author: By BRYANT, J. By MILLER, J.

text:
    RALPH MYERS CONTRACTING CORP., Appellant, v. BOWERS, Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5981.
    Decided November 13, 1958.
    Robert Dow Hamilton, Columbus, for appellant.
    William Saxbe, Atty. Geni., John M. Tobin, S. Noel Melvin, Asst. Attys. Geni., Columbus, for appellee.
   OPINION

By BRYANT, J.

Ralph Myers • Contracting Corporation, appellant, hereinafter called Myers, has appealed directly to this court from the decision of the Board of Tax Appeals. Stanley J. Bowers, Tax Commissioner of Ohio, appellee, previously had made two sales and use tax assesments against Myers totalling $19,710.82. These involved variqus purchases of property by Myers upon which Myers had paid no sales or use tax, claiming that they were exempt. One of the assessments, D 343, was in the amount of $11,942.06 and covered purchases in the period from July 1, 1953 to November 30, 1954. The other, E 2382, was in the amount of $7,768.76 and covered the period from July 1, 1952 to November 30, 1955.

One assessment by the Tax Commissioner, Assessment D 343, was dated February 4, 1955, and the other assessment, E 2382, was dated March 30. 1956. Each of the assessments was further subdivided between the portions arising under the state retail sales tax law, §5739.13 R. C., and that which arose under the state use tax law, §§5741.11 and 5741.13 R. C. However, no further attention will be given to this differentiation as the rules applicable for sales tax exemption and use tax exemption so far as here involved appear not to be materially different.

After these two assessments had been made, petitions for reassessment were filed by Myers under both numbers, each of them setting forth four grounds for objection to'the assessments. The four objections, substantially identical in both petitions, as set forth in the petition in D 343 are as follows:

“1. The purpose of the petitioner in purchasing the items contained m the audits was either to incorporate the items into tangible personal property to be produced for sale by manufacturing, assembling, processing or refining, or, .
“2. The purpose of the petitioner was to use or consume the items contained in the audits directly in the production of tangible personal property for sale by manufacturing, processing, or refining;
“3. The petitioner in purchasing the items contained in the audits was acting, as an agent or instrumentality of the State of Ohio or one of its political subdivisions, the ultimate consumer herein, and said items are therefore tax exempt;
“4. The assessment is in its entirety contrary to law in other respects apparent upon the record.”

The decisions of the Tax Commissioner on both petitions were announced May 16, 1957. They were in identical language in both cases and overruled substantially all of the objections made by Myers. Each decision, after setting forth the four objections herein above quoted, contained the following language:

“At hearing it was pointed out that the exemption claimed is based on a contract with the Ohio Turnpike Commission whereby the petitioner agrees to deliver to said Commission approximately eight and one half miles of completed roadway in accordance with their plans and specifications and that said contract was broken down into unit prices which made separate charges for material and labor.
“It was further stated that the petitioner started the clearing operation which included the preparation of the land (the removal of stumps and trees) for the projected right of way. The earth moving equipment was then utilized to make the necessary excavations or fills after which the dirt was rolled, watered and shaped in preparation for what is known as sub base material. The sub base material is then placed on the grade for paving operations. The petitioner also constructs temporary roads to facilitate the moving of equipment and materials.
“All except a small portion of the items assessed consist of power shovels, earth movers, trucks and equipment for the handling and moving of earth and materials and replacement parts, fuel and supplies for said equipment; right of way fence (temporary) batteries and controllers for said fence; materials for shops for the maintenance and repair of the petitioner’s equipment; and trailers used as field offices.
“Insofar as the items in the preceding paragraph are concerned, it is held that they are not used directly in the production of tangible personal property for sale by manufacturing, processing or refining as claimed. The second specific contention that the petitioner, in purchasing the items contained in the audit, was acting as an agent or instrumentality of the State of Ohio or one of its political subdivisions, the ultimate consumer, is held to be without merit.”

It is not necessary here to consider the very minor items in which the objections were sustained.

The appeal of Myers to the Board of Tax Appeals consolidated the two assessments under No. 34321. We judicially notice our records sufficiently to point out that a previous order of the Board affirming the Tax Commissioner of Ohio on the same two assessments was appealed to this court and upon order entered by this court was returned in order that the testimony of O. H. Foster might be attached to the file and considered by the Board. This has been done and the Board for the second time has entered its order affirming in full the assessments made by the Tax Commissioner in both cases. This most recent order of the Board was entered upon its journal on May 29, 1958 and notice of appeal therefrom again was filed with this court on June 27, 1958 by a proceeding separate and apart from the earlier notice of appeal. In the brief and assignment of error of Myers, there is a single assignment of error which is as follows:

“The Tax Commissioners and Board of Tax Appeals erred in failing to find that the purpose of appellant in purchasing the items contained in both audits and assessments was to use said items directly in manufacturing. processing or refining, and therefore not subject to the Ohio Sales Tax.”

We have searched the file with care and are unable to find any stipulation or finding of facts and therefore it become^ necessary to determine certain facts from the record.

1. Myers is a corporation. It was created under-the laws of Indiana on January 3, 1946. (See page 1, question 8, Form 807 B, December 6, 1955, Statement of Ray Colglazier, Secretary, Ralph Myers Contracting Corp., and in D 343, Form 807 B, question 8, dated January 7, 1955 signed by O. H. Foster, Project Manager for Ralph Myers Contracting Corp.) It was assumed during argument that Myers was duly admitted to do business in Ohio as a foreign corporation but it has not been pointed out, nor are we able to find in the record, any showing that such application has been filed or license granted or any statement whatsoever with respect to the county in Ohio in which is located the principal office of Myers, or in which is located the residence of the statutory agent of Myers.

2. Myers had filed certificates of exemption from sales tax according to the file in E 2382 with J. R. Wood Supply Co. of Cincinnati, Ohio Machinery Co. of Cleveland, Motor Rim Mfg. of Cleveland, Standard Oil Co. of Cleveland, Great Lakes Diesel Company of Cleveland, H & R Company Inc., of Elyria, Firestone Stores of Lorain, W. W. Williams Co., of Columbus and the Cantwell Machinery Co. of Columbus, Ohio. The foregoing list is by no means complete but is sufficient to indicate the diversity of vendors from whom purchases were made.

3. Myers was the prime contractor on Ohio Turnpike sections 25 and 26, total. amount of contract $7,403,328.40, being for 8.7 miles, which project started in September 1953 and was completed in October 1955 and “on this project this corporation (Myers) completed the earth moving and drainage and other parts of contract were sublet.” (Emphasis added.)

Also in 1952, Myers started a project for the Ohio State Highway Department in Brown County, completed in 1953; in December 1954, Myers started a project with the Ohio State Highway Department in Jefferson County near Brilliant, Ohio due to be completed in 1956. (See Form 807 C, Sheet No. 1, being a report by Edgar Gabel, Examiner for the Department of Taxation in E 2382.) To the same general effect, see Form 807 C, page 1, of two pages, being a report signed by Examiner Gabel found in D 343, stating among other things that with reference to the Ohio Turnpike contract “the operation of this contractor is earth moving and all other parts of the prime contract were sublet to other contractors.” (Emphasis added.)

We therefore conclude, it not being disputed, that the operations of Myers were confined to earth moving and drainage and that the purchases by Myers were in furtherance of such operations as clearing, excavating, filling, drainage and related operations. It would also appear that Myers had nothing whatsoever to do, except as to supervising sub-contractors, with the mixing or pouring of concrete or the building or erection of structures incident to the completed contract, or the purchase of cement, sand, steel, etc. for such paving or structures.

4. Under assessment D 343 the examiner lists nearly one thousand items by date, invoice number, name and address of seller, descriptions of items purchased and the quantities and cost thereof. Many of them are parts for power shovels and others are tires, tubes, antifreeze, water pumps and parts used to repair diesels and earth moving equipment with several pages devoted to parts for caterpillar tractors. These are in addition to approximately $5,300 expended for two Ford trucks on which exemption was claimed and no sales or use taxes were paid.

5. Under assessment E 2382 nearly eight hundred items are individually listed upon which it is claimed sales or use taxes should have been paid showing the date, invoice number, name and address of the seller, a description of the item and the quantities and amount paid therefor. In general it may be said that the items under assessment E 2382 are of the same general character as those referred to under D 343.

As above pointed out it is the claim of Myers that the Tax Commissioner and the Board of Tax Appeals both erred in failing to find that the items upon which the sales and use tax assessments were levied were tax-free for the reason “that the purpose of appellant in purchasing the items * * * was to use said items directly in manufacturing, processing or refining * *

As a part of the notice of appeal other grounds are mentioned by Myers. For example, in paragraph six, it was claimed that Myers was exempt from tax because he was acting as an agent or instrumentality of the state or a political subdivision. The Tax Commissioner and the Board of Tax Appeals found there was no merit in this contention. We are unable to find from the record any evidence which indicates that Myers was exercising any of the sovereignty of the state of Ohio and hence we conclude he was not an agent or instrumentality of either the state or local government.

As stated by the examiner, and the matter is not disputed here, Myers was the holder of a contract with the Ohio Turnpike Commission and also held contracts within Brown and Jefferson counties from which the inference is plain that the relationship was that of owner and contractor and not principal and agent. The burden being upon Myers to establish this ground and there being nothing in the record to support the claim, in our opinion, the Tax Commissioner and the Board of Tax Appeals correctly applied the law in their rulings that Myers was not an agent or instrumentality of the state and this objection is overruled.

Myers also claims that the Tax Commissioner and the Board of Tax Appeals were in error in describing a road or highway as real property contending that it should be “considered as tangible personal property.” (See paragraph 3, page 2, notice of appeal.) With this contention we cannot agree and we feel that the correct ruling on this question was given by the Tax Commissioner and affirmed by the Board of Tax Appeals. The question remains therefore whether or not from the record it appears that the purpose of Myers in purchasing the items in question was to use them “directly in manufacturing, processing or refining.” It would appear that Myers has reference to a portion of the sales tax law, §5739.01, paragraph E, R. C., which provides in part as follows:

“‘Retail sale’ and ‘sales at retail’ include all sales except those in which the purpose of the consumer is:
“(2) To incorporate the thing transferred as a material or a part, TOtP tangible personal property to be produced for sale by manufacturing, assembling, processing, or refining, or to use or consume the thing transferred directly in the production of tangible personal property for sale by manufacturing, processing, refining, or mining, * *

The brief of the appellant makes reference to this section by number but does not specify the portion referred to. We can only assume therefore that the language which we have quoted above is that referred to by appellant.

At this point it is well to remember that by clear statement of legislative policy, all sales made in Ohio are subject to this tax until the contrary is established. Sec. 5739.02 R. C., provides in part as follows:

“For the purpose of the proper administration of §§5739.01 to 5739.31 inclusive, R. C., and to prevent the evasion of the tax, it is presumed that all sales made in this state are subject to the tax until the contrary is established.”

Proceeding now to the question whether earth’ moving equipment and parts and supplies therefor purchased by Myers for the operations herein above indicated, to wit: grading, filling and related operations, we note that no authority directly in point has been referred to by either side. Myers relies solely upon a decision in a prior case by the Board of Tax Appeals. The trouble with the decision relied upon is that it related to the operations of a contractor who was mixing materials, which were to be laid upon the highway and to become and remain during their useful life, the highway pavement. The decision appears to hold merely that once the processing has begun with respect to such materials that equipment purchased for use prior to the completion of the processing is not taxable.

We are compelled to assume that the operations directly carried on by Myers and here under consideration involve digging up the earth, transporting it and depositing it. It nowhere has been shown that the earth at any time belonged to or was sold by Myers to the Ohio Turnpike Commission or to the political subdivisions. There have been a number of cases involving equipment used in transportation. In the case of Tri-State Asphalt Corp. v. Glander, 152 Oh St 497, a crane and bucket had been sold to a contractor for use in transporting sand and slag from freight cars or stock-piles to bins in a portable asphalt plant. It was held that the sales tax was due upon the crane and bucket and that it was not used or consumed directly in the production of tangible personal property for sale by processing and that the processing began after the materials were delivered to the portable asphalt plant.

An early case involving transportation is Saunders Mills, Inc. v. Evatt, 139 Oh St 227, in which the taxpayer owned a farm on which alfalfa hay was grown and also a dehydrating plant some distance away in which the alfalfa hay was converted into alfalfa meal. It was held that motor trucks purchased for use solely in transporting such hay over the public roads from the place where grown to the plant for conversion to alfalfa meal were subject to the sales tax and such trucks were not used directly in the production of tangible personal property for sale by manufacturing, processing or farming.

In the case of The Powhatan Mining Co. v. Peck, 160 Oh St 389, it was held that where the taxpayer was engaged in the production of coal and purchased trucks to be used to remove waste material, the purchase of such trucks was not exempt from the sales tax even where it was admitted that the failure to remove the waste would stop the operation of the mine. It was further held that such trucks were not used directly in the production of coal.

In the case of The Standard Oil Co. v. Peck, 163 Oh St 63, the taxpayer’s roustabout crane and storage tanks were held not directly linked with oil refining and the sales thereof were subject to sales tax.

In the case of The Huron Fish Co. v. Glander, 146 Oh St 631, nets purchased by the taxpayer for fishing were held subject to tax.

In the case of W. E. Anderson & Sons Co. v. Glander, 154 Oh St 561, the taxpayer had purchased an especially designed motor truck chassis separate and apart from a concrete mixer, which later was attached thereto. The taxpayer’s plans called for placing the ingredients into the mixer, mounted upon the motor truck chassis, at the taxpayer’s plant and mixing them enroute to destination. It was held that the motor truck chassis and repair parts therefor were primarily devoted to transportation and had but little relationship to the production of the finished product and were therefore subject to tax.

We therefore conclude that the decision of the Tax Commissioner and the affirmance thereof by the Board of Tax Appeals constitute a correct application of the law and the assignment of error with respect thereto is not well taken.

Two other comments seem appropriate here although they are not referred to in the briefs of the appellee. The first is that although this is denominated an appeal on questions of law and fact, this is incorrect. The statute giving rise to an appeal in such cases by §5717.04 R. C., merely says “by appeal” and does not specify which type of appeal. Referring to §2501.02 R. C., there are listed ten classes of cases in which an appeal on law and fact is permitted. They may generally be described equitable actions. This section contains the express mandate that in all other cases this court shall have jurisdiction as an appeal on questions of law only. We have therefore proceeded to treat this matter as an • appeal.on questions of law only.

The second matter is with reference to the jurisdiction of this court to entertain the case at all. Under the foreign corporation act of this state, Chapter 1703 and with particular reference to §§1703.03, 1703.04 and 1703.041 R. c., it will be noted that foreign corporations are required to procure a license to transact business and are required among other things to state the name of the county in Ohio in which its principal Ohio office is to be located, and to name a statutory agent residing in the same county in Ohio, if a natural person, or having a business address in the same Ohio county, if a domestic corporation.

Referring back to §5717.04 R. C., we note that where the taxpayer is a corporation and an appeal is taken to the court of appeals, it must be either the county in which the property tax is situate or the county of residence of the statutory agent and in which the corporation has its principal place of business.

It may well be that Myers has been duly and properly granted a license to do business in Ohio. It also may be true that Myers has made proper designation of the county in which is located its principal office in Ohio and the residence of its statutory agent are established. It may also be a fact that Franklin County is the situs of both, as otherwise the appeal cannot be entertained by this court.

The fact is the record is completely silent as to any of this. This would appear to be a serious defect in itself, but appellee has not pressed it. We note that the parties entered into a stipulation filed on September 29, 1958 that this appeal is “a statutory appeal made pursuant to §5717.04 R. C.” With that we cannot disagree, but it offers no help in solving the problems in this case.

For the reasons above set forth the proceeding is dismissed at the cost of the appellant and the judgment of the Board and that of the Tax Commissioner of Ohio are hereby affirmed.

PETREE, PJ, MILLER, J, concur.

CONCURRING OPINION

By MILLER, J.

In concurring with my associates in this opinion, I recognize that, under the provisions of §5739.01 (B) R. C., a construction contractor may become the vendor of tangible personal property after it has become a part of the real estate, but the facts in this case reveal that none of the items under consideration were to be incorporated in the improvement itself, but were only to be used in the process of constructing the highway; hence, there could be no separate billing for such items under this section.

Counsel for the appellant relys upon a decision of the Board of Tax Appeals, to wit, Shafer v. Peck, No. 20030, which held that the production of paving material was the production of tangible personal property for sale. Here, however, the items of tangible personal property involved were used directly in the production of paving material. It, therefore, falls within the “direct use” cases, while the items of tangible personal property involved in our appeal were used by the appellant in the preparation of the right-of-way.

None of the items in the assessment had anything to do with the processing of material which was used in the construction of the road. Likewise, none of the items had any connection with the production of tangible personal property for sale by manufacturing or processing. They were purchased by the appellant to be used in the performance of its portion of a certain road-building contract.

A road or highway under Ohio law is an item of “real property” unless excepted by §5739.01 (B) R. C., and therefore, could not be considered as tangible personal property. The items against which the assessment was made were for this reason not exempt from a tax under the provisions of §5739.01 (E) (2) R. C.

' I, therefore, concur in the majority opinion.


source: Caselaw Access Project

author: By LEIS, J.:

license: Public Domain

text:
    AEROSONIC INSTRUMENT CORPORATION, Plaintiff, v. NuTONE, INC., Defendant.
    Common Pleas Court, Hamilton County.
    Nos. A-151745, A-151746, A-151806, A-152117.
    Decided September 8, 1958.
    Alvin Eugene White, for plaintiff.
    Milton M. Bloom, Grauman Marks, for defendant.
   OPINION

By LEIS, J.:

These matters are presently before the Court for determination by agreement of the parties.

Four actions have been instituted by the plaintiff corporation. It is sufficient background to state that NuTone, Inc. had a contract with the federal government to supply altimeters and, in an effort to fulfil the requirements of the contract, entered into a contract with plaintiff corporation to furnish employees, services and parts to it. Disagreements as to contract amounts and materials furnished form the bases for the four suits. Defendant corporation contends that a contract of settlement was reached by the parties which bars further proceedings in the actions.

The issue for determination by this Court is succinctly set down in the Stipulation of the Parties and Order Pursuant Thereto, a document endorsed by counsel for both parties and made an order of this Court on December 27, 1957. The issue is thus stated:

“* * * The Court herein without the intervention of a jury will first hear and determine whether the parties hereto entered into a contract settling all of their said differences." (Emphasis added.)

Before proceeding to the factual question of the existence or nonexistence of an accord, it is best to define the terms to be employed. It must be borne in mind that “accord” and “satisfaction” are two distinct but related concepts.

“* * * an accord is an agreement for giving and taking a thing in satisfaction of an existing claim or debts; the satisfaction is the actual giving and taking of such thing.” 1 O. Jur. 2d 144. .

The accord, therefore, is the agreement; the satisfaction is the execution of the agreement. An accord and satisfaction is the compromise of an unliquidated claim, one disputed in good faith. If there is to be an accord and satisfaction, therefor, certain elements are essential. O. Jur. 2d lists four essential elements:

1. A proper subject matter;

2.. Competent parties;

3. An assent or meeting of the minds of the parties;

4. A consideration.

At this instant we are not concerned with a complete accord and satisfaction, but are interested in the existence or non-existence of an accord or agreement only.

Was there an accord? To support its contention that there was, NuTone, Inc. presented to the Court four witnesses and fourteen exhibits. In determining whether or not an accord was entered we must first examine the claims of plaintiff corporation ánd the transactions which took place in regard to these claims. Basically, four claims are involved to which the Court will refer by the following numbers:

Claim No. 1. $11,370.27 for labor furnished by Aerosonic to NuTone and for consultation services, forming the basis for case A-151806.

Claim No. 2. $2263.04 for pinion gears furnished by Aerosonic to NuTone, forming the basis for case 151746.

Claim No. 3. $1596.25 for processing pinions and sectors, forming the basis for case 151745.

Claim No. 4. $10,210.34 for wages of employees furnished by Aerosonic to NuTone forming the basis for case 152117.

There is sharp disagreement between counsel whether or not all four claims were included even in settlement negotiations. As to claims 2 and 3, there can be no doubt that they were the subject of settlement discussions. To deny this would be to contradict the entire record.

Now, as to the inclusion of claim 1 in these negotiations between Attorney Gold for the plaintiff and Attorney Marks for the defendant. The difficulty insofar as it pertains to claim No. 1 is whether this claim was merely not discussed or was it abandoned. On this point the Court has studied most carefully the testimony of the witnesses and finds from the evidence presented that claim No. 1 was completely abandoned, the effect being that any settlement negotiations would include the ex-tinguishment of claim No. 1. The Court bases its conclusion as to claim No. 1 on the entire evidence from which the Court interprets that defendant corporation in its own mind felt that claim No. 1 was completely without merit and groundless, and that the discussions between the negotiators proceeded on the theory that claim No. 1 was of no real substance and was therefore abandoned and not merely shelved for future discussion. See Record page 40 (Attorney Gold, as on cross-examination)

“Q. Do I understand, Mr. Gold, that Mr. Marks said that he would negotiate with reference to a total of $3,859.29 if ,you would just abandon and forget about any other claims of Aerosonic against NuTone?
“A. Yes.
“Q. Just so the record is clear, sir, Mr. Marks said to you that he would not negotiate any further with reference to these two claims unless you forget about all other claims of Aerosonic against NuTone, is that right?
“A. That is right.”

Record page 87: (Attorney Marks, direct examination)

“A. First the claim of $11,370.27. I told him that both the company and I felt very strongly about that because that matter had been settled a great many months before, oh, roughly, January of that year, and I had been present when Mr. Frank had agreed to the settlement and it was made, settlement was made I think in January of 1954 and from that time until the date of Mr. Frank’s letter no invoice had been rendered for that amount. NuTone had considered it wiped out, and inasmuch as under the contract and under the practice any amounts which Mr. Frank asserted a claim were invoiced practically instantly. It was certainly of most compelling significance that no invoice had been received for some ten months on it. I told him it was júst a phony claim to bolster the other and we would have no part of it.” (Emphasis added.)

Record page 93: (Attorney Marks, direct examination)

“A. I said to him that we felt so strongly about this eleven thousand dollar claim which had been settled that we just were not going to discuss seriously a settlement until that claim was abandoned. I said ‘All you are doing in this matter is tacking that eleven thousand dollars on thinking we will be more generous on the others because that eleven thousand dollars is hanging over.’ I said ‘My client knows this is a false claim and I know it. I was there when the claim was settled and Mr. Frank knows it.’ And I said ‘You tell your client he has got to drop that claim because he knows it is completely false and then we will discuss seriously a settlement of the other items.’ ” (Emphasis added.)

Record page 110: (Attorney Marks, cross-examination)

“A. I didn’t say anything about Mr. -Gold not discussing it with me. I said the thing has to be dropped. It wasn’t a matter of discussion, it was a matter of dropping it, I said it was a fraudulent claim, NuTone knows it is fraudulent and we are not going to have discussions with that in the background.” (Emphasis added.)

Record page 117: (Attorney Marks, cross-examination)

“A. That isn’t true. I said unless it was dropped, not that we didn’t discuss it. I didn’t mind discussing it. I objected to the fraudulent claim being asserted and I would not discuss claims which might or might not have some validity when the major claim, which I knew had no validity, hung over the negotiations.” (Emphasis added.)

Now as to whether claim No. 4 was included in settlement negotiations Attorney Marks testified on direct examination that claim No. 4 was not mentioned specifically in negotiations. At page 89 of the record there appears the following:

“Q. Would you explain to his Honor so we may follow claim No. 4, which purports to be for the amount of $10,210.34 and which is the subject of A-152117?
“A. Well, I can tell you about it but I cannot explain the genesis of that claim because Mr. Gold and I never discussed it. We discussed what purported to be all the claims of Aerosonic against NuTone and that amount was never mentioned. I had never heard of it. NuTone had never received an invoice for it. Mr. Gold and I were trying to settle the entire matter together and that was never mentioned. It was understood that we were trying to adjust all the claims between the parties but there was no mention of that amount. I had never heard of it at that time.” (Emphasis added.)

This claim, though not specifically identified in negotiations, was already in existence, and the Court believes that the negotiations of the parties were meant to encompass all existing claim. See Exhibit 10 which reads: “To settle all claims for $2500.00.” (Emphasis added.)

Record page 74: (Attorney Gold, examination by Mr. White)

“A. I understood it to be a complete settlement of all claims of Aerosonic against NuTone.” (Emphasis added.)

Record page 78: (Attorney Gold, examination by Mr. White)

“A. * * * Mr. Frank at that time told me to go ahead with the suit and I told him that I also had ethical considerations involved, having in my opinion settled all cases in good faith with opposing counsel and that I did not feel I could ethically file a suit, or I said I would withdraw from the matter and help Mr. Hogan or anybody else in any way.” (Emphasis added.)

Record page 96: (Attorney Marks, direct examination)

“Q. But some time before October 15th you did make such an offer, is that right?
“A. Yes.
“Q. Of what amount?
“A. $2,500.00 in full settlement of all claims between the parties, that is if it was to be a full settlement.”

Record page 97: (Attorney Marks, direct examination)

“Q. Following the meeting on or about October 15, 1955, Mr. Marks, can you explain to his Honor, was there any conversation between you and Mr. Gold as to what the $2,500.00 included?
“A. It was to include all claims of Aerosonic and Mr. Frank of all types and natures and forms. It was to be a complelte adjustment.”

Record page 116: (Attorney Marks, cross-examination)

“A. There was a complete understanding between Mr. Gold and myself that we were settling the whole thing regarding any claims Mr. Frank might make, Mrs. Frank might make or Aerosonic might make. It was clearly understood it was to be a complete settlement.”

A study of the evidence discloses that if there was an accord, all four claims are included in that accord.

The Court believes that there was an accord. There was a bona fide agreement entered into by bona fide agents. There is no doubt that Attorney Marks had authority to enter into the agreement and bind NuTone, Inc., as is evidenced by Exhibit 13, a check for $2,500.00 on which defendant corporation is the drawer. Attorney Gold had sufficient authority to bind plaintiff corporation. Attorney Marks believed that he was dealing with the bona fide agent of plaintiff. Plaintiff corporation, by its actions, clothed Attorney Gold with apparent authority to bind itself; moreover, the authority of Attorney Gold was also outlined to him by the corporation. Record page 28: (Witness Frank as on cross-examination)

“Q. You did employ Mr. Gold in October or the first part of November of 1954, to represent Aerosonic in its claims against NuTone, did you not?
“A. That is correct.
“Q. And you furnished Mr. Gold with information to assist him in the representation of your company, Aerosonic, against NuTone, did you not?
“A. Information, yes, records.
“Q. And you authorized Mr. Gold to do all things necessary to represént the interests of Aerosonic, did you not?
“A. That is correct.
“Q. From the initial employment of Mr. Gold some time around the end of October of the first of November of 1954 until around in November of 1955 Mr. Gold reported back to you, as the president of the company, the results of his negotiations with Mr. Marks, who was representing NuTone, did he not?
“A. That is correct.
“Q. And you authorized Mr. Gold on certain occasions to make certain proposals of settlement, or at least to discuss settlement with Mr. Marks, did you not?
“A. That was what we hired Mr. Gold for.
“Q. That is not my question. I will ask the reporter to read the question to you. (Last question read to witness.)
“A. To discuss settlement with Mr. Marks, that is correct.
“Q. And during that period of time Mr. Gold would report back the status of his negotiations, would he not?
“A. Yes.
“Q. And you would authorize Mr. Gold to give Mr. Marks certain information, would you not?
“A. That is correct.”

Record page 125: (Witness Frank, direct examination)

“A. We employed Baron Gold to collect these monies that we had coming to us.
“THE COURT: Let me ask you, was Baron Gold authorized to represent and speak for you in these negotiations between the parties?
“A. Yes, sir, he was.
“THE COURT: And you were to be bound by whatever Baron Gold, the results he achieved?
“A. No sir. The problem that arose was the fact that Baron was to represent us and the final decision was to be made by myself or Aerosonic Corporation.
“Q. In other words, for the purpose of clarification, Mr. Gold was authorized to negotiate but final settlement would be determined by you, is that correct?
“A. That is correct.”

Attorney Gold conveyed the oiler of $2500.00 to plaintiff corporation, which, through its President, advised him to accept it. Acceptance was conveyed to defendant corporation’s attorney by letter (Exhibit 10). This acceptance was not qualified by plaintiff’s requiring return of the parts as NuTone had throughout negotiations requested that it be relieved of these parts. As further substantiated by paragraph 2 of the letter dated October 17, 1955 (Exhibit 10) plaintiff or its attorney did not construe return of the parts as any qualification of the offer to settle. The reurn of these parts by defendant to Aerosonic appeared to be taken for granted throughout all the discussions.

For the reasons outlined above the Court finds that there was a valid contract to settle based on offer, acceptance and consideration. Sometime afterward, plaintiff corporation refused to comply with the terms of the settlement agreement. Herein lies the second aspect of this proceeding: It is strongly and capably urged that an executory accord is unenforceable.

The word “accord” signifies different meanings in different circumstances.

“The term ‘executory accord,’ * * * used in its technical sense, * * * (means) an executory bilateral contract by the terms of which a creditor, leaving a cause of action against his debtor, promises to receive and the debtor promises to give, something other than was originally due, in satisfaction of the claim.” 26 111., L. R. 22.

In this case we have such an executory accord wherein the breach comes not from the debtor but by the creditor, who after tender of the settlement check by the debtor changed its mind and refused to perform under the settlement contract. The cases which refer to the term “executory accord” arise under varied situations such as the sufficiency of the defense or the granting of specific performance of such an agreement, and they deal with different kinds of claims and breaches by both creditors and debtors. As varied as are the situations, as varied are the decisions. The old concept of the non-enforceability of an executory accord has its roots in English law.

“As early as 1681, the Court of King’s Bench suggested that since this rule was established when ‘remedy was not given for mutual promises, which now is given,’ the rule should be changed.” 1 Minn. L. R. 503, at p. 504.

Now this Court cannot blindly adhere to a principle of non-enforceability of executory accord and say that the accord here has no effect; but it must examine the circumstances as they exist in the instant case and apply pertinent principles thereto.

Firstly, this is neither an action for specific performance of the accord nor is it an action to test the sufficiency of the defense. The cases submitted by counsel have all been carefully studied by the Court, and these cases, along with additionall authorities found by the Court deal mainly with the legal situations enumerated in the preceding sentence. Here, however, by the written stipulation of counsel, this proceeding is limited to “* * * whether the parties ■ hereto entered into a contract settling all of their said differences.”

This Court finds that the parties, through duly constituted agents, had a meeting of the minds and did enter a contract settling all their said differences. The agreement was not a unilateral promise but was a valid contract having the sanctity of a contract.

In response, therefore, to the stipulation of the parties and the order pursuant thereto, that the Court determine whether the parties entered into a contract settling all of their said differences, this Court finds that the parties did so enter such a contract.


author: By DRUFFEL, District Judge.

text:
    CLARK et, Plaintiffs, v. REISSIG et, Defendants.
    United States District Court S. D. Ohio, W. D.
    Civ. A. No. 3818.
    Decided June 25, 1958.

      Curtis P. Mitchell, Washington, D. C., for plaintiffs.
    Lindhorst & Dreidame, Cincinnati, for defendants.
   OPINION

By DRUFFEL, District Judge.

This cause came on to be heard on the motion of the defendants for summary judgment and on the cross motion of the plaintiffs for summary judgment, the exhibits, affidavits and the entire record, and the court hereby makes the following findings of fact and conclusions of law:

Findings of Fact

1. Defendants are in possession of the. premises described in the second amended complaint.

2. Plaintiffs do not have possession of said premises and have shown no right to possession of same.

3. The title and interest of plaintiffs’ decedent, Louise C. Minnes, in the premises described in the second amended complaint, was foreclosed in case No. A101531 on the dockets of the Common Pleas Court of Hamilton County, Ohio, wherein the premises in question were sold on a tax foreclosure action for nonpayment of taxes.

4. The court finds it unnecessary to determine if the affidavit for constructive service used in said case No. A101531 was defective as respects to said Louise C. Minnes, for the reason that the court -finds that the real estate described in the second amended- complaint sold at said foreclosure sale for an amount in excess of the delinquent taxes and the court costs, that there was an excess of $67.65 realized from the sale of said premises and said foreclosure action, which amount was ordered by the Common Pleas Court of Hamilton County, Ohio, to be paid to the said Louise C. Minnes. /

5. The said Louise C. Minnes accepted the said excess of $67.65, gave a receipt to the Sheriff of Hamilton County, accepted a check payable to her from the Sheriff of Hamilton County in that amount, endorsed said check and negotiated same.

6. Louise C. Minnes herself participated in the said sales case A101531 and accepted the fruits thereof.

7. Louise C. Minnes herself had purchased the premises described in the second amended complaint at a tax foreclosure sale, being case No. A27367 on the dockets of the Common Pleas Court of Hamilton County, Ohio; that in said case No. A27367, the Treasurer of Hamilton County used an affidavit for service by publication which was identical with the affidavit used in case No. A101531.

8. That, if the affidavit in case No. A101531 was defective, then likewise, the affidavit in case No. A27367 was defective.

9. The status- of the title of the purchaser at the sales in case No. A101531 is identical with the status of the purchaser, Louise C. Minnes, in case No. A27367 on the dockets of the Common Pleas Court of Hamilton County, Ohio.

10. Louise C. Minnes and the plaintiffs, as her heirs, have neither title nor a right of possession to the premises described in the second amended complaint and, therefore, cannot support the cause of action set forth in the second amended complaint.

Conclusions of Law

1. The plaintiffs, as heirs of Louise C. Minnes, are in the identical legal position that the said Louise C. Minnes would be in, if she were alive, and if she, Louise C. Minnes, were the plaintiff.

2. Louise C. Minnes accepted the fruits of the sale in case No. A101531 on the dockets of the Common Pleas Court of Hamilton County, Ohio, wherein the real estate described in the second amended complaint was sold in foreclosure proceedings, and the said Louise C. Minnes accepted that part of the sale proceeds which exceeded the taxes and the court costs. Therefore, Louise C. Minnes and the plaintiffs are estopped to question the proceedings in the foreclosure action (Case No. A101531). The court finds, therefore, that said proceedings were valid and binding on said Louise C. Minnes and her next of kin.

3. Even if the plaintiffs are correct in their claim that the affidavit for service by publication in case No. A101531 was defective, the court finds that Louise C. Minnes herself acquired title in foreclosure proceedings in case No. A27367 on the dockets of the Common Pleas Court of, Hamilton County, Ohio, and that the said Louise c. Minnes acquired her title in sales proceedings where the identical affidavit was used, that was used in case No. A101531. Therefore, if the plaintiffs are correct in their argument that the defendants’ title is defective, it would automatically and axiomatically follow that Louise C. Minnes herself never acquired good title to said real estate. Therefore, even if plaintiffs’ argument is correct, it follows that plaintiffs and Louise C. Minnes have no legal title to the real estate described in the second amended complaint. The court finds, as alleged in the second amended complaint, that the defendants are in possession of said real estate, that the plaintiffs have no possession of said real estate.

4. The court finds that Louise C. Minnes and the plaintiffs have neither possession nor legal title to said premises and therefore, cannot maintain the action against these defendants.

5. Irrespective of whether the defendants have title to the premises, or not, they are admitted to have possession of said premises. Therefore, since the plaintiffs cannot show a good title to said premises and do not show a good title to said premises and since the plaintiffs do not show any right of possession to said premises, the plaintiffs cannot question the title or the possession of the defendants in the within action.

6. The court finds, as a matter of law, that the defendants do have good title to said premises, as well as the possession thereof.

7. The plaintiffs have not sustained the burden of proof on their cross motion for summary judgment.

8. The defendants have sustained the burden of proof on their motion for summary judgment and by reason thereof the defendants are entitled to summary judgment in their favor, together with their costs.


author: By HORNBECK, J.

text:
    HARLEM SOCIAL CLUB, INC., Appellant-Appellee, v. BOARD OF LIQUOR CONTROL, Appellee-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5855.
    Decided February 18, 1958.
    Chamblin, Morgan & Hunsinger, Paul O. Hunsinger, of Counsel, Columbus, for appellant-appellee. '
    William Saxbe, Atty. Geni., Chester Hummell, Asst. Atty. Geni., for appellee-appellant.
    (HORNBECK, J, of the Second District, sitting by designation in the Tenth District.)
   OPINION

By HORNBECK, J.

This is an appeal from an order of the Common Pleas Court reversing an order of the Board of Liquor Control which had affirmed an order of the Department of Liquor Control. The order of the Board was that the Class D-4 permit of permittee should be suspended for a period set out in the order.

At the outset, we note the three propositions urged orally by counsel for appellee.

1. That the judgment is not subject to an appeal to this court. An examination of the record discloses that matters were considered which shape the judgment and support the right of the Board to appeal.

2. That the charge was modified by the opening statement of the Assistant Attorney General. We cannot find that the observation made was of sufficient consequence to require the conclusion that the charge was to be restricted to a violation of a regulation of the Board. Manifestly, the Board did not so consider the statement.

3. Complete lack of proof. We are satisfied that there was a factual issue whether or not the finding that there had, been a violation of the provisions of the Liquor Control Act by reliable, probative and substantial evidence.

The charge against the permittee was that on the date set out the permittee, its agent or employee did prevent, hinder, and obstruct officers of the law from making an inspection of the permit premises while in the lawful performance of their duty — in violation of provisions of the Liquor Control Act and the regulations of the Board of Liquor Control. The finding of the Board was that “the allegations of the Director of the Department of Liquor Control are well taken and supported by the evidence * * On the appeal to the Common Pleas Court, it was found that “the order of the Board is not in accordance with law.”

At the time of the hearing on the appeal to the Board, counsel for the Director stated that the hearing proceeded upon a charge of violation of Regulation 62 of the Board of Liquor Control. An examination of the opinion of the Common Pleas Court judge who heard the appeal to that court discloses that the appeal was tried and determined upon the theory that the sole charge under review related to a violation of Regulation 62.

Regulation 62, insofar as pertinent to this appeal, provides:

“Any holder of a permit issued by the Department upon presentation of credentials by an investigator or inspector of the Department shall at all times immediately admit such investigator to the permit premises for any lawful purpose.”

Sec. 4301.66 R. C., reads as follows:

“No person shall hinder or obstruct ány agent or employee of the department of liquor control, or any officer of the law, from making inspection or search of any place, other than a bona fide private residence, where intoxicating liquor is possessed, kept, sold, or given away.”

It will be noted that neither the charge nor the proof has any reference to Regulation 62. The charge makes no mention of an inspector or investigator of the Department nor does it follow the language of Regulation 62 in any particular. Both the charge and the evidence relate to the offense defined in §4301.66 R. C. The charge states that the violation offended both the provisions of the Liquor Control Act and the regulations of the Board of Liquor Control.

Insofar as the judgment of the Common Pleas Court relates to the offense alleged to be a violation of the regulations of the Board of Liquor Control, it is correct. However, it clearly appears that the other aspect of the charge to which the evidence was directed was given no consideration in the Common Pleas Court. We make this determination from the written opinion of the trial judge, which we have a right to do by authority of Andrews, Jr., etc. v. Board of Liquor Control, 164 Oh St 275.

It is obvious, then, that inasmuch as one phase of the charge against the permittee was given no consideration by the Common Pleas Court, it should have that opportunity and pass upon the question whether or not the order of the Board, as related to a violation of the Revised Code was supported by reliable, probative, and substantial evidence.

The judgment as it relates to the charge of the violation of a regulation of the Board of Liquor Control will be affirmed. It will be reversed and remanded for consideration and determination of the appeal from the order of the Board of Liquor Control as it relates to the charge of a violation of the Liquor Control Act.

PETREE, PJ, MILLER, J, concur.


author: By KEEFE, J.

text:
    AILEY, Jr., and CALVERT FIRE INSURANCE COMPANY, Plaintiffs, v. FOSTER, Defendant.
    Cincinnati Municipal Court.
    No. 702127.
    Edward K. Halaby, Cincinnati, for plaintiffs.
    James E. Kimpel, of Barbour, Kimpel and Allen, Cincinnati, for defendant.
   OPINION

By KEEFE, J.

Plaintiffs seek to recover damages sustained by plaintiff Ailey’s automobile in a collision with defendant’s car. Defendant says that the accident was caused through plaintiff’s own negligence.

Since one of the plaintiffs is the collision insurer henceforward in this opinion reference will be made only to “plaintiff” with the intention of designating Harrison Ailey, Jr.

Defendant was proceeding north on Montgomery Road intending to make a left hand turn from Montgomery into Kincaid Street. When defendant reached the aforesaid intersection, she came to a full stop in the lane nearest the center line, and allowed traffic proceeding in the opposite direction to clear. After all oncoming cars had passed on her left she turned left into Kincaid, but when her automobile was partly, but not entirely, into Kincaid it was struck in the side by plaintiff’s car moving southwardly. The parties did not have any positive awareness of each other until it was too late to avoid the accident. Prior to the collision between the two cars, plaintiff had stopped his car about 70 feet north of the intersection where the accident occurred to allow a passenger to alight to pick up food in a pizza store. Plaintiff was there about five minutes; actually all the evidence indicates it probably was closer to three or four minutes. When the passenger resumed his place in the car, plaintiff looked to his left rear and observed a traffic light changing which would allow traffic behind him to commence flowing in the same direction as he was moving. He then started to drive his automobile from the parked position at the curb line and collided with the automobile of this defendant making the left turn as explained. The weather was rainy, streets were wet, and visibility for all concerned was substantially impaired by the downpour. Just before the impact, plaintiff’s car skidded on the wet street. While stationary at the curb, plaintiff kept his motor running and lights burning. The curb stop was made in a bus stop which was not a legal place for him to be. Furthermore plaintiff was driving in the curb lane about two feet from the curb.

To sustain the burden of his case plaintiff places great reliance upon the provisions of a Cincinnati ordinance entitled “Left Turns.” It reads in full: “The operator of a vehicle or trackless trolley within an intersection intending to turn to the left shall yield the right of way to any vehicle or trackless trolley approaching from the opposite direction.” (Sec. 506-86.) Of course, if the defendant violated this ordinance, and the violation was the proximate cause of the collision, she is guilty of negligence per se, or as a matter of law, and plaintiff is entitled to recover.

However, it is our finding that defendant did not violate the city ordinance and that it was the plaintiff’s own negligence which directly and proximately contributed to his damage thus defeating his recovery.

The conduct of the plaintiff in this situation was short of what an ordinarily prudent person would have done under the same or similar circumstances. These are the significant facts: Plaintiff was only seventy feet from the intersection; he was parked illegally; streets were not only wet but to some extent actually flooded; a stream of traffic was approaching from plaintiff’s rear; visibility was extremely poor. All facts and circumstances make it apparent that plaintiff moved swiftly and abruptly from the curb southwardly on Montgomery with such haste that defendant could not reasonably have been aware of plaintiff’s approach. Taking into consideration that he was parked closely adjacent to the curb, and the further fact that he was in a clearly marked bus stop, together with the impaired visibility, plaintiff acted negligently when he sprang from the curb without the assurance that he could do so with reasonable safety. The fact that the plaintiff was parked illegally is not all-controlling, but it is one of the factors present which made it incumbent upon him to exercise care in leaving the curb. Even if defendant had seen plaintiff motionless at the curb, defendant cannot be held to have anticipated plaintiff’s negligent acts. Seeing plaintiff in an immobile situation at the curb, as she commenced her turn, naturally and properly her attention then'would have been transferred to entering the side street with safety. It would be almost impossible for a left turn driver while actually turning, to continue his watch for a possible new element introduced into the stream of oncoming traffic. To require him to do this would be to encourage disregard for the safety of pedestrians and property moving or stationary on the side street.

Under the Cincinnati ordinance, already referred to, there is no question but that a driver intending to turn left has an obligation to exercise the necessary care required to accomplish the turn with safety. However, the ordinance clearly1 states that the party turning shall yield to any vehicle “approaching from the opposite direction.” Most certainly the only logical and reasonable meaning of this language is that the car coming from the opposite direction must have established itself with safety in a lane of traffic so that it can be said actually to be “approaching”; and, of course, once it has earned its place in approaching traffic, it must proceed in all ways legal. The deficiency manifested on the part of the plaintiff in this case is that he simply had not secured such a place in moving traffic as entitled him to the benefit of safeguards provided by the city ordinance. Under all the circumstances here, a distance of seventy feet from the stop to the intersection was not sufficient to justify plaintiff to move as he did completely oblivious to a vehicle which had almost completed its left turn. Under other and different circumstances seventy feet might be enough, although it seems somewhat inadequate under any set of facts involving a jack rabbit start from a curb. I repeat that here we have not only a relatively short distance from stop to intersection, but a limited range of vision and flooded streets, a stop in a prohibited area, and the fact that the turning car was well into the side street when the incident occurred.

Judgment is for the defendant. The entry may be prepared accordingly.

It is believed this opinion satisfies the statutory requirement that, if requested, the court state in writing findings of fact and conclusions of law.


author: By CASE, J.

text:
    DAVIS, Plaintiff, v. DAVIS, Jr., Defendant.
    Common Pleas Court, Fayette County.
    No. 22567.
    Decided January 28, 1959.
    William M. Junk, Junk & Junk, Washington C. H., for plaintiff.
    Frank W. Thoroman, Sabina, for defendant.
   OPINION

By CASE, J.

On November 14, 1958, plaintiff filed her petition herein seeking a decree of divorce, alimony, custody, and support for the two minor children of the parties.

On the same date, plaintiff filed a motion for temporary alimony and support for said minor children during the pendency of this action. Said motion came on to be heard on December 1, 1958, at which time plaintiff and defendant were present and represented by counsel.

At said hearing, plaintiff testified she and the two minor children had been living with her mother; that she and defendant had been separated for three years; that, during the pendency of this action, a certain minimum of funds were reasonably necessary to pay for rent, food, clothing, public utility service, fuel and medical expenses for herself and said children; that, within the past three years, it had been necessary for her to apply for and receive certain assistance from Aid for Dependent Children; that, when employment was available, she had worked at a shoe factory and earned as much as thirty-five dollars per week; that, when unemployed, she had received approximately twenty to twenty-two dollars per week unemployment compensation; that certain proceedings had been instituted in the Juvenile Court of Fayette County, Ohio; and, by reason thereof, that defendant was presently under an order of that court to pay twenty dollars per week for the support of said minor children and said payments had not been regularly made by defendant and were partially in arrears. ■ >

At said hearing, defendant testified that he was a self-employed carpenter and was capable of earning seventy-five to eighty dollars per week when the weather was favorable; that he left Ohio and went to California in July, 1955; that at first he had resided in California and some months later resided with a friend, rent free, in Mexico for several weeks in 1956, although maintaining his mailing áddress and continuing to work in San Diego; that, in July of 1956, while so residing in Mexico, he filed for a divorce in a Mexican court, and was granted a decree of divorce by said court on July 28, 1956; that, after said decree had been granted, he married his present wife who is expecting the birth of their child within a few days; that he and his present wife left California and established their present home at Sabina, Ohio, in December, 1957.

A copy of said Mexican decree of divorce was admitted into evidence over the objection of plaintiff’s counsel, and the translation thereof reads as follows:

“THE CITIZEN MANUEL ORTIZ CRUZ, SECRETARY OF THE FIRST INSTANCE COURT OF PUENTE DE IXTLA, THIRD JUDICIAL DISTRICT, STATE OF MORELOS, REPUBLIC OF MEXICO, ____________
“CERTIFIES: — That in the expedient pertaining to the suit of necessary divorce instituted before this Court by Mr. RALPH E. DAVIS, JR., against his wife, Mrs. ALDENA ROBERTS DAVIS, there is a sentence duly executed, transcribed literally as follows:__________________________
“SENTENCE: — Puente de Ixtla, Morelos, July 21st of nineteen hundred and fifty six-------------------------------SEEN, to resolve in definitive the proceedings of the present suit of necessary divorce; and, _________________APPEARING FIRST: — That submitting expressly to the competence and jurisdiction of this Court, Mr. RALPH E. DAVIS JR., through his juridical empowered duly accredited Mr. Attorney ALBERTO LASCURAIN, filed a suit of necessary divorce against his wife, Mrs. ALDENA ROBERTS DAVIS, and exposing; That the parties in this action contracted marriage in Washington C. H., Ohio, United States of America, on the 12th day of March of nineteen hundred and fifty, as proven by testimonial information rendered; having procreated two children named TERRANCE LEE DAVIS, who is actually four years old and VICTORIA JEAN DAVIS, who is one year and seven months of age, both minors will remain in the custody of their mother; and that no community property was acquired from this matrimony; it was stated by the plaintiff that the defendant made her husband a victim of mental cruelty, reason for which the parties have been separated for one year; and concluded requesting that once all the legal requirements be complied with, sentence be dictated dissolving the marriage bonds in question. .___________________________________________________________________
“APPEARING SECOND: — That the suit was entered in this Court, and that the defendant was duly summoned in the form prescribed by the Law, and as she did not answer within the term granted, the suit was considered as uncontested and opened on trial, in which the plaintiff submitted as evidence the Instrumental, the Documental and Confessional proofs, which were duly qualified and accepted as confessed in the positions that were articulated to the defendant; thereafter the parties were summoned for the plaintiff’s deposition and afterwards for sentence; and,
“CONSIDERING FIRST: — That the competence and jurisdiction of this Court to hear and render judgment in the present divorce action was duly established with the express submission of the plaintiff to its jurisdiction, in conformity with what it is prescribed by Chapter I, Title II of the Code of Civil Procedures in force.
“CONSIDERING SECOND: — That the personality of the juridical empowered of the plaintiff was duly accredited with the Power of Attorney that was vested on him, and that the existence of the marriage contract which dissolution is requested, was also established with the testimonial information rendered. ___________________________________
“CONSIDERING THIRD: — That the present divorce suit is based on the grounds of mental cruelty, for which the parties have been separated for one year, and which constitutes grounds for divorce in conformity with fraction VIII of article 360 of the Civil Code in vigor in the State; therefore the contention was duly established with the evidence submitted and with the tacit confession of the defendant, who was held as confessed in the context of the positions that were articulated; thus the marriage bonds in question should be severed with all its legal effects, remaining both parties in legal aptitude to contract new nuptials. In view of the foregoing, and with further basis on article 120 of the Political Constitution of the State and 597, 599, 600, 602 and 609 of the Code of Civil Procedures in force, it is hereby ruled:
“FIRST: — This case of divorce has proceeded legally; the plaintiff proved his contention and the defendant did not interposed any objections.
“SECOND: — It is hereby adjudged and decreed severed with all its legal effects, the marriage contract celebrated between RALPH E. DAVIS JR., and ALDENA ROBERTS DAVIS, in Washington, C. H„ of Ohio, United States of America, on the 12th day of March of 1950.
“THIRD: — Therefore both parties will remain hereby in legal aptitude to contract new nuptials, once this judgment is duly executed.
“FOURTH: — The minor children of this matrimony will remain hereby in the custody of their mother.
“FIFTH: — Let it be notified.

Thus it was adjudged and decreed by the Citizen Attorney Ricardo - Anzures, Judge of First Instance of the Third Judicial District of the State, before his secretary that authorizes. — I testify. R. Anzures. Manuel Ortiz Cruz. Signatures.

“ ‘Puente de Ixtla, Morelos, July 28th of nineteen hundred and fifty six.
“As the legal term has elapsed without interposing the recourse of appeal to this sentence, according to certification of the Secretaryship, and in conformity with articles 621-fraction II, 622 and 623 of the Code of Civil Procedures in vigor, said sentence is hereby declared duly executed and held valid; thus certified copy be issued to the interested party, as requested. It was adjudged and signed by the Citizen Judge. I testify. R. Anzures. Manuel Ortiz Cruz. Signatures.’ ”
“IN COMPLIANCE WITH THE ABOVE EXPRESSED DEGREE, THIS TRUE AND EXACT COPY OF ITS ORIGINALS IS ISSUED IN TWO SHEETS DULY ATTESTED AND AUTHORIZED IN THIS CITY OF PUENTE DE IXTLA, STATE OF MORELOS, REPUBLIC OF MEXICO, ON THIS 28TH DAY OF JULY OF NINETEEN HUNDRED AND FIFTY SIX.
THE SECRETARY:
OFFICIAL SEAL.
signature (signature)
MANUEL ORTIZ CRUZ.”

At the conclusion of all the testimony, defendant’s counsel orally moved the court for an order dismissing plaintiff’s motion for such temporary alimony and support. Said oral motion to dismiss is directed to and attacks the jurisdiction of the court to determine and adjudicate all issues arising out of and related to plaintiff’s action herein for divorce, alimony, custody and support.

Plaintiff by argument and brief contends that defendant has not obtained a valid Mexican divorce and, in support of this contention, cites Bobala v. Bobala, 33 Abs 440, 68 Oh Ap 63, 20 O. O. 45, 33 N. E. 2d 485.

Defendant contends by argument and brief that he obtained a valid Mexican divorce decree and cites In Re Estate of Walter C. Sayle, 37 O. O. 167, 51 Abs 33, 80 N. E. 2d 221.

Plaintiff in effect contends that defendant’s acts and conduct, in leaving Ohio, obtaining a Mexican divorce decree and returning to Ohio, are sufficiently similar to the Bobala case, in character, degree and extent, to warrant and justify this court in following the rules of law applied by the court of appeals in that case.

This court is fully in accord with and subscribes to the reasoning and decision arrived at by the court of appeals in the Bobala case, supra, in the light of the facts and circumstances of record therein, but this court must observe and recognize what appear to have been extremely pertinent and controlling factors in that court’s adjudication of the matter. Bobala’s previous filing for a divorce in the Common Pleas Court of Mahoning County and its subsequent dismissal. His later violation of an injunction issued out of the same court in an effort to restrain him from further prosecuting • his divorce proceedings in the Mexican court, which, when coupled with his application for' and receipt of a leave of absence from his employer, together with his return from Mexico and resumption of his former employment within the time limit of his leave, appear to have been decisive factors considered by that court of appeals in its decision.

In the case at bar, no such overt acts and conduct appear of record herein, and the absence thereof clearly distinguish these two factual situations to such a degree and extent as to reasonably indicate and show that the rules of law pronounced in the Bobala case, supra, are not applicable and should not be applied in the light of the facts of record in the instant case.

This court is also fully in accord with and subscribes to the reasoning and.decision arrived at by Judge Brewer (In Re Estate of Walter C. Sayle, supra), and the subsequent decision of the court of appeal written by Judge Skeel (Sayle, Estate of, In Be, 51 Abs 46, 80 N. E. 2d 229) affirming the lower court.

In their respective opinions, Judge Brewer and Judge Skeel take notice of and make reference to Williams v. North Carolina, 325 U. S. 226, and recognize the consideration which has been given to those facts and circumstances surrounding the conduct of the party obtaining such questioned divorce when such conduct is relied upon to show and establish the failure of the foreign court to obtain jurisdiction. In addition to considering the rule of law pronounced by the Supreme Court of the United States in the Williams case, supra, to the effect that the burden of proof of undermining the verity of a divorce decree in a foreign forum rests heavily upon the assailent, Judge Brewer recognizes other factors which did not appear to be present and therefore were not before the high court in the Williams case.

At page 171 (37 O. O. 167), 51 Abs 33 at page 42, Judge Brewer states in part as follows:

“In the Williams and Smerda cases the actions challenging the validity were filed shortly after the decrees of divorce' were granted. In the instant case action was not commenced until twenty years later.
“In the Williams case, a criminal prosecution, not involving the property rights of individuals, the jury decided that it was not the parties’ intention to remain residents of Nevada.
“In the Smerda case, the court determined from all the testimony that it was not the intention of Smerda to remain in Nevada.
“In the instant case there is no evidence whatsoever that Dr. Miller did not intend to remain in Nevada.
“This court feels impelled, as was Mr. Justice Black, in his dissenting opinion in the Williams case, supra, ‘to protest as vigorously as I can’ against the decision in the Williams case, and hence, to that in the Smerda case. It is not to the finding on the specific sets of facts in each of these cases that this court disagrees (because as has so often been said, bad facts make for bad law), but to the application of the announced principle of law relative to foreign divorces generally.
“Neither the Williams nor the Smerda cases make any exceptions as to time, estoppel, or take into consideration the persons involved, or the ultimate effects of the findings. To follow these holdings blindly would be to place untold thousands in the position of bigamists, mistresses and illegitimates, ***”

And, on page 173 (37 O. O. 167), 51 Abs 33 at page 45, Judge Brewer concludes as follows:

“This court recognizes the general rule of law that the full faith and credit rule is only applicable where the foreign court rendering the judgment has jurisdiction, but the time is not yet here when the full faith and credit rule has sunk to no faith and discredit.
“This court does not condone ‘quickie’ divorces where persons seek to cast aside spouses and liabilities with complete abandonment, nor suggests that in no case the question of intent be not questioned. However, neither is this court willing to subscribe to a rule that every foreign divorce be open to examination by all persons without regard to time, equities, estoppel, or remote interest. There must be a middle road. The history of our law discloses that where situations appear hopeless a solution is always found.
“Were it within the province of any court to lay down rules that would protect the property rights and the social existence of literally millions of persons who live today under a state of doubt and possible insecurity, in view of the law as it has been announced, it would be urged that:
“First: No action to set aside a divorce decree of a sister state shall be maintained except by the parties to the original marriage. This would prevent the state, or any person other than the party to the original marriage, from seeking to avoid the divorce.
“Second: That any action to set aside the divorce decree of a sister state must be filed within one year after actual knowledge of the divorce is received by the spouse.
“Third: No action to set aside a divorce of a sister state shall be entertained where the avoidance of the decree will affect the legitimacy of children. It is the policy of the court to declare offsprings legitimate rather than illegitimate.
“Fourth: No action to set aside a foreign divorce shall be entertained where the defendant has subsequently remarried. The reason is self-evident that no one should be permitted to act upon the faith of a foreign divorce decree, and later be permitted to challenge it.
"In view of the testimony and mindful of the decisions in the case of Smerda v. Smerda, and Williams v. North Carolina, upon which the exceptors rely, this court can come to but one conclusion, that the exceptors have not sustained ‘the burden of undermining the verity which the Nevada decrees import.’
“The court, therefore, grants the motion of the administratrix to dismiss the motion of the exceptors.”

This court, coming now to consider all of the testimony and evidence produced in the case at bar concerning defendant Davis’ residence and domicile in Mexico and the reasonable inferences which may be drawn therefrom and also considering the credibility of Mr. Davis, his candor and demeanor upon the witness stand and any and all conflicting statements made by him in the course of his testimony, is compelled to conclude that the plaintiff herein has failed to sustain the burden of undermining the verity which the Mexican decree imports, and therefore must find that the facts and circumstances of record herein are sufficient to show that the Mexican court had acquired such jurisdiction of the defendant and the subject matter so as to make and issue a valid order dissolving the marriage contract theretofore existing between the parties to this action.

And, while the Mexican decree purports to award custody of their children to the plaintiff herein, this court is also compelled to observe there is undisputed evidence of record which clearly shows that neither the plaintiff nor said children were ever within the jurisdiction of the Mexican court, and that plaintiff and said children have continuously resided together in the State of Ohio.

Since the decision of the Supreme Court of the United States in May v. Anderson, 345 U. S. 528, 97 L. ed. 1221, 73 S. Ct. 840, this court has construed the force and effect of that decision to be that a mother’s rights to custody of and support for her children are in the nature of personal rights which cannot be cut off by an ex parte decree. So, in so far as the Mexican decree purports to award custody and to ignore support for said minor children, this court is compelled to conclude that such portion of said Mexican decree is void ab initio for lack of jurisdiction over the person of the plaintiff and her two children.

It is also noted that the Mexican decree did not purport to consider or determine any award of alimony to Mrs. Davis, the plaintiff herein.

In the case of Hasselschwert v. Hasselschwert, 103 Oh Ap 202, the court of appeals held, in part, as follows:

“1. A decree of divorce does not bar a subsequent action for alimony; the right to alimony continues until adjudicated.”

And, in the case of Armstrong v. Armstrong, 162 Oh St 406, the Supreme Court of Ohio held as.follows:

“1. A divorce decree obtained against a nonresident defendant solely upon service by publication, where such service is authorized in the state granting the divorce, is entitled, under Section 1, Article IV of the Constitution of the United States, to full faith and credit elsewhere, providing such service meets the requirements of due process and the plaintiff at the time of instituting the divorce proceeding was legally domiciled in the state granting the divorce.
“2. Such a divorce decree in favor of a husband, based solely on service by publication on the wife residing in another state, does not, as to a denial of alimony therein, operate extraterritorially and is not entitled to full faith and credit in such other state.”

The opinion in that case was written by Judge Zimmerman, and it is noted that, in its reasoning, the court cites the Williams case, supra, as well as May v. Anderson, supra, and also cites a case involving a Cuban decree of divorce. Beginning on page 410 (182 Oh St), Judge Zimmerman sets forth the following reasoning and authorities:

“The rule of general acceptance is that a divorce decree obtained against a nonresident defendant solely upon constructive service, if such service is authorized in the state granting the divorce, is entitled to full faith and credit elsewhere, providing such constructive service meets the requirements of due process and the plaintiff at the time of instituting the divorce proceeding was legally domiciled in the state granting the divorce. Williams v. North Carolina, supra; annotation, 28 A. L. R. (2d), 1306
“But may a divorce decree secured by a husband even in the so-called matrimonial domicile, where service of summons on the wife, then residing in another state, has been by publication only, deny the wife any right to alimony, so that such denial must be recognized as conclusive in another jurisdiction? We do not think so.
“We would approve the rule that such a decree as it concerns the denial of alimony to the wife is not entitled to full faith and credit in another state. A decree of that kind is one in personam and requires either an appearance by, or lawful personal service on, the wife, in order to have extraterritorial effect. In other words, in a situation of the kind under discussion, that part of the decree granting a divorce may be immutable, but that part which purports to fix alimony rights is not, and alimony may be the subject of adjudication in the court of another state at a future time. What has been said finds sanction in the Ohio cases of Cox v. Cox, 19 Oh St 502, 2 Am. Rep., 415; Doerr v. Forsythe, Admx., 50 Oh St 726, 35 N. E. 1055, 40 Am St. Rep. 703; Weidman v. Weidman, 57 Oh St 101, 103, 48 N. E. 506, 507; Bay v. Bay, 85 Oh St 417, 426, 427, 98 N. E. 109, 110; and Slapp v. Slapp, 143 Oh St 105, 54 N. E. (2d), 153.
“Although not directly in point from a factual standpoint, we believe the following cases also lend support to the position we have taken; Estin v. Estin, 334 U. S., 541, 92 L. Ed., 1561, 68 S. Ct., 1213, 1 A. L. R. (2d), 1412; and May v. Anderson, 345 U. S., 528, 97 L. Ed., 1221, 73 S. Ct., 840. And see the concurring opinion of Mr. Justice Douglas in Esenwein v. Pennsylvania, ex rel. Esenwein, 325 U. S., 279, 89 L. Ed., 1608, 65 S. Ct., 1118, 157 A. L. R., 1396.
“In the case of Pawley v. Pawley (Florida), 40 So. (2d), 464, 28 A. L. R. (2d), 1358, certiorari denied, 340 U. S., 866, 95 L. Ed., 632, 71 S. Ct., 90, the husband secured a Cuban decree of divorce against wife, a resident of Florida, on the ground of desertion, which constitutes a ground for divorce in Florida. Personal service of notice of the action was made on the wife in Florida. The Supreme Court of Florida recognized the Cuban decree as valid under the principles of comity but held that the Cuban court did not and could not pass upon the right of the wife to alimony since no personal jurisdiction had been secured over her, and that, therefore, she was not barred from maintaining an action for alimony in Florida.
“Consequently, we are in agreement with the judgments of both the lower courts herein. Armstrong’s Florida divorce decree dissolved the marriage relation between him and his wife, and Mrs. Armstrong could not thereafter successfully maintain an action in divorce for herself in this state; but the Florida court had no jurisdiction over the person of Mrs. Armstrong and that court could not by its decree effectively preclude her from obtaining an alimony award in Ohio.”

Therefore, in the light of all the evidence presently of record and the authorities hereinabove cited, this court makes the following finding of facts and conclusions of law:—

1. That defendant left his wife and two children and his Ohio matrimonial domicil in July, 1955:

2. That, within the first six months of 1956, defendant became domiciled in Mexico, even though he continued to be employed in California:

3. That, on July 21, 1956, defendant instituted an action for divorce in the Civil Court of First Instance, State of Morelos, Republic of Mexico, and obtained a final decree of divorce from said Mexican court on July 28. 1956;

4. That, immediately thereafter, defendant became a resident of California and married his present wife;

5. That, on April 15, 1957, defendant appeared before the Juvenile Court of Fayette County, Ohio, upon the prosecution' of a nonsupport complaint by his first wife who is the plaintiff herein;

6. That, at said Juvenile Court hearing, on April 15, 1957, defendant produced evidence tending to show that he had obtained a Mexican decree of divorce from his first wife and had remarried;-

7. That plaintiff did not institute her action herein for divorce, alimony, custody and support of said minor children of the parties until November 14, 1958;

8. That, since April 15, 1957, defendant’s second wife has become pregnant and the birth of their child is anticipated within a few days;

9. That, in so far as said Mexican decree dissolved the marriage relation between plaintiff and defendant herein, it is valid under the principles of comity:

10. That, in so far as said Mexican decree purported to award custody of said minor children, it was ineffective because no personal jurisdiction had been secured over the mother of said children;

11. That, said Mexican court did not and could not pass upon the mother’s right to support for said minor children since no personal jurisdiction had been secured over her by said court; and

12. That said Juvenile Court of Fayette County, Ohio, made and issued a support order against defendant as a result of said hearing on April 15, 1957, and has acquired and exercised jurisdiction over plaintiff and defendant and their children with1 respect to the support of said children since April 15, 1957.

And, by reason of the foregoing findings and conclusions, this court makes the following ultimate finding of facts and conclusions of law:

Where plaintiff institutes an action for divorce, alimony, custody and support of minor children on November 14, 1958, and there is undisputed evidence of record showing that plaintiff had successfully prosecuted the defendant upon a complaint for non-support on April 15, 1957, during which prosecution defendant presented evidence tending to show and establish that he had obtained a Mexican divorce and thereafter remarried to another, the plaintiff’s subsequent filing of a petition for divorce, alimony, custody and support, constitutes an attack upon the validity of said Mexican decree of divorce which the trial court must first consider and determine before making any award of alimony, custody and support of minor children of the parties, during the pendency of the plaintiff’s action.

Since the burden of proof of undermining the verity of said Mexican decree rests heavily upon the plaintiff and the undisputed evidence of record shows that plaintiff, by reason of her prosecution of a nonsupport complaint against defendant, had knowledge of such foreign decree and defendant’s remarriage to another for approximately nineteen months prior to instituting her action herein, and where the evidence further shows that avoidance of such Mexican decree would affect the legitimacy of a child about to be born; the trial court should recognize the Mexican decree to be valid under the principles of comity to the extent that defendant did invoke and obtain the jurisdiction of the Mexican court to dissolve his marriage relationship with the plaintiff, but in all other respects the trial court should hold that said Mexican decree does not operate extraterritorially and is not entitled to the principles of comity since the Mexican court had secured no personal jurisdiction over the plaintiff and could not pass upon plaintiff’s right to alimony and her right to custody and support of said minor children.

The court must therefore conclude that, in so far as plaintiff’s petition seeks a divorce from the defendant herein, that portion of her petition should be denied and dismissed; that, with regard to that portion of her petition wherein she seeks adjudication of her right to alimony, this court should retain jurisdiction thereof until her right thereto has been finally heard and determined; and that, in so far as plaintiff’s petition seeks an award of custody and an award of support for her minor children, her rights thereto have been properly brought before this court and, since the record shows that the Juvenile Court of Fayette County, Ohio, has exercised and issued a continuing order for such support, it would be for the best interest of said children to certify the matter of custody and support of said children as sought by her petition to the exclusive jurisdiction of said Juvenile Court as provided by law.

That, in the light of the evidence and the law applicable thereto as herein above set forth, the defendant’s oral motion to dismiss plaintiff’s motion for alimony and child support during the pendency of this action, is not well made and should be overruled and denied; and that, upon due consideration of plaintiff’s motion for temporary alimony and the evidence adduced in support thereof, the same is well made and should be sustained, and defendant should be ordered and required to pay to plaintiff the sum of five dollars per week as and for temporary alimony until further order of this court.

Plaintiff’s counsel should prepare an entry in conformity herewith noting therein appropriate exceptions on behalf of the defendant.


author: Per CURIAM.

text:
    HARTFORD, Estate of, In re.
    Ohio Appeals, Seventh District, Columbiana County.
    No. 764.
    Decided January 2, 1958.
    Hunston, Atkinson & Lower, Salem, for applicants-appellees, Robert S. Hartford, Admr., d.b.n. c.t.a. of the Estate of Henry E. Hartford, deceased, Robert S. Hartford and Robert C. Rowe.
    Riddle & Riddle, Lisbon, for Lynn R. Riddle, Executor of the Estate of Nettie E. Hartford, Deceased.
   OPINION

Per CURIAM.

The Judge of the Court of Probate sustained the motions filed on July 16 and 17, 1954, by Robert C. Rowe, as an individual, and Robert S. Hartford, individually and as administrator, d.b.n. c.t.a. of the Estate of Henry E. Hartford, deceased, to open the four accounts of Nettie E. Hartford filed by her as executrix of the estate of Henry E. Hartford, deceased, and to vacate the orders settling and approving such accounts entered May 13, 1938, November 10, 1939, October 11, 1940, and July 18, 1951, and allowed exceptions to all interested parties.

Notices of the filing of the accounts were duly given prior to the approval by the Probate Court, to which accounts no exceptions nor objections were saved nor made by any person or persons.

The motions filed July 16 and 17, 1954, were filed under the provisions of §10506-34 through 10506-40 GC, one day before the three year statute of limitations expired on the account approved July 18, 1951.

Lynn R. Riddle, executor of the estate of Nettie E. Hartford, deceased, appealed on questions of law from the orders of the court of probate for the purpose of determining whether from the record facts the applicants have established a clear and convincing right to have the accounts opened and vacated long after the approval of such accounts and the resignation and death of Nettie E. Hartford. In the absence of a bill of exceptions we must answer this question in the affirmative.

Upon hearing had the motion of appellees, Robert S. Hartford as administrator d.b.n. c.t.a. of the Estate of Henry E. Hartford, deceased, Robert S. Hartford as an individual, and Robert C. Rowe, as an individual, to dismiss the appeal on the ground no bill of exceptions was filed was denied from the bench for the reason that facts sustaining appellant’s contention could be shown from the face of the record. Their motion to affirm the judgment of the court of probate will be disposed of hereafter herein.

As we interpret the arguments and briefs of counsel Nettie E. Hartford, executrix of the estate of Henry E. Hartford, deceased, reopened the estate of Henry E. Hartford on April 15, 1951, for the sole purpose of disposing of real property situated in the commonwealth of Pennsylvania, and on July 18, 1951, the executrix’s account was approved and her resignation accepted, which by reason of such arguments and briefs we accept as a fact though not disclosed by a bill of exceptions.

On January 28, 1953, Nettie E. Hartford died.

Applicants claim the right to open the first three accounts filed by Nettie E. Hartford is authorized by §10506-4 (d) GC, then in effect, which section provides “that as to persons having notice of the hearing” the order settling an account should not be final in case of fraud or collusion.

Applicants claim fraud or collusion existed but this court can not determine in the absence of a bill of exceptions the correctness of applicants’ claim.

The trial judge in his journal entry of June 10, 1957, found:—

“On consideration, the court finds that Lynn R. Riddle as executor aforesaid complied with the court’s orders of July 16 and 17, 1954, requiring him to serve all interested beneficiaries under the will of Nettie E. Hartford, deceased, with notice of said motions to vacate and open and of the time and place of the hearing thereon, that all interested persons are properly before the court, and that applicants have proved grounds for opening each of said four accounts and vacating each of the orders settling the same.”

Defendants contend by brief that such entry:—

“* * * can be susceptible to only one interpretation, and that is, that the trial court found the claims as set forth in the applicant’s motion to have been proved and for that reason without finding ‘fraud’ to have been actually established, approval of the accounts were set aside so that the question of fraud may be set up on filing exceptions to the account. If this is correct, then it is the contention of the executor that the order must be reversed, because the court is without power to vacate the approval of the account, except fraud be established to the satisfaction of the court by clear and convincing proof. (See Nyuis, Estate of, In Re: Nyuis, Admr. v. Burch, Jr., 65 Abs 65.)”

Without a bill of exceptions showing the contrary we must assume that the words “and that applicants have proved grounds for opening each of said four accounts and vacating each of the orders settling the same” were based upon proof of fraud shown by the required degree.

The judgment of the Court of Probate is affirmed.

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


author: By PETREE, PJ.

text:
    WOLF, Plaintiff-Appellant, v. OHIO STATE UNIVERSITY HOSPITAL, OHIO STATE UNIVERSITY, and THE BOARD OF TRUSTEES OF THE OHIO STATE UNIVERSITY, Defendants-Appellees.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5969.
    Decided November 25, 1958.
    Reeves & Herron, Robert L. Reeves, of Counsel, Lowman, Patterson Pfefferle & Dunn, Columbus, for plaintiff-appellant.

      William Saxbe, Atty. Geni., C. V. Thomas, Asst. Atty. Geni., Columbus, for defendants-appellees.
    (HORNBECK, J, of the Second District, sitting by designation in the Tenth District.)
   OPINION

By PETREE, PJ.

This is a law appeal from a judgment of the Court of Common Pleas upon the following assignment of - error:

“The Court erred to the prejudice of plaintiff-appellant in sustaining the demurrer of defendants-appellees to the plaintiff-appellant’s Petition and in rendering final judgment in favor of defendants-appellees.”

In her brief plaintiff, appellant herein, raises two questions:

“1. Does the petition basically state facts which give rise to a cause of action in tort.
“2. Can the Board of Trustees of Ohio State University be sued in tort for a wrong done to the plaintiff by employees of Ohio State University hired by the Board and under its control.”

If the second question is answered in the negative, then the Court of Common Pleas was correct in sustaining the demurrer filed by the defendants, appellees herein, and in rendering judgment for said appellees.

It is unnecessary to go into the question of liability or nonliability of hospitals operated as charitable institutions or institutions not for profit, which is discussed in Avellone v. St. John’s Hospital, 165 Oh St 467, for the simple reason that the Ohio State University Hospital is operated by the Board of Trustees of The Ohio State University, and said board is an arm of the sovereign, the state, and the latter has neither authorized, or permitted, by any law, its agents to be sued for tort to either person or property.

This view is sustained by the holding in Board v. Volk, 72 Oh St 469, in Paragraphs 1 and 2 of the syllabus, and in the opinion, beginning at Paragraph 2 on Page 485, which reads as follows:

“It is not the private property of the board, but it is authorized to hold it for the state for the promotion and advancement of the education of the youth of the commonwealth, and its control is limited according to the will of the sovereign power. The board is a mere instrumentality of the state to accomplish its purpose in establishing and carrying forward a system of common schools throughout the state. As heretofore stated, these boards are but arms of the sovereign, the state, and the latter has neither authorized nor permitted, by any law, its agents to be sued for tort to either person or property.
“As the citizen cannot sue the state without its consent, expressed by legislation, its agents, the boards of education cannot be sued and made liable for damages without consent of the sovereign, expressed by pertinent legislation. Such legislation exists as to contracts made within the scope defined, but it does not extend to official misconduct, negligence or want of care.
“Therefore the words ‘owner’ and ‘possessor’ must be understood and construed with reference to this doctrine, for the board of education, is the ‘possessor’ in the same sense, that it is or may be the ‘owner.’ This being true, section 2676, supra, does not apply to boards of education and the property committed to their care.
“If it be said that in the light of the foregoing, the injured party has no redress, we answer in the language of the authorities: ‘Even the state or the general government may be guilty of individual wrongs, for, while each is sovereign, it is a corporation also, and as such capable of doing wrongful acts. The difficulty here is with the remedy, not with the right. No sovereignty is subject to suits except with its own consent. But either this consent is given by general law, or some tribunal is established with power to hear all just claims, or, if neither of these is done, the tort remains; and it is always to be presumed that the legislative authority will make the proper provision for redress when its attention is directed to the injury.’ Cooley on Torts, marginal page 123; United States v. Peters, 5 Cranch, 139; Osborn v. Bank of U. S., 9 Wheat., 738; United States v. McLemore, 4 How., 286; Hill v. United States, 9 How., 386.
“In conclusion upon the subject of remedy, we do not mean it to be understood that the alleged excessive and wrongful excavation, without protecting the plaintiff’s property, might not have been restrained in a proper and timely action for that purpose.
“The judgments of the lower courts are reversed, the demurrer to the amended petition sustained and that petition is dismissed.”

It is our opinion that the Board of Trustees may not be sued in tort for any claimed negligence of employees of the Ohio State University Hospital, which is operated by said Board of Trustees, since there is no statute authorizing such suit. We hold that §3335.03 R. C., with reference to the power to sue and be sued, was properly strictly construed by Judge Marshall of the Court of Common Pleas and that this section does not extend the right to sue for damages arising in tort.

The Board of Trustees of The Ohio State University has been held not to be a corporation in Neil v. Board of Trustees, 31 Oh St 15, and in Thomas v. University Trustees, 195 U. S. 207. This being so, it is unnecessary for us to dwell upon the claimed liability under Avellone v. St. John’s Hospital, supra.

The only remedy which the state of Ohio has seen fit to provide for persons who may be injured and have a just claim is to establish a Sundry Claims Board, to which claim may be made. The Sundry Claims Board, however, cannot be sued.

The Ohio State University Board of Trustees clearly has the authority under the statutes of Ohio to operate the Ohio State University IJpgpital as a part of its teaching program. An analogous situation arose in Long v. Trustees of Ohio State University et al., 24 Oh Ap 261, Headnotes 1 and 2 of which are as follows:

“1. The Ohio State University may, under the powers conferred upon it by statute, establish and maintain upon its campus a store for the purpose of selling and furnishing books and other student supplies to students and professors of said University upon a cost basis.
“2. Such enterprise, being incidental to the main objects and purposes of the University, is not forbidden to the University as an agency of the state by any provision of the state Constitution.”

The Supreme Court of Ohio, in the same case but styled Long et al. v. Mack et al, 116 Oh St 738, dismissed the petition in error for the reason that no debatable constitutional question was involved.

• The trial court was correct in sustaining the demurrer and entering judgment for the appellees.

Judgment affirmed.

BRYANT and HORNBECK, JJ, concur.