author: By DOYLE, PJ.

text:
    STATE, ex rel. HANRAHAN et, Plaintiffs-Appellees, v. ZUPNIK et, Defendants-Appellants. STATE, ex rel. HORN et, Plaintiffs-Appellees, v. BATH et, Defendants-Appellants. STATE, ex rel. BARRETT et, Plaintiffs-Appellees, v. ZUPNIK et, Defendants-Appellants. STATE, ex rel. ANKLUM et, Plaintiffs-Appellees, v. BATH et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    Nos. 22630, 22631, 22632, 22633.
    Decided February 16, 1953.
    Green, Woods, Lausche & Wilmot, Cleveland, for plaintiffsappellees.
    Joseph H. Crowley, Director of Law, James M. McSweeney, Asst. Director of Law, Cleveland, for defendants-appellants.
    (HUNSICKER, PJ, DOYLE, J, STEVENS, J, of the Ninth District sitting by designation in the Eighth District.)
   OPINION

By DOYLE, PJ.

The appeals in the four suits noted in the caption above are from judgments rendered in the Common Pleas Court of Cuyahoga County, where four separate actions in mandamus were consolidated for trial. The judgment in each case ordered a writ to issue. The many relators in each case instituted their respective suits not only for their own benefit but for others similarly situated.

In the first (both in the Common Pleas Court and here) of the four actions, the relators were retired firemen, each of whom, by action of the Board of Trustees of the Firemen’s Relief and Pension Fund of the City of Cleveland, were, subsequent to the 26th day of May, 1937, duly approved and qualified to receive monthly pensions, and their names were placed upon the rolls for payment from the statutory fund.

In the second action in the Common Pleas Court (No. 22,632 here) the relators were retired firemen who held the same status as those noted in the first action, except that they became pensioners prior to the 26th day of May, 1937.

In the third action in the Common Pleas Court (No. 22,631 here) the relators were-retired policemen, who, prior to the 26th day of May, 1937, by action of the Board of Trustees of the Policemen’s Relief and Pension Fund, were qualified and approved to receive monthly pensions, and their names were placed upon the rolls for payment out of the statutory fund.

In the fourth action (both in the common pleas court and here) the relators were retired policemen who held the same status as those noted in the third action, except they became pensioners subsequent to May 26th, 1937.

The cases will be referred to herein according to the sequence in which they appeared in the Common Pleas Court.

The defendants in the first two cases were the Board of Trustees of the Firemen’s Relief and Pension Fund of Cleveland, and the city treasurer (the custodian of the funds); in the second two cases the defendants were the Board of Trustees of the Policemen’s Relief and Pension Fund of Cleveland, and the city treasurer (likewise the custodian of this fund).

In short, it was claimed that the several Boards of Trustees had “failed, neglected and refused” to make payment to the relators of monies due them as monthly pensions falling due at a time when there was insufficient money in the funds to make payment, although at the time of filing the suits there was on hand and available or in the process of collection, suf - ficient funds to pay all previous awards. The petitions sought an order for the payment of back monthly pensions which had become due, the payments of which had been refused.

The following is a chronological table of the pension payments made, and an approximate percentage of pensions falling due and not paid in the six months noted.

Firemen’s Relief and Pension Funds:

November, 1945 — No payment; payroll $50,096.31.

December, 1945 — No payment; payroll approximately $50,000.

December, 1946 — No payment; payroll $50,001.43.

Police Relief and Pension Fund:

December, 1940 — $9,019.97 paid; approximately 80% of payroll unpaid.

December, 1941 — $22,708.08 paid; approximately 50% of payroll unpaid.

December, 1942 — $17,707.22 paid; approximately 65% oí payroll unpaid.

December, 1944 — $8,800.00 paid; approximately 83% of payroll unpaid.

November, 1945 — No payment; payroll $56,805.46.

December, 1945 — No payment; payroll approximately $57,000.

December, 1946 — No payment; payroll $59,815.81.

It was stipulated in each of the policemen’s cases that:

“the * * * Board of Trustees of said Police Relief Fund did not make payment to relators, and each of them, and to other beneficiaries of said fund, of the regular monthly pension payment, or other lawful benefit payment, as established by the rules and regulations of said Board of Trustees governing such payments, for the months of December of the respective years 1940, 1941, 1942, 1944, 1945 and 1946, and for the month of November, 1945, and made payment during such months on only the amounts, in each month, as is set forth in relator’s petition * * * and the balance thereof remain unpaid.”

It was further stipulated that at regular meetings of said board in December, 1944, December, 1945, and December, 1946, the entire payroll was ordered paid “if and when money is available,” and that “in certain other months when funds were not available, payrolls, were approved and payments ordered if and when funds were.available and payment of such payrolls thereafter made from after-acquired funds.”

The following stipulation appears in the record in reference to the firemen:

“8. That the said Board of Trustees of said Firemen’s Relief and Pension Fund did not make payment to relators, and each of them, and to other beneficiaries of said fund, of the regular monthly pension payment, or other lawful benefit payment, as established by the rules and regulations of said Board of Trustees governing such payments, for the months of November, 1945, December, 1945 and December 1946, and payrolls for such months remain unpaid.”

It was further stipulated that, at meetings of said firemen’s board in dealing with the payrolls of November, 1945 and December, 1946, such payrolls were each ordered paid “if and when money is available.”

It appears that in the several instances of fund deficiencies, the statutory 3/10th of a mill tax levy, plus other revenue, was not sufficient to maintain a proper balance in the funds, or else the maximum levy was not made by the authorities. It likewise appears that the city of Cleveland did not, at these times, contribute from its general fund to make up the deficit, although, at other times, it did contribute generously. See old and amended §§4605 and 4621 GC,

In the year 1947, the legislature of the State of Ohio seemingly took cognizance of the inadequate amount of money to pay all pensions in the police and Are pension funds throughout the state, and it undertook to supply to the several funds throughout the state additional revenue. The legislation, insofar as it refers to municipal corporations, is in the following terms (§4631-4 GC):

“There is hereby created in the state treasury a fund which shall be designated as the ‘local police and firemen’s relief and pension fund.’ The treasurer of state shall be the custodian of the fund and the fund shall be distributed in the manner provided for in this section. The fiscal officer of each municipal corporation in which a police or firemen’s relief and pension fund has been established pursuant to the provisions of §§4600 or 4616 GC, shall, during the month of March, 1948, and each March thereafter, certify to the auditor of state the name of such fund or funds, and the total value of the real and personal property as listed, for taxation, in the municipal corporation. * * *. The auditor of state shall, upon receipt of each certification provided for herein, issue a warrant on the treasurer of state, payable out of the ‘local police and firemen’s relief and pension fund,’ in favor of each police and firemen’s relief and pension fund in an amount equal to one-tenth of a mill on each dollar value of real and personal property as listed in the certification, provided, however, no distribution shall be made hereunder to any police or firemen’s relief and pension fund in any calendar year if the assets of said fund as of December 31st of the next preceding-calendar year are in excess of an amount equal to the assets of said fund as of December 31, 1947, plus an amount equal to one thousand dollars multiplied by the number of members of said fund and, provided further, no distribution shall be made hereunder in the year 1948, or any year thereafter to a police or firemen’s relief and pension fund if the legislative body of the municipal corporation * * * in which the fund has been created fails to comply with the provisions of §§4605, 4615-6 or 4621 GC.”

As a result of this legislation, both the police and firemen’s funds grew in sufficient amount to not only pay all back pensions, but to leave sufficient balances to presently pay the monthly pensions as they fall due. The 1949 and 1950 year-end balances were as follows:

Police Fund, 1949 $264,590.40

Police Fund, 1950 $399,979.56

Firemen’s Fund, 1949 $329,144.67

Firemen’s Fund, 1950 $382,515.39

The trial court, as heretofore stated, issued writs of mandamus in each case. In the appeal to this court on questions of law, the appellants (defendants below) state in part their position in the following language:

“It is apparent that the relators have no right to the writ of mandamus erroneously granted by the trial court. The required elements are lacking; no right is shown to raid the pension fund created under the new laws of 1947 to satisfy pension claims created by the acts of trustees in unquestioned excess of authority; the pension laws of 1947 being silent on the matter can not be read as having a retrospective aspect so as to provide for the claimed past delinquencies; there is an adequate remedy in the ordinary course of law.

“There is no right and no duty and no occasion to invoke the writ of mandamus.

“The judgment of the trial court should be reversed and final judgment should be entered for the respondents dismissing the petitions herein.”

This court, after considering each of the eleven claimed errors of the appellants, will now proceed to state without extensive elaboration the reasons for an affirmance of the judgments of the Court of Common Pleas.

In the first place, it must be observed that, under the law and the rules and regulations of each of the boards, the unpaid pension of each relator became due and payable on a day certain, without change or modification, and for a specified amount. In some instances the boards actually met and approved the payrolls and ordered payment “if and when funds were available.” In other instances, the record does not reveal such action by the board. In all instances, however, the names were on the rolls for the payment of a certain specified amount theretofore set under the rules and regulations of the board.

6 Whether these pensioners were made pensioners and their names placed upon the rolls prior to or subsequent to the year 1937, is of no legal importance, because we declare the law to be that, when a particular payment under a pension has become due, the pensioner has a vested right to it, and, in the absence of conditions which would forfeit his right, the board has no discretion but to order its payment, whether the fund at the time is or is not sufficient for payment. This is so, even though prior to the year 1937, a pension granted by public authorities was not considered a contractual obligation, but was considered to be a gratuitious allowance, in the continuance of which the pensioner had no vested right. Mell et al Trustees v. State, ex rel Fritz, 130 Oh St 306. We recognize as the general rule (in the absence of statutes to the contrary) the following statement in 40 Am. Jur. Pensions, Sec. 24:

7 “The unquestioned general rule is that a pension granted by the public authorities is not a contractual obligation but a gratuitous allowance, in the continuance of which the pensioner has no vested right, and that a pension is accordingly terminable at the will of the grantor, either in whole or in part. * * * And it is a strongly supported rule that where any particular payment under a pension has become due, the pensioner has a vested right thereto.”

See also: Gibbs v. Minneapolis Fire Dept. Relief Assoc. 125 Minn. 174, 145 N. W. 1075; 54 A. L. R. 943, 98 A. L. R. 505 and 112 A. L. R. 1009 and cases cited therein.

Heretofore we have spoken of pensioners who became so, and their names placed on the rolls, prior to 1937. In the year 1937 the legislature enacted §§4612-1 and 4628-1 GC. These sections with their subsequent amendments, created a vested right in both firemen and policemen to receive the amount fixed by their respective boards if their pensions were properly granted pursuant to the rules and regulations of the board. These pensioners, therefore, pursuant to statute, were given an immediate fixed right to a present enjoyment of their pensions when due, if funds were available, and a fixed right to future enjoyment when the funds became available; and, in addition thereto, the Supreme Court in State ex rel Cunat v. Trustees of Cleveland Police Relief & Pension Fund et al, 149 Oh St 477, 482, made it a mandatory duty upon' officials to pay a pension upon conditions fulfilled, on the theory that there was ‘“a contractual obligation founded upon a valid consideration, giving to the pensioner a vested right in his pension which cannot afterwards be impaired or revoked.” (Emphasis ours.)

It follows, we think, and we so hold, that to those pensioners who became so prior to the “vested rights” statutes, there was likewise a contractual obligation to pay those installments which became due, but remained unpaid, even though the trustees could, as to those falling in that class, “pass rules” altering for future payment the pensions previously granted. State ex rel Lemperle v. McIntosh et al, Trustees, 145 Oh St 107. (We are speaking only of the rights of pensioners in the years in which the defaults in payment now in litigation occurred.)

It is claimed by the appellants that “the pension laws of 1947 are not retrospective, nor do they provide for any defaulted payments to pensioners in the past. The language of paragraph 9 of §§4812-4 and 4628 GC is clear and unequivocal, and admits of no strained construction. Article II, Section 28, of the Constitution of the State of Ohio, is as follows (Sec. 28, Retroactive Laws etc.):

“ ‘The general assembly shall have no power to pass retroactive laws or laws impairing the obligation of contracts * * *.’ ” All legislation cannot be judged by theoretical standards, but must be tested by the concrete conditions which induced it. There are many acts of the legislature which may be properly called curative acts. They operate on conditions already existing and have both prospective and retrospective operations. They are not “retroactive” laws as that term is used in the constitution.

In the legislation now under consideration (§4631-4 GC, supra) we find it to be designed to provide additional funds over and beyond those funds acquired through other legislative means for the police and fire pension funds. Nothing in the act requires the funds to be used exclusively for future pension payments falling due. Rather the legislation was designed to not only help in the payment of pensions falling due in the future, but also to save the governmental agency from continuing to violate its contractual obligations — i e.. the obligation to make payment of pensions legally due. Certainly we cannot say that the pension legislation of this state was designed only to create an appearance of granting pensions, while at the same time withholding the benefits by providing inadequate funds.

When the monthly payments fell due for these pensioners, whether they became so before or after the legislation of 1937, there came into being a contract — on the part of the pensioners a completed act of service in the police or lire department, a fulfilled condition, and on the part of the pension boards a promise to pay. When full payment is made, the contract will be executed and until then the breach will continue.

It is further urged by the appellants (1) that the statute of limitations has run against some of the claims, and (2) that mandamus is not the proper remedy.

8 In answer to the first, we rule that, where payment is provided out of a particular fund or in a particular way, the statute of limitations does not begin to run until the particular fund has been provided or the method pursued.

9 In answer to the second, we determine that there is an absolute obligation upon the respective boards to order payment of the defaulted pensions which are now due and owing, and that the relators have a clear legal right to demand “the performance of an act which the law specially enjoins as a duty from an office, trust or station.” (Sec. 12283 GC.)

We have examined and considered each and every claimed error in addition to those heretofore discussed, and we find in the record no error which would justify a reversal of the judgments under review. The judgments therefore will be affirmed.

Judgments affirmed. Exceptions noted. Order see journal

STEVENS, J, HUNSICKER, J, concur.


source: Caselaw Access Project

author: By THE COURT.

license: Public Domain

text:
    WALLACE, Appellee, v. BOARD OF LIQUOR CONTROL, Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4693.
    Decided March 11, 1952.
    Simon L. Leis, Cincinnati, for appellee.
    Hon. C. William O’Neill, Atty. Geni., Brown W. Pettit, Asst. Atty. Geni., Columbus, for appellant.
   OPINION

By THE COURT.

This is a law appeal from a judgment of the Common Pleas Court reversing an order of appellant, Board of Liquor Control, affirming the action of the Department of Liquor Control rejecting the appellee’s application for a renewal of his D-5 liquor permit. The Common Pleas Judge who heard the appeal, in his written opinion said:

“There has been an abuse of discretion in refusing to renew appellee’s permit.”

Upon the appeal from the order of the Department of Liquor Control refusing to issue a permit to appellee for the year 1951, the Board found that,

“On September 1, 1950, * * *, the permitholder operated his permit premises in an insanitary manner, in that the toilet was filthy, the floor was covered with dirty water, there was no seat on the lavatory; and the tavern floor was covered with dirty papers from the front to the rear of the building, there was no paper, soap or towels in the lavatory; and that on the same date the permitholder failed to maintain decency, sobriety, and good order, in that the permitholder did allow the presence of an intoxicated person, one sleeping in a booth, and another one on the floor; and that there were three fights, resulting in one patron being taken to the hospital, * * *.” The evidence offered on the appeal to the Board supported its findings in all material matters. The evidence further developed the fact that prior to September, 1950, in April, 1950, another inspection of the permit premises had been made as a result of which the permittee was ordered to clean up the premises. The findings of the Board were based upon the testimony of one of its inspectors as a result of which inspection charges were filed against the permittee which, by the time they came on to be heard, had become moot because the permit of permittee had expired.

After the September, 1950, visit of the inspector and prior to the hearing on the refusal to grant the permit, permittee had made rather extended changes in sanitary accommodations in his place of business, had expended about $2200.00 therefor and the result of these changes was to improve the sanitary conditions. It was largely because of this change in physical situation in the permit premises that the Common Pleas Court held that the Department and the Board had abused their discretion in denying appellee a permit. It will be noted that the only finding as to inadequacy of sanitary equipment is that “there was no seat on the lavatory.’’

If the only basis for the denial of the permit was the absence of certain required sanitary accommodations found upon the inspection of September, 1950, which had been corrected at the time of the hearing on appeal to the Board, there would be some support for the reversal. However, as we view the evidence which we have carefully considered, the order of the Department affirmed by the Board was predicated not upon bad sanitary equipment but upon failure to observe ordinary sanitary precautions which would be appropriate without respect to the type of equipment. However, charges other than those relating to sanitary conditions were sufficient to support the order denying the permit. The evidence showed that while the permit place was in operation an elderly woman was permitted to lie and sleep on the floor in an intoxicated condition. A second person was asleep in a booth. A waitress stood behind the bar and drank whiskey from a bottle in violation of the rules of the Board. One or more altercations took place while the inspector was in the permit premises. One altercation resulted in the calling of a police ambulance which removed a participant who had been cut in an affray.

As a defense to these charges the proprietor urged that he did not know what was going on and stated that he had dismissed the employees who permitted the conditions to obtain. Manifestly, the permittee cannot evade responsibility for misconduct and failure to observe rules of the Board and the demands of decency and propriety in the operation of a night club where liquor is sold.

The record is not developed as to the specific findings of the investigators at the prior visit to the tavern but enough is developed to permit the conclusion that the bad conditions which were found in September, 1950, were typical of prior conditions. It is not probable that the disreputable conditions which occurred in the few hours that the inspector was in the place of business of appellee were unusual. Rather, it would be expected that the employees would be more circumspect and better behaved when an inspector was on the premises.

As we view this record, the basis of the reversal of the Board by the Common Pleas Court was erroneous for at least two reasons. First, it did not give sufficient consideration to insanitary conditions permitted to obtain other than those having to do with physical equipment. Second, it gave insufficient attention to the other serious charges which the Board properly found to have been sustained by the evidence.

The reversal required the Common Pleas Court to substitute its judgment for that of the Liquor Board. This it cannot do. Farrand v. State Medical Board, 151 Oh St 222.

In the administration of the Liquor Control Act the Board of Liquor Control must be given wide discretion in determining facts and in resolving those facts for or against an applicant for a permit.

A permit may be revoked by authority of §6064-25 GC for “Sufficient cause” and the Board of Liquor Control had the power under §6064-3 (c) GC,

“to make rules and regulations and orders providing in detail for the conduct of any retail business authorized under permits issued pursuant to this act, with a view to insuring compliance with the provisions of this act, and other laws relative thereto, and the maintenance of public decency, sobriety, and good order in any place licensed under such permits.”

In one respect the Board had an advantage in passing upon the application of appellee for his permit that would not have been available had he not formerly held a permit. It had the opportunity to determine how he conducted a licensed place of business.

We find no sufficient support for the conclusion that the Board of Liquor Control or the Department, in the order under review in the Common Pleas Court, abused their discretion, even though the Common Pleas Court may have felt that denial of the permit was too severe under the facts developed.

The judgment will be reversed and the cause remanded.

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


author: By SKEEL, PJ.

text:
    STATE, Plaintiff-Appellee, v. FARRELL, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22415.
    Decided May 5, 1952.
    Frank T. Cullitan, County Pros., Harvey R. Monck, Asst. County Pros., Cleveland, for plaintiff-appellee.
    Corrigan, McMahon & Corrigan, Wm. J. Corrigan, of counsel, A. D. Adelstein, Cleveland, for defendant-appellant.
   OPINION

By SKEEL, PJ.

This appeal comes to this Court on questions of law from a judgment for the State finding the defendant guilty of murder in the second degree. The Court, on hearing a motion for new trial, reduced the degree of guilt to first degree manslaughter. The defendant was the owner of the “Ebony Lounge” variously described as a night club or cafe, located at East 69th & Cedar Avenue in the City of Cleveland. The deceased was an employee of defendant, his work being that of door man at the Ebony Lounge and ticket taker and assistant in operating “dawn dances” which were promoted by the defendant.

The entrance, to the Ebony Lounge was in the center of the building. A masonite partition was constructed to the left of the entrance door which extended south about six feet where it met another partition extending west some distance. There was an opening about one foot square on the first described partition, the bottom of which was about fifty-three inches above the floor in which opening a shelf was constructed of masonite which was about nine inches wide and fastened solidly to the bottom of said opening. The opening was used as the means of selling entrance tickets to patrons. The check room was located back of this partition. There were two bars, one on either side of the main room, and a stage on the back wall for the use of a dance band and entertainers.

On the early morning of June 24, 1951, the defendant at about 3 o’clock A. M., came to the ticket window to get the money that had been taken for tickets. His wife, who was the ticket seller on this occasion, was seated back of the partition. The deceased was in the entrance way acting as door man. There was some conversation between the defendant and the deceased, the defendant claiming that the deceased was discussing with him the merits of two revolvers, one of which was a thirty-two caliber, American double action revolver, the other a Smith & Weston 38 caliber revolver. During the course of the conversation, the defendant testified that the deceased asked “Do you have the little cheap gun?” and upon answering “Yes” the defendant reached in his hip pocket, took therefrom the gun, laid it on the ledge (the shelf above described) and as he did so it exploded and fell to the floor. The discharged bullet hit the deceased from the effect of which he died a few hours thereafter.

The defendant claims the follows errors:

1. That the court committed error prejudicial to the rights of defendant in submitting to the jury the charge of murder in the second degree.

2. In receiving into evidence testimony of a ballistic expert as to experiments made with the revolver from which the bullet was discharged that caused the death of Thomas.

3. In failing to charge on circumstantial evidence.

4. That the judgment is not supported by the evidence.

As above indicated, there is no conflict in the evidence concerning the cause of the death of Harry Thomas. His death was the proximate result of a bullet shot from a revolver which the defendant had in his hand at the time of or just prior to tlie shooting. It was the claim of the state, by the allegations of the indictment, that the defendant shot purposely to cause the death of Harry Thomas. The defense was that the discharge of the gun was an accident.

There is evidence in the record in support of both theories. On behalf of the state it was shown that the defendant was taken to the bedside of the deceased, where the deceased was asked to identify him as the one who fired the shot. The record is as follows:

“Q. In the presence of Farrell and Thomas, what, if anything, did you say?

“A. I said to Thomas, ‘Is this the man that shot you?’ and he says, ‘yes.’ He turns toward Farrell and he says, ‘you shot me for nothing.’ He said, ‘if I ever get out I’ll kill you.’ Farrell in turn says, ‘it was an accident.’

“Q. Then what happened, what was said next?

“A. The victim said, ‘It wasn’t an accident, he shot me for nothing,’ again he repeated it.”

The record also discloses that the revolver involved was an “American Double Action” which was constructed in such a way that the only way it could be fired was by pulling the trigger through a full firing cycle which operation required about sixteen pounds pressure on the trigger. The firing mechanism could not be cocked back in firing position. The gun could not be fired by “brushing the trigger.” The shell from which the bullet was expelled that killed Thomas was indented by the firing pin in the same manner and depth as was true of experimental shots subsequently fired.

It was also demonstrated that the powder mark and bullet mark, which the firing of the gun and the bullet that killed Thomas made on the shelf where the defendant said he put the gun before it exploded, could not be made in the place as found after the shooting, if the gun was laid on the shelf in the manner as described by the defendant, it is also to be noted that the defendant’s wife who was within two feet of the place where the defendant was standing when the shot was fired was not called as a witness.

The defendant’s case consisted for the most part of his declaration that the gun was discharged accidentally as or when he put it on the shelf. One officer testified that the defendant told him that as he laid the gun on the counter it went off and that he did not know whether his finger accidentally brushed the trigger or whether the gun had cocked itself when he took it out of his pocket. Another officer testified that the defendant said he slammed it down on the ledge. He also introduced a number of credible character witnesses who testified that the defendant is a business man of good repute in the community.

The defendant’s claim of error in the admission of expert testimony of experiments made to demonstrate that the markings on the ledge could not result from a discharge of the gun as claimed by the defendant, is not well taken. The rule in Ohio as to the admissibility of such evidence is stated in Vol. 17, O. Jur., parag. 479, page 587 as follows:

“The general rule is that to render experiments or evidence of experiments made out of court, admissible, the conditions need not be identical with those existing at the time of the occurrence in question; it is sufficent if there is substantial similarity. The Ohio courts accord with this general rule. But obviously, the probative value of experiments will depend upon the correspondence of the conditions under which they are performed to those of the occurrence being investigated. If there be an exact correspondence of such conditions, the experiment will amount to a demonstration and be conclusive upon the issue; dissimilarity of conditions and experiments may affect not merely the weight of the evidence but its admissibility. Evidence as to the results of an experiment with the same kind of a train, at the same place and with a similar crew, is not controlling if the conditions are not shown to be exactly the same.”

The evidence here received of experimental shots made by the ballistic expert comes clearly within the permissible limits of the rule as thus stated.

The claimed error in the charge of the court cannot be supported. It is contended by the defendant that a charge on circumstantial evidence should have been given. It must be noted that the defendant did not request such a charge, although the opportunity to request any correction or addition was afforded him. In any event, the evidence upon which the state relied to make out its case was direct and not circumstantial and the omission of a charge on circumstantial evidence could in no way prejudice the defendant.

We also find that the verdict, as modified by the court, cannot be said to be against the manifest weight of the evidence. The jury is the sole judge of the credit to be given to the testimony of the several witnesses and there is no basis upon which to claim that they acted under passion and prejudice. The court cannot substitute its judgment on questions of fact for that of the jury where there is credible evidence to support the verdict.

For the foregoing reasons, the judgment is affirmed. Exceptions noted. Order see journal.

HURD, J, THOMPSON, J, concur.


author: By DAVIES, J.

text:
    NIESEN, Sr., Estate of, In re.
    Probate Court, Hamilton County.
    No. 169678.
    Decided November 28, 1951.

      John C. McCarthy, Cincinnati, for E. H. Niesen, exceptor.
    Sarah G. Krusling, Cincinnati, for Alma C. Niesen and Charlotte Krusling, executrices.
    Frank G. Davis, Cincinnati, for Frank Niesen, Jr.
   OPINION

By DAVIES, J.

This matter comes before the court upon the exceptions of E. H. Niesen to a current account filed by the fiduciaries in the estate of Frank Niesen, Sr., who died on February 23, 1948, for the reason that “the same does not account for any of the rents received on the garages in the rear of the tamily residence,” the exceptor being an heir of, and devisee under the will of, said decedent.

The testator’s will, which is dated September 19, 1939, after providing for the payment of debts and funeral expenses, and after making certain specific bequests, directs the executors to sell all the real estate of which the testator died possessed, and to divide the residue of his estate among his eight children, all of whom survived him.

Item 9 of said will reads as follows:

“I direct that my daughters Emma Niesen, and Alma Niesen, and Charlotte Krusling with her three children be permitted to live at my home 523 East Liberty Street, Cincinnati, Ohio, rent free for a period of four years after my decease.”

The testimony shows that the testator, at the time of the execution of his will and continuously until his death, occupied as a home the premises described in Item 9. The testimony further shows that the said property described as 523 East Liberty Street consists of a small city lot upon which is located a dwelling house which fronts on East Liberty Street, and a two-car garage, which fronts upon, and is entered from, an alley which runs along the rear of the lot and which garage was used by the testator for the storing of his and other people’s automobiles.

The exceptor, E. H. Niesen, claims that the testator, as shown by the language of his will, did not intend that Emma Niesen, Alma Niesen and Charlotte Krusling should be permitted the use “rent free” of the garage, but intended that they should be permitted to occupy only the residence as a home “rent free” for a period of four years after his father’s decease. The exceptor’s sisters, mentioned in Item 9, however, claim that their father intended, by use of the word “home” in his will, to permit them to live at and use both the dwelling house and garage “rent free” for the four year period following the testator’s decease.

Other parts of the testator’s will do not indicate whether he intended the word “home,” found in Item 9, to include the dwelling alone, or both the dwelling and the garage.

It is well settled in Ohio, as shown by the numerous cases cited in 40 O. Jur., 590, et seq., that the cardinal rule of interpretation of a will is to ascertain and give effect to the intention of the testator; that this intention must be ascertained from the language used in the will, as applied to the subject matter, and read in the light of surrounding circumstances at the time of the execution thereof; that the intention of the tesator is to be gathered from the whole will; that words used in a will are flexible and capable of many shades of meaning and are to be construed in accordance with their ordinary use and meaning, unless it appears from the context and other provisions of the will that the testator has used them in a different sense.

The word “home” is ordinarily defined as one’s own dwelling place; the house in which one lives; especially the house in which one lives with his family; the habitual abode of one’s family. Webster’s New International Dictionary.

In Marston v. Stickney, 58 N. H. 610, the court held' that “a grant or devise of a dwelling house will convey the buildings belonging to it, its curtilage, garden, orchard and the land on which the house is built.”

In Pruyn v. Sears, 161 N. Y. Supp. 58, wherein the testator devised to his wife his family residence, it was held that a barn on the same lot with the house, which was formerly used for the testator’s team of horses and his automobile, but later, and at the time of his death, was used for the purpose of storage and for the sale of automobile accessories by one of the testator’s sons, passed to the widow, because the barn was built upon the same lot and used for the purposes incidental to the family residence.

In the case of Graham v. Heidrick, 204 Pa. 238, 53 Atl. 1002, the court, in construing a provision in a testator’s will that his wife should occupy his “home and residence during her life” and “also my daughter as long as she remains single,” held that the testator intended the term “home and residence” to include not only the dwelling and building's, but also the farm upon which the dwelling and buildings were located. The court pointed out that the testator, during his lifetime, ordinarily would make no distinction between the' buildings and the land. He would say “my home,” “my farm.” “my place, where I live,” meaning by each appellation his entire farm property, and would be so understood by his neighbors. The court pointed out that, unless possibly in an application for fire insurance, the testator would not use the word “buildings” as distinguished from the farm on which they were erected, and the court concluded that it is highly improbable that he intended to provide nothing more than a roof to shelter his surviving spouse.

In the case of Chase National Bank, et al. v. Deichmiller, et al., 107 N. J. Eq. 379, 152 A. 697, the court was asked to construe the meaning of the word “home” used in a devise, by the terms of which the testator created a trust for the benefit of his wife during her life or widowhood in his “home known as Brookside Lawn,” which consisted of a small farm, in addition to the dwelling house, a barn, garage and chicken house. The court held that the word “home” means not only “dwelling house,” but the entire residence estate, including all of the land and buildings thereon, and pointed out that “the natural meaning of the word ‘home’ is broader than that of the word ‘dwelling house.’ ”

In determining what constituted a homestead under the bankruptcy laws, a Federal District Court, In re Shepardson, 28 F. (2d) 353, found that the fact that a bankrupt occupied a ten acre tract of farm land, which was divided into two plots by a country road, on one of which the bankrupt and her husband lived, and on the other of which they maintained a gasoline filling station, small store and cabins for 'travelers on a highway did not deprive the bankrupt of the right to claim a homestead exemption in the whole tract. The court reasoned that the whole premises were necessary and convenient for the use of the bankrupt and her family as a place of residence, independent of the business conducted on said premises, and that said business was incidental and subordinate to the use by the bankrupt and her family of said premises for a home and that the entire premises were impressed with the homestead.

The court, in the case of Gregg, et al. v. Bostwich, et al., 33 Cal. Rep. 220, held that the word “homestead” represents the dwelling house at which the family resides, with the usual and customary appurtenances, including outbuildings of every kind necessary or convenient for family use, and land used for the purposes thereof. If situated in the country, it may include a garden or farm; if in a town or city, it may include one or more lots or blocks. It need not be compact in form and is not measured by fences merely. The only tests are use and value.

At common law, the term “dwelling house” includes the privy, barn, stable, cow house, dairy house, if they are parcel of the same messuage, although they are not under the same roof or joining contiguous to it. 1 Hale P. C. 558.

In determining the intention of a testator as to the meaning of the word “home place” used in his will, the court, in 69 Vt. 34, 37 A. 275, held that a devise of a life estate in “my home place where I now live” carried the house occupied by the testator and the enclosure about it including a woodshed, chicken yard and wagon entrance.

In the “horse-and-buggy” age, folks were largely dependent upon the horse for transportation and husbandry power, and. as shown by the aforementioned decisions, courts generally held that sheds and buildings necessary for the housing and protection of horses and equipment powered by them were necessary adjuncts to a home and, therefore, considered that such buildings, as part of the curtilage, were included in the general definition of the term “home.”

It is common knowledge that in our country the automobile has supplanted the horse as an essential means of transportation. A large portion of American families are dependent upon automobiles for transportation and making a living. Millions of people live out of reach of any kind of public transportation. Civilian defense is built on the availability of quick motor conveyance for emergency evacuation. School children, doctors, nurses, public health officials and others depend upon automotive power for transportation. In 1950, with an approximate population of 150,000,000, the number of passenger automobiles registered in the United States totaled 40,315,000. It is interesting to note that only 12,712,000 automobiles were registered that year in all of the rest of the world. It has been estimated that, if all of the passenger automobiles in the United States were placed in a single line, bumper to bumper, the procession would be some 125,000 miles long, or long enough to stretch across the country 40 times, or 20 round trips, or twice around the earth at the equator. A wag has suggested that the resulting traffic jam from such a procession really would be intolerable.

The automobile no longer is classified as a luxury, but as a basic necessity for most American families.

We conclude that a direction in a will permitting a beneficiary to occupy the testator’s home without payment of rent for a stated period of time following the testator’s death will permit that beneficiary to occupy, rent free, a garage located on the same lot as a dwelling, which had been used as a home by the testator, unless, by the terms of the will, the testator employed specific language indicating an intention to exclude the garage as part of the home.

The exceptions of E. H. Niesen, therefore, will be overruled.


author: By CRAMER, J.

text:
    COLANTONIO v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.
    Common Pleas Court, Butler County.
    No. 64010.
    Decided April 23, 1951.

      Casper & Casper, Middletown, for plaintiff.
    Graydon, Head & Ritchey, Cincinnati, for defendant.
   OPINION

By CRAMER, J.

This cause, which was heard without the intervention of a jury, was submitted to the court upon the pleadings, the evidence, the arguments and memoranda of counsel.

Plaintiff is the widow of a former employee of the P. Lorillard Company at Middletown, Ohio. The deceased had been such an employee for a period of approximately forty-five years prior to his death, .which took place on the 13th day of June, 1949. The plaintiff widow as beneficiary, seeks to recover from the defendant insurance company the sum of Two Thousand Dollars under a group life insurance policy which she claims covered the life of the deceased.

The defendant sets up three separate defenses. In the first of said defenses it is asserted that the decedent did not sign an application for additional contributory insurance provided for in the amendment to the master policy and that no individual certificate was ever prepared, issued or delivered to him, and that therefore no policy for such additional insurance on his life was in force or effect on the date of decedent’s death.

Under the second defense it is claimed that the decedent was not “actively at work” on April 1, 1949 (the effective date of the amendment providing for the contributory insurance), nor thereafter, and that consequently the deceased was never eligible for or entitled to the additional insurance under the conditions of the amendment to the policy. The amendment, among other exceptions, provides that an employee who was not actively at work at the date he otherwise becomes eligible for insurance is not eligible until he returns to active work.

In the third defense the defendant alleges that it never received any contributions either from the employer nor the deceased as payment of premium on the additional contributory insurance on the life of decedent.

The decedent had been employed by the P. Lorillard Company for approximately forty-five years and worked in the capacity of a foreman. He had a non-contributory group insurance policy with the defendant which was in the sum of $2000, and held an individual certificate therefor Upon his death said sum was paid to plaintiff as the beneficiary.

In February 1949 the decedent became ill and in March was operated upon. During this illness the employer continued to pay the deceased his regular salary.

On March 17, 1949 the President of the employer company sent a letter to all employees including the deceased announcing that arrangements had been made with the defendant to extend the then present plan of group insurance to provide additional insurance for the employees, the cost to be shared both by the employer and such employee. This plan was to go in effect on April 1, 1949 provided that 75% of the employees accepted the plan.

The evidence shows that the deceased indicated his acceptance of the plan and that he, by reason of his earnings would be entitled to an additional $2000 of insurance. The office manager of the employer testified that while the deceased never made the necessary written application for this additional insurance, he having indicated his desire to secure the same, deductions of $1.20 each were made from his payroll checks on April 7th and May 5th, 1949.

On May 13, 1949 there was mailed to the insurance department of the employer at New York City a report for the month of April 1949 which showed those employees of the Middletown branch who became eligible and subscribed for such contributory insurance under the amendment effective April 1, 1949. In this communication it was recited that the decedent’s card covering the contributory insurance was being forwarded without his signature. The reason assigned therefor was that he was in the hospital and it was impossible to request the signature, and permission was sought to arrange to secure the signature at a later date.

On May 19, 1949, apparently in response to the office manager’s report of May 13th, the New York office of the employer advised the Middletown branch that it had changed his report since the deceased “is not eligible for the additional insurance until .he returns to active duty.” Thereafter, the Middletown branch refunded the sum of $2.40 which had previously been deducied from the deceased’s payroll check by including said sum in his paycheck of June 3. 1949.

The evidence shows that the deceased, following his illness of February 1949, made several visits to the employer’s plant at Middletown. The daily time record of the plant — smoking department — was offered and received in evidence. It shows that on April 4, 1949 the deceased was absent from the plant for five hours and present three hours. This time sheet records eight hours on each of the other days during this pay period for the deceased. However, no claim is made that the deceased was in the employer’s plant, actively at work, on any of the days so recorded other than April 4th. At least it is not claimed by the plaintiff that the decedent was actively at work on these other days for the full eight hours. The noted absence of the decedent on April 4th of five hours was explained by the employer as follows: Shortly after the afternoon shift began at one o’clock, the time keeper of the department would come through and check off the names of the employees who were present. No further check was made by him to determine whether those employees who were marked present remained until the four o’clock closing time and all employees were given credit for the full three hours afternoon shift unless the timekeeper was advised by the foreman that a particular employee had left early.

The evidence shows that on April 4th the deceased was brought to the plant by his daughter at about twelve-thirty P. M. It is not claimed by the plaintiff that the decedent was at the plant on the morning of April 4, 1949. One of the employer’s superintendents testified that the decedent was not at work on the afternoon of April 4, 1949 taut was simply visiting and there was no reason for reporting his early departure, and in addition it made no difference since the deceased was being paid his regular wages.

It seems apparent that since the deceased was being paid his regular salary even though and while ill, the time records showed him as present for eight hours each day at the plant at least during the period just referred to. Prior to the decedent’s illness he had been employed in more or less a supervisory capacity, performing the duties ordinarily performed by a supervisor or foreman, and his work did not entail much if any actual physical exertion.

The evidence respecting the conduct of the deceased on the afternoon of April 4th when he was at his employer’s plant was described by several of the employees. He was brought to the plant by his daughter and went through the entrance used by the employees and was attired in the clothes that he ordinarily wore at work. One of the employees who had worked under the deceased testified that on this particular afternoon Mr. Colantonio (the decedent) “just worked as he always did.” In response to an inqury of this witness as to what kind of work the deceased did on that afternoon, from one until about three o’clock, he answered as follows: “Just practically the same as he always did.” Then in describing what Mr. Colantonio did, this witness stated, “He just felt the tobacco and seen that it was all right.” This witness also stated that the decedent was “overseeing”— “he looked after the tobacco to see if it was all right”— “to see if we was doing it right.”

Another employee also testified to the effect that he saw, on this particular afternoon, the deceased looking over the machines and feeling the tobacco. This witness also testified, “he was feeling the tobacco — like he always was supposed to work.”

The evidence reveals that this occasion in April, namely, April 4th, was the last time the deceased went to the plant of the employer; three days thereafter he was confined to his bed where he remained until his death.

Most of the foregoing evidence respecting the activities of the deceased on April 4th was submitted some time after the case was closed. The court permitted plaintiff to re-open, over the objection of the defendant, and at the time reserved its ruling upon the objection to plaintiff’s re-opening of the case. It is our conclusion that the objection to the introduction of this evidence after both sides had rested, should be, and is, overruled. We do not believe that it is an abuse of discretion on the part of the court to allow a reopening under the circumstances disclosed here.

We will therefore, in determining this cause, consider the evidence which was submitted by the plaintiff after both sides had rested.

Both counsel in their memorandum agree that the principal issue involved is whether or not the deceased returned to “active work” on April 1, 1949 or any time thereafter.

We have no difficulty in finding that the evidence falls far short of establishing, by a preponderance thereof, the claim that on April 1, 1949 (the effective date of the contributory insurance amendment) the deceased was “actively at work” for the employer. To hold otherwise would mean completely ignoring the phrase “actively at work.” The courts have construed, at various times, such terms as “actively employed,” “active conduct of trade or business,” “actively engaged in,” “active service,” and “in active service.”

See Volume 2, Words and Phrases at pages 144-145-146-147.

It is our' conclusion, therefore, that the decedent was not eligible for the contributory insurance on April 1, 1949 because he was not “actively at work” on that date.

Paragraph l-D(l) of said amendment of April 1, 1949 provides: “Any employee who is not actively at work at the date he would otherwise become eligible for insurance hereunder shall not be eligible until he returns to active work.”

Our next inquiry is then, — Has the plaintiff shown that her decedent “returned to active work” for the named employer at any time after April 1, 1949?

We have hereinbefore recited the evidence offered in support of the claim that the deceased did return to active work for his employer on April 4, 1949. Such evidence, which in our opinion was not successfully controverted, is sufficient to sustain the claim of the plaintiff that Mr. Colantonio returned to active work for his employer on April 4, 1949. The policy does not set forth a requirement that the employee must return and be at active work for any period of time — merely that he return to and engage in such work. It is no doubt true that on this date the deceased was in poor physical condition and perhaps disabled from engaging in any work but that did not deter him from returning to active duty and attempting to carry on his usual duties. The fact that he was physically incapacitated from performing substantially all the duties of his job — which the evidence shows were not too onerous — and that he was unable to continue at active work after April 4, 1949 should not militate against the finding that he actually did return to active work.

We therefore find that on April 4, 1949 the deceased became eligible for the contributory insurance by reason of his return, on that date, to “active work” for his employer.

It should be borne in mind that the policy provides not only that the employee upon return to “active work” becomes eligible for the contributory insurance, but also paragraph 2-E thereof provides as follows: “The amount of insurance for any employee who immediately prior to the effective date of this amendment was insured under this policy and who on said effective date is not actively at work shall be equal to the amount for which he was insured under this policy immediately prior to said effective date until his return to active work when his amount of insurance shall be equal to an amount determined in accordance with the above basis. (Emphasis ours.)

Therefore, the amount of insurance (contributory) which came to the decedent on April 4, 1949 amounted to the sum of $2,000.

The decedent’s share of the premium was deducted from his pay-check on April 7, 1949. This covered his contribution toward the premium for the month of April 1949. Again on May 5, 1949 there was deducted from decedent’s pay-check the sum of $1.20, being share of the premium for the month of May 1949.

The insurance which the deceased became eligible for and received on April 4, 1949, in the sum of $2,000, was paid for— insofar as his share of the premium was concerned — by the deduction which was made from his pay-check of April 7, 1949.

The evidence shows that Mr. Colantonio never returned to active work after April 4, 1949. As a matter of fact several days thereafter he became bedfast until his death. Under the terms of the master policy the contributory insurance of any employee ceases automatically upon cessation of active work. At that time the insurance was, in our opinion, in force.

Our next inquiry, therefore, must be this: Was this policy for additional contributory insurance on the life of Mr. Colantonio in force or effect on the date of his death?

The policy, of course, was not in force on the date of decedent’s death if it contained no exception to the provision that the insurance ceased upon cessation of active work by the employee. It, however, provided as follows:

“Cessation of active work by an employee shall be deemed to constitute the termination of his employment except that under the circumstances stated below the employer may, for the purposes of the contributory insurance hereunder, by filing written notice with the Society and continuing the payment of premiums for the insurance hereunder, regard employees as still in the employment of the employer for the respective period stated:

“(a) Where the employee is retired on pension or becomes disabled by injury or disease; for the full period of such retirement of disability.”

The evidence here points rather conclusively, in our opinion, to the fact that the employer regarded Mr. Colantonio as still in its employment. Therefore, he fell within the exception to the provisions ending his insurance by reason of the termination of his active employment. The attitude of the employer toward the deceased in respect to continuing him in its employment is well illustrated in the several communications between its New York office and the Middletown branch and the fact that it continued him on its payroll from the inception of his illness to the date of his death. It is apparent here that the defendant concluded that the employer so regarded the deceased. The insurer gave validity to the deceased’s status, by paying to the beneficiary the non-contributory insurance on the life of Mr. Colantonio. The provisions of the policy above referred to, respecting the ending of the contributory insurance upon termination of active employment are identically the same as those in reference to the non-contributory insurance.

It is therefore our opinion that the contributory insurance which we have found the decedent received on April 4, 1949 was continued in force, even though his active employment terminated.

Was the policy continued until the death of Mr. Colantonio? It might be well argued that it was so continued in spite of the fact that on June 3, 1949 there was refunded to Mr. Colantonio the amount previously deducted from his paychecks as his share of the premiums for this insurance for the months of April and May 1949. However, if it be considered that the insurance was no longer in force after the date of the premium refund, yet the extended death benefit provisions of the policy extend this insurance, keep it in force, and make it effective to cover the death of the decedent.

This conclusion we arrive at by virtue of the following provisions of the policy, found on page four (a) thereof and designated “B” “Contributory insurance,”

“If due proof of the death of an employee shall be submitted in writing to the Society within one year after the death of such employee whose contributory insurance hereunder shall be terminated due to termination of employment, in accordance with the provision thereof entitled ‘individual terminations,’ the Society will pay to the person or persons entitled thereto under the provisions of this policy the amount of the contributory insurance for which such employee’s life was last insured under this policy, provided due proof shall be furnished to the Society that:

“1. Such employee’s death occurred within thirty-one days following such termination of employment, or

“2. At the date of such termination of employment such employee was totally disabled by bodily injury or disease so as to be prevented from engaging in any occupation for compensation or profit, and that such total disability continued from such termination of employment to such death, and that such death occurred (a) within a period after such termination of employment not longer than the time such employee’s contributory insurance hereunder had theretofore been continuously in force and in any event not longer than twelve months. * * *”

Even if we find that the contributory insurance was discontinued on May 19, 1949 as a result of the employer’s action in removing Mr. Colantonio’s name from the roll of those coming under the contributory insurance plan (as evidenced by its communication of May 19, 1949 to its Middletown branch), yet this insurance would still be in force on the date of the decedent’s death. We make this observation in view of the provisions of the policy above recited respecting the extended death benefits, particularly paragraph two thereof. Mr. Colantonio, from and after April 5, 1949, if not before, was totally disabled by disease so as to be prevented from engaging in any occupation for compensation or profit, and such disability continued until his death, and that such death occurred within a period after such termination of employment (in this instance May 19, 1949), not longer than the time his contributory insurance had been continuously in force (since April 4. 1949).

We believe that there is little merit to the defendant’s defense that it received no payment of premiums from either the employer of Mr. Colantonio for any additional contributory insurance. While it is true that the employer is not the agent of the insurer under these group insurance policies, yet where the employer deducts the premiums from the employees pay, for remission to the insurer, the relationship between the employer and the insurance company is that of debtor and creditor. Furthermore, the policy provides that the employee shall not be deprived of his insurance because of failure on the part of any employer either to record the insurance of any employee who has qualified thereunder or to include such insurance in the reports furnished to the Society.

We likewise find no impediment to plaintiff’s recovery because of the refund to the decedent during his lifetime of the April and May premiums contributed by him. First, it was not shown that Colantonio had been advised that the premiums were being refunded, and secondly, the paycheck in which the same were included was neither endorsed nor cashed by him, and the same were tendered back in court on the day of trial.

We find that the plaintiff is entitled to recover from the defendant the sum of Two Thousand Dollars with interest thereon from the 13th day of June, 1949, the date of the decedent’s death.

An entry may be prepared finding in favor of the plaintiff upon the issues joined in this cause, and that she is entitled to recover the foregoing sum with interest thereon as stated, and her costs.

* * * ‡

Authorities consulted: 29 American Jurisprudence, Section 1370, et seq., 55 A. L. R. page 1247; Kowalski v. Aetna Life Ins. Co., 266 Mass. 255, 165 N. E. 476, 63 A. L. R. page 1034; 85 A. L. R. page 1462; Emerick v. Connecticut General Life Ins. Co., 120 Conn. 60, 179 A. 335, 105 A. L. R. page 418; Garnsky v. Metropolitan Life Ins. Co., 232 Wis. 474, 287 N. W. 731, 124 A. L. R. page 1494; Inter-Ocean Casualty Co. v. Leccony Smokeless Fuel Co., 123 W. Va. 541, 17 S. E. 2d 51, 137 A. L. R. page 493; 145 A. L. R. 951; State ex rel. Nelson v. Thompson, 241 Wis. 344, 6 N. W. 2d 206; Johnson v. Travelers Insurance Company, 239 Mo. App. 599, 194 S. W. 2d 938; Zeigler v. Equitable Life Assur. Soc., 219 Iowa 872, 259 N. W. 769; Equitable Life Assur. Soc. v. Larocco, 3 Cir., 68 F. 2d 451; Thull, Adm’rx v. Equitable Life Assur. Soc., 40 Oh Ap 486, 178 N. E. 850; Garber v. Chrysler Corp., et al., 38 Abs. 405, 50 N. E. 2d 416; Mills v. Equitable Life Assur. Soc., 28 Abs 222; Boseman v. Connecticut General Life Insurance Company, 301 U. S. 196, 57 S. Ct. 686, 81 L. Ed. 1036.


author: By HUNSICKER, Presiding Judge.

text:
    TRAFFIC RESEARCH INSTITUTE, Inc., v. TURNER.
    Ohio Appeals, Ninth District, Summit County,
    Decided January 2, 1952.
    Joseph O’Leary, Akron, for appellant.
    Englebeck & Kaufmannn, Akron, for appellee.
    Walker, Alpeter, Reed & Diefenbach, Dwight G. Hay and Richard A. Nye, Akron, for W. A. Givens.
   OPINION

By HUNSICKER, Presiding Judge.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Summit County, Ohio, dissolving an order of attachment made upon certain property of Harold E. Turner, appellee herein.

Traffic Research Institute, Inc., appellant herein, brought an action in the Common Pleas Court against Harold E. Turner for money only, and filed, with its petition, an affidavit for attachment, a copy of the principal part of which is as follows:

“John R. Meeks, being first duly sworn, says that plaintiff is a corporation, and that he is the president thereof, duly authorized herein, and that plaintiff is commencing herewith a civil action in this court against defendant for the recovery of money for services rendered from September 1, 1949, to March, 1951, in the amount of $1,452.34; that said claim is for work and labor consisting of services rendered, and further, that defendant is about to convert his property, in whole or in part, into money, for the purpose of placing it beyond the reach of his creditors, and that the facts set forth in this affidavit are true.”

Turner then filed a motion for an order releasing the attachment, “for the reason that the allegations contained in said attachment are untrue.” This motion was supported by several affidavits.

Thereafter, Turner filed a supplemental motion to release the attachment, in which motion Turner stated that: “Said affidavit does not comply with §11820 GC; that a tractor belonging to said defendant has been attached; that said tractor is used exclusively in the business of defendant, which is haulage; that said tractor is a tool of trade of defendant: that in the affidavit for attachment the words ‘duly authorized herein’ are averred and there is nothing to support said allegation.”

The trial court, after a hearing on the motion and supplemental motion, entered a judgment, the part applicable herein being as follows:

“The court, upon consideration of the motions, the briefs filed therein and oral argument, finds—

“1. That defendant’s motion to dissolve said attachments is well taken and is therefore sustained, said attachments are dissolved, and the garnishees are hereby ordered to release all properties held under said attachments.”

There is no bill of exceptions before us, and if there is any error prejudicial to the substantial rights of the appellant, such error must appear from an examination of the original papers and the transcript of the docket and journal entries transmitted to us by the clerk of courts.

There is in the papers before us a copy of the finding made by the trial court, which finding was filed with the clerk of courts. This court does not review the opinions of the trial court; we are limited by the constitution of Ohio to a review of the judgment entered.

The opinion of the trial court was not signed by such court, it was not couched in the form of an order, judgment or decree, and hence it could not be classed as a final order from which an appeal could be taken.

“It is a fundamental rule that a court speaks through its journals.” Cox v. Fogle, 84 Oh Ap 179, at page 182, 82 N. E. 2d 875, at page 877. See also Art. IV, Sec. 6, Constitution of Ohio; §12223-3 GC; 2 0. Jur. (Part 1), Appellate Review, Secs. 88 and 293, Pages 166 and 578.

The appeal herein was in fact not taken from the opinion, but from the judgment, entered on September 18, 1951.

From the state of the record before us, we do not know upon which of the several grounds of the motion the court entered the judgment. The judgment is general in its terms. The trial court was not asked to clarify the judgment by setting forth its conclusions of fact separately from its conclusions of law.

Where one or more of the grounds of the motions could have been well taken, this court has no other alternative, under the circumstances here existing, than to affirm the judgment of the trial court.

Judgment affirmed.

The surety who executed the supersedeas bond herein has filed a motion in this court to be released as such surety and from all obligations arising out of said “appeal bond.” This motion is denied.

DOYLE and STEVE’NS, JJ, concur.


text:
    HARPER, Plaintiff-Appellant, v. FRANKLIN COUNTY CHILD WELFARE BOARD et, Defendants-Appellees. HARPER, Plaintiff and Relator, v. FRANKLIN COUNTY CHILD WELFARE BOARD et, Defendants.
    Ohio Appeals, Second District, Franklin County.
    Nos. 4802, 4825.
    Decided October 2, 1952,

      Isadore L. Margulis, John H. Cooper, Columbus, for plaintiff-appellant.
    Ralph J. Bartlett, Pros. Atty., Robert P. Barnhart, Howard F. Wehr, Asst. Pros. Attys., Columbus, for defendants-appellees.
   OPINION

By THE COURT.

No. 4802 is an appeal on questions of law from a judgment of the Common Pleas Court.

No. 4825 is an original action in mandamus in this Court.

Plaintiff moved the Court for an order consolidating the actions because of community of interest in the subject matter of the litigation.

It is manifest that these actions may not properly be consolidated but counsel, upon the oral presentation of argument in the cases, agreed that they might be prepared and decided at the same time and that, if necessary and appropriate, to consider testimony in the mandamus action the bill of exceptions in the error proceedings might be taken as the testimony in the original action in this Court.

In the error proceedings the parties defendants are the Franklin County Child Welfare Board and the individual members thereof. These also are defendants respondents in the mandamus suit and the members of the Board of County Commissioners of Franklin County are also parties defendants. The Superintendent of the Children’s Home of Franklin County is not a party in either proceeding.

Without setting forth the specific assignments of error it is sufficient to say that appellant claims that the judgment was erroneous and that the Court erred in refusing to accept certain testimony respecting the conditions under which the plaintiff was released from her position as housekeeper at the Franklin County Children’s Home. The action in No. 4802 sought to recover a money judgment against the defendant Child Welfare Board for salary or wages which she had not been paid because of the wrongful abolition by the Supertintendent of her position as housekeeper and dietician at the Children’s Home without notice to the Civil Service - Commission of Ohio or the approval of the Child Welfare Board.

The mandamus action elaborates somewhat in the averments as to the wrongful dismissal of the relator in that it is further claimed that the abolishing of the position was arbitrary and in bad faith. It is alleged that the order of abolition is arbitrary and void. The prayer is for a writ of mandamus against the respondents requiring them to recognize relator as the lawful incumbent of said position as housekeeper and dietician of the Children’s Home of Franklin County, Ohio, and to assign to her the duties of said position and to permit her to perform the powers, duties and functions of said position and that the said defendants be further ordered to make and issue the necessary reports and orders to the proper public authorities in order that she may draw her respective amount of pay for the periods during which defendants have prevented her from performing said duties.

Prior to both of the actions herein under consideration the plaintiff had instituted an action in the Common Pleas Court of Franklin County against all of the defendants named in the suits here, except the County Commissioners, and also against Carl T. Melvin then Superintendent of the Children’s Home of Franklin County. This action was for a declaratory judgment in which plaintiff asserted that she had been notified that her position was abolished but that she had not resigned, that no charges had been filed against her. She prayed for a declaratory judgment defining the power of the respective defendants in the operation of the Franklin County Children’s Home and for other declarations. Defendant Commission Board answered and, after certain admissions as to employment of plaintiff for want of knowledge and information, generally denied other allegations of the petition and further averred that it had received no notice of the resignation from the plaintiff and that it had taken no action toward the abolishment of the plaintiff’s position and had not asked for her resignation. Defendant Carl T. Melvin, Superintendent, demurred to the petition on the ground that the controversy seems to be between the Child Welfare Board and the Superintendent. The Child Welfare Board joined in praying for declaratory judgment as prayed in the petition. The Superintendent insisted that such judgment would not terminate the litigation. The cause went to trial to Judge Leach who overruled the demurrer and determined only the plaintiff’s rights and status and held that the only question presented

“is whether, at the time he took such action, Superintendent Melvin was, by virtue of the statutes, vested with sole authority to abolish plaintiff’s position as housekeeper, or could such action only be taken by him with the authority, approval or ratification of the Board.”

The Court held that the Superintendent had full authority to abolish the position by virtue of §3070-13 and §3070-24 GC. Judgment was entered accordingly.

Judge Gessaman, when the action in Case No. 4802 came on for trial, refused to accept testimony, the purpose of which was to establish that the plaintiff had been wrongfully discharged because this question had been adjudicated.

It is the contention of appellant that there was other and further testimony tending to show bad faith in the abolition of the office in that the ground stated to support the abolition did not in fact exist.

The facts involved are simple. Prior to May 1, 1949, plaintiff held the position of housekeeper at the Children’s Home, Franklin County. She had been regularly appointed and was in the Classified Civil Service. On the 25th of April, 1949, Carl T. Melvin, then Superintendent of the Franklin County Children’s Home, notified the Secretary of the State Civil Service Commission that the position of housekeeper at the Home, then held by Mrs. Harper, would be abolished as of May 3, 1949, “because of the urgent need and necessity for stringent economy measures due to the deficit in our funds for the management and maintenance of the Children’s Home and the entire Child Welfare Program.” The Secretary of the Commission acknowledged the communication and stated that the abolishment of the position had been duly entered on the records, etc. Soon thereafter plaintiff instituted the first of her three actions. It appears that the plaintiff based her right to a judgment principally upon the fact that the action of the Superintendent in abolishing the job which she had held was not taken with the approval and consent of the Child Welfare Board which approval it was contended was a prerequisite to such action of the Superintendent and, further, that she had not resigned from the position and no charges had been presented against her. There was no claim in the petition of plaintiff that the ground for the abolition of the job, as stated in the letter of the Superintendent, was not true or that he had acted in bad faith. However, it is manifest that plaintiff was relying in part on the protection of her Civil Service status and that she had the privilege and indeed it was her obligation to plead all facts upon which she relied for relief.

When the second action, the judgment which is the subject of the appeal, came on to be tried Judge Leach’s decision had not been carried into judgment entry, but during the trial the entry was filed and journalized. Counsel and parties were cognizant, as the trial proceeded, of the judgment in the first case.

It should be noted that the declaratory judgment decided unequivocally that plaintiff’s former job had been abolished by the Superintendent of the Home with full and sole authority to so act and adjudicated against the plaintiff not only those matters which she did assert in her action but also all matters which she could properly have asserted. Standard Oil Co., v. Zangerle, Aud., 141 Oh St 505; Quinn v. State, 118 Oh St 48; Petersine v. Thomas, 28 Oh St 596; Radaszewski v. Keating, 141 Oh St 489; Walker v. Walker, 132 Oh St 137.

At this juncture, it is obvious that unless and until this judgment was reversed or modified the plaintiff was foreclosed thereafter in asserting in any court, in any proceeding, between herself and any party to the judgment, that her former position had not been legally abolished, if that judgment was properly set up as a bar.

This principle of law is elementary and none is better established. As early as Babcock & Co. v. Camp, 12 Oh St 11, it is held:

“any matter regularly determined, in whatever form, by a competent tribunal, is not open to inquiry in any other proceeding by the same parties.”

And later, that a judgment is

“entitled to full faith and credit until reversed or modified, Fishman v. Bricker, 19 Abs 528, whether the facts before the Court warranted the judgment or not.” Hill v. Buchanan, 6 O. Supp. 230; 21 O. O. 24.

Although there was ample time for plaintiff to perfect and prosecute an appeal from the declaratory judgment even after the trial on her second action had begun no such step was taken.

But in the second action here on appeal no defendant plead the former judgment as res adjudicata of the issue. This was necessary before it could be effective to bar the plaintiff from making her case on the issues joined. Norwood v. McDonald, 142 Oh St 299. Of course, the trial judge had full right to accept the rulings of Judge Leach in the declaratory judgment case, as a matter of procedure, but the rulings of the trial judge are subject to review on this appeal notwithstanding the judgment, as it was not plead.

In the second case which was to recover a money judgment for salary which plaintiff claimed to have lost by reason of a void action by the Superintendent in attempting to abolish the job which plaintiff had formerly held, in addition to the averments of the declaratory judgment action it was alleged that the order abolishing the job was political. This was, in probability, broad enough to permit plaintiff to prove the action of the Superintendent was not in good faith in that the cause of the abolishment of the job, viz., for purposes of economy and shortage of funds was not, in fact, true. Suffice to say that, without quoting from the record, it is entirely inadequate to establish these averments, requisites to set aside the order of the Superintendent, for the reasons stated by Judge Gessaman in his opinion dismissing plaintiff’s case.

Counsel seem to labor under the misconception that because plaintiff held her position under the classified service she could not be removed without written charges preferred against her. The action taken by the Superintendent in abolishing the position which plaintiff at the time held was entirely different than would have been required had he attempted to remove her upon any charge of dereliction of duty or misconduct. The procedure adopted by the Superintendent has many times been approved by this and other courts always, however, subject to the test of good faith. Verberg v. Board of Education of Cleveland, 28 Abs 161, affd 135 Oh St 246; Board of Health, etc. v. State, 40 Oh Ap 77; State, ex rel. Allen, (Franklin) 26 Abs 489; State, ex rel. Spery v. Jaster, (Franklin) 27 Abs 499; State, ex rel. Benedum v. Taylor, (Franklin) 33 Abs 615.

Although we are of opinion that in the case here on appeal upon the state of the pleadings, res adjudicata not having been plead, answers should have been received to many of the questions to which objections were sustained. The an'swers were not proffered and we cannot say that they would have been probative of any material fact at issue. This was necessary. Ornstein v. Chesapeake & O. R. Co., 26 Abs 78; appeal dismissed, 133 Oh St 385; Bell v. Buckeye Steel Castings Co., 32 Abs 141; Fulkerson v. Roxanna Canning Co., 26 Abs 607.

It is not necessary to discuss the question whether or not the trial judge was correct in the case here on appeal in holding that the action for money judgment was improper and that it should have proceeded as in mandamus because counsel for appellant now agree with the holding of the Court.

The judgment in Case No. 4802 will be affirmed.

No action will be taken at this time in Case No. 4825.

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


text:
    HARPER, Relatrix, v. FRANKLIN COUNTY CHILD WELFARE BOARD et, Respondents.
    Ohio Appeals, Second District, Franklin County.
    No. 4825.
    Decided February 20, 1953.
    Isadore L. Margulis, Columbus, for relatrix.
    Frank H. Kearns, Pros. Atty., Robert P. Barnhart. Howard F. Wehr, Asst. Pros. Attys., Columbus, for respondents.
   OPINION

By THE COURT.

Submitted on demurrer to the answer filed by respondents. Relatrix filed in this Court an action in mandamus to require the respondents, the Franklin County Welfare Board and the Board of County Commissioners, to restore the relatrix to her position as an employee of the Franklin County Welfare Board, in the capacity of housekeeper and dietitian in the Children’s Home of Franklin County, and to issue orders to the proper authorities in order that relatrix may draw compensation for the period during which respondents have prevented relatrix from performing her duties. Relatrix alleges that the position was one in the Classified Civil Service; that she was discharged. illegally and without just cause by the then Superintendent of the Children’s Home on May 5, 1949.

The respondents in their answer admit certain allegations in the petition which are followed by general denial. By way of special defense, the respondents allege that on July 9, 1949, a decision was rendered by the Common Pleas Court of Franklin County, in an action filed by the relatrix herein against the Child Welfare Board and the then Superintendent of the Children’s Home, in which it was held that the Superintendent of the Children’s Home had the authority under the law to discharge employees, and that “the decision was based on the same facts stated by relatrix in this action, and is decisive of the question of the authority and responsibility of the respondents in this action.” Respondents allege that the judgment in the other action is a complete bar to relatrix’ mandamus action. For a discussion of certain phases of the controversy, see opinion of this Court in case No. 4802, Harper v. The Franklin County Welfare Board, October 2, 1952.

The relatrix has raised questions which can be properly raised on the trial of the issues drawn. For the purpose of the demurrer all facts well pleaded are admitted to be true. The answer sets forth allegations good against demurrer.

The demurrer will be overruled. Relatrix is granted ten days within which to file reply.

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


author: By MILLE'R, J.

text:
    STATE, Plaintiff-Appellant, v. FEINGOLD, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4650.
    Decided February 8, 1952.

      Hon. C. William O’Neill, Atty Geni., Robert A. Clair, Asst. Atty. Geni., Columbus, for plaintiff-appellant.
    William A. Walsh, Akron, tfor defendant-appellee.
   OPINION

By MILLE'R, J.

This is a law appeal from the judgment of the Common Pleas Court holding that contributions due to the Unemployment Compensation Fund from an employer are not taxes and that it is therefore a debt dischargeable under Section 17-1 of the Federal Bankruptcy Act which provides:

“Debts not affected by a discharge. A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such as (1) are due as a tax levied by the United States, or any State, county, district, or municipality.”

While it is conceded that the Unemployment Compensation Act refers to all payments to be made to the fund as “contributions” the appellant urges that it is in reality a tax and therefore is not a debt dischargeable under the Bankruptcy Act. “Contributions” are defined as follows in §1345-l-j GC:

“ ‘Contributions’ means the money payments to the state unemployment compensation fund required by this act.”

It appears that the purpose of the Bankruptcy Act is to aid debtors, but also at the same time to protect the rights of the taxing authorities.

Unemployment contributions have been considered by the Supreme Court of the United States in Carmichael v. Southern Coal and Coke Company, 301 U. S. 495, 81 L. Ed. 1245, 57 S. Ct. 868. In the course of that opinion, the Court said:

“In Beeland Wholesale Co. v. Kaufman, 234 Ala. 249, 174 So. 516, the Supreme Court of Alabama held that the contributions which the statute exacts of employers are excise taxes laid in conformity to the constitution and laws of the state. While the particular name which a state court or legislature may give to a money payment commanded by its statute is not controlling here when its constitutionality is in question, ... we see no reason to doubt that the present statute is an exertion of the taxing power of the state . . .

“Taxes, which are but the means of distributing the burden of the cost of government, are commonly levied on property or its use, but they may likewise be laid on the exercise of personal rights and privileges. As has been pointed out by the opinion in the Chas. C. Steward Machine Co. case (301 U. S. 548, 31 L. ed. 1279, 57 S. Ct. 883), such levies, including taxes on the exercise of the right to employ or to be employed, were known in England and the Colonies before the adoption of the Constitution, and müst be taken to be embraced within the wide range of choice of subjects of taxation, which was an attribute of the sovereign power of the states at the time of the adoption of the Constitution, and which was reserved to them by that instrument. As the present levy has all the indicia of a tax, and is of a type traditional in the history of Anglo-American legislation, it is within state taxing power, and it is immaterial whether it is called an excise or by another name. See Barwise v. Sheppard, 299 U. S. 33, 36. Its validity under the Federal constitution is to be determined in the light of constitutional principles applicable to state taxation.”

A case quite similar in its facts to the case at issue was decided by the Supreme Court of Washington, Charles F. Ernst, as Director of the State Department of Social Security, Respondent, v. William Hingeley, Appellant, (Monte Cristo Hotel Company, Garnishee) Defendant, 11 Wash. 2nd, 171, excerpts of which are as follows:

“(2) In view of the language of the Supreme Court of the United States in the case of Mountain Timber Co. v. State, supra, in which the supreme court expressed the opinion that payments exacted under our workmen’s compensation act were occupation or license taxes, or at least partook of the nature of such taxes, and in the light of the decision of the supreme court in the case of Carmichael v. Southern Coal and Coke Co., supra, we are convinced that contributions exacted under the unemployment compensation act of this state must be held to be taxes, within the scope of the Federal bankruptcy act, and that the right of the state to collect such contributions is not affected by the contributor’s discharge in bankruptcy.

“We agree with Judge Duffy, presiding over the United States district court for the eastern district of Wisconsin, who, in re Oshkosh Foundry Co., supra, expressed the opinion that the word taxes, as contained in section 104 (a) of the Federal bankruptcy act governing priorities of payment, should not be construed in a narrow or restricted sense. The general purpose of the bankruptcy act is to give relief to unfortunate debtors, but at the same time, the purpose to preserve to the taxing authorities rights both as against the other creditors of the bankrupt and as against the bankrupt himself, clearly appears.”'

We have been unable to find any reported cases in this state wherein the same question was presented, but we find that in the case of State v. Iden, 71 Oh Ap 65, the Court upheld the constitutionality of the Unemployment Compensation Act for the sole reason that the contributions exacted are excise taxes, the Court saying at page 69:

“Is Iden deprived of his property without due process of law? Nearly every possible phase of a like complaint was passed upon by the United States Supreme Court in Carmichael v. Southern Coal & Coke Co., 301 U. S., 495, 81 L. Ed., 1245, 57 S. Ct., 868, wherein Mr. Justice Stone, pointed out that the Unemployment Compensation Act of Alabama, which is like unto our own, is an exercise of the state’s taxing power, and its validity is determinable upon ‘constitutional principles applicable to state taxation.’ Clearly the contributions exacted by the various state unemployment compensation acts are excise taxes, which state legislatures may impose upon a particular class, exempting others, for the benefit of the general welfare, and which the highest court in the land has for many years repeatedly said did not infringe upon constitutional limitations.”

It is therefore our conclusion that the funds involved in this action, being excise taxes, are not dischargeable under the Bankruptcy Act. The judgment will be reversed.

HORNBECK, PJ, WISEMAN, J, concur.