text:
    DAVINO, a Minor, etc. et, Plaintiffs-Appellees, v. JOHN HANCOCK MUTUAL LIFE INSURANCE CO., Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24563.
    Decided December 18, 1958.

      Franklin A. Polk, for plaintiffs-appellees.
    Burgess, Fullmer, Parker & Weh, for defendant-appellant.
   OPINION

By KOVACHY, J:

This is an appeal on questions of law from a judgment entered ón a verdict rendered by a jury in favor of the plaintiffs in the Common Pleas Court of Cuyahoga County.

The plaintiff, Donald J. Davino, a minor by his next friend, Rose Meister, and plaintiff, Rose Meister, Administratrix of the Estate of James V. Davino, brought this action against the defendant, John Hancock Mutual Life Insurance Company, appellant here, to recover under a group policy of insurance issued by said defendant insurance company to the National Screw & Manufacturing Company which maintained it for its employees. The( group policy of insurance carried both death and permanent total disability benefits.

James Davino was an employee of the National Screw & Manufacturing Company and was covered by said group policy of insurance.

The second amended petition, on which this cause was tried, avers that James Davino, while employed by the National Screw & Manufacturing Company, became totally disabled on or about the 1st day of January, 1954, and that such total disability continued from that date to April 28, 1954, on which date James Davino died. Plaintiffs also say that on the date of his death, the policy of group insurance was in force on his life, and as a result, claim the right, under the terms of the policy, to recover $7500.00 under the provision insuring the life of James Davino and $7500.00 for permanent total disability.

Hereafter we shall refer to the National Screw & Manufacturing Company as the Employer, James Davino as the Employee, and the John Hancock Mutual Life Insurance Company as the Company.

The record discloses that the Employee was first covered under this group policy of insurance on February 18, 1932; that Donald J. Davino was the designated beneficiary; that the Employee worked on his job until February 4, 1954; that the records of the Company were marked “voluntary quit” as of February 28, 1954, which notation was affixed to his record for not having reported for work or having called his employer within a week following his last day on the job; that the Employee was paid in full for the month of February, 1954; that the premium for his insurance was paid partly by the Employer and partly by the Employee; that the Employer deducted monthly from his pay check the premiums due on various forms of insurance carried by the Employee through the Employer, it being a mere bookkeeping entry; that the last monthly premium deductions from the Employee’s pay check on the records of the Employer’s books were made as of January 31, 1954; that no premium deductions were made when the pay check was made up on February 28, 1954; that the Employee had absented himself from the job approximately 25% of the time during the last year of his employment; that the Employer had no knowledge of any illness or disability during the Employee’s employment with them; that on April 13, 1954, the Employee entered St. Alexis Hospital for cirrhosis of the liver induced by excessive and continuous drinking of alcohol; that the Employee died in said hospital on April 28, 1954, as a result of said disease; that the Employee did not know the seriousness of his illness at any time; that the Employee at no time furnished the insurance company with any proof or notice of total and permanent disability; that the Employee gave no official notice to his Employer of sickness; that the Company officially notified counsel for the estate of the Employee on August 23, 1954, that the group insurance policy “automatically expired when James Davino quit on February 28, 1954”; that counsel for the Employee on November 24, 1954, made a formal demand on the Company for the payment of $7500.00 under this group policy and requested that forms be forwarded to him “to collect the permanent total disability benefit”; that on December 17, 1954, counsel sent another letter to the Company stating that if no response was received to his letter of November 24, 1954, within five days, he would consider it a rejection of their claim and file suit; that a “Statement of Claim” form was thereafter forwarded by the Company to counsel for the Employee; that said “Statement of Claim” was prepared by Rose Meister as Administratrix on January 28, 1955; that said Administratrix, to the question “When did your dependent first become disabled and unable to work?” answered, “February 28, 1954”; that the lower half of said “Statement of Claim” was completed by an official of the Employer; that the Employer, in answer to the question as to when the insurance coverage terminated answered, March 1, 1954; that said Employer in the same “Statement of Claim” checked the word “quit” for the reason for its employee leaving his work; that the Employer forwarded said “Statement of Claim” to the Company on February 5, 1955; that on March 4, 1955, the Secretary and Treasurer of the Employer in answer to a telegram sent him by the Company wired the Company: “James Davino last worked here on February 4, 1954. Have no evidence of disability.”; that on June 27, 1955, the Company wrote the Secretary and Treasurer of the Employer in part:

“Our recordds show that the insurance terminated on February 4, 1954, due to the employee terminating his employment.
“As death occurred on April 28, 1954, after the termination of the insurance we must deny liability for this claim. Claim cannot be considered under the permanent and total disability provision of your group policy since the disability commenced on February 28, 1954, after the employee had left work. * * that counsel for the parties in open court stipulated “that the jury need only return a general verdict either for or against the plaintiff or the defendant; and that the amount to be recovered, if any, would be calculated by the attorneys in accordance with the terms of the policy of life insurance governing the issues in this case”; that the expert witness for the plaintiffs testified in answer to a hypothetical question that the Employee became totally and permanently disabled in October of 1953; that evidence of a substantial nature was presented tending to prove each and every statement of fact incorporated in the hypothetical question propounded to the expert witness; that the trial court instructed the jury to bring a general verdict without any involvement as to money and to find for the plaintiffs, if, by a preponderance of the evidence, they have proven “. . . that the insurance policy was in effect, that the premiums were paid, and that he was covered and died within the ninety days after such illness arose,” and to give full consideration to the terms incorporated in the insurance policy admitted in evidence and before them; that the court also charged the jury upon the questions of law bearing upon the provision of the policy dealing with the payment of benefits to one totally and permanently disabled; that the jury returned a general verdict in favor of the plaintiffs; that counsel were “unable to agree as to the amount of interest to be paid by the insurance company to date of judgment”; that the court on its own responsibility found that the jury could have “found that due proof of loss could have been submitted as early as November 21, 1953, and as late as February 5, 1955, and as a result thereof, the limits of interest on the principal amount of said policy would range from a high of One Thousand Nine Hundred Fifty Dollars ($1950.00) to a low of One Thousand Four Hundred Six Dollars and Twenty-five Cents ($1406.25) and the court adopts a figure at the midpoint between these two extremes of One Thousand Six Hundred Seventy-eight Dollars and Sixty-two Cents ($1678.62) as being the amount of interest due to the plaintiffs from the defendant up to the date of judgment”; that judgment was entered for $9178.62 plus interest at the rate of 6% per annum from the 21st day of March, 1958, until said judgment is fully satisfied.

The assignments of error are:

1. That the trial court erred in overruling motions by the defendant (a) for a directed verdict at the close of all the evidence and (b) for judgment and for a new trial after verdict, and in entering judgment thereon;

2. That the verdict and judgment are manifestly against the weight of the evidence:

3. That' the trial court determined the amount of interest on a verdict that was indefinite, uncertain and defective;

4. That the trial court erred in instructing the jury;

5. That the verdict and judgment are contrary to law.

While, as indicated above, the plaintiffs sought recovery on both the life and total and permanent disability provision of the policy of insurance, it is manifest that they could recover, upon proof of the essential facts, on one or the other but not on both causes of action pleaded in their petition.

A careful reading of the bill of exceptions discloses ample evidence to support a finding that the plaintiffs were entitled to recover on the life insurance feature of the group policy:

1. Evidence that this policy was in full force on February 4, 1954;

(a) The letter of June 27, 1954, from the Company in which it wrote “that the insurance terminated on February 4, 1954.”

(b) The deductions for the premiums were made by the Employer as a mere bookkeeping item.

(c) The Company’s records show that premiums were deducted for the Credit Union, the hospital service, and group insurance on January 31, 1954.

(d) The Employee was carried on the books of the Employer until February 28, 1954.

(e) The Employer made no deductions for insurance premiums of any sort whatever in determining the pay check of the Employee on February 28, 1954, the date of separation.

(f) The Employee himself did not terminate the insurance.

(g) If the premiums were not paid in advance, then the Employer should have deducted premiums for the month of February or certainly until February 4, 1954, the day the Employee last worked for it. A reasonable inference was that deductions for insurance premiums were made in advance by the Employer.

(h) The “Statement of Claim” filled out by the Employer sets forth March 1, 1954, as the termination date for the insurance.

2. Evidence by plaintiffs’ expert witness that the Employee was a very sick man before February 4, 1954, and that such sickness continued until his death.

3. Amendment 10 to the group policy of insurance which reads as follows:

“Discontinuance of Individual Insurance. The insurance of an employe» shall cease automatically on the earliest- of the following dates:
(a) the date of expiration of the period for which the last required premium contribution is made by the employee;
(b) the date of termination of employment of the employee which shall be the date the employee ceases active work, except that
(1) if the employee ceases active work as a result of a leave of absence, temporary lay-off, or retirement, his employment shall be deemed to continue thereafter, for the purpose of insurance hereunder, until terminated by the Employer either by written notice to the Company or by any other means, or
(2) if the employee ceases active work due to sickness or injury, his employment shall be deemed to continue, for the purpose of insurance hereunder, during the continuance of such disability for the period of three months from the date the employee ceased active work, and thereafter during the continuance of such disability, until terminated by the Employer either by written notice to the Company or by any other means:
(c) the date of expiration of this policy.”

If the jury’s findings were that the employee was covered by this insurance when he last worked on February 4, 1954, and that he did not return to work due to sickness and that such disability continued until his death, it then necessarily followed under Amendment 10, paragraph (2), and they would be warranted in concluding that his employment was deemed to continue, for the purpose of insurance, during the continuance of his disability for a period of three months from the date he ceased active work. Since he died on April 28,1954, within that three-month period, the life benefit provision of the policy would then have accrued at the time of his death and his beneficiary entitled to the full coverage of the policy in the amount of 87500.00.

The assignments of error numbers 1 and 2, therefore, are overruled.

Defendant, in the main, however, complains:

1. that the defendant was not furnished with due proof by the Employee, that while insured, the decedent became totally and permanently disabled as defined in the policy “. . . so as to effect a waiver of premiums and so as to create liability on the part of Defendant for total and permanent disability benefits . .

2. that defendant was not furnished with any due proof by anyone that the decedent while insured became totally and permanently disabled as defined in the policy so as to effect the waiver of future premiums and to create liability on the part of the defendant for total and permanent disability benefits;

3. that the trial court erred in arbitrarily determining and awarding the plaintiffs judgment for interest where the verdict of the jury was so indefinite, uncertain and defective that a judgment for interest could not be rendered thereon; and

4. the trial court erred in its general charge to the jury.

We are of the opinion that no useful purpose can be served in considering the complaints of appellant with respect to furnishing the Company with due proof of total and permanent disability.

Where, in a case, the jury returns a general verdict for the plaintiff, the parties having stipulated that the jury return a general verdict either for the plaintiff or defendant, on a petition containing two causes of action growing out of a policy of insurance, and where it appears that recovery can be had on either one or the other but not on both , of the causes of action, and where the record shows that the jury was justified in making a return on a particular one of the causes of action and no error is demonstrable as to such cause of action, the record in no way disclosing which of the causes of action the verdict was founded on, a reviewing court is not required to consider errors claimed as to the other cause of action.

Defendant’s contention that error intervened because the interest was arbitrarily determined on a verdict that was “indefinite, uncertain and defective” is untenable as regards the characterization of the verdict for the reason that such verdict was in keeping with the stipulation that the defendant voluntarily entered into with the plaintiffs and consequently bound by it. We sustain that part of this assignment of error, however, as regards the method the court used in calculating the interest. The trial court properly noted in its entry with respect to interest that no specific date of accrual for payment was ascertainable under a general verdict of the jury on the issues presented. An average as to the dates “they could have found that due proof of loss could have been submitted” to the Company is a compromise entry. Such entry could only be made with the consent of the parties.

Inasmuch as the attorneys for the parties agreed at the outset of the case that the jury return a general verdict and “that the amount to be recovered, if any, would be calculated by the attorneys in accordance with the terms of the policy of life insurance governing the issues in this case,” and inasmuch as the policy of insurance itself fixed the amount of recovery on either one of the two causes of action in the amount of $7500.00, and inasmuch as the parties agreed not to submit the question of interest to the jury, and since the parties were unable to agree as to the interest in accordance with their stipulation, and there exists no way to determine the date of accrual of such payment, interest perforce must commence to run from the date of the judgment entered on the verdict. Accordingly, the judgment is modified to $7500.00 with interest at 6% from the date of said judgment, and as modified, is affirmed, and the cause remanded with instructions to carry out the judgment of this court.

We find no merit in the assignment of error that the trial court erred in its general charge, and overrule the same.

Judgment modified and, as modified, affirmed, and cause remanded. Exceptions. Order see journal.

SKEEL, PJ, HURD, J, concur.


source: Caselaw Access Project

author: Per CURIAM.

license: Public Domain

text:
    KISTLER et, Plaintiffs-Appellees, v. WATSON et, Defendants-Appellants.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3835.
    Decided October 25, 1957.
    Michael J. Kosach, Harold H. Hull, Youngstown, for plaintiff s-appellees.
    Manchester, Bennett, Powers & Ullman, Youngstown, for defendants-appellants.
   OPINION

Per CURIAM.

This case comes before this court on defendants’ appeal on questions of law and fact from a judgment of the court of common pleas entered for plaintiffs in plaintiffs’ action to enjoin defendants from darning North Jackson Ditch or by other artificial means stopping the flow of water therein and across their lands.

The case was submitted to this court upon a transcript of the docket and journal entries filed and the transcript of the testimony taken in the court of common pleas and additional testimony taken before a master commissioner appointed by this court.

The natural water course known as North Jackson Ditch flows across defendants’ land in a general northeasterly direction, then upon and through plaintiffs’ land, across which ditch defendants admittedly constructed a low dam on their land on the site of a hole twenty feet in diameter. This dam is on the west side of Route 45. Plaintiffs’ land lies on the east side of the highway. To that hole water from a spring, to which reference is made later herein, was drained. Plaintiffs claim the dam stopped the natural flow of water across their lands, which lands are adjacent to and contiguous with defendants’ land.

Defendants contend that except for a “small pool of water” 104 feet wide, about 100 feet long and 23 feet wide at the spillway, which spillway is four feet high, such dam does not interfer with nor obstruct the flow of water through such stream on plaintiffs’ lands, although there is evidence that the stream was dry for the first time after construction of such dam. Such pool contains roughly 110500 square feet and has a capacity of 134,554 gallons, from which pool an estimated 1281 gallons evaporated each day during the month of September 1955, and which pool impounded water above such dam to the height of its spillway.

The pond created by defendants’ dam is fed from surface water flowing along Ohio State Route 45 and the small spring, to which reference has been made, situated near the center of the road under Route 45. The spring has been flowing in excess of fifty years. The spring and surface water empty into a catch basin or manhole in the storm sewer situated on the west side of that highway and then drain into the pond above the spillway by pipes erected by defendants.

The commissioner found, in which finding we concur, “that the natural flow of the surface water and of that from the spring was over defendants-appellants’ property and thence was carried through the Jackson Ditch onto plaintiffs-appellees’ property”; that the “fee to the center of the highway is in each of the abutting owners; and that:—

“* * * said ditch is a natural water course and that both plaintiffsappellees and defendants-appellants are entitled to the reasonable use of the water flowing therein whether it emanates from the spring, from the surface of the road, or both.”

A water course is defined in the East Bay Sporting Club v. Miller, et al, 118 Oh St 360, as:—

“3. A water course is a stream usually flowing in a particular direction in a definite channel having a bed, banks or sides and discharging into some other stream or body of water. It need not flow continuously, and may some times be dry or the volume of such water course may some times, be augmented by freshets or water backed into it from a lake or bay or other extraordinary causes; but so long as it resumes its flow in a definite course in a recognized channel and between recognized banks, such stream constitutes a watercourse.”

See also Conobre, et al, v. Fritsch, et al, 92 Oh Ap 520, where it is said:—

“The owner of land, upon which is located a spring, from which spring there flows a stream of water, has only the rights of a riparian owner in the spring and stream, where such stream, if allowed to follow its natural course without obstruction, would flow in a definite channel onto and across the land of an adjoining owner. The spring in such case is a part of the stream, and, as such, they both constitute a natural watercourse.”

For the general law on the subject see 41 O. Jur., Section 15, pages 19 and 20; Section 17, pages 22 and 23; and Section 19, pages 23 and 24.

The question presented in this case is as framed by the commissioner “whether under the circumstances of this case the erection and maintenance of the dam across Jackson Ditch by Defendants-Appellants constitutes an unreasonable use of such water as far as it affects the rights and necessity of the plaintiffs-appellees.”

Defendants had a legal right to impound the water to create the pond provided they permitted water to reach the land of the plaintiffs, the lower riparian owner, in a substantially normal flow. Ratcliffe v. Indian Hill Acres, Inc., 93 Oh Ap 231 at 240.

It is clear to this court from the evidence briefly summarized herein that the erection and maintenance by defendants of such dam has materially affected the continuity of the flow and diminished the amount of water which unimpeded would otherwise flow on plaintiffs’ land.

In Akron Canal & Hydraulic Co. v. Fontaine, et al, 72 Oh Ap 93, it is said in the second paragraph of the syllabus:—

“Water impounded behind a dam is not personal property and is not the subject of ownership. It is identified with the land as a corporeal hereditament, and the right in it is usufructuary only, to the owner of the underlying realty, in the absence of a specific conveyance of the uses.”

Quoting from 67 Corpus Juris, Section 365, the court said at page 100 of the opinion written in Akron Canal & Hydraulic Co. v. Fontaine, supra, that:—

“ * * Thus,' while the owner of such dam and its pond, in the absence of rights vested in others by grant, prescription, or otherwise is entitled to the exclusive use of the water stored or the power thereby created,- this use of the water must be reasonable and must not unreasonably diminish the natural flow, because the rights of the dam and pond owner are subject to the reasonable use of the stream by other dam owners and riparian proprietors.’ ”

There is evidence that defendants have ample water for their cattle from a deep well, and that the number of cattle using that water varies from 50 to 116 head, and that defendants use the water in the pond only “for watering a few cattle and for fire protection.” There is evidence that the fully equipped Jackson Township fire station is situated about one thousand feet south of the farm of defendant Watson, thus ordinarily obviating the necessity of relying upon the water in the pond for fire protection, which evidence cannot justify defendants impounding the water flowing through North Jackson Ditch for fire protection purposes to the injury of plaintiffs, a lower land proprietor.

Also there is evidence that for nearly half a century plaintiffs have depended upon and used the water from North Jackson Ditch for a water supply for live stock, which water they pumped to the buildings where such live stock were housed. Such livestock numbered twenty-five head of cattle, two horses and thirty hogs on the day of trial in the trial court.

We believe, as the Commissioner found, that:—

“* * * The testimony introduced by defendants-appellants’ witnesses, Earl Ressler, Elwood Ressler, and Clarence L. Wetzel, as to the advantages of such farm ponds for use for recreation is not persuasive here because the record is clear that defendants-appellants do not use this pond for that purpose.”

We find, as the Commissioner found, that:—

“* * *The building of the dam in question has increased the rate of evaporation of the water. As was pointed out by the New York Court of Appeals in the case of Pierson v. Speyer, 178 N. Y. 270, 70 N. E. 799, the increased evaporation would not technically entitle defendants-appellants (referring to the parties in that case) to equitable relief against the maintenance of the dam, in the absence of a further finding that defendants-appellants (referring to the parties in that case) use of the stream under the circumstances was unreasonable. In that case the court reiterated the general principle that ‘the right of no one is absolute, but is qualified by the right of others to have the stream substantially preserved in its natural size, flow and purity.’
“Under the circumstances of this case at hand, the Commissioner finds that the rate of evaporation shown in the record is an important element to be considered.
“As a finding of fact, the Master Commissioner finds that the plaintiffs-appellees have proved the allegations as alleged in the petition and that they are entitled to the relief prayed for.
“The Commissioner finds that the erection and maintenance of the dam across Jackson Ditch by defendants-appellants constitutes an unreasonable use of such water and has deprived plaintiffs-appellees of the natural flow of the stream.”

This cause is in a court of chancery and it appearing that substantial justice would be accomplished between the parties if the water from the spring in State Route 45 were allowed to flow in its natural course without diversion to the defendants’ pond it is therefore decreed that the defendants restore within sixty days the flow of water from the spring as it did flow in its natural course without the artificial piping or diversion. The costs of this action, being, however, assessed against the defendants-appellants since it appears that their action in diverting the flow of the water from the spring in question was illegal and unauthorized.

Decree accordingly.

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


author: By CRAMER, J.

text:
    HOLMAN, Plaintiff, v. ANDREWS, Exr., Defendant.
    Common Pleas Court, Butler County.
    No. 74414.
    Decided May 6, 1957.
    J. B. Connaughton of Connaughton & Schwab, Geo. C. McCandless, for plaintiff.
    Richard Berridge of Andrews & Berridge, Paul A. Baden, for defendant Executor and Richard Wilmer.
   OPINION

By CRAMER, J.

This cause, being one for specific performance of a contract for a sale to plaintiff by defendant’s decedent of her shares of stock in the Inside Realty Company, Inc., is before the court upon the pleadings, evidence, and memoranda of counsel.

Little, if any, controversy exists between the parties concerning these facts:

Lillian Jacoby, defendant’s decedent, and hereinafter referred to as decedent, on June 12, 1952 executed and delivered to plaintiff the following paper writing:

“Middletown, Ohio June 12th, 1952
To whom it may concern:
This is to certify that I have made arrangements with Mr. J. W. Holman to act as my business manager in my affairs, both personal & real estate, and to make any investigation which I may deem necessary, in connection with my holdings.
I hereby give J. W. Holman Power of Attorney to act in my behalf.
Signed Lillian Jacoby
Witness Jack DeRosett
Witness Cecil V. Short
Date June 12, 1952”

On September 2, 1952 the deceased and plaintiff executed a paper writing marked “Sales Contract,” in words and figures as follows:

“Sales Contract Between
Mrs. Lillian Jacoby, hereafter known as the First Party and J. W. Holman hereafter known as second party.
Middletown. Ohio
Sept. 2nd, 1952
First party hereby agrees to sell and transfer all of her interests and stock in the Inside Realty Company, Inc. of Hamilton, Ohio, Butler County, to J. W. Holman second party. The stock consists of 75 (seventy-five! shares of stock which was purchased from the Walter Harlan Estate. The assets of the Co. being lots or part of lots Nos. 110, 140, and 169 in the City of Hamilton, Ohio. Second party agrees to pay' One Dollar and other valuable considerations. Second party is to give First party a Promissary [sic] note which is a part of this contract. Second party further agrees to do everything possible to protect the Second Mortgage which First party holds on above real estate.
First Party declares that she owns one half interest in the above Company, is president of the Company, and signs all checks given out by the Company.
Signed by First Party
Lillian Jacoby
Signed by Second Party
J. W. Holman
Witness--------------------
Witness_____________________
Date: Sept. 2, 1952”

On September 19, 1952 said decedent, through her then counsel, caused a letter to be sent to plaintiff, copy of which reads as follows:

“September 19, 1952
Mr. Joseph W. Holman
6 Alameda Circle
Middletown, Ohio
Dear Mr. Holman:^
You will recall at our last meeting the week of September 1st, I told you that the so-called contract you were proposing to me would not be made and that I did not wish to sell my stock in the Inside Realty Company, Inc.
At that time I attempted to return a note to you and take up your copy of the contract, all of the copies of which contract you had in your possession for several days.
Several days ago you arranged a power of attorney from me to you so that you could investigate all of the financial matters of the Inside Realty Company, Inc. and you were serving as my attorney-in-fact in a capacity of trust, which I feel you have violated and I am herewith tendering back to you your note and requesting your copy of the so-called contract, which was obtained through fraud and misrepresentations to me after your investigation of the financial affairs and details of the Inside Realty Company.
You will also hereby take notice that I hereby revoke my Power of Attorney to you and you are without authorization to do anything further for me.
Yours very truly,
(Signed) Lillian Jacoby”

Lillian Jacoby died July 30, 1955 and by her Will, which was executed December 17, 1954 and probated August 17, 1955, specifically bequeathed all of her shares of capital stock of. the Inside Realty Inc. to Richard A. Wilmer.

On November 25, 1955 plaintiff demanded of the defendant as the Executor of Lillian Jacoby’s estate that he carry out the terms of this agreement between him and Lillian Jacoby respecting the sale to him of her shares of stock in such corporation and tendered the sum of $5,969.04, being the principal sum of $5,000.00 with interest thereon from September 2, 1952 to November 25, 1955.

The executor rejected the claim and refused to transfer the stock on March 6, 1956. Suit was then instituted against the executor on March 30, 1956, and thereafter (at the time of trial), on application of Richard A. Wilmer, he was made a party defendant in this cause.

The defendant executor, in his answer, sets up a number of defenses and they can be summarized as follows:

1. ) The contract is too uncertain, incomplete and indefinite to be specifically enforced and that no consideration was given by plaintiff.

2. ) That a fiduciary or trust relationship existed between plaintiff and decedent at the time the contract was executed, plaintiff being then her agent holding a power of attorney from her. That plaintiff violated the duty he owed to his principal of good faith and loyalty and breached the trust and confidence placed in him by decedent, and violated such fiduciary relationship in that he made use of the same to secure information relative to the. real value of decedent’s stock and thereupon induced her to agree to sell the same at a price greatly below its true and actual value and for a grossly inadequate price.

3. ) That Lillian Jacoby revoked said agreement and canceled the same and plaintiff, by his conduct, acquiesced in such revocation and is estopped to deny such cancelation.

4. ) That plaintiff is guilty of laches and is thereby precluded from being granted the equitable relief he seeks.

5. ) Plaintiff has an adequate remedy at law by way of an action for damages.

The defendant Wilmer, in his memoranda, relies mainly upon the defenses of revocation and abandonment of the purported contract and laches, in order to defeat plaintiff’s action.

We take up first the defense asserted; namely, that the contract is too uncertain and indefinite to be specifically enforced.

We find no fault, but rather, are in accord with the authorities cited by the executor in support of this claim. It is our view, however, that the instrument sought to be enforced is not indefinite or uncertain, unclear, or incomplete.

We can determine therefrom “what must be done to constitute performance.” (49 Am. Jur., Sec. 22.) We have little difficulty in determining from the evidence that the price the parties agreed upon for the sale of the stock was $5,000.00 and payment was to be made by delivery of a promissory note in that amount.

It is true, the agreement itself does not recite that the note was to be in the sum of $5,000.00 but reference to a note is made therein and the amount thereof is supplied by the evidence. The letter of Lillian Jacoby to plaintiff, in which she returned his note (which has been properly identified) constitutes an admission by her that such note was the one referred to in the agreement.

The fact that the note does not call for a specific payment date, nor that the name of the payee is not inserted therein, is, in our opinion, of no consequence in connection with this defense. This claim, considering the instrument itself in the light of other evidence, is, in our opinion, untenable.

Did plaintiff violate the trust and confidence Lillian Jacoby placed in him as her attorney in fact by entering into the agreement with her to purchase all her stock in the corporation, into the financial affairs of which, his trust duties called for him to delve?

We say “merely entering into the agreement” for the reason that there is no direct evidence that the plaintifi used his relationship with the decedent to induce her to enter into an agreement she woqld not otherwise have entered into.

It is probably reasonably inferable from the evidence that plaintiff decided to buy the stock as a result of what he discovered to be its value, by reason of his power of attorney, though the evidence respecting what investigation he made or learned therefrom is indeed meagre.

Here, plaintiff’s conduct, in purchasing his principal’s stock, is not subject to the condemnation ordinarily accorded that of a fiduciary who seeks to deal with matters confidentially entrusted to him. This for the reason that plaintiff’s principal, the decedent, knew, of course, that plaintiff was the purchaser of her stock since she, in writing, agreed to sell it to him. In other words, plaintiff disclosed to her that he was the purchaser. Does this, therefore, alter the situation and relieve plaintiff’s acts from the close scrutiny which would otherwise be given them?

In Vol. 2, Am. Jur., Sec. 260, pages 209-10, we find the following.

“Due to the confidential relation between the principal and his agent, a court of equity will scrutinize carefully a purchase by the agent directly from his principal and grant relief unless full disclosure has been made by the agent of all facts of which he had knowledge respecting the value of the property. If the agent makes a full disclosure of all the material facts and the sale is free from fraud, the transaction will be sustained. In such case, however, the burden is upon the agent to show that the principal had knowledge, not only of the fact that the agent was buying or interested, but also, of every material fact known to the agent which might affect the principal and that, having such knowledge, he freely consented to the transaction.”

When we consider the evidence respecting the value of decedent’s stock, which shows it to be, even then, worth many times $5,000.00, we cannot help but feel that plaintiff did not disclose every material fact known to him which might affect his principal.

Decedent’s letter of September 19, 1952 to plaintiff, in which she seeks to avoid the contract she made with him, supports the claim that a full disclosure was not made to her. As a matter of fact, that letter suggests that actual misrepresentations were made in connection with what plaintiff learned by reason of his being decedent’s attorney in fact.

We are therefore of the opinion that the plaintiff has failed to discharge the burden of proof which the law casts upon him of showing that the decedent had knowledge “of every material fact known to the agent which might affect the principal, and that, having full knowledge, she freely consented to the transaction.”

This failure on the part of the plaintiff to, sustain such burden of proof is sufficient, in our opinion, to deny him the equitable relief he seeks. However, there is a further, additional, and perhaps even more compelling reason why specific performance should not be decreed, namely, laches on the part of plaintiff.

On September 19, 1952 the decedent wrote plaintiff and she returned to him his note and disclosed an intention to abandon, or at least consider herself not bound by the paper writing she entered into with plaintiff. Lillian Jacoby died within but a few months of three years following the receipt of said letter by plaintiff. It was not until November of" 1955, more than three years after the receipt of such letter by plaintiff, that he took any action whatsoever upon or under said agreement.

We do not find that by such inaction plaintiff accepted decedent’s offer to abandon or relieve the parties from the obligation of such agreement. Perhaps even if such acquiesence on the part of plaintiff could be construed as an acceptance of such offer, still there would be the problem of no consideration for the agreement to abandon such contract Such claims, however, do not preclude the application of the doctrine of laches.

We must not lose sight of the fact that this is purely an equitable action and not one in law wherein plaintiff seeks to recover damages for breach of contract. The defense of laches is peculiarly adapted to an equitable action and where found to exist ordinarily precludes affirmative action by an equity court.

We are particularly impressed with the argument made here that chancery will not grant specific performance where there has been a great change of circumstances or in the situation of the parties. See Vol. 37, O. Jur., page 80.

Here, by reason of plaintiff’s failure to act, to secure the stock he claims he purchased during the lifetime of the decedent, Lillian Jacoby was lulled into a feeling that there was no impediment to her specifically bequeathing this stock, and she did by her last will and testament. To that extent plaintiff’s inaction was productive of a serious change in circumstances.

Furthermore, by waiting until after decedent’s death, plaintiff was instrumental in making unavailable decedent’s testimony and any other evidence she perhaps could have furnished. The fact that plaintiff’s mouth was closed at the time of the trial by reason of decedent’s death, is no answer to the situation he thus produced. Certainly here was a serious change of circumstances wrought entirely by plaintiff’s conduct.

In Pomeroy Equity Jurisprudence, 5th Edition, 2nd Vol., Page 179, the following is stated:

“Laches in legal significance is not mere delay but delay that works disadvantage to another. So long as the parties are in the same condition it matters little whether one presses a right promptly or slowly within the limits allowed by law. But when knowing his rights he takes no steps to enforce them until the condition of the other party has in good faith become so changed that he cannot be restored to his former state, if the right be then enforced, delay becomes unequitable.”

In the case of In Re Daub, 157 Atlantic, 908, cited by the defendant executor, it was stated:

“We have frequently said that where there was no fixed period during which action must be taken, that a long delay, during which important evidence was lost by death, will result in the refusal of equitable relief.”'

It is further asserted by the defendants that there was such a material change in the value of this stock, that is, that it increased in value between the date of the contract and the death of the decedent, that the same constituted such a change in circumstances which should preclude the granting of specific performance.

In Vol. 37 O. Jur., Sec. 59, at page 80, we find the assertion that

“It has been held that a material change in the value of property may be a change in circumstances sufficient to. lead a court of equity to deny specific performance Qf a contract.”’

While the evidence does show that this stock was considerably more valuable than its purchase price of $5,000.00, it is our opinion that the evidence does not disclose that there was such a rise in value from the date of the agreement to sell and the death of the decedent as to constitute a sufficient change in circumstances to deny specific performance As a matter of fact, such a claim seems inconsistent with that of the defendants to the effect that plaintiff in his fiduciary capacity discovered how much more valuable the stock was than the sum of $5,-000.00, the then sale price thereof.

We conclude, by. reason of all of the foregoing, that here equity should not come to the relief of the plaintiff, and that the facts here are such as to require the denial to him of the equitable relief by way of specific performance, which he seeks here.

Accordingly, we find upon the isues made in this cause in favor of the defendants and against the plaintiff.

If plaintiff has any enforceable rights under the instrument here in question, he must pursue the same elsewhere than in a court of equity.


author: Per CURIAM:

text:
    STATE, ex rel. HARRIS, Relator, v. SILBERT, as Chief Justice of the Court of Common Pleas of Cuyahoga County, Respondent.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24605.
    Decided November 26, 1958.

      George B. Harris, for relator.
    John T. Corrigan, Pros. Atty., A. M. Braun, John L. Dowling, for respondent.
    Marc J. Grossman, for Cleveland Bar Association as Amicus Curiae.
    Harley J. McNeal, for Cuyahoga Bar Association as Amicus Curiae.
   OPINION

Per CURIAM:

The relator has filed his petition in this court seeking a writ of mandamus in which he alleges:

1) That he is a resident and a taxpayer and also a member of the Bar of Cuyahoga County.

2) That Judge Samuel H. Silbert, the respondent, is a duly elected judge of the Court of Common Pleas of Cuyahoga County whose term of office expires January 1, 1963.

3) That in December, 1954, under the authority of §2301.04 R. C., his associate judges (he at that time being a judge of said court, the court then being composed of fifteen judges) designated the said Judge Samuel H. Silbert to be the Chief Justice of the Court of Common Pleas of Cuyahoga County until the end of his then term of office ending January 1, 1957.

4) That in January, 1957, the associate judges of Judge Samuel H. Silbert (then nineteen in number) again designated him to be Chief Justice of said Court of Common pleas of Cuyahoga County and that he is now serving in that capacity.

5) Since October 1, 1953, said §2301.04 R. C., has read, in part, as follows:

“In each county having more than two judges of the court of common pleas, said judges may designate one of their number chief justice, who shall continue as such chief justice until the end of his term, whereupon a successor may be chosen.
“The chief justice of the court of common pleas shall have the general superintendence of the business of the court, and shall classify and distribute it among the judges.' In January of each year, he shall file' a complete annual report with the clerk of the court of common pleas covering the preceding calendar year, which report shall show the work performed by the court and by each of the judges thereof, the number of days and hours of attendance in court, of each judge, and such other data as the chief justice of the supreme court requires. A copy of said report shall be transmitted by the clerk to the chief justice of the supreme court and another copy shall be filed by such clerk with the secretary of state. Copies of such annual reports shall be printed for free distribution.
“Each judge of a court of common pleas having a chief justice shall, at least once a month, make a report in writing, to the chief justice of said court, of the duties performéd by such judge, in such manner and form as said chief justice rejuires.”

6) That during his term or terms to the date of the filing of this petition, the respondent has not performed the following duties specifically and mandatorily imposed upon him by law:

a) Neglected to prepare forms to be used by each of the judges of the court to report to the chief justice the number of days and horns in attendance in court and work performed by him, or otherwise gather said data.

b) That because of the aforesaid refusal, respondent has failed to make and file with the clerk for the years 1955, 1956, 1957 (the years he has served as chief justice of the Court of Common Pleas of Cuyahoga County) an annual report covering each calendar year showing the work performed by the court and each of the judges thereof, the number of days and hours of attendance of each judge of the court and he is not now gathering such data and refuses to do so for the year 1958 as is required by law although requested "to do so, and is so enjoined by law.

“Wherefore plaintiff-relator prays that a peremptory writ of mandamus be issued directing respondent, Samuel H. Silbert, as Chief Justice of the Court of Common Pleas for Cuyahoga County, Ohio, to prepare and deliver to each of the judges of said court an adequate number of forms for each of them to report to him, monthly, the aforesaid data showing the work done by each of said judges, together with the days and hours of attendance in court by each of them during the calendar year 1958 and thereafter, so long as he shall remain Chief Justice, or in such other manner as he or this court may determine, gather and annually report and publish said information, as the law requires, or that an alternative writ be issued requiring respondent to show cause why such a final and peremptory writ should not be issued, and, upon his failure to show cause, that a final writ of mandamus be issued so ordering and directing.”

The demurrer of the respondent challenges the sufficiency of the facts pleaded to state a cause of action and also challenges the relator’s legal capacity to maintain the action attempted to be stated.

Sec. 2731.01 R. C., provides:

“Mandamus is a writ, issued in the name of the state to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.”

Sec. 2731.02 R. C., provides:

“The writ of mandamus may be allowed by the supreme court, the court of appeals, or the court of common pleas and shall be issued by the clerk of the court in which the application is made. Such writ may issue on the information of the party beneficially interested.
“Such' writ shall contain a copy of the petition, verification, and order of allowance.”

The petition of the relator, as above set out, does not contain an allegation that he has been injured in a manner different from that affecting the public generally or in any manner whatsoever or that any legal private right of his has been affected in any manner by the inaction of the respondent as alleged in the petition.

The Supreme Court .of Ohio in the case of State, ex rel. General Contractors Association of Akron and Vicinity v. Wait, Director, etc., 168 Oh St 5, 150 N. E. 2d 851, quoting the second paragraph of the syllabus in the case of State, ex rel. Skilton v. Miller, Judge, 164 Oh St 163, 128 N. E. 2d 47, stated the law clearly applicable to the facts here pleaded as follows:

“If no legal right of a person can be affected by the failure of a public official to act in any given matter, such person does not have a beneficial interest such as will permit him to maintain an action in mandamus tó require such official to act.”

The Miller case (affirming the decision of this court reported in 99 Oh Ap 481, 122 N. E. 2d 662, decided November 24, 1954) involved the refusal of the police judge (also the clerk of the police court) of Cleveland Heights (there being two cases presented in the same appeal) to issue warrants for the arrest of persons against whom complaints on affidavits had been filed charging a violation of the Sunday closing law. The third paragraph of the Miller case provides:

“The Sunday closing law is a general law bf the state of Ohio and was enacted for the benefit of the citizens of the state as a whole.”

See also paragraph two of the syllabus of the case of State, ex rel. Stanley v. Cook, 146 Oh St 348, 66 N. E. 2d 207.

Upon the foregoing authorities, we find that the relator has not plead that a personal right of his has been invaded by the claimed inaction of the chief justice under the provisions of §2301.04 R. C., and for that reason is without a lawful right to maintain this action.

It also appears that, by the terms of the statute, there is no specific duty directing the chief justice to prepare' forms or to spell out what information shall be sought in the form to be provided by the chief justice for the use of his associates. The statute, as quoted above, provides, in part, that the chief justice ‘shall report annually “* * * which report shall show the work performed by the court and by each of the judges thereof, the number of days and hours of attendance in court, of each judge, and such other data as the chief justice of the supreme court requires. * * *” The foregoing contains all of the provisions of the statute upon which relator relies. Not a syllable is found in the text that prescribes the precise method in which the judges are to report and the information to be reported, except for the days and hours of work. Both the form of the report and its contents are discretionary with the chief justice except as to requests that may be received from the chief justice of the supreme court.

In order to permit the issuance of a writ in mandamus, a clearly defined legal duty must be enjoined by law. From the foregoing text of the statute no absolute duty is spelled out as to the requests contained in the relator’s prayer.

For the foregoing reasons the demurrer is sustained and it being clear from the facts pleaded that no personal right of the relator is or can be pleaded, the writ is denied and final judgment is entered for the respondent.

Exceptions noted.

SKEEL, PJ, HURD and KOVACHY, JJ, concur.


author: By BACON, J.

text:
    CLELAND et, Plaintiffs, v. CLELAND et, Defendants.
    Common Pleas Court, Meigs County.
    No. 12436.
    Decided September 18, 1958.
   OPINION

By BACON, J.

Action commenced in June 1956 to cancel land contract and for possession of real estate. April 27, 1955, plaintiffs, Thomas A. Cleland and Mabel C. Cleland, entered into a land contract with their son, Dallas Cleland, and his wife, Geraldine Cleland, as vendors and purchasers respectively of a house and lot in Sutton Township. Described in the contract was a portion of a 2.20 acre parcel; it provided that a survey would be made and used in the deed upon defendants fulfilling their contract; it stated a purchase price of $2,500 plus interest at 5% payable in monthly installments of $25. each commencing May 1, 1955; interest was to be computed and paid monthly and it was stipulated that if any installment or interest or any part thereof was- not paid when due then the entire principal sum could be declared due and payable if the vendors so elected without demand or notice. Purchasers were to pay taxes beginning with the second half of 1954 and also insurance premiums on the policies carried by the vendors on the dwelling on the premises; they were to make all necessary repairs and keep the property in good condition and not permit waste. There were other provisions not pertinent to this suit, and finally it was provided that if the purchasers failed to pay the purchase price as therein provided or if they failed to keep, perform and comply with all the covenants and agreements on their part to be performed then the contract was void and vendors could reenter as though it was never made and all payments together with all work and repairs made by the purchasers on the premises were to be considered rental for the period of the occupancy by the purchasers. The contract failed to make time of the essence being silent thereon.

Plaintiffs’ petition averred the contract, its terms in general, and that defendants were in default in their payments. Defendants filed a motion tc make the petition definite and certain which was not pressed for rule until March 1958, when it was overruled. Defendants answered, not greatly controverting the averments of the petition save as to the matter of payments, claiming additional payments not averred in the petition, alleging the contract did not make time of the essence, that there was $2,412.09 due under the contract and tendered said sum by depositing it with the clerk of courts. Defendants prayed that the petition be dismissed and that the court order the survey provided for in the contract and that plaintiffs execute a deed for the premises.

The evidence discloses both plaintiffs and defendants, were so utterly careless in receipting for payments made and crediting to principal, interest, taxes and insurance that the true situation is difficult to determine.

Further complicating matters, plaintiffs claim that $200 of a $300 sum it was agreed defendants should pay before the contract \y^s executed and delivered, was not to apply upon the purchase price but was to apply upon back rental it was claimed defendants owed plaintiffs for occupancy of'the premises over a period of years prior to the contract. Plaintiffs’ Exhibit 2 purports to show a book account of this rental, that there was due and owing by defendants in April 1955 the sum of $250.00. The entries, however, obviously were not made in the regular course of business but all at one time, apparently in April 1955, and the exhibit has no evidential value.

Defendants dispute any agreement to so apply $200 of the $300 sum mentioned, and produced defendants’ Exhibit 1, a receipt as follows:

April 14, 1955
Received from Dallas and Geraldine Cleland the sum of $100.00 as Part Payment on House and Part of a 2.20 A Lot. Land and contract to be delivered by May 1st upon Payment of a Bal of $200.
Thomas A. Cleland
Mabel V. Cleland

Defendants’ Exhibit 1 is in the handwriting of one of the plaintiffs, Thomas A. Cleland, and is signed by both of the plaintiffs.

Thus it is seen plaintiffs and defendants entered into a preliminary agreement or contract concerning the payment of $300 before the land contract was to be entered into and delivered. What was this contract? One of the plaintiffs, Thomas A. Cleland, undertook to incorporate it as a memorandum in the receipt for “the Sum of $100.00 as Part Payment on House and Part of a 2.20 A Lot.” If the language he employed had been ambiguous this court would have had to construe it against him. Hinman v. Barnes, 146 Oh St 497, 32 O. O. 564, 66 N. E. 2d 911; Bellish v. C. I. T. Corp., 142 Oh St 36, 26 O. O. 234, 50 N. E. 2nd 147; Besser v. Buckeye Pipe Line Co., 57 Oh Ap 341, 10 O. O. 546, 26 Abs 159, 13 N. E. 2d 927. It is presumed that one using.words uses those most favorable to his interest. Mottinger v. Charles H. Adams Co., 21 Abs 417. But Thomas A. Cleland’s memorandum is not ambiguous. Obviously, “Bal of $200.” is used only in one sense, that of “remainder” or the “rest.” Since there is no sum stated of which the balance of $200 could be a part or the “rest,” we must find elsewhere in the memorandum, if possible. what exactly the sum of $200 represents a balance. Clearly, we are relegated to the words “as Part Payment on House and Part of a 2.20 A. Lot.”

Plaintiffs may not have intended the entire sum of $300 apply upon the purchase price, but the words are theirs and they are precluded by the parol evidence rule to vary them. Though a mere receipt may be varied or contradicted by parol, an instrument importing a contract, though in the form of a receipt, cannot be so varied or contradicted. Stone v. Vance, 6 Ohio 246; Baker v. All States Life Ins. Co., 58 Abs 366, 46 O. O. 308, 96 N. E. 2d 787. A writing that is both a receipt and a memorandum of agreement is conclusive as to the agreement. Dale v. Evans, 14 Ind. 288. Under the “parol evidence rule” where an agreement has been reduced to writing which is complete and not uncertain or ambiguous, the writing will be presumed to contain the entire agreement, Ayres v. Cook, 46 N. E. 2d 629, affirmed 140 Oh St 281, 23 O. O, 491, 37 Abs 224, 43 N. E. 2d 287. There is no question that the $300 was paid before the contract was delivered, in $100 payments, one made April 14, 1955, one April 25, 1955 and the last May 1, 1955. The defendant, Dallas Cleland, in testifying had the naive idea that having lost his receipt of April 25th he shouldn’t claim that payment. However, Thomas A. Cleland testified that between April 14 and May 1st Dallas had paid $200, which plaintiff considered applied on back rent so that he only credited the May 1, 1955 payment of $100 to the contract.

Under the evidence the court is compelled to find that as of May 1, 1955, the sum of $2,200.00 was due from defendants to plaintiffs under the contract, plus tax and insurance agreement. The court further finds from the evidence that defendants made the following payments in cash, all credited in the handwriting of Thomas A. Cleland save the last.

June 28, 1955 _____________________________$60.00

Aug. 3, 1955 _____________________________ 30.00

Dec. 10, 1955 ____________________________ 50.00

Apr. 30, 1956 ____________________________ 50.00

May 11, 1956 _____________________________ 50.00

June 10, 1956 ____________________________ 25.00

Defendants were in default under the contract. Shall the court grant the forfeiture plaintiffs pray for, declaring forfeit the cash paid by defendants totalling $565? Defendants made the payments in about a 13 months’ period; the rental basis for the property being $130 at the same rental defendants were paying or obligated to pay plaintiffs immediately prior to the contract. Defendants also claimed to have painted and made minor repairs with a reasonable value in the neighborhood of $300.

Time is not of the essence in the sale of realty unless made so by contract of the parties. O’Brien v. Bradulov, 51 Abs 343, 80 N. E. 2d 685. And where the vendor acquiesces in payment of installments under the contract after the time fixed, and thus lulls purchaser into belief that contract for payment will not be insisted upon, vendor should, if he desires to insist upon strict performance as to future installments give purchaser notice to that effect. Hegg v. Sigle, 14 Abs 456. Plaintiffs herein accepted late payments on the contract, the last within a few days of filing this action. Plaintiffs set a pattern of indulgence towards their son, Dallas, allowing him according to their testimony to become 25 months in arrears in rental of the property at $10 per month prior to entering into the land contract. The evidence indicates plaintiffs could have obtained a better price from a stranger, yet contracted to sell to their son for $2,500. Under the facts and circumstances of this case a forfeiture is not in order.

Based upon the defendants’ payments as hereinbefore set forth the court arrived at a sum a few dollars less than that of the defendants, after proper crediting to principal and interest at 5 per cent. However, defendants cannot complain if the court accepts the figure of $2,246.49 as due in March, 1958. To said sum must be added taxes defendants agreed to assume and pay in the total sum of $24.54 and insurance in the sum $60.00, making a total due from defendants to plaintiffs of $2,331.03.

If will be decreed that plaintiffs execute as grantors to defendants as grantees a warranty deed according to the description in Joint Exhibit B, with such additions as make a legal description in conlornmy m the contract and Ohio real property law, and deliver same together with tax receipts showing taxes paid up to and including the year 1057, and together with insurance policy or policies for coverage m sum of at least $2,500, to the Clerk of this Court. Upon receipt of which the Clerk shall disburse to plaintiffs the sum of $2,331.03, less v2 of the costs herein. The balance of defendants’ tender the Clerk shall disourse to defendants, less % of the costs herein.

The carelessness of the parties on both sides in contracting for down payment, receipting and crediting, obtaining receipts for payments made, having resulted in this controversy costs of these proceedings should be borne equally. An entry may be prepared.


author: By MILLER, J.

text:
    DILLOW, Plaintiff-Appellant, v. PHALEN et, Defendants-Appellees.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5693.
    Decided November 6, 1957.
    Riley & Riley, Ironton, for plaintiff-appellant.
    David dayman, Columbus, for defendants-appellees.
   OPINION

By MILLER, J.

This is a law appeal from a judgment of the Common Pleas Court treating the defendants-appellees’ motion for a judgment on the pleadings as a demurrer and sustaining the same. Leave was granted to the plaintiff-appellant to file an amended petition, which she did not elect to do, so a final judgment was rendered for the defendants-appellees for costs.

The parties will be referred to hereafter as they appeared in the trial court.

The record reveals that the action was instituted by the filing of the following petition:

“The defendant, United Steel Workers of America, is an unincorporated Association commonly known as a labor organization and which is composed of district and local unions including local union number 3664 of which the plaintiff’s deceased husband was a member therein.
“The defendant, John Phalen, is an individual, holding title as International representative of the United Steel Workers of America, which organization is affiliated with the Congress of Industrial Organizations. Said defendant, John Phalen, as occupying said position- with the unincorporated association, was duly authorized and engaged in representing and acting for members.
’ “Plaintiff says further that on ,the 27th day of March, 1952, her husband, Charles W. Dillow, Jr., died as a result of a severe blow to his chest which was received while working for The Dayton Malleable Iron Company. Ironton, Ohio, plant. Plaintiff says that the defendant, United Steel Workers of America, by and through its agent and representative, the defendant, John Phalen, recommended to the plaintiff that she should not employ an attorney to bring a claim against the Industrial Commission of Ohio and against The Dayton Malleable Iron Company, as participant employer with the Industrial Commission of Ohio, but represented to the plaintiff that since her husband was a member of a labor union United Steel Workers of America, that the defendants would take care of her case before the Industrial Commission of Ohio and against said Dayton Malleable Iron Company and to perform the above for her without any charge or fee whatsoever.
“Plaintiff says that the defendant, United Steel Workers of America, by and through its agent, John Phalen, presented papers for the plaintiff to sign and that the plaintiff did sign the papers presented to her and she was informed that the defendants would take care of her claim; that said claim would be presented and that the defendant would secure her money for her.
“Plaintiff says that relying on the representations of the defendants, its agent and employees, the defendant delayed the plaintiff in taking action on her claim as widow of said Charles William Dillow Jr., and obtained an out-law of her said claim due to the statutes of limitations.
“Plaintiff says although she signed the papers the defendants never filed the papers for her with the Industrial Commission of Ohio as required by law. Plaintiff says by reason of the above and foregoing she has been damaged in the sum of Ninety Five Hundred ($9500.00) Dollars.
“WHEREFORE plaintiff prays that she may be granted judgment against the defendants in the sum of .Ninety Five Hundred ($9500.00) Dollars and for her costs herein.”

It is our interpretation of the above that it alleges in substance a contract of employment whereby the defendants were authorized to prosecute the plaintiff’s claim before the Industrial Commission of Ohio, the petition alleging that the defendants represented to her (the plaintiff) that “they would take care of her case before the Industrial Commission of Ohio and against said Dayton Malleable Iron Company and to perform the above for her without any charge or fee whatsoever”; that she was advised not to employ an attorney to prosecute her claim and that she relied upon the said representations to her, damage.

The trial court was of the opinion that the petition did not allege sufficient facts to show that the defendants owed a legal duty to the plaintiff on which she had a right to rely and gave leave to amend accordingly. We get this information from a written memorandum signed by the trial judge, the entry being silent as to the ground upon which the motion was sustained.

We shall, therefore, give first consideration to the sufficiency of the petition. In order that there may be a binding contract between the parties to this action there must be a giving up of a substantial right in consideration for the alleged promise of these defendants. See Saunders v. Galbraith, et al, 40 Oh Ap 155; Judy v. Louderman, 48 Oh St 563; Cline v. Willis, 22 Abs 340. We are of the opinion that the plaintiff failed to properly allege that she had a lawful claim against the Industrial Commission of Ohio for the following reasons:

(1) The petition does not allege that her decedent’s employer was amenable to the provisions of the Workmen’s Compensation Act.

(2) It does not allege that her decedent’s fatal injury arose out of and in the course of his employment.

(3) The petition contains no allegation that the injury received by the decedent was accidental in character.

It is so fundamental that each of the above allegations must be pleaded and established by the evidence before compensation to an injured employe may be allowed that authorities appear to be unnecessary. However, we shall cite only a few, to wit: Industrial Commission v. Bankes, 127 Oh St 517; Industrial Commission v. Franken, 126 Oh St 299; Malone v. Industrial Commission, 140 Oh St 292. Since the pleadings do not allege that the plaintiff had a lawful claim against the Commission, it may not be said that she gave up a valuable right in relying on the alleged promise of these defendants. Therefore, there was no valid contract between these parties, and the defendants owed the plaintiff no legal duty to prosecute the alleged claim before the Industrial Commission.

We are of the further opinion that the petition is also defective in that it does not state a good cause of action against the United Steel Workers of America. It alleges that the defendant, John Fhalen, was an authorized agent of the Association, but it contains no allegation that he was acting in the scope of his employment when the alleged promise was made to this plaintiff. Before the doctrine of respondeat superior can arise to attach liability to a principal for the acts of the servant or agent, there must be authority, that is, the agent must act within the scope of the same. For this added reason the petition was properly dismissed against the Steel Workers Association.

We find no error in the record and the judgment is affirmed.

PETREE, PJ, BRYANT, J, concur.


author: By HOLTSBERRY, J.

text:
    SHOEMAKER, Plaintiff, v. GRANVILLE (Village) et, Defendants.
    Common Pleas Court, Licking County.
    No. 44917.
    Decided December 2, 1958.

      Norpell & Norpell, Newark, for plaintiff.
    E. Clark Morrow, Newark, for defendants.
    Hugh Sherer, Asst. Atty. Genl., for Attorney General of Ohio.
   OPINION

By HOLTSBERRY, J.

Plaintiff owns a tract of land in the area commonly known as Mt. Parnassus in Granville, Licking County, Ohio. He will require water and sewer facilities along Sinnett Avenue, for subdivision and devlopment. Sinnett Avenue is in the corporate limits of Granville.

Plaintiff negotiated with the Village Council for the extension of the water and sewer lines and enlargement of certain existing lines. A resolution was passed October 13, 1958, by the council authorizing and directing the Village Board of Trustees of Public Affairs to proceed, and for payment therefor, from existing water and sewer fund surpluses, respectively. On November 3, 1958, said board refused by acclamation to do as directed on the grounds that the proposed use of said fund surpluses was specifically prohibited by an old, 1930, ordinance, and also by §729.52 R. C.

As of October 13, 1958, there was a surplus balance of $16,159.60 in said sewer fund, and of $35,450.88 in said water fund.

Plaintiff has expended substantial sums in preliminary engineering and survey work, and is being damaged by resulting inactivity of heretofore initiated development. The several public officials of Granville who were present at the trial before this Court stated that the contemplated project would be a progressive step for Granville.

Section 4 of Ordinance 7-1 passed April 1, 1930, is couched in the same language as the pertinent portions of §929.52 R. C., formerly §3891-5 GC.

Conversely, and irreconciliably, on October 13, 1958, resolution 7-16 was passed authorizing said Sinnett Avenue sewer development. Section 1 provides: .... “and to pay the cost of said construction, together with the necessary engineering costs out of the sewer fund of said Village.”

This Court is of the opinion, and so holds, that the later legislative act of the Granville Council effects a repeal of the earlier ordinance by implication. In legislative matters the last expression of the legislative will should prevail. If a legislative act is so repugnant to, or so contradictory of, or so irreconciliably in conflict with, a prior act that they cannot be harmonized to effect the purpose of their enactment, the latter should control, without any repealing clause, as a repeal of the first to the extent of the irreconciliable inconsistency. (25 Ruling Case Law, 914; Goff, et al., v. Gates, et al., 87 Oh St 142.)

The fact the later legislation is entitled a “Resolution,” is not important herein. The character of a particular act of a municipal council as an ordinance or as a resolution is to be determined, not by its form or by its denomination as designation as one or the other by the council, but by its substance, and the nature of the subject matter with which it deals. (28 O. Jur., Section 273, pg. 435.)

Study of “Resolution 7-16,” reveals a permanent rule of conduct is prescribed, is not of ephemeral or temporary nature, and is in effect and substance an ordinance, rather than a resolution.

Does §729.52 R. C., constitute an unconstitutional limitation, as claimed, upon the power of the Granville Council to operate and manage its own utility? The pertinent provision of §729.52 R. C., reads as follows;

“. . . Any surplus in such fund may be used for the enlargement or replacement of the system and works, for the payment of the interest on any debt incurred for the construction thereof, and for the creation of a sinking fund for the payment of such debt, but shall not be used for the extension of a sewerage system to serve unsewered areas or for any other purpose.”

Ohio municipalities derive their power to own and operate public utilities directly from the Ohio Constitution. Section 4, Article. XVIII, Ohio Constitution, states in part:

“Any municipality may acquire, construct, own, lease and operate within or without its corporate limits, any public utility the products or service of which is or is to be supplied to the municipality or its inhabitants, and may contract with others for any such product or service . . .”

Substantial limitation by acts of the legislature upon a municipality’s power regarding public utilities since the adoption of the home-rule amendments of the Ohio Constitution has been frowned upon by the Ohio courts. (See Link v. Public Utilities Commission of Ohio, 102 Oh St 336; State, ex rel. City of Toledo v. Weller, 101 Oh St 123; City of Cleveland v. Village of Cuyahoga Heights, 81 Oh Ap 191; Ricketts v. City of Mansfield, 43 Oh Ap 316.)

City of Cincinnati v. Roettinger, 105 Oh St 145, has been interpreted as holding that the legislature may limit the use of surplus money in a water fund. In this case Cincinnati, by ordinance, sought to transfer surplus in the water fund, derived from water rentals, to the general fund and that said surplus should be used for general municipal purposes. Such transfer was held invalid by the Ohio Supreme Court.

True, by a long line of authority beginning with the Roettinger case, supra, it has been established that the application of funds created by water rentals to the payment of general municipal obligations or any purpose of constructing, maintaining and operating facilities for the supply of water results in levying a tax only on water users to meet the expenses of government, contrary to §743.05 R. C., and that the legislature is empowered to prevent a municipality from using a light fund to pay salaries of policemen, to retire bonds for a new fire truck, or to pave streets, or to make up any other deficiency in funds for the general expenses of the municipality.

But for the legislature to restrict the use of sewer funds for expansion of such municipal utility, as planned in Granville, would be a direct and improper limitation upon the power granted by Section 4, Article XVIII, Ohio Constitution. Powers so granted are not subject to legislative limitation or restriction. (Board of Education of City School District of Columbus v. City of Columbus, 118 Oh St 295.)

The rule established in the Roettinger Case, supra, must be restricted to the concept that where a license fee or charge for a special service is excessive, or produces excessive funds, which are applied to other, unrelated uses, then it is deemed a tax, and thus subject to legislative control. Limiting the rule to the facts which gives rise to the Roettinger Case, and subsequent cases of Hartwig Realty Co. v. City of Cleveland, 128 Oh St 583; and City of Lakewood v. Reese, 132 Oh St 399, it seems reasonable and logical to conclude that a sewer charge, as previously stated is not a tax, subject to statutory limitation, except where surplus is diverted to an unrelated use. Sec. 729.52 R. C., would not operate as a limit upon the use of sewer surplus fund money by a village for extension of sewer lines to unsewered areas, providing the charge or rate for sewer service is not so excessive as to be deemed a tax. There is no claim that the Granville sewer rates are excessive. They were established 28 years ago, and the surplus fund is in the amount of $16,159.60 — hardly an unseemly accumulation of surplus funds.

We live in a period where the past is fast dissolving, in many respects, and the future has not yet jelled. Modern trends are appearing in judicial matters as well as others. State, ex rel. v. Rhodes, 158 Oh St 129, holds that where fees charged on an off street parking are not unreasonable in amount, or designed to raise revenue other than an amount sufficient to cover costs and expenses or providing necessary parking facilities on and off the streets of the municipality, the charge and collection of such fees will not represent the levy of a tax. This case expresses the modern trend in permitting accumulation of surplus and use for a purpose similar and related to, but not the same as the purpose for which the charge is made, without said charge being viewed as a tax, subject to limitation by virtue of Section 13, Article XVIII, Ohio Constitution.

Another case of interest is that of the Village of Shiloh, 166 Oh St 415, concerning an injunction suit under what a tax payer termed “diversion,” in the use of electricity within the Village. The case further indicates the modern trend of judicial thinking upon the subject.

This Court reaches the conclusion that neither §729.52 R. C., nor Granville Village Ordinance 7-1 contains any limitation upon the authority of said Village to expend funds from the water fund of said Village in the construction of a water line along Sinnett Avenue, and that there is no bar to said Village of Granville in its authority to expend funds from the sewer fund for the enlargement and extension of a sewer line along Sinnett Avenue in said Village.