause remanded to that Court for further proceedings. Exc. O. S. J.

CARPENTER, J, FESS, J, concur.


author: By WISEMAN, J:

text:
    GLENN, Admr., Plaintiff-Appellant, v. STEPHENS, Admx., et, Defendants-Appellees.
    Ohio Appeals, Second District, Greene County.
    No. 514.
    Decided April 21, 1950.
    Routzohn, Routzohn & Nevin, Dayton, for plaintiff-appellant.
    Merritt E. Schlafman, Dayton, for defendants-appellees.
   OPINION

By WISEMAN, J:

This is an appeal on questions of law from the Common Pleas Court of Greene County, Ohio, which rendered judgment for the defendant-appellee, Permelia Stephens, in an action for declaratory judgment.

This action was instituted to determine who was entitled to the proceeds of two life insurance policies issued on the life of the decedent, Sylvan Ray Garver. On January 4, 1943, Garver purchased an insurance policy and a trust certificate (in the nature of an insurance policy) and named his then wife, Jeannette Marie Garver, as beneficiary, reserving the right to change the beneficiary. On July 5, 1944, Jeannette Marie Garver obtained a divorce from her husband in the State of Florida and was restored to her maiden name of Jeannette Stone. On July 18, 1944, Garver, while serving as a pilot in the Royal Air Force, Air Transport Command, and while stationed in the City of Montreal, Canada, executed his last will and testament in which he gave all of his property to his wife, “including all or any insurance policies on my life,” and provided further;

“Should I die unmarried, I hereby give and bequeath all my said property to my grandmother, Mrs. Frank Stephens, presently residing at 43 Clover Street, Fairfield, Ohio.”

On the 16th day of December, 1944, Garver disappeared at sea and was subsequently listed as dead.

The action for declaratory judgment was brought by Jeannette Marie Stone, the former wife of the decedent, for the purpose of securing a judgment declaring that she was entitled to the proceeds of the policies. Permelia Stephens, as an individual and also as administratrix with the will annexed of Sylvan Ray Garver, deceased, and designated in his will as Mrs. Frank Stephens, together with the Investors Syndicate of America, Inc., and The Western and Southern Life Insurance Company, were named parties defendant. The two insuring companies interpleaded, acknowledging their obligation to pay, and paid into court the amount due under their respective policies.

The question presented was whether the insured could change the beneficiary by the execution of a last will and testament. The policies contained provisions setting forth the steps to be taken in order to effect the change of beneficiary. The record does not disclose that the insured made any attempt to change the beneficiary in the manner prescribed in the policies. At the time of the death of the insured, Jeannette Marie Garver remained the designated beneficiary of the policies.

The trial court found that the insured, by the execution of his last will and testament, clearly indicated his intention to change the beneficiary and did all that he could do under the circumstances to effect the change. The court found that the defendant, Permelia Stephens, was the beneficiary and was entitled to the proceeds of the policies.

During the pendency of the action the plaintiff, Jeannette Marie Stone, died, and the action was revived in the name of her administrator, John C. Glenn.

The only error assigned by the plaintiff-appellant is that the judgment of the Common Pleas Court is contrary to law.

It is contended that where a married woman is named as a beneficiary in a policy of insurance on the life of her husband, she is entitled to the proceeds of the policy, notwithstanding a divorce obtained by her before his death. Counsel for the appellant cites in support of this proposition Overhiser, Adm’x v. Overhiser, 63 Oh St 77, 57 N. E. 965; Valentine v. Tewsbury, 38 Abs 220, 49 N. E. (2d) 955; Hergenrather v. Assurance Co., 79 Oh Ap 116, 68 N. E. (2d) 833; Vol. 29 Am. Jur., page 976, Section 1309. It is conceded that the fact that plaintiff’s decedent was divorced from the insured would not deprive her of her right to recover the proceeds of the policies in which she v/as named as beneficiary.

It is also contended that where the policy provides the steps to be taken to effect a change in the beneficiary the provisions of the policy must be followed. 29 Am. Jur., page 984, section 1315. This strict rule of construction has long since been abandoned by the courts in Ohio. It has been held that the provisions' in the policy with respect to the manner in which the change of beneficiary can be effected is for the benefit and protection of the insurer, and may be waived by it. Atkinson v. Insurance Co., 114 Oh St 109, 150 N. E. 748; Arnold v. Newcomb, 104 Oh St 578, 136 N. E. 206; Glen v. Aetna Life Insurance Company, 73 Oh Ap 452, 56 N. E. (2d) 951; The Union Central Life Insurance Company v. Macbrair, 66 Oh Ap 144, 31 N. E. (2d) 172; Penn. Mutual Life Insurance Company v. Mecklenborg, 16 Abs 162.

It has also been held that in any controversy between a former named beneficiary and a new beneficiary, if the insurance company interpleads in an action to recover the proceeds of the policy, it thereby waives any interest in the outcome of the action and the cause shall proceed between the respective claimants uninfluenced by any rights or interest of the insurance company. Atkinson v. Insurance Company, supra.

In the instant case the insuring companies interpleaded and paid the amount due under their policies into court. The companies are no longer interested in the outcome of this proceeding. The above cited cases are authority for the proposition that a strict compliance with the terms of the policy with respect to the method of changing the beneficiary is not required, and if the insured, during his lifetime, clearly indicates his intention to change the beneficiary, the consent of the insurance company is not essential. Atkinson v. Insurance Company, supra.

However, the principle of law laid down in the above cited cases does not reach the question presented here. The question is: Can the insured change the beneficiary by a provision in his last will and testament?

Where the insured reserves the right to change the beneficiary, the interest of the beneficiary in the policy is not a vested interest, but only an expectancy during the life of the insured, contingent upon being the beneficiary at the time of the insured’s death. If no change is made during the life of the insured, the interest of the beneficiary-designate becomes vested on the insured’s death. Katz v. Ohio Nat’l Bank, 127 Oh St 531, 191 N. E. 782; Arnold v. Newcomb, supra, at page 586; Vol. 46, C. J. S. page 62. In Vol. 29 Am. Jur. page 952, Section 1276, it is stated that Upon the death of the insured without changing the beneficiary in fact or legal effect, the fixed rights of the beneficiary cannot be affected by any subsequent act of the insurer. Payment of fund into Court neither improves or prejudices the legal position of either party. McDonald v. McDonald, 212 Ala. 137, 102 So. 38, 36 A. L. R. 761. In Miller v. Miller, 200 Iowa 1070, 205 N. W. 870; 43 A. L. R. 567, it was held that the method prescribed in the policy for a change of beneficiary is exclusive and the insured cannot change the beneficiary by will. In Vol. 46, C. J. S., page 85, is found this statement:

“Where the policy prescribes and limits the method of changing the beneficiary, the method prescribed is generally held to be exclusive to the extent that insured may not change the beneficiary by will and thereby dispose differently of the proceeds of the policy.”

The precise question presented in the instant case was determined in Aetna Life Ins. Co. v. Mallory, 291 Mich. 701, 289 N. W. 302; Cook v. Cook, 17 Cal. (2d) 639, 111 P. (2d) 322, and Parks’ Executors v. Parks, 288 Ky. 435, 156 S. W. (2d) 480. In the Michigan case the court held that the insured did not evidence any intention to change the beneficiary during his lifetime and by will his intention only became effective on his death. In the California case the court held that beneficiaries under a will have no vested rights until the death of the testator; that the right of the beneficiary to the proceeds of a life insurance policy becomes vested upon the death of the insured and no expression in the insured’s will purporting to change the beneficiary can be effective. In the Kentucky case the court held that the right of the beneficiary in a policy of insurance is more than a mere expectancy, but that such right is subject to be defeated by the insured by the exercise of his right to change the beneficiary. The court in that case also held that if the insured does all that he could do during his lifetime to change the beneficiary, a court of equity will regard that as done which ought to have been done and will uphold the change of beneficiary even though the insured did not comply with the terms of the policy in that regard. It also held that the rights of a beneficiary under a policy of insurance became vested upon the death of the insured and that a change of beneficiary cannot be effected by will. The court, on page 442, discusses the exceptions:

“There are cases holding that one may effectually dispose of the proceeds of his life insurance by will even though he had specifically named some individual as beneficiary therein. But we apprehend that most of them dealt with policies which contained no restriction on the manner of changing the beneficiary or were benefit certificates of fraternal societies with special regulations, or the named beneficiary predeceased the insured, or there was a failure to draw a distinction between the conditions of the policies.”

It must be observed that the law applicable to the payment of proceeds on a policy issued by a benefit society is not applicable to the question presented in the instant case.

It is contended in this case that the insured manifested his intention to change the beneficiary during his lifetime by the execution of his last will and testament. This contention is disposed of by the case of Aetna Life Insurance Company v Mallory, supra, which is cited in the Parks case, in which the court makes this statement on page 444;

“In that case a year elapsed between the making of the will changing the beneficiary in the policy and the death of the insured, during which time he did not endeavor to communicate such change to the insurance company. It was held that he was presumed to know the law that a will is ineffective until death and that a change in the beneficiary of the policy could not be made then. It was further held that the will itself could not be said to be a present assignment of the policy because a will is revokable and the beneficiaries named in it have no vested rights before the testator’s death.”

In refusing to apply the equitable principle the court on page 444 said:

“The case at bar is not one where equity should declare done that which ought to have been done by holding the disposition of the will to be a substantial compliance with the conditions of the policies.”

The court then, on page 444, states a very practical reason for its holding:

“On the proposition of non-prejudice and actual protection of the companies in the instant case by reason of these proceedings, it may be suggested that the case must be decided by the rule and the rule cannot be altered to fit the case. We cannot declare the law to be that an insured person may have a post-mortem change in the beneficiary, for such rule would not only destroy vested rights but would be perilous to all insurance companies. None could safely pay the proceeds of any policy until the probate of a will was barred by the statute of limitations.”

See also Wannamaker v. Stroman, 167 S. C. 484, 166 S. S. 621.

On the effect of the insurance companies interpleading and paying the money into court, the court on page 446 stated:

“The appellants press their contention that all the insurance companies in this case waived their rights in that respect by not having pleaded them and by standing by indifferently, merely seeking the direction of the court as to the payment of the proceeds either to plaintiffs or to the defendants. * * * But the better reasoning, it seems to us, and the weight of authority are that the rule of waiver does not extend beyond the death of the insured. That the rights of the beneficiaries vest at that time is not open to question. * *

The court then cites and quotes, from Metropolitan Life Insurance Company v. Jones, 307 Ill. App. 652, 30 N. E. (2d) 937, 939, as follows:

“This position is untenable. When the insurance company was faced with the conflicting claims of defendants, it unquestionably had the right to ask the court by interpleader to determine to which of the claimants the proceeds of the policy rightfully belonged and thereby protect itself against possibility of double liability. It would be a strange doctrine which would permit the insurer to go into court in this manner to protect its own right and by so doing waive the rights of others. The rights of the respective parties to the fund were fixed by law upon the death of the insured and could not be affected by the action of the insurer in bringing the money into court by interpleader in order to be relieved of litigation because of conflicting claims to it.”

We revert to a consideration of the first syllabus in Atkinson v. Metropolitan Life Ins. Co., supra, which is as follows:

“Wherein a life insurance policy contains therein written a condition that such ‘policy is written with the right of the insured to change the beneficiary’, such right is absolute and may be exercised at any time during the lifetime of the insured and the consent of the insurance company is not essential thereto.” (Emphasis ours.)

We have been able to find only one reported case in Ohio in which this question has been determined. In Bennett, Exrx., v. Bennett, 70 Oh Ap 187, 45 N. E. (2d) 614, the first paragraph of the syllabus is as follows:

“Neither the beneficiary of a life insurance policy nor the beneficiary of a joint and survivorship bank account can be changed by a residuary clause in a will.”

On page 188 the Court held:

“The evidence before this court justifies the conclusion that the life insurance money paid to the wife in her individual capacity as the named beneficiary in the insurance policy is not an asset of the estate of her husband, and the provision in the residuary clause of the will which bequeaths to the testator’s son and his wife, ‘share and share alike, all the residue of * * * (the testator’s) estate, both real and personal, including insurance,’ does not effect a change of beneficiary. The evidence is conclusive of the fact that no attempt was made by the testator in his lifetime to comply with the terms of the contract of insurance regulating a change of beneficiary. And under such circumstances the general language used in the residuary clause of his will does not effect such a change when at the time of execution and thereafter the contract of insurance was in force.”

It is elementary that a will is not effective and does not become operative until the death of the testator. We also find the law to be that the right of the beneficiary to the proceeds of a life insurance policy becomes vested upon the death of the insured. The rights of the plaintiff’s decedent, the designated beneficiary in the policies, became vested at the moment that the will of the insured became operative. If we were to hold that the insured may change the beneficiary in a life insurance policy by so providing in his will the effect would be to permit the insured to destroy vested rights. This may not be done. In the instant case, the insured did not manifest an intention by the execution of his will to change the beneficiary in the policies during his lifetime.

The execution of the will in the instant case by the insured, in which he made provision for change of beneficiary of the proceeds of the two life insurance policies in question was not effectual to deprive the person designated in the policies of insurance on the date of his death to the proceeds of said policies. The plaintiff’s decedent, being the designated, beneficiary in the policies at the time of the insured’s death, was entitled to judgment as prayed for.

Judgment reversed.

MILLER, PJ, and HORNBECK, J, concur.


author: By CARPENTER, J.:

text:
    BRITTON, Plaintiff-Appellant, v. LAKEWOOD (City), Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21896.
    Decided December 11, 1950.
    Kuth & Meyers, Cleveland, for plaintiff-appellant.
    Charles J. Ross, Director of Law, Cleveland, for defendantappellee.
    (CONN, PJ, CARPENTER, J, and FESS, J, of the Sixth District sitting by designation in the Eighth District.)
   OPINION

By CARPENTER, J.:

The plaintiff alleged and her evidence tended to prove that she sustained an injury from a fall when she stepped into a hole on the tree lawn of one of the defendant’s streets and that the hole was covered with grass and weeds and she could not see it before she stepped into it; also, that that condition of nuisance had existed for several years and was known to the city or should have been in the exercise of reasonable care. For the resulting damage she sustained she asked judgment against the defendant, basing her claim on §3714 GC.

The answer was a general denial that there was such nuisance, and if one did exist, defendant had no notice or knowledge of it.

Trial was had and the verdict and judgment were for the defendant. A motion for a new trial was overruled, and this appeal on questions of law followed. The assignment of error chiefly urged is that the court in its general charge to the jury charged at length on the issue of contributory negligence when that defense was not pleaded and there was no evidence to warrant it. No where in the record is there any evidence of any negligence on the part of the plaintiff that had any causal relation to the injury and damage she says she sustained.

She had parked her automobile at the right curb of the street and went to a store and purchased some baked goods. While standing on the tree lawn she opened the right rear door of her automobile and placed her packages on the back seat, closed the door and turned to go around to the driver’s seat when she stepped into the grass covered hole and fell.

Under such state of the pleadings and the evidence which was not contradicted, except as to the existence of the hole, the charge on the issue of contributory negligence was error of commission prejudicial to the plaintiff.

In two leading cases the Supreme Court has told us that such charge under those circumstances is prejudicial to the defendant, and certainly it is to a plaintiff. In Syllabus 1 of Cincinnati Traction Co. v. Forrest, 73 Oh St 1, that Court said:

“The rule that the Court ought to adapt its charge to the issues made by the pleadings and the evidence, forbids the introduction into the charge of instruction upon an issue not so raised.”

Following that precedent in Syllabus 1 of Cincinnati Traction Co. v. Stephens, 75 Oh St 171, it said specifically:

“In an action to recover damages for wrongful death, in which there is no issue of contributory negligence in the pleadings, and in which, on the trial, the defense is wholly that the defendant was not guilty of negligence, it is prejudicial error to charge the jury at length upon the subject of contributory negligence, and that there was such an. issue, and that the burden was upon the defendant to establish it.”

In the recent decision in Pearlstein v. McGregor Home 79 Oh Ap 526, the Court of Appeals of this district made a similar decision on this same question present in this appeal and cited many authorities, among them Cincinnati, Georgetown, etc. Ry. Co. v. Burkhardt, 10 C. C. n. s., 543, affirmed 82 Oh St 433. A like decision was Tarian v City of Alliance, 66 Oh Ap 423—(A motion to certify was overruled.)

The defendant contends that the two issue rule precludes the reversal of this judgment even if there was error in charging contributory negligence. That issue not being in the cause, either by pleading or evidence, the two issue rule has no application, and such charge could only confuse the jury.

For this error the judgment will be reversed and the cause remanded to the Court of Common Pleas for a new trial. Exc. O. S. J.

CONN, PJ, FESS, J, concur.


author: By THE COURT.

text:
    RIPPEL, Plaintiff-Appellant, v. RIPPEL et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4365.
    Decided February 27, 1950.
    Matthew L. Bigger, Columbus, for plaintiff-appellant.
    Cowan & Adams, Columbus, for defendants-appellees.
   OPINION

By THE COURT.

This, is an appeal on law from the judgment of the Common Pleas Court of Franklin County, Ohio, sustaining a demurrer to plaintiff’s petition. The plaintiff electing not to plead further, the case was dismissed.

Plaintiff in her petition alleges facts which plaintiff contends show a good cause of action for vacating a judgment rendered by the Common Pleas Court of Franklin County, Ohio, in Case No. 170,753, which was affirmed on appeal by this Court. The opinion of this Court is reported under the title of Rippel v. Rippel, 52 Abs 353, 82 N. E. (2d) 140, to which reference is made for information as to the issues involved and the judgment of the Court.

In the instant case the demurrer to the petition was sutained on the ground that the judgment in Case No. 170,753 was res judicata. The defendant-appellee contends that the issue raised in Case No. 170,753 was between the same parties, involving the same subject matter and issues, and was before a court of competent jurisdiction. The plaintiff-appellant contends that in Case No. 170,753 incompetent evidence was admitted and that by reason thereof the judgment is void. This Court, in reviewing the judgment in that case, passed on this question and found the evidence to be admissible. We reaffirm our holding in that case. In that case the plaintiff-appellant herein was the defendant and claimed that she held a fee simple title in the land conveyed by her grantor who in the will of his deceased wife was given a life estate with power of sale. The deed recited a valuable consideration. This Court held that evidence was admissible to show that no consideration passed and that the conveyance was a deed of gift; that since the grantor had no power under the will to convey by deed of gift, his attempt to so convey failed to pass a fee simple title to the grantee and that the conveyance operated only to pass the life estate. Evidence was admitted for the purpose of showing that the grantor possessed no right or power to make a conveyance by deed of gift. The principle of law laid down in Groves v. Groves, 65 Oh St 442, 62 N. E. 1044, to the effect that “Where the consideration expressed in the deed of conveyance is a valuable one, the title comes by purchase and it is not competent to show by parol that in fact the title came by deed of gift, and thereby changed the line of descent,” is not applicable in this case. The grantor attempted to convey an estate in land which he did not own and had no power to convey by deed of gift under the terms of the will. In the case at bar, there is no question raised relative to the line of descent. Assuming, without conceding, that such evidence was inadmissible the admission of such evidence did not deprive the Common Pleas Court of jurisdiction or render it incompetent to decide the issues involved. Whether a court, in any given case, is a court of competent jurisdiction, is not determined on the basis of the admission of competent or incompetent evidence.

In the case at bar, the plaintiff-appellant contends that if the judgment cannot be set aside she is entitled to be subrogated to the rights of the mortgagee for money which she paid on the mortgage existing on said property and should be accorded the- benefits of the occupying claimant law under the provisions of §11907 GC, et seq. Her right to subrogation and benefits under the occupying claimant law could have been set up in the former action. This she failed to do. The plaintiff in her petition herein alleges “that all the facts alleged herein were before the court at the time of trial and the entering of the judgment herein alleged.” This allegation refers to the trial and judgment in case No. 170,753. All issues raised herein might properly have been litigated in the former action. The rule applicable to the situation presented is well stated in Quinn v. State, ex rel. LeRoy, 118 Oh St 48, 160 N. E. 453, and in our opinion is determinative of the question involved. The first paragraph of the syllabus in that case is as follows: •

“Material facts or questions which were in issue in a former suit and were there judicially determined by a court of competent jurisdiction are conclusively settled by the judgment therein so far as concerns the parties to that action and person in privity with them and cannot be again litigated in any future action between the same parties or privies, and this rule also applies not only to what was determined but also as to every other question which might properly have been litigated in the case. (Hixon v. Ogg, 53 Oh St, 361, 42 N. E., 32, and Strangward v. American Brass Bedstead Co., 82 Oh St, 121, 91 N. E. 988, followed and approved.)” (Emphasis ours.)

Finding no error in the record prejudicial to the rights of the appellant the judgment is affirmed.

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


author: By FREED, DJ.

text:
    WELLS v. PLACE.
    United States District Court, Northern District of Ohio, Eastern Division.
    No. 26717.
    Decided April 18, 1950.
    Francis R. O’Brien, Cleveland, Meredith & Meredith, Lima, for plaintiff.
    S. D. L. Jackson, Cleveland, O. W. Kennedy, Edward J. Myers, Bucyrus, for defendant.
   OPINION

By FREED, DJ.

This action is brought by the trustee to recover from the administrator of J. E. Faulkner the proceeds of certain accounts receivable which had been assigned by the bankrupt to Faulkner over a period of time beginning more than a year and a half before bankruptcy. The complaint is in three counts.

The first count is brought under Section 70, sub. e of the Bankruptcy Act, Title 11 U. S. C. A. Section 110, sub. e, and alleges that the assignments are voidable solely by virtue of the fact that they were not recorded pursuant to provisions of §8509-3 GC. Defendant moves to dismiss this count for failure to state a claim upon which relief can be granted.

Section 70, sub. e (1) of the Bankruptcy Act confers upon the trustee a power to avoid any transfer that could be avoided under an applicable state law by a creditor with a claim provable in bankruptcy. Deane v. Fidelity Corp., D. C., 82 F. Supp. 710; Rockmore v. Schilling, D. C., 72 F. Supp. 172; 4 Collier on Bankruptcy, Section 70.90. The Court must therefore determine whether a failure to record the assignment of an account receivable in the manner prescribed by §8509-3 GC was intended to open the assignment to attack by either an existing or a subsequent creditor.

Sec. 8509-3 GC has not yet been judicially interpreted. Its prolixity of language offers little comfort in the solution of the problem here posed, but the decision must be made. The statute differs markedly in structure from the usual recordation statute. Ordinarily such statutes declare the transfer in question to be “void” or “invalid” as to certain groups unless it be placed on the public record in the required manner. This manner of phrasing, in its very nature, usually elicits from the legislature whether creditors are intended to be protected. See §8560 GC, et seq., (Chattel mortgages); §8568 GC (conditional sales). “Generally, however, creditors are protected by express language when a recording act is intended to apply to them.” 1 Glenn on Fraudulent Conveyances and Preferences, Section 367.

Sec. 8509-3 GC, unlike the usual recordation statute, is drawn in terms of the effects of compliance rather than the penalties of noncompliance. It is true that the statute speaks of recordation as notice to “all persons” (except the obligors). This is far from making the unrecorded transfer invalid as to all persons. The statute gives a first assignee who records priority over subsequent assignees, and “all persons” at the time of recording are potential assignees. The absence of language of “voidability” is not conclusive against the trustee’s contention, but the fact that the statute is positive rather than negative in structure is indicative that the legislature was concerned only with the problem with which it specifically dealt — the problem of priority among successive assignees.

This conclusion is fortified by a consideration of the special circumstances prompting the enactment of §8509-3 GC. The statute was apparently enacted as an early response to a now well-known problem created in the field of accounts receivable financing by the 1938 amendment to Section 60, sub. a of the Bankruptcy Act, Title 11 U. S. C. A. Section 96, sub. a. See Corn Exchange Bank Co. v. Klauder, 318 U. S. 434, 63 S. Ct, 679, 87 L. Ed. 884, 144 A. L. R. 1189; In re Vardaman Shoe Co., D. C., 52 F. Supp. 562. The uncertainties in Ohio of the common-law rules governing rights among successive assignees of the same accounts were intensified in importance when Section 60, sub. a of the Bankruptcy Act defined the protection of transfers in relation to their perfection against the rights of a hypothetical bona fide purchaser. See Hamilton, The Effect of Section 60 of the Bankruptcy Act Upon Assignments of Accounts Receivable, 26 Va. L. Rev. 168. Sec. 8509-3 GC, in response to this situation, enabled the assignee of accounts receivable, by recordation and without notice to the obligors of the assignor, to establish the primacy of his lien against an actual and, more important perhaps, a hypothetical subsequent assignee. Conversely, failure to record would enable an actual subsequent assignee to establish superior rights by recordation and becomes important for the purposes of Section 60 of the Bankruptcy Act, Title 11 U. S. C. A. Section 96.

It is, of course, possible that the legislature of Ohio, though concerned primarily with the special problem of successive .assignees, also intended recordation to serve to protect creditors against the “secret lien” of an assignment of accounts receivable. The necessity for and the efficacy of recording in this field was a subject of debate even before the 1938 amendment of Section 60. See Hanna, The Extension of Public Recordation, 31 Col. L. Rev. 617, 623-30; Glenn, Assignment of Choses in Action, 20 Va. L. Rev. 621, 652-653. However, in view of the fact that this statute, unlike other Ohio recordation acts protecting creditors, e. g. §8560, §8568 GC, has no language directed to that end, and in view of the fact that the circumstances prompting the legislative action give no specific indication of such purpose, this Court must conclude that §8509-3 GC, was not intended for the protection of creditors. The motion to dismiss the first count of the complaint will be sustained.

The second count of the complaint is also brought under favor of Section 70, sub. e of the Bankruptcy Act and alleges that the assignments are fraudulent conveyances or preferential transfers under §§11104 and 11105 GC and that the transferee knew or “should have known” of the bankrupt’s fraudulent intent. The defendant moves to strike “or should have known” from the complaint as immaterial because §11105 GC requires actual knowledge on the part of the transferee.

Carruthers v. Kennedy, 121 Oh St 8, 166 N. E. 801, is cited in support of defendant’s contention. Both the syllabus and the facts of that decision reveal it to be a case in which the transferee not only lacked actual knowledge of the fraudulent intent of the transferor but in fact believed the transferor to be solvent and was without reason to believe otherwise. Whether a transferee who does not know but should have known of the transferor’s intent is within the protection of §11105 GC, this Court need not now decide.

Motions to strike are not regarded with favor and are granted only where the allegations are clearly immaterial to the controversy. Samuel Goldwyn, Inc. v. United Artists Corp. D. C., 35 F. Supp. 633; U. S. v. Bize, D. C., 86 F. Supp. 939. The motion to strike is not designed to give the movant a premature ruling on a doubtful question of law tendered by the pleadings but which may never be presented for decision by the proof developed at trial. Caution on the part of the Court is particularly advisable in view of the fact that the division of the Court ruling on the motion may not hear the cause.

The motion to strike “or should have known” will be overruled; the motion to strike paragraph five of the first count, incorporated by reference into the second count, will be sustained.

The third count of the complaint is brought under Section 60 of the Bankruptcy Act, Title 11 U. S. C. A. Section 96, and seeks to set aside as voidable preferences the proceeds of accounts receivable assigned within four months of bankruptcy. The defendant moves to dismiss this count for failure to state a claim, since the suit is brought more than two years after the adjudication in bankruptcy. Title 11 U. S. C. A. Section 29, sub. e.

The defense of a statute of limitations can be raised by a motion to dismiss where the defect is apparent from the face of the complaint. Berry v. Chrysler Corp., 6 Cir., 150 F. 2d 1002; A. G. Reeves Steel Construction Co. v. Weiss, 6 Cir., 119 F. 2d 472. The trustee opposes the motion on the ground that he did “institute proceedings” within the meaning of Title 11 U. S. C. A. Section 29, sub. e, when he filed before the referee, some twenty-two months after adjudication, a' motion to vacate orders of an earlier referee authorizing a predecessor trustee to abandon certain assets of the bankrupt.

A plenary suit to set aside a voidable preference is barred if not instituted within two years of the date of adjudication. Herget v. Central National Bank, 324 U. S. 4, 65 S. Ct. 505, 89 L. Ed. 656. The trustee’s contention is that Title 11 U. S. C. A. Section 29, sub. e requires only that proceedings legally requisite to the plenary action be instituted within the statutory period and not the plenary action itself. This ignores the fact that when the statute of limitations first began to run on the trustee’s right to sue, the condition precedent to suit which plaintiff seeks to make a part of the “proceedings” was not in existence. In short, the trustee’s position is that an impediment to suit created after the accrual of the cause of action is to be treated as a prerequisite of the cause of action for the purpose of determining whether a suit on the cause is timely.

This argument necessarily assumes that the orders of the referee authorizing abandonment were a bar to the present action. This is by no means clear. Those orders, which may be judicially noticed by the Court, authorized the trustee to abandon as burdensome certain chattels and claims for money. Since the complaint does not specifically identify the accounts alleged to have been assigned preferentially, the Court cannot say whether the orders represented an abandonment of the exclusive right of the trustee to recover voidable preferences for the benefit of the estate.

Assuming, however, that the orders of abandonment represented an insurmountable barrier to an immediate filing of the present suit, the Court must nevertheless reject the trustee’s argument. The orders of abandonment were voluntarily obtained by the earlier trustee for the purpose of self-protection. 4 Collier on Bankruptcy, Section 70.42. The voluntary creation of a prerequisite to suit that did not exist when the right to sue first accrued cannot be relied on to extend the statutory limitation on the time for filing suit. To hold that Title 11 U. S. C. A. Section 29, sub., e, is satisfied by the proceeding to vacate orders would mean that the only limit on the time for bringing plenary suit would be an indefinite one fixed by a possible application of the doctrine of laches. The anomalous result would be to grant a vacillating trustee a longer period in which to sue than the ordinary trustee.

The motion to dismiss the third count will be sustained.

ON MOTION TO DISMISS

No. 26719. Decided June 29, 1950.

Francis R. O’Brien, Cleveland, Meredith & Meredith, Lima, for plaintiff.

S. D. L. Jackson, Jr., Baker, Hostetler & Patterson, Cleveland, O. W. Kennedy, Edward J. Myers, Bucyrus, for defendant.

By FREED, DJ.

The motion to dismiss raises one issue different from those already considered and disposed of by the Court in the memorandum opinion filed in similarly titled and related Civil Action No. 26717, 92 F. Supp. 473.

The complaint states a cause of action under Section 67 sub. d (3) of the Bankruptcy Act, Title 11 U. S. C. A. Section 107 sub. d (3). The defendant moves to dismiss because it appears from the face of the complaint and the Court’s judicial knowledge'of the bankrupt’s adjudication that the action is barred by Title 11 U. S. C. A. Section 29 sub. e, which provides: “A receiver or trustee may, within two years subsequent to the date of adjudication or within such further period of time as the Federal or State law may permit, institute proceedings in behalf of the estate upon any claim against which the period of limitation fixed by Federal or State law had not expired at the time of the filing of the petition in bankruptcy. * * *”

The trustee urges that the statutory bar on an action to recover a fraudulent transfer begins to run only when the fraud is discovered or, in the exercise of due diligence, could have been discovered. That doctrine was expounded in the early case of Bailey v. Glover, 21 Wall. 342, 88 U. S. 342, 22 L. Ed. 636, and was reaffirmed in the recent case of Holmberg v. Armbrecht, 327 U. S. 392, 66 S. Ct. 582, 585, 90 L. Ed. 743, 162 A. L. R. 719, in which it was stated: “This equitable doctrine is read into every federal statute of limitations.” See also, Austrian v. Williams, D. C., 80 F. Supp. 437, 441.

The doctrine of Bailey v. Glover, is not, however, to be read into a federal statute of limitations where Congress had made it clear, explicitly or by necessary implication, that the statute is not to be so tempered. Equity cannot alter the plain terms of a statute.

The statute under consideration provides that suit is to be brought by a trustee within two years of the date of adjudication or “within such further period of time as the Federal or State law may permit.” This reference to federal law, this Court takes it, is a reference to some federal statute other than the Bankruptcy Act, rather than to somebody of decisional law. The cause of action alleged here is created by the Bankruptcy Act, and the applicable statute of limitation is that set forth in the Act itself. Herget, Trustee in Bankruptcy v. Central National Bank & Trust Co., 324 U. S. 4, 65 S. Ct. 505, 89 L. Ed. 656.

To read the doctrine of Bailey v. Glover into this statute would be to distort it completely in all cases in which the trustee seeks to recover a transfer made fraudulent by virtue of the Bankruptcy Act itself. Since the trustee is not appointed until after the date of adjudication and could not discover fraud or be chargeable with a lack of diligence in its discovery until his appointment, then necessarily the limitation in those cases could not run from the date of adjudication as the statute plainly provides it shall. To hold with the'trustee would be to create a statute of limitations wholly unlike that established by Congress.

It is true that this equitable doctrine has been employed where the statutory limitation was measured, as here, from some specific event other than “accrual of the cause of action.” Exploration Co. v. U. S., 247 U. S. 435, 38 S. Ct. 571, 62 L. Ed. 1200. The present statute, however, involves not only a period measured from some stated event, but establishes that period as the time within which suit shall be brought by a named representative who comes into existence only after that event has passed.

The motion to dismiss will be granted.


author: By MILLER, PJ.:

text:
    MATTHEWS, Plaintiff, v. RUSSELL, Supt., Respondent.
    Ohio Appeals, Second District, Montgomery County.
    No. 2072.
    Decided December 10, 1949.
    Louis C. Capelle, Cincinnati, for plaintiff.
    Herbert S. Beane, City Attorney, William P. Keane, Asst. Pros., Dayton, for respondent.
   OPINION

By MILLER, PJ.:

This is a habeas corpus proceeding originating in this court. The facts disclose that the petitioner was convicted of assault and battery in the Municipal Court of Dayton, Ohio, and sentenced to serve one year in the Workhouse and to pay a fine of $1,000.00 and costs. This is the maximum penalty as defined by ordinance Section 943-2 of the City of Dayton. The maximum penalty as prescribed by §12423 GC for this offense is a fine of not more than $200.00 or imprisonment for not more than six months' or both. The petitioner is contending that the ordinance under which he was sentenced is void as being in conflict with State law, to wit, §12423 GC; in violation of §3628 GC which limits the penalty for violation of a city ordinance to six months imprisonment or a fine of $500.00 or both; also’ in violation of Article I, Section 9 of the Ohio Constitution, which provides that cruel and unusual punishment shall not be inflicted.

The first question presented is whether the difference in the penalties as prescribed in the ordinance and the General Code constitute a conflict such as to bring the ordinance within the inhibition of the latter part of Article XVIII, Section 3 of the Constitution. This question has been definitely passed upon in the negative in the case of Village of Struthers v. Sokol, 108 Oh St 263, which should require no further comment from us. Syllabus 3 provides:

“A police ordinance is not in' conflict with a general law upon the same subject merely because certain specific acts are declared unlawful by the ordinance, * * * or because different penalties are provided for the same acts, even though greater penalties are imposed by the municipal ordinance.”

A more recent case deciding the same question is found in the Village of Leipsic v. Folk, 38 Oh Ap 177, syllabus 3:

“That ordinance against disturbing good order and quiet of village provided for fine not exceeding $100, and that statute provided that fine should in no case exceed $50, did not invalidate ordinance (§3665 GC; Article XVIII, Section 3, Constitution).”

The next question presented is whether §3628 GC which limits the penalty in a city ordinance to a fine of $500.00 and imprisonment not in excess of six months, is effective as a limitation upon the powers of a municipal corporation. This statute is not a general law within the meaning of the home rule amendment and the limitations therein contained as to the amount of punishment are not binding upon municipalities since the adoption of the amendment of 1912. City of Youngstown v. Evans, 121 Oh St 342, syllabi 1 and 2:

“1. The power conferred upon municipalities to enforce within their limits local police, sanitary and other similar regulations is only limited by general laws in conflict therewith upon the same subject matter.
“2. Sec. 3628 GC, is not a law defining offenses and prescribing the punishment therefor, and is not therefore effective to bring an ordinance purporting to define and punish offenses in conflict with Section 3, Article XVIII, of the Constitution.”

See also Marko v. Youngstown, 6 Abs 477, and Ermekiel v. State, 8 Abs 121. The penalty imposed is neither cruel nor unusual and does not violate Article I, Section 9 of the Constitution. To argue that it is, is indeed most primitive as these types of penalties have been regularly employed since our earliest civilization. Judge Day, in commenting on this subject in the case of Holt v. State, 107 Oh St 307, says at page 314:

“The term ‘unusual,’ employed in Section 9, Article I of the Ohio Constitution, means the kind of punishment inflicted, and is not used in the sense urged by plaintiff in error. We are content to follow the language of Wilkerson v. Utah, 99 U. S., 130, 25 L. Ed., 345, as interpreting the meaning of the expression:
‘Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture, such as those mentioned in the commentator referred to (4 Blk. Com., 377, where the prisoner was drawn and dragged to the place of execution in treason; where he was emboweled alive; beheaded and quartered in high treason; cases of public dissection in murder; and if burning alive in treason committed by a female), and all others in the same line of unnecessary cruelty, are forbidden by that amendment of the Constitution.’ ”

Having found that the ordinance is valid, the application will be denied.

HORNBECK and WISEMAN, JJ, concur.