author: By SKEEL, PJ.

text:
    POE, Plaintiff-Appellee, v. SHEEHAN et, Defendants-Appellants, SHEEHAN et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24444.
    Decided July 2, 1958.

      Joseph M. Poe, for plaintiff-appellee.
    Arter Hadden, Wykoff & Van Duzer, for defendants-appellants.
    Hornbeck, Ritter & Victory, for certain defendants-appellees.
   OPINION

By SKEEL, PJ.

This appeal comes to this court on questions of law from a judgment entered by the Probate Court of Cuyahoga County construing certain paragraphs of the last will and testament of Sheldon M. Holmes as prayed tor in plaintiff’s petition.

The petition sets forth that the plaintiff is the successor executor of the last will and testament of Sheldon M. Holmes, now deceased, and that Edith M. Holmes was his surviving spouse who acted as the executrix of her husband’s estate from February 1, 1956, until her death on March 19, 1957. The petition further alleges that all necessary parties are before the court; that the will of Sheldon M. Holmes was probated February 1, 1956, and that the provisions of the will of Sheldon M. Holmes, with which we are here concerned, are as follows:

“Third: It is my will and I hereby direct that within the time provided by law after my decease an inventory and appraisement be made of all my estate, except the household goods, furnishings and furniture, and that within one month after the inventory has been approved and the appraisement of the real estate has become conclusive, as provided by the probate law of Ohio, my beloved wife, EDITH M. HOLMES, shall select from my real and personal estate, wherever situated, to the appraisal value of one-half my net estate, those items which shall then comprise that moiety which I give, devise and bequeath to her absolutely and in fee simply for her own exclusive use and enjoyment.
“To the other one-half of my net estate, whether the property be real or personal, or of mixed character, I give, devise, and bequeath my aforesaid spouse, should she survive me, a life estate therein. For the remainder of her natural life she shall have and enjoy the entire income therefrom without being accountable therefor to any person or court. She shall have, and I hereby specifically grant to and confer upon her undiminished by her estate for life therein, the power to bargain and sell, exchange, lease, or encumber by mortgage or pledge, any part or all of the real estate given and granted to my said wife for the term of her natural life; and such of the personal property as she may hold hereunder in like manner she may invest, reinvest, exchange, transfer and transform into other forms of property at such times, in such amounts and for such considerations as she alone may deem satisfactory.
“Fourth: Upon the death of my beloved wife, EDITH M. HOLMES, if she should survive me, I give, devise and bequeath the remainder of the moiety of my estate herein given and granted to her for the term of her natural life equally to the then living children of my daughter, Anna McGinness, to be distributed forthwith to such of them as are then of legal age; and the portions of such as are then minors, for the duration of each one’s minority, I give, devise and bequeath to my daughter, Anna McGinness, as guardian, to be held by her as such fiduciary under the laws applicable to guardians of minors either in Ohio or wherever she and her family may hereafter reside.
“Should my said wife predecease me, I then give, devise, and bequeath the entire net remainder of my estate to my daughter’s children equally, distributable presently to such as may then be of legal age; the portions of such as are then minors, for the duration of each one’s minority I give, devise and bequeath to my daughter, Anna McGinness. as guardian, to be held by her as such fiduciary under the laws applicable to guardians of minors either in Ohio or wherever she and her family may hereafter reside.”

It is alleged that the inventory and appraisal of the decedent’s estate was approved of record on March 21, 1956: that the appraisal of the property of the estate for inheritance tax purpos.es was agreed upon on May 7, 1956, and the tax determined by the court on June 8, 1956, and paid on June 28, 1956. It is further alleged that proceedings to determine Federal Estate Taxes were filed on or about March 10, 1956: that the executrix sold a parcel of real estate (3 80-acre tracts in Seneca County) at auction under the powers of the will on February 2, 1957 for $43,100, and the remaining five parcels of real estate were appraised as follows:

DESCRIPTION VALUATION VALUATION VALUATION BY FOR FOR APPRAISERS INHERITANCE FEDERAL TAX ESTATE TAX
Parcel No. 1
Ten Suite brick apartment at 10025 Detroit Avenue, Cleveland. $36,500 $46,500 $36,500
Parcel No. 2
Six-suite brick terrace, 1372-82 West. Clifton Boulevard, Lakewood, Ohio. 45.000 50,500 45,000
Parcel No. 3
Two-family frame dwelling, 2112 Belle, 14551 Athens Ave, Lakewood, Ohio, 20.000 20,000 20,000
Parcel No. 4
Two-family frame, side by side dwelling 1480-82 Lakewood Avenue, Lakewood. 17.000 17,000 17,000
Parcel No. 5
Residence at 1485 Alameda Avenue, Lakewood, Ohio. 12.000 12,000 12,000
Parcel No. 6
Farm comprised of three 80-acre parcels in Melmore. Eden Township, Seneca County, Ohio. 24,000 32,000 43,100 (cash equivalent)

It is then alleged that the personal property of the estate amounted to $61,025.00 and that after the payment of debts and taxes, there remained about $68,000. (This balance includes' the money received from the sale of the farm.) It is further alleged that the widow made her election to take under the will on May 17, 1956, and on November 27, 1956, she specifically elected to take certain shares of corporate stock of the value of $5451.63, and elected not to take the Seneca County real estate as a part of the one-half of the estate willed to her in fee simple but to sell such property under the powers of sale granted her under the provisions of the will. It is alleged that no other declaration of her intentions was made nor was any specific election under item three of. the will filed ih the Probate Court before her death.

The petitioner seeks answer to the following questions:

“1. Has the original election of the surviving spouse, Edith M. Holmes, so far established her intention to take under the will that her personal representatives can now make a selection of assets, nunc pro tenc?
“2. Because of the aforesaid action, has the guardian-designate of the three minor grandchildren, Anna McGuinness, the right to make a selection of the moiety of the residuary estate which has now passed to them?
“3. Before the distribution of the remaining assets, shall the estate of Sheldon M. Holmes be charged with the payment of real estate taxes payable in the year 1957 upon any of said parcels of real estate, and upon which ones?
“4. If the selection of their respective shares of the remaining assets cannot be made by either the personal representatives of the surviving spouse or the guardian-designate of the minor grandchildren, by what standards shall the petitioning Successor Executor be guided in apportioning the property between the interested parties hereto? •
“5. Would the stipulation that the portions for the minors be held by the guardian-designate ‘under the laws applicable to guardians of minors’ so limit the class of property to be held in guardianship that the one-half of the residuary estate distributable to the minors’ use should be first converted to cash and then paid over to the guardian?”

The case was tried upon stipulations of fact filed with the papers in the case. Such stipulations included the facts as pleaded in the petition and the additional facts that on February 8, 1957, Edith M..Holmes, as executrix, purchased insurance policies for fire and extended coverage in her name on the six family terrace at 1372-82 West Clifton and on the family dwelling at 1485 Alameda Avenue, both in Lakewood, and that she purchased like insurance in the name of the estate of Sheldon M. Holmes on the ten family apartment at 10025 Detroit Avenue, the two family dwelling at 2112 Belle Avenue and the two-family dwelling at 1480-82 Lakewood Avenue. Also on the same date, she purchased “Owners,’ Landlords’ and Tenants’ Liability Coverage,” both in her own name and that of the estate for 10025 Detroit Avenue, 1372-82 West Clifton Blvd., 2112 Belle Avenue and 1480-82 Lakewood Avenue.

The court by its journal entry of December 7, 1957, found:

“The Court further finds that the testator, Sheldon M. Holmes, died on January 14, 1956; that his will containing the foregoing provisions was admitted to probate on February 1, 1956; that the Inventory and Appraisement was filed on March 1, 1956, and was approved by this Court on March 21, 1956, thereby becoming final and conclusive; that the one month period within which Edith M. Holmes, the testator’s surviving spouse, was directed to make a selection from testator’s real and personal estate ‘to the appraisal value of one-half of my net estate’ commenced to run on March 21, 1958, and expired on April 21, 1956; that the surviving spouse made no selection of real or personal property within said period of time and that therefore no real or personal property passed to her under the first paragraph of the Third clause of the testator’s will. The Court further finds that on May 17, 1956, Edith M. Holmes, as surviving spouse, elected to take under the will. The Court further finds that the will contains no residuary provision applicable to the property referred to in the first paragraph of the Third clause: that, therefore, the testator died intestate as to one-half of his net estate and that this property passed to the persons entitled thereto under the law of descent and distribution, to wit: one-half to testator’s surviving spouse, Edith M. Holmes and one-half to testator’s daughter, Anna McGinness.
“The Court further finds that under the second paragraph of the Third clause of the will, the other one-half of testator’s net estate was given to Edith M. Holmes for life, and that under the Fourth clause of the will, said one-half of testator’s net estate upon the death of said Edith M. Holmes, passed equally to the then living children of testator’s daughter, Anna McGinness, to wit: John R. McGinness, Jr., Mary Anne McGinness, and Thomas G. McGinness; that distribution was to be made to said Anna McGinness as Guardian on behalf of any of her said children who are minors, and that said children who are minors, (sic) and that said John R. McGinness, Jr., Mary Anne McGinness and Thomas G. McGinness are all minors. * * *”

From this judgment, the appellant claims the following errors:

“1. The Probate Court erred in holding that Article III of decedent’s will contained a condition.
“2. The Probate Court erred in holding that the condition which it found in Article III had not been met.”

The basic rule to be followed in the interpretation of a will is to ascertain and give full effect to the intention of the testator as evidenced by the word structure of his will unless his expressed intention is contrary to law. Such meaning must be found from the text as it has been written and where there is any ambiguity, guidance may be had by giving consideration to the surrounding circumstances. One of the basic concepts of the law of wills is to make every reasonable effort to avoid intestacy where the decedent has expressed his wishes for the succession of his property in a properly executed will. These rules are so fundamental that the citation of authorities seems unnecessary.

We, therefore, come to a consideration of the errors claimed in this case.

The first question presented is whether or not the Probate Court Committed error in holding that the right of the widow to select as her share of the property in the estate of her husband up to one-half of its value, based on the appraised value, was limited to the exercise of such right within the period of one month from the date when the inventory and appraisal became conclusive; that is, that making the required selection within the period of one month was a condition precedent to her right to share in the estate under the first paragraph of item “Third” above quoted. We hold that such conclusion and the judgment founded thereon, as shown by the uncontroverted facts, constituted prejudicial error to the rights of the widow, and does not correctly state the wishes of the testator to be found from the terms of the will.

There is no hint in the stipulations of fact that the property involved was other than that acquired by purchase. Ancestral property is not here involved. It must follow, therefore, that the assets of the estate of the testator were the lifetime accumulation of the testator and his wife. The efforts of each, the husband and wife, contributed to its accumulation. The deceased had one daughter by a prior marriage, Anna McGinness. The plan, as clearly indicated by paragraphs or items three and four of the will, was that after appraisal, the wife was to have one-half of the property of the estate to be selected by her and the -children of the daughter of the remaining half, subject to his wife’s life estate in such property.

Where the will provided that the testator’s widow “shall” make the selection of the one-half she desires as her property within one month from a fixed date, the fact that she did not give or publish notice of the property selected by her under this provision of the will, does not revoke or make ineffective the testatmentary gift to her. Such gift was not one dependent on a condition precedent. Even though the word “shall” was used, its effect here was directory and not mandatory. Any other conclusion would be unwarranted under the circumstances of this case. If it is held that the widow’s failure to select the property she desired within the claimed limitations of time would result in such property to which she would have been entitled passing under the intestate laws of succession, while her life estate as to the remainder would be good under the will, the question must be asked as to what property is to be considered as being subject to her life estate with remainder over to the grandchildren? The widow’s selection of the property that was to pass to her would be absolutely necessary to determine what property was left to her under paragraph two of item three and item four of the will. Without such selection, it would be impossible to identify the property that would be subject to the life estate and that which the court held to pass by intestate succession. So it is clear that if the time limit placed on the widow’s selection was a condition precedent to the widow’s right to take under the will and the widow failed to act within the limitation, all of the property dealt with in item three and item four of the will would be released from the provisions of the will and pass to the next of kin as provided by law. With the complete plan of the will in mind, the testator certainly did not intend such result. Inconsequential delay beyond the period of one month in making her selection was not intended to bar the widow from her full inheritance. This must have been the court’s conclusion at the time she elected to take under the will in the presence of the court after instructions by the court or referee as provided in §2107.43 R. C., as amended, effective 10/16/53, which reads:

“* * * when the election is made in person before such judge or referee (as was done here), the judge or referee shall explain the will, the rights under such will, and the law, in the event of a refusal to take under the will.”

The time schedule contained in the court’s journal entry was that the appraisal became conclusive on March 21, 1956 and that the claimed limitation for selection by the widow under item three of the will was April 21, 1956. The transcript shows that the widow appeared personally before the court on May 17, 1956, at which time she elected to take under the will. It could not be reasonably concluded that if the widow was told by the court or the referee that her right to select one-half of the estate, under the provisions of the will, was then lost for failure to make her selection, that she would have elected, under such circumstances, to take under the will, unless, of course, she had already made such • selection.

The provision of the will, giving the right to the widow to select one-half of her husband’s estate in fee simple as her property, after appraisal, was unquestionably devised by the testator for his wife’s benefit. He gave her the right to choose between real and personal property in his estate and to select such of his real estate holdings as to her would be preferable as of the date when she would succeed to his property. This right for her benefit and the limitation of time within which to make her selection was not intended to circumscribe her right to share in his estate as set out under the first paragraph of item three of the will. The time for making the selection was directory only and we so hold.

That the widow did indicate a selection of specific property within a reasonable time under the first paragraph of item three of the will is clearly evident by the stipulations of fact. It is argued by the appellees seeking to sustain the judgment that this question, being one of fact and having been decided by the trial court against the appellant, that this court cannot disturb such finding unless it is found to be against the manifest weight of the evidence. Upon the record in this case this claim cannot be sustained: The case was tried entirely on stipulations of fact so that, the facts having been agreed upon, no question of the weight of the evidence was before the court. The Probate Court’s function was to apply the law to the facts agreed upon and the only function of this court is to determine whether the court’s conclusions of law are supported by the agreed facts.

The question of the manner in which the widow should indicate her selection, and to whom, is not provided for in the will. She was appointed by the court as executrix of her husband’s estate as directed by him in his will. There was no requirement for a public notice of an election and no other person had any immediate rights which were affected by her wish in the matter. Having elected to take under the will after the passing of the day of the supposed limitation would be some evidence that she had made the selection. The record also shows that on February 8, 1957, as executrix, she purchased fire and liability insurance on the five remaining properties. As to her home on Alameda Avenue, appraised at $12,000, and the six family terrace on West Clifton Boulevard, appraised at $45,000 ($50,000 for inheritance tax purposes), she had the policies issued in her name while the others were made out in the name of the estate. She also, on November 27, 1956, elected to take shares of stock in five corporations valued at $5451.63. It must be presumed, since no other selections are shown in evidence as represented by the record and the fact that there was no other property except cash, that she must have intended to take the balance in money It would also seem, in this connection, that the appraisal of the appraisers appointed by the court, as provided by law, to return an inventory and appraisement of the estate should be the value to be given to the terrace selected by the widow rather than the value fixed by the state for inheritance tax purposes so that the value of the specific property selected by her would be $62,451.63. The value due in money would, therefore, be approximately $38,000.

For the foregoing reasons, the judgment of the Probate Court is reversed and final judgment entered in accordance with this opinion.

HURD and KOVACHY, JJ, concur.


source: Caselaw Access Project

author: By MILLER, J.

license: Public Domain

text:
    STATE, ex rel. RICE, Relator, v. INDUSTRIAL COMMISSION, Respondent.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5643.
    Decided March 11, 1958.
    Rice, Rice & Rice, Edward Everett Rice, Jr., of Counsel, Hamilton, for relator.
    William Saxbe, Atty. Genl., John R. Barrett, Asst. Atty. Genl., Columbus, for respondent.
   OPINION

By MILLER, J.

This is an action in mandamus wherein the relator is seeking an order requiring the respondent to (1) Reconsider its order allowing the relator $750.00 as attorney’s fees; (2) Provide for the payment of the same out of the funds in respondent’s hands due to his client, Williams; and (3) That the court indicate a sum which would constitute a reasonable and equitable fee for the services of the relator as exemplified by the record made before the Industrial Commission in case No. 1715272.

The record reveals that the relator, Edward Everett Rice, is a duly licensed and practicing attorney at law specializing in claims filed before the Industrial Commission of Ohio, the respondent herein; that as such attorney he was employed to prosecute the claim of one Bird Williams for personal injuries received by him while employed by the Evening News Publishing Company which was amenable to the provisions of the Workmen’s Compensation Act; that two written contracts were entered into with Williams fixing fees. The first one was on a 20% fee basis, but after the claim was denied an appeal to the Courts became necessary, whereupon a supplemental contract was entered into fixing the fee at 33-1/3% of any amount recovered. The relator recites and the answer admits the disallowance of the claim by the District Board of Claims, the application for reconsideration, its denial, the filing of an application for a rehearing, taking proof and submitting the record to the respondent. It also admits the review of said claim and the recommendation of disallowance by the legal section of the respondent and then its subsequent allowance; that other motions were filed and denied; that a request was made to the Commission to fix fees in a reasonable amount and on a quantum meruit basis. This was fixed by the respondent at $750.00 in addition to that which had already been paid.

It is urged that the Commission abused its discretion because of the inadequacy of the amount. There can be no doubt but that much time, effort and skill were exercised by the relator, but in giving consideration to the amount of the fees, the amount of the award enters into the picture. Under the provisions of §4123.51 R. C., when the fees may be taxed as part of the costs of a legal proceeding, they are based upon a percentage of the amount of the award, but in no event shall such fee exceed $500.00. The record further reveals the award for the permanent disability was 8100.00 per month in addition to the amount that had already been allowed for temporary disability. The relator admits having received $932.00 previous to the $750.00 allowance, making a total fee of $1682.00. For the foregoing reasons we are of the opinion that the Commission did not abuse its discretion in the amount it fixed. It also should be noted that the amount allowed is only directory since we find no provision in the statute requiring the respondent to pay any fees except when legal proceedings are had and then the same shall be taxed against the unsuccessful party.

Sec. 4123.6 R. C., requires that the compensation allowed shall be paid only to the employees or their dependents; hence, the respondent is not authorized to order any part of the compensation paid to the relator for attorney fees. The relator urges that under the provisions of §4123.06 R. C., the Commission is empowered to make rules concerning the payment of fees, protect the parties against unfair fees and fix the amount in the event of a controversy in respect thereto. The respondent complied with this section when it fixed the fees, but as previously stated, had no authority to order the same deducted from the monthly payments. Sec. 4123.68 R. C.

We are referred to the case of West, Gdn. v. Levin, et al., 32 Abs 446, which differs from our case in that the guardian of the claimant, who was an incompetent person, asked the court to fix attorney fees for prosecuting a claim before the Industrial Commission. It appears that the attorneys had entered into a written contract with the claimants on a fee basis, but since he was found to be an incompetent person the contract was void. The guardian was seeking a determination of the amount to be paid out of the estate of the ward and not asking that the fees be paid by the Industrial Commission. It also appears from the cited case that the guardian had been paid the sum of $7026.76 and that there was also acquired an unpaid compensation jn the sum of $2511.60. The guardian, therefore, had funds available in his ward’s estate which could be applied to the fees earned by counsel. Clearly, under these facts counsel were entitled to a reasonable compensation for the services they had rendered.

For the foregoing reasons the writ will be denied.

PETREE, PJ, BRYANT, J, concur.


author: By THE COURT:

text:
    MICHAEL et, Plaintiff-Appellants, v. WHITE et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 5315.
    Decided February 10, 1956.
    Robins, Metcalf & Alton, Jack R. Alton, of Counsel, Columbus, for plaintiffs-appellants.
    Reid & Cox, Edward J. Cox, of Counsel, Columbus, for defendantsappellees.
    (FESS, J, of the Sixth District, sitting by assignment in the Second District.)
   OPINION

By THE COURT:

This is an appeal from a finding and judgment for defendant entered in the Municipal Court, City of Columbus. The judgment was predicated upon a finding of facts as follows:

“The court finds that the plaintiff, Charles Michael, was driving on Leonard Avenue, in Columbus, Franklin County, Ohio, while under the influence of alcohol; that he pulled to the lane next to the center of Leonard Avenue, then started to make a right turn by pulling into the right lane and thus made an attempt to make an improper right turn in that he failed to keep as near the right curb as practical, that said plaintiff had room to make his right turn next to the right curb because no cars were parked on the south side of Leonard and just west of Ohio Avenue: that the plaintiff made a sudden stop after starting to make a right turn and without giving any signal of his intention to turn or stop. By reason of the facts, court finds contributory negligence against plaintiff, Charles Michael.”

It is the claim of appellants that there is no support in the record for the finding that plaintiff, Michael, pulled to the lane next to the center of Leonard Avenue, then started to make a right turn by pulling into the right lane. The court also found that the plaintiff made a sudden stop after starting to make a right turn and it is insisted there is no support for this finding. The court further found that plaintiff, Michael, gave no signal of his intention to turn or stop. It is conceded that the evidence would support this iast finding but it is contended that such fact could not support the conclusion that it was a proximate cause of the collision between Michael and defendant.

We have carefully read the record. We are satisfied that there is either direct proof or proof warranting an inference of each and every fact found by the trial judge and that such facts supported the conclusion that they were a proximate cause of the collision and constituted contributory negligence on the part of the plaintiff, Michael.

It would serve no good purpose to extend this opinion by directing attention to the places in the record where the evidence developed the facts found by the trial judge.

We give no consideration to the question of the proof of negligence on the part of the defendant, but assume that the court did find that she was negligent or he would not have considered and passed upon the question of the contributory negligence of plaintiff, Michael.

We find no error to the prejudice of plaintiffs in the findings of fact returned by the trial judge and in the judgment entered on behalf of the defendant.

The judgment is affirmed.

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


text:
    PALMER, Plaintiff-Appellee, v. PRUNTY et, Defendants-Appellants.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5740.
    Decided February 11, 1958.
    Robert R. Shaw, Columbus, for plaintiff-appellee
    Milton L. Farber, Columbus, for defendants-appellants.
    John E. Palcich, Columbus, for W. E. Palmer, defendant-appellee.
   OPINION

By MILLER, J.

This is a law appeal from a judgment of the Common Pleas Court rendered in favor of the plaintiff-appellee for the balance due on a certain note which was given as a part of the purchase price for a place of business known as “Palmer Bargain Store.”

There is also a cross-appeal from a judgment restraining W. E. Palmer, one of the defendants, from carrying on a competing business in violation of an alleged agreement “not to interfere with ,the good name and good will of said business” or “to compete or enter into a business under the name ‘Palmer Bargain Store’ for a period of five years from the date of the execution of the agreement.”

The record reveals that Gladys A. Palmer sold the place of business to the defendants, James prunty and Ruth Prunty, and as a part of the purchase price these defendants executed a note to the plaintiff, which is the subject of this action. The balance due is admitted, but payment was refused because of the alleged breach of contract not to engage in a competing business. The original action was instituted by the payee of the note, Gladys A. Palmer.

The defendants filed an answer to the petition setting forth their purchase of the business, the agreement of the plaintiff and W. E. Palmer, her husband, to refrain from engaging in a competing-business, the alleged violation of the agreement by W. E. Palmer, who was made a party defendant, and praying for damages for breach of the contract and an order restraining the Palmers from operating a similar business in accordance with said agreement.

The court rendered judgment for the plaintiff for the amount due on the note and also made an order enjoining the defendant, W. E. Palmer, from engaging in a business similar to that set forth in the purchase agreement. The appellants are prosecuting this appeal for the reason that the court failed to award any damages to the defendants purchasers, proof of which it is urged is supported by the record. The cross-appeal is filed by W. E. Palmer, who is contending that the restraining order against him is contrary to law.

The ultimate question, therefore, presented is whether or not there was a breach of the purchase agreement, and if so, were the Pruntys entitled to any damages for the same. The trial court found that the plaintiff, Gladys A. Palmer, had committed no breach and no error is assigned to this ruling. Therefore, the remaining question is, was a breach of the contract committed by the defendant, W. E. Palmer?

The record reveals that Gladys A. and W. E. Palmer are husband and wife; that the wife owned the business which was sold, but that the same was managed by her husband. The agreement of purchase designates the wife as the seller and the Pruntys as purchasers. The bill of sale is from the wife alone. The notes and mortgage were made out to the wife and the affidavit in compliance with the sales law was made by the wife. It also appears that she had her own money in the business and the husband had no financial interest in it whatsoever.

The evidence reveals that the husband signed his name to the purchase and sale agreement, together with his wife, but it is claimed by him that it was his intention to sign only as a witness. We do not, however, consider this to be important for the reason that it definitely appears from all of the exhibits that the entire consideration for the purchase of the store moved from the purchasers to the wife and there was no consideration paid to her husband. As in all contracts, consideration is one of the essential elements necessary in order to create a .valid contract. In Lange v. Werk, 2 Oh St 520, the court laid down the rule in regard to restraint of trade agreements in the syllabus as follows:

“All contracts in general restraint of trade are opposed to public policy and void; and those in partial restraint are also illegal, except when founded upon a valuable consideration, and when good reasons appear for entering into the contract.
“Before such a contract can be enforced, it must appear from the pleadings and proofs: 1. That the restraint is partial; 2. Founded upon a valuable consideration; and, 3. That the contract’ is reasonable and not oppressive.”

See also, 11 O. Jur. 2d, 343, Sec. 114, and cases noted, all of which support the rule of law announced in the case of Lange v. Werk, supra.

We note that counsel for the appellants relies upon the case of Empson v. Bissinger, 8 O. Dec. Rep. 629, which we have examined and find the facts in this case to be entirely different from those in the case at bar. In the cited case the husband had entered into á contract for the sale of his business and agreed not to engage directly or indirectly in the same business for a term of years. Thereafter, the seller’s wife conducted a similar business and employed the husband in the conduct of her business. In this case the court enjoined the husband from assisting the wife, and the wife from employing the husband or selling goods made by him since such employment was but a subterfuge for the carrying on of such business by him. It will be noted also, that in this case the court referred to Lange v. Werk, supra, and said at page 630:

“Before, then, such a contract can be enforced, it must appear from the pleadings and proof, first, that the restraint is partial; second, that it is founded upon a valuable consideration; * * *.”

It is our conclusion that W. E. Palmer never owned the business, deceived no consideration from its sale and therefore was not a party to an enforceable contract preventing his entry into a business of his own choosing. Therefore, the court erred in granting the restraining order against him.

The judgment against W. E. Palmer will be reversed and the action dismissed as to him.

We find no prejudicial error in the judgment for the balance due on the note in favor of Gladys A. Palmer, and the same will be affirmed.

PETREE, PJ, BRYANT, J, concur.


author: By LEIS, J.:

text:
    HARRISON, Plaintiff, v. SCANLON, Admr., Defendants.
    Common Pleas Court, Hamilton County.
    No. A-156727.
    Decided January 6, 1958.
    Phillip R. Finkelmeier, for plaintiff.
    Myron S. Rudd, for defendant.
   OPINION

By LEIS, J.:

This action is presently before the Court on a motion to dismiss filed by the Administrator of the Bureau of Workmen’s Compensation.

Plaintiff Harrison was injured in the course of his ■ employment on April 22, 1949. A claim for • workmen’s compensation was filed by Harrison on May 19, 1949, and this claim was allowed. Thereafter, on June 18, 1956. plaintiff filed application for additional compensation as a result of the prior injury sustained on April 22, 1949. The Deputy Administrator and the Regional Board of Review both disallowed this supplemental claim on the grounds that the application was not filed within two years of the date of injury. (Sec. 4123.84 R. C.) The order of the Regional Board of Review was mailed to the plaintiff on October 30, 1956. No appeal was taken from the decision of the Regional Board of Review to the Industrial Commission. On December 28, 1956, within the statutory limit set forth in §4123.519 R. C., plaintiff filed this instant action in the Court of Common Pleas as an appeal from the decision of the Regional Board of Review.

With the merits of the ruling of the Regional Board of Review we are not now concerned. Defendant’s motion to dismiss raises but one single issue to be determined by the Court: May the claimant-plaintiff appeal directly to the Court of Common Pleas from the adverse ruling of the Regional Board of Review without first taking an appeal to the Industrial Commission?

Counsel for plaintiff would answer this in the affirmative, citing §4121.121 (I) R. C., that * * *the acts of a Regional Board of Review are acts of the Commission * * *. Counsel for defendant Administrator contends that an appeal to the Industrial Commission is a condition precedent to the bringing of such an action in the Court of Common Pleas unless plaintiff brings himself within the specific exception of §4123.519 R. C., allowing a direct appeal when the Commission refuses to permit an appeal to itself, and further contends that such a situation does not exist here.

Counsel for defendant raises a most serious question, one which is aimed directly at the heart of the Court’s jurisdiction, for if the direct appeal taken by plaintiff is invalid no jurisdiction vests within this court and the proceedings would be utterly void. The rights conferred under workmen’s compensation are purely statutory, in nature, and there must be complete compliance with these statutes before a court can hear and determine the cause and grant the relief prayed for.

It is well to examine the purposes of workmen’s compensation and the circumstances surrounding this labor legislation. Art. II, Section 35, Ohio Constitution; specifically authorizes the passing of laws establishing a state fund to be created by compulsory contribution by employers, ' administered by the State, determining the terms and conditions upon which payment shall be made for the purpose of providing compensation to workmen and their dependents for death, injuries, or occupational disease, occasioned in the course of such workmen’s employment. This constitutional provision became effective in 1924, its predecessor being a constitutional amendment adopted in 1912.

As can be seen from the effective date of this constitutional provision, workmen’s compensation legislation is of fairly recent origin. The first workmen’s compensation law in Ohio was enacted June 15, 1911. (Industrial Commission v. Brown, 92 Oh St 399.) Since that time the scope of workmen’s compensation has been broadened, and the statutes with which we are concerned here were made effective in October 1955.

28 R. C. L. 712, et seq., contains a discussion of the nature, purpose and scope of workmen’s compensation statutes. A more specific discussion can be found in 42 O. Jur. 572, et seq., which embraces the definition, purpose and history of workmen’s compensation. Section 1 at page 572 reads in part:

“ ‘Workmen’s compensation’ is a term applied to a plan or system, of comparatively recent origin and development, for providing compensation for loss resulting from the disablement or death of workmen through industrial accident, casualty, or disease, the distinctive features of which are (1) that the right to compensation is based generally upon the relation of the injury or disease to the employment, regardless of any element of negligence, and (2) is determined in the first instance by an administrative board by a summary method of procedure, (3) in accordance with a definite schedule based upon the nature, extent, and consequences of the injury, and the workman’s wages. Workmen’s compensation legislation is distinguished from another class of legislation generally known as the 'employers’ liability’ statutes, which, while broadening and extending the employee’s rights with respect to the recovery of compensation for injuries, still leave the right of recovery dependent upon the fault of the employer.
“The Workmen’s Compensation Act of Ohio was originally enacted in 1911, following the submission of a report by a special commission appointed by the governor pursuant to legislative authority. This report was prepared after an exhaustive research into industrial conditions in many countries and an examination of laws enacted for the purpose of securing an improvement in such conditions. The conclusions of the commission were, briefly and substantially, that the common-law system of dealing with accidents in industrial pursuits was wholly unsound, that there was an intelligent and widespread public, sentiment for its modification and improvement, and that such modification and improvement were required for the public welfare; that there was enormous waste under the existing system; that the action for personal injuries by employee against employer no longer furnished a real and practical remedy; that it annoyed and harassed both and did not meet the economic and social problems arising out of modern industrialism. It was said of the original enactment that it was an effort to answer in some degree the requirements of conditions which have been produced in an age of invention and momentous change. The purpose of the law is to require as a matter of justice that injuries to workmen sustained in the course of their employment shall be regarded as a charge upon the business in which they are engaged, that compensation be made therefor, and to provide a speedy and inexpensive remedy as a substitute for previous unsatisfactory methods.”

With this background in mind, the Court turns to consider now the propriety of the direct appeal from the regional board of review to the court, of common pleas.

Sec. 4123.519 R. C., allows an appeal from the industrial commission to the court of common pleas and further states that “* * * like appeal may be taken from a decision of a regional board from which the commission has refused to permit an appeal to the commission.” Such a condition that the commission has refused to permit an appeal does not exist here.

Sec. 4i2.i.i21 (I) R. C., reads that—

“* * * the acts of a regional board of review are acts of the commission unless modified to set aside under the provision of Chapter 4123 R. C.

Does any section in Chapter 4123 R. C., modify or set aside §4121.121 (I) R. C.? The Court has examined Chapter 4x23 R. C., and finds no section which categorically modifies or sets aside this provision. Nor doés the Court believe that any section impliedly abates this section so as to nullify the provision that says the acts of the regional board of review are the acts of the commission.

Indeed, the second last paragraph of §4125.516 R. C., says:

“The decision of a regional board of review shall be the decision of the commission unless the commission upon application of the administrator, the claimant or the employer, made within twenty days after the date of mailing of the decision of the regional board of review allows an appeal to the commission.”

This section strengthens the position that the legislature intended to allow a direct appeal to the court of common pleas from the regional board of review. In interpreting these statutes our prime object is to reach the intent of the legislature. 37 O. Jur. 480.

“It is established that the act (Workmen’s Compensation), in view of its remedial character is to be construed liberally.” See 42 O. Jur. 578, and cases cited thereunder.

Since §4123.519 R. C., allows an appeal to the court of common pleas from a decision of the Industrial Commission, and since §4121.121 (I) R. C., states that, the act of the regional board of review is the act of the industrial commission, the claimant may appeal directly from the ruling of the regional board of review.

The Court believes that a direct appeal from an adverse ruling of the regional board of review to the court of common pleas, by-passing the additional appellate step to the industrial commission, is proper and v/as within the contemplation of the legislature in enacting these measures. Such a ruling by this Court is in harmony with the intent and spirit of the Workmen’s Compensation Act.

Industrial Commission v. Flynn, 129 Oh St 220 at page 226.

Defendant’s motion to dismiss is overruled.

Please present your entry accordingly.

      . See Ind. Comm. v. Ramsey, 119 O. S. 497, and Ind. Comm. v. Weigand, 128 O. S. 463. Neither case is determinative of the issue here; however, they both discuss the fact that the jurisdiction of the court of common Pleas over claims upon the workmen’s compensation fund is wholly statutory. Counsel for defendant relies on the Ramsey case as authority for his position, but the Ramsey case was decided under the old law and is not applicable here.


author: By LEACH, J.

text:
    KLINGBEIL et, Appellants, v. BOARD OF LIQUOR CONTROL, Appellee.
    Common Pleas Court, Franklin County.
    No. 193925.
    Decided February 18, 1957.
    John T. Feighan, Cincinnati, for appellants.
    William Saxbe, Atty. Genl., S. Noel Melvin, Asst. Atty. Genl., for appellee.
   OPINION

By LEACH, J.

■ HEARD ON APPEAL FROM ORDER OF BOARD OF LIQUOR CONTROL — AFFIRMED.

This is an appeal from an order of the Board of Liquor Control, suspending the appellants’ Class C-2, D-l, D-2, and D-3 Permits for a period of seven days. The charge against appellants was that they did sell and permit to be consumed in and upon the permit premises intoxicating liquor on a Sunday. The evidence before the Board consisted solely- of the testimony of an inspector of the Department of Liquor Control, a stipulation that if two other inspectors were called, their testimony would be the same, and the admission into evidence by agreement of certain exhibits including chemical report showing an analysis of a liquid confiscated by the inspectors on the day in question. No testimony was introduced on behalf of the appellant.

It appears from the evidence that three inspectors went to the appellants' permit premises on Sunday, June 12, 1955, about 12:50 in the afternoon. The front door was locked. After knocking on the back door which had a screen door which was hooked, Mrs. Klingbeil came to the door. The inspectors asked if they could be admitted and purchase a drink and were refused admission. They immediately identified themselves and grabbed hold of the screen door to pull it open. Mrs. Klingbeil left the door, went into the premises and was heard to make a statement about drinking up. The inspectors forced their way into the permit premises where they found five persons. They confiscated the glass containing a liquid from one person who was attempting to consume the remaining portion of the liquid. This glass contained ice as well as the liquid. The chemical analysis of this liquid, admitted by agreement,' showed that it contained 3.20% alcohol by volume and 2.53% alcohol by weight. The report also states:

“Presence of ethyl alcohol was established by positive Iodoform Test. Contents of this bottle have the organoleptic properties of ethyl alcohol mix.”

The chief contention made in the brief on behalf of the appellants is that intoxicating liquor is defined by §4301.01 (a) R. C., as containing more than 3.2% of alcohol by weight, whereas the chemical analysis herein showed a 2.53% alcohol by weight; that the appellants had a D-1 permit which would authorize them to,sell 3.2% beer on Sunday.

Weighing the evidence as we are required to do, under the case of Andrews v. Board of Liquor Control, 164 Oh St 275, we conclude that the liquid in question containing properties of ethyl alcohol mix, was not 3.2 beer. We believe it to be common knowledge that when whiskey is diluted by water or other mixes, the volume and proportionate weight of the alcohol will be diluted by the amount of mix used. It will be further diluted, of course, by melting ice. We agree with the contention of counsel for the appellee, that a permit holder is not allowed to serve intoxicating liquor on Sunday even if it is diluted to a point where it tests under 3.2% alcohol by weight.

Appellants also contend that there is no evidence in the Record that they did sell or permit intoxicating liquors to be consumed as forbidden by the provisions of §4301.22 R. C., and Regulation 49 of the Board of Liquor Control.' Insofar as that claim is concerned, we adopt the conclusion which we reached in the case of B. P. O. of Elks, Cincinnati Lodge No. 5 v. Board of Liquor Control, No. 194,568, issued this day.

We find, therefore, that the order of the Board of Liquor Control is supported by reliable, probative and substantial evidence and the same is affirmed. Entry may be prepared accordingly.


author: By THE COURT.

text:
    KLINGBEIL et, Plaintiffs-Appellants, v. BOARD OF LIQUOR CONTROL, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5662.
    Decided October 7, 1957.
    John T. Feighan, Jr., Willis T. Barber, Cleveland, for plaintiffs-appellants.
    William Saxbe, Atty. Genl., S. Noel Melvin and David L. Zeigler, Asst. Attys. Genl., Columbus, for defendant-appellee.
    (HORNBECK, J, of the Second District, sitting by assignment in the Tenth District.)
   OPINION

By THE COURT.

We have examined the record in this case and considered the assignments of error, briefs and oral arguments of counsel and are of the opinion that none of the assigned errors are well taken.

Judge Leach, in a well-considered opinion, reviewed the legal questions presented and, in our opinion, came to the proper conclusion, that the order of the Board of Liquor Control was supported by reliable, probative and substantial evidence and is in accordance with law. The judge of the Common Pleas Court had a right to draw the conclusions he did with reference to the chemical analysis and the presence of ethyl alcohol.

That circumstantial evidence may permit reasonable inferences and conclusions is sound law. See Ross, etc. v. Board of Liquor Control, 72 Abs 415, headnotes 1 and 2; also, Abdoney, etc. v. Board of Liquor Control, 72 Abs 513, headnote 2.

We adopt the opinion of Judge Leach and affirm the judgment.

Judgment affirmed.

PETREE, PJ, MILLER, J, concur. ,

HORNBECK, J, dissents.


text:
    SINCLAIR et, Plaintiffs-Appellants, v. LAKEWOOD (City) et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24522.
    Decided June 12, 1958.

      Van Aken, Whiting, Arnold & Nash, Du Laurence & Du Laurence, Bulkley, Butler, Rini & Schweid, for plaintiffs-appellants.
    George E. Fedor, for defendants-appellees.
    John T. Corrigan, Pros. Atty., Saul S. Danaceau, Asst. Pros. Atty., for Board of Elections, Cuyahoga County.
   OPINION

By SKEEL, PJ.

This appeal comes to this court from a judgment in favor of all defendants entered by the Court of Common Pleas of Cuyahoga County after the plaintiffs refused to plead further when a demurrer to plaintiffs’ petition had been sustained by the court on the ground that the petition did not state a cause of action.

The action is one seeking to enjoin the City of Lakewood and the Board of Elections of the County of Cuyahoga from presenting to the electors of the city a proposed amendment to its charter authorizing the Council by ordinance, without a vote of the people, to levy a tax on the taxable property of Lakewood in addition to all taxes authorized by the charter and the ten mill limitation of the Constitution. The proceeds of the tax are to be used to provide needed monies for the relief and pension funds for members of the police and fire departments of said city.

The allegations of the petition state that the City of Lakewood is a charter city under the provisions of the Constitution and Laws of Ohio; that the City Council of Lakewood, by ordinance, and under the authority of and as required by the laws of this state, has created and now maintains separate firemen and police relief and pension funds. On February 3, 1958, an emergency ordinance was passed by the Council which was approved by the Mayor on February 4, 1958, authorizing the submission of a proposed amendment to its charter to the voters of the city. The proposed amendment is set out in the petition which, in brief, is to authorize the City Council, without a vote of the people, to levy annually beyond the constitutional limitations of ten mills and other tax authority limitations contained in the charter of the City of Lakewood, a tax by ordinance of the Council of not more'than .5 mill on all the taxable property of the city to provide necessary funds, if needed, for the payment of benefits and pensions to firemen and their dependents as provided by law. A like provision is contained therein to provide funds, if needed, for the police relief and pension fund.

It is further alleged that tax levies made outside the ten mill limitation must be submitted to the voters at a November Election and cannot be authorized to extend beyond a period of five years and must contain a statement of the specific purpose for which the proceeds of the levy are to be used and that the ordinance here involved, seeking to amend the charter of the City of Lakewood, violates each of these requirements. It is also alleged that denominating the proposed levy as an amendment to the Charter of the City does not permit the city to circumvent statutory requirements in presenting the question of authority to assess a levy exceeding the ten mill limitation to- the voters. It is also alleged that the statutes directing the creation of firemen and police pension funds provide the manner in which they are to be financed and that the proposed charter amendment contravenes such statutory provisions. It is alleged that public funds will be illegally expended in presenting the charter amendment whereby the taxpayers will suffer an irreparable loss unless the defendants are enjoined from proceeding.

It should be noted that since the argument of this case on the merits, the election has been held and the voters of Lakewood voted in favor- of the amendment by a vote of about three to one. We are proceeding, however, on the theory that the status of the case is as of the date of the notice of appeal and the question of the sufficiency of the allegations of the petition to state a cause of action is still before us and is not affected by the favorable vote of the people on the amendment.

There is no question here but that all procedural steps, as required by law, and the City Charter of Lakewood, were taken to present a proposed amendment of the charter to the voters of the City of Lakewood. The questions of law presented by the appellant are as follows:

1. May a charter city accomplish under the guise of a charter amendment something which it is specifically prohibited from doing by statute?

2. Do the provisions of §§741.09 and 741.40 R. C., constitute the exclusive method for financing police and fire pension funds?

3. Is it proper to provide in a charter amendment that council must levy a certain rate of tax or portion thereof in perpetuity?

There can be no question but that the legislature has spelled out a way to finance relief and pension funds for firemen and policemen beyond the funds assessed against members and to be assessed as taxes and other income in Chapter 741 R. C. Sec. 741.09 R. C., in part, provides:

“If at any time the moneys to the credit of the fund are not sufficient to meet current relief and pension payments, the legislative authority of the municipal corporation may appropriate, from the general fund of the municipal corporation to the firemen’s relief and pension fund, sufficient money to meet such payments.”

Sec. 741.40 R. C., contains a like provision for the police relief and pension fund. It should be noted, however, that under these sections of the Revised Code the right of the City Council to finance firemen and policemen relief and pension funds, in part, and when found necessary, out of the general funds of the city is permissive and not mandatory. A member of the fund could not require the Council by action to appropriate money out of the general funds of the city to enable the trustees of the funds to meet their monthly obligations. Such an action would necessarily attempt to control the exercise of the Council’s discretion and for that reason would fail. While the state law requires a municipal corporation to organize, finance and administer firemen and police relief and pension funds, the collection of the funds necessary to meet the obligations thereof is a local matter, the same as is true of the organization and number of members to be employed by such departments and the compensation to be paid to such personnel. If, therefore, there are other avenues constitutionally provided for to accomplish the purpose intended, the legislative branch of the government of the City of Lakewood is free to make such choice as it deems desirable.

Art. XVIII, Ohio Constitution, provides for home rule by Municipal Corporations through the adoption of a Charter. Sec. 7 of Art. XVIII provides:

“Any municipality may frame and adopt or amend a charter for its government and may, subject to the provisions of section 3 of this article, exercise thereunder all powers of local self-government.”

Section 3 of the same article is as follows:

“Municipalities shall have authority to exercise all powers of local self-government and to adopt and- enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”

The power to amend the charter of a city as provided in Section 9, Art. XVIII, Ohio Constitution, is as follows:

“Amendments to any charter framed and adopted as herein provided may be submitted to the electors of a municipality by a two-thirds vote of the legislative authority thereof, and, upon petitions signed by ten per centum of the electors of the municipality setting forth any such proposed amendment, shall be submitted by such legislative authority. The submission of proposed amendments to the electors shall be governed by the requirements of section 8 as to the submission of the question of choosing a charter commission; * * *”

That part of Section 8, referred to in Section 9, reads:

“* * * The ordinance providing for the submission of such question shall require that it be submitted to the electors at the next regular municipal election if one shall occur not less than sixty nor more than one hundred and twenty days after its passage; otherwise it shall provide for the submission of the question at a special election to be called and held within the time aforesaid * * *”

The right of a city to be governed, in financing its local affairs, by the provisions of a charter and amendments thereto and the manner of the adoption and amendment to a charter is here clearly set out. The point to be stressed is the amendment to a charter does not have to be voted on at the regular November Election.

The power to levy taxes and the limitations circumscribing such power is contained in Article XII, Section 2, Ohio Constitution, providing, in part, as follows:

“No property, taxed according to value, shall be so taxed in excess of one per cent of its true value in money for all state and local purposes,but laws may be passed authorizing additional taxes to be levied outside of such limitation, either when approved by at least a majority of the electors of the taxing district voting on such proposition, or when provided for by the charter of a municipal corporation. * * *” (Emphasis added.)

The power of the legislative branch of a municipal corporation, by enacting proper legislation, directing a tax levy for the current expenses of the corporation within the limits of its charter authorizing such action (but in excess of the ten mill limitation) without a vote of the people, comes clearly within the foregoing section of the Constitution. The City of Lakewood has used this method of financing its municipal activities since the enactment of Sec. 29 of Art. 14 of the present charter. This section provides:

“Taxes may be levied without a vote of the people for the current operating expenses of the City during the year 1949 and each calendar year thereafter upon the tax duplicates for the year 1948 and each calendar year thereafter, but no such tax shall be levied at a rate exceeding by more than five and two tenths (5.2) mills, the rate for such purposes within the constitutional limitation allocated to the City on the 1938 tax duplicate. Except as above stated, all power to tax shall be as defined and limited by the Constitution and Statutes of the State of Ohio.”

The amendment here being considered does not provide authority for assessing a tax levy against the taxable property of the citizens of Lakewood. Councilmanic action is regarded as a necessary prerequisite. Its provisions require the exercise of the discretion, of the City Council of Lakewood in determining what, if any, amount is needed to meet the lawful claims of members of the safety department and their dependents followed by the proper passage of an ordinance or resolution directing the levy of a tax “in the manner provided for the making of other municipal levies: * * V’ We hold that the proposal here being considered was, in fact, one to amend the Charter of the City of Lakewood and not an attempt to present to the voters a tax levy for municipal purposes and as such, met all the requirements of the Constitution as to subject matter and in the manner of its presentation to the voters.

Some claim is made that the provisions of §5705.18 R. C., require that the presentation of the question here to be determined by the voters must be presented at a November Election. That part of the section relied on is as follows: '

“Secs. 5705.02 and 5705.32 R. C., do not apply to the tax levies of any municipal corporation which, by its charter or amendment thereto, provides for a limitation of the total tax rate which may be levied without a vote of the people for all the purposes of the municipal, corporation, or for the current operating expenses thereof. Said charter or charter amendment may also provide for the levying of taxes by said legislative authority in excess of said charter limitation upon approval by the majority of the electors of said municipal corporation voting thereon at a November election.”

This section provided for submitting a tax assessment that exceeds the charter limitations to the voters for approval. Such question must be submitted at a November Election. No such restriction can be imposed when the question presented for the adoption of the voters is a charter amendment. The procedure in the latter case is controlled by Art. XVIII, Sec. 8 and 9, Ohio Constitution.

We must conclude that the ruling of the trial court on the defendants’ demurrer to the plaintiffs’ petition was according to law and the judgment for the defendants is, therefore, affirmed.

HURD and KOVACHY, JJ, concur.


text:
    STATE, ex rel. KENDRICK, Plaintiff-Relator, v. THORMYER et, Defendants-Respondents.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5790.
    Decided July 1, 1958.
    Donald H. Tishman Columbus, for plaintiff-relator.
    William Saxbe, Atty. Genl., Hugh A. Sherer, Chief Counsel, Walter M. Shea, Asst. Atty. Genl., Columbus, for defendants-respondents.
   OPINION

By MILLER, J.

This is a motion for a judgment on the pleadings and stipulated facts. The action is one in mandamus wherein the relator, Britton Kendrick, is seeking an order reinstating and restoring him to his former classified position as Right of Way Agent IV, Division 8, Right of Way, Department of Highways, to which he was regularly appointed on August 5, 1957, by the respondent, George J. Thormyer.

The petition alleges further that the removal order was issued as a matter of discipline and for a period of thirty days; that it was signed “George J. Thormyer, Acting Director, Department of Highways,” but who

“had no personal knowledge of any act by the relator as of August 5, 1957; that defendant-respondent Thormyer had no knowledge on August 5, 1957 of the aforementioned letter to relator allegedly from defendant-respondent Thormyer; that defendant-respondent Thormyer did not personally sign the aforementioned letter to relator which letter bears the purported signature of defendant-respondent Thormyer; and that defendant-respondent Thormyer had no knowledge on August 5, 1957 that his name was being signed to the aforementioned letter addressed to the relator.”

The answer admits the capacity of the respondent but denies that the suspension was wrongful. By agreement of the parties the following facts have been stipulated:

(a) The plaintiff-relator was an employee of the Ohio Department of Highways on August 5, 1957 and had been employed since December 30, 1953.

(b) The plaintiff-relator was sent a letter of suspension allegedly from defendant George Thormyer on August 5, 1957, effective August 1, 1957.

(c) Defendant George Thormyer had no knowledge that this letter was being sent to the plaintiff.

(d) Defendant George Thormyer had no knowledge of any action of the plaintiff.

(e) Defendant George Thormyer authorized Fred G. Reiners to sign his name to all matters pertaining to Civil Service.

Counsel for the relator in support of the motion urges that the power to suspend is vested solely in the appointing authority, Thormyer as Acting Director of Highways, citing §143.26 R. C.:

“* * * In all such cases of reduction, layoff, or suspension of an employee, whether appointed for a definite term or otherwise, the appointing authority shall furnish such employee with a copy of the order of layoff, reduction, or suspension, and his reasons for the same, and give such employee a reasonable time in which to make and file an explanation. Such order together with the explanation, if any. of the employee shall be filed with the commission. In case the order applies to the chief of police or chief of a fire department or any member of a police or fire department of a city, the commission shall conduct a hearing following the filing of the order and explanation, to determine the sufficiency of the cause of the order. Secs. 143.01 to 143.48, inclusive, R. C., do not limit the power of an appointing officer to suspend without pay, for purposes of discipline, an employee for a reasonable period, not exceeding thirty days, excepting that in the- case of the chief of police or chief of a fire department or any member of a police or fire department of a city, the suspension shall be made in the manner and subject to the right of appeal as provided in this section. Successive suspensions shall not be allowed, and this section does not apply to temporary and exceptional appointments made under the authority of §143.33 R. C.”

The question presented is whether or not the suspension was by Thormyer, who had no personal knowledge of the transaction, even though his name appeared on the letter to the relator, which in fact was signed by his alleged authorized agent, Fred G. Reiners. Now, if there had been a proper delegation of authority to Reiners, clearly, the suspension order would have been that of Thormyer, but it is our opinion that such powers may not be delegated for the reason that the authority imposed upon Thormyer involved personal judgment or discretion. We are supported in our conclusion by 3 O. Jur. 3d, 134, which says:

“It is a well-established general rule that when authority delegated to an agent involves personal trust or confidence reposed in the agent, and especially when the exercise of that delegated authority involves personal judgment, skill, or discretion, such authority cannot be delegated by the agent to another as subagent to represent the principal, unless the principal has given express authority to the agent to delegate the authority conferred upon him. Ordinarily authority to conduct a transaction does not include authority to delegate the performance of the acts incidental to that transaction which involve the agent’s discretion or skill, unless it is otherwise agreed as between the principal and the agent.”

And in 9 O. Jur. 3d, 430, it is said:

“Where the whole power of appointment to, and removal or suspension from, a particular position rests in one officer, an order of suspension issued by another officer is absolutely void and of no effect. An action for wrongful suspension of a civil service employee must be brought against the employing authority who made the actual suspension and not against a supervisor who caused the suspension.”

In our case the sole power of appointment was in Thormyer who also possessed the sole power of suspension or removal under §143.36 R. C. Counsel for the respondents urge that the relator has an adequate remedy at law by way of appeal, citing §143.07 R. C., and therefore mandamus is not the proper remedy. However, §143.36 R. C., clearly provides:

“* * * Secs. 143.01 to 143.48, inclusive, R. C., do not limit the power of an appointing officer to suspend without pay, for purposes of discipline, an employee for a reasonable period, not exceeding thirty days, excepting * * *.” (Exception not applicable.)

It therefore appears that there is no limitation upon the appointing authority to suspend the relator for a period of thirty days for disciplinary purposes and no appeal may be had to the Civil Service Commission under §143.07 (F) R. C. See also 9 O. Jur. 3d, 449, Section 115.

For the foregoing reasons we hold that the order of suspension was void and since the relator has no adequate remedy at law the writ of mandamus will be allowed in accordance with the prayer of the petition.

PETREE, PJ, BRYANT, J, concur.


author: By STEVENS, J.

text:
    FIRST BANCREDIT CORP., Plaintiff-Appellee, v. YANOWSKY et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24092.
    Decided May 29, 1957.
    James E. Paduano, for plaintiff-appellee.
    Dachman & Dachman, for defendants-appellants.
    (HUNSICKER, PJ, DOYLE and STEVENS, JJ, of the Ninth District, sitting by designation in the Eighth District.)
   OPINION

By STEVENS, J.

This is an appeal on questions of law from a judgment of the Municipal Court of Cleveland overruling a motion to vacate a judgment against defendants entered by confession.

The record discloses that the petition filed herein seeks the recovery of $365.76 with interest at 6% from February 13, 1956. The answer filed on behalf of defendants states: “By virtue of the warrant of attorney annexed to and mentioned in the foregoing petition, I, an attorney at law * * * do hereby * * * confess a judgment in favor of said plaintiff, against said defendant for the sum of $378.57 * * .” The instrument attached to the petition is titled “Chattel Mortgage,” and contains no warrant of attorney, authorizing confession of judgment against defendants.

Sec. 2309.31 R. C., provides:

“When the action or counterclaim is founded on an account or on a written instrument as evidence of indebtedness, a copy thereof must be attached to and filed with the pleading. If not so attached and filed, the reason for the omission must be stated in the pleading."

Sec. 2323.13 R. C., provides:

“An attorney who confesses judgment in a case, at the time of making such confession, must produce the warrant of attorney for making it to the court before which he makes the confession; and the original or a copy of the warrant shall be filed with the clerk.”

There is, in the record before us, no warrant of attorney attached to and filed with the petition, nor does the record disclose that at the time of making such confession, the attorney so making such confession, produced to the court “the warrant of attorney for making it,” or that the original or a copy of the warrant was filed with the clerk, as required by §2323.13 R. C.

No service having been obtained upon the defendants, and there being no authority for the confession of judgment against them, the court was without jurisdiction of the persons of defendants, and hence was disenabled to properly enter judgment against them.

The judgment herein is reversed as contrary to law, and the cause remanded to the Municipal Court for further proceedings according to law.

Reversed and remanded.

HUNSICKER, PJ, DOYLE, J, concur.


author: By PETREE, PJ.

text:
    COLUMBUS (City), Plaintiff-Appellee, v. EDMISTER, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5908.
    Decided May 27, 1958.
    Russell Leach, City Atty., Bernard T. Chupka, City Pros., Paul A. Scott Asst. City Atty., Columbus, for plaintiff-appellee.
    Isadore Margulis, Columbus, for defendant-appellant.
   OPINION

By PETREE, PJ.

This is a law appeal from a judgment of the Municipal Court of Columbus. Ohio.

Defendant, appellant herein, sets forth five assignments of error. The fifth assignment of error relates to corpus delicti. There was ample evidence to establish the corpus delicti far and beyond the rule set out in State v. Maranda, 94 Oh St 364.

Assignment of error No. 1, relating to the motions made by the appellant for judgment at the close of the evidence of plaintiff (appellee herein) and at the close of all the evidence, is not well taken in view of the record in this case.

Assignments of error Nos. 2 and 4 should likewise be overruled in view of the evidence in the record.

The only question remaining is that presented by the third assignment of error, which reads as follows:

“3. The verdict and judgment of the Municipal Court of Columbus, Ohio, conflicts with the defendant’s Constitutional rights, guaranteed to him by the Constitution of Ohio and the United States.”

In connection with this question, §2945.49 R. C., should be considered. It reads as follows:

“Testimony taken at an examination or a preliminary hearing at which the defendant is present, or at a former trial of the cause, or taken by deposition at the instance of the defendant or the state, may be used whenever the witness giving such testimony dies or cannot for any reason be produced at the trial, or whenever the witness has, since giving such testimony, become incapacitated to testify. If such former testimony is contained within a bill of exceptions, or authenticated transcript of such testimony, it shall be proven by the bill of exceptions, or transcript, otherwise by other testimony.”

The court, in this case, permitted the official court reporter to read the testimony of one Harriet Ann Wingo, which testimony had been taken at a former trial of this appellant, at which .former trial a jury had failed to agree on a verdict. Harriet Wingo was not present at the trial on January 9, 1958, but she had testified early in November, 1957, at the former trial. The record satisfactorily shows that the officer went to Licking County and located a Mrs. Case, mother of Mrs. Wingo, and learned from her that the witness had enlisted in the Women’s Air Force and was stationed for basic training in Texas. Under those conditions, it is our opinion that the court properly admitted this testimony which had been produced in the former trial and with cross-examination afforded.

In our opinion Mitchell v. State 40 Oh Ap 367, is not applicable. In the Mitchell case the witness was only out of the jurisdiction of the court for a short vacation, and the court said a week’s postponement of the triaj would in all probability have enabled the state to'produce the witness at the trial. Here we have no assurance that the witness ever would return to Ohio and under these conditions the evidence was properly submitted for the jury’s consideration. We feel that no constitutional rights or statutory privileges were denied the appellant and, therefore, the judgment of the Municipal Court should be affirmed.

•Judgment affirméd.

BRYANT and MILLER, JJ, concur.