author: By SIMONS, CJ.

text:
    SULLIVAN, Adm’r., Appellants, v. GENERAL ELECTRIC COMPANY, etc., GENERAL ELECTRIC REALTY CORPORATION, Appellees.
    United States Court of Appeals, Sixth Circuit.
    No. 12291.
    Decided October 20, 1955.
    Walter A. Kelley, Cincinnati, for appellants.
    Leo J. Brumleve, Jr., Cincinnati, for appellees.

      Before SIMONS, Chief Judge, and MARTIN and STEWART, Circuit Judges.
   OPINION

By SIMONS, CJ.

On April 2, 1952, while unloading steel beams from a gondola freight car on property of General Electric Company at Evendale, near Cincinnati, Ohio, the decedents were killed by a high voltage electric current, due to contact or proximity between the crane they were using and the wires. Another ironworker by the name of Schwarz was seriously injured. The work was being done by the Duffy Construction Corporation which had been employed by the General Electric Company on construction work at Evendale, under contract with it. The supervision of the construction job for the electric company was under the general supervision of the General Electric Realty Corporation, an affiliate or subsidiary of the electric company. All three men were employees of Duffy which furnished the crane and other unloading tools. The decedents were covered by workmen’s compensation, which Duffy paid for, and the administrator has been compensated in the amounts provided by Ohio law for the protection of employees in the event of injury or death.

The controlling question is whether Duffy was, in relation to the General Electric Company, an independent contractor or whether the two corporations stood in the relation of master and servant. The evidence is clear that while the supervising corporation indicated the general area in which the steel beams were to be placed, it did not direct Duffy to place them immediately under the charged wires nor did it exercise any control in the use of an electric crane greater in length than the distance between the charged wires and the bottom of the gondola car, although it did warn Duffy repeatedly, both orally and in writing, that the wires were energized, and notices were posted calling attention to the dangerous situation in the area, nor did they seek otherwise to control the manner and mode of the unloading.

At the conclusion of all the evidence, the court directed the jury to return a verdict for the defendants, on the ground that Duffy was an independent contractor and not the servant of the owner. The realty corporation had general supervision to the extent that Duffy should perform all of its operations on the premises in accordance with the specifications of the contract. The mere fact that the employer reserves the right to supervise or inspect the work during its performance does not make the contractor a mere servant, where the mode and means of performance are within the control of such contractor. The general principles determining the relationship have recently been discussed by us in Conasauga River Lumber Co. v. Wade (6 Cir.), 221 F. 12d), 312. Ohio law is in accord. Gillum v. Industrial Commission, 141 Oh St 373, 25 O. O. 531, 48 N. E. (2d), 234; Behner v. Industrial Commission, 154 Oh St 433, 43 O. O. 360, 96 N. E. (2d), 403; Councell v. Douglas, 163 Oh St 292, 56 O. O. 262, 126 N. E. (2d), 597; Law Institute Restatement on Law of Agency, §220(2). Where the essential facts are not in dispute, the question of the relationship is one of law, Conasauga River Lumber Co. v. Wade, supra.

While not controlling upon us, it is of interest to note that in Schwarz v. General Electric Realty Corp., 163 Oh St 354, 56 O. O. 319, 126 N. E. (2d), 906, in which Schwarz was denied recovery for injuries received in the same accident, the relation of Duffy to the electric company was assumed by the court and the parties to be that of an independent contractor, since there is no discussion of that issue in the opinion of the Ohio Supreme Court.

The judgment below is affirmed.


source: Caselaw Access Project

author: By HORNBECK, J.

license: Public Domain

text:
    JORDAN, Plaintiff-Appellee, v. TERNSTEDT DIVISION GENERAL MOTORS CORPORATION, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5345.
    Decided March 16, 1956.
    Barkan, Brown & Dobbs, Morton Y. Reeves, of Counsel, Columbus, for plaintiff -appellee.
    Vorys, Sater, Seymour & Pease, Russell P. Herrold, Jr., of Counsel, Columbus, for defendant-appellant.
    (DEEDS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By HORNBECK, J.

This is an appeal from a judgment for the plaintiff on a special verdict returned by a jury after which both parties had moved for a judgment in their favor.

Plaintiff claimed to have sustained an injury while in the employ of defendant company, a self-insurer. Application for compensation was made to the Industrial Commission which upon hearing and rehearing denied the claim holding that it did not appear that the claimant’s disability was due to injury sustained in the course of and arising out of her employment. Appeal was prosecuted to the Common Pleas Court where at the conclusion of the trial, defendant requested a special verdict. Several forms of verdicts were submitted to the jury and it returned the following:

“We find that Frances Jordan was employed as a packer and inspector for the Ternstedt Division of General Motors on or about March 28, 1952. She had been employed there since 1949. On that date she was taking wind hoses out of an oven. She had done this work before. It was heavy work. As she turned to place the wind hoses on a rack she felt a crack in her back. The portion of her back where she felt the crack became painful and has caused her to be disabled in excess of seven (7) days.”

Four errors are assigned, all of which are predicated upon the claim that, as a matter of law, the special verdict did not set forth facts essential to support the judgment in behalf of the plaintiff.

We are favored with the opinion of the trial judge wherein he reviews extensively the cases defining a compensable injury under the Workmen’s Compensation Act. Near the conclusion of the opinion extensive quotation is made from the opinion in Malone v. Industrial Commission, 140 Oh St 292, and the trial judge concludes:

“There is no longer any requirement that the injury be ‘accidental in origin and cause.’ The special verdict now being considered does not cover ‘accidental in origin and cause,’ but the Supreme Court says it is not necessary where an accidental result ensues.”

Although there is much logic in the opinion of the trial judge, we are constrained to say that the conclusion reached is not supported by the adjudications in this Court or in the Supreme Court, nor does the Malone case in the language quoted justify the holding that there is no longer any requirement that a compensable injury be accidental in origin and cause.

If the question presented here was one of first impression, we would be disposed to support the judgment upon the proposition that neither the Constitution nor the statutes formerly or now, §§4123.01, 4123.54 R. C., require that a compensable injury to an employee protected by Workmen’s Compensation Law should be more than “any injury received in the course of and arising out of, the injured employee’s employment.”

The Amendment to the Ohio Constitution, Article II, Par. 35, effective January 1, 1924, defining the purpose of providing compensation to workmen and their dependents states that it was to be “for death, injuries or occupational disease occasioned in the course of such workmen’s employment, * * (Emphasis ours.) The early legislation, 102 O. L. 524, §1465-61 GC, when the fund was administered by the State Liability Board of Awards, in defining who shall share in the fund, provided:

“But where a personal injury is suffered by an employee, or when death results to an employee from personal injuries while in the employ of an employer in the course of employment, * *

The last amendment affecting §§1465-60, 1465-61 and 1465-68 GC, now §4123.01 R. C., 117 O. L. 109, effective July 10, 1937, provides:

“(C) Injury includes any injury received in the course of, and arising out of, the injured employee’s employment.”

Although the Constitution and the statutes prior to the amendment speaking of a compensable injury used the word “injury” without more, the Supreme Court qualified it by the adjective “accidental” and then defined:

“The term ‘injury’ as used in the Workmen’s Compensation Law of Ohio comprehends only such injuries as are accidental in their origin and cause.” 2nd syllabus, Industrial Commission v. Franken, 126 Oh St 299.

The opinion of Judge Matthias recites the facts, incomplete as we recall them, and discusses their application, at page 300:

“The record discloses that Franken had been in the employ of The Ohio State Stove Company for nineteen years as a ‘pressman’; his particular task being to handle dies, which weighed from 25 to 400 pounds, an apparatus being provided and used to handle those which were too heavy to be lifted otherwise. No accident occurred, as that term is ordinarily understood and applied. Sometime during the day above mentioned, Franken made some complaint about not feeling well and quit work and went home. He died 25 days later, his trouble being diagnosed as heart failure. * * * The record discloses that upon arriving home he had pains through his chest, and the doctor later stated that he was suffering from an acute dilation of the heart. There is no evidence whatever of any extraordinary or unusual happening in and about Franken’s work preceding his illness.” (Emphasis ours.)

The missing fact is, that it appeared from evidence, which we held to be competent, that the fly-wheel with which Franken was working was so stiff that when he would pull on it, it would feel like he was tearing loose through his chest; that while he was in the act of raising two dies, each weighing 150 pounds, by means of the pulley, as he pulled down on the fly-wheel, he suddenly felt like he was tearing loose in the chest. Mark the similarity between these facts and those appearing in the special verdict. It further appeared in the Franken case that up to the date of the occurrence under consideration he was in good health, and that upon the doctor’s examination of Franken a few hours after the occurrence in which he claimed to have been injured “he was in extremis and almost ready to die.” The diagnosis was that the condition of Franken’s heart was caused from some severe muscular exertion. Judge Matthias concluded:

“There is no evidence whatever of any extraordinary or unusual happening in and about Franken’s work preceding his illness. There is some evidence that on the day in question he had handled a die weighing 300 pounds, but it does not appear that handling a die of that weight with the apparatus provided was any more strenuous than a die weighing 35 or 40 pounds.”

The opinion concludes with the proposition carried into the syllabus which we have quoted and then this language:

“If the scope of cases compensable is to be extended, it should be done by unambiguous legislative enactment.”

The Franken case was decided in 1933 and the definition of the term “injury,” as found in the amendment to which we have heretpfore referred, was carried into the statute in 1937,

The first case succeeding the foregoing amendment and considering the term “injury” therein defined, was Malone v. Industrial Commission, supra. Judge Hart, in the opinion of this case at page 297 says:

“This court has heretofore defined the term ‘compensable injury’ as used - in the Workmen’s Compensation Act many times. A composite definition deduced from the cases may be stated as follows:
“The term ‘injury,’ as used in the Constitution and the Workmen’s Compensation Act shall comprehend a physical or traumatic injury, accidental in its origin and cause; the result of a sudden happening occurring by chance, unexpectedly, and not in the usual course of events, at a particular time.”

At page 299, Judge Hart discusses the amendment and says:

“While the language of the amendment is susceptible to clarification, yet it plainly says that ‘the term injury * * * shall include any injury * * *.’ This must mean that the term ‘injury’ shall include every physical injury of whatever type which causes loss or damage to a workman, or to his dependents in case of his death, provided it can be shown that such injury otherwise qualifies in characteristics or essential elements as a compensable injury as that term has been heretofore and is now defined by this court.” (Emphasis ours.)

He then restates the meaning of “injury” on page 300 of the opinion,

“The term ‘injury’ as used in the Workmen’s Compensation Act, comprehends a physical or traumatic damage or harm, accidental in its origin and character in the sense of being the result of a sudden mishap occurring by chance, unexpectedly and not in the usual course of events, at a particular time and place.” (Emphasis ours.)

There have been a number of decisions since the Malone case wherein the term “injury” has been more explicitly and more extensively defined. The latest of these cases is Gerich v. Republic Steel, 153 Oh St 463. The facts in this case disclose that the job of Gerich, the employee, was to' push a handcart, heavy work in which he was regularly engaged. On the day when it was claimed Gerich suffered a compensable injury he collapsed and later died from heart disease. The first paragraph of the syllabus of this case is:

“Under the Ohio Workmen’s Compensation Act, to entitle a workman to compensation for injury, he must suffer a traumatic injury in the course of and arising out of his employment other than an injury which may occur in the regular course of nature from the usual and normal activities of his employment.”

And later, in the opinion, at page 465,

“Under the Ohio Workmen’s Compensation Act, to entitle a workman to compensation for injjury, he must suffer a traumatic injury in the course of his employment as a result of some accidental impact other than injuries which may occur in the regular course of nature from the usual and normal activities of his employment.”

By the special verdict in this case, it is clear that Jordan on the day that she suffered the “crack in her back” was engaged in her regular employment doing her work in the usual way, there was no different or unusual situation presented immediately prior to the time that she felt discomfort in her back. From the special verdict it may not be determined that Jordan was subjected to any unusual, unexpected or different activity than was ordinarily required of her in the work which she had been doing for some time.

In Nelson v. Industrial Commission, 150 Oh St 1, Judge Stewart, in the opinion at page 8, said:

“In the present case there was not a scintilla of evidence that decedent had done or was doing a single thing on the job, which he was performing, which was in any way unusual or different from what he had always done in his work, or from what the three men who were working with and near him had done in their work. None of the other three men saw decedent perform his job in any way different from the manner in which they had performed their similar jobs and from the manner in which it was usual, convenient, and necessary to do the work.”

And at page 13:

“Although a liberal construction is justly required in the interpretation of the Workmen’s Compensation Act, in order to have death compensation there still must be some evidence that the death of the workman was caused or contributed to by some act which was different in kind or in exertion from the regular, ordinary work performed by the workman and those engaged in like occupation.”

This Court, in Heath v. Standard Oil Company, 68 Abs 571, affirming a judgment in behalf of the employer, said:

“There is no doubt that the plaintiff in moving these barrels of oil through the lube room and onto the lift was regularly and ordinarily subjected to the necessity of heavy lifting or moving but by the authorities, as we interpret them, if this exertion brought about his heart condition, he may not recover.”

Other cases cited by appellant are to like effect. Gwaltney v. General Motors, 137 Oh St 354; Vogt v. Industrial Commission, 138 Oh St 233; Cordrey v. Industrial Commission, 139 Oh St 173; Matczak v. Goodyear Tire & Rubber Co., 139 Oh St 181; Maynard v. Goodrich, 144 Oh St 22; Reynolds v. Industrial Commission, 145 Oh St 389; Gerich v. Republic Steel, 153 Oh St 463.

A case decided by this Court in 1936, The Industrial Commission v. Luger (22 Abs 20), although decided before the amendment defining the term “injury,” is in accord with the other cases we have cited and counsel may care to examine the opinion because it fully digests most of the cases on the subject up to the time of the decision.

Appellee insists that the facts in this case as returned in the special verdict established that Jordan suffered an accidental injury within the meaning of the Workmen’s Compensation Act, although the trial judge held otherwise. Of course, if this is true, even though the trial judge may have been in error in his reasons supporting the judgment, it should nevertheless be sustained. We cannot agree that the facts found in the special verdict will permit a determination that appellee suffered a compensable injury.

Judgment will be reversed and judgment entered for the defendant-appellant.

MILLER, PJ, DEEDS, J, concur.


author: By THE COURT. By THE COURT. By THE COURT.

text:
    CRAWFORD, Plaintiff-Appellee, v. BACH et, Agent, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5034.
    Decided March 7, 1955.
    George S. Crawford, Columbus, for plaintiff-appellee.
    Guy R. Martin, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This cause comes to this Court as an appeal on questions of law and fact from a judgment of the Common Pleas Court permanently enjoining the defendant, James P. Bach, from tearing down or destroying a certain fence described in the petition. The cause was submitted to this Court upon the record made in the Common Pleas Court and upon the additional testimony taken and recorded by special master duly appointed for such purpose.

The record reveals that the plaintiff is the owner of a 16 acre tract of land located west of a stream known as Indian Run and the eastern border line of which extends to the center of said stream; that Everett F. Bach owns an 11 acre tract east of said stream, the western border line of which extends to the center of the stream. The dividing line of these two properties, therefore, follows the center of the stream for a distance of approximately 800 feet.

The defendant, James p. Bach, is the tenant of Everett F. Bach, and as such is occupying the Bach tract.

The petition alleges “that a partition fence has recently been built between the above two tracts, along lines set forth by the Township Trustees and a written agreement between the parties. That after said fence was built said Trustees viewed and approved same. That James P. Bach and/or Matthew Bigger caused a portion of said fence which had been built by plaintiff to be torn down and as a result thereof plaintiff’s cattle got out on the main highway causing plaintiff much trouble and damages and endangered the lives of passing motorists.

“That plaintiff has now rebuilt said fence and it has been again viewed by Trustees. That plaintiff has received a letter from Matthew Bigger, agent, and has been threatened orally by James P. Bach that they will again tear down said fence.”

The defendant admits he removed a portion of the fence located on the Bach property and if rebuilt says that he intends to again remove the same.

The plaintiff is urging that it was not practicable to build the fence in the middle of the stream, hence under §5921 GC an application was made to the Township Trustees to make an assignment for a portion of the fence to be built by each landlord, on his bank of the stream and then have the two portions joined across the same. Sec. 5921 GC provides:

“When the division line of adjacent land owners is in a stream of water, along which division line it is impracticable to construct and maintain a partition fence, the township trustees shall assign to each land owner his portion of such fence upon his land and the parts so assigned shall be built and maintained upon his own premises along the bank of such stream. The parts of the fence so assigned shall be joined by each land owner constructing a fence or water gate from the end of the fence so assigned to him nearest to the end so assigned to the other land owner to the division line in such stream.”

The defendant contends that a lawful assignment was never made by the Trustees under this section, therefore he is at liberty to remove any fence or portion thereof on the land in his possession. The burden of proof, therefore, is upon the plaintiff to establish the legality of the said partition fence. This he has failed to do for several reasons:

First, The record reveals that upon the complaint being filed with the Trustees, notice was neved served on the owner in compliance with §5910 and §5920 GC, but that it was served on James P. Bach, the tenant. Therefore the Trustees never acquired jurisdiction to make an assignment,

Decided April 6, 1955.

Secondly, Although the record discloses that the Trustees met on several occasions for the purpose of making such an assignment their actions were only verbal and no record was ever made of an assignment having been made.

Since no formal action was taken by the Board there was no order that could be filed for record with the County Recorder in his docket known as “Partition of Fence Record,” as required by §5916 GC. Such recording is most important for it is only after this compliance that the order becomes “final between the parties thereto and successive owners thereafter until such division becomes unequal by a sale or division of land or a portion thereof, in which case a new division may be had.”

The plaintiff contends further that even though we find the assignment was not properly made there was an agreement between the parties in accordance with §5931-1 GC and that under this agreement the parties are bound the same as if an assignment had been made. The alleged agreement offered in evidence cannot be given such recognition for the reason that it is not witnessed by two persons as required by the cited section of the General Code. It is also defective in that it is indefinite and uncertain in that it does not define the point at which the fence is to terminate on the Bach side for the purpose of crossing the stream and connecting with the fence on the plaintiff’s side. The location of this point is the main difference.between these parties and involves approximately one acre of land.

We are also in doubt whether §5931-1 GC can be applied to the facts in this case for the reason that it provides for such an agreement when “the division line of adjacent land owners crosses a stream of water, through which stream of water it is impracticable to construct and maintain a partition fence.” (Emphasis ours.) In this case the division line does not cross the stream of water but runs parallel with the stream in the middle thereof. Sec. 5921 GC seems to be applicable when the division line is in a stream of water by requiring each adjoining owner to build a water gate to the center line of such stream.

The permanent restraining order will be dissolved and judgment rendered for the defendant for costs of suit.

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

No. 5034.

Decided May 9, 1955.

OPINION

By THE COURT.

This is an application for a reconsideration and rehearing of this cause upon the grounds of newly discovered evidence which could not have been produced at the time the record was made before the master appointed by this Court.

Our examination of the new evidence proffered reveals that the same is pertinent to the issues presented and that the same could not have been produced at the previous hearing. The application will be allowed and the case is ordered referred back to the master for the completion of the record exemplifying the new evidence. Appellant is given leave to offer evidence contra. Record ordered completed on or before April 23, 1955.

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

No. 5034.

OPINION

By THE COURT.

This cause is now before the Court upon a rehearing granted on the ground of newly discovered evidence. We find from this and also from the former record that although Everett F. Bach was never served with notice of the hearing to be held before the Township Trustees under §5910 GC, the same was waived by his attorney, Matthew L. Bigger, who attended the hearing before the Trustees and was present when the premises were inspected by them for the purpose of making an assignment for the location of the fence. The defendant contends that no assignment was ever made by the Trustees; hence, the nunc pro tunc entry of the same entered upon the township records on March 15, 1955, is null and void. Citing The Cleveland Leader Printing Company v. Green, 52 Oh St 487. The first syllabus of this case provides:

“The province of a nunc pro tunc entry is to correct the record of the court in a cause so as to make it set forth an act of the court, which though actually done at a former term thereof, was not entered upon the journal; and it cannot lawfully be employed to amend the record so as to make it show that some act was done at a former term, which might or should have been, but was not, then performed.”

Our examination of the record reveals that the township trustees acted on two occasions on the subj'ect matter, first, in the year 1948, and then modifying the order on May 5, 1950. The order of modification was made upon complaint being made by letter to the Trustees on November 10, 1949, the same having been written by M. L. Bigger as attorney for Everett F. Bach. In this letter, which is marked as Defendant-Appellant’s Ex. No. 5, he recognized the first assignment, for in it he states;

“Everett Bach built his one-half of such fence along Indian Run to the point designated as agreed upon and fixed by the trustees, and said Mary Crawford acting through her agent, built a fence * * * trespassing on the property of Everett F. Bach, contrary to the place of crossing fixed and conditions agreed upon by the trustees upon their viewing of the premises in July, 1948.”
“The undersigned therefore, respectfully requests the trustees, to view the premises and see that said fence is erected and placed as agreed upon and as heretofore directed by such trustees as provided by statute; * * *.” (Emphasis ours.)

In compliance with the request of the foregoing letter the premises were again inspected by the Township Trustees on May 8, 1950, which resulted in a modification of the original assignment. We find from the evidence that the Trustees acted upon the complaint of Everett Bach, but that no record of the same was entered in their official records. Since our first hearing in this matter the action taken by the Trustees on May 8, 1950, now has been journalized as of said date by order of the Trustees duly enacted on March 15, 1955. This entry, we find, is in accordance with the action taken by the Trustees at the time stated therein, and the same has been recorded in the records of the Recorder of Franklin County. It is therefore a valid and subsisting order. It is conceded by all of counsel that a fence has been constructed in accordance with the order of. assignment which was journalized on March 15. Whether or not the order commanding each of the parties to construct a portion of the fence was lawful is not before us, since this order has been complied with. The fence is now constructed on the lines fixed by the Trustees and the same will be protected by court order.

Our judgment is for the plaintiff for the relief prayed for in the petition and also for costs of suit.

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


author: By WARREN, J.

text:
    HOWELL, In re.
    Juvenile Court, Allen County.
    No. 6406.
    Decided August 22, 1956.
    Hon. Anthony Powers, Allen County Pros. Atty., Hon. Walter L. White, Asst. Pros. Atty., for the State of Ohio.
    Hon. James Blair, for Jeanette Howell.

      (WARREN, J„ of Putnam County, sitting by assignment in Allen County.)
   OPINION

By WARREN, J.

This matter came on to be heard upon a motion by the mother, Jeanette Howell, filed on April 30,1956, for an order “modifying the former orders of this court with reference to the custody of her minor child, Cheryl Lynn Howell, and for an order granting to her the immediate custody and control of said child,” and upon a motion filed June 27, 1956, by the Prosecuting Attorney on behalf of the State of Ohio “for a nunc pro tunc journal entry in the above captioned case.” Jeanette Howell and her attorney, and the assistant prosecuting attorney of Allen County appeared for the hearing. There is no dispute in the facts as they are stipulated by counsel.

This is an action concerning a dependent and neglected child. On March 9, 1954, the former probate-juvenile judge, now on the Court of Appeals, “ordered the child temporarily committed to the care of the Allen County Child Welfare Board.” The case was heard on the merits on March 9, 1954, and taken under advisement. Thereafter counsel for the mother filed a motion requesting the court to state in writing the conclusions of fact found separately from the conclusions of law. On May 5, 1954, the court made separate findings of fact and conclusions of law in a long and comprehensive decision at the conclusion of which the court decided as follows:

“The court further finds that Cheryl Lynn Howell is a dependent and neglected child in that she lacks proper parental care through the faults and habits of her mother and her condition and environment is such as to warrant the state in assuming the child’s guardianship.

Wherefore it is ordered, adjudged and decreed that Cheryl Lynn Howell, minor child of Jeanette Howell, be and hereby is committed to the permanent custody of the Allen County Child Welfare Board.” This is signed at the end by the juvenile judge but is not journalized.

Throughout this proceeding and a former proceeding the child has been in the custody of the Allen County Child Welfare Board and for sometime past has been in a foster home.

Counsel for the mother contends that the child was taken from her in the first instance in a prior neglect and dependency proceeding instituted about a week before the instant action, in a manner contrary to law. The court dealt with this as well as numerous questions of law in the findings of law and found the proceedings valid.

The court in his findings of fact discussed carefully and fully the facts in this case and this court does not deem it necessary to repeat them here. It is clear that the court had the best interests of the child in mind when he decided the case.

Counsel for the mother, Jeanette Howell, contends that she is able to furnish said child with a proper home, food, care and environment, and that, because the court’s judgment was not journalized, the complaint is still pending and should again be heard on the merits.

All courts of record have an inherent common law power to enter, where proper, judgments nunc pro tunc.

In 49 Corpus Juris Secundum, No. 118 at pages 247 and 248 it is stated:

“There is an inherent common-law power in the courts, independent of any statute, to cause the entry of judgments nunc pro tunc in proper cases, and in furtherance of justice. This power belongs to all courts of record,” * * *

The Juvenile Court of Allen County, Ohio, by virtue of §2151.07 R. C. is within the probate court and presided over by the probate judge and is a court of record.

Sec. 2151.07 R. C., provides:

“The juvenile court, or the court of common pleas, division of domestic relations, of any county, separately and independently created, established, and functioning as such, has and shall exercise the powers and jurisdiction conferred in §§2151.01 to 2151.54, inclusive, R. C. Except in counties in which there now is, or may hereafter be created, a separate and independent juvenile court or court of domestic relations, there is hereby established within the probate court a juvenile court, presided over by the probate judge, which shall be a court of record and exercise the powers and jurisdiction of such a court.” * * *

In addition to its inherent common-law power to enter judgments nunc pro tunc, §2101.13 R. C. specifically empowers the probate judge to make entries omitted by his predecessor. In a combined probate-juvenile court this statute also applies in juvenile court.

Sec. 2101.13 R. C. provides:

“When a probate judge, whether elected or appointed, enters upon the discharge of his duties, he shall make, in the respective books of his office the proper records, entries, and indexes omitted by his predecessors in office. When made, such entries shall have the same validity and effect as though they had been made at the proper time and by the officer whose duty it was to make them, and such judge shall sign all entries and records made by him as though such entries, proceedings and records had been commenced, prosecuted, determined and made by or before him.”

Sec. 2101.13 R. C. is a statutory recognition of the nunc pro tunc principle and in no way limits or restricts the common law power of the probate court to render judgments nunc pro tunc in proper cases.

Sec. 2101.12 R. C. provides in part as follows:

“The following books shall be kept by the probate court:” * * *
“(E) A journal, in which shall be kept minutes of official business transacted in the probate court, or by the probate judge, in civil actions and proceedings;”
“(G) A final record, which shall contain a complete record in each cause or matter of the petitions, answers, demurrers, motions, returns, reports, verdicts, awards, orders, and judgments, which shall be completed within ninety days after the final order or judgment has been made in said cause or matter;” * * *

Sec. 2101.32 R. C. provides in part as follows:

“The probate judge shall have the powers, perform the duties, and be governed by the rules and regulations provided for the courts of common pleas and the judges thereof in vacation. The sections of the Revised Code governing civil proceedings in the court of common pleas shall govern like proceedings in the probate court when there is no provision on the subject in chapters 2101. to 2131., inclusive, R. C.”

Sec. 2323.25 R. C., provides:

“When the judicial acts or other proceedings of a court have not been regularly brought up and recorded by the clerk, such court shall have them made up and recorded within such time as it directs. When made up, and found to be correct, the presiding judge shall sign them.”

By virtue of said §§2101.32 and 2323.25 R. C., provisions on rules of practice for the Court of Common Pleas govern the probate court where there are no specific statutes in the code in the chapters directly applying to the probate court.

The entering of this judgment on the journal by the Probate-Juvenile Court is mandatory by virtue of §2323.22 R. C.

Sec. 2323.22 R. C. provides:

“All judgments and orders must be entered on the journal of the court, and specify clearly the relief granted or order made in the action. The entry must be written into the journal as soon as the entry is filed with the clerk or directed by the court and shall be journalized as of the date of the filing of said entry or of the written direction by the court.”

The Supreme Court of Ohio in the case of National Life Insurance Co. v. Kohn, 133 Oh St 111; 11 N. E. (2nd), 1020, recognized the power of courts to enter judgments nunc pro tunc. Syllabus one says:

“Courts possess inherent common-law power to enter nunc pro tunc judgments or orders in proper cases.”

And syllabus two states:

“The power to enter such judgments or orders is restricted ordinarily to the subsequent recording of judicial action previously and actually taken.”

The court has not only the power but has the duty to complete its records to make them speak the truth.

In 10 A. L. R. at page 566 it is stated:

“A judgment nunc pro tunc simply consumates what the court adjudged but imperfectly performed.” * * *

The jurisdictional question raised by counsel and all other questions of law were decided by the former judge at the hearing on the merits.

A decision made by one judge becomes the law of the case which the succeeding judge must follow in the same court, between the same parties, in the same or similar proceedings.

In 21 C. J. S. No. 195 page 330 this definition appears:

“ ‘Law of the case’ is the controlling legal rule of decision, as established by a previous decision, between the same parties in the same case.” * * *

In 14 O. Jur. (2nd) 219 at page 649 it is stated that:

“A decision made by one judge of a court will be accepted as the law by a subsequent judge sitting in the same court.” See also: Gottesman v. Cleveland, 142 Oh St 410, 46 Abs 474, 70 N. E. (2d), 49; Walbridge v. Union Mfg. Co., 7 O. N. P. 430.

The former judge having pronounced his decision finding the child, Cheryl Lynn Howell to be dependent and neglected, it is ordered as of May 5, 1954, that a nunc pro tunc entry be prepared and entered on the journal in conformity therewith ordering the child permanently committed to the custody of the Allen County Child Welfare Board.

The mother, Jeanette Howell, on April 30,1956, filed an application to modify the former order of the court and to change the custody and control of the child to her, the mother.

Sec. 2151.38 R. C., provides in part as follows:

“When a child is committed to * *’ or to the permanent custody of * *,’ ‘or to a county department of welfare which has assumed the administration of child welfare, county child welfare board, or certified organization, the order shall state that such commitment is permanent and the jurisdiction of the juvenile court in respect to the child so committed shall cease and terminate at the time of commitment;’ ”

The child having been permanently committed on May 5, 1954, to the care and custody of the Allen County Child Welfare Board, this court has no further jurisdiction over her.

The application for modification and change of custody is dismissed.

Exceptions allowed.

Entries may be drawn in accordance with this opinion.


author: Per CURIAM.

text:
    SERICH, Plaintiff-Appellant, v. STRUTHERS CITY BOARD OF EDUCATION et, Defendants-Appellees.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3753.
    Decided March 23, 1955.

      Leo Waldman, Youngstown, for plaintiff-appellant.
    Theodore Macejko, Youngstown, for defendant-appellee, Struthers City Board of Education.
    John Ruffalo, Youngstown, for defendant-appellee, John Scott.
   OPINION

Per CURIAM.

Plaintiff filed the following petition in the court of common pleas:—

“Now comes the plaintiff William J. Serich, and says that he is a resident and a taxpayer of The Struthers City School District and that he brings this action as such resident and taxpayer in his own behalf and on behalf of all other residents and taxpayers of such school district.
“Plaintiff says that the defendant, The Struthers City Board of Education is, under and by virtue of the laws of the State of Ohio, the duly organized and existing Board of Education for the Struthers City School District; that the defendants Hugh F. McPhee, Dr. William L. Lyon, Roy E. Birch, Carl P. Carbon, and George Novak, are the duly elected members of said Board of Education, and as such Board of Education and members thereof, have the duty and obligation of supervising, maintaining and controlling the school property belonging to said school district.
“Plaintiff says that the defendant John Scott is engaged in the business of promoting sporting events, including wrestling matches, under the name of John Scott Enterprises.
“Plaintiff further says that the Board of Education of The Struthers City School District, Mahoning County, Ohio, met in regular session on the 20th day of September, 1948, at the office of the Board of Education to consider the following Resolution To Submit The Question of Bond Issue To The Electors and Certifying Same To The Board of Elections:
“Be It Resolved and hereby determined by the Board of Education of the Struthers City School District, Mahoning County, Ohio, that it is necessary for the purpose of constructing a new building adjacent to the Euclid Avenue High School Building, for the purpose of modernizing the present High School Building on Euclid Avenue, for the purpose of modernizing and enlarging the following elementary school buildings, to wit, Highland Avenue, Center Street, Sexton Street, Fifth Street and Lyon Plat, to issue and sell Seven Hundred Fifty Thousand Dollars, ($750,000.00) of bonds of said School District, said bonds to be dated approximately the 1st day of April, 1949, and shall bear interest at not to exceed 6% per annum; said bonds shall mature in forty (40) substantially equal semi-annual installments over a period of twenty (20) years; and that it is necessary that there shall be annually levied on all the taxable property in the Struthers City school District, Mahoning County, Ohio, a direct tax outside of the ten mill limitation, to pay the interest on and to retire the said bonds, and be it further
“Resolved, that the question of issuing bonds in the sum of $750,000.00 be submitted to the electors of said School District at the November election to be held at the usual voting places within said School District, on the 2nd day of November, 1948.
“Plaintiff says that the above resolution was adopted by the Board of Education; that it was certified to the Mahoning County Board of Elections; that it was placed on the ballots within said School District; that it was voted on by the electors of said School District at the November 2nd, 1948 election, which voting resulted in the electors passing and adopting said resolution by the vote of 3400 Yes votes and 1700 No votes, which vote was sufficient by law to permit the issuance of said school bonds; that there were in fact School Bonds issued and a new building constructed adjacent to the Euclid Avenue High School Building known as The Struthers High School Memorial Field House, which building is constructed upon school property with funds obtained through the issuance of said school bonds by the Struthers City School District, and which building is part of the Euclid Avenue High School and is itself public school property belonging to the Struthers City School.
“Plaintiff says that the Struthers Board of Education and its members have entered into an agreement, whereby said Field House has been rented by defendant John Scott for the purpose of holding sporting events, including wrestling matches, which are privately promoted for private gain and profit in and upon said public school property all of which has been known by all the defendants, contrary to the General Code of the State of Ohio which specifically sets out the uses and purposes to which public school property may be put.
“Plaintiff says that the Struthers High School Field House has unlawfully been rented to defendant John Scott and is being used with the knowledge, agreement and permission of the Struthers Board of Education and its members for the unlawful purpose of said John Scott’s promoting and holding weekly sporting events as set out, including wrestling shows about one day each week for over a year last past, and continuing to date, and unless such use is enjoined, such unlawful use shall continue, in violation of the lawful use for which the building was constructed and might be used, contrary to the intent of the taxpayers and electors of the Struthers City School District when they approved the issuance of the school bonds, and contrary to the Ohio General Code.
“Plaintiff says that there is no adequate remedy at law to protect his rights and the rights of those for whom this suit is brought.
“Plaintiff further says that he brings this action in his own behalf and on behalf of all other taxpayers in the school district for the protection of their rights and property and in so bringing the action has had to employ counsel to represent him and the other taxpayers and has been put to great expense in so defending the rights and property of the taxpayers.
“Wherefore, plaintiff prays for an order enjoining the Struthers Board of Education and Hugh F. McPhee, Dr. William L. Lyon, Roy E. Birch, Carl P. Carbon, George Novak, Members of the Board of Education from renting, entering into any agreement for use of. or granting permission to defendant John Scott, or any other person, persons or parties to use the public school property for the purpose of holding sporting events, including wrestling matches in said Field House in and upon such public school property, and for an order enjoining defendant John Scott from renting or so using said school property or any school property in said district; and plaintiff asks the court for an allowance for reasonable legal expenses, attorneys fees and court costs.”

Defendant, John Scott, d. b. a. John Scott Enterprises, demurred to “the petition upon the ground, among others, that it does not state facts which show a cause of action.”

Under authority of §3315.75 R. C., and 88 Oh Ap 364 on July 13, 1954, the trial judge sustained defendant Scott’s demurrer to plaintiff’s petition on the ground that it did not state a cause of action against defendants, and on July 26, 1954, dismissed plaintiff’s action and entered judgment accordingly.

Plaintiff appealed to this court from the judgment of the trial court on questions of law.

The demurrer of defendant Scott admits as true all material well pleaded allegations of plaintiff’s petition, including the allegation that “the Struthers Board of Education and its members have entered into an agreement, whereby said Field House has been rented by defendant John Scott for the purpose of holding sporting events,” which allegation if proven establishes that the Board of Education violated the provisions of §3313.76 R. C., and renders the contract unlawful.

Plaintiff has the legal right to attempt to prove that the contract was made to an individual as alleged in his petition, and not to “any responsible organization or group of at least seven citizens.”

The Court of Common Pleas erred prejudicially to plaintiff in sustaining the demurrer and dismissing plaintiff’s petition.

The judgment sustaining the demurrer and dismissing plaintiff's petition is reversed, and the cause is remanded for further proceedings according to law.

PHILLIPS, PJ, NICHOLS and GRIFFITH, JJ, concur.


author: By BARTLETT, J.

text:
    KLEINMAN et, Appellant, v. DEPARTMENT OF LIQUOR CONTROL, etc., Appellee.
    Common Pleas Court, Franklin County.
    No. 190004.
    Decided August 14, 1954.
    Gus W. Byttner, George L. Houck, Dayton, for appellant.
    C. William O’Neill, Atty. Geni., Kiehner Johnson, Asst. Atty. Geni., Columbus, for appellee.
   OPINION

By BARTLETT, J.

1. THAT PART OF THE ORDER OF THE BOARD OF LIQUOR CONTROL IS HEREBY AFFIRMED WHEREIN SAID BOARD DISMISSED THE APPEAL FROM THE ORDER OF THE DIRECTOR OF LIQUOR CONTROL REJECTING APPLICATION FOR TRANSFER OF A C-2 PERMIT TO ANOTHER PERSON (APPELLANT), AND ANOTHER LOCATION (FROM THE CITY OF DAYTON TO THE UNINCORPORATED AREA OF MONTGOMERY COUNTY), BASED SOLEY ON REGULATION 64 OF SAID BOARD LIMITING THE NUMBER OF C-2 PERMITS IN THE STATE OF OHIO AND EACH POLITICAL SUBDIVISION THEREOF TO THE NUMBER OF SUCH PERMITS OUTSTANDING THEREIN AS OF JUNE 27, 1952, PLUS THE NUMBER THEREAFTER ISSUED ON APPLICATIONS FILED ON OR BEFORE SAID DATE.

2. THAT PART OF THE ORDER OF SAID BOARD IS HEREBY REMANDED FOR FURTHER HEARING, WHEREIN SAID BOARD DISMISSED THE APPEAL FROM THE ORDER OF SAID DIRECTOR REJECTING THE APPLICATION FOR TRANSFER OF A C-l PERMIT, TO ANOTHER PERSON AND ANOTHER LOCATION (BEING THE SAME PERSON AND LOCATION AS PERTAINED TO THE ATTEMPTED TRANSFER OF THE FOREGOING C-2 PERMIT), BASED’ ON A FINDING SAID TRANSFER WAS NOT IN CONNECTION WITH A BONA FIDE SALE OF THE BUSINESS AND ASSETS OF SUCH PERMIT HOLDER.

This is an appeal from the order of the Board of Liquor Control, wherein said Board dismissed an appeal from the order of the Director of Liquor Control rejecting application for the transfer of the C-l and C-2 permits from Thomas A. Kleinman, owner and operator of the Beclrel Bar in the City of Dayton, to the appellant Edward L. Kleinman, doing business as Ed’s Party Pantry, 5930 Airway Road in the unincorporated area of Montgomery County.

The stipulated facts are in brief: On April 6, 1953, Thomas A. Kleinman had issued to him at his place of business aforesaid permits C-l, C-2, D-l and D-2.

On September 21, 1953, the aforesaid application for transfer of Permits C-l and C-2 was filed with the Department.

A bill of sale (Exhibit A) shows on August 31, 1953, Edward L. Kleinman aforesaid, sold certain furniture and equipment to the appellant, Edward L. Kleinman, in conjunction with the application to transfer the aforesaid permits C-l and C-2. The bill of sale shows the purchase price of such furniture and equipment as $500.00 and “C-l and C-2 * * * permits” * * * for which appellant agreed to pay $100, “upon the granting transfer application thereof. * * *”

On February 15, 1954, an application was filed for transfer of the aforesaid permits D-l and D-2 from Thomas A. Kleinman, together with the remaining assets of said business to a third party at the same address as Beckel Bar in Dayton.

On June 27, 1952, there were outstanding in the unincorporated area of Montgomery County 103 C-l and 115 C-2 permits; on December 16, 1952, Kettering was incorporated in said county, and there were outstanding in that area, 24 C-i and 27 C-2 permits; on February 11, 1953, there was detached from Kettering an area known as Moraine Township, a part of the unincorporated area of said county and outstanding in this area was one each C-l and C-2 permit; on May 22, 1953. the City of Dayton annexed an area with one each C-l and C-2 permit; on March 22, 1953, the date of the rejection order by the Director there were outstanding in the unincorporated area of said county 76 C-l and 87 C-2 permits; on March 22, 1953, there was one application on file for a C-l permit and two applications for c-2 permits in the unincorporated area of said county that had priority over the appellant’s application; and on September 21, 1953, the date of the application of the transfer in question, there were outstanding in said unincorporated area of said county 78 C-l and 91 C-2 permits.

Regardless of incorporations and annexation proceedings, the record shows that on June 27, 1952, plus those issued thereafter for applications on file on said date, there were outstanding 115 C-2 permits in the unincorporated area of the county, and on the date of the application, September 21, 1953, there were outstanding in this same area 115 C-2 permits.

Under Regulation 64 of said Board, the Board ruled no C-2 permits could issue to the unincorporated area of said county and dismissed the appeal from the Director’s order as to said C-2 permit; and at the same time ruled Regulation 14 of said Board prohibited the independent transfer of the C-l permit, and dismissed the appeal from the Director's order as to said C-l permit. The Director in rejecting the application for the C-l permit had ruled the transfer of the C-l permit alone would recognize the existence of a retail store at Thomas A. Kleinman’s place of business in Dayton, holding a C-2 permit which would preclude the sale whereby the C-l permit was transferred from being a bona fide sale.

Regulation 64 must be applied regardless of subsequent changes in political boundaries after the “freeze” date of said Regulation. The number of C-2 permits was 115 on June 27, 1952, for the unincorporated area of the county and on the date of the hearing before the Board the number outstanding in this same area was the same as June 27, 1952.

The limitation as to such C-2 permits under Regulation 64 applies not only to the political subdivision of the state but to the State of Ohio as a whole; consequently, subsequent changes of political boundaries of such subdivisions by incorporation or annexation proceedings, does not affect the number of permits for such territory.

Therefore, permit C-2 could not be transferred to the unincorporated area of said county.

The Court, therefore, finds that the order of the Board dismissing the appeal from the order of the Director rejecting appellant’s application for transfer of the C-2 permit, is supported by reliable, probative and substantial evidence and is in accordance with law; and said order is afihrmed and that part of the appeal dismissed.

The Board also affirmed the order of the Director rejecting the transfer of permit C-l alone as this would preclude a bona fide sale whereby the C-l permit was transferred, since there still would be a recognition of the existence of a retail store holding a C-2 permit at Thomas A. Kleinman’s permit premises in Dayton.

The Bill of Sale called for payment of $100.00 on transfer of permits C-l and C-2 and was not divisible as to the amount to be paid for permit C-l alone.

The Director based his rejection on the lack of a “bona fide sale.” This imports deceit or lack of good faith in the application to transfer said permits C-l and C-2.

The Court feels there was no evidence of an attempt to deceive or a lack of good faith in the effort to transfer the two permits C-l and C-2. Consequently, in all fairness a further hearing should be held, to enable the appellant to accept the transfer alone of permit C-l on condition that Thomas A. Kleinman consents to the cancellation of the outstanding C-2 permit still in his name.

If such consent is given, then the transfer of permit C-l should be approved; but if such consent is withheld, then the transfer must be rejected. The holder of the two permits cannot have “a bona fide sale of the business and assets of such permit holder,” in connection with the transfer of permit C-l, and still have said business and assets to qualify his retaining permit C-2. In other words, this sale cannot be consummated without such consent.

The Court, therefore, remands for further hearing, that part of the appeal rejecting the transfer of permit C-l as not based on a bona flde sale.

Entry accordingly saving the exceptions of both counsel for the appellant and the appellee.


author: By MILLER, PJ.

text:
    ROBINSON, Plaintiff-Appellee, v. FIRST NATIONAL BANK, Defendant-Appellant.
    Ohio Appeals, Second District, Greene County.
    No. 560.
    Decided October 28, 1955.
    Aultman, Shaw & Cox, Xenia, for plaintiff-appellee.
    Schlafman & Elliott, Fairborn, for defendant-appellant.
    (CONN, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By MILLER, PJ.

This is a law appeal from a judgment of the Common Pleas Court in favor of the plaintiff-appellee and rendered upon the verdict of a jury. The action was one seeking a certain sum of money alleged to have been deposited with the. defendant-appellant bank.

The record reveals that on or about April 20, 1953, the plaintiff, Wesley J. Robinson, opened a savings account with the First National Bank of Fairborn, Ohio, the defendant herein, at which time he signed a signature card indicating that the money was to be withdrawn only on that one signature; that subsequently deposits were made in monthly installments which finally aggregated the sum of $1786.18, including interest, which was the amount prayed for in the petition. All of the aforesaid business was transacted through the United States mail with the exception, however, that some of the deposits were made by the plaintiff’s wife who resided in the locality while her husband was in the United States armed services in Korea. These deposits were made with checks payable to the bank but sent to her for the purpose of depositing the same. Upon demand being made by the husband for payment the same was refused for the reason that the wife had withdrawn all of the money on her own signature.

The plaintiff claimed that the payment to the wife was not authorized by him and therefore any payments made to her were in violation of his contract with the bank. The bank defended upon the ground that the husband had notified it by letter to change the account to a joint one with the wife. This, therefore, became the principal question, which was resolved by the jury in favor of the plaintiff. The bank was not able to produce this most important letter, claiming that it had been lost. The next best evidence was then offered which consisted of the testimony of one of the mail clerks at the bank testifying that she had received such a letter and that the same was lost. The plaintiff denied writing such a document but says that he wrote the bank advising it that his wife would make some future deposits for him. In Speroff v. The First-Central Trust Co., 149 Oh St 415, the Court held in paragraph 1 of the syllabus:

“The relationship between a bank and a general depositor is that of debtor and creditor.”

And continuing at page 417 Weygandt, Chief Justice, says:

“The bank agrees with its depositor to receive his deposits, to account with him for the amount, to repay to him on demand, and to honor his checks to the amount of his credit when the checks are presented; and for any breach of that agreement the bank is liable to an action by him.”

It is our conclusion that the evidence supports the verdict and the same will not be disturbed.

The defendant also contends that the Court erred in rejecting the testimony of the wife which was proffered and which related to the need of the money for the support of herself and one year old child. This was objected to and the objection sustained. It is urged that this constituted prejudicial error; that if the money was necessary for the support of the plaintiff’s family the bank could, as a matter of law, pay the money to her. We cannot concur in such a conclusion because as previously stated the relationship between these parties was a contractual one, the terms of which required full compliance. The testimony proffered was immaterial to the issues presented and the court did not err in its ruling.

We find none of the errors assigned well made and the judgment will be affirmed.

HORNBECK and CONN, JJ, concur.


author: By THE COURT: By THE COURT:

text:
    WASHINGTON C. H. (City), Plaintiff-Appellee, v. CARSON, Defendant-Appellant.
    Ohio Appeals, Second District, Fayette County.
    No. 280.
    Decided October 20, 1955.
    William M. Junk, City Solicitor, Washington C. H., for plaintiffappellee.
    Harvey Crow, Cleveland, for defendant-appellant.
   OPINION

By THE COURT:

Submitted on motion of plaintiff-appellee to strike the Bill of Exceptions from the files because it had been altered after filing without the knowledge or consent of the trial court or Prosecuting Attorney.

The facts as claimed by appellee in its motion are not controverted and it thus appears that the general charge of the court to the jury and an affidavit of appellant have been added since the bill has been settled and allowed by the trial judge, and that such additions were not known by the trial judge or the Prosecuting Attorney.

Decided December 27, 1955.

By deleting the added subject matter of the Bill, it will be in the identical condition as when it was settled and allowed.

The charge as it has been added to the bill, in probability, is correct and could have been incorporated upon a motion for diminution of the record. However, it was highly irregular to make it a part of the bill without the authentication of the trial judge. Likewise, the subject matter of the affidavit should have been presented to the trial judge with the request that if correct it be incorporated in the bill.

Upon the developments, we will sustain the motion to strike that part of the so-called Bill of Exceptions which has been added and overrule it insofar as it requests that the whole bill be stricken from the files.

The case cited by appellee, Johnson v. State, 4 O. C. C. 524, is so meager in its fact as that it may not be accepted as full authority in support of the motion. It appears that the Court did consider a statement of facts. There also was another reason than the alteration of the bill, in the cited case, for the action taken by the Court.

Motion sustained in part and overruled in part.

MILLER, PJ, HORNBECK, J, concur.

WISEMAN, J, not participating.

WASHINGTON C. H. (City), Plaintiff-Appellee, v. CARSON, Defendant-Appellant.

No. 280.

OPINION

By THE COURT:

Submitted on motion of appellant for an order of diminution of the record.

The application is made by authority of §2321.14 R. c.:

“When justice requires it, upon notice to all parties, an omission in a bill of exceptions, occurring through accident or error, may be corrected by the reviewing court, or it may be remanded to the trial court for such correction.”

Appended to the motion are two affidavits. No counter affidavits have been filed.

Accepting the affidavits for what they state, it appears that there have been omissions from the Bill of Exceptions occurring through error in the particulars set forth in the affidavits, namely, in the failure to incorporate an affidavit designated as found at page 13 of the tendered Bill of Exceptions and the general charge of the court to the jury.

The affidavit of counsel for appellant also is to the effect that request was made by counsel of the Court Reporter of the Common Pleas Court for transcription of a full and complete record to be incorporated in the Bill of Exceptions. Such procedure is that which is commonly followed by the profession in the preparation of a Bill.

The memorandum contra the motion urges that by reason of the delay by appellant in requesting diminution of the record, the motion should be overruled.

In Ohio v. Westfall, 74 Oh Ap 533, it is held that there is no statutory time limit within which a Bill of Exceptions may be corrected if application properly filed.

In the interest of justice and by reason of the showing in support of the motion, it will be sustained and it will be ordered that the Bill of Exceptions be remanded to the trial court for correction in accord with this opinion.

Motion sustained.

MILLER, PJ, HORNBECK, J, concur.

WISEMAN, J, not participating.


text:
    UNION PROPERTIES, INC., Appellant, v. MONROE et, Appellees.
    United States Court of Appeals, Sixth Circuit.
    No. 12640.
    Decided April 20, 1956.

      Thomas V. Koykka, Edwin A. Howe, Quentin Alexander, Arter, Hadden, Wykoff & Van Duzer, Cleveland, for appellant.
    Saul S. Danaceau, Frank T. Cullitan, Sheldon D. Clark, Cleveland, for appellees.
    Before SIMONS, Chief Judge, and ALLEN and MARTIN, Circuit Judges.
   OPINION

Per CURIAM.

In this action, brought in the United States District Court for the Northern District of Ohio, Union Properties, Inc., challenged, as violative of the Fourteenth Amendment, the assessment of certain of its downtown real estate in Cuyahoga County at a substantially higher percentage of its actual value than was the assessment in that county of differently classified real estate—such as residential property—at less than fifty per cent of its actual value.

On motion, the complaint was dismissed for the reason that, no federal question being presented, the United States District Court lacked jurisdiction of the action.

It is quite apparent that, here, Ohio law provides a full, complete and adequate remedy to the appellant in the state courts. Indeed, before the present action was filed, appellant had instituted a complaint pursuant to §5715.19 R. C. For Ohio procedure, see §§5715.21, 5715.22, 5717.01, 5717.03, 5717.05, 5717.06 R. C. By §2723.01 R. C., the Courts of Common Pleas of Ohio may enjoin the illegal levy or collection of taxes and assessments, and may entertain actions to recover such taxes, when collected. See further, §§2723.03, 2723.05 R. C.

The courts of Ohio are open to appellant to contest the alleged unlawful discrimination under Ohio taxing statutes; and, in the event that the highest court of Ohio should decide against it, appellant has the right to appeal to the Supreme Court of the United States upon an allegation that the Fourteenth Amendment to the Federal Constitution has been violated.

In the posture of the case as presented, we think United States District Judge Connell correctly ruled that the district court lacks jurisdiction.

The judgment is affirmed.

«Judgment affirmed.


author: By THE COURT. By NICHOLS, J.

text:
    CARMIAUX, Plaintiff-Appellee, v. CARMIAUX, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5280.
    Decided June 13, 1955.
    John J. Chester, Columbus, for plaintiff-appellee.
    William E. Knepper, John B. Hennessey, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

Submitted on motion of the defendant-appellant seeking an order for an award of expense money and counsel fees in connection with the prosecution of her appeal. The record discloses that the action was instituted as one for divorce, brought by the husband, plaintiffappellee. The wife answered by filing a general denial and cross-petition seeking only alimony. The court denied the husband a divorce and awarded the wife the sum of “$200.00 per month until such time as (she) is able to resume work.” The wife is appealing on questions of law from the award granting her alimony. The motion is supported by an affidavit signed by William E. Knepper, Attorney, who says that the wife has incurred an expense of $183.00 for the bill of exceptions in connection with the appeal and “has incurred and will incur counsel fees in an amount which affiant estimates will be approximately $350.00 in connection with the prosecution of the appeal.”

Although it would appear that §3105.14 R. C., expressly authorizes such an allowance, it has been held that this section is in conflict with Article IV, Section 6 of the Ohio Constitution. See Smith v. Smith, 55 Abs 449, by this court in which we hold that the court did not have jurisdiction to grant temporary alimony. See also, Dann v. Dann, 71 Abs 110; Davis v. Davis, 41 Abs 189; Beach v. Beach, case No. 2319, Montgomery County, decided by this court on March 24, 1955, 71 Abs 115.

The motion will be overruled.

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

Decided January 23, 1956.

(FESS, J, of the Sixth District, GRIFFITH and NICHOLS, JJ, of the Seventh District, sitting by designation in the Second District.)

No. 5280.

OPINION

By NICHOLS, J.

The plaintiff instituted this action for divorce in the Common Pleas Court of Franklin County, Ohio. The defendant answered denying the grounds stated in plaintiff’s petition, and filed her cross-petition praying for alimony only.

Upon trial, the court dismissed plaintiff’s petition, the court “being of the opinion that plaintiff abandoned defendant without sufficient cause and without making adequate provision for her support,” as appears from the separate findings of law and fact made upon request therefor.

Upon consideration of defendant’s cross-petition for alimony, and the evidence, the court awarded defendant “$200.00 per month until such time as she is able to resume work.” The plaintiff did not appeal from the dismissal of his petition and it follows that the parties remain husband and wife, with the obligation of the husband to support her, the evidence disclosing that he had abundant property and means so to do.

From the decree as to alimony the defendant has appealed to this court on questions of law and assigns eight grounds upon which this court is asked “to award to defendant-appellant reasonable expense reimbursement, money to pay her attorney fees, and reasonable alimony out of the property of the plaintiff-appellee, or out of his future earnings, or both, or in the alternative, should remand this case to said Court of Common Pleas for a new trial” on the issue of alimony.

An examination of the assigned grounds of error discloses that all relate to the refusal of the trial court to allow an award to plaintiff for her reasonable expense in defending, the action brought against her and for her sustenance during the pendency of the action, and to the claimed inadequacy of the award of alimony made upon final hearing, it being claimed that the award is unfair, unjust, unreasonable, against the manifest weight of- the evidence, and contrary to law, with all of which claims this court is in full accord after thorough consideration of the evidence, requiring a reversal of the judgment of the trial court and remand of the action for further proceedings according to law.

Since the cause must be retried on the issue of alimony alone, no detailed recitation of the evidence is now required, it being sufficient to say that the record discloses evidence from the testimony of disinterested and reliable witnesses, as well as the admission of the plaintiff, that he is operating a successful auto service station in Columbus, from which his earnings have been not less than $4592.00 in 1949, $4470.21 in 1950, $4796.53 in 1951, $6708.00 in 1952, in which year he filed this action. The record further discloses the testimony of his own accountant that his income for federal income tax purposes was much larger than the amounts above set forth. The evidence also discloses an admission by him that he had invested $14,000.00 in the property; that he owned several automobiles, a lot in Canterbury Addition of the estimated value of $8000.00 upon which he planned to build a $25,000.00 to $30,000.00 residence; that he negotiated for the purchase of the apartment building in which he and his wife resided and offered to pay $32,500.00 in cash therefor, and also build the house in Canterbury, telling his wife it would cost $40,000.00 to build the house he wanted in Canterbury, and in August, 1952, when this action was brought there was a total of $16,000.00 in his savings account, which he then withdrew and retained at the time of the trial. There was no attempt on his part to seriously controvert the testimony above referred to. Indeed the evidence is susceptible of a finding of greater earnings of plaintiff than recited above.

The evidence discloses Mrs. Carmiaux was a devoted wife, altogether without fault and helpful to him in his business, had earned since their marriage about $8000.00 as a school-teacher, a substantial portion of which she had contributed to the marriage; that at the insistance of Mr. Carmiaux she had quit teaching school in 1946, and helped on preparing statements and keeping books; that after her husband deserted her, her health was seriously impaired, as disclosed by the report of an examining physician appointed by the trial court.

In the face of all this evidence and particularly in the light of her impaired physical condition, the trial judge awarded her alimony in the amount of $200.00 per month and that only “until such time as she is able to resume work.” Since there was no divorce, the trial court was not authorized to make a division of the property of the parties, nor is this court permitted so to do, but the trial court had the duty to award the defendant a fair, just and reasonable amount for her sustenance and expenses, taking into account the income and property of the husband, her accustomed station in life, the manner of living to which she was accustomed, her age (561 and her impaired health and physical condition, the court applying equitable principles, this the trial court failed to do, the order of that court indicating that when her health improved sufficiently to enable her to work she would be turned out without any obligation upon the part of the husband to support his wife out of his abundance of property and earning capacity.

Nor do we find the allowance of $200.00 made by the trial court for her expenses, including attorney fees, is adequate for that purpose. We respectfully suggest to counsel for defendant that in requesting an allowance to defendant to pay attorney fees, evidence should be introduced disclosing the services rendered and the reasonable value thereof.

Unfortunately, under the holding of the Supreme Court in Henry v. Henry, 157 Oh St 319, this court is not authorized to make the award which we believe is required by the evidence in this case, and our only prerogative (as well as our duty) being to reverse and remand, which is accordingly ordered.

GRIFFITH and FESS, JJ. concur.


text:
    KOSICK, d. b. a. WELCOME INN, Appellant, v. BOARD OF LIQUOR CONTROL, Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5302.
    Decided October 5, 1955.
    Leonard J. Stern, Columbus, O. V. Blumenstiel, Alliance, for appellant.
    Hon. C. William O’Neill, Atty. Geni., Kiehner Johnson, Asst. Atty. Geni., Columbus, for appellee.
   OPINION

By HORNBECK, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court affirming an order of the Board of Liquor Control revoking certain permits of appellant.

The charge against the appellant was that

“On August 21,1954, you and/or your agent or employee did knowingly and wilfully allow in and upon the permit premises improper and immoral activity, to wit, the loitering and soliciting of prostitutes, in violation of provisions of the Liquor Control Act,” etc.

We have reviewed orders involving this rule. The language requires not only allowance of the improper and immoral activity against which the rule is directed, but that it be done knowingly and wilfully and the rule provides that this knowledge and wilfullness apply to the permittee.

The broadest possible construction that can be given to this rule in favor of the Department and the Board is that the acts complained of should have been known by the permittee, either directly or by imputing the knowledge of a bartender or one in charge, to the permittee.

In this case, as we understand the claim of counsel for appellee, there is no contention of express knowledge of the acts complained of either by the owner or her bartender who was in charge. The record clearly requires this conclusion because the permittee was not present during the solicitation nor was the solicitation conducted in such proximity to the bartender as that it could be said that he knew what was said or that he was put on notice of what the solicitor was doing.

It is the claim of the appellee that upon the circumstantial evidence in the record the finding of the Board is supported. There is a well recognized principle that circumstantial evidence sufficient to establish guilt must in all of its elements be inconsistent with every other reasonable hypothesis than guilt. So the circumstances here must have been such as to have been inconsistent with any other theory than the knowledge of the permittee of the acts complained of.

The permittee for eleven years had conducted her business under permits of the Department and it is asserted, and the record does not dispute it, that no charge of any violation of law or rule of the Board had been made against her. ¡

The acts complained of in the charge occurred within a period of not more than thirty minutes on the afternoon of August 21. 1954.! It developed that Officer Bona, an investigator for the Department, called at the permit premises at about 3:30 P. M. He did not testify that he was solicited, but another officer said that Bona reported that he had been solicited. This, of course, was hearsay but probative to a degree. During this solicitation of Bona upon the evidence as developed, there is no suggestion that the permittee or the bartender had any notice or knowledge of the solicitation. As a result of this first call another officer, Inspector Bierut of the Department, went into the permit premises, bought a drink, and Debbie Miller, the girl involved later, came up to him and it is testified made solicitation that they engage in sexual relations for a fee. There is a statement that she accosted two other men along the bar, but what was said does not appear. It will be noted that the charge here is allowance of the soliciting by a prostitute. We have deailed substantially all of the proof of the substantive charge and what followed is only helpful as it may provide circumstantial evidence of knowledge, express or implied, by the permittee.

The woman involved was unkown to the permittee prior to the Saturday before the occurrence of the acts of which complaint is made. She came to the permit premises on Saturday, went to work on Tuesday and the acts occurred on the Saturday following. So that at this time she had been employed but five days. There is no evidence from which it can be inferred that Debbie Miller was performing any duties incident to her employment on the occasion of the acts of which complaint is made.

As a result of the arrangement whereby the officer went back into the permit premises, solicitation was had and Officer Bierut went outside the permit premises through a cellar door and into a basement and there in the room which was partitioned off by blankets, the preparation for sexual intercourse occurred. The officers came in, apprehended the woman, recovered money that had been marked and paid to her and found a number of articles which could have been used as incidents to the sexual relations. With the exception of contraceptives which could have been placed there at any time, all of the articles could have been employed in the basement for other purposes. This building wherein the business of permittee was conducted was of considerable size. On the second floor a number of rooms were occupied as an apartment, some of the employees of permittee also lived there. The basement was used for various purposes and in all probability the room in which the preparation for sexual intercourse took place had been partitioned off long before the arrival of Debbie Miller. Debbie Miller’s room was not in the basement.

The permittee testifies that she had not been in the basement for weeks, that she had been in the hospital, that she had partitioned the room for the use of two boys, that on the day of the occurrences complained of she had not been in or about the premises until about the time that the first officer came.

The state of the proof is not such as to rule out every reasonable hypothesis of the innocence of the permittee of the charge against her. The evidence of the specific charge is neither of such substance, nor of sufficient probative value to meet the statutory requirements of proof essential to a finding of violation of the charge, and the Common Pleas Court erred in affirming the order of the Board.

The judgment will be reversed.

MILLER, PJ, concurs.

WISEMAN, J, not participating.