author: By ALLEN, Circuit Judge.

text:
    SEXTON, Appellant, v. BARRY et al, Appellees.
    United States Court of Appeals, Sixth Circuit.
    No. 12569.
    Decided April 18, 1956.

      James F. Sexton, Cleveland, in propria persona.
    Thomas O. Nevison, Allen C. Holmes, Robert W. Poore, Cleveland, for appellee Eleanore M. Barry.
    Oliver R. Marshall, Painesville, for appellees J. Frank Pollock, Probate Judge, Carl V. Weygandt, Chief Judge, Supreme Court of Ohio.
    Before SIMONS, Chief Judge, and ALLEN and MILLER, Circuit Judges.
   OPINION

By ALLEN, Circuit Judge.

The District Court dismissed appellant’s complaint, which alleged a violation of his constitutional rights by the Judge of the Probate Court of Lake County, Ohio, and by other defendants. This appeal was then instituted.

The case arises out of the following facts, which are undisputed:

In August, 1953, appellant, claiming to be a legatee of the estate of Patrick Sexton, deceased, filed in the Probate Court of Lake County, Ohio, a petition praying for discovery of assets of the estate, which appellant alleged had been wrongfully appropriated by appellee Eleanore M. Barry. The will was probated November 5, 1928, and the final account was approved in 1930. The Probate Court after an extended hearing determined that, after the administration of the estate of Patrick Sexton had been completed, the residue thereof, in accordance with the will, was distributed to two life tenants and that such property then ceased to be the property of the estate. The court therefore dismissed the action for want of jurisdiction. The judgment was reversed by the Court of Appeals for the Seventh District of Ohio and appellant thereupon made application to the Probate Court for appointment of a trustee and also for appointment of an administrator de bonis non. The Probate Court dismissed the application for appointment of trustee and continued the application for appointment of administrator. Appellee Barry meanwhile filed in the Supreme Court of Ohio a motion to certify the record, which was granted. That court unanimously held that the Probate Court had no jurisdiction in the proceedings and reversed the judgment of the Court of Appeals. In re Estate of Sexton (Sexton v. Barry), 163 Oh St 124, 56 O. O. 178, 126 N. E. (2d), 129. Appellant then filed in the Supreme Court of the United States a petition for certiorari to review the judgment of the Supreme Court of Ohio, which was denied October 11, 1955, 350 U. S., 838, 76 S. Ct., 75.

Prior to the decision of the Supreme Court of Ohio reversing the judgment of the Ohio Court of Appeals, appellant filed an affidavit of prejudice against the Judge of the Probate Court. In accordance with the usual practice the Chief Justice of the Supreme Court of Ohio suggested that the Judge of the Probate Court voluntarily retire from the case, which was done. Appellant objected to a statement made by the Probate Judge in the entry with reference to his withdrawal from the case and insisted that the Chief Justice of the Supreme Court of Ohio ask for a revision of the journal entry in the Probate Court. The Chief Justice declined to take this action on the ground that this matter was not within his jurisdiction. Later the Chief Justice appointed a disinterested judge from another Ohio county to hear the Probate Court proceedings, but this matter was held in abeyance while the case was pending in the Supreme Court of Ohio on motion to certify the record. Appellant filed the present complaint December 17, 1954, joining with appellee Barry, whom he charged with fraudulent misappropriation, the Chief Justice of the Supreme Court of Ohio, the Supreme Court of Ohio, the Probate Court of Lake County Ohio, and the Judge of the Probate Court of Lake County, Ohio, all of whom he alleged had deprived appellant of his constitutional rights. After the dismissal of this action by the United States District Court the Supreme Court of Ohio issued its decision reversing the judgment of the Ohio Court of Appeals. Appellant’s action in the District Court sought a preliminary and final injunction restraining the Supreme Court of Ohio from conducting any further the proceedings now pending before it. It also sought a mandatory injunction requiring the Probate Court to revise its journal entry with reference to withdrawal from the case, an order directing the Chief Justice of the State of Ohio to assign an impartial judge to the Probate Court of Lake County to hear and determine the proceedings, an order directing appellee Barry to deliver certain assets of the estate into the custody of the Probate Court, and an order directing the Supreme Court of Ohio and the Probate Court to report to the United States District Court as to the disposition of all proceedings with reference to the estate and the trust and with reference to the compliance with the mandates of the District Court. The District Court dismissed the Complaint upon the ground that, under Amalgamated Clothing Workers of America v. Richman Bros. Co. (6 Cir.), 211 P. (2d), 449, 70 Abs 597, affirmed by the Supreme Court of the United States in 348 U. S., 511, 71 Abs 177, 56 O. O. 249, 75 S. Ct., 452, 99 L. Ed., 600, a federal judge should keep “hands off” in the use of the injunction to stay litigation in a state court.

The judgment of the District Court must be affirmed. Appellant’s principal argument is assertion that the District Court committed reversible error because the Supreme Court of the United States in Capital Service, Inc., v. National Labor Relations Board, 347 U. S., 501, 74 S. Ct., 699, 98 L. Ed., 887, held that a District Court may issue an injunction against a state court during the pendency of proceedings in the state court. This was a labor relations case which involved conflict between the National Labor Relations Board and the state court. The petitioner had sought relief from picketing in a labor controversy in a state court, where it secured an injunction, and a few days later it filed a charge of unfair labor practice with the National Labor Relations Board, which in turn, under Section 10 (1) of the National Labor Relations Act, 29 U. S. C. A. §160(1) sought an injunction from the District Court staying the state court proceedings. The Supreme Court of the United States held that the jurisdiction of the National Labor Relations Board was exclusive, that it arose under a statute regulating commerce and fell within one of the express exceptions of 28 U. S. C., §2283, and that the injunction issued by the federal court was valid and proper. The scope of the holding was limited by the subsequent decision of the Supreme Court in Amalgamated Clothing Workers of America v. Richman Bros. Co., supra, which held that, in absence of an application to the National Labor Relations Board in an action where an injunction was sought in a state court against picketing, the federal court had no jurisdiction to enjoin the state court action. Both cases involved the National Labor Relations Act and controlling questions were raised which do not exist here. However, the principle stated by this court in Amalgamated Clothing Workers of America v. Richman Bros. Co., supra, still applies. The general rule that under Section 2283 a federal court is without power to compel relitigation of cases already adjudicated in state courts is still in force. In spite of amendments which broaden the exception in the previous statute forbidding injunctions against state action by a District Court, Section 2283 “expresses on its face the duty of ‘hands off’ by the federal courts in the use of the injunction to stay litigation in a state court.” Cf. Toucey v. New York Life Insurance Company, 314 U. S., 118, 62 S. Ct., 139, 143, 86 L. Ed., 100.

Appellant’s factual contention is that the Probate Judge was disqualified because of bias and prejudice, that he was guilty of a “fraud in law,” that this fraud is admitted for the purpose of deciding the motion to dismiss and that the Chief Justice of the Supreme Court of Ohio, by filing a motion to dismiss, admits that he acted in collusion with the Probate Court to deprive appellant of his constitutional rights. While in deciding a motion to dismiss the complaint the court assumes the existence of facts well pleaded, Cf. Chessman v. Teets, 350 U. S., 3, 76 S. Ct„ 34, mere conclusions of the pleader are not accepted as true. 27 C. J. S., Dismissal and Nonsuit, §71, p. 248; Scott v. Empire Land Co. (D. C.), 5 F. (2d), 873, affirmed 5 Cir., 24 F. (2d), 417. Here there are no facts pleaded which even tend to show fraud of the Probate Judge, or collusion of the Chief Justice of the Supreme Court of Ohio. The allegations of fraud are mere conclusions. Typical is appellant’s averment in the complaint that the journal entry of August 3, 1954, which the Probate Judge filed in withdrawing from the case, amounts to “fraud in law.” Appellant’s legal contentions arise out of his real grievance, which is that he lost his case. He claims that he was denied due process and equal protection of the laws. Section 2283 upon which he relies reads as follows:

“A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”

Appellant’s application for injunction plainly does not fall within the first exception of Section 2283, for such relief is not expressly authorized by Act of Congress. Also the injunction is not necessary to protect any judgment of the District Court. The only judgment issued by the District Court is the judgment of dismissal of appellant’s action. However, appellant contends that injunction should be issued in order to aid the District Court’s jurisdiction. This ignores what the Supreme Court has called “the closely circumscribed jurisdiction given to the District Court.” Amalgamated Clothing Workers of America v. Richman Bros. Co., supra [348 U. S., 511, 56 O. O. 249, 75 S. Ct. 456], No express nor implied jurisdiction is given to the District Court to enjoin court proceedings in an ordinary probate matter which is being tried in the state courts. To find that such jursdiction exists in the District Court is “to generalize where Congress has chosen to specify.” Amalgamated Clothing Workers of America v. Richman Bros. Co., supra. The District Court, as explained below, does not have jurisdiction to relitigate a case tried in the state courts, and hence an injunction will not aid its jurisdiction. Amalgamated Clothing. Workers of America v. Richman Bros., supra, 348 U. S„ 519, 56 O. O. 249, 75 S. Ct., 457. Individual cases relied on by appellant have no bearing here. In American Insurance Co. v. Lester (4 Cir.), 214 F. (2d), 578, the federal court had independent, exclusive jurisdiction under the Federal Declaratory Judgment Act. The case of Chessman v. Teets, supra, involves a conviction and sentence of death for first degree murder and an application, not for injunction staying the normal process of the courts, but for habeas corpus.

As to all of the questions presented, appellant had full hearing in three state courts. The Supreme Court of Ohio, in a unanimous opinion binding here, Erie Railroad Company v. Tompkins, 304 U. S., 64, 11 O. O. 246, 58 S. Ct., 817, 82 L. Ed., 188, upheld the Probate Court’s conclusion that it had no jurisdiction because under the will a lawful distribution of the personal property had been made to the life tenants and such assets had ceased to be property of the estate.

The fact that appellant lost his case does not constitute denial of due process nor of equal protection of the laws. Law, in its regular course of administration through courts of justice, is due process, and, when secured by the law of the state, the constitutional requisite is satisfied. Due process is so secured by laws operating on all alike, and not subjecting the individual to the arbitrary exercise of the powers of government unrestrained by the established principles of private right and distributive justice. Caldwell v. Texas, 137 U. S., 692, 11 S. Ct., 224, 34 L. Ed., 816; Duncan v, Missouri, 152 U. S., 377, 14 S. Ct., 570, 38 L. Ed., 485. Due process is “a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial.” Trustees of Dartmouth College v. Woodward, 4 Wheat, 518, 4 L. Ed, 629. The mere fact that a person is unsuccessful in a court in a matter involving life, liberty, or property does not show that there has been a violation of the due process of law quaranty. 12 Am. Jur., 273 (§577); Goltra v. Weeks, 271 U. S., 536, 46 S. Ct. 613, 70 L. Ed., 1074. The doctrine of due process does not confer the right to litigate the same question twice. Baldwin v. Iowa State Traveling Men’s Assn., 283 U. S., 522, 524, 51 S. Ct., 517, 75 L. Ed., 1244. The equal protection of law implies that all litigants similarly situated may appeal to courts for both relief and defense under like conditions, with like protection, and without discrimination. Old Colony R. Company v. Assessors of Boston, 309 Mass., 439, 35 N. E. (2d), 246. Appellant had due process and the equal protection of the laws.

As to appellant’s allegations of bias and prejudice, it is the general rule that a judgment may not be attacked collaterally on the ground of judicial disqualification. Cunningham v. Mitchell (9 Cir.), 21 F. (2d), 881, certiorari denied 276 U. S., 614, 58 S. Ct., 208, 72 L. Ed., 732. The judicial act of a disqualified judge is only voidable and not void, and hence the disqualification does not affect the judge’s jurisdiction. 48 C. J. S., Judges, §97, p. 1109; 30 Am. Jur. 802 (Judges, Section 97); The Restatement of the Law of Judgments, Section 124; Crescent City Livestock Landing & Slaughter-House Co. v. Butchers’ Union SlaughterHouse & Livestock Landing Co., 120 U. S., 141, 7 S. Ct., 472, 482, 30 L. Ed., 614. In that case the Supreme Court of the United States held that a plaintiff who claimed that fraud existed in the procurement of a judgment in the state court of Louisiana could not attack the judgment collaterally in the federal District Court. The Supreme Court declared that the records of the proceedings of a judicial tribunal import verity; “its judgments cannot be impugned except by direct process from superior authority.” In Owens v. Dancy (10 Cir.), 36 F. (2d), 882, certiorari denied 281 U. S., 746, 50 S. Ct., 351, 74 L. Ed., 1158, a petitioner in a habeas corpus proceeding alleged bias and personal prejudice on the part of the judge. The Circuit Court of Appeals ruled that the question of disqualification of a judge because of personal interest or bias could not be raised by collateral attack, but was reviewable only on error or appeal. To the same effect is Willis v. Scott (10 Cir.), 40 F. (2d), 330, 332, certiorari denied 282 U. S., 877, 51 S. Ct., 80, 75 L. Ed., 774. It was there asserted that the Chief Justice of the Supreme Court of Oklahoma was biased and prejudiced against appellant and that the judgment against appellant should therefore be set aside. The Court of Appeals assumed that the bias existed but refused to permit a collateral attack upon the judgment. It said:

“The extreme prejudice of Justice Branson may be assumed; yet it does not render the decision void. The subject was fully and carefully considered by this court in Owens v. Dancy [10 Cir.], 36 F. (2d), 882, and it was there ruled that the act of a disqualified judge is not void, but voidable only, and, while it is reviewable on error or appeal, it is not subject to collateral attack.”

Moreover, it is the settled law that the District Court in the exercise of its equity powers will not review in an independent action orders entered by a state court. Appellant contends that he applied for the appointment of a trustee and the appointment of an administrator de bonis non after the reversal of the judgment of the Probate Court of Lake County by the Court of Appeals of the Seventh Judicial District of Ohio and before the reversal of that judgment by the Supreme Court of Ohio, and that the Probate Court was compelled to grant his application. Certainly it was not error for the Probate Court not to act upon appellant’s application for an administrator de bonis non while the case was pending in the Supreme Court of Ohio on motion to certify the record.

What appellant asks is that this court order the District Court to relitigate the same issues which have now been finally disposed of by the Supreme Court of Ohio in a judgment binding on this court. As held by this court in General Exporting Co. v. Star Transfer Line (6 Cir.), 136 F. (2d), 329, 335, a federal District Court will not function as a court of review for the state court. The District Court there dismissed an action praying that proceedings in the state court be declared null, void, and no effect and this court affirmed the decision of the District Court, stating:

“The attempt to relitigate in federal courts issues already determined in state court proceedings has been disapproved in numerous opinions of United States Courts below the grade of the Supreme Court. Ritholz v. North Carolina State Board of Examiners in Optometry (D. C. N. C.), 18 F. Supp., 409, 413 (three-judge court); Davega-City Radio v. Boland (D. C. N. Y.), 23 F. Supp., 969, 970 (three-judge court); Hall v. Ames (1 Cir.), 190 F. 138, 140, 141; Furnald v. Glenn (2 Cir.), 64 F., 49, 54.”

Cf. Davega-City Radio, Inc. v. Boland, (D. C., S. D. N. Y.), 23 F. Supp., 969, 970, in which the court declared:

“There is also a further reason why the suit must be dismissed, namely, the principle that a decision of a state court may not be reviewed by bill in equity in a federal court. American Surety Co. v. Baldwin, 287 U. S., 156, 164, 53 S. Ct., 98, 100, 77 L. Ed., 231, 86 A. L. R., 298; Lynch v. International Banking Corp. (9 Cir.), 31 F. (2d), 942, certiorari denied, 280 U. S., 571, 50 S. Ct., 28, 74 L. Ed., 624; Furnald v. Glenn (2 Cir.), 64 F. 49, 54; Ritholz v. North Carolina State Board (D. C., M. D. N. C.), 18 F. Supp., 409, 413. Here the plaintiff has presented to the state court the same questions as to the jurisdiction of the state Board that it wishes this court to decide. The issue having been decided adversely to it, its remedy is appeal through the appropriate state courts and, if necessary, review by the Supreme Court of the United States. It cannot obtain a review by this independent suit in the federal court.”

See also H. J. Heinz Co. v. Owens (9 Cir.), 189 F. (2d), 505, 509.

It is shown upon the face of this complaint that appellant regularly invoked the jurisdiction of the state court, the case was tried, judgment was rendered and eventually affirmed by the Supreme Court of Ohio. It is clear that appellant was not denied due process of law or the equal protection of the law under the Civil Rights Act, 42 U .S. C. A. §1981 et seq. This Act does not create an exception to the general principle that a decision of the state court may not be reviewed by bill in equity in a federal court. Davega-City Radio, Inc. v. Boland, supra; Bottone v. Lindsley (10 Cir.), 170 F. (2d), 705.

As suggested by the Supreme Court of Ohio, Sexton v. Barry, supra, 163 Oh St [124], 137, 138, 56 O. O. 178, 184, 126 N. E. (2d) 136, 137, appellant’s remedy is in the state Court of Common Pleas. Johnson v. Johnson, 51 Oh St 446, 38 N. E., 61. He has not availed himself of this remedy.

The judgment of the District Court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: By LEACH, J.

license: Public Domain

text:
    CONTINENTAL CASUALTY COMPANY, Plaintiff, v. BUCKEYE UNION CASUALTY COMPANY et, Defendants.
    Common Pleas Court, Franklin County.
    No. 193882.
    Decided January 10, 1957.
    Collis Gundy Lane, Richard Huggard, for plaintiff.
    Wright, Harlor, Purpus, Morris & Arnold, for defendant, The Buckeye Union Casualty Co.

      Watson, Davis & Joseph, Carl G. Nappi, for defendants, William K. and Thelma Kirby.
    Ballard, Dresbach, Crabbe & Newlon, Lloyd E. Bilger, for defendant, Nationwide Mutual Insurance Company.
   OPINION

By LEACH, J.

This is an action for a declaratory judgment involving basically the question of the respective obligations of two insurance companies under liability policies. Specifically, the questions involved are (1) whether defendant, The Buckeye Union Casualty Company, is obligated to assume any liability in respect to suits and claims for alleged personal injury and property damage sustained in a motor vehicle accident involving defendant, Harry H. Davis, and (2) if so, the nature and extent of the respective liabilities of plaintiff, Continental Casualty Company, and defendant, Buckeye.

This matter was submitted to the Court on an agreed statement of facts between the plaintiff and defendants, Buckeye, William H. Kirby. Thelma Kirby and Nationwide Mutual Insurance Company, and upon the separate consents of defendants, Davis and The U-Drive It Company, Inc. by which these defendants consent to such a declaration. It appears, therefore, that all parties having any possible interest in the controversy are properly before the Court and that this is an action properly falling within the scope of the Declaratory Judgment Act of Ohio.

On July 30, 1955, Davis, who was then the owner of a 1954 Dodge automobile and to whom Buckeye had issued a policy including a “Use of Other Automobiles’’ provision, rented from U-Drive It a 1950 Chevrolet Stake Body Truck. Buckeye’s policy was issued on June 22, 1955. for the period ending June 22, 1956. Continental had issued to U-Drive It a policy in which the corporation was the name of insured covering all motor vehicles of U-Drive It, with certain specified limits, and in addition, protection was accorded to renters of automobiles from U-Drive It with different limits. Continental’s policy was issued on April 1, 1954, for the period including April 1, 1957. While engaged in moving his furniture from one house to another in Columbus, Ohio, and while driving the Chevrolet truck, Davis was involved in an accident with an automobile owned and operated by William H. Kirby and also occupied by his wife, Thelma Kirby. Defendant Nationwide Insurance Company had issued Mr. Kirby a $100.00 deductible collision policy on his automobile, and pursuant thereto paid to Mr. Kirby the sum of $409.89 and became subrogated to his claim against Davis to this extent. As a result of this collision, Mr. and Mrs. Kirby are asserting claims for personal injury in excess of $20,500.00 and Nationwide and Mr. Kirby are asserting claims for property damage in the aggregate sum of $509.89.

This case presents two separate and distinct questions. The first question is whether the use by .Davis of the Chevrolet truck was the use of “any other automobile” within the purview of the “Use of Other Automobiles” provision of his policy with Buckeye. Specifically the question is whether or not a truck is an “automobile” within the intendment of such provision. If it is not, it is clear that Buckeye has no obligation in this matter and that Continental alone is obligated to defend Davis and to pay, if payment is required, within its policy limits. If the truck is an “automobile,” the second question is presented as to the respective obligations and liability of Continental and Buckeye since each policy, insofar as the particular accident is concerned, provided that its insurance “shall be excess insurance over any other valid and collectible insurance.” We will discuss these questions in that order.

I

Section V of the policy issued by Buckeye to Davis provides in part:

“Use of Other Automobile If the named insured (Davis) * * * owns a private passenger automobile covered by this policy (he did), such insurance as is afforded by this policy under coverages A (bodily injury liability), B (property damage liability), * * * With respect to said automobile applies with respect to any other automobile, subject to the following provisions:
!(¡ !f! ¡i¡
“(d) This insuring agreement does not apply: * * * (3) under coverages A, B * * *, to any automobile while used in a business or occupation of such named insured * * * except a private passenger automobile operated or occupied by such named insured * * (Emphasis and parenthetical material added.)

It is the contention of Buckeye that “automobile” is defined by Section IV of the policy which provides:

“IV. Automobile Defined * * *.
“(a) Automobile. Except * * * where stated to the contrary, the word ‘automobile’ means:
“(1) Described Automobile — the motor vehicle or trailer described in this policy or, if none is so described, with respect to coverages A, B * * * any private passenger automobile owned on the effective date of this policy by the named insured * * *;
“(2) Trailer — under coverages A, B * * * a trailer not described in this policy, if designed for use with a private passenger automobile, if not being used for business purposes with another type of automobile
“(3) Temporary Substitute Automobile — Under coverages A, B * * *, an automobile not owned by the named insured or his spouse if a resident of the same household, while temporarily used as a substitute for the described automobile when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction;
“(4) Newly Acquired Automobile — an automobile, ownership of which is acquired by the named insured or his spouse if a resident of the same household * *

Buckeye asserts that whatever may be the meaning of the word “automobile” when contained in a policy which does not contain a definition of that term, here we do have such a definition, and that such definition excludes a truck. But does the definition exclude a truck? We do not so conclude. A truck obviously is a “motor vehicle” (Par. [a] [1]). If it is otherwise an “automobile,” why should it not fall within the scope of the word “automobile” as used in Par. (I) (4)? Actually, we believe it clear that none of the above definitions even purport to define what is meant by “any other automobile,” as used in Section V. Instead they describe what we might call the automobile which is basically or primarily covered by the policy. Literally speaking, if the word “automobile” as used in the phrase “any other automobile” in Section V were limited to the four above quoted definitions of “automobile,” the “Use of Other Automobile” provision of the policy would be completely nullified. This becomes clear if we assume that Davis, instead of renting the Chevrolet truck, had rented an ordinary passenger automobile, such obviously would be an “automobile” as the word is universally understood and used. It should be equally obvious, however, that it would not be the motor vehicle “described in this policy,” would not be “any private passenger automobile owned * * * by the named insured,” would not be a trailer, would not be a “substitute for the described automobile when withdrawn from normal use because of its breakdown,” and would not be “an automobile, ownership of which is acquired by the named insured.” In short, it is obvious that under no circumstances could any type of “other automobile,” as referred to in Section V be an “automobile” as defined by Section IV.

Under such circumstances we must either forfeit entirely the “Use of Other Automobile” provision or conclude that the use of the word “automobile” therein must be given its “ordinary and commonly accepted meaning.” Babier v. National Casualty Co., 143 Oh St 215. Construing the policy most favorably to the insured, Mumaw v. Western and Southern Life Insurance Co., 97 Oh St 1, we conclude that the Chevrolet truck in question is an “automobile” within the meaning of “any other automobile” as contained in Section V.

Especially when we apply the rule of construction which is followed universally and announced in the Mumaw case, we are in full agreement with the court in the case of Life and Casualty Ins. Co. v. Cantrell, 57 S. W. (2nd) 792, which concluded that “automobile” as used in a policy of insurance indicates “a motor driven, fast moving vehicle mounted on four wheels, and is an automobile whether called a runabout, a coupe, a coach, a sedan, a town car, a speed wagon, a delivery wagon, or a truck. The term ‘automobile,’ a generic term, embraces them all, including the truck — a fast moving, motor driven vehicle mounted on four wheels.”

See also Life and Casualty Co. of Tenn. v. Metcalf, 42 S. W. (2nd) 909 and Life and Casualty Co. of Tenn. v. Roland, 165 S. E. 293.

Buckeye cites as authority for a contrary holding, the case of Neighbors v. Life and Casualty Co. of Tenn., 31 S. W. (2nd) 418, This case merely held that a motorcycle, a two wheeled vehicle, was not an “automobile” within the purview of an insurance policy, and has no applicability to the question of whether a truck is such an “automobile.”

We perhaps should also direct attention to the fact that under the provisions of Section V, as quoted above, we find two references to “private motor vehicle.” If Buckeye intended to limit its “other automobile” coverage to “any other private passenger automobile,” the policy should have so stated in simple and unambiguous words. For example, it will be noted that these exact words were used in one of the policies under consideration in Travelers Indemnity Co. v. State Automobile Ins. Co., 67 Oh Ap 457, 459. Furthermore, were we to conclude, as in effect urged by Buckeye, that “any other automobile” actually means “any other private passenger automobile,” there would be no need for the language of par. (d) of Section V. Here we find a limitation of the “any other automobile” provision to exclude “any automobile while used in a business or occupation of such named insured * * - except a private passenger automobile.” This language necessarily means that coverage is provided for automobiles other than private passenger automobiles so long as not used in a business or occupation. Here Davis was using the truck not in his occupation or business but for the purpose of moving certain furniture.

For the reasons stated, we conclude that the policy issued by Buckeye to Davis did extend coverage to Davis while he was operating the truck, rented from U-Drive It on July 30, 1955.

II

Having concluded in Part I herein that the policy of Buckeye extends coverage to Davis for the accident in question, we turn now to the consideration of the extent of such coverage. It is conceded that the policy of Continental also extends coverage to Davis for the same accident. Each policy provides as to the situation under consideration identical limits of coverage, $5000.00 for each person and $10,000.00 for each accident for bodily injury and $5000.00 for each accident for property damage. As to bodily injury, the claims of Mr. and Mrs. Kirby exceed such individual limits and in fact exceed the collective limits, being in excess of $20,500.00. As to property damage, the claims of Mr. Kirby and Nationwide aggregating $509.89, are well within either policy limit.

There is no dispute as to the fact that we have here a situation which, but for the policy of Buckeye, Continental would provide the only coverage and be charged with the sole duty of defending Davis. Having concluded, as we have, that the policy of Buckeye extends coverage to Davis for the accident in question, it is equally fundamental that but for the policy of Continental, Buckeye would provide the only coverage and be charged with the sole duty of defending Davis.

The complications and the dispute between Continental and Buckeye arise from the fact that each policy, insofar as coverage of the particular accident is concerned, provides that its insurance “shall be excess insurance over any other valid and collectible insurance.”

It is the contention of Buckeye that under the facts in this case, the insurance of Continental is the “primary” insurance and that its insurance is “excess.” While it would appear that Continental might be in a position to make the same claim, it does not. Instead,' it asserts that under such facts, the “excess” clauses in effect cancel each other out, leaving each with the duty of primary liability to be shared pro-rata, in this case on an equal basis since the policy limits are the same.

The first contention of Buckeye in this respect is that the “Other Insurance” provision of Continental’s policy, which contains the “excess” clause, cannot be availed of by Continental in the case at bar. This is urged on the basis that at the time Davis rented the truck, U-Drive It made no inquiry from him as to any other insurance he carried that might apply to the truck; that the lease agreement between Davis and U-Drive It made reference to insurance on the truck and referred to the “renter” as being one of the assured thereunder; that such agreement provided that the “renter” agreed to “comply with the terms and conditions of said policy, which by reference thereto are incorporated herein and made a part hereof;” and that no where in the lease agreement is any mention made of the “Other Insurance” provision.

We do not agree with this contention. We think it basic that the obligations of Continental must stand or fall on the basis of the terms of the policy itself. So far as Davis is concerned, it is a third party beneficiary contract entered into between Continental and U-Drive It. The mere fact that U-Drive It was a party thereto and was the named insured, does not and could not authorize it unilaterally to in any way modify the terms of the written contract, either for the benefit or to the detriment of the third party beneficiary. Having no such authority, its conduct insofar as its relationship to Davis is concerned, with the exception of the admitted fact that it did rent the truck to Davis, is of no concern in the disposition of this case.

We return, therefore, to the dilemma created by the existence of “excess” clauses in each of the insurance policies. It is fundamental that there cannot be “excess” insurance where there would be no “primary” insurance. Thus it is clear that both insurers cannot be “excess” insurers.

What therefore is the solution? Actually there are only four possible answers. (1) To conclude that within the limits of the stated liability of the policies (they being the same), there is no coverage at all and that there should be a pro-ration of all established liability of Davis only to the extent such liability exceeds such stated limits. Such a conclusion would in effect work a forfeiture and obviously must be rejected. Neither Continental nor Buckeye urge such a result and it is clear from an examination of the many authorities that such a conclusion would be completely unwarranted. (2) To conclude that the insurance of Buckeye is “primary” and that of Continental “excess ” This Continental itself does not urge. (3) To conclude that the insurance of Continental is “primary” and the insurance of Buckeye is “excess.” This is the result urged by Buckeye. (4) To conclude that the two “excess” provisions in effect cancel each other out, and that the insurance of Continental and Buckeye be pro-rated as if such “excess” clauses did not exist. This is Continental’s position.

Before attempting to analyze the holdings of other courts in similar or somewhat- similar cases of “double insurance,” we wish to point out that we believe that there is, or perhaps when stated more accurately, that there should be, a totally different approach by the courts in their construction of “double insurance” questions in those cases of property insurance as contrasted with cases of liability insurance. In the former, public policy would seem to dictate a construction against “double coverage” as eliminating possibilities of over-valuation, etc. In the latter we see no such public policy.

The case law as to liability insurance is unanimous to the effect that where two covering policies exist, neither of which has an “Other Insurance” clause, each company shares in the liability on a pro-rata basis dependent upon the limits of its policy. The case law is also clear that where the “double insurance,” consists of policy A with no “Other Insurance” clause, and policy B with an “Other Insurance” clause, full force and effect is given to such clause.

The difficulties in interpretation have arisen when both policies contained “Other Insurance” clauses. These seem to fall into three general types: (a) a provision to the effect that in the event of other insurance, the loss shall be borne pro-rata dependent upon the monetary limits of coverage, which will hereafter be referred to as the pro-rata clause; (b) a provision that the policy shall be excess over any other valid and collectible insurance applicable to the liability, hereafter referred to as the excess clause, and (c) a provision that if there is other valid and collectible insurance, the policy shall not apply, hereafter referred to as the escape clause. Thus it is apparent that cases of “double insurance” have and will continue to arise involving pro-rata vs. excess, pro-rata vs. escape, excess vs. escape, excess vs. excess and escape vs. escape. Of course, no real problem would arise in pro-rata vs. pro-rata.

In their attempted solutions of these problems, the courts have evolved many varied and irreconcilable tests for determining which policy is “primary” and which “secondary.” In all of these cases it was clear that full force and effect could not be given to the “Other Insurance” clauses of both policies if the other policy was considered as “other valid and collectible insurance.” The assumption seems to have been made, therefore, and usually without discussion, that one, but not both, of such clauses must give way in order to establish one policy as the “primary” policy upon which the “Other Insurance” feature of the “secondary” policy might then become operative, e. g. Hartford Steam Boiler Inspection & Ins. Co. v. Cochran Oil Mill & Ginnery Co. 105 S. E. 856, 26 Ga. App. 288.

These decisions have caused one court to remark that the controversy is similar to that of which came first, the chicken or the egg. Zurich General Accident and Liability Ins. Co. v. Clamor, 124 Fed. (2nd) 717, 719. The instant case is a classic example of just that. If we strike out the “other valid and collectible insurance” feature of Continental’s policy, thus establishing “primary” liability on the part of Continental to the extent of its policy limits, we can then give full force and effect to the “other valid and collectible insurance” feature of Buckeye’s policy. But why, in the field of contract law, should not such clause in Continental’s policy occupy the same legal status as the identical clause in Buckeye’s policy? Both cannot stand as being in force and effect for reasons heretofore set forth. But why should the courts strain at gnats in an effort to choose between the two? Where policy indicates such a desirability as in the case of property insurance, we can understand such efforts. Frankly, we cannot in the case of liability insurance, especially when we consider that but for the happenstance of the existence of the policy No. 2, which insurance company No. 1 did nothing to bring into existence, company No. 1 would have had to stand the entire liability to the extent of its monetary limits, whereas the existence of No. 2 will effectuate some saving to No. 1 on a pro-rata basis in the event eventual liability be less than the aggregate limits.

In Oregon Auto Ins. Co. v. United States Fidelity & Guaranty Co., 195 Fed. (2nd) 958, the Oregon policy contained an escape clause and the U. S. F. & G. policy an excess clause. The court stated:

“It is plain that if the provisions of both policies were given full effect, neither insurer would be liable. The parties admit that such a result would produce an unintended absurdity * * ”
“We have examined cases in other jurisdictions cited by counsel where closely similar or substantially identical disputes between insurance companies have arisen. These decisions point in all directions. One group indicates that the policy using the word ‘excess’ is secondary and that containing the language of the Oregon policy is primary. Examples of these decisions are cited on the margin. Their reasoning appears to us completely circular, depending as it were, on which policy one happens to read first. Other cases seem to recognize the truth of the matter, namely, that the problem is little different from that involved in deciding which came first, the hen or the egg. See remarks of Judge Major in Zurich General Accident & Liability Insurance Company v. Clamor, 7 Cir., 124, F. 2d 717, 719. In this dilemma courts have seized upon some relatively arbitrary circumstance to decide which insurer must assume primary responsibility. Thus one group of cases fixes primary liability on the policy which is prior in date. Another group undertakes to decide which policy is the more specific, holding the one thought more specific to be primary. Another solution is represented by Maryland Casualty Company v. Bankers Indemnity Insurance Company, 51 Oh Ap 323, 200 N. E. 849, where it was held that the policy issued to the person primarily liable for the damage is the primary insurance. In sum, the cases are irreconcilable in respect both of approach and result.
“In our view it is immaterial which policy was written first; each was in effect when the accident occurred. The two policies appear to us to be equally specific, and no difficulty whatever would be encountered in applying either to the facts if the other did not exist. It is true that the U. S. F. & G. policy named Suter as the insured, and it was Suter’s negligence that caused the accident. But Oregon’s policy insured any person who might drive a car of the Redmond Motor Company with the latter’s consent, and, as seen, Suter is an insured in this category.
“In our opinion the ‘other insurance’ provisions of the two policies are indistinguishable in meaning and intent. One cannot rationally choose between them. We understand the parties to concede that where neither policy has an ‘other insurance’ provision, the rule is to hold the two insurers liable to prorate in proportion to the amount of insurance provided by their respective policies. Here, where both policies carry like ‘other insurance’ provisions, we think must be held mutually repugnant and hence be disregarded. Our conclusion is that such view affords the only rational solution of the dispute in this case. The proration is to be applied in respect both of damages and the expense of defending the suits.”

If all aspects of this “double insurance” problem were a matter of first impression in Ohio, we would merely state that we agree with the basic reasoning in the Oregon case and terminate this opinion. We are met however with three Ohio cases which appear to follow a different approach. One being a Supreme Court case and one a decision of the Court of Appeals of this district, we are bound by their holdings to the extent, but of course only to the extent, that they constitute binding precedents as applied to the facts in the case at bar.

Maryland Casualty Co. v. Bankers Indemnity Co., 51 Oh Ap 353 f Court of Appeals of Cuyahoga County), was a case where Maryland’s policy contained an excess clause and Bankers’ policy an escape clause. The accident involved a truck owned by transfer company but leased to freight company and claim was made against freight company. Maryland had issued a policy to freight company which included coverage of hired trucks but provided that if freight company was covered by “valid and collectible insurance” taken out by the owner of the hired truck, Maryland’s coverage should be “excess.” Bankers had issued a policy to transfer company which contained an omnibus clause extending coverage to persons operating the truck with consent of transfer company but providing that if such other person had “valid and collectible insurance,” then such person “shall not be covered under this policy.” Maryland was held solely liable and Bankers “escape” clause upheld, the court stating:

“Here we have a situation where each policy contains a provision in substantially the same language, which seeks to exclude its own company from liability under the established facts in the case. The collision having occurred while the freight company was operating in the course of its business a truck borrowed by one of its employees, the freight company is primarily liable, while the transfer company is not primarily liable. The freight company is covered by the borrowed car provision of the Maryland policy. Under these circumstance there is more reason to hold Maryland liable than Bankers.”

We are somewhat at a loss to understand the rationale of the Maryland case since no claim of any liability was made against the transfer company and while the freight company was “covered by the borrowed car provision of the Maryland policy,” it likewise was covered by the driving with permission provision of the Bankers’ policy. In any event, we do not consider it as any binding precedent in the case at bar. Neither Continental nor Buckeye appear to approve of such holding. If we were to follow this holding, as we understand it, and extend it to the facts of this case, we would be forced to conclude that Buckeye’s coverage is “primary” and Continental’s coverage “secondary,” a conclusion contended for by neither insurance company.

Travelers Indemnity Co. v. State Automobile Ins. Co., 67 Oh Ap 457 ("Court of Appeals of Franklin County), was a case where Traveler’s policy contained an excess clause while State Auto’s policy contained an escape clause. The accident involved a car owned by the father and driven by the son. Travelers had issued a policy to-the son for his own car which also covered the son with respect to his operation of “any other private passenger automobile” but provided that such coverage should be “excess insurance over any other valid and collectible insurance.” State Auto had issued a policy to the father, including coverage to other persons using the automobile but providing that such extended coverage should not apply “with respect to any loss against which he has other valid and collectible insurance.” The Court, in effect, held State Auto (escape clause) primarily liable with Travelers (excess clause) not liable at all since the amount claimed was less than the limits of State Auto’s policy.

The exact reasoning by which the Court reached this conclusion is not set out although reference is made to the case of St. Paul Fire and Marine Ins. Co. v. Garza County Warehouse & Marketing Assn., 93 Fed. (2nd) 590, which stated that “excess” insurance was not “other” insurance so as to bring into effect an escape clause providing for avoiding liability in the event of “other insurance.” Reference was also made to certain other out-of-state cases, including Michigan Alkali Co. v. Bankers Indemnity Ins. Co., 103 Fed. (2nd) 345; Grasberger v. Liebert and Obert, Inc., 335 Pa. 491, 6 A. (2d) 925. These cases hold the escape clause policy as primary and the excess clause policy as secondary on the basis that the excess policy is more “specific” in its coverage and that the specific controls over the general. To this same effect see Fageal v. Pacific Indemn. Co., 18 Cal. (2d) 73, 117 Pac. (2d) 661.

Since both the Oregon case and the Travelers case involved a case of excess vs. escape, it is clear that they are in conflict as to their ultimate holding and that the Travelers case, being a decision of the Court of Appeals of this county, is binding on this Court insofar as a case of excess vs. escape is concerned. It does not follow that it supports the claim of Buckeye in this, a case of excess vs. excess. The reasoning of the cases relied upon by the Court of Appeals, to the effect that the excess clause is a more “specific” provision as to coverage and controls over the escape clause, can have no possible application where both policies contain excess clauses in exactly the same words. This very question is discussed in Zurich General Accident & Liability Ins. Co. v. Clamor, 124 Fed. (2d) 717, 719. That was a case of escape clause vs. excess clause. The court concluded that the language of the escape clause was “general in its nature” while the language of the excess clause was “specific, or, at any rate, more specific than Zurich.” The Court stated further:

“We think the logic of this reasoning is made apparent by assuming that neither of the policies contained an ‘other insurance’ provision, or that both policies contained an ‘other insurance’ provision in exactly the same language. It could not be seriously argued, in our opinion, but that under either of such situations the two insurers would be liable in proportion to the amount of insurance provided by their respective policies. Here, however, as pointed out, the ‘other insurance’ provision of the two policies is different. In order to give effect to such difference, it is logical to conclude that Zurich is liable to the extent named in its policy, and that Car & General is liable only for any excess over that provided by Zurich.” (Emphasis added.)

Employers Liability Assur. Corp. v. Pacific Employers Ins. Co., 227 Pac. (2d) 53, held that where the policies of two different insurance companies each contained excess insurance provisions, both insurers became concurrent insurers for liability of the insured. In this case the court concluded that neither policy could be considered as more specific than the other.

The third Ohio case is Trinity Universal Ins. Co. v. General Accident, Fire and Life Assur. Corp., 138 Oh St 488. This involved a contest between a pro-rata policy and an excess policy. The claim of liability was based on an accident involving a truck of the insured on the premises of the insured. Trinity’s policy was issued covering the truck and contained a provision that in the event of other insurance, Trinity should not be liable “for a greater proportion of such loss than the applicable limit of liability * * * bears to the applicable limit of liability of all valid and collectible insurance against such loss.”

General Accident’s policy covered the premises of the insured but provided that if the accident was due to an automobile “then this policy * * * shall be excess insurance only over and above the amount of such other insurance and the corporation shall not be liable under this policy until such other insurance is completely exhausted.” In a per curiam opinion specifically “limited to the circumstances peculiar to this particular controversy,” the court held the Trinity policy to be “primary” liability and General Accident liable only in accordance with its “excess” clause. We quote from the opinion:

“First it must be observed that the coverage provided by the policy of the defendant company is general while that named in the policy issued by the plaintiff is specific. The latter is limited strictly to liability for bodily injury or death accidentally arising from operaton of the truck. The former covers liability for any accidental bodily injury, including death, occurring anywhere on the premises of the insured. Hence, under the general rule the specific insurer is primarily liable.
“The second thing of importance to be noted is that the policy issued by the defendant company is the only one mentioning excess insurance. Although the policy covers generally all bodily injuries occurring accidentally anywhere on the premises of the insured, it excludes any such injuries if caused by the truck on the premises at a time when there is other coverage on the truck. In that event liability is expressly limited to any excess above the maximum provided in the other policy. There is no contractual relation between the two insurance companies, and the defendant company was within its rights in issuing to the insured a policy containing this limitation. It is not contended that the plaintiff company could not have ascertained this information when it later issued its policy.”

As contrasted with the Trinity case, Continental’s policy in the case at bar is not “the only one mentioning excess insurance.” Here both policies contain identical language in this respect. Since the named insureds are not the same in this case, while both policies in the Trinity case had the same named insured, the reference to the ability of one insurer to obtain information as to a prior policy when it later issued its policy, could hardly be applicable here. Nor can we find any analogy between the fact pattern of premises coverage as contrasted with vehicular coverage on the question of comparison on the “specific” vs. “general” concept. We conclude therefore that the Trinity case not only is not a binding precedent in the instant case but actually is of little help in its disposition.

If we accept as established law in Ohio the theory that the policy which has the more “specific” coverage is “primary,” and we are not sure it is firmly established, we cannot conclude that either policy is more “specific.” In the last analysis the word “specific” is comparatively meaningless unless we define the area of comparison. Policy A may be more specific than policy B in certain respects and less specific in others. Buckeye claims that its policy is general and Continental’s specific in that Buckaye’s policy applied to any other automobile operated by Davis while, so far as Davis was concerned, Continental’s policy applied only to the truck he was operating. It seems to us that Continental could, with equal logic, contend that its policy was general and Buckeye’s specific in that the policy of Continental applied generally to any automobile rented by U-Drive It while Buckeye’s policy applied only to the specific truck Davis was driving.

In the last analysis, potential liability in the event of negligent operation of the motor vehicle in question attached to both policies at exactly the same time and extended to the same acts, no more and no less. True, the policy of Continental extended coverage on the truck before that time. But the policy of Buckeye extended coverage to Davis before that time. The truck is a specific automobile. Davis is a specific person. Which is more “specific”? What are the comparative yardsticks one would employ in such a determination? We know of none. In our opinion any attempt to weigh the specifics of the two on the balance scale of the law would be at best an arbitrary conclusion not based on any logical premise.

What we have said in the preceding paragraph is equally applicable to the consideration of which policy was issued first and to those cases which hold that the policy first issued is the “primary” policy, e. g. Gutner v. Switzerland Gen. Ins. Co. 32 Fed. (2d) 700.

Likewise we find no real logical basis for the conclusion that the policy which has as its named insured the tort-feasor is primarily liable, e. g. United Pacific Ins. Co. v. Ohio Casualty Co., 172 Fed. (2d) 836, nor for exactly the opposite conclusion that the insurer of the specific automobile is primarily liable while the insurer of the specific driver is secondarily liable, e. g. Farm Bureau Mutual Auto Ins. Co. v. Preferred Accident Ins. Co. 78 Fed. Supp. 561.

Actually we believe that the solution to the problem involved in the instant case is relatively simple. Our opinion has been lengthy and somewhat involved only because of the many tests which have been applied in other cases and which we felt warranted discussion. Our study of these cases, not all of which need be cited herein, has in many ways reminded us of the visit of Alice to the “Never-Never Land.” Many of these cases cite and rely at least in part on Hartford Steam Boiler Inspection & Ins. Co. v. Cochran Oil Mill & Ginnery Co., 105 S. E. 856, 26 Ga. App. 288, decided in 1921. Here the Court stated that “Before either policy can ride as excess insurance, the other must be made to walk as primary insurance.” This we believe to be the cornerstone on which the entire opinion is then built. It assumes, however, that the only solution to the dilemma of “double insurance” involving a contest of excess vs. excess is to permit one policy to “ride as excess insurance” and to so ride on the back of another policy containing the same excess provision by converting one but only one policy to primary insurance, thus necessitating the employment of many artificial and arbitrary tests in order to arrive at such a pre-determined result.

Let us employ the same type of cornerstone and apply it to the facts in this case. “A policy cannot ride as excess insurance in the absence of another policy of primary insurance.” In the case at bar there is no other policy of “primary” insurance. Both policies provide for “excess” insurance. By what right or authority can this Court by some magic wand change the terms of either contract? Such a provision is not unlawful nor against public policy. The solution, therefore, becomes simple. If we accept as a truism the fact, and it is a fact, that there can be no “excess” insurance in the absence of a “primary” insurance, it follows as night follows day that since neither policy by its terms is a policy of “primary” insurance, neither policy can operate as a policy of “excess” insurance. The policies are not changed. The “excess” provisions of the policy merely are inoperative as being impossible of accomplishment in the same way that such excess provisions are inoperative if there is no other insurance in effect. Instead of beginning our mental approach with one policy and then going in circles, we would approach the problem thusly. As to Continental, its policy cannot be “excess” because there is not in effect any other policy of “primary” insurance. The “excess” provision being inoperative and the general coverage language applicable, it is potentially liable to the full amount of its coverage to the same extent as if its policy contained no excess feature. Having so .concluded, we do not say that because of such conclusion we may now apply the “excess” features of Buckeye’s policy. To do so would make the result dependent upon which policy we considered first. Instead, and ignoring our conclusion as to the Continental policy, we consider the policy of Buckeye in the same way. By such approach we necessarily come to the same conclusion as to the Buckeye policy. Then, having concluded that neither “excess” feature is operative in the absence of “primary” insurance (not court created “primary” insurance but “primary” insurance under the specific terms of the other policy), we necessarily conclude that each is pro-rata liable within the monetary limits of its policy for any damages and likewise is obligated to share pro-rata in the expense of defense.

In summary, therefore, on the issues presented in this action for declaratory judgment, we find the obligations of Continental and Buckeye under the terms of their respective policies of liability insurance to be as claimed by Continental, that is, that each insurance company has the obligation to share pro rata according to the limits of such policies in the liability, if any, and the defense of the claims being asserted by Mr. and Mrs. Kirby and by Nationwide against Davis, growing out of an accident on July 30, 1955, when Davis was driving a certain Chevrolet truck rented by Davis from U-Drive It. Costs are adjudged against defendant, Buckeye Union Casualty Co. Entry may be prepared accordingly, reserving exceptions.


author: Per CURIAM.

text:
    ANTONELLI et, Plaintiffs-Appellants, v. SILVESTRI et, Defendants-Appellees.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3764.
    Decided April 27, 1955.

      Vincent A. Buonpane and Modarelli & Modarelli, Youngstown, for plaintiffs-appellants.
    Carl Armstrong, Ralph R. Thombs, Youngstown, for defendants-appellees.
   OPINION

Per CURIAM.

On December 31, 1947, Patrick Antonelli and William Cesa, trading and doing business as Air Compressor Rental Company, secured a judgment in the Court of Common Pleas of Washington County, Pennsylvania, by confession under a claimed power of attorney against George Silvestri and Anthony Silvestri, trading and doing business as Silvestri Bros., in the amount of $4,174.28, including 15% attorney fees with costs.

On May 8, 1952, plaintiffs sued defendants in the court of common pleas of Mahoning County to reduce the judgment of the Pennsylvania court to judgment in Ohio.

Defendants by their amended answer in the Ohio court defended on the ground that the Pennsylvania court was without jurisdiction of their persons, or either of them, and assert that the judgment was confessed by one appearing upon the record as an “esquire” only and not purporting to be “an attorney of any court of record in Ohio or elsewhere”; and that such judgment was taken for an amount not definitely stated in the alleged power of attorney, and which definite amount could not be ascertained without extrinsic evidence; and further that the alleged judgment was taken in favor of individuals not named in such power, and was taken against individuals not named therein or ascertainable otherwise than by evidence extrinsic thereto.

By exhibit attached to plaintiff’s petition it is shown that the alleged power of attorney was incorporated into a written rental agreement made at Cleveland on the seventh day of August, 1947, between the “Air Compressor Rental Co. of Cleveland hereinafter called the lessor and Silvestri Bros, of Youngstown, Ohio (1123 State St.), hereinafter called the lessee” whereby the lessor rented and leased unto the lessee “(1) Cleveland model 95 Trencher Serial No. 2286,” the rentals to be at the rate of $750.00 per month, the rental period being from dates to dates not ascertainable from the rental agreement itself. Nowhere in the rental agreement is there any statement that Air Compressor Rental Co. is either a partnership or a corporation, nor is there any reference made in the agreement as to what individuals, if any, were in any way interested in Air Compressor Rental Co., except that the lease is signed “Air Compressor Rental Co., Lessor, by William Cesa” without designating who or in what capacity William Cesa acted. Nor is there in the rental agreement any statement indicating that Silvestri Bros, is either a partnership or a corporation. No individual person can be identified under the words “Silvestri Bros.” except by evidence outside the agreement, except that the rental agreement is signed simply “George Silvestri, Lessee.”

Incorporated in such rental agreement is a clause thereof as follows:—

“The Lessee upon every default in the payment of the rent hereby reserved and upon any and every breach of any of the covenants and agreements herein contained, in addition to empowering the lessors to take possession of the said equipment without legal process, hereby authorizes and empowers any attorney of any court of record in Ohio or elsewhere to appear for and enter judgment against the lessee for such amounts as may at any time be due as rent, transportation, repair charges, and or any other charges in connection with said equipment or use thereof as herein provided, together with costs of suit, release of errors without stay of execution, and with 15% added for collecting fees: * *

Such alleged power of attorney is required to be strictly construed, and it is quite apparent therefrom that it does not authorize the judgment taken in favor of two individuals, to-wit: Patrick Antonelli and William Cesa, d. b. a. Air Compressor Rental Co., nor does it authorize any judgment to be taken against the individuals George Silvestri and Anthony Silvestri, d. b. a. Silvestri Bros.

It further appears that the judgment was confessed by one who is designated merely as “esquire” and not as an attorney.

By common acceptation and as defined in Websters New International Dictionary an “esquire” has no relation to law. “It is often added to the names of poets or artists; and the term may be applied to a landed proprietor or a country squire; that being one of courtesy, indicating a gentleman publically attending or escorting a lady.” Nowhere do we find that the term “esquire” denotes an attorney at law.

It may be, although we have not been cited to any law of the state of Pennsylvania to the effect that an esquire is authorized to confess judgment in the state of Pennsylvania, certainly the purported power of attorney contained in this lease agreement would not authorize an esquire to confess judgment but only an attorney at law.

Strictly interpreting the alleged power of attorney it does not authorize an esquire to confess judgment for or against anyone.

“A warrant of attorney to confess judgment should be strictly construed.
“A warrant of attorney attached to a sealed note payable to the payee or bearer, authorized ‘any attorney at law, at any time after the above sum becomes due, with or without process, to appear for us in any court of record in the state of Ohio, and confess judgment against us, for the amount then due thereon, with interest and costs, and to release all errors and the right of appeal,’ Held:
“(a) Such warrant of attorney conferred no authority to confess judgment against the maker of the note, in favor of the holder to whom the payee had transferred the note by delivery.
“(b) In an action on the note, it was error to render judgment against the maker thereof in favor of such holder, by virtue of such warrant of attorney, without summons or other notice to the maker of the bringing of the action.” Spence v. Ermine, 46 Oh St 433.

To be definite, clear and explicit the power would necessarily be required to state a specific amount for which the judgment could be confessed or such amount must be ascertainable from the judgment itself without the aid of extrinsic evidence.

The common pleas court of Mahoning county found and held that the purported judgment rendered by the common pleas court of Washington County, Pennsylvania, was void and of no force or effect, to which the courts of this state were required to give no faith and credit, for the reason that such Pennsylvania court was without jurisdiction to render the judgment.

There can no longer be any doubt that when an attempt is made to reduce to judgment in Ohio a claimed judgment of a sister state the jurisdiction of such state to render the same may always be inquired into, and if it is found that the court rendering the judgment of the sister state was without jurisdiction the courts here need give no faith or credit thereto, and it is insufficient upon which to base a judgment in the state of Ohio.

Counsel for the appellants claim that the appellees are making a collateral attack upon the judgment of the Pennsylvania court, and that any objections which they may have to the judgment of that court should be made therein.

Counsel rely principally, if not solely, upon the case of McAlpin Co. v. Finsterwald, 57 Oh St 524, and cite the first syllabus of that case.

We find this case to be clearly distinguished from that now under consideration. There it was a creditor of the partnership firm who was attempting to attack the validity in Ohio of a judgment of a sister state entered upon a warrant of attorney executed in the name of a partnership and on its behalf by one partner only.

As indicated above, there is nothing in the lease agreement, or in the power of attorney contained therein, from which it could be ascertained that the power was executed in the name of a partnership or by one partner thereof, without the aid of extrinsic evidence.

It may well be doubted whether the holding of the Supreme Court in the McAlpin case would be adhered to at this time in view of the decision of the United States Supreme Court in the case of Williams, et al, v. North Carolina, 325 United States Reports 226, wherein the Supreme Court upheld the right of the state of North Carolina to inquire into the jurisdiction of the Nevada court in a divorce action. In the cited case the supreme court held in paragraph 2 of the syllabus:—

“A decree of divorce rendered in one state may be collaterally impeached in another by proof that the court which rendered the decree had no jurisdiction, even though the record of the proceedings in that court purports to show jurisdiction.”

We find no merit in the claim that here is a collateral attack upon the judgment of the Pennsylvania court, or that the defendants were required to enter their personal appearance in the Pennsylvania court to attack its judgment when the court was without jurisdiction to render the same.

In the case of Sayers v. Redbank Telephone Co., reported in 44 Pennsylvania County Court Reports 270, it was held:—

“A judgment entered by virtue of a power of attorney contained in a lease, which requires parol evidence to determine the amount of the judgment is void, and will be stricken off.”

Of course, if such judgment is void, it need not be stricken off in order to show its failure to constitute a cause of action to reduce the same to judgment in Ohio.

In the cited case a pertinent statement applicable to the situation is found in the opinion as follows:—

“It is not even contended that this lease within itself contains the authority for the entry of this judgment, and if it stands it must rest upon the parol proof offered in connection with the lease.”

In Agricultural Trust Co. v. Brubaker & Shaub, 73 Pennsylvania Superior Court Reports 468, at page 473, it is said:—

“A judgment by confession can only be sustained by a warrant authorizing it at the time and in the manner and form in which it was entered. Lytle v. Colts, 27 Pa. 193; Summy v. Hiestand, 65 Pa. 300; Weaver v. McDevitt, 21 Pa. Superior Ct. 597.”

We find no error wherein the trial court in this case found in favor of the defendants and against the plaintiffs, and the judgment of that court must be and the same is affirmed.

GRIFFITH and NICHOLS, JJ, concur.

PHILLIPS, J, concurs in judgment.


author: By HURD, J:

text:
    QUINN, Plaintiff-Appellant, v. STATE BOARD OF REAL ESTATE EXAMINERS, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23862.
    Decided October 31, 1956.

      Paul Mancino, for plaintiff-appellant.
    C. Wm. O’Neill, Atty. Geni., Earl N. Merwin, Asst. Atty. Geni., for defendant-appellee.
   OPINION

By HURD, J:

This action originated before the State Board of Real Estate Examiners where plaintiff-appellant, James J. Quinn, a real estate broker, was charged with violation of §4735.18 R. C., sub-sections A, B, E and T. At the conclusion of the hearing, the Board, by unanimous vote, revoked appellant’s broker’s license and found as follows:

“The Board has carefully weighed the evidence in the above captioned case, and it is the finding of the Board that defendant is guilty as charged of violating §4735.18 R. C., sub-sections A, B, E and T, in that he knowingly made misrepresentations, made false promises regarding the G. I. Loan for execution of contract, failed to remit deposit of $500 to purchaser, and offered property for sale under G. I. Bill without being duly authorized by the owner.”

Upon appeal to the Court of Common Pleas, the decision of the State Board was affirmed without opinion. The case is here appealed on questions of law from the judgment of affirmance of the Court of Common Pleas.

The record shows that William Sinclair, who was a real estate salesman in the employ of the plaintiff-appellant, had an “open listing” from one, Stanley Maleski, for the sale of a single residence property located in Parma, Ohio. It appears further from the evidence that the owner told agent, Sinclair, that he would not consent to the sale of his property under a G. I. Loan but that only a straight or conventional loan would be acceptable to him. Sinclair showed the property to the prospective purchasers, Paul L. and Hazel Ponder, husband and wife, who informed Sinclair that because of their limited financial ability they could purchase and finance the property only through a G. I. Loan although an F. H. A. Loan would be acceptable if it could be secured. Sinclair then took the Ponders to the broker’s office where Quinn himself typed the offer of purchase for the signature of the Ponders. There is evidence also that Sinclair told Quinn that the owner did not wish to sell the property under a G. I. Loan. However, in typing the offer of purchase (Complainant’s Exhibit A), Quinn made no reference to financing through a G. I. Loan, the only reference to financing being that the sale was to be secured by a “first mortgage to any bank or trust company.”

According to the testimony of the Ponders, when they objected to the omission of any reference to a G. I. Loan, Quinn assured them that the purchase would be conditioned upon securing such a loan for them and that the contract would not be enforced and the deposit of money accompanying the offer of purchase would be returned to them in the event a G. I. Loan could not be secured. There is evidence that upon these assurances the Ponders then signed the offer to purchase the property for $14,500 and made a deposit of $500 as a down payment to apply on the purchase price.

Thereafter, it appears from the evidence that efforts made by Quinn to secure a G. I. Loan were without success because the Certificate of Reasonable Value issued by the Veterans Administration was only in the sum of $14,000, being $500 short of the required appraisal for G. I. financing. Thereafter, a second request was made to secure a higher appraisal, but by letter dated August 16, 1954, the Veterans Administration advised Quinn that a Certificate of Reasonable Value would not be issued for more than $14,200, which still was not sufficient to authorize G. I. financing.

The record further shows that the transaction was abandoned when neither a G. I. Loan nor any other type of financing could be obtained.

Thereafter, the Ponders demanded in writing that their deposit money be returned to them. The record shows (BE 138) that the owner, with his son, went to Quinn and requested him to return the deposit of $500 to the Ponders “so we could have a clear mind to go ahead and sell the property * * *.” Instead of complying with this request, the appellant threatened suit for his commission under threat of which the owner said that he, Quinn, could retain the $500 as partial commission.

Seven errors are assigned which can be condensed into two principal claims, namely, that the judgment of affirmance of the Court of Common Pleas was contrary to law and contrary to the manifest weight of the evidence.

It should be observed that this Court does not have this case for a hearing de novo but is confined to its jurisdiction on review to a consideration of the record made in the administrative agency and the Court of Common Pleas.

Sec. 119.12 R. C., so far as applicable, reads in part as follows:

“Any party adversely affected by any order of an agency issued pursuant to an adjudication denying * * * or revoking or suspending a license, may appeal from the order of the agency to the court of common pleas of the county in which the place of business of the licensee is located or the county in which the licensee is a resident, * * *.
“The court may affirm the order of the agency complained of in the appeal if it finds, upon consideration of the entire record and such additional evidence as the court has admitted, that the order is supported by reliable, probative, and substantial evidence and is in accordance with law. In the absence of such a finding, it may reverse, vacate, or modify the order or make such other ruling as is supported by reliable, probative, and substantial evidence and is in accordance with law. The judgment of the court shall be final and conclusive unless reversed, vacated, or modified on appeal.”

Thus, these questions are presented: Did the Court of Common Pleas err in sustaining the order of the Board of Real Estate Examiners as being supported by reliable, probative and substantial evidence and as being in accordance with law?

It should be noted that appellant was charged with misrepresentation of the condition of the premises. We find, upon review, that there is not sufficient evidence to sustain this charge.

However, upon review of the entire record, it is our conclusion that the determination of the State Board of Real Estate Examiners and the judgment of affirmance of the Court of Common Pleas must be affirmed under sub-sections B, E and T of §4735.18 R. C., which insofar as applicable, are as follows:

“(B) Making any false promises with intent to influence, persuade, or induce;
“(E) Failure within a reasonable time to account for or to remit any money coming into his possession which belongs to others;
“(T) Having offered real property for sale or for lease without the knowledge and consent of the owner or his authorized agent, or on any terms other than those authorized by the owner or his authorized agent;”

We find there is credible, probative and substantial evidence that the appellant promised to return to the purchasers the deposit of funds made by them as a down payment in the event that a G. I. Loan could not be secured and that this promise induced them to sign the offer to purchase and that such offer was accepted by the seller at that time without knowledge that the offer of purchase was conditioned upon so-called G. I. financing.

The appellant attempts to excuse his conduct and his refusal to return the deposit on the ground that he was a representative only of the seller and that in securing the contract, he had earned his commission. We think this contention is untenable under the facts presented in this case as his principal, the owner, requested him to comply with the demand to return the deposit so that he could proceed to make a sale elsewhere. It was only under the threat of legal proceedings that the owner consented to the retention of the deposit by the broker after the owner had made the demand that the money be returned to the prospective purchasers.

Under this state of the record, this case comes within the rule enunciated by the Supreme Court in Church v. Wahn-Evans Co., 153 Oh St 335, the second syllabus of which is as follows:

“2. Money received from a prospective purchaser by a real estate broker, as a deposit on a contract of sale, on the express condition that if the transaction is not completed the deposit will be returned, is received by the broker in a fiduciary capacity, and his failure to return such money to the prospective purchaser, upon direction by the broker’s principal (the seller) and upon the abandonment or termination of the negotiations, constitutes a violation of the essential provisions of the Real Estate Brokers Act (§§6373-25 to 6373-51, inclusive, GC), and the surety on the bond executed by the broker in accordance therewith is liable to the prospective purchaser for damages caused by such violation.”

At page 341 of that case, Matthias, J., speaking for a unanimous Court, declared:

“The broker came into possession of the deposit while acting in a fiduciary relationship and only by reason of that relationship which imposed an obligation of good faith and fair dealing. The broker was not authorized, or permitted, to exercise the function of a real estate broker and realize the benefits to be derived therefrom otherwise than by compliance with the law which must be treated as though it were written in his bond.
“It must be concluded that the deposit procured from the plaintiff by the broker became a trust fund in the broker’s hands and when the purpose for which the plaintiff had been persuaded to entrust the funds to the broker failed, it became the broker’s duty, as trustee of that fund, under the very law by virtue of which it had been licensed to act as a broker, to return that sum to the plaintiff. That would have been the broker’s duty and obligation even in the absence of an express promise so to do.”

To the same general effect, see also Downey v. Arnonoff, 19 Oh Ap 424.

It is clear that in the present case, the broker was acting in a fiduciary relationship and, therefore, a standard of good faith, fair dealing and fidelity was required of him, both toward the buyers and his principal. The deposit secured by him became a trust fund in his hands and it was his duty to return the fund upon the demand of the buyer and the request of his principal when the purpose for which it was entrusted to him failed.

The right to engage in the business of a real estate broker is in the nature of a privilege granted by the state and controlled by the statutory provisions of the Real Estate Brokers Act. Thus a standard of conduct is prescribed which must be maintained with care and exactitude in all dealings and transactions. Failure to meet such a standard through violation of specific provisions and requirements of the Code when shown by reliable, probative and substantial evidence constitutes a breach of trust for which the licensing privilege will be revoked.

We have concluded that we cannot say that the judgment of the Court of Common Pleas, affirming the decision of the Real Estate Board of Examiners, was contrary to law or against the manifest weight of the evidence.

For the reasons stated, the judgment of the Court of Common Pleas is affirmed. Exceptions allowed. Order see journal.

KOVACHY, PJ, SKEEL, J, concur.


author: By BIRRELL, J.

text:
    McClure, Plaintiff, v. BOYLE, Defendant.
    Common Pleas Court, Trumbull County.
    No. 64781.
    Decided January 2, 1957.
    Robert E. Wentz, for plaintiff.
    Leo Luchette, for defendant.
   OPINION

By BIRRELL, J.

Plaintiff’s petition alleges that on the 31st day of May, 1955, at the March term of the Court of Common Pleas of Mercer County, Pennsylvania, he recovered a judgment against the Defendant' for the sum of $560.00 which judgment, he states, is still in full force, unreversed and unpaid. He files an exemplified transcript of the proceedings of said case in the office of the Clerk of Courts of Trumbull County, and prays that judgment may be had in Trumbull County against the Defendant for this sum. The Defendant, by his Answer, denies that any’ judgment was ever entered against him in the Court of Common Pleas of Mercer County, Pennsylvania, and alleges that the suit in Pennsylvania “was assigned to an Arbitration Board in Mercer County,” that he “at no time was afforded opportunity for a trial,” and that the alleged Pennsylvania judgment of the Plaintiff is not entitled to full faith and credit in the State of Ohio.”

The exemplification of the record from Mercer County, omitting the reference to the Docket and Judgment Entries, the dates of the various entries, service of the summons and other preliminary matters, is as follows:

“May 9, 1955, Praecipe for reference to Arbitrators filed by Roger B. Johnson, Attorney for the Plaintiff I hereby certify that I have given proper notice of the submission of this case for arbitration to all opposing counsel. Roger B. Johnson, Atty for Plff.
“Appointment of Arbitrators
“The following members of the Mercer County Bar Association are named as Arbitrators, to hear testimony, make report and render their decision after final hearing:
D. W. Patterson, Chairman
Anthony Perfilio
L. R. Rickard
“Notice to Arbtrs. 5/17/55 Wm. A. Elder, Pro.
“AND NOW, May 31, 1955, we hereby accept service of notice of our appointment as Arbitrators in the within stated case.
D. W. Patterson, Chairman
Anthony Perfilio
L. R. Rickard
“May 31, 1955, Qualification of Arbitrators filed
“Decision of Artitrators
“AND NOW, the 31day of May 1955, we the undersigned Arbitrators chosen in this case, after having been duly sworn and having heard the evidence and allegations of the parties, find in favor of the Plaintiff, Glen C. McClure and against the Defendant, William Boyle, in the amount of $560.00 and costs.
D. W. Patterson, Chairman
Anthony Perfilio
L. R. Rickard
“AND NOW, May 31, 1955, we have a notice of the filing of the within decision of Arbitrators.
Roger B. Johnson
Attorney for Plff.
Attorneys for Defendant
“AND NOW, May 31, 1955, Judgment is hereby entered in favor of the Plaintiff and against the defendant in accordance with foregoing decision of Arbitrators and the Rules of Civil Procedure.
William A. Elder, Pro.”

The State of Pennsylvania provides, among its various laws a system of arbitration (Purdon’s Pennsylvania Statutes, Title 5, consisting of 5 chapters captioned “ARBITRATION”). This system was originally enacted sometime before the year 1836, and has been amended at various times including the most recent amendment making arbitration in certain cases compulsory. The system provides for both voluntary and compulsory arbitration, for arbitration under contracts providing therefore, for the selection of arbitrators and Referees, and specifies their duties and authority. With reference to the award of the arbitrators and its effect, Sections 51, 53 and 54 (Purdon’s Penna, Statute, Title 5) are as follows:

Sec. 51 Signing and transmission of award to prothonotary. As soon as the arbitrators shall have heard the evidence and allegations of the parties, they shall proceed to determine the matters in controversy, submitted to them, and they shall make out their award, which shall be signed by all, or a majority of them, and shall transmit the same to the prothonotary, within seven days after they shall have agreed upon the same.

Sec. 53 Award to be entered of record. It shall be the duty of the prothonotary receiving such award forthwith to enter the same, of record, in the proper dockets.

Sec. 54. To have effect of judgment. Every award so entered shall have the effect of a judgment, with respect to the party against whom it is made, from the time of the entry thereof, “and shall be a lien upon his real estate, until reversed upon appeal, or satisfied according to law.”

It will be noticed that the action of the Arbitrators is not accorded the dignity of a judgment nor does the State of Pennsylvania claim that it is a judgment. At Spang v. Mattes, 253, Pa. 101, 97 Atl. 1026, the Pennsylvania Supreme Court says:

(3, 4) So far as concerns the point that no formal judgment was entered upon the award of the arbitrators, Section 24 of Act June 16, 1836 (P. L. 722) provides:

“Every award so entered shall have the effect of a judgment.”

In construing an earlier arbitration act containing practically the same language as the act of 1836, we said:

“When the award of the arbitrators was returned to the prothonotary and entered on his dociet [docket] it had the effect of a judgment.” Post v. Sweet, 8 Serg. & R. 391.

See also Ebersoll v. Krug, 3 Bin. 528, 529 and Richter v. Chamberlin, 6 Bin. 34.

In addition, the appellant is not in a position to question the fact of the judgment, since in Reading Trust Co. v. Mattes, supra, she appealed from the award in question, treating it as a final judgment, and we entered an order to this effect, “the judgment is affirmed.”

According to Blackstone’s definition “Judgments are the sentence of the law pronounced by the Court upon the matter contained in the record.” Corpus Juris, at Volume 33, page 1047, Sec. 1 of its article on Judgments, summarizing the apparent consensus of opinion of cases all over our Country, states “In its broadest sense a judgment is the decision or sentence of the law given by a court of justice or other competent tribunal as the result of proceedings noted therein.” Our Ohio Statute sets out at Chapter 2323 entitled “JUDGMENT” under TITLE XXIII “COURTS COMMON PLEAS” of §3323.01 R. C. is; “A judgment is the final determination of the rights of the parties in action.” Our Courts generally agree on the following definition quoted from the article on “Judgments” in 23 O. Jur. 3, pp. 528-0 as follows.

“The decision or sentence of the law pronounced by a court or other competent tribunal upon the matter contained in the record.”

It must be noted that judgments are rendered by Courts.

The award of the Arbitrators (as stated above) is neither made by, nor approved by. any Pennsylvania Court, although by Pennsylvania law it is granted “the effect of a judgment with respect to the party against whom it is made * * * and shall be a lien upon his real estate.” The case of Spang v. Mattes, supra, indicates that by appealing from the award of the arbitrators the Appellant is regarded by Pennsylvania Courts as becoming estopped to “question the fact (?) of the judgment.” The evidence does not indicate that the defendant in this case appealed from the award nor accepted the award in any manner. Reference to Sec. 53 Pennsylvania laws above, clearly indicates that the authority of the prothonotary extends only to the entry of the award * * * “in the proper dockets.”

A different situation exists with reference to judgments by confession. The Pennsylvania Statutes with reference thereto, authorize the prothonotary to enter judgments in such cases. Note 1 (Purdon’s Statutes Title 12 p. 127, 129 & 130). Sec. 738 Judgment on Confession;

Sec. 738 Judgment on confession. It shall be the duty of the prothonotaries, respectively, on the application of any persons willing to become parties in an amicable suit, to enter the same without the agency of an attorney, and when thereunto required, and on confession in writing, executed in presence of two or more witnesses, expressing the amount due to the plaintiff (which confession shall be filed in his office), he shall enter judgment against the defendant for the amount expressed as aforesaid, with stay of execution as may be agreed upon by the parties, and the prothonotary shall receive fifty cents for every such entry, to be paid by the defendant in the suit, and when any suit is ended, the clerk of the Court before which it was pending shall, on the request of the Plaintiff, expressed in writing, enter satisfaction thereon.

Sec. 739 Judgments on Note, bond, etc. confessing judgment. “It shall be the duty of the prothonotary of any court of record, within this commonwealth, on the application of any person, being the original holder (or assignee of such holder) of a note, bond, or other instrument of writing, in which judgment is confessed, or containing a warrant for an attorney at law, or other person, to confess judgment, to enter judgment against the person or persons who executed the same, for the amount which from the face of the instrument may appear to be due, without the agency of an attorney, or declaration filed, with such stay of execution as may be therein mentioned, for the fee of one dollar, to be paid by the defendant; particularly entering on his docket the date and tenor of the instrument of writing on which the judgment may be founded, which shall have the same force and effect as if a declaration had been filed, and judgment confessed by an attorney, or judgment obtained in open court and in term time; and the defendant shall not be compelled to pay any costs, or fee to the plaintiff’s attorney, when the judgment is entered on any instrument of writing as aforesaid.”

Under such authority such judgments entered by a prothonotary are clearly valid, and have been accorded full faith and credit by Ohio Courts. Sipes v. Whitney, 30 Oh St 69. It is also clear that the Pennsylvania legislature distinguished between the authority of the prothonotary to enter a “judgment” and his authority to enter a mere “award.”

The Constitution of the United States provides “Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other State. And the Congress may, by general laws, prescribe the manner in which such acts, records and proceedings shall be proved and the effect thereof.” (Article 4, Sec. 1, U. S. Constitution.) This provision requires that full faith and credit be given to the judicial proceedings of every other State. With reference to judicial proceedings this “full faith and credit” requirement requires the State of Ohio to accord “absolute verity” to the judgment of a sister state if it appears that the Court had jurisdiction of the parties and of the subject matter (9 O. Jur. 2d, 20, p. 677 et seq.) but this requirement extends only to the “judicial proceedings” and does not extend to matters not included within the definition of a judicial judgment (9 O. Jur. 2d, 24. p. 684).

In the record of the proceedings of the Pennsylvania Court no judgment is shown. The Courts of Ohio are therefore not bound to enter a judgment in Ohio upon what appears to be solely an award made by Arbitrators in the State of Pennsylvania, regardless of the effect which the laws of Pennsylvania may give to such award.

A similar situation is set forth and commented upon in the case of Foote v. Newell, 29 Missouri Reports, 400, wherein a Statute of Indiana provided that a bond given to obtain a stay of execution in a replevin proceedings “shall be taken as, and have the force and effect of, a judgment confessed in a court of record against the person or persons executing the same and against their estate, and execution may issue thereon accordingly.” It was held that a judgment taken in the Courts of the State of Indiana “was not entitled (in Missouri) under the Constitution of the United States and the act of Congress to full faith and credit as a judgment of the State of Indiana. The Court states, at page 405:

“The question involved in this cause is not what faith and credit shall be given to a judicial proceeding of a sister state, but whether the instrument, the foundation of the action, is a judicial proceeding within the meaning of the constitution and the law. Indeed, if this is a judicial proceeding, it is difficult to find a reason why a state may not declare any contract or undertaking, on being filed with the clerk of a court of record, a judgment by confession and having the force and effect of a judgment, and thus make it a judicial proceeding within the meaning of the federal constitution. The statute of Indiana itself did not regard the proceedings under the execution as judicial, for if it had been so regarded it would not have been necessary to declare that the bond be taken as, and have the effect of, a judgment confessed in a court of record. It is not usual for a tribunal performing judicial acts to declare the character of the acts: It is sufficiently apparent from the face of the proceedings themselves. If a state, in carrying out a policy of her own disapproved or discountenanced in other states, finds it convenient to give to proceedings having no affinity to judicial ones the force and effect of judgments, the other states are not required by the constitution to give to those acts the force and effect they may have in the state by which they were authorized.”

Under these circumstances this Court finds that no judgment has been rendered in the Mercer County Common Pleas Court, and therefore Plaintiff has failed in this Court to prove a judgment to which this Court is required to give “full faith and credit.”

With reference to the questions raised by the pleadings and briefs of the parties, the Court desires to make the following observations for the purpose of preserving the results of the Court’s study on this matter.

Defendant, a resident of Ohio, claims that he was decoyed in to the State of Pennsylvania for the purpose of serving summons upon him in that state, alleging that he had been arrested in a Justice of the Peace Court, and was called there to plead to this charge at which time the summons was served upon him in the civil case. The record of service of summons in the Exemplification indicates that service of summons in the civil case was served “on William Boyle at Ralph Gilgore, Justice of the Peace Office, Hickory Township,” which might lend some weight to this claim. However the case of Albright v. Boyd, 85 Oh St 34, holds at its first syllabus as follows:

“In an action brought in this state to recover upon a judgment rendered in another state, the defendant having been there personally served with process and having there unavailingly challenged the jurisdiction of the court over his person upon the ground that he had been fraudulently decoyed into that state for the purpose of effecting personal service upon him, will not be permitted here to challenge the validity of such service.”

And this matter is further discussed at Section 36, page 687-88 of the 9th O. Jur. 2d.

Likewise Defendant, by his Brief claims that the Court of Pennsylvania refused to grant him a Jury trial. In support of this claim he cites 1 O. Jur. 3nd, Sec. 163, page 543 which refers to the case of DeWitt v. State, 108 Oh St 513, and State v. Hershner, 118 Oh St 555. Those cases ultimately hold that the imposing of a fifty per cent penalty on an employer who fails to pay his statutory award under the Workmen’s Compensation Act, within a time so short that he is prevented from appealing to the Courts from the findings of the Industrial Commission, is unconstitutional.

Under the 1952 Amendment to the Pennsylvania Arbitration Act at Sec. 71 Purdon’s Statutes, title 5 (See article on Compulsory Arbitration in Pennsylvania, American Bar Journal, Vol. 42, page 513, June 1956) in order to appeal from the award of the arbitrators the party appealing must first repay to the County the fees of the members of the Board of Arbitration herein provided for. Such fees shall not be taxed as costs or be recoverable in any proceedings.” It seems that the Supreme Court of Pennsylvania in considering the validity of “compulsory arbitration (application of Smith, 381 Pa. 223, 112 Atl 2nd, 625) stated: “The requirement that the appellant repay to the County the fees of the arbitrators is obviously designed to serve as a break or deterrent on the taking of frivilous and unjustified appeals; if there were no such provision the defeated party would be likely to appeal in nearly all instances and the arbitration proceedings would tend to became a mere nullity and waste of time.” The public policy of the State of Ohio as set forth in the Ohio cases above cited does not approve the “break or deterrent on the taking of * * * appeals.” And naturally Ohio would not approve such a restriction. That other states are in accord with the Ohio ruling in this respect is evident from the number of cases cited at the annotation at 39 A. L. R. 1181. However, perhaps if we were dealing with a judgment rendered by a Pennsylvania Court, Ohio would have been bound to grant it full faith and credit on the theory that the Court had secured jurisdiction of both the parties and the subject matter. It does not appear to be in accord with the generally accepted rule that costs should follow the judgment, to allow a county to exact a penalty upon a litigant because he happens to lose before an arbitration board in his first inning. Silberman v. Hay, 59 Oh St 582.

On the Motion to dismiss at the close of Plaintiff’s evidence, Plaintiff’s petition may be dismissed and all costs assessed against Plaintiff. An entry may be drawn accordingly.