text:
    EASTERN OHIO DISTRIBUTING COMPANY, Plaintiff-Appellee, v. BOARD OF LIQUOR CONTROL et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4459.
    Decided August 23, 1950.
    Matz & Cinque, Bellaire, Isadore Topper, Columbus, for plaintiff-appellee.
    Hon. Herbert S. Duffy, Atty. Geni., Charles T. Kaps, Asst. Atty. Geni., Columbus, for defendants-appellants.
   OPINION

By THE COURT.

This is an appeal on questions of law from a judgment of the Court of Common Pleas reversing an order of the Board of Liquor Control and directing the Board to issue a permit to the applicant.

The grounds for the reversal were that the order was not supported by “competent, substantial and admissible evidence in the record, is not supported by any evidence, is contrary to the manifest weight of the evidence and is contrary to law.”

It appears that the application of plaintiff-corporation for a Class B-l permit had been rejected by the Director of the Department of Liquor Control, that it appealed the rejection to the Board of Liquor Control which, in its decision divided, two members supporting the action of the Director and two voting to reverse and to issue the permit.

The Board in support of its order refusing the permit gave six reasons for its action. The first is that Vusky is the president of the applicant corporation and the principal stockholder thereof holding 240 of the 250 outstanding shares of stock of the company. This finding is in accord with the record and, in our judgment, was sufficient showing that Vusky would control completely the operations and activities of the applicant corporation and if it further appeared that he was an unfit person to be granted the permit applied for would afford sufficient support for the action of the Board in refusing the permit to the corporation.

The second, third and fourth findings relate to establishments located in Bellaire, Ohio, and Bridgeport, Ohio. These findings are to the effect that Vusky had prior to and was at the time of the application for the permit connected with the operations of such establishments which were gambling or “bookie” houses; that prior to January 1, 1950, he had been the owner and operator of such establishments and since that date retained his financial interest in these illegal businesses.

The fifth finding is that,

“There is a substantial likelihood that subject applicant, would, if granted a Class B-l permit, utilize the privileges of such permit for the purpose of promoting and diversifying his gambling activities in that said Vusky and his associates have demonstrated a willingness and a desire to engage in such gambling activities and it is well known that persons who make a business of such activities seek linkage with retail permit holders where possible as a preferred method of conducting their gambling operations. * * *”

The sixth finding is to the effect that the distributorship of Miller’s High Life Beer which the applicant proposed to distribute had been obtained without full disclosure and by imposition upon the brewer of said beer.

Appellee cites §6964-17 GC for the proposition that neither the corporation nor Mr. Vusky is in the class to which a permit may not be issued. This must be granted but it does not follow that because they are eligible to receive a permit, the Board has no power to determine that they should not be granted such permit. The section is nothing more than a limitation as to eligibility.

Without respect to any possible finding which the Board may have made that would have supported its action it is evident from the second, third and fourth findings that the basis upon which it did act was that at the time the application for permit was made, Vusky was connected with the gambling enterprises in Bellaire and Bridgeport.

There has been considerable observation about the liberality of procedure in hearings before the Liquor Board, that it is not bound by the strict rules of evidence and that it has wide latitude in the conduct of its hearings. We grant that the Board should not, in all particulars, be restricted in the conduct of its hearings as closely as courts of law but being vested with the power to make decisions and orders upon issues vital to applicants for, and holders of permits it should not act upon evidence which is not admissible, competent or probative of the facts which it is to determine.

Careful reading of the record in this case is convincing that had Mr. Vusky not taken the stand there was an utter failure of competent proof that he was not qualified to receive the permit for which application had been made. However, he did take the stand. He admitted that prior to January 1, 1950, he had been connected financially with and shared the profits of the gambling establishments at Bellaire and Bridgeport; admitted that since that time he had paid for some of the utilities in one or both of these establishments. The record is not clear that he admitted that he had paid the rental for these places. He stated that he had, prior to his application for a permit and as early as August, 1949, agreed with his wife to whom he was newly married, to sever all of his connections with the gambling houses and that pursuant to his promise he had prior to January 1,1950, abandoned all connection with gambling.

Over the objection of Mr. Vusky’s counsel, the Board permitted one of its investigators, Carson Davis, at page 6 of the record, to say, among other things, that he contacted Mayor Brighton of Bridgeport and that he said:

“It was common knowledge Andy Vusky was connected with the Bridgeport bookie,”

and further that he had contacted Mr. Sanders, Mayor of Bellaire, and he said:

“It seems very common knowledge that Andy Vusky was connected with the bookie and further investigating I checked the utilities of both locations in Bridgeport and Bellaire and the utilities are paid by Mr. Vusky and the rent for the buildings are paid for by Mr. Vusky.”

And particularly at page 11 the witness said:

“I was interested in finding out who paid for the wire service to this establishment. He (Mr. Cole) told me it was paid for by Mr. Vusky.”

Continuing,

“Then to further check that we sent a man in to Steuben-ville. I found that the fellow who puts out the wire service says it is paid for by Mr. Vusky by two front men. He gave me the names. I have them here.”

This testimony was not only hearsay but the last answer was twice removed from the source of information. The record is replete with incompetent hearsay testimony. Much of it becomes inconsequential because of the admissions of Mr. Vusky but it is apparent that the Board acted upon the conclusion that Mr. Vusky was at the time of the application connected with the gambling establishments. It was not proper for the Board to so conclude upon testimony much of which it should not have heard and it is impossible to say that this incompetent testimony was not the determinative factor in the order finally made.

We cannot hold as a matter of law that the Board had no right to believe the incriminating statements of Mr. Vusky and to disbelieve his statements which supported his contention. However, it is manifest that this testimony should have been weighed unaffected by the incompetent and highly prejudicial statements on the subject which had been admitted by the Board. Had the Board accepted the competent testimony only on the subject upon which it based its order it may be that it would have concluded that Mr. Vusky was telling the truth and that he had no connection whatever with gambling at the time of the hearing and that he had had none since January 1, 1950.

We make some observation respecting affidavits and letters on behalf of Mr. Vusky which were admitted by the Board at its hearing. It is indeed seldom that an individual can bring to his aid such an array of men of prominence in the community which is to be affected by the operation of Mr. Vusky under the permit if granted. Among these recommendations were letters from Hon. John C. Nichols, Judge of the Court of Appeals of the Seventh District, Hon. Clifford L. Belt, Judge of the Court of Common Pleas of Belmont County, Hon. Harry L. Albright, Judge of the Probate Court of Belmont County, Hon. Arthur Blake, State Senator of Belmont County District, Hon. Cloyd L. Barriclow, Sheriff of Belmont County, Hon. John J. Saunders, Mayor of the City of Bellaire, Hon. George T. Brighton, Mayor of Bridgeport, Hon. John Malik, City Solicitor of Bellaire, Hon. W. T. McCort, County Auditor, Belmont County, Hon. Lawrence W. Purdy; County Recorder, Belmont, O. A. Holsinger, Vice President of the Bridgeport National Bank, and others. Most of these men are directly connected with the enforcement of law and all of them are fully cognizant of the nature and requirements of the business which Mr. Vusky would conduct were his company granted a permit. All of them recommended him favorably and most of them request the Board to Issue the permit.

It further appeared that Mr. Vusky was a business man of substance, that he had formerly been successfully engaged in the taxicab business and had under permit of the Liquor Board operated a night club in the vicinity of Bellaire and that all of these ventures had been conducted on a high plane without violations of law and with general approval.

We readily concede that if the Board had competent evidence from which it could reasonably determine that Mr. Vusky was, when he applied for the permit, connected with gambling enterprises these letters and affidavits, notwithstanding the eminence of the citizens who provided them, could not avail to require the issuance of the permit. However, if the Board should conclude that Mr. Vusky was no longer associated in the gambling enterprises the recommendations heretofore mentioned and his favorable business experience are most convincing that he is a suitable person to whom a permit should be granted.

Upon the record as it comes to us we cannot say that there was no support whatever for the order of the Board and to that extent the judgment of the Common Pleas Court must be reversed. However, we are satisfied that the Board acted upon incompetent testimony and that its order based upon the consideration, in part, of such testimony was an abuse of discretion to the prejudice of the applicant.

The cause will be remanded to the Board of Liquor Control for further hearing upon the appeal from the Director of the Department.

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


source: Caselaw Access Project

author: By WISEMAN, J:

license: Public Domain

text:
    LYONS, Exr., Plaintiff-Appellant, v. GARNETTE, Defendant-Appellee.
    Ohio Appeals, Second District, Darke County.
    No. 688.
    Decided November 24, 1950.
    T. A. Billingsley, Greenville, for plaintiff-appellant.
    George W. Porter, Floyd D. Smith, Greenville, for defendantappellee.
   OPINION

By WISEMAN, J:

This is an appeal on law from the judgment of the Common Pleas Court of Darke County dismissing plaintiff’s action after a hearing on the merits.

Plaintiff as executor of the Estate of Charlotte Whipple, deceased, brought an action against Odella Garnette on a promissory note for the sum of $2,700.00 with interest. The defendant in her answer sets up three defenses: First, general denial; second, that in her will Charlotte Whipple directed that her executor place a credit of $1,000.00 upon the $2,700.00 promissory note due her from Odella Garnette, leaving a balance due her on her estate of $1,700.00, and that the executor has refused to give a credit of $1,000.00 as directed in the will; third, that the plaintiff is estopped from prosecuting this cause as the matters set out in the petition are res judicata.

The principal question for determination arises under the third defense. In her third defense the defendant alleges that in a prior action entitled “Odella Garnette v. David Lyons, Executor” upon which the record shows that she sued the estate of Charlotte Whipple for the recovery of $2,817.41 for nursing services and for money expended for the use and benefit of Charlotte Whipple, an item was listed as:

“Note at bank — — — $1,000.00”

The defendant further answering alleges that in the former action the defendant filed an answer and for his second defense alleged that in accordance with an' agreement between Odella Garnette and the deceased, the said Charlotte Whipple, did in her will direct and provide that credit should be placed upon a note of $2,700.00 dated May 21, 1943, signed by Odella Garnette; and that said provision in the will referred to the $1,000.00 which Odella Garnette had procured from a Greenville bank and placed in the checking account of the decedent; that the defendant is ready, able and willing to give said credit upon said note in accordance with the directions in said will and that by reason thereof the estate of Charlotte Whipple is not indebted for the item listed of $1,000.00 contained in the account. In the answer filed herein defendant further alleges that the promissory note on which this action is brought was introduced in evidence in the prior proceeding; that the case was tried to a jury and that the court charged the jury in regard to the second defense in the prior action as follows:

“As respects the second defense of defendant’s amended answer, the court says to you that there has been no proof, whatsoever of an agreement between decedent and plaintiff that such will be accepted of decedent. So you will disregard the second defense of the amended answer absolutely.”

The defendant herein further alleges that the jury returned a verdict for Odella Garnette in the sum of $2,000.00. Defendant further answering alleges that by reason of the prior proceedings the matters set forth in plaintiff’s petition herein have been adjudicated. The essential allegations in the answer were controverted by a reply.

The case at bar was tried to the court. The evidence submitted is largely documentary. The pleadings in the prior action, together with the charge to the jury, the will of the decedent, and the promissory note on which suit was brought were submitted as exhibits by stipulation. The trial resulted in a judgment for the defendant. A motion to vacate the judgment and for new trial was filed and overruled and thereupon plaintiff’s action was dismissed.

The judgment entry was general in its terms. However, the opinion of the trial judge in this case is a part of the record of the transcript of docket and journal entries and other papers in the case. The trial judge held that the issues had been adjudicated in the former proceeding. The judgment entry being general in its terms, we are required to determine whether the dismissal of the action can be sustained on any other ground. It is contended by counsel for defendant-appellee that plaintiff herein did not sustain the burden of proof with respect to the execution and delivery of the note and that said note was given for consideration. The executor testified that the note presented in this case was the same note which was presented as an exhibit in the former trial and that no payments had been made thereon. In view of the answer filed in this action and the pleadings in the former proceeding, which were introduced by stipulation in this action, there is sufficient evidence from which the court could reasonably conclude that the note was properly executed and delivered. The defendant in this action, in her answer did not plead non-execution or non-delivery of the note; neither did she plead failure or want of consideration. Under §8121 GC, delivery would be presumed, and under §8129 GC, a valuable consideration would be presumed.

We now consider the matter of res judicata, which was the basis for the dismissal of plaintiff’s action by the trial court. It is true that the prior action was between the same parties. Also, we recognize the rule that a former judgment is conclusive between the parties, not only as to matters actually determined, but also as to any matters which, under the rules of practice and procedure, could be determined. Vol. 23, O. Jm\, Page 979, Section 748. But the cause of action sued upon in the prior suit was a different cause of action from the one sued upon in the instant case. In the prior action Odella Garnette claimed there was due her for nursing services and for money expended for the use and benefit of the decedent a certain sum of money. The item listed was for $1,000.00 for note at bank. In the prior suit the executor by answer put in issue the question whether the decedent and Odeila Garnette had agreed that a credit of $1,000.00 should be given on the $2,700.00 note as directed in decedent’s will. The $2,700.00 note was not put in issue. The defendant failing to support the allegations by proof with respect to an agreement between Odeila Garnette and the decedent, the court instructed the jury to disregard this particular defense. Even though this matter was taken from the jury because of failure of proof, it was, nevertheless, put in issue by the parties. While the $2,700.00 note sued upon in the instant case was introduced as an exhibit in the prior proceeding, no issue was presented as to the liability of Odeila Garnette on said note. The plaintiff’s cause of action in the instant case is upon the promissory note which is a different cause of action from that sued upon in the prior action. In Norwood v. McDonald, 142 Oh St 299, 52 N. E. (2d) 67, the ninth paragraph of the syllabus is as follows:

“The rule that a judgment is conclusive, not only as to what was determined in the action but as to all issues which properly might have been determined therein, is limited to cases involving a single cause of action.”

On page 305 the court said:

“To constitute a bar there must be identity not only of subject matter but also of the cause of action. In other words, a judgment in a former action does not bar a subsequent action where the cause of action prosecuted is not the same, even though each action relates to the same subject matter.”

On page 306 the court lays down the test as follows:

“The test generally applied is to consider the identity of facts essential to their maintenance, or whether the same evidence would sustain both. If the same facts of evidence would sustain both, the two actions are considered the same within the rule that the judgment in the former is a bar to the subsequent action. If, however, the two actions rest upon different states of facts, or if different proofs would be required to sustain the two actions, a judgment in one is no bar to the maintenance of the other.”

In our opinion different proofs would be required to sustain the two actions and, hence, the test laid down by the Supreme Court has not been met.

The executor in the prior suit could have filed a counter claim to recover on the $2,700.00 note, but he did not choose to do so. The trial court held that since he was permitted to do so he was required to file a counter claim, and under the rule that a former judgment is conclusive between the same parties as to any matters which could have been determined, ■ a subsequent suit could not be maintained. We do not agree. Suit in the instant case is upon a different claim or demand. The judgment in the prior suit only operates as an estoppel respecting matters actually litigated. Recovery on the $2,700.00 note was not litigated in the former suit. The doctrine of estoppel has application here rather than res judicata. In Norwood v. McDonald, supra, on page 306, the court applies the doctrine of estoppel as follows:

“As distinguished from what has already been said, it must be remembered that ‘a point or fact which was actually and directly in issue in a former action and was there passed upon and determined by a court of competent jurisdiction cannot be drawn in question in any future action between the same parties or their privies, whether the cause of action in the two actions be identical or different.’ But the effect of such determination goes no further, by way of barring the second action, than to settle as a finality the point or fact litigated in the first action. This doctrine is based upon estoppel rather than upon res judicata.”

It is our conclusion that the facts in this case fall within the rule stated in Vol. 23 O. Jur., page 981, Section 749, as follows:

“In accordance with the rule prevailing in other jurisdictions generally, it is established in Ohio that when the second action between the same parties or their privies is upon a different claim, or demand, or cause of action, the judgment in the first suit operates as an estoppel only as to the points or questions actually litigated and determined, and not as to other matters which might have been litigated and determined. In other words, in order to make a judgment at law conclusive between the same parties or their privies in a subsequent suit on a different cause of action, the matter attempted to be disputed in the subsequent suit must have been put in issue in the first action, and therein necessarily tried and determined.”

Was the defendant in the prior suit required to set up a counter claim on the $2,700.00 note? It has been held that under §§11315, 11337 and 11624 GC, a defendant may, but is not required to, set up a counter claim. Detroit, T. and 1. R. R. Co. v. Pitzer, 42 Abs 494, 497, 61 N. E. (2d) 93; State, ex rel. MeHenry v. Calhoun, 87 Oh Ap 1. See also Vol. 8 A. L. R. 695. In Vol. 23 O. Jur., page 986, Section 754, the text is as follows:

“To the general rule applying the doctrine of res judicata to defenses which could have been litigated in the prior action, there is an exception where the facts claimed to afford a defense are sufficient to constitute a set-off, counterclaim, or cross action, at least under statutes which provide that if the defendant omits to set up the counterclaim or set-off, he cannot recover costs against the plaintiff in any subsequent action thereon, except in cases specially provided for.”

The effect of the failure of the defendant in the prior action to set up a counter claim on the promissory note here sued upon is covered in §11624 GC, which in part provides:

“If a defendant omits to set up a counterclaim or set-off, he cannot recover costs against the plaintiff in any subsequent action thereon.”

Under the provisions of this section the plaintiff in this action would not be permitted to recover his costs. See Witte v. Lockwood, 39 Oh St 141; State ex rel. McHenry v. Calhoun, supra; Vol. 36 O. Jur., page 580, Section 92.

In our opinion the defense of res judicata has not been supported by the evidence. The dismissal of plaintiff’s action constituted reversible error.

Judgment reversed and cause remanded with instructions to sustain the motion to vacate the judgment and for further proceedings according to law.

MILLER, PJ, and HORNBECK, J, concur.


author: By HOOVER, J.

text:
    DOMBY v. DOMBY, a. k. a. VARGA, et al.
    Common Pleas Court, Cuyahoga County.
    No. 602753.
    Decided January 25, 1951.
    Elsie R. Tarcai & Violet J. Tarcai, Cleveland, for plaintiff.
    Joseph Saslaw, Cleveland, for defendants.
   OPINION

By HOOVER, J.

This is an equitable action in the Cuyahoga County Common Pleas Court arising out of a dispute about realty in Geauga county. The four defendants are the plaintiff’s wife, a former boarder in their home and the latter’s two daughters. The court has jurisdiction of the person of all parties.

In 1948, by quitclaim, the defendant wife conveyed said realty, of which she was the legal owner, to the defendant daughters, which conveyance was duly recorded in Geauga county. Plaintiff joined in the deed to release his dower rights. Concurrently, a separate written agreement was made by plaintiff, his wife and said two defendant daughters which, under terms therein specified, gave plaintiff and his wife the right, inter alia, to live in the brick house on the premises.

Plaintiff claims that he had purchased this realty which stood in his wife’s name and had an equity therein and that the deed and agreement were procured by fraud, and prays that the agreement be cancelled, that the deed be ordered delivered up and cancelled, that the defendant daughters be required to reconvey said premises and that the court find that the defendant daughters have no interest in said premises.

At the opening of the trial, a demurrer was filed by all the defendants, challenging the court’s jurisdiction over the subject matter and relying on §11268 GC, and Gem City Acetylene Generator Company v. Coblentz, 86 Oh St, 199. The pertinent part of said statute reads:

“Actions for the following causes must be brought in the county in which the subject of the action is situated * * *. 1. For the recovery of real property, or of an estate or interest therein * *

The syllabus of the Gem City case reads:

“1. A proceeding brought under Section 6343 and 6344, Revised Statutes, to set aside a transfer of real estate as in fraud of creditors and to obtain the relief provided therein, is for the recovery of real property or of an estate or interest therein within the meaning of Section 5019, Revised Statutes.

“2. When the entire property described in the petition and sought to be recovered in such proceeding is real estate, all of which is situated in one county, the action must be brought in that county and summons may be issued to any other county for the defendants.”

The question is — is this action one “for the recovery of real property, or of an estate or interest, therein.” Several arguments, at first, seem to point to an affirmative answer. Plaintiff asserts an equitable interest in the premises. Moreover, a husband has certain statutory rights in his wife’s realty (see Mark v. Mark, 145 Oh St, 301, 30 O. O. 534, syl. 9), including an inchoate right of dower. Sec. 10502-1 GC. Such dower is an interest in real property. 14 O. Jur. 673, Section 62; 19 C. J. 493, Section 105, N. 73. A spouse may maintain a separate action for its protection. 19 C. J. 493, 495, Sections 105, 108. An interest in real property, within the meaning of §11268 GC, doubtless means “any” interest therein.

Compare: Brenner v. Spiegle, 116 Oh St, 631, 634. In addition, in the Gem City case, the Supreme Court in referring to the statute in question (§11268 GC, was formerly R. S. 5019) said (p. 203):

“The proceeding referred to in that clause is not merely the law action of ejectment or forcible detainer, etc., but any action, legal or equitable, to fix an estate or interest in real estate.” (Emphasis by the court.)

In the instant case, the court believes that what the plaintiff parted with was an interest in real estate. In construing the statute in question this case is no different than if the plaintiff had owned and conveyed the fee simple title and, as to it, was seeking the same redress as is herein sought; and therefore cases bearing on the latter are helpful. The question still is — is this an action “for the recovery of real property, or an estate or interest therein” within the meaning of the statute.

Defendants’ strongest authority, the Gem City case, contains the seeds of differentiation, which grow to uproot their demurrer. The Supreme Court carefully points out that the action is a statutory one, based on §6343 and §6344 (now §11105 and §11106 GC) to set aside a transfer of real estate as in fraud of creditors and says (86 Oh St, at 205):

“* * * it would seem to be a proceeding in rem for the recovery of real property for the benefit of all the creditors of the grantor. The direction of the statute is, that the transfer shall be declared to be void. So that the title to the real estate is directly, and not incidentally involved.”

See also, comment on this case under §11269 GC, of Page’s Code. The inference is that if the proceeding were not in rem, the decision would be different. The Supreme Court further says (p. 208):

“The proceeding is a statutory one. It is not equitable to force the defendant to do some particular act enjoined upon him by a court of equity, but it immediately affects the property itself.”

The inference is that if the proceeding is an equitable one to force the defendant to do some particular act, the court would have jurisdiction.

Relying on this distinction, plaintiff contends that the instant equitable action is in personam and not in rem, that a decree here would operate on the parties and not on the land and that, therefore, it is not an action to recover real property or an estate or interest therein. With this the weight of authority and this court agree. In 9 Am. Jur. 394, Section 51, in discussing jurisdiction over cancellation suits, it is said:

“Jurisdiction of the parties is ordinarily obtained by subjecting them personally to the authority of the court, and this is all that is necessary, even though the property to which the instrument relates is situated beyond the' territorial limits of its jurisdiction; for in decreeing cancellation equity, as a rule, operates not in rem, but wholly in personam by working on the volition or conscience of the defendant. In other words, a proceeding for cancellation is generally considered as in personam, and must be supported by personal service.
“Where the court acquires jurisdiction, even of the person only, it is invested with full power to proceed to a final decree in an action to compel the cancellation of deeds to lands. As the relief sought does not require the court to deal directly with the estate itself, the proceeding does not affect the real estate, and the court, having the parties in interest all before it, may proceed, although the land to which the controversy relates may lie without the jurisdiction of the court * * * although a contrary view has been taken * * *.”

In 56 Am. Jur. 24, Section 21, it says:

“This is because the decree made will not of itself necessarily be binding on the lands, but will take effect only through the action which the parties to the suit are compelled to take. Statutes which require actions concerning land to be tried in the county in which the lands are situated or require actions for the recovery of possession of land or the determination of questions affecting title to land to be brought in such county generally do not apply to actions in equity where the decree sought operates in personam.”

See also, 12 C. J. S. 1022, Section 50; 9 C. J. 1231, Section 142; 9 Am. Jur, 395, Section 53; 67 C. J. 62, 65, Section 96, 103; 25 O. Jur. 452, Section 27; 118 A. L. R. 200-201; 11 O. Jur. 723-24, Section 80; 16 O. Jur. 218, Section 94.

Certainly Ohio would never recognize power in the court of another state to entertain jurisdiction over a suit to recover real property located in Ohio; yet Ohio does recognize that a court of equity in another state has the power, acting in personam, to determine equities between the parties in realty located in Ohio and to compel parties to convey such realty. Burnley v. Stevenson, 24 Oh St, 474. See also, Miller v. Bieghler, 123 Oh St 227. Similarly, though a court in one county generally has no jurisdiction over a suit to recover real property located in another county, nevertheless a court of equity in one county has the power, acting in personam, to determine equities between the parties in real property located in another county and to compel parties to convey such realty.

McCamey v. Adelphie Land Co., Case No. 6491, 4 Abs 324, 748, decided by our Court of Appeals, is a compelling analogy. There it was held that our Common Pleas Court has jurisdiction over an action brought by a vendor to cancel a land contract relating to land located in another county. The vendee in such a situation has an interest in real estate (40 O. Jur. 1006, 1008, Section 92), nevertheless jurisdiction was upheld.

Accordingly, defendants’ demurrer to jurisdiction is overruled.


author: By THE COURT:

text:
    STALEY, Admr., Plaintiff-Appellee, v. HONEYMAN et, Defendants-Appellees, HUNT, Defendant-Appellant.
    Ohio Appeals, Second District, Miami County.
    No. 454.
    Decided November 18, 1950.
    Shipman & Shipman, Troy, Berry, McCulloch & Pelger, Piqua, for plaintiff-appellee.
    Ellis W. Kerr, Troy, for Margaret Frantz Hunt, defendant-appellant.
    Faust <& Faust, Troy, for James D. Frantz, defendant-appellee.
   OPINION

By THE COURT:

The appeal is on questions of law from a judgment of the Probate Court of Miami County holding that appellee, James D. Frantz, an adopted son of Samuel C. Frantz, is entitled to inherit from the decedent, Emma Grisso, under the statute of descent and distribution of the State of Ohio that share which would have been inherited by his adopting parent, Samuel C. Frantz, if he had been living at the time of the decedent’s death.

The judgment entry is comprehensive and sets out findings of fact as well as conclusions of law. It states the questions involved in this language;

1. Whether an adopted child’s right to inherit is governed by the rights of inheritance in force at the time he was adopted or the laws in force at the time of the decedent’s death.

2. Whether an adopted child has the right to inherit collaterally through as well as from his adopting parent.

The court answering the first question held that the child’s right to inherit is governed by the statutes in force at the time of decedent’s death and answered the second question in the affirmative.

It is seldom that the Court is favored with such comprehensive and complete .briefs as counsel have presented on this appeal. We think that no case in Ohio which touches the question has been omitted and the analysis of the cases is thorough and learned. It is an invitation to the Court to write an extended opinion and it would necessarily be extended if effort was made to consider and review all the applicable cases.

We are of opinion that it would serve no good purpose to prolong the decision in this Court by a reiteration of the law of Ohio affecting the right of adopted children to inherit under our statutes and sections of the General Code. We reach this conclusion because of the judgment and opinion of the Supreme Court in two cases. Flynn v. Bredbeck, decided July 17, 1946 and In Re Estate of Friedman, decided June 19, 1950, and particularly the former. Both of these cases are of comparatively recent release and, of course, are binding upon this Court. In Flynn v. Bredbeck, the court gave no specific attention to the question whether the statute in effect at the time of the adoption, or at the time of the death of decedent, controlled. But the language of this opinion is so general and inclusive as to require us to resolve the issue here in favor of the appellee.

If the judgment is disturbed it should be done by the Supreme Court making differentiation between the cited cases and the instant case.

The judgment will be affirmed.

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


author: By LYBARGER, J.

text:
    NEFF, Admr., v. MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY.
    Common Pleas Court, Cuyahoga County.
    No. 602393.
    Decided January 2, 1951.
    O. D. Eshelman, Owen C. Neff, Cleveland, for plaintiff.
    Roudebush, Adrion, Sanborn, Brown & Corlett, Cleveland, for defendants.
   OPINION

By LYBARGER, J.

This is an action by the administrator of the estate of Waughnettia Michaels, deceased, against The Massachusetts Mutual Life Insurance Company, to collect the proceeds of an insurance policy upon the life of Waughnettia Michaels. The policy was issued by the defendant company in 1946 in the sum of $1,000.00 with a double indemnity clause.

In 1948 the beneficiary clause of the policy was changed so that at the time of the death of the deceased the proceeds •of the policy were payable to the insured’s husband, Steven H. Michaels, if living. The policy contained the following clause naming contingent or secondary beneficiaries:

“Upon the death of the survivor of the insured and said husband, any amount then remaining by the terms of the policy shall be apportioned to the insured’s stepchildren James G. Michaels and Patricia R. Michaels, and any other child or children born of the marriage of the insured and said .husband, equally, or to the survivors or survivor of them, if living,”

Steven H. Michaels, husband of the insured and the primary beneficiary in the policy, killed his wife on August 20, 1948. Thereafter he was found guilty and sentenced to the penitentiary for life.

A claim to the proceeds of the policy was then made by Elizabeth Ptak, guardian of both Patricia Ruth Michaels and James G. Michaels, minors, stepchildren of the insured, who were named as secondary beneficiaries in the policy. Thereupon the defendant, The Massachusetts Mutual Life Insurance Company, obtained an order of interpleader and paid to the Clerk of Court the proceeds of the policy in full. Elizabeth Ptak, as guardian of the two minors mentioned above, was then substituted as defendant herein.

In view of these facts, the question before the court is: When an insured has been murdered by the primary beneficiary, should the proceeds of a life insurance policy be paid to the insured’s estate or to the persons named in the insurance policy as contingent or secondary beneficiaries?

It is well settled in Ohio that the beneficiary of a life insurance policy can not recover upon it when the death of the insured is caused by his felonious act. The leading authority bearing on this point is the cause of Fillmore v. The Metropolitan Life Insurance Company, 82 Oh St, 208. On page 214, the court said:

“* * * And as said by Mr. Justice Field in N. Y. Mut. Life Ins. Co. v. Armstrong, 117 U. S., 600: ‘It would be a reproach to the jurisprudence of the country if one could recover insurance money payable on the death of a party whose life he-had feloniously taken. As well might he recover insurance-, money upon a building that he had wilfully fired.’
“* * * ‘There can be no recovery in an action founded upon: intentional wrong. The beneficiary in an insurance policy cannot recover where the death of assured has been intentionally caused by his act’.”

It is also well established as a logical sequence to the above premise, that no person claiming through a beneficiary, who has feloniously caused the death of the insured, can claim the proceeds of the insurance policy. Schmidt v. Northern Life Insurance Co., 112 Iowa 41; 51 A. L. R. 141. Furthermore, the general rule of law is that where the sole beneficiary forfeits the right to the proceeds of an insurance policy, by reason of having wrongfully killed the insured, the policy is payable to the heirs or personal representative of the insured.

In the case of the National Benefit Life Insurance Company v. Davis, Administrator, 38 Oh Ap, 454, the Court of Appeals for Cuyahoga County ably' summed up the law upon this issue. On page 458 the court said:

“We quote the following from 25 Cyclopedia of Law and Procedure, page 895: ‘If the assignee or beneficiary feloniously causes the death of the insured, there can be no recovery in favor of such wrongdoer under the policy, regardless of whether there is any violation of the stipulations in the policy itself. Where the assignee or beneficiary is thus defeated, the amount of the policy becomes payable to the heirs or personal representatives who in the absence of the assignment or designation of a beneficiary would have been entitled to the proceeds of the insurance’.”

It should be noted that the court mentioned that the heirs or personal representatives would have been entitled to the proceeds “in the absence of the assignment or designation of a beneficiary.” It is clear that in those cases where the estate of the insured has been awarded the proceeds of an insurance policy there has been a complete failure of beneficiaries. In these cases either the primary beneficiary has forfeited his right by his felonious act or secondary beneficiaries (some times designated in words such as these: “to -, beneficiary, his heirs or legal representatives,”) have not been able to claim the proceeds because they are not permitted to take through the forfeiting beneficiary. The case of Schmidt v. Northern Life Insurance Company cited above is here in point.

In the instant case, however, there is' not a complete failure of beneficiary. It is obvious that the primary beneficiary, Steven H. Michaels, forfeited his right to the proceeds because of his felonious act. However, the contract of insurance named secondary beneficiaries, — persons who do not take through the primary beneficiary. In the contract the insured clearly indicated how the proceeds of the policy ■were to be paid. There is no reason therefore why the contract should not speak for itself and why its contingent provisions should not be carried out in this case.

On this subject Scott on Trusts says, Section 494.1:

“If by the terms of the policy * * * an alternative beneficiary is designated, and the principal beneficiary murders the insured, the alternative beneficiary is entitled to the proceeds of the policy.”

In the case of Parker v. Potter, 200 N. C. 348, the court was dealing with a situation similar to that in the instant case. The court said:

“Where a policy of life insurance by its express terms fixes the beneficiary as the mother of the insured in the event of the prior death of the insured’s wife, and the insured feloniously kills his wife and then himself, the proceeds of the policy are payable to the insured’s mother under the express provisions of the policy contract itself.”

For these reasons, it is the opinion of the court that the prayers of the cross petition of the substituted defendants, Elizabeth Ptak, Guardian of the Estate of Patricia Ruth Michaels, a minor, and of the Estate of James G. Michaels, a minor, should be granted and the proceeds of the life insurance policy paid to them in equal portions.


author: By WISEMAN, J.

text:
    FRITZ, Admr., Plaintiff-Appellee, v. NEW YORK CENTRAL RAILROAD COMPANY, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2059.
    Decided May 8, 1950.
    Baggott & Johnston, Dayton, Donald L. Ziegel, King & Young, Eaton, for plaintiff-appellee.
    Routzohn, Routzohn & Nevin, Dayton, for defendant-appellant.
   OPINION

By WISEMAN, J.

This is an appeal on questions of law from the Common Pleas Court of Montgomery County, Ohio, which rendered judgment on a verdict returned in favor of the plaintiff in the amount of $22,500.00.

This is an action for wrongful death instituted by Arthur Fritz, Administrator of the decedent, Cora Fritz, for the benefit of himself as the surviving spouse and five minor children. The decedent was killed in a railroad grade crossing accident when the automobile driven by her husband, Arthur Fritz, in which the decedent was riding, was struck by a train operated by defendant company.

The defendant-appellant claims that the court erred in rejecting evidence which the defendant proffered to the effect that two of the plaintiff’s witnesses who testified as to the speed of the train were not in a position to give reliable testimony with respect to the speed of the train. No witness is permitted to evaluate the testimony or credibility of another; this is the sole function of the jury. No prejudicial error was committed in rejecting this or any other testimony offered by the defendant.

The defendant assigns as its second and third grounds of error the overruling of defendant’s motion to direct a verdict at the close of all the evidence, and defendant’s motion for judgment notwithstanding the verdict, and in overruling the defendant’s motion for new trial on the ground that the verdict was contrary to the manifest weight of the evidence. We do not deem it necessary to state in detail the factual development in this case. The facts, with unimportant variations, are the same as in Knaff, Admr. v. New York Central Railroad Company, 55 Abs 193, 86 N. E. (2d) 814, a case decided by this Court which involved the same collision. Our ruling in that case in a large measure disposes of the alleged errors in this case. In the instant case the factual development was such as to require the case to be submitted to the jury on all the issues raised. The motion for a directed verdict, the motion for judgment non obstante, and the motion for new trial, were properly overruled. We do not find the verdict to be against the manifest weight of the evidence.

The court properly overruled the motion of defendant to instruct the jury not to consider the five specifications of negligence alleged in plaintiff’s second amended' petition, which is made appellant’s fourth assignment of error. There was substantial evidence to warrant the submission of the case to the jury on all five specifications of negligence. The fourth specification of negligence was to the effect that the crossing was “more than ordinarily hazardous.” In the Knaff case the fourth specification of negligence was under consideration. In that case this Court held that there was a failure to allege sufficient operative facts to require the conclusion that the crossing was especially hazardous. In the instant case there is no such weakness in the averments. Furthermore, we hold in this case, as we did in the Knaff case, that the “two-issue rule” is applicable.

For its fifth assignment of error the defendant contends that the court erred in overruling the motion for new trial on each and every one of the grounds set forth. Defendant under this assignment urges four separate grounds of error: First, that the court erred in not permitting defendant’s counsel to cross-examine a witness called by the defendant. The defendant contends that the witness was hostile. This matter rests within the sound discretion of the trial court. Vol. 42 O. Jur., pages 320, 321. An examination of the record discloses no abuse of. discretion.

Second, it is urged that the award of damages was excessive. The decedent, at the time of her death had an expectancy of life of thirty-one years, and her surviving husband twenty-seven years. She left five minor sons, ranging from eleven to nineteen years of age. There is no evidence in the record to justify the conclusion that the verdict was rendered under the influence of passion or prejudice. Under the facts in this case a verdict for $22,500.00 cannot be considered to be excessive. The defendant also contends that Arthur Fritz, the surviving husband and driver of the automobile, should not be permitted to participate in an award of damages when the evidence shows, as claimed by the defendant, that he was guilty of contributory negligence. Whether or not Arthur Fritz was guilty of contributory negligence was a jury question, and was submitted to the jury under proper instructions. The defendant submitted an interrogatory as follows: “Was Arthur Fritz guilty of contributory negligence in any of the particulars charged in the answer of defendant?” The contention urged by the defendant was effectively disposed of when the jury answered “No” to the interrogatory. With respect to the effect of an issue of contributory negligence on the part of one of the beneficiaries in an action for wrongful death see Vol. 13 O. Jur., pp. 475, 639, 672; §10509-167 GC.

Third, it is contended that the trial court erred in refusing to grant a new trial on the ground of newly discovered evidence. The motion for new trial was supported by affidavits and photographs taken subsequent to the trial which tend to refute the claim of the plaintiff that objects and obstructions on the railroad right of way obscured the view of the driver of the automobile as he looked in the direction of the approaching train. This evidence was cumulative and did not meet the statutory test of newly discovered evidence. Sec. 11576 GC.

Fourth, the defendant contends that “the .record is replete with erroneous rulings of the court respecting the admission or rejection of evidence, and the special charges rejected and given, respectively, by the court, as well as the court’s charge, did not state the law applicable to this case.” No further statement appears in the brief in support of this complaint. This statement is made, it will be observed, under the fifth assignment of error, which is: The court erred in overruling the motion for new trial. While we find no error to support this claim, it must be noted that the complaint is general and not specific. The appellant neither offers any argument in its brief, nor points out any particular error of the court in support of this complaint. Under the provisions of §12223-21 GC, errors not argued may be disregarded by the reviewing court. In Bicknell v. Evatt, 140 Oh St 492, 45 N. E. (2d) 415, it was held that errors not argued by brief may be disregarded. In Eisenmann v. Tester, 47 Oh Ap 275, 191 N. E. 839, it was held that a reviewing court is not bound to search the record for error, but is only required to examine questions made in the brief. In Hover v. Inskeep, 46 Oh Ap 438, 189 N. E. 121, it was held that a reviewing court will not examine alleged errors unless they are pointed out in the briefs. In Bailey v. Stedronsky, 57 Oh Ap 265, 268, 13 N. E. (2d) 588, it was held that where certain claimed errors are not stressed in oral argument, and are not briefed, they are considered abandoned and will be disregarded.

Finding no error in the record prejudicial to the defendant the judgment is affirmed.

MILLER, PJ, and HORNBECK, J, concur.