author: By ALEXANDER, J.

text:
    WOLFE, Plaintiff, v. WOLFE, Defendant.
    Common Pleas Court, Lucas County.
    No. 94280.
    Decided December 24, 1954.

      Lane, Downing & DeMuth, Toledo, for the plaintiff’s administratrix.
    Fuller, Harrington, Seney & Henry, William Kreutz, Toledo, for defendant.
   OPINION

By ALEXANDER, J.

On motion of Virginia Arlene Wolfe, Administratrix of the Estate of Dwight L. Wolfe, Deceased, to modify decree for installment alimony by cancelling unpaid installments as of date of defendant-wife’s remarriage.

The principal facts are as follows:

1925, May 7 — Defendant-wife in this court was granted a divorce from plaintiff-husband, the decree awarding her: Custody of the two minor children; Alimony, to-wit, certain personal property; Further, “alimony in money, the sum of Ten Dollars ($10.00). payable upon the first day of each and every week through the Toledo Humane Society until further order of Court.”

1926, Aug. 10 — Defendant-wife remarried and is living with her second husband.

1940, Feb. 16 — The younger child entered military service.

1942, Feb. 26 — The elder child reached her majority.

1943, May 8 — Plaintiff-husband made his last payment; total, $6,979.00.

1944, Sept. 16 — The younger child reached his majority.

1951, Sept. 20 — Plaintiff-husband died, a resident of Detroit, Wayne County, Michigan, where his estate is currently being administered.

In due course defendant-wife filed claim against plaintiff-husband’s Administratrix for $7,351.00 installment alimony due and unpaid at decedent’s death. The Probate Court of Wayne County, Michigan, has held the claim in abeyance to permit this Court to determine the motion now before it.

This motion appears to present the following quaere:

1. Has this Court legal power to cancel due and unpaid alimony installments?

2. If so, may it exercise its discretion so as to do equity?

Counsel for the Administratrix of plaintiff-husband argues that his legal liability terminated as a matter of law upon his wife’s remarriage; that the so-called alimony was intended, and in fact was ordered for the support of the minor children, and as a matter of equity, the installments should be so treated and should be limited to the period of the children’s minority.

Counsel for the defendant-wife contends that this Court is utterly without power to modify the order retroactively and relies upon a strict interpretation of the doctrine that due and unpaid installments are judgments, and may never be modified retroactively without a specific reservation of power to do so; and that as this motion is incident to a divorce case, this Court is shorn of equity power and jurisdiction.

The rule against retroactive modification of alimony installments goes back at least to 1896 (Craig v. Craig, 163 Ill. 176; 45 N. E. 153). It was given considerable impetus by the U. S. Supreme Court in Sistare v. Sistare, 218 U. S. 1 (1910): “Generally speaking, where a decree is rendered for alimony and is made payable in future installments the right .to such installments becomes absolute and vested upon becoming due * * The rule has long been recognized in Ohio, perhaps the leading pronouncement by the Supreme Court being found in Armstrong v. Armstrong, 117 Oh St 558 (1927). We have been cited to a number of other Ohio cases: Lockwood v. Krum, 34 Oh St 1 (1878); Gilbert v. Gilbert, 83 Oh St 265 (1911); Baker v. Baker, 4 Oh Ap 170 (Hamilton County, 1915); Meister v. Day, 20 Oh Ap 224 (Lucas County, 1925); Pace v. Pace, 41 Oh Ap 135 (Morrow County, 1931); Aukland v. Aukland, 17 O. O. 387 (Franklin County, 1939); In Re: Riggle, 18 O. O. 179 (Tuscarawas County, 1940); Speer v. Speer, 36 O. O. 450 (Lucas County nisi prius, 1947); McPherson v. McPherson, 153 Oh St 82 (1950); DeCamp v. Beard, 94 Oh Ap 367 (Hancock County, 1953).

In most of these cases the doctrine is recognized and supported, for the most part quite strictly; but in only one, the Baker case, is there presented a casus modificiendi similar to the one in the case at bar. And all but one were decided prior to the 1951 statutory amendment whereby the divorce courts of Ohio were restored to competency, at least as to equity jurisdiction.

Now, while the doctrine under discussion is unquestionably sound and salutary, a rigid and inflexible application appears dangerously susceptible to a reductio ad absurdum. While a majority of the states follow it there is none the less a split of authority and a state of confusion was recognized as existing in 1927 and was mentioned in the Armstrong case (supra). That some uncertainty still exists is indicated by the fact that the last two cases on the general subject before the U. S. Supreme Court were each decided by a divided court. (See Barber v. Barber, 323 U. S. 77 [1944]— not to be confused with the Barber case referred to in the Armstrong case, supra — and Griffin v. Griffin, 327 U. S. 220 [1946].)

And there is a feeling in some quarters that to hold the order for installment payments utterly unalterable once they have accrued, works needless injustice in enough cases to warrant reasonable relaxation of the rule in certain clear-cut instances. Perhaps this accounts for some of the confusion and uncertainty and for the frequency with which the bar initiates litigation in apparent defiance of the rule or else in the hope the court may not know about it, or knowing about it, may soften it.

In an unreported case which went up from this Court in 1938, we were considering a motion for a lump sum judgment for due and unpaid installments of child-support and, because we took literally and strictly the doctrine of “no retroactive modification,” we made the mistake of rejecting the defendant-father’s offer to explain the reasons he had become delinquent. But the Court of Appeals quickly set us straight on that point (Ramberg v. Ramberg, 46 Lucas Co. App. Opin. 311, at p. 316):

“However, in alimony cases where lump sum judgments are sought, the delinquent is given an opportunity to defend and to show, if he can, justifiable reasons which may cause the Court, in the exercise of a sound discretion, to make such lump sum judgment a less sum than the record may show to be due, less than the complainant claims, or perhaps refuse any such judgment.”

So we mended our ways and began heeding “defenses.” In 1943, in In Re Shipley, 26 O. O. 217 (affirmed without opinion December 2, 1943, Lucas C. A. 3990), a mother sought lump sum judgment for $6,320 covering due and unpaid installments of child-support. In defense it was urged she had been guilty of laches in allowing the installments to accumulate for 11 years before attempting to collect; and that for nearly 10 years her new husband had enjoyed without let or hindrance by the natural father what amounted to a de facto adoption of the children as completely as if they had been legally adopted, and consequently it would be inequitable to compel the natural father to pay for privileges enjoyed exclusively by the stepfather. Following a decision of the New York Court of Appeals in an almost identical case, we allowed the defenses and modified retroactively by cancelling all installments accrued subsequent to the mother’s remarriage.

In 1947 in the Speer case, supra (relied upon by both counsel — how equivocal of us!) we again followed the dictates of the Ramberg case, supra, but finding there a very limited defense, we made only a limited retroactive modification. But, as defendant-wife in case at bar has herself reminded us in her brief, we there opined that had the child for whom support was decreed died or married or become emancipated, such a defense would have been valid.

It is true that in the Armstrong case the money was to be “for alimony and maintenance of said children” and that one child entered military service and died in 1918, and one reached majority in 1917, the year the father stopped paying. But in that case the Ohio court was considering the issue not of voluntary enforcement of the Kentucky order, but whether full faith and credit must be given to it. The home court had postdecretal power, by statute, to “reverse and amend” the order. This power was reserved to the home court. Nothing appears in the statute empowering any foreign court to modify in any respect. The Ohio court can hardly be criticized for declining to view the order as one for child-support exclusively and consequently as terminated or at least terminable as of the date of emancipation, death or attaining majority of the children. Such a determination could have been assumed to be peculiarly within the province of the originating court which had continuing jurisdiction. Just the year before (1926) the Supreme Court of Alabama had rendered a decision to that effect in McAlister v. McAlister, 214 Ala. 345, 107 So. 843. See also cases cited in note at 132 A. L. R. 1272. Had the installments been ordered just for the support of children, and not as alimony, can it be seriously contended that our Supreme Court would have enforced them and thus required the father to pay child-support for a son who was no longer living or a daughter who was no longer a child? Yet such is the absurdity to which the rule would be reduced by a strict and literal interpretation.

Unlike alimony, child-support is not ordered paid directly to the beneficiary, the child, but (usually) to the mother to spend for the child’s benefit or, as it must turn out from time to time, to reimburse her for money she has already spent to maintain the child. When a child marries, enters military service, becomes emancipated, or reaches majority, the requirement of parental economic support is supposed by every dictate of Anglo-American culture, custom and common law to terminate. The parent is no longer held responsible for the child’s maintenance. A son is then expected to support himself and when married, his own new family. A daughter is then expected to support herself or, when married, be supported by her new husband.

Then why does not a decretal obligation laid upon a divorced father to pay child-support terminate upon the occurrence of such an event, as automatically as it must upon the occurrence of the child’s death? Despite the frequency with which we are besought to the contrary, we still believe it does, for the basic reason that the factual situation in contemplation of which the order was founded has ceased to exist. And the termination of the legal obligation must be held to take place at the time the event occurs and not when the court’s attention is called to it so the order may be cancelled of record. Factually, in a tremendous majority of cases the court is never notified, and countless thousands of these installment orders still stand on the books with nothing to indicate they are either terminated or satisfied. The parties take for granted the obligation has been automatically ended. Why shouldn’t the court?

And why doesn’t the same logic apply when the factual situation in contemplation of which an alimony order was founded ceases to exist? Despite the urgency with which we are besought by the defendant-wife in the case at bar, we believe it does. We believe plaintiff-husband’s decretal obligation to pay alimony to his former wife terminated automatically upon her remarriage. At that moment the factual situation in contemplation of which the order was founded ceased to exist, and new facts establishing a new status, and engendering new moral, ethical and legal obligations came into being.

Now. while there are material distinctions between the two, it must be remembered that alimony, like child-support, contemplates not the past but the future. It looks not backward but forward. Its raison d’etre is to make provision for the future. It is neither reward for virtue nor retribution for vice. It is nourishment, sustenance, support-money for the wife in the future. It is not payment of an ordinary debt, settlement of an unliquidated claim, an award of damages either ex contractu or ex delicto, restitution of property, or a distribution of assets as upon dissolution of a partnership. Of course, these are all matters which the court, upon granting a divorce, has both the right and the duty to determine and finally adjudicate as justice and the equities of the case may require; and these ends are principally accomplished by a process generally referred to as division of property.

If, as so frequently happens, the property is not literally divisible, the desired equitable result is often obtained by rendering a money judgment in favor of one party to compensate for a deficiency in the amount or value of the property awarded to her or him; or, if there be no property to award, to settle and finally adjust economic and money claims between the parties. In order to face realities, soften the blow, and help insure ultimate collection of the judgment, it is often made payable in installments. But unless jurisdiction to modify such installments, future or past, be specifically reserved, it would seem such a judgment could and'should under no circumstances be subject to any modification or attack other than for fraud, etc., as provided by §2325.01 R. C. (§11631 GC).

We have always found the transcendental profundities of the late Gertrude Stein too recondite for our minuscule comprehension, but in one of her less obscure observations we thought we detected a glimmer of its esoteric meaning: “A rose is a rose is a rose.” This is still profoundly true, even though we call it a lily or a skunk-cabbage. Had Miss Stein been of a legal turn of mind she might have said: “Alimony is alimony is alimony,” and it would have been equally true, whether we call it child-support, division of property, or an unmitigated racket. And conversely the same is true of child-support and specific money-judgments — whatever we may call them — in favor of a spouse against' her mate.

When two people intermarry the husband’s primary obligation to support the wife is imposed by contract, common law and statute. When they divorce, this obligation may be continued by the Court and if it be, the amount is determined and entered in the decree. And even though continuing jurisdiction be specifically reserved, as in case at bar, the order is none the less fixed and final until there occurs a substantial change in the circumstances of the parties or either of them.

If in case at bar we are to take the decree at its face value and construe “alimony” as meaning alimony, as defendant-wife insists we must, we must presume that it was awarded to her in contemplation of the future, that she was at the point of losing her status as a feme covert with its consequent right to support by the husband and of entering the status of a feme sole with no attendant right to support; that presumably during coverture she was supported by her husband and that if this support were wholly and immediately withdrawn she would suffer unjustifiably, the husband would be unjustifiably relieved of his obligation, and the state might unjustifiably have to assume that obligation.

So long as this situation obtained the alimony order must be presumed to have been proper as well as valid. But when defendant-wife remarried and again became a feme covert, she gained with her new status the right by contract, by common law and by statute to be supported by her new husband. For a wife to be supported by a new husband with whom she is presumably living and at the same time by a former husband with whom she is presumably no longer living and from whom she is divorced, has shocked the sensibilities of at least one Ohio court (Baker v. Baker, supra):

“Alimony is an allowance made to a woman upon a decree of divorce given her for her support out of the estate of hex husband. This plaintiff now has another husband and is, presumably, happily living with him. While her remarriage is entirely proper and may be regarded as highly commendable, she must have understood upon re-entering the matrimonial state that such a step would make any further support, voluntary or involuntary, from her former husband inconsistent and incompatible with accepted notions respecting one of our most sacred institutions, and that' therefore the decree in her favor against him might be affected by her new relations.”

To hold that a wife is entitled to be supported by both husbands contemporaneously is repellent even to modern and ultra-liberal- xnoral and ethical concepts; it violates one’s sense of justice to the first husband, for one can imagine few things more unfair than being compelled to contribute to the support of another man’s— possibly a -successful rival’s-wife. (This is not to say it is unfair to require him to pay her what he owes her.) It is unsalutary for the wife in that it must encourage parasitism and may tend to diminish her loyalty to the new husband. It would tend to demoralize the second husband by impairing his ego and making the first husband a constant threat to the security of his position. It is repugnant to the traditional attitude of the law favoring the preservation of marriages in that it would in many cases serve as the introduction of a wedge of dissension to split the second marriage. Also, it would tend to encourage plural marriages. It is against public policy in -that it would not only condone but would legalize one type of alimony racket: it would be tantamount to a court broadcasting that it would protect a woman’s right to collect support from as many husbands as she could collect!

Outside Ohio, the weight of authority has seemed to point in the other direction; but, without counting noses, we have gained the impression that the more recent cases adopt the view of the Baker case, supra. New York once held that the wife’s remarriage could not affect the alimony order but now has a statute (Sec. 1159 Civil Practice Act) compelling the judge to cancel the order upon showing of the wife’s remarriage and the Court of Appeals has held (Kirkbride v. Van Note, 275 N. Y., 244, 9 N. E. 2d, 852, 112 A. L. R., 243) that the annulment of such provision is not personal to the husband and after his death it may be exercised by his personal representative. In California it was held in Atlass v. Atlass, 112 Cal. App., 514, 297 P. 53 (1931) that an order annuling the provisions of a decree of alimony, the wife having remarried, by providing that payments cease as of the date of the order rather than as of the date of the remarriage, was erroneous. In Connecticut the Supreme Court has said, in Cary v. Cary, 112 Conn., 256, 152 A., 302 (1930):

“The better rule which we adopt, save in the most exceptional circumstances, draws from the voluntary action of the wife in remarrying the inference that she has elected to obtain her support from her second husband and has thereby abandoned the provision made for her support by the court in its award of alimony.”

This Court is not quite ready to go as far as the majority even though to avoid doing so we must modify retroactively accrued alimony installments. We respect the general rule against such modification. Some of the reasons supporting it are set forth in a recent case note in the current University of Chicago Law Review, Vol. 22, No. 1 at page .247. We are in accord with most of them, and from our divorce court experience might add one or two. The note also mentions some instances in which the retroactive power could be exercised to relieve hardship. But it does not mention the one that seems to us most cogent of all, the divorced wife’s remarriage. Nor does it discuss situations where the power might properly be exercised to increase retroactively past due installments. But it does say:

“The rule permitting retroactive modification seems more apt to achieve substantial justice, provided that the power is exercised only after careful consideration of the wife’s circumstances.”

This comes pretty close to stating our own thesis, although we are inclined to put scrutiny of the children’s circumstances first and would hesitate wholly to exclude the ex-husband. In other words, a court confronted with an application to modify an order for installment alimony or child-support, future or past due, must look at the whole picture, past, present and as far into the future as possible, and exercise its discretion to do equity, bearing in mind that it may deviate from general rules of law only for most compelling reasons.

This brings us to our second quaere: Have we power to exercise discretion so as to do equity? This idea of the governance of equity in cases like this is far from novel despite the vigor with which defendant-wife attacks it in the case before us. To cite a few instances at random:

Nearly a hundred years ago (in 1858) the Supreme Court of the United States, speaking of interstate enforcement of judgments for divorce and alimony, said:

“For such a purpose, both the equity courts of the United States and the same courts of the States have jurisdiction.” (Barber v. Barber, 21 How. U. S. 582. Italics ours.)

This case was mentioned by our Supreme Court in the Armstrong case, supra. In another U. S. Supreme Court case mentioned in the same opinion we find:

“The provision of the payment for alimony in the future was subject to the discretion of the Court of Chancery of New Jersey * * (Lynde v. Lynde, 181 U. S. 183, 1901. Italics ours.)

In a more recent case, the Supreme Court of Maryland holds:

“To deny a court of chancery (the power to cancel or reduce arrears) prevents the rectification of an obligation which would not have been created had the chancellor been able to anticipate the later faculties of the husband, and defeats the rule that the maintenance afforded the separated wife through alimony is not to be greater than what she would have enjoyed in cohabitation.” (Winkel v. Winkel, 178 Md., 489, 500; 15 A. 2d, 914, 919, 1940. Italics ours.)

That brilliant master of equity, Prof. Zechariah Chafee, of the Harvard Law School faculty, in his latest book on the subject, Some Problems in Equity (U. of Michigan Law School, 1950), has a delicious chapter on equity in matrimonial cases. He cites several instances showing the folly of a rigid application of certain rules (notably the “clean hands” doctrine) in divorce and annulment eases and comments:

“At the same time, domestic problems ought not to be subjected to inflexible rule.” (p. 79.) And: “Of course judges ought to have some discretion about denying a divorce when the petitioner is unfaithful, but discretion means the ability to use a practical judgment in shaping the decision so as to fit the facts and the needs of the particular situation.” (p. 84.)

In times past when an Ohio court had need to exercise equity jurisdiction in a divorce case it was confronted with holdings that as divorce is a purely statutory proceeding the court could do only those things provided by statute. However correct and historically well founded these decisions were, their effect often was to hamstring the court handling a divorce case and hamper it in trying to “shape the decision so as to fit the facts and the needs of the particular situation.”

So a few years ago a movement was started to alleviate this situation by statute. The common pleas court is a court of general legal jurisdiction and at the same time a court of equity. It possesses all the equity jurisdiction there is. Why must it be shorn of its right to exercise its own equity jurisdiction just because it is hearing a divorce case? The legislature was asked to enact a statute not to add to its equity jurisdiction but to provide against its being deprived thereof when hearing a domestic relations case. And in 1951 just such a statute was enacted: the last sentence of §3105.20 R. C. (§8003-21 GC): “In any matter concerning domestic relations, the court shall not be deemed to be deprived of its full equity powers and jurisdiction.” The hands of the court were at last untied!

Equity came into being to provide remedies where there was no adequate remedy at law; to permit defenses to mitigate the sometimes harsh results of an inflexible application of rigid rules of law

The rule against retroactive modification is not changed. But where strict enforcement would be unconscionable, immoral and against public policy — in such a case the court now clearly has both the right and the duty to exercise its equitable jurisdiction. And we believe case at bar to be such a case.

But equity is no respecter of persons, and it may cut both ways. Although we hold the plaintiff-husband’s obligation to pay alimony terminated upon defendant-wife’s remarriage, we do not find that that occurrence terminated his entire obligation to her.

Since we are by statute restored to our full equity powers and jurisdiction, this case seems to present a peculiarly appropriate occasion for the application of another equitable principle, “Equity looks to the substance, not to the form — perhaps for a new style in equitable conversion: “alimony” into child-support! We find the following facts significant:

1. Although the divorce decree awarded custody of the children and provided for their visitation, it made no articulate provision for their support.

2. In 1925 $10 weekly was the amount this court commonly ordered for the support of two children.

3. The “alimony” was made payable through the Toledo Humane Society which has always collected and disbursed child-support but has refused to handle alimony alone.

4. For 17 years following the mother’s remarriage, the father paid with imperfect regularity.

5. At a point almost exactly midway between the dates of the coming of age of his two children, the father stopped paying altogether. (Overpayment on the elder child offsets underpayment on the younger.)

6. There is no evidence that the wife corpplained upon his stopping payment at that time.

These facts seem to us to indicate that the $10 weekly payments were regarded as, were intended to. and actually did constitute child-support as well as alimony. This view is concurred in by the Administratrix of the father’s estate although, because of accumulated delinquencies, it must cost the estate substantially more than if it were held to be alimony only, and hence terminated upon defendant-wife’s remarriage.

This court is accordingly placing this construction upon its own earlier judgment. We find that in equity plaintiff-husband should have paid $10 each week up to the very time he quit, regardless of the remarriage of the mother. We are not called upon to make any apportionment of the payments as between alimony and child-support, but in any event $10 per week applied wholly to child-support would appear far from excessive, even for one child. It does not appear that the parties regarded the boy’s entering military service as emancipating him. For over three years thereafter the father continued paying, during the last half of that period at the rate of $30 per month.

Altogether plaintiff-husband paid, during the period of 939 weeks, a total of $6,979.00. At $10 per week this leaves a deficiency of $2,411.00. for which amount, with interest from May 8, 1943, judgment is hereby rendered in favor of defendant-wife against the Administratrix; and the original order of May 7, 1925 is modified in accordance herewith.

A journal entry may be prepared accordingly, allowing exceptions to both parties.


source: Caselaw Access Project

author: By THE COURT:

license: Public Domain

text:
    DEAN, Plaintiff-Appellee, v. DEAN, Defendant-Appellant.
    Ohio Appeals, Second District, Greene County.
    No. 549.
    Decided October 19, 1954.
    George H. Smith. George R. Smith, Xenia, for plaintiff-appellee.
    Messrs. Marshall, J. Carl Marshall, Miller & Finney, J. A. Finney, of Counsel, Xenia, for defendant-appellant.
   OPINION

By THE COURT:

This is a law appeal from the judgment of the Common Pleas Court decreeing a'divorce to the plaintiff-appellee upon the ground of extreme cruelty, awarding custody of the children and ordering a division of the property.

The first and third errors assigned relate to the sufficiency of the evidence, urging insufficient corroboration, and that the judgment is against the manifest weight of the evidence, citing §3105.11 R. C., which provides:

“A judgment for divorce or for alimony shall not be granted upon the testimony or admissions of a party unsupported by other evidence. No admission shall be received which the court of common pleas has reason to believe was obtained by fraud, connivance, coercion, or other improper means. The parties, notwithstanding their marital relation, shall be competent to testify in actions and proceedings under §§3105.01 to 3105.21, inclusive, R. C., to the same extent that any other witness might.”

For the purpose of corroborating the charge of extreme cruelty two witnesses were called on behalf of the plaintiff. The first of these, one Harold Caraway, testified to the effect that he had seen the plaintiff driving live stock on the farm and “stuff like that,” and also that the defendant had told him “the only thing between him and his wife was his temper.” The other corroborating witness was one Fred Howell who had served as a laborer on the farm of these parties for a period of three years. He testified that on various occasions he had seen the plaintiff driving a tractor for the purpose of cultivation; that he had seen her doing this at a time when she was pregnant; that he saw her sorting hogs and cattle on the farm; that she had frequently helped in the fields; that he had heard the defendant swear at the plaintiff and children. However, on further examination the profane word with reference to the children was that he called them “brats and things like that.” He could not recall any of the profane words used against the plaintiff.

Now the record discloses that the plaintiff had testified that she was compelled by the defendant to perform these labors and acts on the farm, but we are unable to find one scintilla of evidence in the record in corroboration of this fact, even the corroborating witnesses testified that it was customary for farmers’ wives to voluntarily help on the farm at times. The corroborating testimony must pertain to material elements essential to the proof of the charge set out in the petition. Brown v. Brown, 50 Abs 90. The acts of personal misconduct of the defendant, it appears, were acts of bad temper and sudden emotion. It does not appear that they were calculated to permanently destroy the happiness and peace of mind of the plaintiff. Under such circumstances it cannot amount to extreme cruelty.

“2. The term ‘extreme cruelty,’ as used in §11979 GC, is not limited in scope to acts of physical violence or the reasonable apprehension thereof, but is sufficiently broad to encompass acts and conduct the effect of which is calculated to permanently destroy the peace of mind and happiness of one of the parties to the marriage and thereby render the marital relation intolerable.” Buess v. Buess, 89 Oh Ap 37, Syllabus, Par, 2.

Mere incompatibility of temper without the premeditated and intentional course of misconduct intended to destroy the marital. relationship is not a cause for divorce. 12 O. N. P. (N. S.) 601.

It is our conclusion that the evidence fails to corroborate the testimony of the plaintiff that the defendant is guilty of the charge of extreme cruelty.

We have considered the other errors assigned and find none well taken. For the reasons indicated the judgment will be reversed and cause remanded for further proceedings according to law.

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


text:
    MULLEC, d. b. a. JOHN’S CAFE, Appellant, v. BOWERS, Tax Commr., Appellee.
    Board of Tax Appeals.
    No. 26539.
    Decided November 8, 1954.
    Jack Spira, bookkeeper, for appellant.
    C. William O’Neill, Atty. Geni., by William E. Herron, Asst. Atty. Geni., Columbus, for appellee.
   OPINION

This is an appeal from a final sales tax assessment order made by the tax commissioner on April 29, 1954. The order made covers an audit period from September 10, 1945, to December 31, 1952. The amount of the assessment is $1,385.87 plus a penalty of $207.88 — total, $1,593.75.

The cause now comes on for further consideration and final disposition upon the tax commissioner’s transcript, appellant’s notice of appeal, the record of a hearing had before this board on July 8, 1954, certain exhibits and briefs.

A letter of the Department of Taxation (Sales Tax Division) to a departmental examiner under date of November 17, 1952, reads in part: “In May of 1951 a form letter No. 490 was mailed to him regarding no stamp purchases and no returns being filed. On June 4 of that year he purchased $100.00 worth of stamps, apparently as a result of the form letter. This is the only stamp purchase which he has made from January 1, 1950, to the present time. We have no record of his ever having filed a return since starting in business.” It was this rather flagrant disregard of the Sales Tax Law requirements which prompted the making of this audit. The taxpayer did not appear at the hearing before this, board. He was represented by his bookkeeper at such hearing. The board’s Rule 21 was disregarded, and as a result the record is such as is usually found in like instances. The rule should have been followed for the benefit of the taxpayer, if for no other reason.

Before stating such facts as are pertinent, we shall set forth the errors complained of in appellant’s notice of appeal:

(1) “The Tax Commissioner failed to consider the records tendered in support of purchases made during the period for which the assessment is levied, particularly invoices and records pertaining to whiskies purchased and sold as well as invoices and records pertaining to sale of draught beer and bottle beer and food purchases and sales.

(2) “The Tax Commissioner failed to consider record evidence in support of actual percentage mark up over costs as applied to the several items purchased and sold by vendor.”

Appellant is a tavern operator catering to family patronage. He sells the usual articles sold by such operators. It is evident that the taxpayer kept no books other than an unbroken down record of gross sales and an itemized list of his purchases. He did have a cash register but sales items were commingled so that any separation thereof was impossible. It is agreed that an analysis of sales had to be made and that an audit could not be made from the records available. The taxpayer did not make ST-10 reports or have on hand prepaid tax stamps as required by law. The bookkeeper’s actual knowledge as to how appellant conducted his business appears to have been derived from what he had been told and an occasional hour’s sojourn in the tavern when business was slack. Appellant complains that the examiner failed to consider his records. This refers, undoubtedly, to certain exhibits offered by the taxpayer. These documents are liquor purchase invoices, and the bookkeeper’s analysis of what he says is the actual result of appellant’s operation. These analytical documents attempt to display the bookkeeper’s version of his employer’s business. They are not Mullec’s records, and they were not furnished the examiner during the course of the audit.

In the making of the audit the examiner accepted the vendor’s record of gross sales over the entire period of the audit. This figure amounts to $92,732.52. Due to amendment of the Sales Tax Act, which effected reduction of taxable sales from 9c and under to 41c and under, the audit was divided into three periods — (1) June 10, 1945, to June 30, 1948, (2) July 1, 1948, to December 31, 1948, (3) January 1, 1949, to December 31, 1952. The examiner did not accept appellant’s liquor purchase invoices but, in order that this figure might be accurate, resorted to his purchase account at a state liquor store where all purchases had been made. From this store record of all brands of liquor purchased, the quantity and price paid therefor, were correctly ascertained (see page 312 of the transcript). The selling price of all liquor purchased and sold was obtained from the vendor. The examiner’s analysis of these figures, applying the figures obtained from the liquor chart (appellant’s Exhibit 9), per example, a fifth of liquor containing 25-3/5 oz., produced 29.24 drinks of 7/8 oz. Drinks selling for 25c sold for $7.31, and produced a mark up of 174%. The bookkeeper says that from his analysis 142% would be a fair mark up.

Appellant’s bookkeeper asserts that only 28.8 drinks of 7/8 oz. can be obtained from a fifth of liquor, and that his employer fills the glass to the brim, which is of course pure hearsay, and that in truth he is only able to obtain from 26 to 27 drinks of 7/8 oz. from a fifth of liquor. The question of the number of drinks obtainable from a fifth of liquor and the price charged creates the principal ground of complaint.

In making this audit the examiner found that appellant’s mark up on beer sales was 58.5%. Food consumed on the premises was given a mark up of 50%. The usual mark up in like enterprises is 100%. Cigaretts were given the usual mark up of 18%. Cigars and tobacco had the usual mark up of 10%.

The departmental examiner testifies (page 63 of the record):

“Q. Now, after July 1, 1948, the only taxable merchandise in this audit are sales of liquor in excess of 41 cents; is that correct?
“A. That is true.
“Q. Now, prior to June 30, 1948, liquor, food, and miscellaneous was taxed; is that correct?
“A. That is true.”

It appears unquestioned that all sales made during the first period were over 9c and taxable. Appellant’s bookkeeper testifies that it was Mullec’s business practice not only to fill the 7/8 oz. glass to the brim, but that throughout the audit period he continued to maintain a charge that produced a minimum profit; that he relied upon quantity sales rather than higher prices; and that liquor sales were nearly all singles with few doubles.

Appellant’s witness testifies (page 40 of the record):

“A. Sales are not broken down anywhere in any report, other than on the tapes.
“Q. In other words, to determine the exempt sales, and taxable sales, you’d have to make an analysis?
“A. You’d have to make an analysis, and some guesswork; yes. Our best guess on it.
“Q. There are no definite records from where that can be obtained?
“A. No, sir.
“Q. Now, on your Exhibit 1, which is a list of purchases of liquor, I notice that you purchased Fine Arts whiskey at $4.14 a fifth, and you sell it for 25 cents; wherein you purchase Canadian Club and V. O. at $4.26 and $4.30, and you sell it for 35 cents and 40 cents.
“Can you tell this Board why Fine Arts whiskey, an expensive whiskey, is sold for 25 cents?
“Q. I see Four Roses purchased for $3.44 a fifth, and that sells at 35 cents, which is almost 75 cents a bottle less than the Fine Arts, which is sold for 25 cents.
“A. You will see a lot of variances in a lot of drinks there. You will see in the 25 cent price range, that probably people are getting 35 cents for. He’s selling it for a quarter, but that’s what he wants to do; and that’s what he is doing.”

On pages 42, 43 and 44 of the record this bookkeeper is interrogated concerning what certain cash register tape furnished the examiner by the vendor discloses. He says that he is “amazed” by what this tape (Appellant’s Exhibit 6) discloses. This tape covers 43 days covering three periods. The examiner found that 47% of the sales were over 41 cents. The bookkeeper recognizes this as “damaging evidence.” “Nevertheless. I presented it as it is. I don’t examine it beforehand.” When asked what percentage the tape showed for April he answers: “Well, it doesn’t show very good.” This bookkeeper was further asked if he ever made a liquor analysis based on sales as shown by cash register tape and cost of merchandise sold. His answer to this question is “No.” His analysis appears, therefore, to be based solely upon estimate, “guesswork,” and from what the vendor told him. These tapes, Appellant’s Exhibit 6 and many others, were available to him.

From the bookkeeper’s noted testimony, and other matters found in his evidence, we are far from convinced that his analysis of his employer’s business is a true and correct version based upon fact and records available. In his brief filed he practically concedes that the assessment could properly have been returned against the taxpayer for $580.68. He asks this board in substance to disregard appellant’s tape records, to discountenance fair and repeatedly approved accounting practices that have proved their worth, to overlook appellant’s legal remissions, to accept his analysis of his employer’s practices which disregard facts and is predicated on guess and the word of the taxpayer who fails to appear and subject himself to cross-examination.

For a period of seven years appellant has practically disregarded all Sales Tax Laws. He now asks this board to take the word of his bookkeeper who testifies from what he has been told, and from which he guesses what the facts ought to be. Obert v. Evatt, 144 Oh St 492, 30 O. O. 133, is in point:

"Where the amount of vendor’s gross receipts from sales are known, the burden rests upon such vendor to show what part, if any, of such receipts resulted from sales of tax-exempt merchandise.”

The vendor has failed to sustain that burden and has failed to produce any creditable evidence in support of his claim.

The board finds that the audit made and the order issued thereon is in all respects in accordance with law and is not unreasonable. The order is affirmed.


author: By HORNBECK, J.

text:
    KALTENBACH, Plaintiff-Appellant, v. ECKERT, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5054.
    Decided September 24, 1954.

      Power, Griffith & Jones, William N. Postlewaite, of Counsel, Columbus, for plaintiff-appellant.
    Benoy & Sebastian, G. W. Pais, of Counsel, Columbus, for defendantappellee.
   OPINION

By HORNBECK, J.

This is an appeal on questions of law from a judgment of the Municipal Court entered for the defendant by a judge without the intervention of a jury.

The action was for damages to an automobile owned by plaintiff and driven by her son who was in possession of the car with the consent of the plaintiff. Plaintiff in her petition charged that the defendant was negligent in four particulars, proximately resulting in damages to her automobile in the sum of $450.00. The petition set out four specifications of negligence: (1) Defendant’s failure to slow down or divert the course of the automobile which he was driving to avoid the collision; (2) failure to have the automobile under control; (3) failure to keep a lookout ahead for traffic lawfully using the street where the collision occurred; (4) in operating his automobile at a speed greater than was reasonable and proper on an icy street, namely, 25 miles per hour. After admitting certain aver-merits of the petition as to the location where the collision occurred and that it was between defendant’s automobile and that of plaintiff; the answer further alleged, “The operator of plaintiff automobile was an incompetent driver and that said fact was known to plaintiff,” and that the collision and resulting damage, if any, to plaintiff vehicle was the result of the contributory negligence of the driver of plaintiff’s automobile in four particulars which were set out in detail. The reply was a general denial of the answer except the admissions therein made by defendant. Upon the issues thus drawn the parties went to trial.

The plaintiff introduced testimony as to the extent of the damages to her automobile only and rested. Defendant then moved for a directed verdict and the court, indicating that upon the facts developed he would sustain the motion, plaintiff requested permission to reopen her case which was granted Plaintiff, however, objected and excepted to the ruling of the court that she was required to offer any further testimony to make a prima facie case. Plaintiff then offered her testimony going to her specifications of negligence, the defendant presented his case and rested. Time was granted to the parties to file briefs and, it is said that, in the plaintiff’s reply brief which was filed November 9, 1953, she requested the trial judge to return separate findings of fact and conclusions of law. On the 12th of November, 1953, without complying with plaintiff’s request, the court entered judgment for the defendant. Thereafter, November 23, 1953, plaintiff moved to vacate the judgment so that the court could make separate findings of fact and conclusions of law. This motion was overruled on the ground it was not seasonably made.

Appellant assigns five grounds of error:

(1) In requiring plaintiff to proceed with further proof after she had rested, in chief, in the first instance;

(2) In refusing to limit defendant’s testimony to his affirmative defense;

(3) In finding for the defendant when there was no competent evidence before the court to establish the affirmative defense in defendant’s answer;

(4) In not finding for the plaintiff in at least the minimum amount of damages established by the proof; and

(5) In refusing to make separate findings of facts and conclusions of law as requested by plaintiff.

In the discussion of the assignments, we will not necessarily consider them separately because most of them are somewhat interwoven.

The petition set out four specific allegations of negligence. They were material averments and proper in form and content. They are not denied generally or specifically in the answer. The procedure in Municipal Court being that which is provided in the Common Pleas Court (§1599 R. C.), the material allegations of the petition not controverted by the answer must have been taken as true; (§2309.27 R. C.). This section is mandatory in form and says that “material allegations of a petition * * * shall be taken as true.” The defendant did not default, as in the case of Streeton v. Roehm, cited by appellee, but represented by counsel answered and made up the issues. The plaintiff, conforming to the issues thus made, shaped her proof accordingly and restricted her testimony. No reason appears which would justify the failure to give consideration to the controlling statute. However, the plaintiff was not entitled to a directed verdict because of the affirmative defense in the answer and we examine the factual developments to determine if prejudice thereafter resulted to the plaintiff.

The defense of contributory negligence like the failure of the answer to deny the specific averments of the petition, concedes negligence of the defendant. If the proof was such as to permit this defense it might have precluded a judgment in behalf of plaintiff. Inasmuch as it was not disputed that plaintiff’s driver was in possession of and driving her car by her consent, he was a bailee and the negligence of plaintiff’s driver could not be imputed to her unless the other affirmative averments of her answer were first proven. Gfell v. Jefferson Hardware Co., 10 Oh Ap 427; Curle v. Fyfe, 61 Abs 562; Conart Motor Sales, Inc., v. Shullo, et al., 70 Oh Ap 423.

What then was the proof as to these averments, namely, that the operator of plaintiff car was an incompetent driver and that his incompetency was known to the plaintiff.

Although the proof is meager, tending to establish any incompetency of plaintiff’s driver to operate her car, if it be assumed that it is found, it is clear that there is not a scintilla of proof that plaintiff knew of such incompetency prior to the collision upon which the action is based. The knowledge of the plaintiff of the incompetency of driver being an essential of the defense and a prerequisite to the consideration of the defense of contributory negligence, the defendant at the conclusion of her case had failed in her proof. Elliott v. Harding, 107 Oh St 501, 505, 508.

The fifth error assigned is predicated upon the refusal of the trial judge to make separate findings of fact and conclusions of law. The reply brief of the plaintiff in the Municipal Court, wherein it is said that the first request was made, is not before us. The formal motion which was overruled was not brought to the attention of the court until thirteen days after the entry of judgment. We would not disturb the conclusion of the trial judge that the request so made was not timely. The case cited by appellant, Levick v. Bonnell, 137 Oh St 453, wherein the request was held to be timely when made within one day after the judgment was entered, is not compelling authority to support her contention.

To summarize, we find the first, second, third and fourth assignments of error well made. The proof as to the measure of damages was regular and proper and could not be less than $211.73. The defense of contributory negligence was not available to the defendant because of the failure to prove the material averment of the answer as to the knowledge of plaintiff of any incompetency of plaintiff’s driver.

The judgment will be reversed and judgment entered for the plaintiff in the sum of $211.73 and costs and cause remanded.

WISEMAN, PJ, MILLER, J, concur.


author: By KINDER, J.

text:
    CLEVELAND TRUST COMPANY, Plaintiff, v. JOHNSON, Jr. et, Defendants.
    Probate Court, Cuyahoga County.
    No. 477138.

      Alfred M. Rankin, Thompson, Hine & Flory, of Counsel, Cleveland, for plaintiff.
    James C. Weir, J. Hall Kellogg, Hauxhurst, Inglis, Sharp & Cull, of Counsel, Cleveland, for certain minor defendants.
    Douglas F. Schofield, Gorman, Arthur & Schofield, of Counsel, Cleveland, for minor defendant, William J. Cleveland.
    Walker H. Nye, Alyn A. Benson, Arter, Hadden, Wykoff & Van Duzer, of Counsel, Cleveland, for defendants, Malcolm B. Johnson, Jr., Edward L. Johnson.
    David L. Johnson, Jr., John T. Scott, M. B. & H. H. Johnson, of Counsel, Cleveland, for certain defendants.
    Howard F. Burns, Baker, Hostetler & Patterson, of Counsel, Cleveland, for defendants, Priscilla J. Ide, Jacqueline J. Cleveland and Mary J. Transue.
   OPINION

By KINDER, J.

The Cleveland Trust Company as Successor Trustee under the will of Mary L. Johnson, brings this action for a declaratory judgment to construe certain provisions of such will and to determine questions said to exist as to the proper distribution of the trust estate thereby created.

The matter was heard by my predecessor, Judge Brewer, without final determination and is now before me upon a re-hearing or re-argument granted by him prior to his resignation.

Factually the case rests on testimony taken and exhibits offered at a hearing before Judge Brewer on April 9, 1953, a Stipulation of Facts (Court’s Exhibit 1) and certain additional testimony taken before me on December 21, 1953.

The case turns on the meaning and effect to be given to the last paragraph of Item VI of the will, which is as follows:

“Upon the death of the last survivor of my two sons above-named, this trust shall cease and determine and the entire amount of the principal thereof, together with all accumulations of income, shall be paid over by the Trustee to the then living issue of my children, including the issue of my deceased son, Malcolm B. Johnson, per capita and not per stirpes.”

David L. Johnson, the survivor of the testatrix’s two sons, died on October 7, 1951, and the estate became distributable. On that date there were living ten grandchildren and sixteen great-grandchildren of the testatrix. In this latter group is included William J. Cleveland, conceived prior to October 7, 1951, but born on November 23, 1951.

The question presented is: Under the provision quoted shall the distribution of this estate — said to approximate in value the sum of one million dollars — be confined to the grandchildren per capita or shall such distribution be made per capita to the grandchildren and great-grandchildren?

The case has been thoroughly briefed and ably argued.

Counsel for the grandchildren invite me to hold that under the clause in question, distribution should be confined to the then — October 7, 1951— living children of the children of the testatrix, that is to say, to her grandchildren per capita. The argument proceeds upon the premise that the word “issue” is not a word of art or exactitude in legal meaning, but on the contrary has been held in many cases to have a variety of meanings. It is thereupon concluded that the situation of the testatrix at the time of the execution of the will on February 22, 1932, particularly the place and circumstances under which the will was prepared, the fact that at that time there were ten living children and no great-grandchildren and the consequences which would flow from a contrary construction, demonstrate that it could not have been the intent of the testatrix that the distribution of her estate should go beyond her grandchildren, that is to say, that the phrase “to the then living issue of my children, including the issue of my deceased son, Malcolm B. Johnson per capita and not per stirpes” means only the grandchildren of the testatrix. But this is not what the clause says — at least not in words — and the rule seems clear that the words employed in the will should be given their commonly accepted meaning unless the context of the will otherwise indicates that the testatrix employed them in another or different sense. But here again, I fail to find from a study of the provisions of the will otherwise, any indication that the phrase “the then living issue of my children * * * per capita and not per stirpes” is to be given any other or different meaning than that commonly and usually assigned to the phrase or the words used in making up the phrase.

It seems clear to the Court that the problem thus defined must be solved by ascertaining the meaning to be attributed to this phrase under the law of Ohio as it stood at the time of the execution of the will on February 22, 1932. I think this is so because of the circumstances surrounding the preparation and execution of this will and which under the authorities I am at liberty to consider. Pruden v. Pruden, 14 Oh St 251, 256.

Mrs. Johnson was the widow of a distinguished lawyer, who in his lifetime (Mr. Johnson died in 1920) was a member of the law firm of M. B. and H. H. Johnson. Her son, David L. Johnson, was likewise, until his death on October 7, 1951, a member of this firm and an able and experienced lawyer in his own right. It was David L. Johnson who prepared his mother’s will (Jean Raynor Johnson, Trans, p. 14).

Certain assumptions may be made here. Among other matters, it must have been that the nature and extent of Mrs. Johnson’s estate, the number and identity of her grandchildren, their ages, their characteristics and the fact that at that time (1932) one son, Malcolm B. Johnson, predeceased her, were all the subject of discussion between the testatrix and her son. This would necessarily occur in the process of the formulation of her wishes with respect to the ultimate distribution of her estate. Here it must be assumed that the will prepared by the son was so drawn as to express the intent and carry out the wish of the mother.

Again, it must be assumed that the testatrix was familiar with the terms and the general effect, not only of her husband’s will, but also of the existence of the so-called Darmack Trust. In this connection, for example, the similarity of expression and, in part, of the content, between the will of her husband and that of the testatrix seems to me to establish, without question, that the will of the former must have been considered in the preparation of the latter. Likewise, I regard as significant that while the distribution provided for in the husband’s will and likewise in the Darmack Trust was per stirpes, the testatrix in her will provided for a per capita and not per stirpes distribution.

These documents have been considered by me only as a part of the background against which David Johnson used the phrase “then living issue of my children” as appropriate to carry out his mother’s wishes and intent. It has been urged upon me by counsel for the great-grandchildren that the nature and extent of the distribution effected under the M. B. Johnson will and the Darmack Trust should be considered as a matter of background' and possessing evidentiary value in any determination of the meaning of the phrase under dispute. I do not agree and have not accorded any weight to these considerations in coming to a conclusion as to the matter of intent, nor do I regard as of any weight the argument advanced from an inheritance tax standpoint.

I find that under the rule in Ohio when this will was drawn, the word “issue” had a broad meaning and in the absence of words of qualification it included children, great-grandchildren and all degrees of descendants. Watson v. Watson, 34 Oh Ap 311 (1929); Coehrel v. Robinson, 113 Oh St 526, 533 (1925). And I find nothing in any relevant decision since 1932 to qualify these cases. Welles v. Pape, 63 Oh Ap 432. I do not consider The Cleveland Trust Company v. Hart, 82 Oh Ap 450, to be to the contrary.

The great weight of authority outside of Ohio is to the same effect. Mazziotte v. Trust Co., 180 Md. Rep. 48, 23 A. (2nd) 4. Northern Trust Co., v. Wheeler, 345 Ill., 182, 177 N. E. 884; Schmidt v. Jewett, 195 N. Y., 486, 88 N. E. 1110; Ridley v. McPherson, 100 Tenn., 402, 43 S. W. 772.

This being the rule I am compelled to assume that David Johnson, conscious of his mother’s wish and intent, made use of this phrase in its declared meaning, and hence I reach the conclusion that under the last paragraph of Item IV of the will, distribution of this estate should be made not only to the grandchildren, but also to the great-grandchildren living on October 7, 1951, and in which latter group I hold that William J. Cleveland, conceived but not born until after the above date, to be included.

In reaching the conclusion above expressed, I have considered the arguments advanced on behalf of the grandchildren that this construction of the will would, in view of the per capita distribution provided for in the will, have a result which the testatrix under all the circumstances could not have intended. It. is further urged in this general connection that such construction would result in the great-grandchildren sharing equally in distribution with their respective parents, a result said not to be favored in the law. However, this sort of result is inherent in a distribution per capita. Mooney v. Purpus, 70 Oh St 57; Huston v. Crook, 38 Oh St 338.

It seems to me that the following observation of the Court in Hobbs v. Tuthill, 1, I. R. (Ch. Div.) 115, (1895) applies here:

“If it is difficult to suppose that a settlor would wish to provide equally for grandchildren and for his own children, per capita, it is equally difficult to suppose that he would desire to exclude grandchildren altogether, their parents being dead, whether he had or had not children to take under the trust; and it is to be remarked that this singular instrument contains no power of appointment, selection, or distribution whatever. (Page 121.)

And again:

“It is true that in the present and in other cases this view, which gives to issue its normal meaning in settlements as well as in other assurances, may cause unexpected and prima facie improbable developments to follow: grandchildren taking equally with children, even with their own parents, per capita. A settlement, however, cannot be construed by the events which subsequently occur. Its meaning must be gathered from its language, as it would be interpreted immediately after its execution.
“But the alternative construction would lead to results equally, or more, unexpected and incongruous. To restrict issue to children would lead to the result that if the married couple survived their children, but left grandchildren, however numerous, there would be no provision whatever for them — a result which could not possibly have been intended. * * *” (Pg. 129.)

Responding therefore, to the two questions propounded by The Cleveland Trust Company, Successor Trustee, in paragraph 15, page 6, of the petition, the Court holds that:

(1) The words “then living issue of my children” appearing in the last paragraph of Item IV of the will of Mary L. Johnson, evidence the intent of the testatrix to include as distributees of the trust property her grandchildren and great-grandchildren living at the death of David L. Johnson on October 7, 1951, and that such distribution shall be made per capita among said grandchildren and great-grandchildren.

(2) That William J. Cleveland, a great-grandchild of the testatrix, conceived but unborn on October 7, 1951, shall be included among the distributees.

As has been heretofore indicated, the case rests on (a) testimony taken and exhibits offered at the hearing before Judge Brewer on April 9, 1953, (b) the Stipulation of Facts (Court’s Exhibit 1) and (c) certain testimony taken and exhibits offered before me on December 21, 1953.

The Stipulation of Facts contained reservations by the parties of objections to certain of the stipulated facts on grounds of lack of materiality and relevancy. While the opinion herein indicates the weight and effect which the Court gave or failed to give to certain of the facts stipulated, the parties are entitled to a specific ruling on the various objections reserved by counsel and I now turn my attention to these matters, to-wit:

The Court gave effect to, and therefore admitted, the facts stipulated m paragraphs one, two, three and four. As to Paragraph Five, the Court admitted the first and last sentence of the first paragraph thereof, but does not find the facts set forth in the second sentence thereof as relevant or material.

The Court does not find as relevant or material the facts set forth in the second and third paragraphs, Section 5.

The Court considered as relevant the existence of the Darmack Trust, so-called, and that the testatrix was familiar with the existence thereof. With these exceptions, the Court finds that the remainder of the facts set forth in Paragraph Six are without relevancy and materiality. The Court likewise regards the allegations in Paragraph Seven as to be without relevancy and materiality.

The Court considered admissible the facts appearing in Paragraph Eight.

The foregoing specific rulings plus those indicated in the opinion of the Court, take care, I think, of any questions raised at the hearing before Judge Brewer on April 9, 1953, and questions raised before me at the hearing on December 21, 1953, except my ruling sustaining an objection to the admissibility of a legal memorandum under the legend “memorandum on distribution of trust principal, December 20, 1951,” and bearing the initials “J. T. S., Jr.” (Trans, of testimony of David L. Johnson per pg. 8.) To this ruling I adhere. The only other ruling relates to the proffered testimony of Jean Raynor Johnson (Trans, pp. 9, 10), as follows:

“Q. Mrs. Johnson, you have testified that you did not hear Mary Johnson make certain statements relative to the disposition of her estate. Will you tell the court what the statements were, or what the statement was, that you heard?
“A. Well, from time to time I heard her say that she wanted her boys— she always called them her boys — to enjoy the income, as long as they lived, from her estate, and at the death of the last son she wanted her money equally divided among her grandchildren. She never mentioned anything pertaining to great-grandchildren at all.
“THE COURT: I think the latter part may go out. She wanted her sons to have the income.
“THE WITNESS: Enjoy the income.
“THE COURT: Enjoy the income, and upon their death it should go to the grandchildren.
“THE WITNESS: The principal — on her death, the principal was to be divided equally among her grandchildren.”

The Court accepted this testimony subject to a subsequent ruling as to its admissibility. The record may show that objection to these questions and the admission of these answers is sustained and therefore the Court gave no effect to such evidence in determining the intent of the testatrix as expressed in Item IV of her will.

Conclusion:

A decree may be entered in accordance with the, foregoing opinion and rulings and due exceptions are allowed to the parties feeling themselves aggrieved thereby.


author: By SKEEL, J:

text:
    VETERANS OF WORLD WAR I, Plaintiff-Appellant, v. LEVY et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23087.
    Decided March 31, 1954.

      Ralph L. Ammerman, Orgill, Maschke, Wickham & Loux, Cleveland, for plaintiff-appellant.
    Fred H. Mandel, H. M. Rodman, Cleveland, for defendants-appellees.
   OPINION

By SKEEL, J:

This appeal comes to this court on questions of law from a judgment entered for the defendants, Levy,- MacIntyre and Rodman, by the trial court. The action is one seeking an injunction to prevent the defendants, Emanuel Levy, Archibold MacIntyre and Harry Rodman from taking possession of and removing the office, personal effects and equipment, furniture and funds of the Veterans of World War I of the United States of America from its office located at 311 Marshall Building, Cleveland, Ohio. It is alleged that the petition is brought by its National Commander, duly authorized in the premises and that the plaintiff is an Ohio corporation with its principal place of business at 311 Marshall- Building, Cleveland, Ohio.

Upon the filing of the action the prayer seeking a temporary restraining order was granted, and a surety bond in the sum of $1500.00 was filed as ordered by the court.

The answer of the defendants, Levy, MacIntyre and Rodman deny that Albert L. Weber is the National Commander of the plaintiff, or authorized to represent the plaintiff. They further deny that they are without authority to act officially for plaintiff, alleging that they were elected National Officers by the delegates of Veterans of World War I of the United States of America, in convention, and that Albert L. Weber’s (made a new party defendant with John Harris) last official act as National Commander was to install the defendant, Emanuel Levy together with the other elected officers on November 14, 1953, as the National officers of the plaintiff at its National Encampment or Convention held at Baltimore, Maryland, their election being pursuant to the Constitution and By-laws of the plaintiff, as adopted at the Convention.

The defendants, Levy, MacIntyre and Rodman filed their cross-petition and allege that the plaintiff is a corporation not for profit, organized under the laws of Ohio to serve the interests of the Veterans of World War I, and that the new defendants, Albert L. Weber and John Harris were officials of such corporation for two years or more prior to November 14, 1953, acting as National Commander and Quarter-master respectively, and served with other officials who, together, were known as the National Board of Trustees. That as the National Board of Trustees, and by their order, they called a Convention of the members, or the accredited delegates, of the various Barracks, to be held in Baltimore, Maryland, November 10th to 14th, 1953, to adopt a suitable Constitution and By-laws and for the purpose of electing pursuant thereto a Board of Trustees and Officers for the ensuing year and the transaction of other business beneficial to the members.

It is alleged that a Constitution and By-laws were adopted and elections held, in which proceedings all defendants herein participated as candidates and members, including Weber and Harris, resulting in the election of defendant, Levy, as National Commander and defendant, MacIntyre, as vice-Commander, and Alva O. Boystal as Quarter-master. That when these new officers came to Cleveland to take charge of the National office in the Marshall Building, the defendants Weber and Harris refused to relinquish and transfer the funds, property and headquarters to them. It is alleged that the refusal of defendants, Weber and Harris, to relinquish the property of the corporation to the new Board of Trustees and Officers, is causing irreparable injury to the corporation. Wherefore, these defendants, Levy, MacIntyre and Rodman pray that the temporary restraining order be dismissed and that defendants, Harris and Weber be restrained from disposing of the property and assets of the corporation in their hands and that they be ordered to deliver such property and the headquarters office to the newly elected officers.

The defendants, Weber and Harris, did not file an answer to the cross-petition of the defendants, Levy, MacIntyre and Rodman, nor are the allegations of such cross-petition put in issue by any other pleading.

On page 132 of the Bill of Exceptions it is stated by counsel for the plaintiff that the defendants’ answer and cross-petition had been dismissed. The record does not support this statement. The only pleading withdrawn from the record was an answer to defendants’ cross-petition attempted to be filed on behalf of plaintiff by the defendant Levy, as National Commander of the plaintiff, in which he tried to admit on behalf of plaintiff the truth of the allegations of the answer and cross-petition, filed by him as a defendant. A motion was filed to strike this pleading from the file. Both this so-called answer and the motion were withdrawn. The allegations of the cross-petition of defendant, Levy, MacIntyre and Rodman stand unchallenged.

Under the provisions of §2309.27 R. C., the allegations of the cross-petition are therefore admitted.

An examination of the bill of exceptions shows that plaintiff was organized Oct. 29, 1949, as a voluntary society, and incorporated Dec 5, 1949, as a' corporation not for profit, under the laws of Ohio. There was introduced and received into evidence Defendants’ Exhibit “N” which, on its face, purports to be the Constitution and By-laws of an organization styled “Veterans of World War I of the United States” adopted at the time the corporation was first organized. Article V, dealing with Amendments, provides:

“This Constitution may be amended by a three-fourths vote of delegates present at a National Encampment. All amendments must be in the hands of the National office at least four months prior to the National Encampment. A copy of these amendments should be mailed to each Barracks at least three months before National Encampment, so that delegates can be properly instructed.”

Article IV of the By-laws, as shown by this Exhibit, provides in Sections 1 and 2:

“Sec. 1. Formation: When five or more Barracks, in good standing, at least one in five separate States or Territories, make known to the Board of Trustees of the Veterans of World War I, as incorporated not for profit, under the laws of the State of Ohio, that said Barracks wish to form a National Encampment, then said Board of Trustees shall notify said applying Barracks that at a certain place and time said applying Barracks shall send Delegates and Alternates to said place and at said time for the purpose of organizing a National Encampment.
“The application of each of said Barracks shall be signed by the Commanders of those Barracks and shall state that said application is made as a result of a majority vote of the members, in good standing, of said Barracks.
“At the place and time of the meeting of the delegates, above stated, the National Encampment shall be formed under the terms and conditions as set forth in the Ohio Charter; a Code of Laws, to be known as the National Constitution and By-laws, shall be adopted; National officers shall be elected and installed.
“When the number of Barracks of the National Encampment drops below five, consisting of one Barracks in each of five different States or Territories, then the National Corps shall be disbanded.”
“Sec. 2. Jurisdiction: After a National Encampment has been formed and instituted, the supreme power of the Veterans of World War I, U. S. A., shall be embodied in the National Encampment (National Corps).”

There was also introduced into evidence a mimeographed paper headed “Veterans of World War I of the United States of America.” Its undoubted purpose was to stimulate interest in the newly formed Veterans’ organization. It states in part as follows:

“Cleveland, Ohio. Dec 9, 1949
“Dear Buddy:
“Your inquiry has been received regarding information as to the newly organized Veterans of World War I of the United States of America * * *.
“On October 29, 1949, in response to a general invitation, a meeting was held with an attendance of about twenty-five, and a new corporation was formally organized.
“It is now incorporated under the laws of the State of Ohio, and is now operating, and will continue to function under such corporate charter, until a National Encampment can be called for and a National Corps formed.
“Until the formation of a National Corps can be completed, Barracks No. 1 of Cleveland, Ohio, will operate as the National Corps and charters for other newly formed Barracks will be issued therefrom. When a National Encampment has been duly and legally formed, then Barracks No. 1 will take its place in the organization as just another subordinate unit, on equal terms with other Barracks * *

The organization prospered, and between December, 1949, until June of 1953, more than 8000 veterans became members and over 75 Barracks were organized representing many States. During all this time the affairs of the new corporation, in its efforts to become national in scope, was presided over by nine trustees. How or when they were elected and by whom, is not disclosed in the record. It is enough to say that there had not been a national meeting of members until Nov. 10th to 14th, 1953, at Baltimore, Maryland.

The record discloses that those acting as national officers and trustees, called the national convention or encampment, and in doing so sent out a form letter signed by Albert L. Weber as National Commander, and bearing the names of all other national officers. The first part of this letter was as follows:

“NATIONAL HEADQUARTERS, VETERANS WORLD WAR I.

“311 Marshall Building, Cleveland 13, Ohio.

“At the National Convention of Veterans of World War I, which will be held in Baltimore, Maryland, November 10th to 15th of this year, a group of delegates and alternatives will be called on to select candidates for national offices. This convention will give us an opportunity to study the men and women who are destined to steer the course of our organization for the coming year.

“Veterans with proven ability, aggressiveness and honestly should be elected as national officers. We must make every effort at this, our first convention, to again rebuild the spirit of 1918-19 when we, the original organizers of the American Legion, Veterans of Foreign-Wars, and other major veterans groups, patterned the future of the veterans and their families which proved successful for over thirty years.

“This convention should serve a three-fold purpose, first, a uniform pension legislation program should be adopted along with other benefits which wives and other dependents are entitled to. Secondly, to inaugurate an iron-clad set of by-laws, to govern all barracks and auxiliaries. Third, to promote the formation of state headquarters for the purpose of holding' state conventions and obtaining congressional recognition.

"1953 has been a banner year for the issuance of new charters; Barracks and Auxiliaries have more than doubled those completed in 1952.

“A very colorful representation is planned by the Barracks, the Auxiliaries and the Widows of Veterans of World War I. According to reports from Convention Headquarters, practically every state in the Union will be represented. Many of the units plan to include their individual colors and uniforms in the Armistice Day parade and we can safely state that this parade will be from two to three miles long.

“The national officers will be present and will endeavor to make our veterans and their families as comfortable as follows (possible). The National Headquarters will be located'in the Emerson Hotel in Baltimore. * * (Emphasis added.)

Prior to the Convention, a new Constitution was prepared and sent to the National Headquarters in Cleveland, Ohio, by Barracks No. 53, Portland, Oregon, and there was also circulated before and at the Convention a proposed Constitution over the printed name of Albert L. Weber, National Commander, indicating that it had been issued from the National Headquarters, 311 Marshall Building, Cleveland, Ohio Under the words “Constitution” and “Preamble” of this proposed Constitution, is the following;

“To be adopted by the Convention.”

The Convention was called to order at Baltimore, Maryland, November 10, 1953, by National Commander Albert L. Weber. There were more than 200 delegates present, representing Barracks from many States. It is claimed by the defendants, Weber and Harris (claiming to act for the plaintiff), that the Convention was without power to adopt a new Constitution or elect National Officers because the Constitution, amended by the trustees on August 7, 1953, did not grant the Convention the power to do so. The record shows, however, that a new Constitution was adopted and National Officers elected by the vote of the delegates. There is no dispute about the fact that Albert L. Weber took part in the proceedings without voicing objection and was a candidate for the office of National Commander. After his defeat, and the election of Emanuel Levy as National Commander, and all other national officers elected as provided by the new Constitution, the defendant, Albert L. Weber, as the past National Commander, acted as the installing officer inducting the newly elected officers into office. When the new officers came to Cleveland to take over the management of the organization, the defendant, Weber, refused to vacate the office of National Commander and instituted this action to enjoin the newly elected National officers from taking possession of the office and property of “Veterans of World War I of the United States of America.”

The claim of the defendants, Weber and Harris (who claim to act as the national officers of the plaintiff) is that the Convention was not empowered, under its fundamental law, to amend the Constitution. This claim is founded on the contention that, by the provisions of the Constitution, as amended, on July 7, 1953, such power is vested in the National Trustees. The provisions of such Constitution do not support this interpretation. The minutes of the National Board of Trustees indicate that such amended Constitution was adopted August 7, 1953, by the trustees present at that meeting. This Constitution, which is almost identical with the one' distributed at the Convention over the name of Albert L. Weber, provides under Art. Ill, Secs. 1 and 2, under the heading “Administration” the following:

“Sec. 1. The supreme executive power of the Veterans of World War I of the United States of America, shall be vested in the National Board of Trustees.”
“Sec. 2. A National convention shall be held once each year, the time and place of such Convention to be determined at the previous Convention.”

And under “National By-Laws” Art. I, Sec. 1, provides:

“Sec. 1. The governing bodies of this organization shall be the National Convention, the National Executive Committee and the Barracks.”

And under Art. II, Secs. 4 and 6, provide:

“Sec. 4. Each member shall have equal rights and privileges with every other member and such rights shall include the right to vote and to hold office in any Barracks or on the National Board of Trustees.”
“Sec. 6. Candidates for a National office must be approved by a nominating committee appointed by a national Commander.”

And Art. Ill, Sec. 1 to 8 provide:

“Sec. 1. The National Board of Trustees shall consist of nine (9) members, elected by the membership of the organization, three of which shall be elected each year in the month of December by written ballott.
“Sec. 2. The terms of the Trustees shall be for three years.
“Sec. 3. The National Board of Trustees shall meet at least once each month.
“Sec. 4. The National Board of Trustees shall elect from its own members the following officers who shall hold office until January of each year (one year term) and thereafter shall elect its officers at the first meeting in January, to-wit, A CHAIRMAN, to be known as the National Commander; A SECRETARY, to be known as the National Adjutant; A TREASURER, to be known as the National Quartermaster; A LEGAL COUNCIL, to be known as the National Judge Advocate. These officers to hold office until their successors are elected and installed.
“Sec. 5. The meeting place of the National Board of Trustees shall be at Cleveland, Ohio;
“Sec. 6. Not less than five (5) members of the National Board of Trustees shall constitute a quorum for the transaction of business.
“Sec. 7. Vacancies on the National Board of Trustees shall be filled by the other members of the Board and the newly elected member shall serve in the place of and for the unexpired term of the vacating member.
“Sec. 8. In no event shall more than one National Office be held by any one National Officer (excluding National Trustees).”

Nowhere in this Constitution is there any provision for amendments nor does the evidence disclose from what authority the Board of Trustees was empowered to adopt a Constitution or pass amendments thereto for the corporation, without a vote of the membership.

Sec. 1702.08 R. C. provides:

“Adopting Code of Regulations: When the articles of a corporation not for profit have been filed, the subscribers thereto, or a majority of them, shall give each member at least ten days’ notice by mail, unless such notice is waived by all the members, to meet at such time and place as the notice designates for the purpose of adopting a code of regulations, which may be called a constitution, and transacting any other business. A majority of the subscribers to the articles, whether constituting a majority of all the members or otherwise, constitutes a quorum at such meeting.”

The members of a corporation not for profit, and not .the trustees, are vested with the power to adopt the fundamental rules by which the corporation shall be governed within the limits of its purpose.

We have given careful attention to the documentary evidence in the record, as well as the testimony of the witnesses, as it bears on the question of the intention of the National Officers and Trustees to submit to the Convention the adoption of a Constitution and the election of National Officers as was the unquestioned right of the membership. This evidence clearly sustains the judgment of the trial court in holding not only that this was one of the purposes of the Convention, but also that it was within the rights of the membership in Convention assembled, to amend its Constitution and elect National Officers as authorized by the new Constitution.

If, therefore, the issue here to be decided is the right to the possession of property and such issue invokes the jurisdiction of a court of equity (that is, if there is no ’adequate remedy at law), the judgment of the trial court must be affirmed because the evidence clearly supports the claim that defendant Levy and those associated with him are now the legally elected National Officers of the corporation and as such are entitled to possession of the property of such corporation. But the possession of property is not the issue here presented. The Veterans of World War I of the United States of America are the undisputed owners of the property, office and the office equipment. There is no dispute as to who owns the property described in plaintiff’s petition. The only question is who are the duly elected officers of the plaintiff, empowered to manage the plaintiff’s affairs and take charge of its property. This is the sole contention between the parties, each disputing the claims of the other, as having the right to act for the corporation as its elected officers. As stated by plaintiff on page 132 of the bill of exceptions: “Now, the only thing we are trying here is the question of the election of officers at Baltimore:” This being so, a petition seeking an injunction by one group to prevent another group from “usurping” the elective offices of a corporation, does not state a cause of action to determine the right to possession of such offices, and the common pleas court is without jurisdiction to try the case. The procedure for testing this question is in quo warranto and such an action can only be brought, either in the Supreme Court or the Court of Appeals. Secs. 2733.01 and 2733.03 R. C. provide:

“Sec. 2733.01 R. C. Proceedings against a person. A civil action in quo warranto may be brought in the name of the state:
“(A) Against a person who usurps, introdues into or unlawfully holds or exercises a public office, civil or military, or a franchise, within the state, or an office in a corporation created by the authority of this state;
“(B) Against a public officer, civil or military, who does or suffers an act which, by law, works a forfeiture of his office;
“(C) Against an association of persons who act as a corporation within this state without being legally incorporated.”
“Sec. 2733.03 R. C. Jurisdiction and Venue in quo warranto actions:
“An action in quo warranto can be brought only in the supreme court, or in the court of appeals of the county in which the defendant, or one of the defendants, resides or is found, or, when the defendant is a corporation in the county in which it is situated or has a place of business. When the attorney general flies the petition, such action may be brought in the court of appeals of Franklin County.”

In the case of Hullman et al v. Honcomp et al, 5 Oh St 238, the first paragraph of the syllabus provides:

“The legality of the election of persons as trustees of a cemetery association and their right, by virtue of such election, to exercise the powers and conduct the affairs of the association, are questions which cannot be judicially tested by bill in chancery, but fall appropriately within the jurisdiction of proceedings at law by quo warranto.”

In the case of Dayton Building & Savings Assoc, et al v. Kroeger, et al, 24 Abs 145 (Court of Appeals 2nd District) the Court held:

“Directors of a building and loan association accused of being interlopers without power are officers ‘in a corporation created by the authority’ of the state within the provisions of §12303 GC, and their authority to act can be questioned only by quo warranto, not by injunction.”

In 33 O. Jur., page 967, the third paragraph of Section 16, under the subject “Quo Warranto” it is said:

“The general rule that quo warranto is the only remedy to challenge the title of a de facto officer to office, applies to de facto officers of private corporations. Thus, the title, or corporators, of trustees de facto of an incorporated religious society cannot be impeached in a collateral proceeding by showing that they are not trustees de jure.”

See also — 74 Corpus Juris Secundum, “Quo Warranto” page 191, paragraph 9.

It is a general rule that equity will not interfere in the internal management and affairs of private corporations so that the special remedy at law in quo warranto as provided by statute, is the exclusive remedy to challenge the right of the defendants, Levy, MacIntyre and Rodman to the offices to which they were admittedly elected by the convention of the Veterans of World War I, United States of America held in Baltimore, Maryland, November 10th to 14th, 1953

For this reason the judgment entered by the trial court is vacated and the cause is remanded with instructions to dismiss plaintiff’s petition and the cross-petition of defendants Levy, MacIntyre & Rodman at the costs of defendants Weber and Harris. Exceptions. Order see journal.

HURD, PJ, KOVACHY, J, concur.


author: By NICHOLS, J.

text:
    JOHNSON, Plaintiff-Appellant, v. BEATTY, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5097.
    Decided October 27, 1954.
    Russell H. Jackson, Jr., William L. Ranaghan. Columbus, for plaintiff-appellant.
    Edmund B. Paxton, Columbus, for defendant-appellee.
    (MONTGOMERY, PJ of the 5th District; GRIFFITH & NICHOLS, JJ, of the 7th District, sitting by designation.)
   OPINION

By NICHOLS, J.

On the 30th day of January, 1954, the plaintiff, Melba Johnson, filed her petition in the Common Pleas Court of Franklin County, Ohio, alleging that plaintiff is the wife of and dependent upon Samuel Johnson, Jr., for support and in substance alleging that defendant, Otto Beatty, is and at all times herein mentioned was operating and conducting a gambling scheme or game, to wit, a policy or numbers lottery, and that said policy or numbers game is, and at all times herein mentioned was, operated by defendant in and about Franklin County, Ohio.

Plaintiff further alleges that defendant received to plaintiff’s use and is indebted to the aforesaid Samuel Johnson, Jr., for money lost in said gambling scheme from the 1st day of March, 1949, to the 13th day of March, 1952, the sum of $14,310.00; that no action to recover same has been commenced by the aforesaid Samuel Johnson, Jr. The prayer of plaintiff’s petition is for judgment against defendant, Otto Beatty, for the sum of $14,310.00 plus the sum of $500.00 exemplary damages and her costs.

To such petition the defendant filed his demurrer on the ground that the action was barred by the statute of limitations, in that it was an action to collect for a penalty or forfeitures and had to be brought within one year from the date the cause of action accrued. This demurrer of defendant was sustained by the trial court and plaintiff’s action was dismissed. From such judgment of dismissal appeal is prosecuted to this Court of Appeals upon questions of law.

It is noted that on the face of the petition it is alleged that plaintiff’s husband ceased his alleged gambling operations with the defendant on the 13th day of March, 1952. This action was not brought until January 30, 1954.

Defendant’s demurrer admits that Samuel Johnson, Jr., did not commence any action against the defendant for six months next after March 13, 1952. During such six months period no one other than Samuel Johnson, Jr., was privileged to bring the action under the applicable provisions of §5966 GC, now §3763.02 R. C. The wife’s cause of action accrued Sept. 13, 1952. The question which arises in this case is whether plaintiff’s action is one for a penalty, such an action concededly being limited to one year from the date the cause of action arose. The plaintiff claims that her action is not one for penalty and that §5966 GC, is a remedial statute rather than one for a forfeiture or penalty, and therefore is not barred until six years after the cause of action accrued as provided in §2305.07 R. C., former §11222 GC. It therefore appears that the sole question for determination is whether plaintiff’s action is one for a penalty, as determined by the trial court. We believe this question has been settled by the Supreme Court of Ohio in the case of Cooper v. Rowley, 29 Oh St 547, wherein that Court interpreted the gaming statutes in effect at that time as authorizing or creating an action for the recovery of a penalty whereby the action must be brought within one year from the date the cause of action accrued. The present gaming statutes are in all material respects as they were in 1831 at the time of the decision in Cooper v. Rowley, supra. The decision in the cited case disposes of the claim of plaintiff that her action is one upon an implied contract rather than one for the enforcement of a penalty or forfeitures. Examining the allegations of plaintiff’s petition and comparing the same with the date her action was instituted in the Common Pleas Court it is quite apparent that an otherwise valid action for recovery was commenced after the statute of limitations had tolled her right to bring such action, and that the Common Pleas Court was not in error in sustaining the demurrer to plaintiff’s action and in dismissing the same.

However much this Court may regret the inability of plaintiff to recover from the operator of a gambling game known as “Numbers” it must be understood that her failure is due entirely to the fact that her action was not timely brought.

Judgment of the Common Pleas Court affirmed.-

MONTGOMERY, PJ, GRIFFITH, J, concur.