author: By BARTLETT, J.

text:
    OHIO-MIDLAND LIGHT AND POWER COMPANY, Plaintiff, v. COLUMBUS AND SOUTHERN OHIO ELECTRIC COMPANY, Defendant.
    Common Pleas Court, Franklin County.
    No. 189301.
    Decided May 12, 1954.
    Vorys, Sater, Seymour & Pease, Columbus, for plaintiff.
    Porter, Stanley Trefflnger & Platt, Columbus, for defendant.
   OPINION

By BARTLETT, J.

HELD:

1. THE PROVISION IN THE CONTRACT BETWEEN THE PARTIES. THAT THE DEFENDANT COMPANY WILL NOT SELL OR DELIVER ELECTRICAL ENERGY DIRECTLY TO ANY CONSUMER LIVING UPON THAT PORTION OF ANY ROAD OR HIGHWAY UPON WHICH THERE EXIST LINES OF THE MIDLAND COMPANY (PLAINTIFF), HAS NO APPLICATION TO CONSUMERS LIVING ON THE STREETS OF CHILLICOTHE MANOR SUBDIVISION, EVEN THOUGH THE PLAINTIFF COMPANY HAS LINES UPON U. S. ROUTE 23 NEARBY AND SAID U. S. ROUTE 23 AFFORDS THE ONLY OUTLET FROM SAID CHILLICOTHE MANOR.

2. THE PRAYER FOR A PERMANENT INJUNCTION IS DENIED.

The plaintiff and the defendant are both Ohio corporations engaged in the business of selling electrical energy to consumers generally in the south central part of Ohio. Defendant also produces such energy and sells to plaintiff and others for resale to consumers. Both companies are public utilities under the Ohio law.

In March of 1950, the parties entered into a contract for a new place of delivery of electrical energy by the defendant to the plaintiff for resale by the plaintiff in the area comprising certain townships in Ross and Pickaway Counties. Said contract provides that “unless required so to do by order of the Public Utilities Commission of Ohio,” that defendant company “will not sell or deliver electrical energy directly to any consumer living upon that portion of any road or highway in the aforementioned territory upon which there exist the lines of the Midland Company, except with the knowledge and written consent of the Midland Company.” (Emphasis ours.)

In general, plaintiff serves the rural areas between Columbus and Chillicothe, while plaintiff serves Chillicothe and other municipalities in that area.

Said contract between the parties was approved by the Public Utilities Commission, “with the reservation to this Commission of the right to make such change, modification or alterations therein as may be thereafter necessary and proper.”

In February, 1954, the owner of certain real estate located just north of Chillicothe filed a plat thereof, known as Chillicothe Manor, subdividing said land into streets and parcels for 140 homes, and about 80 foundations of these homes have been constructed.

A distribution line of the plaintiff runs along the eastern side of Chillicothe Manor, upon U. S. Route 23; but said Chillicothe Manor is not contiguous to said U. S. Route 23 which affords the only outlet from said Manor, said distribution line of the plaintiff being only a few feet from.the boundary of said Manor. The plaintiff has no distribution lines on the streets of said Manor.

The plaintiff solicited the privilege of furnishing the electrical current to said Manor; but the owner of the Manor saw fit to request that such service be furnished by the defendant company, and on February 4, 1954, entered into a contract with the defendant company covering the furnishing of such electric service for the construction work in said Manor, as well as service for the 140 homes to be built therein.

Pursuant to its contract, the defendant company constructed its distribution line from its high line down to the 30 foot strip of said Manor, and into the Manor itself; and has substantially completed its distribution system within the Manor, and has since been serving Chillicothe Manor for flood lighting and construction work.

The municipal rate for service by the defendant company is much cheaper than the rural rate available by the plaintiff company. It is conceded by the officers of the plaintiff company that all of its consumers in that general area were being charged the higher rural rate, and it could not lower the rate in Chillicothe Manor without the consent of the Utilities Commission upon the contemplated application of the plaintiff company.

“The policy of the law, or public policy, is a phrase of common use in estimating the validity of contracts. * * *; it is most likely that agreements which tended to restrain trade or to promote litigation were the first to elicit the principle that the courts would look to the interests of the public in giving efficacy to contracts.” Law of Contract by Anson, 11th English Ed., 2nd American copyright Ed., by Huffent, p. 241.

“A covenant might be fair as between the parties and yet injurious to the public interest. It would then be held void.” Id. p. 252.

“Such for example are cases where the coventor is exercising a public franchise or engaged in a business ‘impressed with a public trust.’ ” Gibbs v. Consolidated Gas Co., 130 U. S. 398, 408-9. Id. note 2 p. 252.

“Courts decline to enforce contracts which impose a restraint, though only partial, upon business of such character, that restraint to any extent will be prejudicial to the public interest. * * *

“A corporation cannot disable itself by contract from the performance of public duties which it has undertaken, and thereby make public accommodation or convenience subservient to its private interests.” Gibbs v. Consolidated Gas Co., etc., 130 U. S. p. 396.

Chief Justice Fuller in his opinion in the foregoing case on page 408 says:

“The supplying of illuminating gas is a business of a public nature to meet a public necessity. It is not a business like that of an ordinary corporation engaged in the manufacture of articles that may be furnished by individual effort. (Cases cited.) Hence, while it is justly urged that those rules which say that a given contract is against public policy, should not be arbitrarily extended so as to interfere with the freedom of contract, Printing, etc., Registering Co. v. Sampson, L. R. 19 Eq. 462, yet in the instance of business of such character that it presumably cannot be restrained to any extent whatever without prejudice to the public interest, courts decline to enforce or sustain contracts imposing such restraint, however partial, because in contravention of public policy.” (Cases • cited.)

On page 410 Chief Justice Fuller continues:

“Innumerable cases, however, might be cited to sustain the proposition that combinations among those engaged in business impressed with a public or quasi public character, which are manifestly prejudicial to the public interest, cannot be upheld.”

“* * * Such agreement necessarily tends to create a monopoly; * * * the interest of the public in the non-enforcement of such an agreement outweighs the interest of the purchaser in its enforcement, and is void.” Lufkin Rule Co. v. Fringeli, et al., 57 Oh St p. 596.

A contract in restraint of trade is presumed to be illegal, and such presumption must be overcome by the party seeking to enforce it, before relief can be had. Lange v. Werk, 2 Oh St 519.

Prior to the passage of the Public Utility Act, an agreement between two public utilities attempting to make a division of territory was void as against public policy. In Telephone Co. v. Telephone Co. 12 N. P. (N. S.) p. 289 (1911) it was held as follows:

“An agreement between two such companies that neither will operate in the territory of the other, or connect with each other’s competitors, is against the public policy of the state, and a court of equity will not enforce such a contract unless the illegal part can be eliminated; and if it appear that the contract would not have been entered into had the exceptionable provisions been omitted, it is evident that the consideration is to that extent unlawful and the contract can not be enforced in any part.”

If the agreement in the instant case relating to the division of customers is valid, its validity results solely because of the approval thereof by the Utilities Commission under the authority of §4905.48 R. C. (formerly §614-60 GC).

It will be seen, therefore, that the contract between the plaintiff and defendant in the instant case, and the statute under which the Utilities Commission lent its approval to said contract, are both' in derogation of the Common Law and must be strictly construed.

Syl. 2: “In giving construction to a provision of a statute, or a contract, which attempts to abrogate, or modify, a well established rule of the common law, the scope of the provision should not be extended beyond the plain import of the words used if reasonable effect can otherwise be given to it.” Felix v. Griffiths, 56 Oh St 39.

Plaintiff company contends that the residents of Chillicothe Manor will be “living upon” U. S. Route 23 within the meaning of that term as it has been used by the parties in their contract in question. On the other hand the defendant company takes the position that the consumers in question will be “living upon” the duly dedicated streets of Chillicothe Manor rather than “upon” U. S. Route 23, and, therefore, do not fall within the terms of said contract between the parties.

“Upon now differs little in use from on,” Funk and Wagnalls Practical Standard Dictionary.

“Denoting Place, Position, or Location. The words ‘on’ and ‘upon’ are frequently employed as prepositions to denote place, position or location, and may be used to express relative, as well as absolute, position. The precise import of the terms when used as descriptive of a place or location is to be determined by surrounding facts and circumstances. When used of place or position with regard to the upper and external part of something, the terms are defined as meaning in a position above and in contact with; being in contact with the surface or upper part of a thing and supported by it; placed or lying in contact with the surface; and it has been said that this is the ordinary and usual signification of the words. However, the terms do not always mean on top of, or resting upon, but may mean attached to, or to or against the surface of, and frequently they are employed in a sense different from ‘superimposed’ or ‘superincumbent,’ and not infrequently are used to designate nearness in place or situation without necessarily implying actual contact or support. In all such cases where the terms are so used it will be found that the context itself makes clear the meaning intended to be conveyed, and in the very physical nature of things negatives the ordinary meaning of support from beneath, or superimposition of one thing over another. In this sense the terms have been variously defined as meaning contiguous to; as meaning adjacent to, and have also been defined as meaning adjoining; alongside of; at; by; near or near to.” 67 C. J. S. p. 494.

“While it is both correct and usual to say that St. Louis is on the Mississippi River, or that Jefferson City or Smith’s farm is on the Missouri Pacific Railroad, and we instantly know that what is meant is that these cities, or this farm are near to, along side of, or is adjacent to the river, or the railroad.” Turner v. Fidelity and Casualty Co. etc., 202 S. W. 1078, 1080 (274 Mo. 260).

“ ‘on’ does not always mean on top of or resting upon, for some times, but less frequently, it means contiguous to. as when we say ‘a house on Main Street,’ ” London Assur. Corp. v. Thompson, 62 N. E. 1066, 1068 (170 N. Y. 94).

“The word ‘on’ does not always or necessarily imply actual contact, and is not infrequently used to designate nearness in place or situation. Structures are often described as being on a street, or on a road, or on a stream, when in fact they do not physically touch the street, road, or stream. This latitude in the use of the word is recognized in law.” Forest View Land Co. v. Atlantic Coast Line R. Co. 91 South, 198, 201 (120 Va. 308).

“ ‘on’ means ‘upon’—the surface.” Riser v. Federal Life Ins. Co., 224 N. W. 67, 68 (207 Iowa 1101); to same effect Century Dictionary and Clapp Co. v. Fox, 124 Oh St 331, 336.

An exhaustive search of the cases using the term “upon” a given highway, fails to disclose any authority warranting the conclusion that residents “living upon” the streets of a subdivision, may be considered as “living upon” a U. S. route nearby, merely because such U. S. route is the only outlet from said subdivision.

The contract in question between the parties, as well as the statute under which the Utilities Commission lent its approval of said contract, being both in derogation of the common law, the law requires a strict construction thereof; and the Court is of the opinion that under the decision of the Supreme Court of Ohio in the case of Felix v. Griffith, supra, “In giving construction to a provision of” the contract in question, “the scope of the provision should not be extended beyond the plain import of the words used.”

It is, therefore, the finding of this Court, that the consumers of electric energy who may reside on the various streets of Chillicothe Manor, do not and will not within the contemplation of the law and the contract between the parties in the instant case, be considered as “any consumer living upon” U. S. Route 23 “upon which there exist the lines of the (plaintiff) Midland Company.” In other words, the contract of the parties has no application to the consumers of electrical energy who may reside in said Chillicothe Manor.

The fact that four years after the contract between the parties was entered into, the plaintiff has not an available rate applicable to the residents of said Manor but must seek authority from the Utilities Commission to establish such a rate, is certainly strong evidence that the ■ furnishing of electrical energy to such residents under the circumstances in the instant case, was not within the contemplation of the parties at the time their contract was executed.

It is equally unlikely that the commission contemplated the furnishing of such service by the plaintiff company at the time it approved said contract.

“The Public Utilities Commission is hereby vested with the power and jurisdiction to supervise and regulate public utilities, * * * and to require all public utilities to furnish their products and to render all services exacted by the commission or by law,” §4905.04 R. C.

The contract between the parties expressly recognizes the authority of the Utilities Commission to require the defendant company to furnish power to such consumers regardless of its contract with the plaintiff company.

Whether the grant of authority to the Public Utilities Commission to supervise and regulate public utilities, and to require them to furnish their products and to render all services exacted by the commission or by law, prescribes a wise plan, is not for the courts to decide; so long as an act of the General Assembly is constitutional, a question of policy is solely for the Legislative branch of our state government to determine; such act does provide the general assembly’s plan for regulation and supervision of the Public Utilities of Ohio. State ex rel v. Glander, 148 Oh St 188. Such power to regulate and supervise the functions of public utilities having been lodged with the Public Utilities Commission in the public interest, the courts should carefully avoid hampering the agency duly authorized by Constitutional enactment to provide such supervision and regulation.

“The purpose of the General Assembly in providing for administrative hearings in particular fields was to facilitate such matters by placing the decision on facts with boards and commissions composed of men equipped with the necessary knowledge and experience pertaining to a particular field.” Turner, J., p. 224 in the case of Farrand v. Medical Board, etc., 151 Oh St 222.

The courts must exercise care not to place themselves in the position of usurping the power “to supervise and regulate public utilities”; otherwise the courts may find themselves responsible for a lack of such supervision and regulation.

Undoubtedly, if the jurisdiction of the Public Utilities Commission were invoked by Chillieothe Manor or either party to this action, the Commission would be required to determine, in the public interest, which utility should serve Chillieothe Manor; regardless of the contract between the parties; and if the decision required any modification of such contract, then the Commission might order it modified accordingly. The Court is of the opinion that the Commission should be afforded the opportunity to pass upon these matters in the public interest. Certainly, this Court has no right or jurisdiction to determine which utility shall render the service. Sylvania Telephone Co. v. P. U. C. O., 97 Oh St 202.

“The application for an injunction is addressed to the sound discretion of the judge who-allows it.” Burnet v. Corp. of Cincinnati, 3 Ohio 73, 88; McCord et al. v. Iker, 12 Ohio 387.

A permanent injunction will be granted only when a party shows a clear right thereto. Spangler v. City of Cleveland, 43 Oh St 526. The extraordinary character of the remedy requires that it shall be exercised sparingly and cautiously. 21 O. Jur. p. 1007; Goodall v. Crofton, 33 Oh St 271. Consideration of public policy and convenience should also be considered.

The Court, therefore denies the prayer of plaintiff company for a permanent injunction.

In view of the Court’s decision as announced herein, it is unnecessary to pass upon the other questions raised. Entry accordingly with exceptions by counsel for plaintiff company.


source: Caselaw Access Project

author: By THE COURT.

license: Public Domain

text:
    STATE, ex rel. DAVIS, Plaintiff-Appellee, v. SEVERT, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4453.
    Decided November 17, 1950.

      Thomas W. Applegate, Columbus, for plaintiff-appellee.
    L. P. Henderson, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

Submitted on motion by the plaintiff-appellee seeking an order dismissing the appeal for the reason that the same was not filed within the time required by law.

The record discloses that the defendant-appellant was tried upon a bastardy charge and on March 6, 1950, judgment entry was filed finding the' defendant guilty and ordering him to make certain payments. On March 21 a motion for a new trial was filed which it will be noted was more than ten days after the date of judgment. On March 27 the notice of appeal was filed directed to the judgment of March 6, 1950. On August 8, 1950, an entry was filed overruling the motion of March 21, 1950, and dismissing the notice of appeal filed on March 27, 1950, for the reason that it was filed more than twenty days after the date of judgment. ‘On August 22, 1950, the notice of appeal from the judgment of March 6, 1950, was refiled. From this record we find that since the motion for a new trial was not filed within the ten days after the filing of the judgment entry, that the time within which to file the notice of appeal began to run on March 6, 1950; that the filing of the same on March 27,1950, was more than twenty days after the date of judgment and therefore was not filed within the time allotted by §12223-7 GC. The notice of appeal filed on August 22, 1950, can have no relation to the overruling of the motion for a new trial entered on August 8,1950, as this motion was filed more than ten days after the date of the judgment. Since the notice of appeal was not filed within the statutory period of time the motion to dismiss will be sustained.

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


author: Per CURIAM:

text:
    ROYAL SAUSAGE & MEAT CO., Plaintiff-Appellant, v. AETNA CASUALTY & SURETY CO., Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22788.
    Decided February 3, 1954.
    O. J. Green, S. N. Hosenball, Cleveland, for plaintiff-appellant.
    Arter, Hadden, Wykoff & Van Duzer (J. H. Wilkinson, of Counsel), Cleveland, for defendant-appellee.
   OPINION

Per CURIAM:

In this appeal on questions of law from the Municipal Court of Cleveland error is predicated upon the action of the trial court in granting defendant’s motion made at the close of plaintiff’s case for a directed verdict and entering judgment for the defendant.

Plaintiff filed his petition praying for judgment against defendant upon an insurance policy issued by defendant for loss due to “water damage.” The essential facts are not in dispute. The plaintiff had in his premises located at 5015 Fleet Ave., Cleveland, Ohio, an industrial appliance known as a sausage staffer operated by air pressure. On August 20, 1950, plaintiff was using the sausage stuffing machine in the manufacture of wieners and bologna. In this operation the staffer was filled with ground meat weighing around 290 to 300 pounds. The air pressure applied was from 60 to 80 pounds. By this process, the ground meat was forced into visking casings which formed the completed product of wieners and bologna. During the course of the operation two accidents occurred on that day due to the rupture of the top of the stuffing machine under air pressure. The first accident occurred early in the day and is not here involved because there was no water damage as result thereof. The second accident resulted in water damage by reason of a part of the ruptured top of the machine striking a water pipe with violence sufficient to cause a leak.

Plaintiff testified in substance in relation to the first accident, reference to which is necessary only to show the sequence of events, that the “top of the machine * * * blowed out.” At this time the meat which was in the staffer was spread all around the room by reason of the rupture of the metal top and the force of the sudden release of the air pressure.

After this accident the plaintiff called The Guarantee Welding Company which sent three men to his premises and who proceeded to weld the broken pieces of the top together and assured plaintiff that the welded pieces would hold up under “a thousand pound pressure.” The welding was done by them on the premises, and the top was closed by the workmen and the machine again placed in operation. The air pressure was again applied and the top that had been welded cracked once again throwing one of the parts of the top into the air a distance of about four and one-half feet striking a one and one-half inch water pipe running down to the sausage staffer with such force as to pierce the pipe and to cause the water to flow from the pipe and flood the premises doing extensive damage to meat and visking casings on tables in the midst of preparation for further manufacture. A claim was made to the defendant insurance company under the provisions of the policy. The insurance company, after investigation, declined to allow the claim on the ground that the leak was caused by an “Explosion,” a peril not included in the policy.

The trial court directed a verdict entering a 'judgment for defendant on the ground that the water damage was due to an explosion within the meaning of the policy. Plaintiff contends that the trial court erred in holding as a matter of law that the damage was caused by the excepted peril of “explosion” and asserts that the question should have been submitted to the jury as a matter of fact or that the court should have directed a verdict for plaintiff, leaving to the jury the sole question of determining the amount of damage to which plaintiff would be entitled.

So far as pertinent, the provisions of the policy are as follows:

“Water Damage”: Wherever in this policy, the term “Water Damage” occurs, it shall be held to mean (a) the accidental discharge, leakage, or overflow of water or steam from within the following source or sources; plumbing systems (excluding sprinkler systems) plumbing tanks for the storage of water for the supply of a plumbing system heating systems, elevator tanks and cylinders, standpipes for Are hose (except when supplied by a sprinkler system) industrial or domestic appliances and refrigerating or air conditioning systems: (b) the accidental admission of rain or snow directly to the interior of the building through defective roofs, leaders or spouting, or through open or defective doors, windows, skylights, transoms or ventilators.”
“Perils not included: This company shall not be liable for loss by ‘water damage’ or collapse or fall of a tank caused directly or indirectly by * * * (k) explosion (including explosion of refrigerating and air conditioning systems): (1) explosion or rupture of steam boilers or fly wheels * * *.”

At the outset it is well to note, for the purposes of the motion for judgment made at the close of plaintiff’s case, that two principles of law operate favorably to the plaintiff: (1) upon such motion plaintiff was entitled to have the evidence construed most strongly in his favor and (2) the policy having been prepared by and presented by the insurance company, the plaintiff was entitled to have the terms thereof strictly construed against the defendant.

In consideration of these principles of law, the question arises whether reasonable minds could arrive at one conclusion which, if favorable to the defendant, would require the court to grant the motion. If, on the other hand, reasonable minds could arrive at different conclusions, the plaintiff was entitled to have the case submitted to the jury under proper instructions by the court.

In our analysis of the pertinent provisions of the policy we conclude that “water damage” due to the accidental discharge, leakage or overflow of water from within the plumbing system, if caused by an explosion, would require this court to affirm the judgment of the trial court.

The parties have favored this court with five separate briefs in which many cases are cited and quoted from this and other jurisdictions.

In its original brief the plaintiff contended for a'submission of the case to the jury on the question of fact, but in its final brief argues that plaintiff is entitled to a directed verdict in its favor. Plaintiff has cited as a leading Ohio case, United Life, Fire & Marine Ins. Co. v. Foote, 22 Oh St 340. That case involved a policy of insurance against fire, but excepted from the risk, any loss by explosion. The court in paragraph 1 of the syllabus said:

“In an action upon the policy it appeared that an explosive mixture of whiskey vapor and atmosphere had come in contact with the flame of a gas jet from which it ignited and immediately exploded, whereby a fire was set in motion which destroyed the insured property.

“Held, that in such case it cannot be said that the destruction was caused by a fire within the meaning of the policy, but on the contrary the loss was by fire occasioned by the explosion.”

Plaintiff quotes from the language of the court at page 348 to the effect that an explosion is an idea of degrees “and the true meaning of the word in each particular case must be settled not by any fixed standard or accurate measurements, but by the common experience and notions of men in matters of that sort.”

It is significant to note, however, that the court in that case held as a matter of law that the fire loss was occasioned by the explosion.

Plaintiff cites and quotes from many other cases decided in other jurisdictions. We have examined these authorities and numerous other cases cited by defendant. We find no case directly in point due perhaps to the unusual facts and circumstances of this case.

The only witness for plaintiff was the President of the company. In his testimony concerning the first accident, he stated that the machine “blowed up,” that it “blew up.” After the top of the machine had been welded, he testified that when the air was applied, “the top blew up again, blew up this time on the ceiling and the water pipe was damaged. In his cross-examination, he testified as to the second accident: “I heard this bang noise, then the meat splash around the sausage machine and the bulbs breaking.” Another example of plaintiff's testimony follows:

“Q. When this machine exploded the first time, did you use the stuff that was inside of it, the meat that was in it?
“A. This exploded the first time, that what was good I used, what was no good I cannot use * *
And again,
“Q. Was this a loud noise?
“A. When the meat splashed all around and the water pipe broke, you could hear it.
“Q. What was the first thing you heard?
“A. I heard this bang noise then the meat splash around the sausage machine and the bulbs breaking.”

From this and other testimony, it is clear that the witness described what he considered to be an explosion.

In Commercial Union Fire Insurance Company of New York v. Bank of Georgia, 197 Fed. 2d, 455, the United States Circuit Court of Appeals for the 5th Circuit gave this following definition of the word “explosion” and in the course of the definition cited authorities and inter alia referred to the Ohio case of United Life, Fire and Marine Ins. Co. v. Foote, et al, supra, with approval:

“An explosion is a rapid, sudden, and violent expansion of air or relinquishment of energy, causing a rupture and accompanied by a loud noise, not necessarily extremely loud. Fire is perhaps the principal cause of explosions, but they may be produced without the aid of fire. A flywheel may explode from excessive speed if its governor breaks. Even severe frost often eauses trees to explode. It has been said that there is no difference in ordinary usage between explode and burst; the ordinary idea is that the explosion is the cause while the rupture is the effect. 1 Bouvier’s Law Dictionary, Rawle’s Third Revision, page 1161 citing United Life, Fire & Marine Ins. Co. v. Foote, 22 Oh St 340, 348; Evans v. Columbian Ins. Co. 44 N. Y. 146, 150. The acts that constitute an explosion within the meaning of the extended coverage provision of this policy must be determined from the language of the policy, the ordinary uses of the word, the common experience of men, and their general notions in matters of this sort. One of the definitions in Webster’s dictionary for the verb explode is to ‘burst noisily.’ In Louisville Underwriters v. Durland, 123 Ind. 544, 24 N. E. 221, 223, 7 L. R. A. 399, the court said that the bursting of a boiler and the explosion of a boiler were one and the same thing. In 35 C. J. S., Explosion, page 215, note 3, it is said that an explosion may be produced by the sudden liberation of air from an air gun.” (Emphasis supplied.)

Applying this comprehensive and accurate definition to the facts of the instant case as developed through the testimony of plaintiff’s only witness and to the entire record, we are constrained to hold that the efficient cause of the leak and resultant “water damage” was the explosion of the sausage stuffing machine.

It is our conclusion that the explosion was due to the application of compressed air to the filled stuffing machine in such a manner as to cause the metal top of the machine to burst into pieces, causing one of the exploding pieces of metal to pierce the water pipe, producing the leak and subsequent “water damage,” within the meaning of the policy. On this question, we think that reasonable minds could come to only one conclusion and that adverse to the plaintiff.

For the reasons stated, the judgment of Municipal Court is affirmed. Exceptions noted. O. S. J.

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


author: By HANNA, J.

text:
    REEVES, Appellant, v. BOARD OF REVIEW, BUREAU OF UNEMPLOYMENT COMPENSATION et al., Appellees.
    Common Pleas Court, Cuyahoga County.
    No. 643950.
    Decided April 8, 1954.

      Davis, Davis & Handelman, Cleveland, for appellant.
    C. William O’Neill, Atty. Genl., Clarence E. McLeod, Asst. Atty. Genl., Columbus, for appellee.
   OPINION

By HANNA, J.

This cause is before the Court a second time on appeal from the decision of the Board of Review of the Bureau of Unemployment Compensation, the decision of its referee having become the final decision of the Board upon the disallowance of appellant’s application to institute a further appeal before the Board.

Subsequent to this Court’s ruling on December 30, 1953, the administrator of the Bureau of Unemployment Compensation moved to be made a new party appellee and to set aside the judgment and order of the Court and for a new trial of this cause. Both motions were granted. The administrator was made a party appellee and the case was restored to the list for trial.

The decision of the Board of Review was to the effect that the appellant “quit work without just cause.” The issue presented by this appeal is.—“Did the plaintiff voluntarily quit her work without just cause?”

The appellee further contends that there is no basis upon which a reversal of the decision of the Board of Review can be founded.

At the outset it should be borne in mind that unemployment compensation is not to be regarded as a give-away program. It is in the nature of insurance for which one qualifies by reason of being employed and which is financed by contributions made to the fund during the periods of employment and whose benefits are payable only to those who meet the test of eligibility. But the provisions denying the worker the right to receive benefits should not destroy the underlying purposes of the legislation conferring the right, and to that end such legislation should be liberally construed.

The facts -essential to a determination of the issue as to whether or not plaintiff quit without just cause as here presented are:

Claimant was classified as a machine operator working on a first shift—a daytime employment. No work being available in her department on April 21, 1951, she was offered a transfer to another department for similar work on the third shift— a nighttime employment commencing at 10:30 P M. She refused, stating that she was afraid to walk alone at night as would be required passing to and from her home and place of employment. Her refusal was interpreted by the. Bureau of Unemployment Compensation as a voluntary quitting of her work without just cause and it was ordered that all base period wages be excluded in computing benefits and that claimant’s benefit rights be suspended.

In support of her contention that the cause of her refusing the transfer was a just one, appellant cited her concern for her own safety in traveling to and from her place of employment in the night season. The certified record of the proceedings pertinent to the decision which was filed in this court discloses two experiences, both in the night season, which might well form the basis of her concern. The first occurred a couple of years before when she was attacked by a man in her neighborhood and the second occurred when she was followed by a man in the vicinity of the plant when she worked on the second shift. Both the claims examiner of the Bureau of Unemployment Compensation and its administrator found that the neighborhood in which appellant resides “is considered a bad neighborhood in the Cleveland area.” In common with many industrial areas, the neighborhood in which the employer’s plant is located is not one in which in the darkness of the night the weak and timid would walk without some trepidation or the strong would venture without some vigilance.

Was appellant’s reason for quitting compelling? Was .it real not imaginary, substantial not trifling, reasonable not whimsical nor capricious? The attack which had been made upon her near her home and the subsequent experience of being followed near the plant had occurred at night. In the brightness of day she walked in safety to and from her home and her employer’s plant but at the close of day there fell not quiet peaceful night but the night of Milton’s Paradise Lost

“********** when night “Darkens the street, then wander forth the sons “Of Belial, flown with insolence and wine.”

In the opinion of this Court these occurrences most certainly have left their mark upon the claimant and are such as would normally cause a reasonable person to avoid the danger of recurrence. It readily appears that her reason for laying off was neither imaginary nor capricious and certainly it was not trifling. In view of the fact that she returned to work in June when daytime employment was again available, we are impelled to conclude that the reason was also genuine.

Did the appellant have good cause for quitting? Or did her action under these circumstances disqualify her as a recipient of benefits? Throughout the chapter of Ohio laws on the subject of unemployment compensation we find provisions protecting workers from being rendered ineligible for benefits for a refusal to accept new work. Among other reasons specified are the distance of the new place of employment from the worker’s home, travel which involves more expense, and that the pay, the hours or the working conditions are below standard for the locality.

The safety of the worker from bodily harm, whether the attacker be bent upon rape, robbery or malicious mischief is much more important than any or all of the reasons so enumerated in the statute to preserve the worker’s eligibility.

The Court holds it to be repugnant to the principles of American jurisprudence and offensive to belief in the DIGNITY OF MAN to place a higher value upon convenience than upon chastity or to appraise life and limb more cheaply than the cost of transportation.

Where the record discloses experiences undergone by an employee proceeding to and from her place of employment in the night season which experiences would cause a reasonable person to fear for her safety a bona fide refusal by such employee of a transfer from daytime employment to nighttime employment is justified and does not constitute quitting work without just cause.

Appellees, however, contend that there is not presented to this Court sufficient basis upon which a reversal of the decision of the Board of Review can be sustained. It is interesting to note that this contention was not made at the first hearing of this appeal but only at the second hearing and after the Court had announced its conclusion that the defendant did not quit work without just cause.

An examination of the decision of the Board of Review reveals that it considered the entire record when it denied plaintiff a further appeal. The record contained statements of the plaintiff of the reasons she refused the transfer to nighttime employment. These statements were made in connection with her application for benefits and in accordance with the provisions of the Unemployment Compensation Act. This act provides penalties for fraudulent misrepresentation or false statement in connection with such application. Therefore we must assume that the statements made in connection with plaintiff’s claim for benefits were made with knowledge of the penalties attendant upon false claims and fraudulent representation. It is logical to assume that the Board of Review of the Bureau of Unemployment Compensation thus regarded these statements in the record. It may be urged that statements made under oath in an oral hearing have more probative value than those made in an application for benefits. That is probably, though not necessarily, true, depending in large measure upon the individuals making the statements. But these statements in the application are not without probative value and to recognize this it is not required that one adopt with Mr. Justice Holmes “the bad man” philosophy of the law i. e. that man is bad at heart and his obedience to law must be compelled by fear of punishment to the exclusion of the noble impulses which produce respect for law in the vast majority of people.

It is not difficult to conclude from a reading of the Board’s decision that upon its examination and consideration of the entire record, the Board adjudged these circumstances and occurrences to be INSUFFICIENT IN LAW to constitute just cause for the claimant quitting her work.

Counsel for the appellees cite -the case of General Motors Corporation v. Baker, et al, 110 N. E. 2nd, 12 as controlling. However, an examination of the facts in the Baker case and the instant case discloses an essential variance. In the Baker case,—the employer appeared at the time of the oral hearing and submitted evidence opposing the allowance of the claim. In the instant case the employer did not appear in opposition to the claim at the time assigned for oral hearing, from which it may fairly be inferred that the facts were not in dispute but only the legal effect thereof. In the Baker case, the court held that the employer, having been denied the right of cross examination, had not had a fair hearing, and had not been accorded due process of law. In the instant case there was no denial of due process and the employer, not having appeared at the time set for the oral hearing, it is logically deduced that it did not wish to cross examine the claimant but was content to rest upon the insufficiency in law of the facts asserted by her.

It is the judgment of this Court that the decision of the Board of Review of the Unemployment Compensation is unreasonable and contrary to law, and it is reversed and a final judgment entered for the appellant.


author: By THE COURT: By THE COURT:

text:
    STATE, Plaintiff-Appellee, v. POTTS, Defendant-Appellant.
    Ohio Appeals, Second District, Madison County.
    No. 186.
    Decided July 1, 1953.
    Forrest E. Sidener, Jr., Pros. Atty., London, for plaintiff-appellee.
    Harvey Crow, Urbana, for defendant-appellant.
   OPINION

By THE COURT:

Submitted on motion of appellee to strike the bill of exceptions and dismiss the appeal for the reason that the bill of exceptions was not filed within the time fixed by §13445-1 GC.

The motion for new trial, after judgment and sentence, was filed on the 25th of April, 1953. The notice of appeal was filed the same day, the bill of exceptions was settled, allowed and filed with the Clerk of the trial court on June 4, 1953. Forty days elapsed between the date of the overruling of the motion for new trial and the filing of the bill of exceptions.

Sec. 13445-1 GC provides

“The Court shall fix the time within, which such bill of exceptions, or objections, shall be filed which, in no case, shall be more than 30 days from the overruling of the motion for new trial.”

A similar statute, §11564 GC, controlling the time of filing of bill of exceptions in civil cases has been held, without exception, to be mandatory. We have held in State v. Jarcho, 65 Oh Ap 411 that the provision of §13445-1 GC as to the time within which the bill of exceptions shall be filed is mandatory. That part of the motion seeking to strike the bill of exceptions must be sustained.

- No briefs have been filed by appellant and an extender of time has been granted upon the representation that it was agreeable to the Prosecuting Attorney who was out of the county when the entry was approved.

An examination of the motion of defendant for new trial discloses that there are 22 grounds all of which, presumably, would be urged in this court by the assignment of errors and brief of counsel for appellant. An examination of these assigned grounds for the motion discloses that most of them would require consideration of the subject matter found in the bill of exceptions; thus, could not be exemplified without such bill.

Ground No. 22 of the motion for new trial is “Other errors apparent on the face of the record to the prejudice of the defendant and by reason of which he was prevented from having a fair trial as affirmatively appears from the record.” It may be that appellant will rely upon some claimed error which may be exemplified from the record independent of the bill of exceptions. Until we have advantage of the specific claims under the assignments of error it would be improper to sustain the motion to dismiss the appeal or affirm the judgment.

Decided October 16, 1953.

Any assignment which may be urged independent of the bill of exceptions could probably be heard and determined on the appeal.

The second branch of the motion will, therefore, be overruled.

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

STATE, Plaintiff-Appellee, v. POTTS, Defendant-Appellant.

No. 186.

OPINION

By THE COURT:

One assignment of error only is presented for consideration, namely; that the Court erred in refusing to permit defendant or his attorney or authorized agent to inspect any written matter or other evidence, including any gun or guns or bullet, that said Prosecutor has in his possession and expects to use in the trial of the above case assigned for hearing March 23, 1953. Counsel for appellant cites and relies upon a statement of the writer of the opinion in State v. Fox, 133 Oh St 155, which is

“Counsel for the defendants had the right to examine the confession before it was offered in evidence and submitted to the jury,' and could have moved to eliminate that particular part, which motion the Court might properly have granted.”

In State v. Major, 60 Abs 272, this Court had occasion to discuss the Fox case.

In the Fox case, the confession was offered and admitted without any motion of the defendant to examine it before formally admitted and without objection. No doubt, the Court at the time of its proffer upon request would have given counsel opportunity to then examine the confession.

That is not the situation presented in this case. The motion as to the confession under consideration was made and disposed of before the cause came on for trial. The question here presented is determined adversly to appellant in State v. Yoeman, 112 Oh St 214. There is no sufficient showing as the record comes to us which would permit us, in any view, to find that the refusal to submit the other items included in the motion was prejudicial to the deffendant.

The judgment will be affirmed.

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


author: By BIRRELL, J.

text:
    GROVES, a. k. a. WATSON REED GROVES, Plaintiff, v. WORLD INSURANCE COMPANY, Defendant.
    Common Pleas Court, Trumbull County.
    No. 59938.
    Decided September 17, 1952.

      Arthur Palmer, Newton Falls, Sieman & Sieman, Warren, for plaintiff.
    Hoppe, Day & Ford (Mr. Hewitt assisting), Warren, for defendant.
   OPINION

By BIRRELL, J.

In this case the trial was held and verdict of the Jury in Plaintiff’s favor returned on May 22nd, 1952. Motion for judgment notwithstanding the verdict was filed immediately, and Defendant requested leave to File Brief thereon, which leave was granted. The Plaintiff’s Counsel was absent until the early part of July by reason of his marriage, and did not file his Answer Brief until July 29th. The Court had the month of August for vacation. But by reason of the request of the Plaintiff that this matter be ruled upon, the Court did return to his office and spent a couple of days searching the law on this subject. Because of the numerous cases cited and the complexity of the matter involved, the Court came to the conclusion that he should not spend his vacation determining this particular Motion. That the ruling has been postponed until the present time is, of course, unfortunate.

During the trial at the close of the Plaintiff’s evidence, some time was taken in the review of authorities on the sufficiency of Plaintiff’s evidence to go to the Jury. On that hurried review the Court felt that substantial time was needed to properly determine that question, and that it was wiser at that moment to submit the case to the Jury. Now the same question, practically, arises upon this Motion, and the Court has had more time to fully investigate the law on this subject.

Plaintiff suggests two reasons whereby the evidence is sufficient to sustain the verdict, to-wit: (1) “moving the refrigerator constitutes an accidental bodily injury,” (2) “the formation of a pulmonary embolism * * * constitutes an unexpected and accidental event.”

With reference to the “pulmonary embolism,” the Court is unable to find any cases in Ohio which substantiate this view. There appear to be numerous cases from other jurisdictions on various phases of this subject, of which the case of Handley v. The Mutual Life Insurance Company (Utah, 1944), 152 A. L. R. 1278: 147 P. (2d) 319, proclaims at the 8th paragraph of the syllabus:

“Where it clearly appears that surgical operation on insured set in motion definite particles of matter distinctly and directly traceable to operation, without which they probably would not have been generated or set in motion, and that action of such substance on vital organ caused insured’s death, such death must be held to have been ‘direct result of injury effected by accidental means’ within double indemnity provision of life policy.”

This conclusion apparently is based upon medical evidence that the “particles” referred to were set in motion by the operation, although the Court recites its summation of evidence in that respect as follows:

“It is quite possible if we knew more definitely how this embolism was formed and its direct causes, we might find that the third period of the pathological history of this case would itself satisfy the provisions of this policy. While the doctors definitely related the emboli to the operation, both of them testified that the reasons why emboli result from operations is not definitely known to the profession. Their causes lay in the realm of conjecture, whether due to a bruise of the vein, due to operation or some difference in timing or coagulation ■ of the blood or other cause they could not say,”

The reasoning of the Court is summed up in the following statement:

“We need now go no further than to say that where it clearly appears from the evidence that the operation set in motion definite particles of matter distinctly and directly traceable to the operation without which the probability is that they would not have been generated or set in motion and it specifically appears that the action of that substance on a vital organ caused the death of the patient, such death was directly caused by an injury effected by violent, external and accidental means.”

Since the decedent in this case had received a violent and external injury more than ninety days before his death which, to recover under the terms of his policy, must have occurred within such period of time, it became necessary for this Court in order to sustain the verdict to determine that death from the operation could be held to be accidental. Precedent is cited in other Utah cases, and the decisions of other State Courts are discussed.

Were we to apply -the holding of the Handley case to our present case, we are immediately confronted by the testimony of Dr. Kyle the only physician who testified on this subject, which is as follows:

Q. “Can you tell us whether or not you attributed the pulmonary embolism, or blood clot, which you say resulted in her death, to the after effects of the operation? Or ón the contrary did you attribute it to some other cause?
A. “It’s not known where emboli come from.
Q. “But did you form a conclusion?
A. “I have no right to form a conclusion, I have no idea where it came from.”

This evidence in our case immediately distinguishes it from the Handley case, because there the Court states that “the doctors definitely related the emboli to the operation.” Without such testimony no connection, accidental or otherwise, is shown between the operation and the pulmonary embolism.

The Utah Supreme Court includes, and apparently approves, in its Opinion, a strict definition of “accidental means” as follows: “Accidental means are those which produce effects which are not their natural and probable consequences. The natural consequence of means used is that consequence which ordinarily follows from its use, the result of which may be reasonably anticipated from its use, and which ought to be expected. The probable consequence of the use of a given means is the consequence which is more likely to follow from its use than it is to fail to follow.”

A study of the Ohio cases leads this Court to believe that this liberal definition of accidental means has not been fully adopted in Ohio. From the citations at 22 O. Jur. 563 pp. 660-661, it appears that the latest pronouncement of our Supreme Court on this subject is found at the case of Burns v. Assurance Corporation, 134 Oh St 222, wherein Judge Gorman, in his Opinion at page 224 states: “Generally an accident is considered as an event proceeding from an unexpected happening or unknown cause without design, and not in the usual course of things.” This, in itself, is substantially the same definition as used in the Handley case. But he concludes his Opinion at page 234 with the further statement “In order to create liability under a policy insuring against bodily injuries caused directly, solely and independently of all other causes, by accidental means, there must be evidence of some external or violent and accidental force or cause.” At page 225 he likewise quotes with apparent approval from the observation of Lord Cockburn in the case of Sinclair v. Maritime Passengers Insurance Company, 121 Eng. Rep. 521, 524, as follows: “It is difficult to define the term ‘accident’ as used in a policy of this nature, so as to draw with perfect accuracy, a boundary line between injury or death from accident and injury or death from natural causes, such as shall be of universal application. At the same time we think we may safely assume that in the term ‘accident’ as so used, some violence, casualty or vis major, is necessarily involved.” All of the statements in the opinion of Judge Gorman are important because the Supreme Court in that case reversed the Court of Appeals of Cuyahoga County, which Court had adhered to a definition as follows:

“If, in the act which precedes the injury, something unforeseen, unexpected, unusual occurs which produces the injury, the injury has resulted through ‘accidental means.’”

See report of the Court of Appeals Opinion found at 10 O. O. 326, 26 Abs 52.

In the light of this expression of our Supreme Court, to adopt a definition that the term “accidental,” is absolutely synonymous with the adjectives, “unforseen,” “unexpected,” “undesigned,” or “unusual” does not appear to sufficiently express the meaning intended by the terms of the Insurance Policy upon which this action is brought. The various cases determined by our Supreme Court since Burns v. Assurance Corporation, supra, have taken no exception to the remarks of Judge Gorman:

Mitchell v. New York Life Ins. Co., 136 Oh St 551; Hassay v. Metropolitan Life Ins. Co., 140 Oh St 266 at p. 271; Shepherd v. Ins. Co., 152 Oh St at p. 17-18, 26.

On the right of the Court or the Jury to draw an inference of an accident, both the case of Hassay v. The Metropolitan Insurance Company, opinion by Judge Zimmerman, and the more recent case of Shepherd v. Insurance Company, opinion by Judge Hart, base their decisions on evidence that there has been proof of violent and external injuries from which in the absence of other evidence a presumption may be drawn that such injuries were accidental.

Other recent Ohio cases also appear to require some external force in connection with a true accident.

Albers v. Continental Casualty Co., 87 Oh Ap 336 (Laughing); Blubaugh v. Lincoln Nat’l Life Ins. Co., 84 Oh Ap 202 (hernia).

All of these cases cite with approval the older case of New Amsterdam Casualty Company v. Johnson, 91 Oh St 155, wherein failure of the internal organs to respond to the stimulation of a cold bath was held not to be accidental. Judge Nichols, in his Opinion at p. 158-9 says:

“Undoubtedly an accident, in both its technical and commonly accepted meaning, is an event which occurs without one’s foresight or expectation and wholly undesigned, yet it is not true that every unusual, unforseen and unexpected event is an accident within the true meaning of the term as used in insurance policies.”

It is argued that the terms of this policy only require that the death result from “accidental bodily injury,” and that the cases above cited were all determined from interpretation of policies which used the terms “external, violent and accidental means.” While these other policies may have emphasized the “external and violent” requirements by express use of these words, the absence of such words does not delete the concept of violence of some sort from the idea conveyed by the term “accidental,” according to the above cited cases.

It must be noted that the holding of the Handley case supra, determines that every death following an operation may in all probability become accidental, because even the perfect operation may shock or bruise some weak portion of the body. Every person knows that the possibility of death accompanies every operation, even though perfect care and skill are used by the surgeons, physicians and nurses. I have searched Ohio Jurisprudence and Shepherds Citations for Ohio cases similar to the Handley case without success. In the Annotations following the Handley case at 152 A. L. R. 1286 it appears that there is a division of opinion among the various States and even the Federal Courts on this subject. An Ohio case is included among the group of cases collected as approving the Handley case, to-wit: Mulloff v. National Accident and Health Insurance Company, 67 Oh Ap 464. The facts of this Ohio case are that the physician “accidentally injected a poisonous compound into the insured’s blood stream, causing the insured’s instantaneous death.” There is little doubt that in that case an accidental happening occurred and Judge Skeel’s well reasoned Opinion holds that the mistake of the physician was accidental. But this case, does not place Ohio in the position of following the standard that every death following a perfect operation is an accident without proof of some “accidental means.” Our cases appear to hold that the result of a voluntary act on the part of the insured, while it may be unexpected, is not accidental unless some accidental means interferred to produce the unforseen and undesigned result.

In the construction of the word “accidental” the observation of Judge Nichols in the Johnson case, supra, at page 161 is very pertinent:

“It would amount to an unfair and unjust enlargement of the Company’s liability, and would convert Accident Companies into both sick-beneficial and life insurance Companies: * * * and worse than this the apparent vice of it is that if countenanced it would inevitably result in the necessity of requiring constantly increasing premiums from the vast multitude of the laboring classes, as well as people of moderate means, who chiefly buy this character of insurance.”

The enlargement of the field covered by the term “accidental” to follow the holding of Handley v. Mutual Life Insurance Company, supra, would practically result in making a life insurance policy out of every accident policy.

The Plaintiff’s other theory in this case is that “moving of the refrigerator constituted an accidental bodily injury.” Of course if the death of the insured following the perfect operation is held to be not due to “accidental bodily injury.” it then becomes necessary, in order to bring the death within the terms of the policy to prove some “accidental bodily injury.” The proof in this case indicates that on April 27th, 1952 the insured moved her belongings from one apartment to another. According to the testimony of Maria C. Bogas, the insured noticed some irregularity in her rug at the place where the refrigerator had been installed by the movers, and in her attempt to straighten the rug her face became flushed. This witness also, for good measure, says that she saw the insured move the refrigerator from one side of the room to the other. The proof of this moving was diluted somewhat after Jessie Powell, another of the Plaintiff’s own witnesses averred that she and Maria Bogas were the ones who had moved the refrigerator. The Jury, of course, had the right to select and believe any part of the testimony on this subject. But, the testimony of moving the refrigerator or straightening of the rug did not prove any accidental bodily injury. Maria Bogas likewise attempted to testify that she had been shown something protruding from the insured’s body after the exertion above referred to. Her actual testimony on this subject was insufficient to show that anything had been caused by the alleged exertion, because a flushed face might result to the healthiest person from such exertion, without any injury.

The Ohio Courts appear to have required that some slip or unexpected weight or twist of the body in addition to mere exertion is necessary in order to satisfy the requirement of the term “accidental.”

Casualty Co. v. Johnson supra at p. 159 “he did not slip or fall.”

Burns v. Assurance Corp. supra at p. 226 “The element of accident must be found to exist in the means or cause which produced the bodily injury rather than the result.”

Mitchell v. N. Y. L. Ins. Co. supra at p. 553 “were this contention (an increase of water pressure) supported by the record, a different question would be before us.”

Likewise in order to support the occurrence of an accident Plaintiff’s physician Dr. Kyle was interrogated as to whether the displacement of organs in the Plaintiff’s body was caused by strain. The Doctor refused to so testify, but merely stated that a strain might have caused such an injury. He refused to raise this opinion to that of a probability. Such evidence, therefore, neither proved, nor even raised an inference that, an injury had been brought about by moving the refrigerator. Likewise, it did not rule out the probability that other causes had intervened to place the insured in the condition in which she was found to be at the time of the medical examination on June 14th, some forty-eight days after the occurrence which the Plaintiff claimed was the cause of the injury. The medical testimony therefor, cannot be relied upon to even show that any accidental bodily injury ever occurred. Where such a situation arises (either accidental means or bodily weakness) the observations of Judge Hart at pages 15 and 16 of the Shepherd case, supra, are pertinent:

“in such cases there still remains two possible explanatory hypothesis, and, where there is evidence under which the Jury might ascribe the injury to either one of these two, the law will indulge in no presumption as to the correctness of either: and that in the absence of further evidence the Plaintiff cannot go to the Jury, since the Court will not permit the Jury to guess which of two equally plausible explanations is correct.”

The Defendant Insurance Company, in order to guard against the uncertainties which might arise, and to facilitate the certainty that an accidental bodily injury had occurred sufficient to cause death, had included in its contract that such accidental injury must “totally and continuously disable the insured and result, within ninety days, in * * * loss of life.” The evidence was that the insured, after moving the refrigerator went to work the same afternoon and further was at work and drew her pay for every working day between the time of this alleged accident and the date at which she went to the hospital, forty-eight days later. Likewise she failed to consult any doctor for some time which, in itself, indicated uncertainty on her part. Likewise she continued to work regularly after consulting her physician which it is said she did the latter part of May. And it further appears that previous to issuance of this policy of insurance she had been operated upon and the subsequently displaced organs had been anchored. Dr. Kyle stated that these organs had slipped from this mooring which seems to have been the reason for the second operation. Since the evidence clearly shows that the insured was not totally and continuously disabled during the period between the accident and the operation, the Court is inclined to both doubt that an accident occurred and to the belief that, by the terms of the policy, the death could not be attributed to any uncertain occurrence on April 27th, 1950.

The Court has examined the cases cited by Plaintiff as to the liberal construction to be accorded to a requirement of total and continuous disability in the insurance policy. None of those holdings are upon facts sufficient to affect the situation as shown by the evidence in this case. Had evidence been produced from the employer or from fellow-worKers, that this woman had been excused from performing her duties because of her condition while being retained on the payroll, some basis might have been shown for evading the strict requirement of total and continuous disability.

The Court, therefore, believes that under the law in Ohio the Court should have granted the .Motion for a Directed Verdict at the close of the Plaintiff’s testimony. Not having done so, upon the present Motion for judgment non obstante veredicto, this Court has come to the conclusion that such Motion should BE SUSTAINED. An Entry may be prepared accordingly.


author: By THOMAS, J:

text:
    NEMETH, Plaintiff, v. BITTIKOFER, Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 648957.
    Decided November 13, 1953.

      Sindell & Sindell, Crossen & Chamberlin, Cleveland, for plaintiff.
    Arter, Hadden, Wykoff & Van Duzer, Cleveland, for defendant.
   OPINION

By THOMAS, J:

On March 18, 1953, plaintiff Nemeth sued defendant Bittikofer in this court. She says that she suffered personal injuries in an accident on November 17, 1952, which involved an automobile-driven by herself and an automobile operated by Bittikofer. Claiming that she was hurt by reason of Bittikofer’s negligence in operating his automobile, she prays for $5,000.00.

Afterwards on May 5, 1953, in the Municipal Court of Lakewood Bittikofer sued Nemeth for damage to his automobile growing out of the above accident. Claiming that Nemeth was negligent in operating her automobile, he seeks $795.00.

In this present action for injunctive relief plaintiff prays that

“defendant be enjoined from prosecuting his suit in the Municipal Court of Lakewood until the case filed earlier in the Court of Common Pleas is reduced to a final judgment; in the alternative, plaintiff prays that this Court order defendant to consolidate his Lakewood Municipal Court (case) with the earlier filed case in the Court of Common Pleas, or to file a Cross petition to said suit in this Court of Common Pleas and dismiss his action in Lakewood.”

It will become evident that the Municipal Court has jurisdiction to hear and determine the Bittikofer case and that this court has jurisdiction to adjudicate the Nemeth case.

Nemeth’s claim for $5,000.00 in damages is within the jurisdiction of this court. It exceeds the $2000.00 limit of civil jurisdiction of the Municipal Court of Lakewood. Her claim therefore cannot be prosecuted in the Municipal Court of Lakewood either as an original action or as a cross petition.

Bittikofer’s claim for $795.00 in damages is within the jurisdiction of either court. He is entitled to file his claim as an original action in the Municipal Court of Lakewood or as an original action in this court. He may also file it as a cross petition in Nemeth’s action, but he is not bound to, since the filing of a counterclaim is permissive not obligatory Bittikofer’s privilege to choose between this court and the Municipal Court of Lakewood as the forum in which to sue Nemeth is the combined product of several statutes. It would be contrary to law and beyond the power of this court to order the defendant to consolidate his Municipal Court action with Nemeth’s action in this court or to require Bittikofer to file a cross petition in Nemeth’s action.

But granted that the Municipal Court of Lakewood has jurisdiction to hear and determine the Bittikofer case there still remains to be decided the question posed by counsel, namely:

“Whether or not Nemeth, the plaintiff in the Common Pleas case, can enjoin Bittikofer from prosecuting his subsequently filed suit in Lakewood Municipal Court until such time as the Common Pleas case has been determined.”

To answer that question it must be first determined whether there is a common subject of litigation in these two pending actions over which the Municipal'Court of Lakewood has concurrent jurisdiction, the exercise of which may deprive or interfere with this court’s hearing and determining Nemeth’s action.

To recover a judgment in her action in this court, Nemeth must establish that Bittikofer negligently caused their collision.

To recover a judgment in his action in Municipal Court of Lakewood, Bittikofer must establish that Nemeth negligently caused their collision.

Defendant in each case (plaintiff in the other easel is relying on a general denial but will undoubtedly couple with it the defense of the other party’s contributory negligence.

Thus the outcome in each case will depend on whether under the proved facts the collision of November 17, 1952, was caused by negligence of Bittikofer, of Nemeth, or of both.

It is a matter of general knowledge to be judicially noted that under present circumstances a civil case comes up for trial sooner in the Municipal Court of Lakewood than in this court. Hence in the ordinary course of events it may be expected that Bittikofer’s case in Municipal Court will be tried first.

If Bittikofer secures a judgment against Nemeth in the Municipal Court it will be an adjudication that Nemeth negligently caused their collision thereby rendering her guilty of contributory negligence as a matter of law in her action in this court against Bittikofer.

If Bittikofer loses in Municipal Court a special finding in that case by the jury or the judge that both Nemeth and Bittikofer were guilty of negligence combining to cause their collision would likewise estop and foreclose Nemeth from prevailing in her action in this court.

It follows that a prior trial of Bittikofer’s case in Municipal Court may cast an indelible shadow upon Nemeth’s action in this court. It can predetermine the judgment in her case.

In an effort to protect its prior but concurrent jurisdiction over the common subject of litigation, this court might advance Nemeth’s action ahead of the trial of the Bittikofer action in Municipal Court.

But Bittikofer might counter the acceleration of Nemeth’s action by securing an earlier advancement of his action in Municipal Court, only to possibly precipitate an earlier advancement in this court’s case. In such a tug of war the only prizes would be wasteful duplication of proceedings, increased expense, confusion and perhaps even judicial anarchy.

It is thus seen that in the Bittikofer action the Municipal Court of Lakewood obtained concurrent jurisdiction over the fundamental subject of negligence pre-existing in the Nemeth action. It is obvious too that the jurisdiction of this court, though it attached earlier, may be completely defeated if Bittikofer’s case is tried first.

Such conflict of jurisdiction should be resolved in accordance with

“the settled law of this state that among courts having concurrent jurisdiction of any given subject-matter the court whose jurisdiction rightfully first attaches shall exercise and continue that jurisdiction free from any interference by any other court having a like jurisdiction.” Addams v. State, ex rel., 104 Oh St 475.

However it is contended that this settled rule of comity, so necessary to avoid collisions between courts, only applies between courts of coextensive or co-ordinate jurisdiction, and does not control the present conflict of jurisdiction between a court of general powers and a court of limited authority.

In support of this argument, counsel for the defendant relies on State, ex rel. McHenry, v. Calhoun, 87 Oh Ap 1, wherein our Court of Appeals recently denied a writ to prohibit a justice of peace “from hearing and determining an action for damages to property that could have been asserted as a counterclaim in action pending in the Common Pleas Court between the same parties in which the plaintiff in Common Pleas Court sought recovery of damages for injuries to person and property in an amount in excess of the jurisdiction of the justice.”

Several conclusions there announced require examination.

In its opinion the court quoted with approval the following statement from 11 O. Jur., 726, Section 81:

“As between courts of concurrent and co-extensive jurisdiction, the one whose power is first invoked by the institution of the proper proceedings and the service of the required process acquires the right to adjudicate upon the whole issue, and to settle the rights of the parties to the exclusion of ail other tribunals.”

Subsequently in its opinion, referring to said rule, the court says:

“The rule that the court first acquiring jurisdiction retains it to the exclusion of other courts of coordinate authority, has no application where the conflict of jurisdiction is between a court of general jurisdiction and one whose limited powers are inadequate to afford full relief to the parties.” See 11 Q. Jur., 730.

The exact language of the rule found in 11 O. Jur., 726, Section 81, and the precise qualification thereof as stated in 11 O. Jur., 730, have their original source in the Supreme Court opinion (Judge Boynton speaking for the court) in Dwyer v. Garlough, 31 Oh St 158 at 160.

That case involved a test of jurisdiction between a probate court which FIRST obtained jurisdiction over subject matter concerning which a common pleas court SUBSEQUENTLY acquired jurisdiction.

It was held that the first acquired jurisdiction of the court of limited jurisdiction did not exclude the exercise of the subsequently acquired jurisdictcion of the court of general jurisdiction inasmuch as the first court’s authority was not adequate to completely dispose of the controversy.

Thus an exception to the general rule giving priority to the court first acquiring jurisdiction was carved out TO PROTECT THE JURISDICTION OF THE COURT OF GENERAL JURISDICTION.

To apply that exception to a situation like the present, with the result that the jurisdiction of a court of general jurisdiction which FIRST ATTACHED would be defeated by the later acquired jurisdiction of a court of limited authority, would clearly subvert the purpose and intent of Judge Boynton’s exception.

Obviously designed to uphold the jurisdiction of courts of general jurisdiction, Judge Boynton’s exception is here sought to be employed to deprive this court of general jurisdiction of its prior attaching jurisdiction and to prefer the later acquired jurisdiction of' a court of limited authority.

The fallacy of this proposition is demonstrable.

If after Nemeth brought suit in this court and secured service upon Bittikofer, the latter had brought his action against Nemeth for property damage in another court of common pleas, under the general rule stated above, this court’s jurisdiction would be exclusive, it being prior to that of a coordinate court.

If in the present situation the prior jurisdiction of this co.urt would be paramount over that of a sister common pleas court there is not just equal but much greater reason for this court’s prior jurisdiction to prevail over the subsequently acquired jurisdiction of a court of lesser jurisdiction.

Another ground given by the court in the McHenry case for finding inapplicable the general rule of priority of jurisdiction demands study since reliance is placed on it by counsel for the defendant.

In its opinion the court quoted with approval a statement from 11 O. Jur., 729, Section 82, that

“It is a condition of the operation of the rule that the causes of action be the same in both cases.”

Cited in support of this statement of law is State, ex rel. Maxwell v. Schneider, 103 Oh St 492, 495, 134 N. E., 443, the first sentence of which reads:

“The pendency of another action may be successfully pleaded as a defense only when it is clearly made to appear that such pending action is between the same parties, upon the same cause of action.”

The court then says:

“The reason for such rule is that the law, which abhors a multiplicity of suits, will not permit a defendant to be harassed and oppressed by two actions for the same cause where the plaintiff has a complete remedy by one of them.”

The Maxwell decision thus holds that when the facts do not appear on the face of the plaintiff’s petition the defendant may assert as a defense the same ground that he could raise by demurrer when it is apparent on the face of the petition that

“There is another action pending between the same parties for the same cause;” Sec. 2309.08 R. C. (§11309 GC), sub-paragraph (D).

However the problem in the Maxwell case, in which a defendant seeks to abate a second action brought against him on the same cause of action is not the situation presented either in the McHenry case or in the instant case.

Nor does an examination of the Maxwell decision reveal any reference by the Supreme Court to the general rule of priority of jurisdiction.

Since the Maxwell decision neither deals with nor refers to the general rule of priority of jurisdiction it is difficult to see how such case justifies the statement in 11 O. Jur. 729, Section 82, that

“It is a condition of the operation of the rule that the causes of action be the same in both cases.”

It is believed that the correct rule is that if the SUBJECT MATTER in both cases is the same (even though the two causes of action are not identical) and if an adjudication in the subsequently filed case may operate to nullify the previously attached jurisdiction of a court of general powers, the rule of priority of jurisdiction should be enforced.

That rule conforms to the principle declared in Addams v. State, ex rel., 104 Oh St 475, at 478.

“It has long been the settled law of this state that among courts having concurrent jurisdiction of ANY GIVEN SUBJECT MATTER the court whose jurisdiction rightfully first attaches shall exercise and continue that jurisdiction free from any'interference by any other court having a like jurisdiction.” (Emphasis added.)

A recurring instance of the rule is the conflict which sometimes develops between divorce actions filed by the respective spouses in different common pleas courts in this state.

Their marriage status is the subject matter which underlies each case. But each spouse rests his or her action on different facts, or different inferences from the same facts, and perhaps on different grounds of divorce. One action may be for divorce. The other may be for separate maintenance. Though the two actions grow out of the same transaction they are different causes.

Nevertheless since the decision in one case may affect the outcome of the other action, the rule of priority of jurisdiction applies between such courts. See Miller v. Court of Common Pleas of Cuyahoga County, 143 Oh St 68.

It is concluded that the McHenry case should be regarded as precedent only to the effect that a writ will not be granted under the present circumstances to prohibit the exercise oí the jurisdiction of the court of lesser authority. It expressly did not rule on the appropriateness of injunctive relief, as here sought.

Maraldo v. Hendricks, 90 Oh Ap 436 dealt with a situation comparable to the present one. But there a court of limited jurisdiction FIRST ACQUIRED JURISDICTION over the subject matter of the automobile collision which later became the basis of another action between the same parties in this court. Yet even under such circumstances our court of appeals (the Judges of the Sixth Appellate District sitting here by assignment) expressly reserved the question whether

“In an appropriate independent action in equity in the interest of avoiding a multiplicity of suits and the determination of all conflicting claims in one action an injunction may issue to stay the prosecution of a cause of action in a court of limited jurisdiction.”

If Nemeth obtains a judgment in her action in this court Bittikofer cannot prevail in his action in Lakewood Municipal Court, since the former adjudication would render him guilty of contributory negligence as a matter of law in his own action.

Hence a multiplicity of suits may be avoided if the prosecution of the Bittikofer action is restrained until Nemeth’s action is determined in this court.

Moreover as has been noted the jurisdiction of this court may be precluded if the Bittikofer action is permitted to be tried first. This court may protect itself from that result. State v. Fredlock, 52 W. Va. 232, 43 S. E„ 153, 21 CJS Courts, 498, 125 A. L. R. 337.

The plaintiff therefore has established clearly and convincingly her right “to enjoin Bittikofer from prosecuting his subsequently filed suit in Lakewood Municipal Court until such time as the Common Pleas case has been determined” by final judgment or otherwise.

An appropriate restraining order may issue.


author: By PHILLIPS, J.

text:
    HORNYAK, Plaintiff-Appellant, v. HORNYAK, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3615.
    Decided October 13, 1953.
    Morris Mendelssohn, Youngstown, for plaintiff-appellant.
    Anthony F. Pacella, Youngstown, for defendant-appellee.
   OPINION

By PHILLIPS, J.

Plaintiff appealed to this court on questions of law and fact from a judgment of the court of common pleas entered upon a finding of a judge thereof for defendant in plaintiff’s action against him to cancel a quit claim deed (executed and delivered by plaintiff to defendant) on the ground that it was obtained from her without any consideration and by undue influence at a time when she was incapacitated from understanding the transaction, and was submitted to us on a transcript of the testimony and the evidence introduced in the trial court.

In compliance with an order of the Court of Common Pleas, Division of Domestic Relations of Mahoning County, entered on November 30, 1949, in plaintiff’s action against defendant for divorce, defendant duly conveyed his undivided one-half interest in jointly owned real estate to plaintiff and supported plaintiff’s children in accordance with that order until that order of support was vacated, set aside and held for naught on September 29, 1951.,

Within three weeks from the date of the execution by defendant of such warranty deed plaintiff quit-claimed her interest in such real estate to defendant by duly executed quitclaim deed in exchange for defendant’s will executed simultaneously with such deed in favor of herself and her children, which was delivered to and held by her until September 1951, when she offered it in evidence in the Court of Common Pleas, Division of Domestic Relations, which was at least part and in our opinion sufficient consideration for the execution by plaintiff of the quit-claim deed to defendant.

Plaintiff contended and introduced evidence in an attempt to support her contention in the court of common pleas and contends here that she executed such quit-claim deed to defendant without consideration and at the time when she was on the verge of a nervous breakdown on his representation that he would complete the construction of their house and furnish a home for her children.

Defendant contended in the court of common pleas, as he contends here, that plaintiff failed, as the trial judge found, to establish her claim by clear and convincing evidence, in which contention we concur after careful consideration of the evidence, which it is not necessary to recite further.

Our finding and decree is for the defendant as in the court of common pleas.

GRIFFITH, PJ, NICHOLS, J, concur-.


author: By DOYLE, PJ.

text:
    FORD, Plaintiff-Appellant, v. FORD, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22986.
    Decided March 17, 1954.

      Simon Amdur, Cleveland, for plaintiff-appellant.
    Wm. T. Arnos, Cleveland, for defendant-appellee.
    (DOYLE, J, of the 9th District, sitting by designation in the 8th District in place of KOVACHY, J.)
   OPINION

By DOYLE, PJ.

The appeal is on questions of law from the Common Pleas Court of Cuyahoga County. The primary legal questions are: (1) Whether or not an express oral trust was impressed upon real property, or (2) Whether a deed absolute on its face may be held to operate as a mortgage.

The trial court found the evidence to be sufficient to establish a trust, and, upon such findings, entered its judgment for the defendant on her cross-petition. It is the duty of this court not to determine this question de novo, but to determine from the record whether such conclusion and subsequent judgment for the defendant is manifestly against the weight of the evidence or contrary to law.

The testimony, exhibits, and the reasonable inferences to be drawn therefrom, warrant the following conclusions:

William N. Ford, Sr., an elderly merchant in the City of Cleveland, found himself beset with creditors, and his continuance in business required additional capital. Although he was the owner of real property, his age precluded him from borrowing money from normal banking sources. To circumvent his handicap, he devised a scheme whereby he would transfer his property to his children, who in turn would mortgage the property and secure for him the necessary funds.

He first deeded the property to his daughter, Grace. Grace failed to secure a loan. Shortly thereafter, upon the request of the father, Grace deeded the property to her brother, George, who had agreed to take title, secure a mortgage loan, give the proceeds to the father, and, upon its repayment by the father, reconvey the property to the father. George, for reasons not important here, likewise failed his father.

It was then agreed between the father, the son George, and another son, William Jr., that George, in whose name the property then stood, would execute and deliver a quit-claim deed to William Jr., who promised to mortgage the property, secure a loan of $6,000.00 give the money to the father, and upon repayment of the bank loan by the father, reconvey the property to the father.

Shortly after this arrangement, but before a loan was secured, the father, a widower, married a woman many years his junior. Apparently the son, William Jr., opposed the marriage and did nothing toward the fulfillment of his agreement. The father thereupon filed suit against him for the recovery of his property. Later following a reconciliation, the case was marked of record, “Settled and dismissed at costs of plaintiff, for which judgment is rendered.” Likewise, a quitclaim deed was executed by the father and his new wife to William Jr., and his wife, for the same property.

A mortgage loan of $6,000.00 was then secured by William Jr., from The Cleveland Trust Company, and the money given over to the father for his business use.

The evidence further shows that the father and his wife (the latter holding under a duly executed lease) remained in the possession of the property, and the father paid, over a period of years, the entire amount of the loan, plus interest, to The Cleveland Trust Company, the mortgagee.

The father died testate in. 1952. By will executed in 1947, he specifically devised the real property in question to his wife, Dorothy. The son, William Jr., died in 1947. Prior thereto, in 1944, he had gratuitously conveyed the property by quitclaim deed to his wife, Luella.

The litigants in the controversy before us are Luella, the plaintiff, who claims the property through the deed from her deceased husband, William Jr., and Dorothy, the defendant, who claims the property through testamentary devise from her deceased husband, William Sr.

The transactions between the various members of this family are so numerous and so mingled and shaded into each other, that a complete statement will not be here attempted. Suffice it to say that, when the various deeds were executed and delivered, they created gratuitous transfers of the fee to the several children, with none of the aspects of a gift or sale.

It is further observed that the form of the entry in the Common Pleas Court terminating the suit instituted by the father for the recovery of his property from his son, William Jr., was required by a title company “which was making up a policy title for The Cleveland Trust Company, the lender in the mortgage transaction involved in this lawsuit,” and likewise, that the quit-claim deed from William Sr., and his wife, to William Jr., was required by the same company. These transactions were required by the title company “as a condition precedent to their closing of the loan in question.”

In answer to the claim of the appellant, Luella Ford, that the settlement of the case noted in the preceding paragraph constituted res ad judicata, we experience no difficulty in finding the claim untenable. One reason which may be given, among many others, is that the cause of action in the “settled” case and the one now under consideration, is not the same, nor does the journal entry indicate, from the facts shown to exist, that the settlement and dismissal of the case was for any other purpose than to permit a consummation of a loan upon the property, in pursuance of the agreement of the parties.

We now proceed to the question of whether the evidence justified a finding of the existence of an express trust.

It has long been the law in this State that parol evidence is competent to prove an express trust in real property.

Harvey v. Gardner, 41 Oh St 642.

Russell v. Bruer, 64 Oh St 1.

Hill v. Irons, 160 Oh St 21.

A parol contemporaneous agreement that the grantee in a deed would reconvey the real estate in question upon the payment by the grantor of obligations incurred by the grantee, does not vary the terms of the deed, but sets up a new right and independent agreement consistent with the deed.

Rieger v. Hotel Rieger Co., 124 Oh St 152, at p. 159.

In the case now under review, we find a series of business transactions between a father and his children, and a contemporaneous oral agreement with the delivery of each deed that the property would be held in trust for an express purpose. This factual situation is sufficient to create an express trust. Further, when the conditions imposed upon the grantor by the oral agreement were fulfilled by the payment of his obligations, and the time for redelivery had arrived, a refusal by the grantee or his privy to reconvey would have justified a court in impressing a constructive trust upon the property, on the theory of unjust enrichment.

There may be found also in this case a confidential relation as one of the procuring causes of the conveyances. The grantor may well have thought that, in the bond of kinship, he had a protection as potent as any that could be assured to him by covenants of title. It appears to be a case of a confidence induced, not only by the bare promises of others, but by the promise and the confidential relation conjoined. In such situations, the rule is almost universal that equity will grant relief.

It perhaps should be here noted that all of William Ford Sr.’s children, both by affinity and consanguinity, knew of the circumstances surrounding the transfers of the property.

Thus far we have discussed a trust relationship. While we rest our decision upon this theory, there is another forceful argument (not presented by counsel) which may be advanced to sustain the relief awarded by the trial court. We quote from 4 Pomeroy’s Equity Jurisprudence (Fifth Ed) Sec. 1196:

“Any conveyance of land absolute on its face, without anything in its terms to indicate that it is otherwise than an absolute conveyance, and without any accompanying written defeasance, contract of repurchase, or other agreement, may, in equity, by means of extrinsic and parol evidence, be shown to be in reality a mortgage as between the original parties, and as against all those deriving title from or under the grantee, who are not bona fide purchasers for value and without notice. The principle which underlies this doctrine is the fruitful source of many other equitable rules; that it would be a virtual fraud for the grantee to insist upon the deed as an absolute conveyance of the title, which had been intentionally given to him, and which he had knowingly accepted, merely as a security, and therefore in reality as a mortgage.”

See: Slutz and Larue v. Desenberg et al, 28 Oh St 371; Wilson v. Giddings, 28 Oh St 554; 27 O. Jur., Mortgages, pg. 282, Sec. 36; 59 C. J. S. Mortgages, Sec. 35, et seq.

While the conveyance was made to one whose personal qualifications, coupled with the property as security, was sufficient to borrow $6,000 from a bank, and the property was conveyed for that purpose, nevertheless, while the bank was entitled to receive payment out of the property if not otherwise paid, the grantee was likewise entitled to hold the property as security for the obligation of the father to him if he had been compelled to pay the debt. In considering the question whether an equitable mortgage came into existence, of course, the difference in the value of the property and the amount of money borrowed is of great importance. The trial court in the instant case could have found that the value of the property was much more than $6,000.00 at the time the loan was secured from the bank, and the father became obligated to the son for the son’s debt at the bank.

A complete statement of the various pleadings and issues we deem non-essential to this opinion, because the issues heretofore discussed determine the case. Suffice it to say, that the plaintiff below, appellant here, Luella Ford, the widow Of William Ford Jr., claimed ownership of the property by deed from her husband, and sought its possession, plus an accounting for rents and profits claimed to be due her. The defendant below, appellee here, Dorothy Ford, widow of William Ford Sr., claimed ownership by a testamentary devise from her deceased husband, and prayed that the legal title be established in her as a result of the termination of a trust through the fulfillment of the obligations imposed upon the cestui. The reply of the plaintiff below, pleaded res adjudicata. and further that the equitable and legal title had at all times been in her and her predecessor—her husband.

The trial court found the plaintiff to be the successor trustee to her husband, and that William Ford, Sr., had been the equitable owner of the property; that by virtue of his testamentary devise, his interest became vested in his widow, Dorothy Ford; and, the conditions of the trust having been fulfilled, the trust was terminated and the legal title to the property should be conveyed by deed to the defendant. The trial court entered its order accordingly.

We find no error prejudicial to the rights of the appellant, and the judgment will be affirmed.

Judgment affirmed. Exceptions. Order see journal.

HURD, PJ, SKEEL, J, concur.