author: By WISEMAN, PJ.

text:
    MUSKINGUM COAL CO., Plaintiff-Appellee, v. EASTERN HOCKING COAL CO. et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4910.
    Decided December 9, 1953.
    Porter, Stanley, Treffinger & Platt, Lawrence D. Stanley, Edmund D. Doyle, of Counsel, Columbus, for plaintiff-appellee.
    Hon. Carrington T. Marshall, Hon. Robert P. Duncan, Columbus, for defendants-appellants.
   OPINION

By WISEMAN, PJ.

This is an appeal on questions of law and fact from the Common Pleas Court of Franklin County in an action for specific performance in which the trial court entered a decree requiring defendants-appellants to convey land to plaintiffappellee pursuant to the terms of a contract.

By stipulation of counsel the matter was presented to. this Court on the record taken below, together with depositions of several witnesses taken in this Court.

On motion in the court below Runkle anl Marshall were made parties defendant as successors in interest to The Eastern Hocking Coal Company.

On March 20, 1944 the Muskingum Coal Company and The Eastern Hocking Coal Company entered into a written agreement whereby The Eastern Hocking Coal Company agreed to sell and The Muskingum Coal Company agreed to purchase coal mining rights in a large tract of land located in Perry and Morgan Counties, Ohio, at an agreed price per acre. Attached to the agreement and made a part thereof were two schedules specifically describing the lands, involving 69 separate parcels, comprising 5,478.24 acres. The price was to be paid in seven equal annual installments of $31,773.79. the first installment to be paid upon the execution of the deed, and the succeeding installments to be paid on the first business day of April in 1945 through 1950. The deed was to be placed in escrow and to be delivered to the purchaser upon the payment of the entire purchase price The last installment of the purchase price was paid in April, 1950, and the deed delivered as agreed.

The controversy arises by virtue of a certain provision in the written agreement of March 20, 1944, which provides as follows:

“8. It is further agreed that if any other acreage is found to be owned by first party in any of the sections included in Schedule A of Perry County and Schedule B of Morgan County, first party desires to sell and second party agrees to purchase, the same and said acreage shall be added hereto and paid for at the rate of Forty Dollars ($40) per acre, payable in installments as aforesaid.”

One of the parcels specifically described and conveyed was located in Section 14. Bearfield Township, Perry County. The evidence shows that The Eastern Hocking Coal Company owned 138.55 acres of other land in said Section 14 which was not specifically described and not conveyed. Plaintiff claims that under the terms of the contract the defendants agreed'to sell and plaintiff agreed to buy the 138.55 acre tract on the terms stated in the contract. Upon defendants’ refusal to convey this action was brought.

The determinative issues are raised by defendants’ answer wherein they allege that said 138.55 acre tract was not specifically described in the contract and that the defendants never intended that said tract should be included in the contract; that the contract dated March 20. 1944 by its terms continued in force until about April 1, 1950, at which time plaintiff agreed to pay the final installment of the purchase price and the defendants agreed to deliver the deed, which was in fact consummated, and that thereupon all rights of the parties under the contract terminated. Defendants further allege that pursuant to paragraph 8 of the written agreement the plaintiff, upon discovering that The Eastern Hocking Coal Company owned 160 acres in Section 13 which had not been included, and upon demand of the plaintiff, the defendants, on October 4, 1944, conveyed said 160 acres to the. plaintiff on the same terms and conditions relative to price and installment payment as provided in the written agreement; that thereupon the written agreement became fully executed. The defendants also plead laches. By amendment in this Court the defendants plead as an additional defense that any acreage which would be the subject matter of future sales would only be such acreage as would be later found to be owned by the defendants; that the 138.55 acres described in the petition were not later found, but were known to be owned by the defendants on March 20, 1944, and defendants’ agents and officers at that time and during the previous negotiations leading up to the execution of the said contract definitely informed plaintiff’s agent and officers that said 138.55 acres were not then for sale and that the same would not at any future time be for sale. As we view it, this later defense raises the principal and determinative issue.

The written agreement dated March 20, 1944, involved the transfer of many different parcels of land located in many sections, in different townships, and in two different counties. Because of the difficulty of ascertainment of specific descriptions of the numerous tracts, paragraph 8 was inserted, which was intended to operate to bind the parties as to other lands if any were later found to be owned by the defendants which during the negotiations were not known to be owned by defendants, and which were located in sections in which land had been conveyed. The words which require interpretation are: “if any other acreage is found to be owned.” Manifestly, this provision refers to any acreage which through error had been overlooked or had been forgotten to be included by specific description. Giving this provision a reasonable and practical interpretation, it could not refer to acreage which was known to be owned by the defendants at the time and which was definitely excluded. On the trial of the case in the court below, the trial judge ruled out evidence sought to be introduced by the defendants to the effect that in the negotiations leading up to the signing of the written agreement dated March 20. 1944, the attorney for the plaintiff was informed that the disputed tract of 138.55 acres was not to be included and not to be conveyed; that defendants did not desire to sell said tract. In the depositions taken in this Court, similar testimony was presented by the defendants. The plaintiff made no effort to refute this testimony. The attorney for the plaintiff was not called as a witness. The court below ruled that the admission of this evidence would violate the parol evidence rule. We do not think so. This evidence does not tend to vary or contradict the terms of the written contract. Its admission does not do violence to the parol evidence rule. It assists the court to identify the subject matter to which the written agreement applied. Certainly, if the parties knew of defendants’ ownership of the 138.55 acres and plaintiff was informed that defendants did not desire to sell and that the tract was deliberately excluded, it could not be said that such acreage was later “found to be owned” by the defendants.

The record shows that in the trial below the plaintiff produced its chief engineer, who testified that before the signing of the written agreement, he, on behalf of the plaintiff, had made an examination of the records of the lands owned by the defendants and knew that defendants owned the disputed acreage, and had made a map in conformity to such records. There is much credible evidence in the record supporting the contention that plaintiff knew, on March 20, 1944, that defendants owned the land and did not intend to sell it. The conduct of the parties, especially the conduct of the plaintiff, subsequent to the execution of the written agreement, confirms this conclusion.

The contract did not describe, and by the very nature of the provision under construction, it could not describe the omitted lands. The plaintiff was required to resort to the introduction of extrinsic evidence to show what lands had later been found to be owned by defendants and covered by the contract: likewise, the defendants could, by the introduction of extrinsic evidence, show what lands were then known and not later found to be owned, and not intended to be covered by the contract.

In support of the ruling of this Court that such evidence is admissible we cite Vol. 17, O. Jur., page 541, Section 444, the text of which is as follows:

“Extrinsic parol evidence is always admissible to give effect to a written instrument by applying it to its proper subject-matter, by proving the circumstances under which it was made, thereby enabling the court to put itself in the place of the parties, with all the information possessed by them, the better to understand the terms employed in the contract, and to arrive at their intention. Parol evidence is competent for the purpose of identifying and applying the terms of a written contract * * * to the subject-matter of the contract, and for pointing out particular property then being sold.” (Numerous cases cited.)

In Vol. 32 C. J. S., page 891, part of Section 959 reads as follows:

“The parol evidence rule does not preclude the admission of parol or extrinsic evidence for the purpose of aiding in the interpretation or construction of a written instrument, where the language of the instrument itself, taken alone, is such that it does not clearly express the intention of the parties or the subject of the agreement. Such evidence is admitted not to add to or detract from the writing, but merely to ascertain what the meaning of the parties is, and the admission of such evidence is subject to the limitation that it must be consistent with the writing. Thus a written instrument is open to explanation by parol or extrinsic evidence when it is expressed in short and incomplete terms, or is fairly susceptible of more than one construction, or where the language employed is vague, uncertain, obscure, or ambiguous, and where the words of the contract must be applied to facts ascertainable only by extrinsic evidence a resort to such evidence is necessarily permitted. So also, if there is doubt and uncertainty, not about what the substance of the contract is but as to its peculiar application, it may be explained and properly directed.”

In Vol. 32, C. J. S., page 911, a part of Section 960 is as follows:

“Parol evidence is admissible to show the situation of the parties and the circumstances under which a written instrument was executed, for the purpose of ascertaining the intentions of the parties and properly construing the writing. In other words, the court may, by receiving evidence of the circumstances under which the writing was made, place itself in the situation of the parties who made it, and to that extent look in on their minds and so judge of the meaning of the words, and of the correct application of the language to the thing described, from the point of view of the parties who wrote or executed the instrument.”

In Hildebrand v. Fogle, 20 Ohio, page 147, the second paragraph of the syllabus is as follows:

“Extrinsic parol evidence is always admissible to give effect to a written instrumfent by applying it to its proper subject matter, by proving the circumstances under which it was made, thereby enabling the court to put themselves in the place of the parties, with all the information possessed by them, the better to understand the terms employed in the contract, and to arrive at the intention of the parties.”

In Procter & Gamble v. S. L. Snodgrass, Admr., 5 C. C. 547. affirmed without opinion in 53 Oh St 644, the fifth paragraph of the syllabus reads as follows:

“Where the meaning of a contract is doubtful, the conduct of the parties thereto with reference to it, throws great light upon their intention in making it, and the interpretation which should be given to it. The fact that if this contract is to have the interpretation claimed by plaintiff, he would not have been entitled to any payment thereon until the completion of the work, and that payments were regularly made during its progress; and the further fact that during the time plaintiff was so engaged, the defendants, apparently without objection, greatly lowered the amount to be paid for his services, go far to show that it was not the intention of the parties to the contract to stipulate that it should continue until all of the buildings and improvements were completed.”

In The Norfolk & Chesapeake Coal Co. v. John, 18 Oh Ap, at page 512 the second paragraph of the syllabus is as follows:

“The parties to an action for breach of a written contract, which they had entered into for the sale of coal, not agreeing as to what the term of the contract ‘at the mines’ really meant, one contending it meant two specific mines and the other that it meant any mines in eastern Kentucky, parol evidence is admissible to ascertain the true intent of the parties ”

In Watson v. Lamb, 75 Oh St, 481, the syllabus is as follows:

“In an action to recover damages for alleged failure of the vendor to deliver hogs according to the terms of a written contract in which the subject of the sale is designated as ‘my hogs,’ the plaintiff may introduce parol evidence to show that the defendant did not deliver all of his hogs, but not for the purpose of changing the terms of the written contract into which the parties entered.”

On pages 491 and 492 Judge Shauck said:

“Parol evidence was not competent to vary the terms of the contract, although it was competent to apply the terms of the contract to its subject."

See Bank v. Cole, 83 Oh St 50 at page 59. Miller v. Woolley, 87 Oh Ap 447 is distinguishable on the facts.

In our opinion extrinsic evidence to show that the lands in dispute were known and were excluded would be just as admissible as extrinsic evidence to show that the disputed lands were not known and therefore included.

We conclude from all the evidence that the parties had definite knowledge at the time the written agreement was executed that the defendants owned the disputed acreage, that the defendants did not intend to include said lands in the contract and that therefore the plaintiff is not entitled to specific performance.

We do not deem it necessary to state all the various contentions made by counsel, or review in detail all the evidence presented. To do so would serve no useful purpose.

The prayer of plaintiff for specific performance is denied. An entry may be drawn in conformity herewith.

MILLER and HORNBECK, JJ, concur..


source: Caselaw Access Project

author: By DEEDS, J;

license: Public Domain

text:
    ROBACK, Plaintiff-Appellee, v. ROBACK et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22720.
    Decided July 13, 1953.

      William A. Weiss, Cleveland, for plaintiff-appellee.
    George J. McMonagle, Anthony C. Carlin, Cleveland, for defendants-appellants.
    (FESS, PJ, CONN and DEEDS, JJ, of the Sixth District, sitting by designation in the Eighth District.)
   OPINION

By DEEDS, J;

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Cuyahoga County.

The parties to this proceeding will be referred to herein as they stood in the trial court, the plaintiff-appellee, Frank Roback as plaintiff, and the defendant-appellant, Louis K. Sitko, as defendant.

The action was commenced in the court of common pleas by the plaintiff, for the partition of certain real estate owned jointly by plaintiff and a former wife, then deceased, against plaintiff’s then present wife and a daughter and son-in-law. the defendant appearing as attorney for the plaintiff in the action.

It appears from the evidence, hereinafter considered more in detail, that following the performance of legal services in numerous difficulties as attorney for plaintiff, defendant, pursuant to leave of court, became a party defendant in the action and filed an answer and cross-petition alleging that the defendant was the holder and owner of a promissory note in the principal sum of $5,000.00, secured by a mortgage covering the said real property; that said note and mortgage had been duly executed and delivered by plaintiff to the defendant as payee and defendant prayed for judgment and for marshalling of liens.

To this answer and cross-petition of the defendant, the plaintiff filed a pleading denominated a reply, in which the plaintiff alleged that defendant secured the signature of plaintiff to said note and mortgage when same were in blank form and that plaintiff was induced to sign same through fraud, misrepresentation and undue influence and by reason of the fiduciary relation of attorney and client existing between plaintiff and defendant and prayed for a cancelation of said instruments.

To this pleading of the plaintiff, defendant filed a reply alleging that the defendant had performed many legal services for the plaintiff and that said note and mortgage were executed in consideration of those services and denied all unfair dealing by defendant.

The case was tried before the court as a case in equity, following which the court of common pleas decreed that said note and mortgage were null and void by reason of fraud and undue influence having been practiced by defendant upon plaintiff and decreed that same be cancelled and held for naught; that defendant be barred from all claims; that the cross-petition be dismissed and that a decree for partition be allowed.

The review by this court is on the bill of exceptions containing the evidence, the transcript of the proceedings in the court of common pleas and the oral arguments and briefs of counsel.

The evidence discloses that during the period of time from August 5, 1948 to June 26, 1951, the defendant as the attorney for plaintiff, performed substantial legal services involving a contested action for alimony and divorce; claims against the plaintiff for damages on account of alleged assaults and batteries; claim by a daughter on account of an interest in and for the occupancy of said real property; defense of plaintiff on an indictment charging assault with a knife with intent to kill, and many domestic and personal matters, all of which services are evidenced by office memoranda kept. by the defendant over said period of time, showing an aggregate of 276-’4 hours of legal services rendered by defendant on behalf of plaintiff, which memoranda marked as exhibits were received in evidence.

It further appears from the evidence offered by the defendant that on April 30, 1949, plaintiff was involved in an altercation to which reference has been made, with a stepson, a stepdaughter and her husband, at which time many knife stabs were inflicted upon said stepson and a lesser number upon the husband of the stepdaughter, with damage to the clothing of the latter, resulting in a criminal indictment charging the plaintiff with stabbing with intent to kill and claim being made by all of said persons for damages on account of said alleged assaults and batteries.

On May 3, 1949. following the release of the plaintiff from jail, plaintiff accompanied the defendant to defendant’s office, where plaintiff’s difficulties were discussed, which conference resulted in the dictation of an employment contract by the defendant to the office secretary of the defendant, in the presence and bearing of plaintiff, according to the testimony of defendant and said office secretary, which contract in typewritten form bearing the admitted signature of the plaintiff appears in the record as defendant’s exhibit and same provided in substance for the execution by plaintiff of a promissory note in the principal sum of $5,000.00, to be secured by a mortgage covering said real estate in consideration of legal services rendered and to be rendered by the defendant in all of plaintiff’s difficulties.

The testimony of the defendant, corroborated by the testimony of Margaret Janitelli, the office secretary, and attorney Orlin F. Goudy, who was also a notary public, is that plaintiff returned to defendant’s office on May 4,1949 at which time the contents of the note and mortgage were discussed by defendant with the plaintiff and that said instruments were signed by the plaintiff in the presence of defendant, the said Margaret Janitelli and attorney Goudy, and the signatures of the last two mentioned appear as witnesses to the execution of said mortgage, and said attorney also acted as the notary public to plaintiff’s acknowledgment in the execution of said mortgage, both of which instruments appearing in evidence as defendant’s exhibits.

The defendant and the witnesses, Margaret Janitelli and attorney Orlin F. Goudy, each testified that at the time of the signing and execution of said note and mortgage by plaintiff, said instruments were fully completed and not in blank in any particulars.

It should be noted as appearing from the evidence that on May 3, 1949, it was necessary for plaintiff to execute a promissory note in the sum of $3,000.00, required also to be signed by defendant to indemnify the surety executing the bond in a like amount in order to secure the release of the plaintiff from confinement in jail on bond, this incident being pertinent in connection with the testimony of the plaintiff who acknowledged the affixing of his signature appearing upon the contract of employment, the note and the mortgage, but denied that he knew the contents of those instruments at the time of signing same and testified that he signed the papers because he was told to do so by the defendant, or he would have to remain in jail. It was admitted by the defendant in his testimony that the plaintiff was told that unless the note was executed indemnifying the surety that he would have to be returned to jail, but denied by the defendant, and the testimony of the witnesses Margaret Janitelli and attorney Orlin F. Goudy contradict very forcibly the claim that any undue influence or misrepresentations concerning jail were brought to bear in connection with the signing of the note payable to the defendant and the mortgage securing the payment of same.

It appears further from the evidence that attorney Anthony C. Carlin represented plaintiff’s wife, her daughter, son and son-in-law on account of the domestic difficulties and the claims on account of the alleged felonious assaults and that conferences were had between plaintiff, plaintiff’s wife and the defendant, and attorney Carlin; that at least one of those conferences, concerning a settlement in reference to alimony and claims, attorney Carlin testified that the existence and purpose of the $5,000.00 note secured by a mortgage covering said real estate, were discussed with plaintiff, who appeared to be fully informed concerning same.

A situation is therefore presented by the record where the relation of attorney and client existed between the plaintiff and defendant and it is claimed by the client that the execution of the note and mortgage in question was brought about by the practice of fraud and undue influence by the defendant in his relation as attorney for the plaintiff.

The only evidence in support of the charges of fraud and undue influence, having been brought to bear in the transaction by the defendant, is the uncertain and indefinite testimony of the plaintiff that he did not know the contents of the papers in question and that he was told that he would have to sign same or be returned to jail.

As against this meager and indefinite testimony of the plaintiff, the defendant is corroborated in his testimony and contention that the transaction was fully known and understood by the plaintiff, by the testimony of attorney Goudy and Carlin and the office secretary, Miss Janitelli, all of whom gave clear and definite testimony to the effect that the transaction was fully understood by the plaintiff and that the execution of the instruments was free from fraud, misrepresentation and undue influence.

In addition, we have before us the instruments in regular form and the admission of the plaintiff that his signature appears upon same, together with the evidence of extensive legal services having been rendered by the defendant and plaintiff’s inability to pay for same in the ordinary manner, all of which logically supports the claim of the defendant and refutes the charges of the plaintiff. It therefore appears to this court that the clear and manifest weight of the evidence is against the charges of fraud and undue influence.

The law of Ohio controlling a decision in the case has been stated in 8 O. Jur., Sec. 53, pages 605, 606:

“Since each case involving the rescission or cancellation of an instrument depends very greately on its own facts and circumstances, the courts have not attempted to apply arbitrary or precise rules for the determination of the weight and sufficiency of the evidence requiring or justifying such relief in any particular case. It is established that the evidence must be clear and convincing. Shauck, J., speaking on the question of the degree of proof required in the case of actions for the rescission of deeds, said: (In a decision by the Supreme Court of the State)”
“ ‘It is the settled policy of the state, as indicated by a uniform course of practice in its courts, and by repeated decisions of this court, that instruments of this solemn character, executed in conformity to the provisions of the deeds act, shall not be set aside or defeated of their natural purpose except upon proper allegations which are supported by evidence of a clear and convincing character. The m,ere preponderance of evidence, which is sufficient to determine the verdicts of juries in civil actions, is not sufficient.’ ”

The law applicable in this state to the case presented by the record before us has also been announced by the supreme court in syllabi of the case of McAdams v. McAdams, Sr., 80 Oh St 232:

“1. In an action by the grantor in a deed, to reform the instrument upon the ground that the grantee fraudulently concealed and misstated the contents of the deed to the grantor, when it appears that the grantee is a son of the grantor and an attorney at law and that such grantee was entrusted with the drafting of the instrument upon his own suggestion, such facts raise a presumption of the existence of relations of trust and confidence between the parties and put upon the grantee the burden of showing that no undue advantage was taken of the grantor in the execution of the deed.
“2. But when it also clearly appears in such case that such deed is in apparent accord with previous declarations of the grantor as to his intentions and his subsequent declarations as to what he had done and that he could read and had ample opportunity before, at and after signing the deed to read the same, the presumption of undue advantage by reason of confidential relations is rebutted and the burden rests upon the grantor to show by clear and convincing proof that the deed is fraudulent.
“3. In such case, declarations of the grantor made in the absence of the grantee, are not competent evidence to prove the alleged fraud; but statements of the grantor which tend to rebut the claim of fraud, whether made before or after the signing of the deed, are admissible.”

The Supreme Court of the state again stated the principle of law applicable and reaffirmed the prior announcement of the court in the opinion in the case of Kroeger, Supt. v. Brady, 130 Oh St 566:

“Ordinarily, one of full age in the possession of his faculties and able to read and write, who signs an instrument and remains acquiescent in its operative effect for some time, may not thereafter escape the consequences by urging that he did not read it or that he relied upon the representations of another as to its contents or significance. Or as Judge Davis remarks in McAdams v. McAdams, 80 Oh St 232, 240, 88 N. E. 542, 544:

‘“A person of ordinary mind cannot be heard to say that he was misled into signing a paper which was different from what he intended, when he could have known the truth by merely looking when he signed.’ ”

We therefore are compelled to the conclusion that the charges of fraud and undue influence made by the plaintiff against the defendant in the execution of the instruments in question, are not supported by any evidence of a substantial character and that the manifest weight of the evidence supports the contention of the defendant that the note and mortgage were executed and delivered by the plaintiff with full knowledge of the purpose and legal effect of same and that therefore, the judgment of the court of common pleas is contrary to law and should be and is reversed and the cause will be remanded to the court of common pleas for further proceedings.

FESS, J, CONN, J, concur.


author: Per CURIAM.

text:
    STATE, Plaintiff-Appellee, v. ROSS, a. k. a. ANTHONY GIANFRANCISCO, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3538.
    Decided April 14, 1953.

      Frank Franko, Asst. Law Director, Youngstown, for plaintiffappellee.
    D. F. Rendinell, Youngstown, for defendant-appellant.
   OPINION

Per CURIAM.

Defendant was found guilty in the Municipal Court of Youngstown of selling Henry Perón, a state liquor control officer, a “shot” of whiskey after 2:30 A. M. on Sunday, April 1, 1952, at the “Tropics” in Youngstown, Ohio, in violation of §6064-22 GC, paragraph 4, prohibiting the sale of liquor after 2:30 A. M. “on Sunday.”

The trial judge entered judgment of conviction and sentenced defendant in accordance with the provisions of §6064-65 GC.

Defendant appealed from that judgment to the court of common pleas on questions of law, which court affirmed the judgment of the municipal court. Defendant appealed to this court on questions of law from the judgment of affirmance of the court of common pleas.

By assignments of error defendant contends that “the judgment of the court is not sustained by sufficient evidence and is manifestly against the weight of the evidence,” and “is contrary to law.”

Defendant admitted selling the complaining witness a glass of 3.2 beer for ten cents, but contends that the “shot” of whiskey was given to such witness at his request, rather than sold to him, because he was suffering from a cough.

The complaining witness testified that he left seventy-five cents on the counter in. payment for such liquor, which he poured into a bottle after it was served to him and retained as evidence against defendant.

' Such evidence presented a question of defendant’s guilt or innocence to the trier of the fact, whose finding we can not disturb on the grounds that it, and the judgment entered thereon, were not sustained by sufficient evidence nor against the manifest weight of that evidence nor “contrary to law” for the assigned reasons that the complaining witness was guilty of entrapping defendant even though there was a purchase and sale of liquor at the request of the investigating officer.

The judgment of the court of common pleas is affirmed.

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


author: By BARTLETT, J.

text:
    VITO et, Appellant, v. BOARD OF LIQUOR CONTROL et, Appellee.
    Common Pleas Court, Franklin County.
    No. 186159.
    Decided April 4, 1953.

      Charles Laurie, Cleveland, for appellant.
    C. William O’Neill, Atty. Geni., Lake Giles, Asst. Atty. Geni., Columbus, for appellee.
   OPINION

By BARTLETT, J.

1. THE MOTION FOR AN ORDER DIRECTING APPELLEE, THE BOARD OF LIQUOR CONTROL, TO COMPLETE THE RECORD IN THIS APPEAL, IS HEREBY OVERRULED.

2. BOARD OF LIQUOR CONTROL ORDER (REVOKING D-2 [3.2] PERMIT), AFFIRMED.

Sec. 154-73 GC, and a part of the Administrative Procedure Act, provides in part as follows:

“Unless otherwise provided by law, in the hearing of the appeal the Court shall be confined to the record as certified to it by the agency, provided, however, unless otherwise provided by law the Court may grant a request for the admission of additional evidence when satisfied that such additional evidence is newly discovered and could not with reasonable diligence have been ascertained prior to the hearing before the agency.”

Newly discovered evidence is not called for in the motion to complete the record. There is no showing of any demand on the Liquor Board to complete the record. The record shows the order of the Board overruling the motion for a rehearing, other than the assertion of counsel in his memorandum in support of said motion, there is no evidence before the Court that there were papers before the Board on said motion that were not certified to the court on the appeai.

Counsel has legal means of compelling the Board to certify “a complete record” if not satisfied with record certified, but it is not for the Court on this appeal to order a more complete record, especially where there is no showing the record so certifies, omits any matter that should be included therein.

The fourth specification of error cited in the appellant’s notice of appeal is to the effect that the citation was defective in that it charged violation of §§6064-54 and 6064-57 GC, while the permit holder was charged only with violation of the last section. Page 2 of the record recites the charges preferred read as follows:

That on July 24, 1952, * * * “you and/or your agent or employee did have and possess an opened bottle * * * containing * * * whiskey in and upon the permit premises in violation of the provisions of the Liquor Control Act * * The charge is in the plural as to sections violated. In any event, the order appealed from is based only on violation of the last section mentioned in the citation. The mention of the two sections in the citation, certainly does not prejudice the permit holder where the Board confines its finding to violation of only one section.

It must be remembered that in the hearing before the Board, counsel for the appellant appeared and entered a plea of guilty to the charge on which the Board’s order was based. Certainly any alleged technical irregularity as to formal notice of the charge against appellant was waived by such appearance and plea.

The third specification of error is that the Court erred in finding appellant guilty of violating §6064-54 GC. The order appealed from contains no such finding.

Specification 1 in the appeal is to the effect that the revocation of appellant’s permit was unreasonable. Specification 5 is that the Board erred in overruling the motion for a rehearing.

The appellant having pled guilty to the charge contained in the Board’s order, the penalty was within the discretion of the Board as to revocation or suspension of the permit.

This Court from the record cannot say that the Board abused its discretion or was unreasonable in revoking her permit, especially since the record shows this was the second violation for the same thing. True, the liquor in the booth found on the premises belonged to her son who was on duty back of the bar. The rights of the family of the permit holder are no greater in this respect than any other employee. In fact the family might properly be expected to be more careful than others in this respect.

Upon consideration of the entire record, the Court finds that the order of the Board, is supported by reliable, probative and substantial evidence; and, therefore, affirms said order and dismisses said appeal.

Entry accordingly with exceptions reserved by counsel for appellant.


author: By HUNSICKER, J.:

text:
    NATIONAL CITY BANK OF CLEVELAND, Trustee, Plaintiff-Appellee, v. BENJAMIN ROSE INSTITUTE, Defendants-Appellees, HILL et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22740.
    Decided June 3, 1953.

      Jones, Day, Cockley & Reavis, Cleveland, for appellee, The National City Bank of Cleveland, Trustee.
    Squire, Sanders & Dempsey, Cleveland, for appellee, The Benjamin Rose Institute.
    E. D. Williams, Cleveland, for appellee, E. D. Williams, Guardian ad Litem for Janice Delahooke, et al., minors, etc.
    Kiefer, Waterworth, Hunter & Knecht, Cleveland, for appellants.
    (DOYLE, PJ, STEVENS, J, and HUNSICKER, J, of the Ninth District, sitting by designation in the Eighth District.)
   OPINION

By HUNSICKER, J.:

This is an appeal on questions of law.

In 1920, Thomas W. Hill and his wife, Harriette C. Hill, executed a trust agreement with The Guardian Savings and Trust Company (ultimately succeeded as trustee by The National City Bank of Cleveland, plaintiff below), reserving to themselves as donors the entire net income, during their joint lives, from that portion of the trust estate contributed by each to the corpus. Upon the death of either donor, the trust by its terms became irrevocable. With the death of Mr. Hill in 1921, its irrevocability was established.

Harriette C. Hill, the surviving donor, died in 1949 At the occurrence of this event, the plan of income distribution spelled out in the agreement was, by its terms, revised to exclude certain annuitants who had been beneficiaries while Mrs. Hill lived, and to continue certain other annuity payments theretofore directed.

A plan for final distribution of the trust estate after the death of the surviving donor was included in the trust agreement and designated as “Item V” thereof. In general, this plan required the trustee to distribute a portion of the estate outright to certain beneficiaries, and to retain a portion for the payment (out of the income thereof) of certain annuities to other beneficiaries named in the trust agreement. That part of Item V which is the subject of this controversy is hereinafter set out in detail.

The National City Bank of Cleveland, trustee of the trust estate, filed a petition in the Common Pleas Court of Cuyahoga County, Ohio, asking for instructions with respect to the trust and the property to be administered thereunder.

After the trial court entered its judgment, two of the defendants, Walter T. Hill and Elton B. Hill, gave notice of appeal to this court on questions of law. They say:

“The trial court erred in holding the remainder interests of Walter T. Hill and Elton B. Hill to be only defeasibly vested at the death of Harriette C. Hill, and denying said remainder-men the right to receive, as of that date, their distributions of principal as residuary legatees.
“The trial court erred in denying appellants the right to partial distribution of their remainder interests as each successive income payment to the remaining life annuitants is terminated, and in requiring the trustee to retain all of the principal of the trust estate until the last of such income payments has been made.”

We shall therefore examine the matter before us to determine whether the trial court committed error prejudicial to the substantial rights of the appellants. The problem herein js concerned with the distribution of the corpus of the trust estate retained by the trustee to pay certain specific bequests.

In its pertinent parts, the trust agreement reads as follows:

“V.
“Final Distribution “Upon the decease of either of the donors hereunder, the trustee shall make distribution as follows:
“(A) * * *
“(B) * * *
“(C) Upon the decease of the surviving donor, distribution shall be made as follows;
‘“(a) The trustee shall retain sufficient of the principal trust estate to provide’ (here follows various specific bequests) ‘“(b) The balance of the trust estate remaining shall be distributed as follows:’
“One-third (1/3) to Walter T. Hill to be his absolutely, and if he be deceased then to his issue per stirpes to be theirs absolutely, and if there be no such issue then said share shall be added to the ‘Hal H. Hill Memorial Fund’ for the benefit of the Benjamin Rose Institute hereinbefore established and to be administered in all respects in accordance with the provisions of Item V. subdivision ‘A’ hereof.
“One-third (1/3) to Elton B. Hill to be his absolutely, and if he be deceased, then to his issue per stirpes to be theirs absolutely, and if there be no such issue then said share shall be added to the ‘Hal H. Hill Memorial Fund’ for the benefit of the Benjamin Rose Institute hereinbefore established and to be administered in all respects in accordance with the provisions of Item V, subdivision ‘A’ hereof.”

(A similar provision for one-third is made to Harry A. Delahooke, and no appeal is taken, by those interested, to this court from the judgment as entered in respect to this bequest.)

“Provided always further, however, that all of the principal trust estate retained by the trustee to provide bequests of income with the exception of the educational fund, final distribution of which has been hereinbefore provided for, shall upon the termination of the time fixed for the payment of such bequests become subject to final distribution in all respects in accordance with the foregoing.”

When did the principal of the trust estate retained for the payment of the specific bequests vest?

It is axiomatic, in matters such as we have under consideration, that the intention of the settlor shall be determined by the language employed in the trust agreement.

It is clear, from the language used in Item V (C) (a), that the trustee, upon the death of the surviving donor, was to hold in possession (the settlors used the word ‘retain’) such portion of the corpus of the estate as would produce an income large enough to pay the specific bequests set out in the agreement. These bequests were to be paid from income and not principal, and the principal was to be set aside “upon the decease of the surviving donor * * *.” The balance of the estate, after the amount of principal required for bequests of income had been set aside, was to be distributed as directed in Item V (C) (b).

The settlors then, knowing that they had not distributed all of the principal, for they had “retained” a portion in the hands of the trustee, made provision for the ultimate distribution. They said in the final paragraph of this lengthy item on “Final Distribution”:

“Provided always further, however, that all of the principal trust estate retained by the trustee to provide bequests of income * * * shall upon the termination of the time fixed for the payment of such bequests become subject to final distribution in all respects in accordance with the foregoing.” (Emphasis ours.)

We should not and dare not adopt a strained or unusual meaning for words and phrases that are so clear and unambiguous as those the settlors placed in this paragraph. “All of the principal trust estate retained” clearly refers to the corpus set aside to pay bequests of income, and this is made doubly certain by the words which immediately follow. The settlors then directed when this “retained” corpus should be distributed, for they clearly indicated that, “upon the termination of the time fixed for the payment of such bequests,” final distribution should be made “in all respects in accordance with the foregoing.”

In other words, when the specific bequests of income can no longer be paid, because those who are to receive no longer can (or have the right, as is the case with the Davison, Michigan, Methodist Church) receive, then, and only then, this “retained” corpus shall “become subject to final distribution” according to the plan adopted for the unretained portion of the corpus which was to be distributed upon the death of the “surviving donor.” This is the clear, unambiguous intention of the settlors.

What, then, is this plan of final distribution? A distribution was made, of the unretained portion, as set out above, of one-third to each of the appellants, Walter T. Hill and Elton B. Hill. They will be entitled to their respective shares of the retained portion of the trust estate, if, at the “termination of the time fixed for the payment of” the bequests, they are alive; if not, then distribution will be made to their respective issue “per stirpes,” and, if none are in being, then to others, “in all respects in accordance with the foregoing” (which means according to the plan the settlors arranged for the distribution of the unretained portion).

To read this trust agreement in any other manner than we have indicated above, does violence to the plain meaning of its terms and the intention of the settlors.

The Supreme Court of Ohio said in Ohio National Bank v. Boone, et al., 139 Oh St 361:

“2. The law favors the vesting of estates at the earliest possible moment, and a remainder after a life estate vests in the remainderman at the death of the testator, in the absence of a clearly expressed intention to postpone the vesting to some future time.”

In the instant case, the estate in remainder did vest, in each person designated to receive, a one-third share, but such vested remainder was subject to be divested if death of the remainderman intervened.

The rule has been established that vested remainders may be subject to divestment in Ohio.

Millison v. Drake, 123 Oh St 249, at p. 254; Smith v. Weinkoff, 80 Oh Ap 206, at p. 208; Simpson v. Welsh, et al, 44 Oh Ap 115, at 119; Stark, Trustee, v. Marsh, et al., 29 O. C. A. 417.

We therefore determine that the trial court did not commit error prejudicial to the substantial rights of the appellants in entering the judgment from which this appeal is taken. Judgment affirmed. Exceptions noted. Order see journal.

DOYLE, PJ, STEVENS, J, concur.


author: By RANDALL, J.

text:
    KENWOOD COUNTRY CLUB, Appellant, v. BOARD OF LIQUOR CONTROL et, Appellee.
    Common Pleas Court, Franklin County.
    No. 184834.
    Decided January 29, 1953.

      Isadore Topper, Columbus, for appellant.
    C. William O’Neill, Atty. Geni., Brown Pettit, Asst. Atty. Geni., Columbus, for appellee.
   OPINION

By RANDALL, J.

This matter comes before us on appeal of the Kenwood Country Club from a decision and order of the Board of Liquor Control made on the 17th day of March, 1952, rejecting the application of the appellant for a Class D-4 permit. The order upon which the appeal was predicated is as follows:

“This cause came on to be heard on the appeal of the Ken-wood Country Club, Kenwood Road, Kenwood, Ohio, from an order rejecting an application for a Class D-4 permit made by the Director of the Department of Liquor Control of the State of Ohio, and the same was submitted upon the affidavits and oral evidence of the appellant and the reports and records of the Department of Liquor Control.
“Whereupon the Board of Liquor Control being fully advised in the premises and upon the consideration thereof finds that said appeal is not well taken and should not be allowed and the Board further finds that the appellant, Kenwood Country Club, is not entitled to a Class D-4 permit.
“It is therefore ordered by the Board of Liquor Control that the order heretofore made by the Director of the Department of Liquor Control, rejecting the application of the appellant for a Class D-4 permit be, and the same is SUSTAINED AND AFFIRMED.”

The case was submitted to the Court upon the stipulations of counsel, a copy of which stipulations is as follows:

“STIPULATION NO. 1:
“The Kenwood Country Club, Kenwood Road, Columbiana Township, Hamilton County, Ohio, was organized under the laws of the State of Ohio as a corporation not for profit on November 12, 1929 for golf, social and recreational purposes:
“That the club is still in existence owning and maintaining two 18 hole golf courses and a club house building in the aforesaid township and county;
“That said golf courses, club house, real and personal property is reasonably worth approximately $750,000.00 against which there is an indebtedness of $81,000.00.
“That said club house is equipped to serve at one time approximately six hundred meals and that the present membership of the club consists of five hundred dues paying members. “STIPULATION NO. 2:
“An initiation fee of $250.00 is required of all new members; that yearly dues of a member is $250.00 per year plus federal tax; that said club is governed by a Board of Trustees consisting of fifteen members elected by the members of the club; that no officer, trustee or member receives any compensation from the club and that all the moneys received from dues are used to operate the club.
“STIPULATION NO. 3:
“The Kenwood Country Club from 1934 to February 1, 1950 was the holder of a Class D-4 permit issued by the Ohio Department of Liquor Control;
“That Class D-4 permit No. 15357 was issued to said Club in May, 1949, and that said permit with approval of the Ohio Board of Liquor Control was voluntarily surrendered for cancellation without refund of the unexpired permit fee by the Kenwood Country Club February 1, 1950.
“STIPULATION NO. 4:
“As provided by Regulation No. 10 of the Ohio Board of Liquor Control under Federal census for 1950 the quota in Hamilton County, Ohio for Class D-4 permits issuable pursuant to §8064-17 GC, is 252 permits. The number of Class D-4 permits issuable in Hamilton County by the Ohio Department of Liquor Control pursuant to Regulation 64 of the Ohio Board of Liquor Control is 29;
“That the Department of Liquor Control, up to the present time has issued in Hamilton County 26 Class D-4 permits. “STIPULATION NO. 5:
“The quota for Class D-4 permits issuable by the Ohio Department of Liquor Control in Columbiana Township, Hamilton County, in accordance with the provisions of §6064-17 GC, and based on the 1950 Federal Census as provided by Regulation 10, Ohio Board of Liquor Control, is 41 permits;
“That the number of Class D-4 permits issued by the Department of Liquor Control and outstanding April 11, 1949 in Columbiana Township, Hamilton County was three permits;
“That the quota for Class D-4 permits which may be issued by the Ohio Department of Liquor Control in Columbiana Township, Hamilton County, in accordance with Regulation 64 of the Ohio Board of Liquor Control is three permits;
“That there is now issued and outstanding two Class D-4 permits in Columbiana Township, Hamilton County;
“That one Class D-4 permit could be issued by the Ohio Department of Liquor Control in Columbiana Township, Hamilton County under the aforesaid Regulation 64;
“That at the present time there are fewer Class D-4 permits issued and outstanding in Hamilton County and Columbiana Township than were issued and outstanding April 11. 1949 and
“That the Class D-4 permit surrendered February 1, 1950 for cancellation by the Kenwood Country Club for its place on Kenwood Road, Columbiana Township, Hamilton County, has not been issued to any other club since February 1, 1950 “STIPULATION NO. 6:
“That the quota for Class D-4 permits issuable by the Ohio Department of Liquor Control in Hamilton County in accordance with Regulation 64 on April 11, 1949 was 29 Class D-4 permits and that at the present time there are only 26 Class D-4 permits outstanding and in existence in Hamilton County, Ohio.”

Appellant in its specifications of error, claims. First, that the order is unreasonable, unlawful and arbitrary; Secondly, it is contended by appellant that the Board of Liquor Control erred in affirming the order made by the Board of Liquor Control rejecting the application in question; Thirdly, that Regulation No. 64 of the Board of Liquor Control under which the permit was denied, is discriminatory and unlawful and in violation of §6064-3 (h) GC and Section 1 of Article I of the Constitution of Ohio; Fourthly, that said Regulation 64 violates Sections 1 and 26 of Article II of the Constitution of Ohio.

It will be noted that in accordance with Stipulation No. 1, it was agreed by the appellant and the appellee that the applicant for the permit in question fully qualified for a permit insofar as the requirements of the statute prescribed the qualifications for a D-4 permit, that is, that the appellant was and is a bona fide club eligible to a permit if, under the statutes and the regulations of the Board, one may be issued to it. Consequently we do not have to deal here with the question of abuse of discretion or arbitrary action of the department insofar as the qualification of the appellant to hold such a permit is concerned. The question presented to us is purely one of law and calls for consideration by the Court of the applicable statutes and regulations of the Board in effect at the time the application was made and rejected. We set forth herewith a copy of Regulation No. 64 of the Board of Liquor Control and Regulation No. 11 as follows:

REGULATION NO. 64

Section I — The number of D-3, D-3A, D-4 and D-5 permits which may be issued within the State of Ohio and within each political subdivision thereof is hereby limited to a figure which shall be equal to the number of permits of each above designated class respectively issued and outstanding in the State of Ohio and in each political subdivision thereof as of April 11, 1949, and during the effective period of this regulation no application for such permits shall be accepted by the Department for filing.

No new D-3, D-3A, D-4 and D-5 permits shall be issued except permits issued pursuant to the provisions of Regulation 14, and except, also, new permits issued upon the expiration of any existing permits to the same permit holder for the same location..

Section II — The provisions of Section 1 herein shall not be applicable to the following political subdivisions or districts:—

Rock Creek situated in Ashtabula County
Yorkshire situated in Darke County
New Weston situated in Darke County
Precincts one (1) and two (21 of Wauseon situated in Fulton County
Greenfield Township situated in Gallia County
Licking Township situated in Licking County
Huntington Township situated in Ross County
Bloom Township situated in Scioto County
Dunham Township situated in Washington County

Section III — This regulation shall not be construed so as to increase the number of permits of the above designated classes permissible under §6064-17 GC and Regulation 10.

Section IV — If this regulation is protested and an appeal is taken to court prior to the effective date of this regulation then and in that event Regulation 70 shall not be repealed and Regulation 1 shall be of no force and effect in repealing Regulation 70.

REGULATION NO. 11

When in any county, city or village the quota for Class D-3, D-4, or D-5 permits shall have been filled, the department shall notify the applicant that such quota is filled and return to the applicant the permit fee upon request of the applicant, providing such request include an authorization to cancel and withdraw the application. Upon the cancellation, revocation or surrender of any permit or failure of a person holding a permit to reapply for another permit of the same class in such quota-filled location, applications shall then be processed in the order in which same were filed and pending by the department until the quota is again filled.

Upon expiration of a permit, however, preference shall be accorded to the holder of the expiring permit. (Emphasis ours.)

Apparently the application for the permit in question was rejected because of the provisions of the second paragraph of Section I of Regulation No. 64, which provides that no new D-3, D-3a and D-5 permits shall be issued, except permits issued pursuant to the provisions of Regulation 14 and except also any permits issued upon the expiration of any existing permits with the same permit holder for the same location.

It will be noted that both Regulation No. 11 and Regulation No. 64 deal with D-3, D-4 and D-5 permits. It would also appear that Regulations 1 to 66 inclusive of the Rules of the Board of Liquor Control were reenacted at the same time on the 24th day of June 1950 and that all regulations theretofore existing were at said time repealed. We proceed upon the theory that Regulation 64, with the exception of the provision of Section I thereof which provides that during the effective period of said regulation no application for such permits shall be accepted by the department for filing, which provision has been declared to be invalid by the Supreme Court, are valid.

In the case of Board of Liquor Control v. Tsantles, 156 Oh St p. 512, the Supreme Court of Ohio in a per curiam opinion in reversing the Court of Appeals of this county, referring to par. 2 of Section I of Regulation 64, said

“The lower courts held the foregoing provision of regulation 64 invalid on the theory that it seems to recognize a property right in such permits and. also places control of the issuance of further permits in present holders rather than in the Department of Liquor Control.
“This court does not so view this regulation. A permit is issued as a mere privilege and not as a matter of right, and its issuance is in control of the department. Likewise, the transfer of an existing permit from one place to another or from one person to another requires the approval of the department and is not dependent alone on the willingness or desire of the holder of the permit.
“The lower courts were in error in holding this provision of regulation 64 invalid.”

In the same case this court in Case No. 180,518 upheld the validity of Section 1, par. 1 of Rule 64, finding it to be reasonable and lawful. We, therefore, proceed to consider whether or not under the regulations of the Board of Liquor Control and the statutes of the State of Ohio, the Board of Liquor Control was in error in sustaining the rejection of the permit in question by the Department of Liquor Control.

Since rules validly enacted and properly promulgated by the Board have the effect of statutes, the same rules of construction which apply to the interpretation of statutes enacted by the Legislature, should apply. It is a well established principle of law that where an ambiguity exists, either because of doubt as to the meaning of the apparent inconsistency in parts of statutes enacted at the same time, the Court, in interpreting the meaning of the statute may consider the enactment as a whole and apply certain well established rules of construction in determining the meaning of certain sections of the statute in an attempt to harmonize the various parts of the enactment. We quote from 37 O. Jur. p. 820 as follows:

“Sec. 342. Harmonizing Statutes and Parts of Statutes. — In General, Consistency in statutes is of prime importance, and it is the duty of the court to attempt to harmonize and reconcile laws. That is, a statute or section should, if possible, be so construed as to harmonize and reconcile its provisions with other laws or sections so that all of them may stand. Accordingly, the rule is that all laws newly enacted by the general assembly must be presumed to harmonize with existing statutes on kindred subjects neither expressly nor impliedly repealed. Moreover, a construction of a statute which destroys the consistency thereof is to be avoided. The statute should, if possible, be so construed that its different parts are in harmony so as to render it a consistent and harmonious whole in subserviency to a common policy. These rules are based upon the presumption, or inference, that the legislature intended to be consistent and harmonious in the making of laws. This would be especially true where the statutes become effective on the same date or where the legislature declares in the title of an act that its purpose and intent is to harmonize the laws relating to the subject.”

We quote further from 37 O. Jur. p. 623:

“Sec. 343. — Limitations and Restrictions. — The only basis for considering the question of reconciliation of statutes would be an ambiguity of law, and the doctrine cannot apply where there is no such ambiguity. Where the case at bar does not raise the question of two inconsistent statutes, the doctrine of reconciling them has no application.”

It is the duty of the Court in construing the statute if possible to give effect to all sections of the statutory enactment and to avoid a construction which would render any part of the statute inoperative or meaningless. We quote from 37 O. Jur. p. 617, as follows:

“Sec. 341. Giving effect to all Statutes or Sections. It may be presumed to have been the intention of the legislature that all its enactments, which are not repealed, should be given effect. Accordingly, all statutory provisions should be so construed, if possible, as to give full force and éffect to each and all of them, and not to abrogate, defeat or nullify one by the interpretation of another, where that can be done by a reasonable construction of both. Accordingly, a construction should be avoided, which would render a part of the statutory law inoperative, meaningless, nugatory, purposeless, unnecessary, or useless, unless such a construction is manifestly required.”

It is another well established rule of construction that sections and acts in pari materia should be construed together as if they were a single statute. We quote from 37 O. Jur. p. 591, as follows:

“Sec. 331. Contemporaneous Statutes and Sections — In General. The general assembly, in enacting a statute, is assumed, or presumed, to have legislated with full knowledge and in the light of all statutory provisions concerning the subject-matter of the act, because the legislative mind, in the enactment of a statute, is directed to what has been enacted and exists as a part of the statutory law of the state on the same subject, or subjects related to it. It is therefore a fundamental rule of statutory construction that sections and acts in pari materia should be construed together- as if they were a single statute. All correlated parts of a statute should be construed together. Reasons for these rules are that such statutes are considered as acting upon one system and as having a common object, policy, and spirit. This is especially true in regard to a code of statutes relating to one subject, which may be inferred, and even presumed, to be governed by one spirit and policy. Without these rules there would be neither system nor harmony in the statutes, and their construction would, in most cases, be a mere matter of arbitrary guessing. However, a statute separate and apart from, and not in pari materia with, other acts is to be construed in its own light.”

We also quote from 37 O. Jur. p. 599, which defines what statutes or sections of statutes may be regarded as in pari materia as follows:

“Sec. 332. Statutes Regarded as in Pari Materia. Statutes or sections which expressly refer to each other or which relate to the same person or thing or to the same class of persons or things or to the same subject or object may be regarded as in pari materia. Sections have been considered in pari materia which are parts of the same law or act or which were formerly parts of one section or of the same original statute. Although sections of the same chapter of the Code have been regarded as in pari materia, the fact that they are found in different chapters of the Code does not prevent them from being in pari materia. They may be in pari materia even though they contain no references to each other, whether enacted concurrently, or at the same session of the legislature, or at different times. However, the fact that two statutes were enacted at different times is an element helpful to the conclusion that the statutes are not in pari materia. On the other hand statutes are not in pari materia which do not relate to the same subject and which have no common purpose and scope. There is no occasion for resorting to the rule of construction as to statutes in pari materia where the two statutes are entirely independent of each other, or where the two laws provide for entirely different systems to regulate a particular evil, or where the cases to which the two statutes apply are different in their nature. Thus, where two statutes are distinct in purpose, employ different remedies, and provide different penalties for offenses committed, they should not be so construed in pari materia as to employ the remedies of one for the prosecution of the other.”

In the instant case, both Regulation 11 and Regulation 64 deal with the subject matter of quotas and each of them also deals with the same types of permits, to-wit: D-3, D-4 and D-5 permits. However, there is an apparent inconsistency between the provision of Regulation 11 which provides that upon the surrender of a permit, applications shall be processed in the order in which they were filed until the quota is again filled and the provisions of Regulation 64 which provides that no new D-3, D-4 and D-5 permits shall be issued except permits issued pursuant to Regulation 14 and except also new permits issued upon the expiration of any permits to the same permit holder for the same location. Consequently, the Court is called upon to construe the second paragraph of Section 1 of Regulation 64 in the light of the principles of construction above referred to so that if possible, Regulation 11 and Regulation 64 may be harmonized and effect given to each.

The provisions of Regulation 11 with reference to the processing of applications where a permit has been surrendered until the quota is again filled, seem to be mandatory in character. This provision deals with a specific situation which arises where the maximum quota has not been filled because of the surrender of a permit and in our opinion, would apply to a situation where the quota mentioned in Section 1 of Regulation 64 is involved, as well as to the statutory census quota. This regulation provides that applications shall be processed until the quota is again filled in a particular subdivision following the surrender of a permit. By the enactment of Section 1 of Regulation 64, the Board has exercised its statutory authority to limit the number of new permits regardless of the maximum number possible under the statutory census quota. Section 1 of Regulation 64 provides in substance that the number of D-4 permits which may be issued within the State of Ohio and within each political subdivision thereof, shall be limited to a figure which shall be equal to the number of such permits issued and outstanding in each political subdivision as of April 11, 1949. This language bears the implication that while the number of permits in each subdivision shall not exceed the number issued as of April 11, 1949, new permits may be issued up to this limitation. Regulation 64 providing that no new permits shall be issued, with certain exceptions, while unambiguous in the language employed, appears to be in conflict with the first part of the regulation which establishes the policy of the Board fixing a quota as the number of permits issued and outstanding as of April 11, 1949. When we consider Regulation 11 above referred to the apparent intention of the Board in adopting the second paragraph of Section 1 of Regulation 64 is indicated. Regulation 11 has to do with quotas and the language of the section is broad enough to comprehend quotas established by the Board pursuant to its statutory authority in §6064-3 (h) GC, as well as statutory census quotas. There is nothing in Regulation 11 which indicates that it applies only to the statutory census quota. Since Regulation 64 in its entirety is not clear in view of the apparent conflict between the first and second sections thereof, the clear and unambiguous provision in Regulation 11 must be considered in determining its intent and scope. There is no indication in Regulation 11 that the Board intended to limit permits in a subdivision to a number less than issued and outstanding on April 11, 1949.

Under the stipulation of facts but two permits are now outstanding in Columbiana Township, Hamilton County, which number is less than the statutory census quota for said township and county and also less than the quota provided for in the first paragraph of Regulation 64. Under these circumstances, it is our opinion that the Board acted unlawfully and unreasonably in rejecting the application of the appellant.

The decision of the Board of Liquor Control will be reversed and this cause will be remanded to the Department of Liquor Control for further action.


text:
    APPEAL ON QUESTIONS OF LAW
    Ohio Appeals, Second District, Franklin County.
    No. 4914.
    Decided June 3, 1953.
    Isadore Topper, Columbus, for appellee.
    C. William O’Neill, Atty. Geni., Ralph N. 'Mahaffey, Asst. Atty. Geni., Columbus, for appellant.
   OPINION

Per CURIAM.

This is an appeal on questions of law from the judgment of the Common Pleas Court, reversing the order of the Board of Liquor Control affirming the action of the Department of Liquor Control in rejecting an application for a Class D-4 permit.

The issues presented are all ably discussed and clearly decided in a well written opinion by Judge Randall. We are in accord with the reasoning and conclusions of the Common Pleas Court and adopt Judge Randall’s opinion as our own.

Judgment affirmed.

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


author: By GRIFFITH, J.

text:
    COYLE, Estate of, In re. Deceased: DEPARTMENT OF TAXATION, Appellant, v. MIZER, as Executor, Appellee.
    Ohio Appeals, Seventh District, Portage County.
    No. 202.
    Decided March 4, 1954.
    C. William O’Neill, Atty. Geni., Jack H. Bertsch, Larry H. Snyder, Asst. Atty. Genis., Columbus, for the Department of Taxation of Ohio, appellant.
    Loomis & Jones, H. R. Loomis, Ravenna, for appellee.
   OPINION

By GRIFFITH, J.

This appeal is taken from an order of the Probate Court of Portage County, Ohio, overruling exceptions taken by the Department of Taxation, Division of Inheritance Tax of the State of Ohio, for the determination of inheritance tax made in the Estate of Edward A. Coyle, deceased.

The case was submitted as an appeal on questions of law and pertains to the interpretation of Items III and IV of the will of the deceased. Said items read as follows:

ITEM III.

All the rest and residue of my estate of every kind whatsoever, I give, devise and bequeath to Earl Mizer of Mantua, Ohio, in trust for the uses and purposes hereinafter mentioned. The use and income of said property to be paid for the support and maintenance of my son, Clarence Coyle, with full power and authority on the part of said Trustee to spend from the principal of said fund, if the use and income together with other property he may have an interest in is not sufficient to support and maintain him. I further authorize and empower my said Trustee to give to my said son any portion of the principal thereof which my said Trustee may believe to be for the best benefit of my said son. Said gift may, if my said Trustee so elects, include all the remaining portion of said trust fund. It is the intent and purpose of this trust fund to provide for the support and maintenance of my said son, with power to consume the principal for his support and maintenance, and with the full power to give to said son any portion or all of said principal, in the event my said trustee shall determine that my son would not waste or foolishly expend said funds.

ITEM IV.

Whatever may be left, if any, in said trust fund at the time of the death of my said son, I give, devise and bequeath to the heirs of his body. If he shall not leave surviving him any heirs of his body, then I give, devise and bequeath whatever may be left in said trust fund, if any, to my blood nieces and nephews, share and share alike. If any of said nephews or nieces should die prior to the death of my said son, leaving surviving them heirs of his or her body, then said heirs shall receive the portion of said trust fund which said niece or nephew would have received, if living.

In the determination of the tax, it was the duty of the Probate Court, under the provisions of 85343 GC, to take into account all possible contingencies set up in the will and to follow that line of succession which will yield the highest rate of taxation.

The purpose of §5343 GC, is stated by our Supreme Court in the case of Wonderly v. Tax Commission, 112 Oh St 233:

“The frank purpose of the inheritance tax law seems to be to secure for the state the highest rate of taxation that any given succession is justly susceptible of in the legislative mind and to secure the same to the state at the earliest moment subject to such refunders as the legislature has seen fit to allow.”

The Court failed, in the determination of the tax, to take into account the interests of the heirs of the body of nieces and nephews. It held that the remainder vested in the nieces and nephews at the death of the testator subject to being divested if heirs of his body survived the son, and that the language used is that of an absolute bequest.

The controversy arises over the effect to be given to the concluding sentence in Item IV which reads,

“If any of said nephews or nieces should die prior to the death of my said son, leaving surviving them heirs of his or her body, then said heirs shall receive the portion of said trust fund which said niece or nephew would have received, if living.”

Clearly the nieces and nephews have a remainder which vested at the death of Edward A. Coyle. Is that remainder subject to divestment upon the happening of either of these two contingencies?

(1) The death of the testator’s son leaving surviving heirs of his body.

(2) The death of the nieces and nephews prior to the death of the son with heirs of their body surviving.

The first contingency was recognized by the Probate Court but not the second. The Tax Commission contends that the Court should have taken into consideration this possible contingency in its determination. This the Court did not do holding, that the remainder having vested in the nieces and nephews, there could be no estate over to their “heirs of the body.”

The Court felt that this provision at the end of Item IV was of no legal effect or at most precatory in nature, and that the blood nieces and nephews of the testator are given an indefeasible estate in fee simple of whatever may be left in the trust fund upon the death of the son if the son does not leave any heirs of his body.

It is a well established principle of law that an absolute power of disposition or alienation in the first taker defeats a limitation over by way of executory devise. You cannot, in your will, give an absolute fee in one clause and then limit it or take it away in another clause of the will.

In the instant case, the fee which vested in the nieces and nephews was subject to be divested if the contingency set forth in the last clause of Item IV should occur and, if it should occur, then the fee which was vested in the niece or nephew became divested in such niece or nephew and vested then in the heirs of his or her body,

At the time of the death of the testator, the nieces and nephews had no right to possession immediately upon the determination of the particular intervening estate for three reasons:

1. The son may, at his death, leave heirs of his body.

2. The trustee, Earl Mizer, may spend from the principal all of the trust fund so that such fund would be totally exhausted at the time of the death of the son.

3. The nieces or nephews may die prior to the death of the son leaving “heirs of his or her body.”

In the case of Norris v. Beyea, 13 N. Y. 273, the Court, in discussing the application of the principle of law that an absolute power of disposition or alienation in the first taker defeats a limitation over by way of executory devise, stated at page 284 of its opinion:

“But there is, in truth, no repugnancy in a general bequest or devise to one person, in language which would ordinarily convey the whole estate, and a subsequent provision that upon a contingent event, the estate thus given should be divested and go over to another person. The latter clause, in such cases, limits and controls the former, and when they are read together it is apparent that the general terms which ordinarily convey the whole property are to be understood in a qualified and not absolute sense.”

The concluding clause in Item IV clearly created a condition or contingency which may happen and which comes within the purview of §5343 GC, and the Court should have heeded it. This clause limits the fee in the nieces and nephews.

Under Item III of the will, the trustee was clothed with authority to spend from the principal of the trust if the income thereof should not be sufficient to support and maintain the testator’s son who was the life beneficiary of the trust.

The largest tax in which any contingency the remaindermen may be required to pay requires the executor, in this case, to assume that the son will die without heirs of his body and that all the blood nieces and nephews will die prior to the death of the said son leaving surviving them heirs of his or her body who would receive the portion of said trust fund which said niece or nephew would have received if living.

The case of The Cleveland Trust Company, Trustee, Appellee, v. Irma P. Andrus, Case No. 1278, Lorain County Court of Appeals, decided March 25, 1953, has been cited by Appellee. (95 Oh Ap 503. OS No. 33613. MCO 10-14-53.)

In this case, the will provided for a life estate to the wife and then the estate was to pass to the four children and to the children of testator’s daughter, Clara, absolutely and in fee simple, and then it provided that should any of his children in the meantime die leaving heirs of his body, such portion should go to their children in equal shares.

The Court properly held that the remainder vested upon • the death of testator. The provision in that will differs from that in the instant case which provides,

“If any of said nephews or nieces should die prior to the death of my said son leaving surviving them heirs of his or her body, then said heirs shall receive the portion of said trust fund which said niece or nephew would have received if living.”

In the case before us, the will specifically provides a gift over to the heirs of the body of the nieces and nephews if said nieces and nephews “should die prior to the death of said son, leaving heirs of the body surviving.”

Such being the case, the heirs of the body of the nieces and nephews do take a contingent interest under the will, and such interest being a possibility or contingency should be considered in the determination of the tax.

The Court should take into account all the possible contingencies set up in Items III and IV of the will and follow the line of succession which will yield the highest rate of inheritance tax.

It is our opinion, therefore, that the tax on the succession to Earl Mizer, in trust, under Item III of the will of Edward A. Coyle, deceased, Should be controlled by §5335, paragraph 3, GC, which fixes the rate at 7% on such portion of the value of the property transferred up to $25,000 and with no exemption.

For the reasons given, the judgment of the Probate Court will be reversed, and the cause remanded for determination of the tax in accordance with this opinion.

Judgment reversed.


author: By WISEMAN, J. By THE COURT.

text:
    HITE, Plaintiff-Appellee, v. ANDREWS et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4780.
    Decided October 29, 1952.

      Hamilton & Kramer, Columbus, for plaintiff-appellee.
    Wiles & Doucher, Columbus, for defendants-appellants.
   OPINION

By WISEMAN, J.

This is an appeal on questions of law from a judgment rendered by the Common Pleas Court of Franklin County in favor of the plaintiff on a special verdict of a jury.

Plaintiff in her petition alleges that while she was driving in a southerly direction on North High Street. Columbus, Ohio, in the line of travel for southbound traffic nearest the center line of the street two automobiles ahead of her, in the same lane of traffic and traveling in a southerly direction, came to a stop, when the automobile first in line signaled for a left turn, whereupon plaintiff brought her automobile to a stop; that a few minutes thereafter an automobile owned and operated by the defendants, Inez E. Andrews and Victor Andrews, crashed into the rear of plaintiff’s standing automobile driving it forward against the automobile immediately ahead in the line of traffic; that the force of the impact caused injuries to the plaintiff. Plaintiff, also, charged the defendants with six specifications of negligence.

The defendants filed separate answers. Inez E. Andrews alleges in her answer that she was operating a motor vehicle in a southerly direction in Columbus, Ohio, at said time and place and came in contact with a motor vehicle operated by the plaintiff; and further answering denies each and every other allegation in said petition contained.

Victor Andrews in his amended answer alleges that on said date his motor vehicle was being operated in a southerly direction on North High Street and that a collision occurred; and further answering denies each and every other allegation in said petition contained.

The matter was tried to a jury. At the close of plaintiff’s case and, also, at the close of all the evidence, the defendants interposed separate motions for a directed verdict, which were overruled.

At the close of all the evidence and after the motions for directed verdict were overruled, the plaintiff on her own motion dismissed Inez E. Andrews as a party-defendant, and the cause proceeded against Victor Andrews. Upon request of the defendant, the jury was directed to render a special verdict on all the issues in the case.

The first four errors assigned are directed to the action of the Court in overruling the motions for a directed verdict. Inez E. Andrews, having been dismissed as a party-defendant, did not appeal and, therefore, we may disregard any action of the Court with respect to her. Error cannot be predicated on the action of the Court in overruling the motion for a directed verdict interposed by Victor Andrews at the close of plaintiff’s case, since Victor Andrews elected to make defense. Vol. 2 O. Jur., Part 2, Page 1590, Sec. 836. We consider whether the Court committed prejudicial error in overruling the motion of Victor Andrews for a directed verdict interposed at the close of all the evidence.

The plaintiff in her petition charged a joint operation of defendant’s automobile. The evidence at the close of plaintiff’s case and at the close of the entire case, shows that Victor Andrews was the owner and Inez E. Andrews was the driver of the automobile which collided with plaintiff’s automobile. The evidence shows that Victor Andrews and Inez E. Andrews were husband and wife, and that Inez E. Andrews, upon the request of the husband made on the previous day. was on her way to the railroad station to meet her husband and to drive him to their residence. On the theory of a joint enterprise, the plaintiff failed to make out a case. Victor Andrews not being the driver of the automobile, could only be held liable under the doctrine of respondeat superior. Agency was not made an issue by the pleadings. However, the issue was raised by the evidence. The entire case was presented to the jury upon this theory. Perhaps, the plaintiff at the time Inez E. Andrews was dismissed as party-defendant should have moved for leave to amend the petition to conform to the proof. See Vol. 31 O. Jur., Page 946. Undoubtedly, the Court in the exercise of a sound discretion and in furtherance of justice would have permitted such amendment, as it does not appear that the defendant was taken by surprise or was in any manner misled. Sec. 11363 GC. The finding of the jury on the issue of agency was as follows:

,«* * * Inez Andrews, who was driving her husband’s car with his permission and at his request on the way to pick him up at the Union Station in Columbus, Ohio.”

In our opinion this finding was sufficient to fix the liability of the defendant, Victor Andrews, for the acts of Inez E. Andrews.

Both in oral argument and in the briefs, counsel have discussed whether the plaintiff should have been required to elect against which defendant she would proceed, or whether the defendant had waived the matter by failing to object by demurrer or answer. As we view it, these questions are not determinative of the issues presented and, therefore, are not discussed.

After the special verdict was rendered both plaintiff and defendant moved for judgment. The motion of the defendant was overruled and the motion of the plaintiff was sustained. The action of the Court in sustaining the motion of the plaintiff and rendering judgment in her favor is assigned as error. The contention of the appellant is that the jury failed to find on two material issues, to wit: the defendant’s negligence and the proximate cause of the collision. The point is made that when the jury fails to find on a material issue, it is regarded as not proved by the party on whom the burden of proof rests. Masters v. The New York Central Railroad Company, 147 Oh St 293; Noseda v. Delmul, 123 Oh St 647. The pertinent part of the special verdict bearing on this question is as follows:

“On October 2, 1949, Betty Hite was driving her car south on North High Street in Columbus, Ohio. When she got to the intersection of Olentangy Street and High Street, she stopped behind two cars which had also stopped, as the front car was making a left hand turn. These three cars were all in the lane of traffic next to the center of the street. Several seconds after Betty Hite had given an arm signal and brought her car to a stop, her car was struck in the rear by a car also going south on North High Street, driven by Inez Andrews, who was driving her husband’s car with his permission and at his request on the way to pick him up at Union Station in Columbus, Ohio.” (Emphasis ours.)

It is pointed out by appellant that the special verdict is defective and incomplete and that the jury failed to find facts showing that the defendant was guilty of negligence or that such negligence was the proximate cause of the collision. However, the appellee contends that by the undisputed evidence the driver of defendant’s automobile was guilty of negligence and that the issue of fact involving the negligence of the defendant was resolved by the Court in favor of the plaintiff as a matter of law.

In one of the specifications of negligence the plaintiff charged the defendant with the failure to stop within the “assured clear distance ahead.” The driver of the defendant’s automobile testified that she did not see the plaintiff’s automobile until after she struck it, and did not apply the brakes on the automobile she was driving until after the collision. She also testified that she gave no signal and did not swerve her automobile to avoid the collision. This evidence was undisputed and it was sufficient to warrant a finding by the trial court that the defendant was guilty of negligence as a matter of law. Furthermore, this undisputed evidence warranted a finding by the trial court that as a matter of law the negligence of the defendant was the proximate cause of the collision. The point is made by counsel for appellee that these two issues were withdrawn from the consideration of the jury-

Appellant contends that in testing the sufficiency of a special verdict, the Court may not look beyond the pleadings and the special verdict. The general rule is that the special verdict must be complete and consistent in itself, and resort cannot be had to the testimony, even though uncontradicted, for facts wherewith to supplement it. Dowd-Feder Company v. Schreyer, 124 Oh St 504, 512; Penn. Rd. Co. v. Vitti, Admr., 111 Oh St 670, 678; Gendler v. The Cleveland Railway Co., 18 Oh Ap 48, 50; Globe Indemnity Co. v. Schmitt, 77 Oh Ap 413, 417; Vol. 39 O. Jur., Page 1145, Sec. 414. We are of the opinion that the general rule has no application here. While the record does not contain a specific finding by the trial court to the effect that it had resolved the issue of fact involving the negligence of the defendant in favor of the plaintiff as a matter of law, nevertheless, the record and the action of the trial court, acquiesced in by counsel for both parties, is susceptible of no other conclusion. An issue of fact that was not submitted or asked to be submitted to the jury when they rendered a special verdict will be considered as having been resolved in favor of the judgment rendered. Devine v. United States Mortgage Company, 48 S. W. 585 (Tex. Civ. App.) Vol. 24, L. R. A. N. S. 36. The issue of negligence was as effectually withdrawn from the consideration of the jury as if the defendant had admitted negligence in the answer. When resolved by the trial court as a matter of law, this issue of fact was no longer in the case.

Courts in other jurisdictions have held that undisputed facts need not be found in a special verdict; that no finding is necessary on facts which require a legal conclusion Kirby v. American State Bank, 18 S. W. (2d) (Texas) 599; 63 A. L. R. 1528; Murphey v. Weil, 89 Wis. 146; 61 N. W. 315; 76 A. L. R, 1142, 1143; Vol. 53 Am. Jur. Page 748, Sec. 1078. On this question two rules have been applied by the various courts. The strict rule is that the jury must find on all the facts, disputed and undisputed; the more liberal rule, which we approve and apply and which seems to be more in furtherance of justice, is that the special verdict is sufficient if the jury finds on all the essential controverted issues, and is not required to find on facts which, although put in issue by the pleadings, are uncontroverted on the trial, or are established by undisputed evidence and are resolved as a matter of law. Vol. 53 Am Jur. Page 755, Sec. 1088; Vol. 24 L. R. A. N. S. 36, 46.

The same rule is applicable with respect to proximate cause. Obviously, the Court resolved this issue in favor of the plaintiff. In Dowd-Feder Company v. Schreyer, supra, at page 515, the Court intimates that the question of proximate cause is not one for the jury to consider when it renders a special verdict. In Martz v. Floral Products Company, 17 Abs 118, and Sparks v. Sims, 56 Abs 336, this Court held that when the jury renders a special verdict, proximate cause must be determined by the jury or there must be findings of fact from which proximate cause must necessarily be inferred as a matter of law. If we were to hold that proximate cause is not to be determined by the jury, then the trial court acted properly in resolving the question as a matter of law and withdrawing it from the consideration of the jury. If we follow the recent rulings of this Court, which we are disposed to do until the Supreme Court has given a clear-cut decision on the matter, that proximate cause must be determined by the jury or there must be findings of fact from which proximate cause must necessarily be inferred as a matter of law, we have no difficulty in holding that proximate cause must necessarily be inferred from the findings of fact in the special verdict wherein the jury found that after plaintiff’s automobile had been stopped several seconds it was struck in the rear by defendants’ automobile. Under either theory, as we view it, the judgment is supported by the record.

The matter just discussed is related to the question raised by the appellant in assignment of error No. 6, to wit; That the Court erred in giving special instructions requested by plaintiff and in the general charge.

We fail to find prejudicial error in giving the special instructions. In the general charge, after reading the pleadings, the Court summarized the issues presented to the jury as follows:

“I charge you, ladies and gentlemen of the jury, that the issues in this case are simple and direct. They are:
“First. Did the plaintiff as the proximate and direct result of this collision suffer personal injuries? Second. If so, what amount of money would fairly and reasonably compensate her for such injuries so caused?”

In our opinion the trial court correctly stated the issues of fact to be determined by the jury, the other issues of fact having been resolved by the Court as a matter of law. In accord with this premise, counsel for the plaintiff submitted two special verdicts which were in narrative form, one of which was returned by the jury and contained findings of fact on the two issues specifically enumerated by the Court. It may be pointed out that §11420-16 GC provides that the jury may be directed to return a special verdict “upon any or all issues which the case presents.” The request was made for a special verdict on all the issues presented. The trial court complied with the requirements of this section and the request of counsel in submitting to the jury the determination of the only issues of fact in the case. The issues of fact resolved by the Court as a matter of law were no longer issues of fact-in the case. It follows that the trial court did not commit error in its general charge in stating the issues to be determined by the jury.

Appellant assigns as error the admission of evidence over objection. The defendant produced a witness who testified that he represented an Insurance Company and had paid the plaintiff a claim for damages to her automobile, which grew out of a collision which took place subsequent to the collision which is the basis of this action. In testifying the witness referred to a record of the Insurance Company. On cross-examination counsel for the plaintiff questioned the witness at some length concerning the transaction and over objection of the defendant the record was introduced. The record contained a statement of a conversation between the plaintiff and a representative of the Insurance Company relative to the prior accident, which is the basis of this action, and which included a statement of the plaintiff regarding her personal injuries which she claimed to have sustained. Inasmuch as the defendant’s counsel examined the witness concerning the transaction and referred to the record, we are of the opinion that the plaintiff had a right to introduce the record. Counsel for defendant interposed only a general objection to the introduction of the record. The objection was properly overruled. A general objection to the introduction of a record which is admissible for some purpose is properly overruled. The objection should have been directed to that part of the record which contained self-serving declarations and the Court should have been requested to restrict the use of the record for a limited purpose and to so instruct the jury. This was not done. In our opinion prejudicial error was not committed in the admission of the record.

Decided December 10, 1952.

We do not find that the jury was influenced by passion or prejudice in arriving at the amount of damages; neither do we find that the Court committed prejudicial error in overruling defendant’s motion for new trial. We find no errors assigned well made.

Judgment affirmed.

HORNBECK, PJ, MILLER, J, concur.

ON APPLICATION FOR REHEARING

No. 4780.

OPINION

By THE COURT.

Submitted on application for rehearing. All assignments of error were considered and decided in the original opinion. Nothing is presented in the application which requires additional discussion or consideration.

Application overruled.

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


text:
    WEINTRAUB et, Appellant, v. BOARD OF LIQUOR CONTROL et, Appellee.
    Common Pleas Court, Franklin County.
    No. 187543.
    Decided August 3, 1953.
    Feighan & Feighan, Cleveland, for appellant.
    C. William O’Neill, Atty Geni., Columbus, for appellee.
   OPINION

By BARTLETT, J.

MOTION FOR REHEARING DENIED.

No oral argument will be permitted on application for rehearing. Hughes v. Roberts, 18 Abs 438, 439. Sole office of such application is to direct court’s attention to matters of fact or law that have not been given attention; not to merely rehash same matters. White v. Columbus, et al., 27 Abs 487. 496.

As pointed out in previous opinion, this Court is not required to weigh the evidence.

It is now suggested by counsel for appellant that even though appellant’s present operation is contrary to the statute, that instead of denying the application for renewal it should be allowed upon condition that appellant take reasonable steps to separate the drug and restaurant business. These are matters to be addressed to the Department of Liquor Control rather than the courts.

“In effectuating the enforcement of the Liquor Control Act the Legislature, as we say in Board of Liquor Control v, Tancer, 48 Abs 63, has by §6064-8 GC reposed in the Board of Liquor Control the power to grant or refuse permits as long as it does so in accordance with the statute and other applicable laws .its decision is final and conclusive.”

Department of Liquor Control v. Slaughter, Court of Appeals case, 2nd District, No. 4917.

Application for rehearing denied.


author: By PHILLIPS, J.

text:
    STATE ex JETER, Plaintiff-Appellee, v. HARRIS, Defendant-Appellant.
    Ohio Appeals, Seventh District, Jefferson County.
    No. 1067.
    Decided December 2, 1953.
    Nathan Stern, Steubenville, for plaintiff-appellee.
    William C. Brown, Jesse K. George, Steubenville, for defendant-appellant.
   OPINION

By PHILLIPS, J.

Defendant appealed to this court on questions of law from a judgment of the court of common pleas entered upon a jury verdict finding him guilty of being the putative father of a child born out of wedlock to complainant, aged fifteen years at the time of conception.

Defendant contends by assignments of error, oral argument and brief that “the verdict is not sustained by sufficient evidence” and “is contrary to law”; and that the trial judge erred to his prejudice and abused his discretion in refusing to grant him a new trial on the ground of newly discovered evidence “which with reasonable diligence he could not have disclosed and produced at the time of trial.”

On December 31, 1950, defendant admitted to complainant’s mother in complainant’s presence that he had intercourse with her on December 23, 1950; and there is conflicting evidence that conception could have taken place on that date.

The newly discovered evidence as shown by defendant’s affidavit would only corroborate testimony offered at trial and had no bearing on whether or not defendant was the father of complainant’s child born out of wedlock, and could have been obtained at the trial if due diligence had been exercised.

Clearly the trial judge did not abuse his discretion in refusing to grant defendant a new trial on the ground of newly discovered evidence, and in our opinion there is ample evidence to support the judgment of the trial court entered upon the verdict of the jury.

Finding no error prejudicial to defendant in any of the respects urged nor any abuse of discretion on the part of the trial court the judgment of the court of common pleas must be and hereby is affirmed.

GRIFFITH, PJ, concurs.

NICHOLS, J, dissents on the ground that the verdict is against the manifest weight of the evidence.