author: By McClelland, PJ.

text:
    MACLEAN, Plaintiff, v. J. S. MACLEAN COMPANY et, Defendants.
    Probate Court, Franklin County.
    No. 155750.
    Decided January 26, 1955.

      James M. Hengst, Columbus, for plaintiff.
    Harrison W. Smith, Columbus, for defendants.
   OPINION

By McClelland, PJ.

DECISION ON PETITION FOR DECLARATORY JUDGMENT

This matter comes before the court on a petition filed herein by Jane S. MacLean for declaratory judgment on certain matters set forth in the petition. She alleges that she is the surviving spouse of John S. MacLean, deceased, who died on November 20, 1952, intestate, leaving, in addition to the plaintiff, a daughter by the plaintiff, three children oy a former marriage, and grandchildren of said decedent who are the children of a deceased son of said decedent by said former marriage.

She alleges that she and the decedent were married on April l, 1922, and that Julie MacLean Nisongef is the only issue of said marriage; that the other defendants are the three children of said decedent by said former marriage, the children of a deceased son of said decedent by said former marriage, and the wife of said deceased son.

She further alleges that about August 30, 1940, decedent notified the plaintiff, in writing, that he had then and there left their borne and abandoned her with intent to live separate and apart, and that they did continuously reside separate and apart until his death.

She further alleges that on September 15, 1953, she was appointed and qualified as administratrix of his estate; that on December 2, 1953, she filed in the Probate Court an inventory and appraisement disclosing that the assets of the estate of said decedent amounted to $44,474.64, and that the inventory failed to disclose any stock of The J. S. MacLean Company as assets of the estate. She furth.er alleges that she is entitled to one-third of his estate in addition to the sum of $2500.00 exempt from administration and $3000.00 allowed by the appraisers of said estate for her support for one year.

She further alleges that on or after October 9, 1953, it came to her knowledge that on December 31, 1950, decedent without an adequate and full consideration in money or money’s worth, transferred by gift five nundred and twelve (512) shares of common capital stock of the defendant, The J S. MacLean Company, which shares then and there constituted the controlling interest in said corporation, to the defendants, Margaret M. Stratton. Flora M. Reeder, John Norman MacLean, and Eleanor H. MacLean, one hundred and twenty-eight (128) shares being given to each, all of the shares so transferred being then of the reasonable market value of $115,200.00, said gift being made upon the condition that John Norman MacLean and Eleanor H. MacLean forthwith purchase, at their appraised value, the shares then and there given to Margaret M. Stratton and Flora M. Reeder. She further alleges that she is informed and therefore avers that John Norman MacLean and Eleanor H. MacLean are now the owners of said five hundred and twelve (512) shares.

The plaintiff further alleges that the gift is testamentary in character, that it was made in contemplation of death and .was made with intent to deprive plaintiff of her distributive share in the estate of said decedent as provided by the statutes of descent and distribution.

Plaintiff further alleges that after deducting debts, estate taxes and costs of administration, the interest of plaintiff as surviving spouse in the estate of said decedent as set forth in the inventory and appraisement filed herein will be approximately $11,000.00, and that had the aforesaid shares of stock of The J. S. MacLean Company been retained by the decedent, at his death decedent’s estate would have been in excess of $180,000.00 and plaintiff’s share therein under the statutes of descent and distribution would have amounted to at least $60,000.00.

Plaintiff further alleges that the decedent made no provision for her in lieu of or to compensate her for the amount from which she was deprived by reason of the aforesaid alleged gift, and had not said alleged gift been made, the share of their daughter, Julie MacLean Nisonger would have been about $25,000.00 instead of about $6,000.00. No provision for the daughter was otherwise made.

Plaintiff further avers that the alleged gift was fraudulent and .void as to the rights of the plaintiff to a distributive share therein and that said shares of stock were, and are, in fact, assets of said estate; that plaintiff is entitled to a distributive share therein, and that the value thereof should be considered in computing the amount due plaintiff as surviving spouse under the statutes of descent and distribution; that said alleged gift of December 31, 1950, was of no force and effect when executed and was in fact testamentary in character and made in contemplation of death, and a mere device and subterfuge by which the decedent attempted to deprive the plaintiff of a right to a distributive share of said stock and chat the same is null and void and of no force and effect.

To this petition a joint answer was filed by The J. S. MacLean Company, Margaret M. Stratton, Flora M. Reeder, John Norman MacLean, and Eleanor H. MacLean, in which the truth of some of the allegations of the petition was admitted and in which others were denied.

When this matter came on for hearing counsel for the parties deposited with the court a stipulation which the court might consider as an agreed statement of facts upon which its decision should be rendered. In addition thereto, the deposition of Elizabeth Neff Fry, a daughter of the plaintiff by a former marriage, was offered and received. The testimony of this witness was confined largely to the notice of leaving the home and the contents of a certain letter, to which reference will hereinafter be made.

The testimony of Jane Neff Trucksie was also taken at the time of the hearing and to which reference will hereinafter be made.

At the hearing of this matter a certain document, marked plaintiffs exhibit “1” was admitted as evidence in addition to the stipulation of facts nereinbefore referred to. We will note' the essential elements of that exhibit. It recites that John A. MacLean has for many years been engaged in the manufacture of builders’ millwork, store and office fixtures, and that he has recently organized a corporation known as The J. S. MacLean Company, with a capital stock of $100,000.00, and is about to transfer the assets of his business to the corporation and receive therefore one thousand .(1000) shares of the capital stock of said corporation of the par value of $100.00 each, fully paid up. The contract recites that whereas certain differences and questions have arisen among the parties hereto, namely, John S. MacLean, J. H. MacLean, Archie A. MacLean, Flora MacLean Reeder and Margaret MacLean Stratton, largely by re'ason of the marriage of said John S. MacLean, and whereas John S. MacLean desires to make provision during his lifetime for his four children above named, the other parties thereto. The agreement was executed on the 6th day of January, 1923, and recites that John S. MacLean will transfer and assign or cause to be issued to said J. H. MacLean. Archie A. McLean, Flora MacLean Reeder and Margaret MacLean Stratton, each, one hundred and twenty-two (122) shares of the capital stock of The J. S MacLean Company. The remainder of the stock, to-wit, five hundred and twelve (512) shares to be issued to John S. MacLean. The third paragraph of said contract consists of the following language:

“Upon the death of said John A. MacLean or upon his complete and permanent retirement and withdrawal from the business and affairs of said corporation, his said stock shall thereupon become the absolute property of said J. N. MacLean and Archie A. MacLean, share and share alike. The said J. N. MacLean and said Archie A. MacLean shall pay to said Flora MacLean Reeder and Margaret MacLean Stratton each a sum equal to the value of one-fourth of the stock so received by them as shown by the book value, and the same shall be payable one-third cash, one-third in one year and one-third in two years, with interest payable annually, and the amount of the deferred payments shall constitute a lien against one-half of the stock so received, that is, one-fourth thereof in favor of Flora MacLean Reeder and one-fourth thereof in favor of Margaret MacLean Stratton. It is clearly and distinctly understood and agreed, however, that the time of the retirement and withdrawal of said John S. MacLean shall De determined by him, and, until he shall have given notice to the Board of Directors of said corporation, in writing, of his retirement and withdrawal, by letter addressed to said corporation at its then place of lousiness, he shall be held and considered as being still connected with the management and business of said corporation.”

The fourth paragraph of said contract consists of the following language:

“It is further understood and agreed by and among the parties hereto and each of them, that the stock presently to be assigned or issued to them and the stock to become the property of J. N. MacLean and Archie A. MacLean and the payments to be made to Flora MacLean Reeder and Margaret MacLean Stratton, upon the withdrawal and retirement, as aforesaid, or death of said John S. MacLean, shall be held to be an advancement to them and each of them out of the estate of said John S. MacLean."

• The fifth paragraph contains conditions and restrictions in regard to the sale or disposition of any shares of stock during the existence of the contract. The same is true as to paragraphs six, seven and eight.

Paragraph nine contains the agreement that in the event that J. N. MacLean or Archie A. MacLean should retire from the Company prior to the death of John S. MacLean, the board of directors or the stockholders might sell the business and assets of the corporation.

Paragraph ten of the agreement provides for the deposit of the stock certificates during the life of the agreement or until John S. MacLean retired from the business.

The foregoing are the essential provisions of the agreement bearing date of January 6, 1923. Subsequent to the death of Archie A. MacLean, a supplemental agreement was made to take care of certain contingencies arising by the death of Archie A. MacLean.

On November 24, 1950, John S. MacLean sent a letter to The J S. MacLean Company and the Board of Directors of The J. S. MacLean Company notifying them that in reference to the contract dated January 6, 1923, he desired that the provisions of the contract be carried out and that said contract be completely executed. He also uses the following language:

“I wish to completely and permanently retire and withdraw from the business and affairs of The J S. MacLean Company, as of the date hereof, and this letter constitutes notice thereof to you. Upon receipt hereof, your appropriate officers are authorized and directed to carry out the provisions of said contracts and to effect the proper transfer of my stock in The J. S. MacLean Company in accordance therewith.”

The stipulation contains the following facts: The plaintiff herein and John S. MacLean were married on April 1, 1922. On January 6. 1923. the contract hereinbefore referred to was executed. The four persons with whom Mr. MacLean made his contract of January 6. 1923, were children by a former marriage. It also contains the facts as to the incorporation of the company and the issuing of the shares of stock as hereinbefore stated. John S. MacLean was a member of the board of directors and president of said corporation from the date of incorporation until December 31. 1950. at which time the contract of January 6, 1923, was fully consummated. After the marriage of the plaintiff and John S. MacLean in 1922 they lived together as husband and wife in Columbus, Ohio. A daughter, Julie Mac-Lean Nisonger, was born of this marriage on January 28, 1923. After 1940 the decedent resided with his daughter. Flora MacLean Reeder, until 1949. He did not live with his wife after the year 1940. Gift tax returns as of December 31. 1950, were executed by John S. MacLean as donor and the four children as donees, by which the sum of $9,897.00 as a gift tax was paid by them. John S. MacLean died on November 20, 1952. aged ninety-four years.

We believe the foregoing are the essential facts upon which the court must render its decision.

Counsel for the plaintiS, in his memorandum filed with this court, gives five different reasons why the court should declare the transaction to be invalid. We will take them up in the order in which they are presented by counsel.

Counsel first says that the 1950 transfer was without consideration. On a careful examination of the contract dated January 6, 1923, this court finds that as between John S. MacLean and his four children the whole transaction resulted in a gift from him to his four children. He first distributed one hundred and twenty-two (122) shares each to his four children and retained five hundred and twelve (512) shares. The contract also provided that at his death or his permanent withdrawal from the company, the remaining five hundred and twelve (512) shares were to be distributed according to the contract, to his two sons but the sons were to pay to their sisters an amount of money equal to one-half of the value of the stock. Therefore, by virtue of the contract each of his four children by his first wife received one-fourth of the entire capital stock of The J. S. MacLean Company. There was no consideration passing from the children of John S. MacLean to him for the transfer of said stock to them. The contract recites that the transfer should constitute an advancement to them. An advancement is gift of a portion of a person’s estate to an heir and shall be charged against the distributive share of the heir upon the final settlement of the donor’s estate. It does not bear interest and is not recoverable from the donee.

Even though we consider the entire transaction to be a gift to his four children, the gift was subject to certain conditions to be performed by the donees thereof. The fact that conditions were attached does not destroy the qualities of a gift. Almost every gift to charity, either public or private, is subject to conditions put upon it by the donor. Many people make gifts for certain purposes, even private purposes, and attach conditions to the gift although they have given up possession and control of same.

As we have heretofore said, the whole transaction between Mr. Mac-Lean ana his children resulted in an equal division of his property among them and did constitute a gift. However, as between them and rhe donor, they did enter into a contract as to how the property should be handled up until the death of Mr. MacLean or his prior retirement from the Company. When Mr MacLean retired from the company the stock was distributed according to the terms of the contract and he then severed all connection with the company and yielded dominion and control over same and retained no interest, either directly or indirectly, in the shares which had been owned by him.

Counsel for the plaintiff claims that the parties are bound by their own admissions in filing a gift tax return. It is our opinion that they did file a gift tax return and are bound by their own admissions that the transfer of the stock to them was a gift and we so hold; yet, simultaneously therewith, a contract was made between the donor and the donees as to how the shares should be held during the lifetime of Mr. MacLean and how they should be disposed of at his death or when he retired from the company

We will now go to the third branch of the argument of counsel for the plaintiff, in which he claims that the transaction was collusive, testamentary and colorable. In considering this matter, the court has examined the treatise on the subject of gifts found in Vol. 24 of American Jurisprudence, at page 736. At Section 13, on that page, we find the following language:

“It is not always easy to determine whether or not an instrument is testamentary in character. It depends upon the intention of the donor. Where there is not only a donative intention, but also a complete divestment by the donor of all dominion or control over the thing given, the transaction is a gift inter vivos and not testamentary in nature. The fact that the instrument postpones the enjoyment of the subject matter until after the death of the grantor is not decisive that the instrument is testamentary in character. The test is whether the maker intended the instrument to have no effect until after his death or whether he intended it to transfer some present interest. If some interest vests at once in right, although the enjoyment of it is postponed, the instrument is not a will, and it is irrevocable.”

The author refers us to a number of court decisions to which attention is directed. In our opinion, the foregoing statement completely answers the contention of counsel for the plaintiff. Had Mr. MacLean’s death occurred prior to November 20, 1952, the result would have been such as to render the contract testamentary. However, the contract was fully performed during his lifetime. He surrendered all dominion and control of the property to his children. He retained no interest or no benefits in the corporate stock and therefore the gift became a complete inter vivos gift.

We now come to the second contention of the plaintiff that the transfer was invalid because the wife was a quasi-creditor. This is a most interesting and unusual question. In order to answer this question the court has examined a number of decisions of the Supreme Court of Ohio, the first of which is the case of Bolles v. The Toledo Trust Co., 144 Oh St 195, the first syllabus of which reads as follows:

“A husband may dispose of his personal property during his lifetime without the consent of his wife; but a husband may not bar his widow of her right to a distributive share of any property which he owns and of which he retains the right of disposition and control up to the time of his death.”

We have also examined the case of Mark v. Mark, et al., 145 Oh St 301, the fourth syllabus of which reads as follows:

“Where there is no invasion of a wife’s present, existing right to support, the fact that her husband made large inter vivos gifts to his children by a former marriage will not warrant the granting of a divorce on the ground that in so doing the husband has been guilty of either gross neglect of duty or extreme cruelty.”

Syllabus five of said case reads as follows:

“Failure to support, to constitute gross neglect of duty, must exist prior to or at the time the decree for divorce and/or alimony is rendered and may not be predicated upon a possible or probable failure of future support, nor does such possible or probable failure of future support constitute extreme cruelty within the purview of the statutes relating to divorce and alimony.”

The above decision is one in an action for divorce and we have referred to this decision for the reason that it reflects the court’s concept of the duty of the husband to support his wife.

The seventh syllabus of that case also recites that by the provisions of §7995 and §7997 GC, a husband is not required to provide other than present support for his wife.

Sec. 7997 GC, in force at the time of the transactions under investigation, provides as follows:

“The husband must support himself, his wife, and his minor children out of his property or by his labor. If he is unable to do so, the wife must assist him so far as she is able.”

Sec. 7998 GC consists of the following language:

“Neither husband nor wife has any interest in the property of the other, except as mentioned in §3103.03 R. C., the right to dower, and the right to remain in the mansion house after the death of either Neither can be excluded from the other’s dwelling, except upon a decree or order of injunction made by a court of competent jurisdiction.”

We have also examined the case of Neville v. Sawicki, 146 Oh St 539, syllabus two of which reads as follows:

“The rights which the General Assembly has granted a surviving spouse by the provisions of §§10509-54, 10509-55 and 10509-74 GC, are expectant interests only, dependent upon the contingency that the property, to which such rights attach, becomes a part of the decedent’s estate, which contingency does not occur if decedent has sold or given away the property during his lifetime.”

We must make this observation that the transfer of property during the lifetime of the decedent is attacked, not the right of the wife to present support. The inventory in this estate shows that Mr. MacLean left an estate of more than $44,000.00, and it is especially significant that neither the petition of the plaintiff, the stipulation of facts, nor the testimony. discloses any failure on the part of Mr. MacLean to provide present support for his wife. The record is entirely silent as to any divorce action having ever been filed against Mr. MacLean by the plaintiff, or any complaint having been lodged against him for failing to support, nor is there any evidence that he divested himself completely of assets so that he could not support his wife and minor child.

We again allude to syllabus seven of the case of Mark v. Mark, et al., hereinbefore referred to, in which Judge Turner says:

“The provisions of §7995 and §7997 GC, do not require a husband to provide other than present support for his wife.”

Our attention has also been called to the case of Rose v. Rose, et al., 34 Oh Ap 89, the first syllabus of which reads as follows:

“Where a husband and wife occupy extra-martial relations towards each other gifts of personal property by the husband may be a fraud upon the wife’s right to separate maintenance or to alimony.”

Then, on page 91 of the same report, we find the following language:

“It may be stated that the weight of authority sustains the proposition that, generally, the husband may make such disposition of his personal property during his lifetime by gift, voluntary conveyance, or otherwise, as he may wish, even though his widow is thereby deprived of the distributive share therein which would otherwise fall to her upon his death. Having such right, his exercise of it is not, in and of itself, a fraud upon his wife, who has no present interest in the husband’s personal property; she not being a quasi creditor of his.
“But this general rule does not apply where the parties have separated and have assumed extra-martial relations towards each other, for in such cases the wife may be regarded as a quasi creditor, and his gifts of personal property may then be in fraud of her right to separate maintenance or to alimony; * * *”

In examining the decisions cited by counsel for the plaintiff we find that most of those cases arise out of different facts than those which are now before this court. Most of those cases arise out of allegations that a spouse is attempting to fraudulently deprive a wife of the support to which she is entitled under and by virtue of the two sections hereinbefore referred to. Should those conditions exist, then a wife is a quasi-creditor; but there are no circumstances in the case now before us which would justify this court in holding that the plaintiff is a quasi-creditor of the decedent.

Counsel for the plaintiff has directed our attention to the case of Ward v. Ward, 63 Oh St 125. This case more nearly sustains the claim of the plaintiff than any other case which he has cited. This case was decided in 1900, the opinion being written by Judge Minshall. We also note a dissenting opinion written by Judge Spear, and this court is of the opinion that the dissenting opinion is much more logical than the original opinion. However, since that opinion has been - rendered, the Supreme Court has spoken at three different times, to which reference has heretofore been made. If the Ward case above referred to has not been explicitly overruled, it certainly has been inferentially overruled by the Supreme Court in the cases to which we have alluded. Mr. MacLean, in the transaction which is the subject of this litigation, may not have been guided by the highest code of ethics, but, in our opinion, the transaction was perfectly legal and did not constitute a fraud upon his wife. We have heretofore noted that neither the pleadings nor the stipulation of fact contain any allegation or information that he did deplete his estate as to render him unable to provide maintenance and support for his wife.

As we have said at the beginning of this decision, the questions presented are interesting and most unusual and it is the first time that this court has been called upon to consider such a situation and after giving it full and careful consideration, the court is compelled to deny the prayer of the petitioner and an order may be drawn accordingly.


source: Caselaw Access Project

author: Per CURIAM:

license: Public Domain

text:
    MILLS, Plaintiff-Appellant, v. MILLS et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22483.
    Decided December 15, 1952.
    Thompson, Hiñe & Flory, Cleveland, for plaintiff-appellant.
    Spieth, Spring & Bell, Cleveland, for defendants-appellees.
   OPINION

Per CURIAM:

This appeal is here on questions of law from a judgment entered for the defendants by the trial court upon motion for judgment on the pleadings and opening statement of counsel.

The case of the plaintiff-appellant is based on an alleged oral contract entered into between two brothers (one of whom is plaintiff and the other is one of the defendants) for the purpose of engaging in the building business. It is claimed that the contract was entered into in the year 1921, the purpose of the contract being that each should have equal and joint-control of the business.

The business was immediately incorporated, each of the brothers purchasing forty percent of the stock, the other twenty percent being sold to others outside the family. The business was carried on in that fashion until a subsequent verbal agreement is alleged to have modified the agreement of 1921 by permitting each of the brothers to transfer stock to members of their respective families, so long as equal control was maintained. This was done for tax purposes.

Some time in 1950, the defendant, or members of his family, who are also defendants herein, acquired by purchase a greater stock interest than was held by the- plaintiff and his family, whereby the defendant brother claimed to control the company. The instant action followed, attempting to enjoin the defendants from committing acts in violation of the 1921 agreement and to enforce its provisions.

The contention of the plaintiff is that his relationship with his brother by the contract of 1921 and its subsequent modification, was and is that of carrying on a joint enterprise through the medium of a corporation: and that such agreement as pleaded, states an enforcible cause of action. To the judgment entered, the plaintiff presents the following assignments of error:

1. The granting of the motion as to all defendants was error.

2. This is not the type of case to which the statute of frauds was intended to apply.

3. The agreement here was not barred by the statute of frauds as one “not to be performed within one year.”

4. The principle, that equity intervenes to render the statute of frauds inoperative when failure to enforce the contract will result in fraud and injury, requires a reversal.

We must give the allegations of the petition and the facts alleged in plaintiff’s opening statement their most favorable construction in considering whether or not a cause of action was stated, and whether the trial court was correct in entering judgment for the defendants.

A corporation cannot be the instrumentality through which stockholders may carry out a joint enterprise as their personal business. It is not to be denied that.a corporation may join its property or services with the property or services of another in furtherance of a common purpose tor their mutual profit and thus engage in a joint enterprise. (Bennett v. Refining Co., 144 Oh St 139.) But here all of the property involved in the business became that of the corporation and the business was managed by the directors. The whole enterprise was that of the corporation. The rights of stockholders must be determined by the rules regulating corporations. Facts sufficient to make out a joint enterprise or to bind the brothers to such a relationship were therefore not stated in the plaintiff’s petition and opening statement.

It must also be concluded, from the record, that the alleged agreement of 1921 which is the basis of plaintiff’s claim comes clearly within the statute of frauds. The fact that death or subsequent conduct might bring the enterprise or claimed relationship to a conclusion within the year does not change its nature. The purpose of the agreement was to engage in the building business over an extended period of time. In fact, the business, through the instrumentality of a corporation organized at the very inception of such enterprise, has continued successfully for over twenty-nine years. The contract here presented is not enforceable because of the statute of frauds.

Finding no prejudicial error in the action of the court in entering judgment for the defendants on the pleadings and opening statement of plaintiff, the judgment is affirmed. Exc. Order see journal.

SKEEL, PJ, HURD, J, KOVACHY, J, concur.


author: By STEVENS, J:

text:
    MATES, Plaintiff-Appellant, v. SPITZIG, d. b. a. SPITZIG REALTY CO. et, Defendant-Appellant, SCHEEFF et, Defendants-Appellees.
    No. 23153.
    Decided November 17, 1954.
    Ohio Appeals, Eighth District, Cuyahoga County.

      Ganger & Ganger, Cleveland, for plaintiff-appellant.
    Vincent C. Fornes, Cleveland, for defendant-appellant.
    George E. Rich, Cleveland, for defendants-appellees.
    (DOYLE, PJ, STEVENS, J, HUNSICKER, J, of Ninth District, sitting by designation in Eighth District.)
   OPINION

By STEVENS, J:

By his second amended petition filed in the Court of Common Pleas, plaintiff alleged:

That on November 1, 1950, he entered into a written contract with Gene and Beatrice Scheeff, as owners of certain property, whereby plaintiff agreed to buy and said defendants agreed to sell, said property tor $30,000.00.

That the contract was negotiated by defendant, Joseph A. Spitzig Company a licensed real estate broker, as agent for the defendants, Scheeff.

That in pursuance of said contract plaintiff paid to the Spitzig Company as agent for Scheeff, the sum of $1000.00 as a down payment.

That said contract stated that sales in an average weekly amount had been made during the years 1948, 1949 and 1950. which statements as taverage sales were material and untrue, and were relied upon by plaintiff

That plaintiff informed defendants, Scheeff, of the falsity of said representations and demanded the return of his money.

That defendants Scheeff agreed with plaintiff to cancel said contract of sale arid purchase, but that said defendants have refused to return to him said sum of $1000.00.

Plaintiff accordingly asked judgment against defendants Scheeff and Spitzig Company for $1000.00, interest and costs.

To that petition, Joseph A. Spitzig, d. b. a. Spitzig Realty Company, answered, admitting: that he was a licensed real estate broker: that the Seheeffs employed the Spitzig Realty Company as a broker to procure a purchaser for Scheeff's property: that the Spitzig Company entered into negotiations with plaintiff at a time prior to November 1, 1950. to sell the said property to plaintiff; that on November 1, 1950, plaintiff and defendants, Scheeff, entered into a written agreement for the purchase and sale of said property; that said contract was executed by reason of the efforts of the Spitzig Company: that plaintiff paid to defendants Scheeff, $1000.00 as a down payment under said purchase agreement, by delivering said sum to the defendant Spitzig Company; that plaintiff demanded the return of said money; and that defendant Spitzig Company refused to return the money to plaintiff. The Spitzig Company then denied generally the other allegations of plaintiff’s petition.

By way of cross-petition, against defendants Scheeff, the Spitzig Company alleged: that it was a licensed real estate broker and agent; that defendants, Scheeff, employed the Spitzig Company as agent and broker to sell their property and business located at 1380 Sloan Avenue, Lakewood, Ohio; that said defendants agreed to pay the Spitzig Company ten percent (10%) of the sale price thereof for its services; that on or about November 1, 1950, the Spitzig Company found plaintiff, Joseph F. Mates, as a purchaser, who, on said day. entered into a written contract with Scheeffs for the purchase of said premises, at a price of $30,000.00; that the commission upon the sale was $3000.00; and that Scheeffs have paid to the Spitzig Company the sum of $1000.00, but have failed and refused to pay the balance of $2000.00 although demand therefor has been duly made.

The cross-petitioning defendant then prayed that the petition of plaintiff be dismissed, and that the Spitzig Realty Company recover a judgment against Gene and Beatrice Scheeff for $2000.00, interest and costs.

For answer to plaintiff’s second amended petition, the defendants, Gene and Beatrice Scheeff, denied generally the allegations of the petition, and also denied generally the allegations of Spitzig Company’s cross-petition.

Upon trial, plaintiff’s evidence, by exhibits, established the execution of the contract of employment between Scheeffs and The Spitzig Realty Company and also the purchase and sale agreement between Mates and the Scheeffs. Also established was the relationship of principal and agent between the Scheeffs and The Spitzig Realty Company.

The evidence shows that Mates paid $1000.00 as a down payment on the purchase price of the property to Spitzig Company as agent for Scheeffs. It further appears that, because of material misstatements in the purchase and sale agreement, which were relied upon by Mates, the purchase and sale agreement was claimed to be terminated by agreement of the parties thereto, in which agreement Spitzig Company did not par-„ ticipate, and that Mates has been unable to recover the $1000.00 paid by him.

That the contract between Mates and the Scheeffs was negotiated by the Spitzig Realty Company is not denied. The rule of law relative to the liability for commission to a real estate broker or agent is stated in Carey v. Conn, 107 Oh St 113, as follows:

“1. Where a real estate agent or broker makes a contract with the owner of property ‘to find a buyer for his real estate at a commission of two percent for his services.’ and pursuant thereto performs such services by producing the buyer, and the owner enters into a written contract of sale with such buyer, the real estate agent or broker, in the absence of fraud, is entitled to his commission for his services.”

In the instant case, no claim of fraud is made concerning Spitzig Company’s services and, in the absence of such claim Spitzig, under the evidence here adduced, would be entitled to recover commission as stipulated in the contract.

If the rescission of the purchase and sale contract between Mates and Scheeffs was by agreement, then Mates was entitled to a return of the $1000.00 paid to Scheeff’s agent.

8 O. Jur. 2d, Sec. 35, Cancellation of Instruments.

Upon submission of the case to the jury, a verdict for defendants Scheeff was returned on both the petition of plaintiff and the cross-petition of Spitzig Company, the latter company however having been dismissed as a party defendant in Mates’ action for recovery of the down payment. Judgment was entered upon the verdict of the jury and an appeal on questions of law by plaintiff, being No. 23153 and an appeal on questions of law Dy defendant Spitzig Realty Company, being No. 23154, ensued.

During the pendency of the appeals, Joseph A. Spitzig died and Mary L. Spitzig. as his executrix, was substituted for him. Thereafter, the two appeals were consolidated under No. 23153 and as thus consolidated have been argued and submitted by the parties.

The judgment under review is reversed for the following prejudicial errors:

1. The judgment is manifestly against the weight of the evidence.

2. Refusal of the trial court to give cross-petitioner Spitzig Company's written requests to charge before argument. Nos. 2 and 3.

3. Failure to direct a verdict for Spitzig Company against Scheeffs, upon motion therefor.

4. Refusal to permit counsel for Spitzig Company to make a closing argument to the jury.

5. Charging the jury that Spitzig Company was entitled to recover against Scheeffs “unless something else occurred.” The record, as a matter of law. does not disclose the occurrence of anything else, which could have absolved Scheeffs from liability to the Spitzig Co.

6. Charging the jury: “If you find by a preponderance of all the evidence that the contract between the parties was thereupon by the parties cancelled, then your verdict would be for the defendants.” (Emphasis ours.)

That charge was the converse of what should have been said with reference to the right of Mates to recover from Scheeffs. If the parties mutually cancelled the purchase and sale agreement, then the amount paid by Mates to Scheeff or to their agent, should have been refunded to Mates.

As between Spitzig Company and Scheeffs, there is nothing appearing in this record which even hints at a mutual cancellation of their contract.

7. Failing to provide the jury with sufficient forms of verdict to cover the different verdicts possible under the evidence.

Three forms of verdict were given to the jury:

1. In favor of Scheeffs against plaintiff and cross-petitioner Spitzig Company.

2. In favor of plaintiff, Mates, against Scheeffs for $1000.00.

3. In favor of Spitzig Company against Scheeffs for $2000.00.

No form of verdict was given the jury, whereby it could return a verdict in favor of plaintiff, Mates, against Scheeffs, and in favor of Scheeffs against Spitzig Company, nor was a form furnished to permit return of a verdict in favor of Spitzig Company against Scheeffs, and in favor of Scheeffs against Mates.

Such failure constituted prejudicial error.

Hoge v Soissons, 48 Oh Ap 221.

It is our conclusion that, as a matter of law, Joseph A. Spitzig, d. b. a Spitzig Realty Company, was entitled to recover $2000.00 from defendants, Gene Scheeff and Beatrice Scheeff as commission for real estate services rendered. The judgment in favor of Scheeffs against Spitzig Company is reversed, and this court will enter the judgment therefor which the trial court should have entered, to-wit: Judgment for Spitzig Realty Company against Gene and Beatrice Scheeff for $2000.00 and interest.

As to the claim of the plaintiff, Mates, the evidence is sufficiently in conflict to require submission of that claim to the jury, under proper instructions.

Accordingly, the judgment in favor of defendants Gene and Beatrice Scheeff upon the claim of plaintiff, Mates, is reversed because contrary to law and manifestly against the weight of the evidence, and the cause is remanded to the Court of Common Pleas for further proceedings according to law. upon that claim.

All at the costs of defendants, Scheeff. Exc. O. S. J.

DOYLE. PJ, HUNSICKER, J, concur.


author: By THE COURT.

text:
    THOMAS, Plaintiff-Appellee, v. DYE et, Defendants-Appellants.
    Ohio Appeals, Second District. Franklin County.
    No. 5046.
    Decided November 18, 1954.

      James M. Hengst, Columbus, for plaintiff-appellee, and for Edward S. Thomas, defendant-appellee.
    Maugan & Vacca, Columbus, for defendants-appellants.
   OPINION

By THE COURT.

This is an appeal on questions of law and fact from a declaratory judgment in behalf of plaintiff. The action was to determine the ownership and right to personal property and an account in The Buckeye State Building and Loan Company, later The Buckeye Federal Savings and Loan Company, in the name of Oleta Sinclair Dye. The account at the time of the trial amounted to about $7000.00. The husband of Oleta Sinclair Dye was Clair Albert Dye. both of whom are deceased. Defendant Flora Elder Dye was the second wife of Clair Dye, Eleanor Thomas and John Thomas were niece and nephew of Oleta Sinclair Dye, and their family and the Dyes were very close. Eleanor was several years older than John. Oleta Sinclair died on April 21, 1924. She left her husband as her sole neir at law and no will. When the last deposit was made on the above mentioned account it was only of the amount of $1857.65. Sometime, probably 1921 or earlier, Mrs. Dye learned that she was suffering from cancer and no doubt this knowledge of impending death was in her mind and purpose when she prepared the written instrument in 1922, hereinafter referred to, and made the statement appearing in the record. The savings account was opened in 1914 about the time that Mrs. Dye received $178.75 as final distribution in the estate of James H. Sinclair, a brother, which proceeds were, probably, the initial deposit. The increase in the amount of the deposit was largely by reason of the accumulation of interest thereon.

Edward Thomas and Tempe S. Thomas, a sister of Mrs. Dye, were father and mother of Eleanor and John Thomas. Subsequent to Mrs. Thomas’ death, probably in 1943, a letter, or an instrument, which is hereinafter set out, Plaintiff’s Ex. A, was found among the personal effects of Mrs. Thomas.

Eleanor Thomas was educated in the Columbus School for Girls and in Ohio State University, died after she had completed a course there, and was awarded her A. B. degree posthumously. She died April 25, 1929, intestate. leaving as her sole heirs at law, John S. Thomas, plaintiff, and Edward S. Thomas, named as a defendant. Clair Dye died testate in 1949 leaving his estate to his second wife, Flora Elder Dye.

The action is instituted by John S. Thomas. The petition avers that,

“On October 18, 1922, Oleta Sinclair Dye executed a declaration of trust in writing,” a copy of which is incorporated in, the petition, “wherein and whereby she declared herself to hold in trust all property of every kind and description, the title to which was then vested in her, for her use and benefit during her lifetime; after her death, for the use and benefit of her husband, Clair Albert Dye, during his lifetime, then for the education of Eleanor Thomas and John S. Thomas; any residue thereafter to be divided equally between said Eleanor Thomas and John S. Thomas.”

The writing referred to in the petition as a declaration of trust and introduced as Plaintiff’s Ex. A, is as follows:

“October 18, 1922
“Tempe and Edward:
“Clair has assured me that he will see that Eleanor and John are educated. But in case anything prevents his doing so, I want to leave this as my last will and 1 wish all my money and possessions to be used to educate and take care of Eleanor and John * * * My jewelry to Eleanor * * *
“In case Clair remarries (which I hope he shall and have a home) I want Eleanor to have my linen, silver, china and the old furniture, which belonged to Mother. They would not mean anything to a stranger — the Bureau that Bella has was given to me by Mother and was to return to me after Bella was through with it.
“My share of our possessions to be used by Clair as he sees fit and then at his death to be given as above stated to educate Eleanor first and if any left educate John — and residue if any, divided equally. Have expressed my wishes to Edward, personally and hope he will see that they are carried out.
/S/ Oleta Sinclair Dye”

The petition sought a judgment declaring that Oleta Sinclair Dye established a trust in all of her property including the running stock account; that she, originally, and her husband, Clair Albert Dye and brother Edward S Thomas successively were trustees thereof; that the trust has terminated according to the provisions thereof and that the plaintiff, John S. Thomas, and defendant, Edward S. Thomas, are entitled to three-fourths and one-fourth, respectively, of said running stock account and any other property in said trust. The prayer was that the Building and Loan Association be instructed to pay the proceeds of the stock account to the aforesaid parties in the proportions to which it is alleged they are entitled.

William L. Maugan, administrator of the estate of Oleta Sinclair Dye, deceased, was made a party defendant and answered. He sets up nine defenses, the effect of which is to deny the averments of the petition and to require a declaratory judgment to the effect that Oleta Sinclair Dye did not establish any trust as alleged, that the instrument heretofore quoted is not a will, a trust or a gift, that the running stock account upon the death of Oleta Sinclair Dye passed by the statute of descent and distribution to Clair Albert Dye and that the administrator of her estate is entitled to the proceeds of the account.

The widow of Clair Albert Dye, his second wife, Flora Elder Dye, answered in nine defenses asserting the same subject matter by way of defense and asking the same relief as in the answer of the administrator of the estate of Oleta Sinclair Dye.

Defendant, Edward S. Thomas, answered substantially in the terms of the petition and asked like judgment. Flora Elder Dye as executrix, of Clair Albert Dye, deceased, answered substantially as in her individual answer Plaintiff replied in denial to the answer of Flora Elder Dye, individually, and as executrix, and replied in like manner to the answer of the administrator of Oleta Sinclair Dye.

Upon the issues thus made, the cause came on for hearing to Honorable John R. King, and the testimony was concluded before him, but he died before an opinion was rendered. The cause then was assigned to another Common Pleas Judge and the record is made up of the testimony taken at both hearings.

The appeal is on questions of law and fact and we must pass de novo upon the issues joined, evaluate the testimony and determine its probative effect.

Hereafter we refer to Oleta Sinclair Dye as Mrs. Dye; to Clair Albert Dye as Dean Dye, as he is frequently spoken of in the record; to Flora E. Dye as the second Mrs. Dye.

Counsel for the parties have filed most comprehensive and voluminous briefs, discussing the subject of trusts at great length and with many citations. We will not cite such extended authority because we believe the principles upon which we determine the case are well established.

A trust in personal property may be established orally, or in writing, by the declaration that the settlor holds the property in trust for another or by naming another trustee. The declaration must be a completely executed transaction in praesenti. Bruer v. Johnson, 64 Oh St 7, citing Perry on Trusts, Section 86. An express trust is raised and created by the act, consent, and mutual understanding of the parties. Faurot v. Neff, 32 Oh St 44; Ulmer v. Fulton, 129 Oh St 323. If the trust is created, although it is designed to operate after the death of the declarant it may be effective, Bruer v. Johnson, supra, and of course, a trust can be created by testamentary disposition of real or personal property. The intention to create a trust must be unequivocal and acts in furtherance of the purpose must also appear. If the settlor declares himself trustee, of property for a beneficiary, the declaration must be complete and in praesenti and the creation of the trust must amount to a complete transfer of the equitable interest Lamkin v. Robinson, 16 Oh Ap 440. Neither the beneficiaries nor the trustee need be notified of the creation of the trust, although lack of notice to the trustee may be of some weight as evidence against an intention to create a trust on the part of the settlor, 40 O. Jur. 165. The burden of proving an oral express trust is upon the one alleging its existence, Gano v. Fisk, 43 Oh St 462; Merchant v. German Building & Loan Company, 1 Oh Ap 47. The proof of the creation of the trust must be established by clear and convincing evidence, both as to declarations, terms and the conditions of the trust. Russell v. Bruer, 64 Oh St 1; Boughman v. Boughman, 69 Oh St 273; De Lacroix v. L. E. Concrete Steel Company, 8 O. N. P. N. S. 489; Held v. Myers, 48 Oh Ap 131. Prior or contemporary declarations of the settlor are competent to prove an oral trust, out subsequent declarations are not admissible, for at that time the settlor has no interest in the trust res, and to permit his subsequent declaration would be too serious a menace to security of titles. Harvey v. Gardener, 41 Oh St 642. This case treats of real property but the principle announced is applicable to a trust where the res is personal property.

Having stated the principles of law which must shape our determination of the issues, we consider the evidence and will set forth practically all of the testimony, excepting some corroborating circumstances, tending to prove the creation of the trust pleaded.

Sec. 8617 GC, effective August 14, 1921, does not materially affect the law of this case. If it did, it would control only the construction of plaintiff’s Ex. A. and not the alleged oral declarations which were probably made prior to August 14, 1921. Nor is there any question of the right of the settlor of a living trust to retain the res during life and to alter, amend or revoke the trust. Union Trust Co. v. Hawkins, 121 Oh St 159; Bolles v. Toledo Trust Co., Exr., 144 Oh St 195.

As we have heretofore indicated, upon the pleadings the claim of the plaintiff is based entirely upon the written instrument. Plaintiff’s Ex. A, and the first hearing proceeded entirely upon that theory. At the second hearing, the plaintiff relied considerably upon and emphasized the claim that the trust was created orally and prior to the writing of Exhibit A.

We are satisfied that if any trust is created, it must be determined by the language of Exhibit A. The other testimony is entirely inadequate to support the claim of an oral declaration oí a trust.

If Exhibit A were a will and if it incorporated a valid living trust, theretofore created, it would be admissible as corroborative of the creation of such trust. If Exhibit A purports to create a living trust and is ambiguous the oral testimony as to the declarations of Mrs Dye as to her intention and purpose would be admissible.

The writing, Exhibit A, in our judgment is testamentary in character, is not ambiguous as it relates to any trust property and establishes no trust. It could not become effective as a will because it was not properly executed. It undertook upon a stated condition to make disposition of all of the estate, money and possessions of Mrs. Dye. Upon the marriage of Clair Dye certain effects were given to Mrs. Morrow.

The first sentence of the instrument is vital: “Clair has assured me that he will see that Eleanor and John are educated ” Then follows significant language: “But in case anything prevents his doing so, I want to leave this as my last will and I wish all my money and possessions to be used to educate and take care of Eleanor and John.” (Emphasis was made by the writer of the instrument.)

This instrument indicates complete confidence of the writer that her husband would see that Eleanor and John were educated. If he did so, her prime purpose was consummated. If the instrument had been probated as a will, its dispositive provisions, at least as to everything but household effects, were effective only if the husband, Clair Dye, failed to do that which was enjoined upon him. His inability to educate Eleanor and John is the condition upon which she leaves “this as my last will.” Had Dean Dye failed to meet his obligation, or how the provision for Clair and disposition of property upon his marriage or upon his death would be construed, if the instrument had become effective as a will, we need not discuss.

The possibility of holding the account and other property of Mrs. Dye in trust would have arisen only if, at the time Exhibit A became effective, Dean Dye had not then fully performed his obligation to educate Eleanor and John, and it could only have been so held pending compliance with his obligation.

Upon the most favorable view of the creation of a trust, the first question to determine is whether or not Dean Dye complied with his assurance to Mrs. Dye that he would see that Eleanor and John were educated. Whether Dean Dye educated Eleanor by reason of any understanding with his wife does not appear except by circumstances However, it is undisputed that he did educate her, not only at the Columbus School for Girls, but during her full course and up to graduation at Ohio State, and until her death. On the question of the education of John the record is silent and we may not conclude that Dean Dye did not perform any obligation which he had in that respect. The failure on the part of Dean Dye to observe these conditions was required to be established by the plaintiff. It does not appear. It is certain that he did not resort to any of the res in the so-called trust to educate either of the Thomas children

We have given full consideration to Plaintiff’s Exhibit A, independent of its testamentary character, as an expression of purpose or declaration of Mrs. Dye as it might tend to establish a living trust and find it entirely inoperative to that effect.

What is the oral testimony purposed to establish the trust?

Delma Foulk, a very dear friend of Mrs. Dye, testified as taken from the record of the first hearing, that preliminary to a proposed trip of Eleanor to California,

“Well, she (Mrs. Dye) told me that she had some money. I think she said she inherited it from some of her brothers and that she intended that for the education and she set it aside for them. .She didn’t tell them where or anything else.”

And further the same witness,

“Yes, Mrs. Dye and I were talking one day, several times for that matter, and she told me that she had put money aside for the education of Eleanor and John Thomas. Now she didn’t tell me where she had it, but she told me that she had arranged with Mr. Dye for the education of the children and that she felt safer on that account.”

These are statements of a past transaction but do have the effect of identifying the savings account as the fund to which reference was made. The writing, Plaintiff’s Exhibit A, is confirmatory of the manner and condition upon which Mrs. Dye eventually set the fund aside.

Later, this same witness testified to a conversation probably in 1929, five years after the death of Mrs. Dye, in the presence of Mrs. Morrow and possibly Dean Dye. “She (meaning Mrs. Foulk) said, ‘Why, 1 was going abroad and I thought I would like Mrs. Morrow to go with me.’ She said, T can’t go, will you take Eleanor.’ I said, ‘Yes.’ She said, ‘Well, Mr. Dye would probably send Eleanor as a part of her education.- She hadn’t used the education fund, and they talked together and later called me in to say that they had decided to do it.” Later the witness said that Dean Dye had told her to go ahead and complete the arrangements to take Eleanor on the trip to Europe, and pursuant to that, he gave her a check for a deposit for the trip.

It should be noted, that there is no showing that Dean Dye. Eleanor, nor any other person used any of the money from the savings account in the name of Mrs. Dye. The check which was given for Eleanor’s trip to Europe evidently was Mr. Dye’s personal check. All of which is corroborative that he personally, independent of any trust fund, was assuming the obligation of educating Eleanor.

There is some question, on the record, whether Dean Dye was present during the conversation heretofore stated to have taken place in his presence. But it is urged that what Mrs. Morrow said about the education fund was binding upon Dean Dye because she was his agent. There is no showing that would justify the conclusion that Mrs. Morrow had any authority to bind Dean Dye by any statement which she made. She was related to him, and was his housekeeper but this is entirely inadequate to show the relationship of principal and agent. Much of the testimony is directed to the close relationship which at all times existed between Dean Dye, Mrs. Dye and the Thomas family and particularly, Eleanor, and the fact that Dean Dye was educating Eleanor and assisting her in other ways which occurred not only before but after the death of Mrs. Dye. As we view this testimony, it is probative only of the fact that the trust never came into existence upon the most favorable view of the evidence and the written instrument.

We recognize that it would be desirable, if it could be accomplished, that Mrs. Dye’s estate pass to those who were related to her rather than to a stranger to her blood. However, we cannot set aside the principles which control the creation of a trust in order to accomplish what might be a laudable purpose.

Giving full credence to all of the evidence, written and oral, it fails to establish a trust in several essentials.

There was no declaration of Mrs. Dye in praesenti in clear and unmistakable terms of an intention to become trustee for the benefit of Eleanor and John and to stand in that fiduciary relationship to them, or that Dean Dye should succeed her as trustee. Ulmer v. Fulton, Supt., 129 Oh St 340; 65 C. J. S. 231.

There were no acts in furtherance of a declaration of trust. The account at all times was in the name of Mrs. Dye without any change indicating an equitable interest of beneficiaries therein. Lamkin v. Robinson, supra In Jones v. Luplow, 13 Oh Ap 428, where the claim of a trust was sustained, it appeared that on the day that the account, the subject of the trust, was opened, the settlor declared her purpose to deposit the money for the benefit of cestuis que trust and the account was carried in the name of “Meria Luplow in trust for Richard and Maria,” the beneficiaries.

The testamentary instrument in terms is inconsistent with the theory that Mrs. Dye intended to relinquish her full right to control both legal and equitable interests in the savings account prior to her death.

The declaratory judgment in this court will be in conformity to this opinion.

In probability, the fact that there had been no administration of Mrs. Dye’s estate will require that the savings account and any other personal effects which should be administered in her estate should be turned over to her administrator and eventually distribution worked out by and through that administration.

Judgment accordingly.

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


author: By KLOEB, District Judge.

text:
    PRUDENTIAL INSURANCE COMPANY OF AMERICA, NEWARK, NEW JERSEY, Plaintiff, v. OLT et, Defendants.
    United States District Court N. D. Ohio, W. D.
    No. 7192.
    Decided September 24, 1954.

      Ernest C. Schatz, Toledo, for plaintiff.
    Dan H. McCullough, Toledo, for defendant Dorothy Olt Gerson.
    Richard B. Swartzbaugh, Toledo, for defendant Agnes Olt.
   OPINION

By KLOEB, District Judge.

On May 18, 1954, plaintiff insurance company filed its complaint in interpleader under the provisions of Title 28, Sections 1335, 1397 and 2361. It appears from the complaint that in January, February and March of 1934, plaintiff issued five policies of twenty-year endowment life insurance on the life of defendant Dorothy Olt Gerson, then known as Dorothy J. Olt, and these policies with accrued dividends now amount to the sum of $783.30. This sum of money, by authority of the court, has been deposited with the clerk of courts pending an award to the proper claimant.

It is undisputed that defendant Agnes Olt, who is the mother of defendant Dorothy Olt Gerson, made application for these policies on behalf of her minor child and subsequently and up to the date of maturity of the policies paid the weekly premiums thereon.

Answers were filed by the defendants, mother and daughter, and by defendant Richard B. Swartzbaugh, who claims to be entitled to a fee for legal services rendered to defendant Agnes Olt.

A motion for summary judgment was filed by defendant Dorothy Olt Gerson on June 11, and a similar motion was filed by defendant Agnes Olt on June 17. Both motions are supported by memoranda as required by the rule.

Defendant Dorothy Olt Gerson claims the proceeds of the policies by virtue of the fact that she is the named insured in the policies and that the policies have now endowed under the terms and conditions thereof.

Defendant Agnes Olt claims the proceeds of the policies on two grounds, one, under a claimed oral agreement entered into between herself and her daughter while the latter was a minor, which claimed agreement was reaffirmed after the daughter had reached the age of majority and, two, on the ground that she applied for these policies on behalf of her daughter and subsequently paid all of the weekly premiums thereon.

In paragraph 10 of her answer, defendant Agnes Olt states the following:

“Defendant Agnes Olt further says that she has paid each of the premiums called for under each of said policies for the period of twenty (20) full years pursuant to a verbal agreement between herself and her said daughter whereby said daughter was to be entitled to the proceeds thereof if she survived her said mother, defendant Agnes Olt. but that the latter was to be entitled to the proceeds thereof if she survived her said daughter. * * *”

In her memorandum in support of her motion for summary judgment defendant Dorothy Olt Gerson cites and relies upon the Ohio statute of frauds, §1335.05 R. C. (§8621 GC), which requires, among other things, that an agreement that is not to be performed within one year from the making thereof must be in writing and signed by the party to be charged therewith.

Defendant Agnes Olt counters the statute of frauds by asserting that the agreement is to be terminated upon a contingency and that there is no time fixed for it to run and, therefore, it does not come within the statute.

We are of the opinion that the terms of the contracts between plaintiff company and defendant Dorothy Olt Gerson govern and that, therefore, there is no necessity either to rely upon or strive against the provisions of the statute of frauds.

In each of the policies we find the following:

“The Prudential Insurance Company of America
“In Consideration of the payment of the weekly premium herein specified, on or before each and every Monday in every year during the continuance of this Policy until twenty full, years’ premiums shall have been paid, or until the prior death of the Insured, will pay at its Home Office, Newark, New Jersey, the amount of insurance herein specified, on the twentieth anniversary of this Policy, to the Insured, if living on said date, * * * subject to the ‘General Provisions’ on the second page hereof, which are hereby made part of this contract.”

On the second page of each of the policies we find the following provision:

“Modifications, etc. — No condition, provision or privilege of this Policy can be waived or modified in any case except by an endorsement hereon signed by the President, one of the Vice Presidents, the Secretary, one of the Assistant Secretaries, the Actuary, the Associate Actuary or one of the Assistant Actuaries. No modification or change shall be made in this Policy except such as is in accordance with the laws of the State or Province in which the same is issued. No Agent has power in behalf of the Company to make or modify this or any other contract of insurance, to extend the time for paying a premium, to waive any forfeiture, or to bind the Company by making any promise, or by making or receiving any representation or information.”

No written modifications of the policies are asserted by defendant Agnes Olt. It. therefore, follows that the only one who would have a right under the poiicies to enforce payment of the endowments would be the named insured, the contracts being between her and the company. Claim number one, therefore, of defendant Agnes Olt appears to be without merit.

What rights has defendant Agnes Olt, who concededly paid the premiums, to a lien on the endowment funds to the extent of the premiums paid by her?

In the case of Septer v. Septer, 3 O. O. 359, paragraph 6 of the syllabus, we find the following:

“One who has an insurable interest in the life of another and causes an insurance policy to be issued upon that person and does not make himself the beneficiary but pays the premiums thereon, has an equitable lien upon the proceeds of that policy to the extent of the money invested with interest thereon.”

On page 363 of the opinion by Judge McClelland, we find the following:

“In the case now before this court we have found that the daughter caused the policies to be issued on the life of her father, that she paid the premiums on them until the time of his death and was the only one apparently who knew anything about the policies and who had the policies and other documents pertaining thereto at the time of the insured’s death.”

On page 364, the following:

“* * * It is our opinion that when a person having an insurable interest in the life of another causes an insurance policy to be issued upon that person and does not make himself the beneficiary but who pays the premiums thereon, has an equitable lien upon the proceeds of that policy to the amount of money which he has invested with interest thereon. * * * “We therefore conclude that Marquerite Schneider has an equitable lien upon the proceeds of the last three policies in the amount of the premiums which she has expended therein, with interest thereon from the date of expenditure, and any surplus over and above that amount of money properly belongs to the administratrix of the decedent’s estate and is to be distributed under the order of the court.”

In 11 O. O. 518, in the case of In re Duez’ Estate, we find an opinion by Judge Chittenden, of the Lucas County Probate Court, wherein paragraph 3 of the syllabus reads as follows:

“A grandson of the decedent, to whom the proceeds of an insurance policy have been paid for the reason that he had been paying the premiums, must surrender the amount received to the executor of the estate.”

Judge Chittenden cites the case of Septer v. Septer.

In 166 A. L. R. at page 91, we find the general rule stated as follows:

“Lien on or reimbursement from proceeds.
“Although it is generally held that the mere fact that one has paid premiums on a policy on the life of another, or has made expenditures on behalf of the insured or for his or her burial, gives such person no right to maintain an action under the facility of payment clause of the policy, it is generally recognized that such person is not without some remedy to recover the amount thus expended. For one thing, there is authority to the effect that a person paying premiums on the policy, or making expenditures on behalf of the insured or for his or her burial, has an equitable lien on the proceeds of the policy for the amount thus laid out.”

We are of the opinion that the defendant Agnes Olt has an equitable lien on the proceeds of these endowment policies to the extent of the premiums which she has paid on these policies with interest, and that should there be an excess over and above such premium payments and interest it should be paid to defendant Dorothy Olt Gerson.

In view of this situation, the motions for summary judgment are overruled.

If plaintiff insurance company can be permitted to compute the amount of the premiums paid with interest, and counsel can stipulate as to that sum, then there would be no necessity for further consideration by the court. If, however, an agreement cannot be arrived at, then the case may come on in due course for the presentation of evidence on this question.

An order overruling the motions is drawn accordingly.


author: By PHILLIPS, J.

text:
    GAULT, Plaintiff-Appellant, v. HALL, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3531.
    Decided October 7, 1952.
    Leo Waldman, Youngstown, for plaintiff-appellant.
    A. L. Burgstaller, Wilson & Wyatt, Youngstown, for defendant-appellee.
   OPINION

By PHILLIPS, J.

Plaintiff appealed on questions of law from a judgment of the court of common pleas entered upon a jury verdict returned for defendant on plaintiff’s petition and for the plaintiff on defendant’s cross-petition filed in plaintiff’s action against defendant to recover damages for personal injuries sustained about 8:30 o’clock on the rainy morning of October 12, 1950, allegedly as the result of the carelessness and negligence of the defendant in the operation of a motor vehicle.

Oakwood Avenue is an admitted improved, much travelled, duly dedicated and accepted main thoroughfare of the city of Youngstown, which extends in a general easterly direction within the corporate limits thereof, and is intersected at right angles by Rhoda Avenue, another improved, much travelled, duly dedicated and accepted highway thereof, on which a stop sign is situated about 45 or 50 feet north of the north curb of Oakwood Avenue.

Plaintiff testified that on the day and at the hour stated she was operating an automobile at “15 or 25 miles” an hour, in a westerly direction on Oak-wood Avenue, at the place it intersects Rhoda Avenue, within the corporate limits of the City of Youngstown.

(Further plaintiff testified that on the day and at the hour stated she was operating an automobile at 20 to 25 miles an hour in a westerly direction on Oakwood Avenue;) that when she was about one or one and one-half car lengths from the intersection of Oakwood Avenue with Rhoda Avenue she looked to her right, or north, along Rhoda Avenue and observed no traffic approaching from the west on Rhoda Avenue within a distance of 50 feet; that as she arrived within a car length of the intersection she observed defendant’s automobile travelling in a southerly direction on Rhoda Avenue near such stop sign at which defendant did not stop; that she realized that an accident was imminent, and not having time nor space in which to stop her car it swerved to the left, or south, of Oakwood Avenue at which time the cars of the respective parties collided each with the other a short distance south of the center line of Oakwood Avenue and north of the center line of Rhoda Avenue.

There is evidence that as the result of such collision plaintiff lost control of the automobile she was operating causing it to strike a telephone pole situated on the southwest corner of the intersection of such streets, and together with defendant’s automobile to come to rest in the front yard of a property situated on that corner of those streets.

Likewise there is evidence that defendant stopped in obedience to the stop sign, to which reference has been made, saw plaintiff proceeding westerly on the right side of Oakwood Avenue, at which time plaintiff’s automobile was about 116 feet from the intersection of Oakwood Avenue, and proceeded into the intersection in low gear at about five miles an nour.

By two of her assigned grounds of error plaintiff contends that the trial judge erred to her prejudice in refusing to admit into evidence a drawing of a scene of the accident because it was not drawn to scale; and that the verdict of the jury and judgment entered thereon are against the manifest weight of the evidence and contrary to law for the reason that defendant’s version “is completely incompatible with her claim that she stopped.”

The trial judge did not err prejudicially to defendant in refusing to admit such drawing in evidence for the reason that it was not claimed to be an accurate portrayal of the scene of the collision, nor that it was agreed that it was substantially correct.

In cross-examining plaintiff’s husband, divorced subsequent to the time of the collision to which reference has been made, who testified in chief for plaintiff, counsel for defendant interrogated such witness as follows:—

“When did you file your divorce petition against Mrs. Gault?
“How many times did your wife go away and leave you before the final time when you filed your petition?
“Isn’t it a fact that she walked out on you twice?”

The trial judge sustained plaintiff’s objection to those questions and explained to counsel the proper line of questioning to be pursued.

Continuing such cross-examination counsel for defendant asked:—

“When did she come back to live with you?
“You filed a divorce petition against your wife — on June first 1951? And didn’t you claim that your wife was - - - guilty of extreme cruelty and gross neglect of duty?”

The trial judge sustained plaintiff’s objection to those questions and admonished the jury that such questions had nothing to do with the action being tried and to banish such questions from their minds.

Continuing his examination of such witness counsel for defendant asked:—

“And didn’t you say in the petition — that as a ground for your divorce you said that she had gone away on two occasions before June of 1951 as a basis for your divorce?
“What was the extreme cruelty your wife was guilty of with you?”

Objections to all of such questions were sustained by the trial judge.

Counsel for plaintiff then tendered as an exhibit the petition for divorce filed in court by witness Gault, and the journal entry granting a divorce to him, which the trial judge refused, to admit.

By assignment of error and brief plaintiff contends that such questions were improper, irrelevant,. immaterial and highly prejudicial to her; and that the action of the defendant’s counsel constituted misconduct of defendant’s counsel which inflamed the jury and prevented her from having a fair and impartial trial; that even though plaintiff’s objections to such questions were sustained and the jury cautioned and admonished by the trial judge concerning them that the rulings, admonitions and caution of the trial judge “could not. and did not, eradicate what the jury had heard” and did not “cure the error,” the “damage had been done,” and counsel for defendant was guilty of “misconduct for which" plaintiff is entitled to a new trial; that “when a disparaging course of cross-examination, unjust to the accused and uncalled for by the circumstances of the case, is indulged in, prejudicial error will be presumed”; and cites the cases of Macci v. Aldred, 40 Abs 287; Miller v. Hesseldon, 115 Oh St 266; and Smith v. State of Ohio, 125 Oh St 137. The quoted remarks are taken from the above citations.

By brief counsel for defendant contended that in the voir dire examination of the jury counsel for plaintiff asked the jury:—

“If it should develop during the course of the trial that evidence would be introduced that since the occurrence of this accident, Mr. and Mrs. Gault had become divorced, would that fact have any effect in your determination of the issues?”
The voir dire examination of the jury was not reported, but on oral argument counsel for plaintiff conceded that the quoted statement charged to him was substantially correct.

On direct examination of plaintiff’s husband her counsel asked him the following questions and received the following answers:—

“Q. What is your name, please?
“A. Donald Gault.
“Q. You were the husband of Dorothy Gault, the lady seated in the room here?
“A. That is right.
“Q. And referring back to October 12. 1950, where were you living?
“A. 45 North Meridian Road, Youngstown.
“Q. Do you recall the morning of October 12 on which day there was an accident in which your wife was involved?
“A. Yes, I do.
“Q. Incidentally, since that time what is your marital status as far as Mrs. Gault and yourself is concerned?
“A. We are divorced.
“Q. You have been divorced. Where were you on that morning; had you been home early that morning?”

In view of the state of the record submitted to us we can not charge defendant’s counsel with misconduct.

“The answer to a question in chief, however positive, does not preclude the adverse party, upon cross-examination, from requiring the witness to reaffirm or deny his previous statement, and to give a detail of the circumstances surrounding the fact to which he has testified and tending to disprove its existence.” 42 O. Jur., Page 339, Section 336.

We conclude that no error prejudicial to plaintiff intervened thereby

Plaintiff’s evidence, introduced through her- attending orthopedic surgeon, disclosed that she suffered from an arthritic condition with lipping of the vertebrae, which the evidence disclosed had not caused any trouble, but which was caused by age, and which varies in different individuals.

Upon objection of defendant’s counsel the trial judge sustained defendant’s objection to the following answer of defendant’s orthopedic surgeon, on the ground that such answer was an aggravation of the former condition:—

“The osteoarthritic condition can be very quiet and any undue strain or contusion or any trauma at all to the area might cause certain tissues to be broken up and allow certain irritation or jagging of the soft tissues adjacent to the arthritis and this in turn would cause pain.”

Plaintiff contends that the trial judge erred to her prejudice in sustaining defendant’s motion to the introduction of such evidence: and that plaintiff’s injury was a new injury superimposed on a condition that had already existed.

In view of the verdict for the defendant any error in such respect was immaterial.

By a series of mathematical computations based upon the speed of the respective cars, the knowledge of the respective parties, and the physical situation which existed at the time the automobiles they were driving collided, and the law applicable to those facts, plaintiff conténds that the verdict of the jury and judgment- of the trial judge entered thereon are contrary to law. We do not so find. Such were questions of fact for the determination of the jury. The plaintiff had the right of way so long as she proceeded in a lawful manner, which was a question of fact for the determination of the jury.

It is apparent that the jury concluded that plaintiff was not proceeding in a lawful manner, and that both the parties were negligent, as it well could from the evidence properly submitted to it, and therefore that neither of them were entitled to recover from the other.

We cannot conclude that the verdict of the jury nor the judgment of the trial judge entered thereon are against the manifest weight of the evidence.

Finally, by brief, plaintiff states that she “sincerely believes that the motion for judgment notwithstanding the verdict which was filed and overruled should have been sustained.” We find no merit to this contention.

The judgment of the court of common pleas is affirmed.

NICHOLS, PJ, GRIFFITH, J, concur.


text:
    O’LEARY, Plaintiff-Appellee, v. PENNSYLVANIA RAILROAD COMPANY, a Corporation, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4876.
    Decided March 12, 1953.

      Herbert & Dombey, Columbus, for plaintiff-appellee.
    Bricker, Marburger, Evatt & Barton, Robert L.-Barton, John E. Selby, of Counsel, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This is a law appeal from the judgment of the Common Pleas Court rendered upon the verdict of a jury in favor of the plaintiff in the sum of $30,000.00. the same being for personal injuries received while in the employment of the defendant as a locomotive fireman. The action was brought under the Federal Employers’ Liability Act and it was stipulated in the trial court that the plaintiff was an employee engaged in interstate commerce. Because of errors assigned an analysis of the pleadings becomes necessary; hence we shall quote the operative facts alleged in the petition, which are as follows:

“On or about December 17, 1948, defendant corporation owned and operated a railroad line running between Canton and Columbus, Ohio, and extending to other points both inside and outside of Ohio; that on said date defendant employed plaintiff as a member of the crew of a freight train operating between Canton and Columbus, Ohio; that at about nine o’clock P. M., the said train had reached Millersburg, Ohio, where it stopped for service; that preparatory to pulling the train up a pronounced grade to the south in continuing on to Columbus an extra locomotive of defendant was attached to the front end of the locomotive in which plaintiff was employed and acting as a fireman; that said extra locomotive was operated and controlled by a regular crew, and the locomotive in which plaintiff was stationed was operated and controlled by the engineer; plaintiff further says that the engineer of the locomotive in which he was stationed was in charge and control of the starting and movement of the train, and that under the rules and procedure of the defendant company the crew of the extra locomotive were to await the signal and direction of the engineer in the second locomotive before applying the power and starting ahead.
“Plaintiff says that after he had cleaned the fire and was in the process of hanging up the fire hook, those in charge of the extra locomotive applied the power and started ahead, and that they did so without any prior signal or direction to do so from the engineer in the regular locomotive, and that they did so in such a manner as to cause the second locomotive to jerk and jar in a rough, uneven and unexpected manner; that by reason thereof plaintiff, who was then reaching up to a point above his head and was off balance, was caused to fall over backward and to strike his flead and back upon the steel shaker posts and the steel floor, rendering plaintiff unconscious and otherwise injuring plaintiff, which injuries will be hereinafter more specifically set out.
“Plaintiff says that defendant was guilty of negligence, which negligence was the proximate cause of plaintiff’s injuries, in the following particulars, to wit:
“1. Defendant negligently caused and permitted the second locomotive to start and to move without any signal from plaintiff or his engineer, and without notice or warning to plaintiff that such movement was about to to take place, all at a time when plaintiff was in an exposed position in performing his duties, as aforesaid.
“2. Defendant negligently caused and permitted the locomotive in which plaintiff was working to start and move in a sudden, rough and uneven manner.”

The answer was a general denial.

It is first urged .that the Court erred in giving special instructions Nos. 3, 5 and 6, requested by the plaintiff and objected to by the defendant; and also, in its general charge to the jury.

Special charge No. 3 reads as follows:

“I charge you that in considering the question of whether or not the employer railroad was negligent in this case, the conduct of the employer, its agents and servants, may be viewed as a whole. And in this connection 1 charge you that the duty owing from the employer toward the employee becomes more imperative as the risk increases. Therefore, if you find by a preponderance of the evidence that the defendant’s conduct viewed as a whole warrants a finding that it was negligent, and that any injury to plaintiff resulted in whole or in part from such negligence, then your verdict will be for the plaintiff.”

The defendant is contending that this special charge was not restricted to the issues raised by the pleadings; that nowhere is there language which requires the jury in considering the defendant’s conduct as a whole, to consider only the conduct as charged in the specific allegations of negligence. We cannot agree with the defendant that the charge is too general for the reason that the evidence must be assumed to have been restricted to the issues and if not, that may be properly assigned as error if objected to. The charge involved an application of the doctrine of what has become known as the “unitary rule of negligence,” and which was recognized by the Supreme Court of the United States in the case of the Union Pacific Railroad Company v. Hadley, 246 U. S. 330, the first syllabus of which provides:

“If the defendant’s conduct, viewed as a whole, warrants a finding of negligence, the trial court may properly refuse to charge concerning each constituent item mentioned by the declaration, and leave the general question to the jury.”

Also, at page 332, in the opinion of Justice Holmes, it is said:

“On the question of its negligence the defendant undertook to split up the charge into items mentioned in the declaration as constituent elements and to ask a ruling as to each. But the whole may be greater than the sum of its parts, and the Court was justified in leaving the general question to the jury if it thought that the defendant should not be allowed to take the bundle apart and break the sticks separately, and if the defendant's conduct viewed as a whole warranted a finding of neglect. Upon that point there can be no question.”

The same legal principles are also pronounced in the case of Blair v. Baltimore & Ohio Railroad Co., 323 U. S. 600. It should be noted that the first specification of negligence adopts and includes by reference the factual statements preceding it and thus incorporates the entire chain of events leading to the injury. Under the aforesaid rule the jury could properly consider all of the evidence which tended to support these allegations.

We shall next give consideration to plaintiff’s instruction No. 5, which is in the following words:

“I charge you, members of the jury, that if you find by a preponderance of the evidence that the defendant railroad was negligent in any way in the maintenance or operation of its train at the time and place here in question, and that such negligence, if any, in any way proximately contributed to cause injury to the plaintiff, then the plaintiff is entitled to recover damages.”

This charge the defendant urges also submits to the jury a question not raised by the pleadings This instruction tells the jury that if they find by a preponderance of the evidence that defendant was negligent in any way “in the maintenance” of its train and such negligence proximately contributed to plaintiff’s injuries, then the plaintiff is entitled to recover. It brings into issue the physical maintenance of defendant’s train which is not a part of the charge against the defendant in the specific allegations of negligence. Such allegations charge a failure to give a proper, signal or warning, and a rough or unusual start, and deal strictly with the actions of plaintiff’s fellow servants in the operation of the train. By using the word “maintenance” the jury was invited to consider the physical structure of the locomotive and tender and their constituent parts which were not alleged in the petition to be defective or improperly constructed or maintained. The phrase found in the first special allegation, “all at a time when plaintiff was in an exposed position in performing his duties as aforesaid” merely states what the plaintiff was doing at the time he claims the defendant was negligent. The mere fact of an employee reaching above his head does not raise a question of negligence; nor does the statement that such employee was off balance raise such a question. We are of the opinion that since there was no allegation in the petition of negligence in the maintenance of defendant’s train, that it was error to give such instruction and prejudicial to the defendant.

The Court also gave plaintiff’s special instruction No. 6 which was objected to and which reads as follows;

“I charge you, members of the jury, that it is always an employer railroad’s duty to use reasonable care to furnish the employee with a safe place to work. Said duty of the employer becomes more imperative as the risk to the employee increases. The said duty is a continuing one from which the railroad is not relieved by the mere fact that the employee’s work at the place in question may be fleeting or infrequent.
“Therefore, if you find by a preponderance of the evidence here that the defendant did not use reasonable care to furnish this plaintiff with a safe place in. which to work, and that the same resulted in whole or in part in injury to this plaintiff, your verdict will be for the plaintiff.”

The same objection was made to this instruction, the defendant contending the issue of a safe place to work was not raised by the pleadings. We are unable to find in the petition any allegation that the defendant’s equipment, track or roadbed in any manner made the defendant’s place unsafe. The fact that the plaintiff was reaching up above his nead and off balance does not reflect upon the condition of the place at which the plaintiff was working. To raise such an issue the allegation must contain a statement of an act of omission or commission which would cause harm to the plaintiff. The Ohio law on this fundamental rule of pleading is stated in the second syllabus of New York, Chicago & St. Louis Railroad Company v. Kistler, 66 Oh St 326:

“In an action founded upon negligence, the petition should state the acts of commission or omission which the plaintiff claims to have caused the injury; and that statement being made, it is sufficient to aver that such acts were carelessly or negligently done or omitted.”

The plaintiff cites the case of Smith, Admr., v. Pennsylvania Railroad Company, 59 Abs 282, 99 N. E. (2d), 501. decided by this Court, wherein instructions were given to the jury as to the obligation of the defendant to provide the plaintiff a safe place in which to work. This case is not applicable to the case at bar for the same was specially pleaded. We have examined the bill of exceptions in this case and find that the defendant was charged with negligence as follows:

“3. In failing and neglecting to provide adequate clearance between said tracks for the operation of trains thereon, thereby requiring the decedent to work under dangerous conditions.”
“4. In failing and neglecting to provide adequate lights to enable decedent during the night season to discern objects and distances necessary for his welfare and safety in the performance of the duties required of him by the defendant.”

Clearly these specifications charge the defendant failed to provide the plaintiff a safe place in which to work. We therefore arrive at the conclusion that the plaintiff’s special instructions Nos. 5 and 6 were based upon issues not raised by the pleadings and the question next presented is whether this is error in actions brought under the Federal Employers’ Liability Act. We are of the opinion that it is. In such actions authorities seem to hold that the Federal Law controls in questions of substantive law, but on procedural questions the law of the forum must govern. This rule was pronounced in the case of Central Vermont Ry. Co. v. White, 238 U. S. 507, 59 L. Ed. 1433, in which Justice Lamar stated in his opinion:

“Some of the assignments in the present case relate to matters of pleading; others to the admissibility of evidence, to the sufficiency of exceptions, and to various rulings of the trial court which involve no construction of the employers’ liability act, and which, therefore, cannot be considered on writ of error from a state court.”

The syllabus in the case of Roy v. Oregon Short Line R. Co., 42 Pac. 2d, 476, decided by the Supreme Court of Idaho states the general rule of practice and procedure in state courts;

“A state court hearing a case under the Federal Employers’ Liability Act. while bound by the terms of such act as construed by the United States Supreme Court in so far as it relates to substantive law, may proceed in matters of practice and procedure in accordance with local rules and practice of the state.”

The same principle is also set forth in the case of Counts v. Thompson, 222 S. W. 2d, 487. decided by the Supreme Court of Missouri: 189 S W. 2d 568. Our conclusion is that an action under the Federal Employers Liability Act in our courts is subject to the same rules of practice and procedure as any other action, including our remittitur practice.”

“This remittitur practice has long been established as a matter of procedure in our courts. * * * The Federal Employers Liability Act authorizes actions to be brought in our courts but does not regulate the rules of practice and procedure. In this case, plaintiff did not obtain a unanimous verdict which would have been required had he brought his action in the United States District Court, but the defendant is not entitled to a new trial on that ground. The question raised ‘is a procedural one governed by the law of the forum.’ Joice v M. K. T. R. Co., 354 Mo. 439,

It is the rule in Ohio that where a plaintiff sets forth specific allegations of negligence he can only submit evidence and recover under the negligence charged in those specific allegations. 29 O. Jur. 608; Winzeler v. Knox, 109 Oh St 503; Railroad v. Lockwood, 72 Oh St 586. Even though we might be in error as to the law that governs on procedural questions, we do not find any conflict with the federal law on this subject.

In the case of Reynolds v. New York O. & W. Ry. Co., 42 Fed. 2d, 164, decided by Justice Hand, the plaintiff’s intestate was killed when the speeder car on which he was riding collided into the rear end of defendant’s passenger train. Plaintiff sought to recover against the railroad for failure to send a signalman to the rear of the train when said train was stopped. However, plaintiff later at the trial sought to recover for the negligence of the driver of the speeder car. Judge Hand answered the question on page 167:

“It is, however, contended by the plaintiff that she may recover without regard to any violation of rule or custom by the backing train because Eastwood, who was operating the speed car, was negligent in running it at a high speed and allowing it to collide with the passenger train. But the difficulty with this contention is that the complaint did not seek to recover for the negligence of Eastwood, and, if negligence is to be imputed to defendant by reason of. the acts of Eastwood, it should be amended before a new trial.”

See also Norfolk & W. Ry. Co. v. Trautwein, 111 Fed. 2d, 923; Atlantic Coast Line R. Co. v. Johnson, 40 So. 2d, 892; Louisville & N. R. Co. v. Stewart, 283 Ky. 585, 142 S. W. 2d, 119.

We find that the Court committed the same error in its general charge as in special charges Nos. 5 and 6. At page 353 of the record in discussing the issues of the case the Court found one of them to be as follows:

“Did or did not the defendant, the Pennsylvania Railroad Company, exercise ordinary care, that as (is) such care as an ordinarily prudent employer would have exercised, or employed, to provide John H. O’Leary a reasonably safe place to work under all the conditions and surrounding circumstances existing at the time the plaintiff, John O’Leary sustained his injuries, and, if the railroad did not exercise such care, did such failure cause or contribute to cause, such injuries?”

This charge it will be noted submits the safe place to work rule to the jury which we have previously stated was not one of the issues in the case.

We find that the second assignment of error is also well taken for the reason t'hat the Court admitted into evidence over the defendant’s objection testimony related to the mechanical parts on the locomotive which related to the issue of a safe place to work and was not raised by the pleadings.

The third assignment of error urges that the Court should have sustained the defendant’s motion for a directed verdict at the close of all of the evidence and also should have sustained the motion for a new trial. We have carefully examined the entire record and find that there was conflict in the testimony on the material issues and therefore a jury question was presented. The Court did not err in overruling defendant’s motion for a directed verdict.

For the reasons previously stated, the motion for a new trial should have been sustained.

The judgment will be reversed and cause ordered remanded for further proceedings according to law.

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