author: Per CURIAM.

text:
    HELLER, Plaintiff-Appellant, v. STANDARD OIL COMPANY, Defendant-Appellee.
    Ohio Appeals, Seventh District, Manoning County.
    No. 3986.
    Decided October 8, 1958.
    Morris Mendelssohn, Youngstown, for plaintiff-appellant.
    McAfee, Grossman, Taplin, Hanning, Newcomer & Hazlett, Cleveland, for defendant-appellee.
   OPINION

Per CURIAM.

There is evidence in the case we review that on the morning of March 28, 1955, plaintiff was operating an automobile in a westerly direction on the north lane of United States Route 224 in Mahoning County, Ohio, at about thirty-five miles an hour; that he encountered icy spots on that highway in the vicinity of Canfield, Ohio, necessitating his slowing the speed of the automobile he was driving to twenty-five miles an hour; that suddenly the automobile he was operating began to skid “weaving right, left, right, left, right, left,” which continued skidding for “four or five seconds culminating in” a sharp swing to the left about half way into the oncoming lane where it stopped. About this time plaintiff saw defendant’s oil tank truck travelling twenty-eight miles an hour in an easterly direction on the south lane of U. S. Route 224, about five hundred feet distant. That distance is disputed by the driver of defendant’s truck, he and one of his witnesses claiming such distance was about two hundred feet and another of his witnesses claiming that such distance was two hundred fifty feet.

There is disputed evidence that defendant’s oil truck turned onto the south snow covered berm of the highway at or about the moment of collision, and thereafter travelled out of control onto land adjoining such berm and then crossed the highway striking another automobile travelling in a westerly direction on the northerly side thereof.

The jury returned a verdict for defendant in plaintiff’s action in the court of common pleas to recover damages for such injuries. From that judgment plaintiff appealed to this court on questions of law.

Plaintiff has assigned eleven grounds of error in which he contends that the trial judge erred to his prejudice “in refusing evidence offered by the plaintiff”; in “admitting evidence offered by the defendant and objected to by the plaintiff”; in “refusing to charge the jury as requested by plaintiff”; in “refusing to charge certain statutory provisions requested by the plaintiff which are applicable to the case”; in his “charge to the jury to which plaintiff objected”; and in “charging all the eight special requests of the defendant including the special charge that the plaintiff had violated the statutory provision of §4511.26 E. C., which were objected to by the plaintiff.” Plaintiff further claims there was error in that “defendant’s counsel improperly argued to the jury matters not in evidence”; that the “verdict upon which judgment was entered appears to have been given under the influence of passion and prejudice,” is manifestly against the weight of the evidence and contrary to law; and finally that there are “other errors occurring at the . trial and excepted to by the plaintiff.”

We have studied all of these assigned grounds of error carefully, read the voluminous evidence and lengthy briefs of plaintiff’s counsel and considered the brief of defendant, and the oral arguments of counsel, and as a result reach the conclusion that no error intervened to the prejudice of plaintiff in any of the respects urged therein.

Plaintiff urges that the trial court erred prejudicially to him in charging the jury before argument:—

“Special Request To Charge No. 2.
“If you find from a preponderance of all the evidence that the injuries and damages of the plaintiff, Max M. Heller, were the direct result of an unavoidable accident, you will return your verdict in favor of the defendant, The Standard Oil Company.
“An unavoidable accident occurs only when the disaster happens from natural causes, without negligence or fault on either side.
“If, therefore, you conclude that neither Max M. Heller, nor Graber Durr was at fault under the facts of this case, your verdict must be for the defendant.”

Although this specific charge was given at the request of counsel for the defendant the court in no manner indicated to the jury upon whose request the charge was given.

The evidence clearly establishes that plaintiff’s automobile skidded upon an icy portion of the highway and “zigzagged” into and upon his wrong side of the highway whereby he claims he was in an emergency which required the defendant to exercise ordinary care to prevent defendant’s oil truck from colliding with the automobile of plaintiff.

In its answer defendant specifically denied each allegation of negligence upon which plaintiff based his cause of action, and alleged that plaintiff lost control of his automobile and “zigzagged” across Highway 224 in a southerly direction into the path of a truck owned by the Standard Oil Company and crashed into the front and left side of such truck while the truck was on its own side of the road, and that the failure of the plaintiff to keep his vehicle under control was negligence, and that such negligence solely and directly caused the plaintiff’s injuries, if any.

From the evidence submitted upon the trial the jury could reasonably find that the same condition of the highway, to-wit ice thereon, existed upon defendant’s portion of the highway as well as the portion being travelled by the plaintiff.

Under the evidence it was reasonable for the jury to find that plaintiff’s automobile crossed the center line of the highway and into the path of defendant’s oncoming truck because of conditions over which plaintiff had no control, and the jury likewise could reasonably find that the operator of defendant’s truck was faced with like condition of the highway which caused its truck, after the collision, to cross to its opposite side of the highway and collide with another automobile.

It is plain that plaintiff was conceding that his automobile zigzagged on the wrong side of the center line of the highway, and in effect he claims that this was unavoidable or at least not due to any of his negligence because of the icy condition of the highway.

While there is authority that in a negligence action where the plaintiff bases his right to recover upon alleged negligence of the defendant and the defendant denies such negligence and pleads sole negligence upon the part of the plaintiff there is in such state of the pleadings no occasion for charging upon unavoidable accident.

This court in its present term has held that the issues in a case arise not only from the allegations of the pleadings but also from the evidence received upon the trial. See Gladys Galbraith, Plaintiff-Appellant, v. Smith Construction Company, Defendant-Appellee, Mahoning Appeals No. 3973. In that case we cited Kohn v. B. F. Goodrich Co., 139 Oh St 141.

From the evidence in the case we now review this court arrives at the conclusion that the plaintiff has not been prejudiced by reason of the trial court giving the above special request to charge on unavoidable accident since the jury had no means of knowing otherwise than that the court was referring to the circumstances which indicated that plaintiff was on the wrong side of the road unavoidably.

In Mahoning Savings & Trust Co., Exr. v. Kellner, 131 Oh St 69, the facts are sufficiently similar to those in that case as to control in this case. The Supreme Court in reversing this court and sustaining the trial court, in which a verdict was directed for the defendant, said:—

“This court having found that there is no testimony in the record even tending to establish negligence on the part of Dr. Greer, it is unnecessary to consider the issue of contributory negligence.
“Taking all this testimony and the physical facts, just what was there for the consideration of the jury?”

The rule laid down by the supreme court in the syllabus in the case of Mahoning Savings & Trust Co., Exr. v. Kellner, Admx., supra, which is not materially distinguishable in principle from the case we review, disposes of this case, and reads:—

“Under §§6310-17 and 6310-18 GC, the duty of the driver of a motor vehicle to ‘keep to the right’ is made a specific requirement. Both statutes are penal, and the driver of a motor vehicle who violates either of them is not only subjected to a penalty but is negligent as a matter of law.
“The driver of a motor vehicle proceeding lawfully on his right side of the highway, owes no duty to the operator of a zigzagging automobile in front of and approaching his motor vehicle, to leave his right side of the highway, where the law places him, and drive to the left side of the highway, where the law says he shall not be, in order to avoid collision with such zig-zagging automobile.
“Where the physical facts and the uncontradicted testimony of all the witnesses in an action,for damages for wrongful death, considered in a light most favorable for the plaintiff, can have but one tendency, namely, to exculpate the defendant from all actionable negligence, it is the duty of the trial court at the close of plaintiff’s case to arrest the evidence from the jury and direct a verdict in favor of such defendant.”

Sincere in his argument, as counsel for plaintiff is, he seems not to appreciate the fact that it was plaintiff’s automobile that went out of control and onto his wrong side of the highway.

The jury had the right to believe the witness, or witnesses, they felt most credible. The argument of counsel for plaintiff in his reply brief that the evidence of certain of his witnesses concerning the speed of defendant’s truck is certainly more believable than the testimony of Graber Durr, who said he was travelling about twenty-five miles per hour at the time of the impact, is a matter addressed to the consideration of the jury. We cannot determine that question as a matter of law.

Under the evidence the jury could properly find that plaintiff’s automobile left its right side of the highway and skidded to the left, or its wrong side, and that such was the result of the ice upon the highway over which the plaintiff had no control and whereby plaintiff was placed in a position of danger as the result of such emergency.

We have carefully read the charge of the court to the jury wherein the court specifically charged that it was the duty of the operator of defendant’s truck to use ordinary care to avoid injury to the plaintiff under the circumstances shown by the evidence.

The court’s charge upon the whole is one of perfection obviating any claim of error in that respect under the pleadings and the evidence presented upon the trial. Appellant’s counsel has failed to call our attention to other “errors occurring at the trial and excepted to by the plaintiff,” as alleged as a ground of error, or to comply in respect thereto with the provisions of Rule VII of this court that his briefs “shall contain a statement of the questions presented and a succinct statement of so much of the cause, referring to the pages of the record, as may be necessary to show how the questions arise, together with a statement of the authorities relied upon.” Accordingly we will not pass upon this assigned ground of error.

As stated above, having considered carefully each and every one of plaintiff’s assigned grounds of error, upon which we pass, and finding nothing indicating to us that the verdict of the jury was rendered under the influence of passion and prejudice, or is against the manifest weight of the evidence, or contrary to law, we conclude that the verdict of the jury and judgment of the trial court entered thereon must be and is affirmed hereby.

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


source: Caselaw Access Project

author: By LEIS, J.:

license: Public Domain

text:
    STANDARD INTERNATIONAL CORPORATION et, Plaintiffs, v. McDONALD PRINTING CO., INC. et, Defendants.
    Common Pleas Court, Hamilton County.
    No. A-170269.
    Decided July 7, 1959.
    Cors. Hair, Hartsock & Schneider, By Charles F. Hartsock, Irving Harris; Hale & Dorr, By Samuel S. Dennis III, for Standard International Corporation and Joseph H. Jorling.

      Lanier, Guy, Walker & Lanier, By Ike Lanier, c. Chester Guy, Larz R. Hammel, for Thomas H. Carruthers III.
    Waite, Schindel, Bayless & Schneider, By Philip J. Schneider, Edward L. Douglass, Jr., for McDonald Printing Co., Inc. Albert F. Broering and Walter A. McDonald.
    Steer, Strauss & Adair, for Matthew A. McDonald.
   OPINION

By LEIS, J.:

This case presents an interesting corporate question in an effort on one hand to gain shareholder control of an established and reputable corporation and, on the other hand, an effort by present shareholder control to convey that control to a third party.

At the outset, the Court wishes to state that the actions of the parties to this case have been entirely ethical and conducted in a gentlemanly manner. The Court also wishes to state that all parties have been represented by very able counsel who have been of real assistance to the Court.

This is not a case of fraud. Simply and pointedly stated this case represents a maneuver for control of a closely held established corporation.

The McDonald Printing Company, Inc. (hereinafter referred to as McDonald) as its name implies, is in the printing business. Prior to a special meeting held on May 21, 1959, the stock structure of the McDonald Company looked like this:

Albert F. Broering 13.960 shares
Thomas H. Carruthers 15.960 shares
Matthew McDonald 3.960 shares
Joseph H. Jorling 5.960 shares
Walter A. McDonald 160 shares
James C. Fergus 1,000 shares
Paul H. Torbeck 600 shares
Stanley Backmeyer 400 shares
42,000 shares outstanding.

The Board of Directors of the McDonald Company consisted of the first five shareholders listed above.

It can be seen that a combination of shareholders, Carruthers and Jorling, would result in 21,920 or over fifty per cent of the outstanding shares. This combination was used when these two shareholders entered a contract to sell their shares in the McDonald Company to the Standard International Corporation at a price of $33.00 per share.

Broering and the two McDonalds, owning less than fifty per cent of the stock outstanding, but representing a majority of the Board of Directors were not in favor of such a sale.

On the 21st of May, at a meeting of the Directors of the McDonald Company the Directors by a vote of three to two, authorized the issuance of seven thousand additional shares and sold said additional seven thousand shares to Walter McDonald at a price of $37.50 per share.

That, without further embellishment, is the fact pattern upon which this case comes before this Court. The Carruthers-Jorling combination urge that the action of the Board of Directors on May 21st in selling the seven thousand authorized but unissued shares to Walter McDonald was void in that said Walter McDonald cast one of the votes necessary for passage; that without the vote of Walter McDonald there would be no majority vote.

The facts of this case do not bring it within the statutory law of Ohio. Nor do we have here the sale of control to an outsider as is found in the case of Insuran-shares Corp. of Delaware v. Northern Fiscal Corp. Ltd., 35 F. Supp. 22. Such an attempted sale by Carruthers-Jorling was aborted.

The Articles of Incorporation of McDonald Company contain two very significant provisions:

“1. Shareholders waive their pre-emptive rights.
“2. Stock issues shall be subscribed for and sold as determined by resolution adopted by the majority of the Board of Directors.”

It is elementary to state that the Articles of Incorporation are the basis for individual corporate existence and lay the foundation and limits for corporate action; thus, these provisions in the Articles of Incorporation must be given effect as binding on the corporate entity itself and upon the individuals who represent ownership of the entity. In the absence of fraud, the Court is constrained to hold that the action of the Board of Directors of the McDonald Company in issuing the seven thousand shares of stock to Walter McDonald at a price of $37.50 per share is a valid exercise of its authority.

It cannot be denied that the Board of Directors had sufficient basis for its action. See the following.

(A) (Record page 110) “My purpose in purchasing the stock was to do what I said a moment ago, perpetuate the company on the basis it had originally been set up and to prevent what I saw was a situation where they needed some radical help.”

(Walter McDonald on cross-examination.)

(B) Testimony of President, Albert Broering on cross-examination found on pages 58-68 of the Record.

(C) Exhibit A, in particular pages 3 and 4, of the Minutes of the Special Meeting of the Board of Directors of McDonald Company of May 21, 1959.

The Court does not substitute its judgment for that of the Board of Directors: the Court holds that in the absence of fraud the situation arising here comes within the intent of the Articles of Incorporation of this closely held corporation.

Here is a closely held corporation whose Board of Directors owned forty thousand of the forty-two thousand shares outstanding. Surely, the intent of the Articles of Incorporation, as expressed, was that shareholder-directors would be entitled to a vote on such matters arising.

Now as to the sale price of $37.50 per share: $4.50 per share higher than the original standard offer; $2.50 lower than the offer by shareholder-director Carruthers. Witness Broering (page 42 of the Record) testified that $37.50 was “the valuation that was placed on the shares of stock by the Moody’s Investors Service in New York.” Witness Broering testified that several years ago the question of valuation of stock came up in regard to such valuation if death occurred to one of the shareholders, that it was decided to have Moody’s place a periodic valuation on the stock.

The Court acknowledges counsels’ citation of Canada Southern Oils, Ltd. v. Manabi Exploration Co., 96 Atl. (2d) 810, but feels that that case is not controlling on the facts presented to the Court in the instant action.

The record before the Court indicates that the Articles of Incorporation of the McDonald Company apply and control; that there was no fraud; that the action of the Board of Directors on May 21, 1959 was a valid exercise of the authority set forth in the Corporate articles; that the action of the Board of Directors is based on reasons which are sufficiently sound and valid; that the sale price of $37.50 per share to Walter McDonald represents a fair valuation.

Please present your entry accordingly.


author: By THE COURT.

text:
    Appropriation for Highway Purposes, BAUERMEISTER et, Plaintiffs-Appellees, v. TUNISON, Defendants-Appellants.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6047.
    Decided February 10, 1959.
    McClelland & McClelland, Columbus, for plaintiffs-appellees.
    Maugan, Vacca & Braun, Columbus, for defendants-appellants.
   OPINION

By THE COURT.

Submitted on motion of the defendants-appellees, Clara E. Bauermeister, et al., seeking an order dismissing the appeal on law and fact for the alleged reason that this court has no jurisdiction to entertain such an appeal in that this is not a chancery action.

The record reveals that the appellants, William E. Tunison and Mary E. Tunison, are lessees of real property owned by the lessors, Clara E. Bauermeister, et al„ appellees, and which was appropriated by the State of Ohio for highway purposes. The appropriation proceedings have been completed, and the sum of $20,000 has been paid into court as compensation and damages. The appellants thereupon filed an application to have the court determine the value of their leasehold in the appropriated premises, which the court fixed at $100. It is from this order that the appeal has been taken on law and fact. In a similar factual situation, this court, when a member of the Second Appellate District of Ohio, held in the case of the City of Columbus v. Huntington National Bank, et al., 75 Abs 214, that such an application was in the nature of an interpleader, and under §2501.02 R. C., an appeal on law and fact may be maintained.

We are still of the same opinion, and the motion will be overruled.

PETREE, PJ, BRYANT and MILLER, JJ, concur.


author: By BRYANT, J.

text:
    STATE, Plaintiff-Appellee, v. WATERS, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5696.
    Decided November 15, 1957.
    Samuel L. Devine, Pros. Atty., Fred L. Newsom, Jr., Asst. Pros. Atty., Columbus, for plaintiff-appellee.
    Russell H. Volkema, Columbus, for defendant-appellant.
   OPINION

By BRYANT, J.

James Russell Waters, defendant-appellant in this court, herein called defendant, was brought to trial in the Franklin County Common Pleas Court upon an indictment charging that on August 26, 1956, Waters robbed Arthur Lee Staten of money in the sum of nineteen ($19) dollars, within said county, contrary to the provisions of §2901.12 R. C.

The case was tried to a jury and the State presented the testimony of the complaining witness and two Columbus police officers, and rested. The defendant did not take the stand on his own behalf nor did he call any other witnesses. The jury returned a verdict of guilty. Thereafter, a motion for a new trial was filed and overruled, after which the court passed sentence. Defendant has appealed to this court on questions of law.

The first witness called for the prosecution was the complaining witness. Staten, and after some preliminary questions having to do with his residence, employment, etc., the following dialogue took place (Bill of Exceptions, pages 4 and 5) as follows:

“Q. I will ask you whether or not you had occasion on or about the 26th of August to meet the Defendant, James Russell Waters?
“A. Yes, sir.
“Q. Now, is James Russell Waters in the courtroom today?
“A. (Witness looks around courtroom.)
“Q. I will ask you to look at the table to your left.
“MR. VOLKEMA: I object.
“A. Yes, sir.
“THE COURT: Well, now, I wasn’t watching. Had he looked there first?
“MR. NEWSOM: He had looked there.
“MR. VOLKEMA: He looked there twice.
“THE COURT: Pardon? He had?
“MR. VOLKEMA: He had looked over there twice.
"THE COURT: Well, this is preliminary. I expect we had better let it stand for what it is worth at this point. You may have your exception, Mr. Volkema.
“MR. VOLKEMA: Exception.”

It is the above portion of the trial of this case to which defendant makes most strenuous objection. Defendant urges that the statement by the assistant prosecuting attorney, after asking the complaining witness whether Waters was in the courtroom today, “I will ask you to look at the table to your left” amounts to pointing out the defendant for the complaining witness, that it is misconduct on the part of the prosecuting attorney, that the damage to the defendant amounted to “irreparable prejudicial error” for which the only remedy was a dismissal for all time of the indictment. A motion to that effect was overruled by the trial court.

Defendant sought permission to subpoena the entire jury “to testify concerning whether or not the prosecuting witness identified the defendant at the trial prior to the time of the error in dispute.” (Bill of Exceptions, page 95.) This request was denied by the court, who gave defense counsel permission to send affidavits “containing statements of facts supporting his contention to each member of said jury for his or her signature.”

We do not regard the question asked by the assistant prosecuting attorney as misconduct of counsel. While it may have been objectionable as leading, this being direct examination, the harmful effect, if any, was removed by the statements of counsel made then and there that the witness had looked either once or twice before at the defendant without rcognizing him.

The defendant complains of the refusal of the trial court to permit him to subpoena the entire jury. We are at a loss to understand the purpose sought to be accomplished by the testimony of the members of the jury The trial court, of course, was present at the time the incident occurred. It was agreed by both sides that the complaining witness looked at the defendant once or twice without having identified the defendant. The only difference between the prosecution and the defense was whether the complaining witness looked once or looked twice. It would appear that no useful purpose would have been served had the testimony been offered to the court.

It must be borne in mind that no question is made of any act or omission on the part of the jury. It is not claimed that they were guilty of any misconduct. The courts of this State have regarded the operations of juries as something which should be protected with the greatest amount of care. It has been held in Ohio to be the general rule that jurors' affidavits are not admissible to impeach their verdict. In Farrer v. The State of Ohio, 2 Oh St 54, the syllabus provides in part as follows:

“The general rule, undoubtedly, is that affidavits of jurors are not admissible to impeach their verdict. * * *”

In course of the opinion, Corwin, J. at page 56 of the Farrer ease, supra, said:

“I have no doubt the general rule of policy, and a just regard to the sanctity of the province in which the jury is appointed to act, are against the reception of such evidence, in an ordinary case; but in one where life, or even liberty, is threatened by misconduct of the jury, it will readily be conceived that circumstances may exist which would not only admit, but demand, the examination of members of the jury as to their alleged bad behavior. In every such exceptional case, a foundation must undoubtedly be laid for the introduction of affidavits by jurors; and it would seem that this foundation ought, in general, to consist of knowledge acquired by the court by other means than the affidavits of jurors themselves.”

In the Farrer case, supra, the jury had retired to their jury room to deliberate on the case before them and had communicated with friends through the open window of the jury room and had been asked various questions with regard to the case.

See also Kent v. State, 42 Oh St 426 and Goins v. State, 46 Oh St 457. In the Goins ease, supra, there is a clear explanation of the reasons why jurors are not permitted to testify with respect to their deliberation on a case. It is pointed out that if such testimony were permitted, it might well be that the rendering of a verdict “would become merely the beginning of a new controversy over the mode of its rendition.”

Bradbury, J., in the course of his opinion in the Goins case, supra, at pages 471 and 472 wrote as follows:

“Misconduct of the jury is alleged, and the affidavits of the jurors offered to prove it; * * *. There was no other evidence of this misconduct than the affidavits of the two jurors; * * *. The court held them not competent, which consequently left the allegation of misconduct without proof. ■ The almost unbroken current of authority support this holding * * *.
“As a general rule, no doubt, this doctrine is founded on the soundest principles of public policy, otherwise the rendition of a verdict, in nearly every jury trial, would become merely the beginning of a new controversy over the mode of its rendition, endangering the stability of verdicts and the security of judgments rendered thereon; and the time and attention of courts would be wasted in investigating alleged misconduct of jurors, frequently of the most frivolous character. * * *”

See also Schwindt et al., v. Graeff et al, 109 Oh St 404, in which the syllabus provides as follows:

“The rule that the verdict of a jury may not be impeached by the evidence of a member of the jury is a common-law rule founded upon public policy, and not upon the doctrine of estoppel, and the fact that a juror offering such impeaching evidence did not join in the verdict does not exempt such evidence from the operation of the rule. The Legislature, and not the courts, is empowered to modify or abrogate the rule.”

See also Emmert v. The State of Ohio, 137 Oh St 235, decided in 1933.

We conclude that the testimony of the jury sought by the defendant herein would have been totally inadmissible and we agree with the trial court in refusing to subpoena the jury under these circumstances. We are unable to see any value in the affidavits sent to the members of the jury. The only point at issue was whether the complaining witness looked once or looked twice at the defendant and this issue is completely straddled by the affidavit form.

The defendant also urges that the judgment was against the manifest weight of the evidence and contrary to law. We do not agree but we feel there was adequate evidence to sustain the verdict óf the jury. The defendant did not choose to take the stand although given the opportunity to do so. While he had a right to refuse to take the stand, the jury had a right to take this fact into account. After reviewing the various assignments of error we are of the opinion they are not well taken and should be overruled and the judgment and sentence of the court below should be and hereby is affirmed.

PETREE, PJ, MILLER, J, concur.


author: By PHILLIPS, J.

text:
    CENTURY FOOD MARKETS CO., Plaintiff-Appellant, v. NATIONWIDE MUTUAL INSURANCE CO., Defendants-Appellees, MANUFACTURERS & MERCHANTS INDEMNITY CO., n. k. a. SELECTIVE INSURANCE CO., Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 4008.
    Decided October 28, 1958.
    George M. Jones, Youngstown, for plaintiff-appellant and defendant-appellant.
    William E. Pfau, William E. Pfau, Jr., Youngstown, for defendantappellee, Nationwide Mutual Insurance Co.
   OPINION

By PHILLIPS, J.

Plaintiff, Century Food Markets Co., called Century, and defendant, Manufacturers & Merchants Indemnity Co., now known as Selective Insurance Company, called Selective, appealed on questions of law from a judgment of the court of common pleas in case number 15128 dismissing plaintiff’s action for a declaratory judgment.

The agreed statement of facts upon which Century’s action was submitted to the court of common pleas discloses that the left hand of defendant, Mike Stanish, called Stanish, was injured on September 14, 1956, when an employee of Century closed the door of Stanish’s automobile on his hand while loading therein purchases Stanish had made from Century.

Stanish in case number 151068, entitled Mike Stanish v. Century Food Markets Company, sued Century to recover damages for the injuries he sustained.

When Stanish commenced such suit to recover damages for his injuries allegedly caused by the negligence of Century’s employee Stanish was insured against liability by Nationwide Mutual Insurance Company, called Nationwide, formerly known as Farm Bureau Automobile Insurance Company, called Farm Bureau, and Century was insured by Manufacturers & Merchants Indemnity Company.

Century notified the attorneys for Selective of the incident in which Stanish allegedly was injured, and after much negotiation between the parties, unnecessary to state here, Century notified Stanish’s insurer, Nationwide, on February 13, 1957, of the occurrence of the incident and requested Nationwide to defend Stanish’s action against Century. On February 19, 1957, Nationwide denied coverage to Century and stated the incident occurred because of Century’s operation.

Thereafter Century commenced the action from which this appeal is taken for declaratory judgment asking the court to hold that the liability policy of Farm Bureau on the automobile of Stanish extended coverage to Century in the action brought by Stanish against Century.

Selective’s policy of insurance issued to Century provides inter alia as follows:—

“Coverage B. Bodily injury liability — except automobile. To pay on behalf of the insured ail sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law, or assumed by him under contract as defined herein, for damages, including damages for care and loss of services, because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person or persons and caused by accident. * * *
“13. Other insurance. If the insured has other insurance against a loss covered by this policy the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insurance under this policy with respect to loss arising out of the use of any non-owned automobile shall be excess insurance over any other valid and collectible insurance available to the insured, either as an insured under a policy applicable with respect to such automobile or otherwise.

In its policy issued to Stanish Farm Bureau agreed: —

“Coverage F. — Bodily Injury Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by the accident and arising out of the ownership, maintenance or use of the automobile.”

Farm Bureau’s policy under purposes of use defined “use” as follows:—

“(c) Use of the automobile for the purposes stated includes the loading and unloading thereof.”

Under the definition of “insured” that policy stated:—

“With respect to the insurance for bodily injury liability and for property damage liability the unqualified word ‘insured’ includes the Named Insured and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the Named Insured or with his permission.”

Farm Bureau’s policy further provides:—

“* * * if the Insured has other insurance against a loss covered by this policy the Company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss. * * *
“When an accident occurs written notice shall be given by or on behalf of the Insured to the Company or any of its authorized agents as soon as practicable. * * ■*
“The Insured shall not, except at his own cost, voluntarily make any payment, assume any obligation or incur any expense other than for such immediate medical and surgical relief to others as shall be imperative at the time of accident. * * *
“No action shall lie against the Company unless, as a condition precedent thereto, the Insured shall have fully complied with all the terms of this policy.”

On the foregoing facts Century and Selective contend that the trial judge erred to their prejudice in dismissing Century’s petition for declaratory judgment and overruling their motion for new trial and entering judgment against them.

Century and Selective argue that coverage on the Stanish automobile was extended to Century, the additional assured, and contend that the provisions of Nationwide’s policy quoted supra, together with the unquoted provision to “defend any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false, or fraudulent,” and the further provision “but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient” afforded coverage to Century on the automobile of Stanish. Century and Selective claim this is one of the principal questions presented.

On the question that Nationwide coverage extended to Century appellants reason:—

“a. Century becomes an insured under the terms of the policy. It is agreed that the employee of Century was acting within the scope of his employment, therefore, when we are talking about the alleged tort feasor, we are speaking of Century itself. The facts are agreed upon that Century was loading Mr. Stanish’s automobile at the time that the injuries occurred to Mr. Stanish’s left hand.
“b. The act of Century in loading the automobile owned and operated by Mr. Stanish and insured by Nationwide was done with the express permission of the named insured, Mr. Stanish. This fact is not controverted.
“Thus, we have a situation wherein Century was loading an automobile with permission of the named insured wherein an injury resulted and thus, by the terms of the policy, Nationwide is obliged to come in and defend and assume any legal liability on the part of Century for the injuries sustained by Mr. Stanish.”

Nationwide contends generally that the main purpose of the declaratory judgment action was to require Nationwide to take over the defense of this case and the trial court held, in substance, that regardless of the ultimate coverage between the companies, the Manufacturers could not avoid its obligation to defend the action.

Nationwide takes issue with the following statement contained in the opinion of the trial judge:—

“To say the least, for a named assured to make claim under a policy issued to protect him, on the ground that it covers the liability of another using the car by loading it with his permission is inconsistent with the position of the named assured for whose protection the policy was primarily issued; especially since action was taken against Nationwide at the instance of a representative of Manufacturers which covered the public liability of Century to Stanish.”

As stated by the trial judge in his opinion “lack of notice as required by” Nationwide’s “policy” is without merit. The trial judge further said:—

“Whether notice as required by the policy was or was not given is a question of fact for the jury. The facts as stated in the agreed statement are not such that I can determine the question as one of law. Nationwide, if held to cover plaintiff’s claim can raise the question of notice in the usual way if it should defend under a reservation of rights and a supplemental petition is filed under 83929.06 R. C.”

We are impressed with and concur in the following statement contained in the trial court’s opinion supporting his decision:—

“The petition prays for an order declaring that Nationwide should take over and defend the action by Stanish against Century. Even if Nationwide were held to have covered the accident, it was also covered by the policy to Manufacturers. The provisions m the latter’s policy relating to other. insurance merely concern the sharing of liability. An obligation to defend is still upon Manufacturers. I, therefore, decline to make a determination which in effect would throw the entire burden of defense upon Nationwide.”

We have studied the record, assigned grounds of error, contentions, and oral arguments and briefs of counsel for the respective parties carefully, and conclude that the judgment of the trial court must be and hereby is affirmed.

NICHOLS, PJ, GRIFFITH, J, concur.


text:
    J. P. TRANSPORTATION COMPANY, In re.
    Public Utilities Commission.
    No. 4185.
    Decided June 16, 1958.
   ORDER

The Commission coming now to consider the above entitled matter, together with the evidence adduced at the public hearing conducted on November 22, 1957; the written report of Attorney Examiner Russell J. Spetrino; the exceptions to said report filed on behalf of the Applicant; the reply thereto filed on behalf of the Protestants; and being otherwise fully advised in the • premises and in compliance with §4903.09 R. C., hereby renders the following opinion:

NATURE OF THE APPLICATION and SUMMARY OF THE EVIDENCE:

The Commission hereby adopts as its own, as if fully rewritten herein, the paragraphs found under the headings “Nature of the Application” and “Summary of the Evidence” as the same are contained in the written report of its Attorney Examiner.

COMMISSION DISCUSSION:

The Commission hereby adopts as its own, as if fully written herein, the paragraphs found under the heading “Examiner’s Discussion,” as the same are contained in the written report of its Attorney Examiner. The following supplemental discussion is, however, deemed appropriate in view of the questions raised by the applicant in' its Exceptions.

This matter is before the Commission upon the application of J. P. Transportation Company, Inc., for a Contract Motor Carrier Permit to serve Armco. Steel Corporation. Protests against the granting of this application were entered at the time of hearing by Hauselman Transportation Company and Wilson Motor Transit, both of whom are Common Carriers by Motor Vehicle holding Certificates of Public Convenience and Necessity issued by the Commission. The written report of the Commission’s Attorney Examiner recommended that the within application for authority be denied for the reason that insufficient evidence was presented upon which it could be concluded that there exists on the part of this Shipper, a demand for motor carrier service which cannot be satisfied by the protesting carriers.

The applicant has taken exception to this conclusion for two reasons. First, it argues that the burden imposed by the Examiner was improper, since the present application was filed for the sole purpose of “transferring” this shipper from a permit upon which it is now listed, to the permit which the applicant proposes here to acquire. Second, the applicant has argued that if in fact this burden was properly imposed, it was also sustained by the evidence of record. There is, of course, no provision in our motor carrier laws for the transfer of a shipper from one contract motor carrier permit to another. The present application for authority was filed pursuant to the provisions of §§4923.05, 4923.06 and 4923.07 R. C. These sections prescribe the form and content of the application, the procedures to be followed in its prosecution, and the tests to be applied by the Commission when considering whether such application should be granted or denied. Sec. 4923.09 R. C., which section provides for the method by which an existing permit may be transferred from one holder to another, was not invoked; nor could this section have been invoked under the circumstances extant in this case.

Sec. 4923.07 R. C., provides, inter alia, that the Commission shall consider whether or not the proposed contract of carriage is in compliance with the law and the rules and regulations of the Commission relating thereto; whether or not the Applicant is a proper party to receive the authority which he requests; and whether or not the granting of the Permit will be consistent with the declared policy and purpose of the regulation of transportation by Common and Contract Carriers. In addition, the Commission must, in protested matters, apply certain additional tests set forth by the Supreme Court in several cases presented for its determination. The second and third paragraphs of the syllabus in the case of Jones v. Public Utilities Commission, 141 Oh St 237, were set forth in the report of the Commission’s Attorney Examiner. Without again quoting this portion of the syllabus, suffice it to say that the Court has required an Applicant for Contract Carrier authority to present sufficient facts to enable the Commission to find that the granting of the application will comport with the declarations of policy contained in §§4921.03 and 4923.07 R. C. Furthermore, where such an application is protested, the Applicant is required to show that the service he proposes to render will fill some deficiency in the service of protesting carriers.

No valid reason has been advanced as to why the above tests should not be applied in the present matter. It is true that the Applicant proposes to succeed an existing Contract Carrier now authorized to serve this same Shipper. It is equally true that the provisions of the contracts between the Applicant and this Shipper are identical with those contained in the contract between the Shipper and that Contract Carrier proposed to be succeeded. No evidence was presented, however, that the services proposed to be rendered under the present contract are identical with those now being performed; nor was an assertion even made that they are intended to be.

The Applicant has argued strenuously that the Commission has, for the past decade, permitted a Shipper already listed upon the Permit of one Contract Carrier, to be removed from this Permit and listed upon the Permit of another. The Commission does not now quarrel with this statement. However, we cannot conceive of how the denial of the present application will result in the abrogation by the Commission of this position. There is no apparent reason why a Shipper should not be permitted to avail itself of the services of a new Contract Carrier as a substitute for the services of one of its existing Contract Carriers, provided, however, that the substitute carrier complies with the provisions of the law under which it voluntarily files application. Such a requirement cannot seriously be considered to impose a mere “restrictive technical restraint” as suggested by counsel for the applicant.

A distinctly different situation would here have been presented if the evidence introduced in support of this application disclosed that the Pringle Trucking Company had been and was now performing certain specifically described services for Armco Steel Corporation; that these services were being performed to fill some deficiency in the service capable of being rendered by existing Common Carriers; that Pringle Trucking Company was expected to discontinue its service and had agreed to do so contingent upon the granting of this application; that the discontinuance thereof would again place this shipper in the position of requiring a motor carrier service upon which it had come to rely, and which could not be secured from existing Common Carriers: and that it intended and proposed that the Applicant should fill this demand for service.

The evidence of record does not, however, even suggest this to be the case. Instead, the record is devoid of any evidence as to the character or extent of service being rendered by Pringle Trucking Company; nor does it reflect the position which this carrier occupies in relation to all of the other carriers needed to satisfy the transportation demands of Armco Steel. The total lack of specific evidence in this respect was clearly disclosed by the testimony elicited upon cross-examination of the General Traffic Manager for Armco Steel Corporation. The following testimony, for example, appears at Pages 26 and 27 of the transcript:

“Q. Now are you' acquainted with the service that you havetofore called upon Pringle to provide for you under Permit 415?
“A. In a general way, yes.
“Q. Can you tell me what destination points he has served out of Middletown for your company?
“A. I couldn’t tell you. I don’t have the—
“Q. You don’t have any abstract or anything like that showing the particular shipments?
“A. Not with me, no.
“Q. Do you have any idea what the volume of shipments would be that he handled for your account?
“A. I couldn’t tell you that. I don’t have those figures.”

The basis for the argument advanced by the Applicant is that, because of the fact that the respective contracts between Armco and Pringle and Armco and this Applicant are identical in their terms, no additional service would be authorized. Despite this fact, it cannot reasonably be concluded that the granting of the present application will in no way affect competition in this area, or will not result in a diversion of traffic from existing Common Carriers, the service of which is admittedly “generally satisfactory” (R. 32). Such a conclusion becomes even more difficult to draw in light of the testimony received that Armco Steel Corporation is offering little or no traffic to certain of its other existing Contract Carriers. (R. 27-31.)

The policies herein discussed with respect to this application for Contract Carrier authority are in complete accord with the procedural policies now followed by the Commission in analogous certificated matters. Where, for example, companion applications have been filed, the first of which seeks a grant of new authority, identical substantively with that authority sought to be abandoned by the second application, the Commission has required that the first such application be supported by evidence that the Public Convenience and Necessity require the service proposed to be rendered. This is true despite the fact that no additional authority will be outstanding. What formerly was authorized to be performed by one Common Carrier is proposed to be performed by another. The section of the law under which such an application is filed must simply be followed; this is precisely what has here been required.

In order to assure, however, that this Applicant is afforded full opportunity to present all of the evidence necessary to support its application, so that it will not be prejudiced if, in fact, a change in procedural policy has been adopted, the Commission is of the further opinion that this matter should be reopened for the purpose of permitting the Applicant to submit additional evidence in support of its application and will so order.

FINDINGS:

Upon a consideration of the evidence of record, the written report of its Attorney Examiner, the exceptions to said report and the reply thereto, the Commission hereby adopts, as if fully rewritten herein, the paragraphs found under the heading “Findings” as the same are contained in the written report of its Attorney Examiner, and makes the following additional finding:

That the Applicant should be afforded an additional opportunity to present evidence in support of its application in conformity with the discussion hereinabove set forth.

ORDER

It is, therefore

ORDERED, That the within application of J. P. Transportation Company, Inc. for a Contract Motor Carrier Permit, be, and the same hereby is, reopened and assigned for further hearing at 10:00 A. M. on Monday, July 7, 1958, at the Offices of the Commission.

THE PUBLIC UTILITIES COMMISSION OF OHIO

Entered in the Journal: Everett H. Krueger, Jr., Chairman

June 16, 1958 Ralph A. Winter

A true copy: Edward J. Kenealy

W. E. Herron, Secretary Commissioners


author: By DANACEAU, J.

text:
    MUTUAL FINANCE COMPANY, Plaintiff, v. MEADE et, Defendants.
    Common Pleas Court, Cuyahoga County.
    Nos. 722390, 722391, 722396, 722397, 722400, 722403, 722603.
    Decided July 21, 1959.
   OPINION

By DANACEAU, J.

These are actions in replevin brought by the Mutual Finance Company, plaintiff, against each of the above named defendants, each of whom purchased and received delivery of a motor vehicle at the showroom and place of business of N. J. Popovic, Inc., a licensed motor vehicle dealer operating a Chrysler agency at 3167 West 117th Street in the City of Cleveland. Replevin is sought on the basis of possession of statements of origin from the Chrysler Corporation to N. J. Popovic, Inc. in the case of new automobiles and certificates of title in the case of used automobiles and wholesale chattel mortgages from N. J. Popovic to the Mutual Finance Company. The plaintiff will be referred to herein as Mutual and N. J. Popovic, Inc. as Popovic. The name of the purchaser, case number, type of car, and wholesale mortgage in the above entitled cases are as follows:

Purchaser Case No. Type of Car Wholesale Mortgage
Ernest Meade 722.390 1957 Plymouth $1,200.00
Wilbur Reese 722.391 1957 Chevrolet 950.00
William Klinger 722,396 1959 Chrysler 3,335.80
Louis H. Runge 722,397 1959 Chrysler 2,094.84
Municipal
Employees Union 722,400 1959 Chrysler 3,747.05
Employees Union 722,400 1959 Chrysler 3,802.20
Employees Union 722,400 1959 Chrysler 3,909.30
Employees Union 722,400 1959 Chrysler 3,747.05
Leonard P. Beachem 722,403 1959 Chrysler 3,178.65
John E. Housley 722,603 New Yorker-Chrysler 3,845.95
(724,272)

Each of the defendants, members of the general public, paid for and received delivery of the respective cars at the showroom and place of business of Popovic without actual knowledge or notice of such wholesale mortgages or of the floor plan to which Mutual and Popovic were parties, or that Mutual had possession of statements of origin or wholesale chattel mortgages, both unrecorded at the time of sale, and each of said defendants in part payment for the cars they received gave Popovic a note and mortgage, which was then and there approved and accepted by Mutual, to whom Popovic assigned said retail notes and mortgages. Although the retail mortgages were on the same automobiles covered by the wholesale mortgages, Mutual disbursed the amounts loaned on the retail mortgages to Popovic without cancelling the floor plan mortgages. Mutual is now demanding payment from the purchasers on the retail notes and mortgages and is at the same time asserting its lien in these replevin actions on the wholesale or floor plan mortgages from Popovic.

Each of the defendants by answer and cross-petition claims that they are innocent purchasers of automobiles, that as to them the wholesale or floor plan mortgages are invalid by reason of the knowledge and conduct of Mutual, that they are entitled to certificates of title which are being wrongfully withheld, and they accordingly seek equitable relief and damages.

For more than eight years ending in April 1959 Mutual exclusively furnished all the floor planning or wholesale financing of Popovic. Prior to January 1958 the statements of origin and the new motor vehicles were delivered to Popovic. Thereafter, finding that Popovic was “not. financially secure enough” Mutual insisted that such statements of origin be sent directly to the finance company and kept in its possession to be released by it upon payment by Popovic of the amount advanced with respect to the particular motor vehicles. It appears that Popovic had some financial difficulties at that time and that four motor vehicles had been sold and payment received by Popovic but not remitted to Mutual. In the language of the automobile business such conduct and default placed Popovic “out of trust.” Mutual then gave financial help through a capital loan of $18,257.00 to be repaid by Popovic in installments of $90.00 each time an automobile was sold. (There is now due on this loan the sum of approximately $600.00.) Popovic received these funds by way of credit on his floor plan as follows:

$12,143.60 — payment to Mutual on four cars “out of trust”
6,114.35 — partial payments on twelve cars on floor plan not sold

The arrangement and understanding between Mutual and Popovic with respect to the floor plan was continued. Accordingly, motor vehicles were delivered by Chrysler to Popovic to be offered, sold and delivered to general public purchasers in the usual course of trade at the showroom and place of business of Popovic. The statements of origin by Chrysler were sent to and kept by Mutual and were unrecorded. Mutual also received from Popovic a wholesale note and mortgage which also remained unrecorded at the time of sale to the general public. Popovic also gave Mutual power of attorney authorizing one of its officers to sign chattel mortgages on behalf of Popovic. Upon sale and delivery of automobiles to the general public Popovic committed itself to transmit immediately to Mutual all funds so received and secure releases of such motor vehicles from the floor plan mortgages. On failure so to do, Popovic would be “out of trust.”

Mutual policed the floor plan by periodic monthly floor checks at the place of business of Popovic. When cars for which Mutual had not received payment were missing, explanations from Popovic were requested. Explanations such as “The purchaser has not as yet paid for the car” were readily accepted without further investigation.

It appears that Popovic had further financial difficulties as a result of which a meeting between Mutual, Popovic and representatives of the Chrysler Corporation was held in October 1958. Mr. Popovic furnished $25,000.00 of his personal funds to his corporation and the floor plan continued with a limitation, however, on the number of automobiles to be acquired by Popovic from Chrysler.

On April 7, 1959 Popovic admitted to Mutual that it was “out of trust.” A floor check followed on April 8th and about twenty-five floor plan cars were found to be missing. Mutual then proceeded to move in and by April 17 th had repossessed the floor plan automobiles on Popovic’s premises. On April 23rd Mutual instituted these proceedings in replevin, predicated on the defaulted floor plan mortgages from Popovic. N. J. Popovic, Inc. is now in bankruptcy in the Federal District Court.

Mutual holds a retail note and mortgage given as part of the purchase price from each of the above named defendants who did not have actual notice or knoweldge of the wholesale mortgages from Popovic to Mutual on the same cars or that Mutual had possession of the statements of origin from Chrysler to Popovic. It is to be noted further that at the time the motor vehicles were purchased and delivered the certificates of origin and the floor plan mortgages were not recorded or noted with the Clerk of Courts.

Wherever retail financing was necessary as part payment to complete a sale, except of course in those cases where the purchaser had some other finance company, Popovic called Mutual. Mutual was given the terms of the transaction, the identity of the purchaser, the general type of car, and in turn gave approval of the loan. Popovic had on hand the necessary blanks which were accordingly filled out and signed by the purchaser. The motor vehicle was then delivered to the purchaser with the understanding that the dealer would forward the certificate of title, a charge therefore having been made and paid. Sec. 4505.08 R. S., in part reads;

“In the case of the sale of a motor vehicle by a dealer to a general purchaser or user, the certificate of title shall be obtained in the name of the purchaser by the dealer upon application signed by the purchaser. In all other cases such certificates shall be obtained by the purchaser. In all cases of transfers of motor vehicles, the application for certificate of title shall be filed within three days after the delivery of such motor vehicle.”

Popovic forwarded the retail note and mortgage in an envelope, the face of which was a draft for the net amount of the loan. Also set forth on the face of the draft was the name of the purchaser and the make, model and serial number of the motor vehicle. Usually the certificate of title was not in the draft envelope, but was forwarded to Mutual at a later date. Mutual paid Popovic the amount of the draft, but did not cancel its floor plan mortgage lien. It proceeded to enforce payment of the retail note and mortgage and sent a written notice to each purchaser that it held such note and mortgage and set forth therein the name of the dealer, the date purchased, the date of the note, the description of the motor vehicle and its serial number and the amount of the note and the amount and date of each installment. A coupon payment book accompanied each notice and Mutual has received a number of payments in some of the cases..

Mutual knew that it held floor plan notes and mortgages on each of the cars involved in the above named cases. They form the very basis of these replevin actions. Mutual knew that it had a statement of origin on each new car at the Popovic showroom and cannot possibly claim that it did not have actual knowledge that it was approving and accepting a second or retail mortgage on the very same car. Mutual also knew that it floor planned the used cars on the premises of Popovic and that it held the certificates of title in such cases. It therefore knew that it was approving and accepting a second or retail mortgage on the same car.

A mere inspection of the drafts, the face and the enclosure, would have disclosed the name of the purchaser and the serial number of the car. Mutual cannot disclaim knowledge because the individual sent to pay the draft did not inspect the draft or its contents, did not check further in the office records, or did not personally know what the Mutual files would disclose. Mutual cannot disclaim knowledge, which it clearly had, because one of its personnel or one department did not know what the remaining personnel and departments must or should have known and what their files would have disclosed.

In approving and accepting the retail notes and mortgages given by innocent purchasers (with warranties therein against other liens) on motor vehicles on which it already claimed floor plan liens and in forcing payment thereon, Mutual must be deemed to have extinguished its floor plan or wholesale mortgage liens and it must now look to Popovic as its debtor for any monies due. Otherwise Mutual would be party to the perpetration of fraud on such innocent purchasers who acquired their automobiles in good faith in the usual course of trade and without notice of the floor plan mortgages. The floor plan to which Mutual and Popovic were parties gave such purchasers every right to believe that Popovic was the owner of the motor vehicles and had every right to sell and deliver the cars and would thereafter furnish certificates of title. Mutual clothed Popovic with such authority to the buying general public and the acts of Popovic with respect to such innocent purchasers must be deemed to be the acts of Mutual.

Ohio has adhered to the floor plan doctrine described in 9 O. Jur. 2d 241, as follows:

“* * * The rule adopted in Ohio as to such mortgages — which rule nas been termed the ‘floor plan’ rule — is that such a mortgage is void as against a bona fide purchaser without notice, on the theory that, notwithstanding the conditions of the mortgage and its record, an inference of apparent authority in the dealer to sell arises from the fact of his permission to exhibit the property, estopping and precluding the mortgagee from asserting the mortgage against such person. This rule is designed to protect the buying public who, without notice, purchase automobiles in the usual course of business from automobile dealers, as against the owners or mortgagees of the automobiles who have clothed the dealers with apparent authority to sell.”

The floor plan rule is for the benefit of innocent purchasers without actual notice of the floor plan mortgage, acquiring the property in good taith in the usual course of trade. It does not apply to dealers who presumably are familiar with the registration and title laws nor does it apply to a pledgee or mortgagee. Syllabus 2 in National Guarantee & Finance Co. v. The Pfaff Motor Car Co. et al, 124 Oh St 34, reads

“2. The so-called floor plan rule, whereby an owner who has placed a car on the floor of a retail dealer’s showroom for sale is estopped to deny the title of an innocent purchaser who has purchased from such dealer in the ordinary retail dealing, without knowledge of any conflicting claim, does not apply to a pledgee or mortgagee.”

The application of the floor plan rule to innocent purchasers, but not to dealers, mortgagees or mere creditors makes significant the language in §4505.13 R. C., of the Certificate of Title Law, the pertinent part of which reads:

“* * * Exposure for sale of any motor vehicle by the owner thereof, with the knowledge or with the knowledge and consent of the holder of any lien, mortgage, or encumbrance thereon, shall not render such lien, mortgage, or encumbrance ineffective as against the creditors of such owner, or against holders of subsequent liens, mortgages, or encumbrances upon such motor vehicle.”

The Legislature has omitted from this provision the innocent purchasers to whom the floor plan rule would apply and has named the creditors and lien holders to whom the floor plan rule would not apply. The Legislature must have intended this provision to have some meaning. The construction given it by the plaintiff would make it entirely unnecessary as a part of the Certificate of Title Law. The provision therefore must have been intended to continue in effect the floor plan rule as it had been applied in Ohio. In Hostetler v. The National Acceptance Co., 36 Oh Ap 141, the syllabus reads:

“The holder of a chattel mortgage upon an automobile who permits the mortgagor, a retail automobile dealer, to place said automobile upon its salesroom floor for the purpose of sale to one who might be attracted thereby, will not be permitted to assert its mortgage against an innocent purchaser, who bought the car from said dealer in the ordinary retail way for value and without actual notice of such mortgage.”

Very apt are the words in the opinion of Judge Pardee at page 145 as follows:

“No tags or marks were placed upon the cars to warn or notify prospective purchasers that the cars were mortgaged, the mortgagee relying solely upon its mortgage and the constructive notice with which it claimed innocent buyers were charged, if the dealer failed to account for the money received from the sales.
“By the contract and by the course of conduct of the mortgagor and mortgagee, the mortgagor was allowed to hold itself out to the public as a retail dealer in automobiles, with the right to sell the mortgaged cars without let or hindrance; and now to permit the mortgagee to assert its mortgage against the defendant, an innocent purchaser in the usual course of trade for value and without notice, would be, under the circumstances of this case, a fraud upon such innocent party, and would permit the one who made the fraud possible to take advantage of its own wrong. We hold the mortgage, as against the defendant, to be void and of no effect.”

In his concurring opinion in Automobile Finance Co. v. Munday, 137 Oh St 504, 524 (decided 1940) Justice Matthias said:

“It is well settled that when an owner places a car on the floor of a retail dealer’s showroom for sale, and it is purchased in the usual course of business by one without knowledge of any conflicting claims, the purchaser will be protected and the owner estopped to set up his title against him.”

The main opinion, per Turner, J., states (p. 521):

“* * * The very purpose of the law is to protect ownership against fraud.”

The opinion further states:

“Under the facts in this case, plaintiff below was not entitled either to the right of property or the right of possession of this automobile. Although Usinger’s right of property may be defective by reason of his lack of possession of a certificate of title, the evidence clearly establishes that he had the right of possession.
“Replevin will not lie against one who has the right of possession at the time of the commencement of the suit.”

The Supreme Court reviewed the Certificate of Title Act and found in favor of the defendant, Usinger, notwithstanding he had no certificate of title. It is also to be noted that in the opinion of Justice Matthias in Workman v. Republic Mutual Insurance Co., 144 Oh St 37, it is said at page 48:

“Without deciding whether the legal title had passed, actual ownership with complete possession and control had certainly passed to Mrs. Rhodes, and if legal title had not been transferred as agreed, her right to a certificate of title was enforceable. Automobile Finance Co. v. Munday, 137 Oh St 504, 30 N. E. (2d), 1002.”

Plaintiff relies on Butler v. Case, 161 Oh St 288, in which it was held that the provisions of §4505.05 R. C., abrogated the common law of resulting trusts in Ohio with respect to motor vehicles. This was an action between the daughter and the estate of her father and the issue was whether or not a gift of the automobiles was established by the evidence. No fraud was claimed and no rights of an innocent purchaser were involved. It is significant that in the opinion, per Middletown, J., it was said:

“It is to be noted that neither fraud nor theft is involved in the instant case. This decision will not control in a situation where the facts may warrant a decision that a certificate of title under the Ohio act is voidable on account of fraud.”

A recent case before the Supreme Court was that of Lex Mayers Chevrolet Co. v. Buckeye Finance Co., 169 Oh St 181, decided April 29, 1959. The Court was equally divided and for that reason entered an affirmance of the judgment of the Court of Appeals which held that doctrine of equitable estoppel was applicable against a finance company and prevented it from asserting its rights based on the certificate of title. The opinion of the Court of Appeals appears in 107 Oh Ap 235, and the Syllabus reads:

“Where a loan company, which loaned money on a motor vehicle purchased by a minor, title to which was placed in the name of his stepfather, encourages the purchaser, after he reaches the age of majority, to leave such title in the name of his stepfather, and accepts full payment from the purchaser except the last payment which is paid by a dealer to whom the vehicle was assigned as a ‘trade-in’ by such purchaser; such loan company is precluded, by equitable estoppel, from asserting its rights, based on the certificate of title, in derogation of the rights of the assignee dealer.”

It would therefore appear that the scope of Butler v. Case is limited to the facts of that case and to similar situations; and that it was not intended to deprive a court of equity of the power to grant equitable relief to prevent fraud.

The floor plan rule as applied in Ohio was designed to prevent fraud.

The rule is universal and well settled that fraud is one of the grounds upon which equity will grant relief and that construcitve fraud, or inequitable conduct, is remedial in equity. Cases for relief against a constructive fraud appeal to the jurisdiction of courts of equity and constructive fraud is very properly under its supervision, there being no other adequate remedy. As stated by Justice Matthias in Workman v. Republic Mutual Insurance Co., supra, “her right to a certificate of title was enforceable.”

The Court finds from the evidence that the wholesale or floor plan mortgage liens on the motor vehicles involved herein are now void and of no effect, that the statements of origin and certificates of title pertaining thereto belong to the defendant cross-petitioners, that plaintiff may not in good conscience retain or withhold the statements or certificates from innocent purchasers for value beneficially entitled thereto, that a constructive trust is imposed as a means of prevention or correcttion of fraud, that plaintiff now holds such statements of origin and certificates of title as constructive trustee for the use and benefit of said cross-petitioners, and that plaintiff should take all steps necessary to provide the cross-petitioners with certificates of title, subject only to notations thereon of the retail mortgages signed and executed by them.

The evidence discloses no malice or evil motive on the part of Mutual Finance Company and no exemplary or punitive damages may be allowed.

Wherever the defendants have retained possession and use of their automobiles the compensatory damages are negligible, and none will be allowed. Wherever the defendants have been deprived of the possssion and use of the automobiles this Court will retain jurisdiction for the purpose of assessing compensatory damages. The plaintiff will pay all court costs.

The decree is for the defendants on their cross-petitions for the relief prayed for and the wholesale or floor plan mortgages held by plaintiff and upon which these actions in replevin are based are adjudged to be void and of no effect.


author: By THE COURT:

text:
    STATE, Plaintiff-Appellee, v. LEIGHLY et, Defendants-Appellants.
    Ohio Appeals, Second District, Greene County.
    No. 585.
    Decided September 2, 1957.
    Marshall Peterson, Pros. Atty., Xenia, for plaintiff-appellee.
    James F. Cox, Xenia, for defendants-appellants.
   OPINION

By THE COURT:

A motion is presented by appellant stating that “the attorneys for appellants cannot adequately argue the contentions of appellants unless an extension of time is granted within which the Bill of Exceptions, Assignment of Errors and Appellants Brief may be filed.”

The motion requests an extension of 60 days within which appellants may file their Bill of Exceptions, Assignment of Errors and Brief. With the motion is an entry sustaining it, approved by counsel for all parties.

We assume that this appeal is prosecuted as a matter' of right and that the extender requested refers to the time when the Bill of Exceptions shall be filed in the trial court. This time limitation is fixed by statute, §2945.65 R. C., “which in no case shall be more than 30 days from the overruling of the motion for a new trial.”

We have no authority to extend the tíme for filing the Bill of Exceptions in this case in the trial court.

If, after the Bill of Exceptions is settled and allowed in the trial court and filed in this court, appellants find that they have good cause for an extender of time within which to file assignments of error and briefs in this court, they may within the time provided in Rule VII (2) of the Rules of Practice of this court, 191 Oh Ap xxxviii, xl, make application for an extender.

The motion will be overruled.

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


author: Per CURIAM. NICHOLS, PJ.

text:
    McCarthy, Plaintiff-Appellant, v. YOUNG, Admr., Bureau of Workmen’s Compensation et, Defendants-Appellees.
    Ohio Appeals, Seventh District, Columbiana County.
    No. 770.
    Decided October 3, 1958.
    Marvin Traxler, Youngstown, Robert S. Hartford, East Palestine, for plaintiff-appellant.
    William Saxbe, Atty. Geni., John R. Barrett. Richard S. Hunter, Asst. Attys. Geni., Columbus, for administrator-appellee.
   OPINION

Per CURIAM.

Plaintiff appeals on questions of law from a judgment of the court of common pleas entered upon a verdict of a jury returned for defendant in a trial de novo had there on plaintiff’s appeal thereto from an order of the Industrial Commission of Ohio denying her the right to participate further in the Workmen’s Compensation Fund of Ohio.

On May 2, 1950, plaintiff employed by defendant, W. S. George Pottery Company, as a finisher “tripped” on a splinter on the floor of one of defendant’s buildings injuring herself, and allegedly has been totally physically incapacitated since that time.

Plaintiff’s medical witnesses testified that there was a direct causal relationship between plaintiff’s injury of May 2, 1950, and her subsequent disabilities. One of such witnesses testified:—

“I believe there was aggravation, her relation to nervousness and hypertension and the arthritis involving the shoulder and the allied conditions of the structures surrounding the shoulder is a direct relationship to the cause.”

Defendant’s medical witness testified:—

“Do I believe that she had anything wrong with her shoulder? l will say yes; as far as relative to 1950, I have no idea whether what she has is in relation to 1950 or not.”

The trial Judge properly refused to charge the jury in writing before argument the following requests to charge before argument submitted by the plaintiff:—

“Request No. 1.
“An injury may be the proximate cause of a workman’s disability not only in a case where it operates alone, but also in a case where operating in conjunction with other factors it proximately contributes to the present disability.
“Therefore, if you find from a greater weight of all the evidence in this case that the plaintiff, Mabel McCarthy, sustained an accidental injury in the course of and arising out of her employment, which proximately contributed to her present disability, then your verdict must be for the plaintiff.”
“Request No. 2.
“I charge you that if you find from the greater weight of all the evidence in this case that on the 2nd day of May, 1950, Mabel McCarthy sustained an accidental injury in the course of and arising out of her employment, and if you further find that her disability is proximately attributable, in whole or in part, to such injury, then I charge that your verdict should be for the plaintiff, Mabel McCarthy, and you will find that she is entitled to participate in the benefits under the Workmen’s Compensation Laws of Ohio.”
“Request No. 3.
“You are instructed that if you find from the greater weight of the evidence that the plaintiff, Mabel McCarthy, was injured in the course of and arising out of her employment with the defendant company, and further if you find from the greater weight of the evidence that the injury directly caused the plaintiff’s present physical condition, either by way of causation, aggravation or acceleration, then your verdict must be for the plaintiff.”

It is elementary that refusal of a trial court to give before argument such written requests as state correct propositions of law and are pertinent to the issues and evidence in a case is reversible error. It is not necessary that a special instruction contain all the law of the case.

In the case of Cleveland Ry. Co. v. Olsowa, 3 Abs 526, at page 527, it is said:—

“This charge does not necessarily have to embody all the law, if it embodies the correct principle of law and it is applicable to the case at bar, then it becomes incumbent upon the court to give that charge.”

This conclusion brings us forthwith to a consideration of whether any or all of such submitted requests contain correct propositions of law applicable to the evidence.

Plaintiff’s requests to charge before argument numbered one and two were misleading and confusing. They failed to define “present disability,” utterly disregarded the issue and assumed that plaintiff had proven a present disability. When request to charge number one was presented to him the trial judge pertinently observed:—

“I will refuse that for the reason that the question of whether or not she is presently disabled is a question to be submitted to the jury and I believe that the court does not have the right to assume that she is presently disabled.”

Request to charge number three was refused properly for the added reason that when this request was submitted to the trial judge, and was properly refused, appellant’s counsel redrafted the request and resubmitted it as request number five, which request was given by the trial judge. In request to charge number five the words “present physical condition” as used in request number three was changed to “arthritis, nervousness and hypertension.”

The jury was not bound as a matter of law to accept the testimony of plaintiff’s expert witness upon which plaintiff’s case was principally bottomed. This medical witness’s conclusion that plaintiff had a generalized arthritis was based upon the history given him by plaintiff many years after the injury, and on “what I had been told” (R. 97).

Apparently the jury felt that plaintiff simply failed to sustain the burden of proof imposed upon her.

The evidence is such that we cannot reverse the judgment of the trial court on the grounds that it is insufficient to support the verdict of the jury, or that it is against the manifest weight of the evidence.

The judgment of the court of common pleas is affirmed.

GRIFFITH and PHILLIPS, JJ, concur.

NICHOLS, PJ.

I concur in the judgment of affirmance. The special requests assumed a present disability.


author: By PETREE, PJ.

text:
    WADE et, Plaintiffs-Appellees, v. SMITH et, Defendants-Appellants.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6070.
    Decided December 23, 1958.
    McFadyen, Swisher & Warren, R. Rush Warren, of Counsel, Columbus, for plaintiffs-appellees.
    Henry A. Reinhard, Columbus, for defendants-appellants.
   OPINION

By PETREE, PJ.

Motion to dismiss was filed by plaintiffs, appellees herein. The motion reads as follows:

“Now come plaintiffs-appellees and move the Court for an order dismissing the appeal of defendants-appellants for failing to perfect their appeal within rule as required by law.”

Appellees urge that because nothing was done by defendants, appellants herein, to comply with Rule V of this court, the a” dismissed and not retained on questions of law. Volz v. Volz, 167 Oh St 141, is cited in support of that contention.

We cannot go so far. Volz v. Volz, supra, was based upon a case where an appeal was under §3109.07 R. C., and not under the general appeal sections, §§2505.04 to 2505.45 R. C.

In the instant case, we hold that the motion should be sustained in so far as the law and fact appeal is concerned; but since the appeal is general, the general statutes apply.

In Volz v. Volz, supra, the first paragraph of the opinion, found at the bottom of Page 143, contains the following language:

“Ordinarily, where there is an appeal on questions of law and fact to the Court of Appeals from a judgment of the Common Pleas Court and no appeal bond is filed (see §2505.06 R. C.), the Appeal should not be dismissed but should stand for hearing as an appeal on questions of law. See §§2505.03 and 2505.23 R. C., and Bauer v. Grinsted, 142 Oh St 56, 50 N. E. (2d), 334. However, although §2505.03 R. C., states that ‘every * * * decree * * * may be reviewed as provided in §§2505.04 to 2505.45 inclusive, R. C.,’ it also states that this may be done ‘unless otherwise provided by law.’ The Court of Appeals apparently determined that the review in the instant case should not be merely as provided in §§2505.04 to 2505.45 R. C., which are the general statutes relating to appeals, because it is ‘otherwise provided by iaw’ in §3109.07 R. C., which is a specific statute relatirig to appeals from decrees of the kind sought to be reviewed in the instant case.”

The motion to dismiss will be sustained as an appeal on law and fact and retained on questions of law. Assignments of error and appellants’ brief may be filed within thirty days from entry.

Motion sustained as limited above.

BRYANT and MILLER, JJ, concur.


author: By DOYLE, PJ.

text:
    HERMANN Extr. et, Appellants, v. CROSSEN Extr., etc. et, Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24725.
    Decided May 29, 1959.

      Spieth, Bell & McCurdy, for appellants.
    George Kerr, for appellee, John R. Crossen, as Executor, etc.
    L. C. Turnock, for appellee, Grace Lutheran Church.
    Calfee, Fogg, McChord & Halter, for appellee, The Cleveland Community Fund.
    Squire, Sanders & Dempsey, for appellee, Kenyon College.
    Mark McElroy, Atty. Geni., Mary L. Liberatore, Asst. Atty Geni., for appellee, Attorney General of Ohio.
   OPINION

By DOYLE, PJ.

The record before us discloses that Louis Hermann and Franklin A. Polk brought this action to contest the probated will of Anna L. Hirstius, deceased. The testament was executed by her, in the presence of witnesses, on March 12, 1956.

In the instrument she gave thirty-seven and one-half percent (37-V2 %) of her estate to a granddaughter, a like percentage to a daughter-in-law, and the balance of twenty-five percent (25%) to Grace Lutheran Church of Cleveland Heights, the Community Chest of Greater Cleveland, and Kenyon College of Gambier, Ohio. Each one of the latter was specifically given eight and one-third percent (8-1/3%) of the estate.

The contestants, Hermann and Polk, were not mentioned in the will which they now contest, but they were nominated and appointed as co-executors in a previous will executed by the deceased on August 13, 1952.

It is their claim, and they so pleaded, that:

“As executors named in the * * * (previous will) and as representatives of the legatees and devisees thereunder (they), are interested parties in said estate.”

John R. Crossen, executor of the estate of Mrs. Hirstius, and functioning under the 1956 probated will, demurred to the petition, as did the Attorney General of Ohio, for and on behalf of the public charities named as legatees, on the ground that the plaintiffs were not entitled to bring the contest action. Pursuant to hearing, the Court of Common Pleas of Cuyahoga County ruled:

“On the ninth day of September, 1958, the demurrers of John R. Crossen, Executor, William Saxbe, Attorney General of the state of Ohio, and the Cleveland Community Fund, came on for hearing before his Honor Earl R. Hoover, Judge of the Common Pleas Court, the plaintiffs and all three demurring defendants being represented by counsel. * * * The position of the three demurring defendants was on the basis that the plaintiffs, Louis Hermann and Franklin A. Polk, were not interested parties under the statutes to bring a will contest case. “Upon due and thorough consideration of the pleadings herein, the arguments of counsel and the citations submitted, the said demurrers as to each of the said defendants is sustained on the ground that the plaintiffs do not have the legal capacity to sue and the petition does not state a cause of action.
“The Court finds that the plaintiffs herein are not interested parties under the statute to a will contest action; and, plaintiffs not desiring to plead further, the petition herein is hereby dismissed and final judgment entered for all defendants.
«* * * »

From the judgment the plaintiffs have appealed, and by brief and oral argument pose the following question:

“But one question of law is presented — is one having an interest under a prior will as executor thereof entitled to maintain a suit to contest a later will? Stated differently and with relation to the facts alleged in the petition and admitted by the demurrers, the question is— are the plaintiffs as executors under a will executed on August 13, 1952, while decedent was competent, entitled to contest a will executed on March 13, 1956, while decedent was incompetent? We submit that the question must be answered in the affirmative.”

1. The statutory law in this state confers the right to contest a will admitted to probate, and this right can be exercised only in complete compliance with the provisions of the Civil Code. Peters v. Moore, 154 Oh St 177.

Sec. 2741.01 R. C., is in the following language:

“A person interested in a will or codicil admitted to probate in the Probate Court, or court of common pleas on appeal, may contest its validity by a civil action in the court of common pleas of the county in which such probate was had.”

The court sustained the demurrers to the petition by virtue of the provisions of §2309.08 R. C., which states that “The defendant may demur to the petition * * * when it appears on its face that * * * (C) the plaintiff has not legal capacity to sue * * and we construe the law of this state to mean that, where some of several necessary defendants in a will contest action demur to the plaintiff’s petition, on the ground that the plaintiff has not the legal capacity to sue, such demurrers inure to the benefit of all defendants, although some may be in default. Several of the defendants in the instant case are in default.

By virtue of §2113.05 R. C., executors appointed in a will are not, as a matter of right, entitled to appointment, even after the will is approved and allowed by the proper court, unless such person or persons are “suitable, competent, accepts the trust, and gives bond if that is required.” It seems apparent that a person does not become an executor of an estate until he has qualified for the office under the statute, and has been appointed to the trust by the court.

However, it is maintained by the appellants that, because §2741.02 R. C., requires “all the devisees, legatees, and heirs of the testator, and other interested persons, including the executor or administrator,” to be made parties to a contest action under §2741.01 R. C., “obviously, the legislature in §2741.02 R. C., defined the words ‘interested persons’ in §2741.01 R. C., to include an executor.”

We cannot advocate the adoption of this theory. When the legislature, in §2741.02 R. C., required specific classes of persons to be made parties to a will contest, and specifically mentioned “the executor or administrator,” it meant the executor, or administrator w. w. a., appointed under the probated will, and not one named in a previously-executed nonprobated testament. We have no doubt that an appointed administrator or executor may be said to be an interested person, in the sense of possessing the duties of a fiduciary to fulfill his obligations to the court and to his trust, and for that reason is required to be made a party, but we must concede that such officer of the court and fiduciary of an estate could not, in all probability, be called an “interested person” under §2741.01 R. C., and be permitted to contest the very document which contributed to the birth of his office. To hold otherwise would lead to a series of misleading equivocations and emasculate the statutes.

Under the guise of liberal construction of remedial statutes, we cannot say that persons named as executors in a will which has never been probated, and having no interest in the testator’s estate other than that they were named executors, are interested persons within the meaning of the Code. It would be a decisional paradox to say that a person named as an executor in a prior nonprobated will could contest a later-probated will which, in terms, revoked the prior instrument, when a named and appointed executor in a later-probated will has no such power.

When the legislature, in §2741.01 R. C., employed the words and phrases “A person interested in a will. * * * may contest its validity,” it meant that, to be “interested,” one must have a pecuniary interest in the devolution of the estate.

In Chilcote, Guardian, v. Hoffman et al, 97 Oh St 98, the court stated in a syllabus that:

“1. A person interested, within the meaning of §12079 GO (§12079 GC, is identical in substance to §2741.01 R. C.), is one, who, at the time of the commencement of an action to contest a will, has a direct, pecuniary interest in the estate of the putative testator, that would be impaired or defeated if the instrument admitted to probate is a valid will.”

In Bloor v. Platt, 78 Oh St 46, at page 49, will be found this language:

“* * * Any person who has such a direct, immediate and legally ascertained pecuniary interest in the devolution of the testator’s estate as would be impaired or defeated by the probate of the will, or be benefited by setting aside the will, is ‘a person interested.’ ”

See also: Donovan et al, v. Decker, Exr. et al, 98 Oh Ap 183.

The word “devolution” we interpret to mean the transferance of property from one person to another.

We, therefore, in the light of the decisions of Ohio courts, which have created the precedent, determine that one who has a pecuniary interest in the transferance of property by will, which pecuniary interest would be injured by the devolution of property under the will, or be benefited by a successful contest of the instrument, is an “interested person” within the meaning of the statute, and is a proper party to bring an action under the statute. Executors named in wills executed by a testator previous to the execution and probate of a testator’s last will and testament, do not fall within this class of persons.

The appellants make the points that, “the second and contested will is presumed to be invalid”; and that “it was the duty of the executors of the first will to contest the second.” They claim that the first will was executed at a time when the decedent was of sound mind and memory and under no legal disability; but that when she executed the second will she was “mentally incompetent,” having been so declared by the Probate Court of Cuyahoga County; that she was under guardianship because she was “not capable of taking proper care of herself and her property.”

The foregoing declarations of incompetency are contained in the petition, and the appellants assert that, “since the demurrers admit that the decedent, Anna L. Hirstius, was adjudged to be mentally incompetent * * * just prior to the preparation and execution of the second will of March 13, 1956, she is presumed to have been mentally incompetent to execute the second will.”

Assuming, for the purpose of the following discussion, that the claimed mental incompetency of the deceased is properly pleaded, we find the assertion untenable that the probated will is “presumed to be invalid.” To the contrary, the statute provides, in §2741.05 R. C., that, on the trial of the issue in a contest, as provided by §2741.04 R. C., “the order of probate is prima-facie evidence of the attestation, execution, and validity of the will or codicil.”

In Van Demark et al, v. Tomkins, Exr. et al, 121 Oh St 129, appears the following:

“In an action to contest a will, the jury should be instructed that, before it would be justified in setting aside a will, the evidence tending to invalidate the will must outweigh both the evidence tending to sustain the will and the presumption arising from the order of the probate court admitting the will to probate as the valid last will and testament of the testator. * * *”

There is no presumption of the invalidity of the will here attempted to be placed in contest. The most that can be said for the claim is that, by virtue of the order of the Probate Court, appointing a guardian for the reasons indicated, if the will had been properly contested, the court and jury would have been bound by the following rule of law:

“4. While every person is presumed to be of sound mind, yet when a person has been declared insane by a court of competent jurisdiction and is under guardianship, the presumption of sanity is not only removed but a presumption of insanity arises. Where a will of such a person, made after such adjudication, having been admitted to probate, becomes the subject of a will contest, the burden of proof by statute being cast upon the contestants of the will, the presumption of continuance of such insanity was a rebuttable one and would be removed when sufficient evidence had been introduced to meet, extinguish, rebut, countervail or overcome such presumption arising from the adjudication of insanity.” Kennedy, Exr., v. Walcutt, 118 Oh St 442.

However, regardless of the presumption of insanity, under the rule stated in the preceding paragraph, if the deceased had sufficient mind and memory when she executed her last will — (1) to understand the nature of the business in which she was engaged; (2) to comprehend generally the nature and extent of her property; (3) to hold in her mind the names and identity of those who had natural claims upon her bounty; and (4) to be able to appreciate her relation to the members of her family — then she had testamentary capacity. Niemes v. Niemes et al, 97 Oh St 145.

We indulge the presumption that the Probate Court, in admitting the will to probate, followed the law as set forth in §2107.14 and §2107.18 R. C., and other pertinent sections in Chapter 2107 R. C. Under such circumstances, the will is not “presumed to be invalid.” The probate of the will is now conclusive as to its due execution and validity.

As to the claimed “duty of the executors of the first will to contest the second,” we are aware of no such duty placed upon these persons by the statutes. Secs. 2741.01 to 2741.09 R. C., provide the exclusive mode of setting aside a last will and testament. Madden, Exr. and Trustee, v. Shallenberger, Gdn. et al, 121 Oh St 401, par. 3 of syllabus.

Judgment affirmed.

STEVENS and HUNSICKER, JJ, concur.


text:
    SCOTT et, Plaintiffs-Appellants, and NUSHAWG, Intervening Plaintiff-Appellant, v. FAYETTE COUNTY AGRICULTURAL SOCIETY, Defendant-Appellant.
    Ohio Appeals, Second District, Fayette County.
    No. 276.
    Decided October 21, 1954.
    Brownfield, Ford & Douglas, Columbus, for defendant-appellant and for the Motion.
    Carrington T. Marshall, Fred L. Orum, Columbus, for appellants, Earl Leroy Scott and Esther Scott Crone Contra-The Motion.
   OPINION

By THE COURT:

Submitted on motion of defendant-appellant to dismiss the appeal upon questions of law and fact of plaintiffs-appellants for the reason that they have failed to file an appeal bond as required by law.

An examination of the Bond at the present time is convincing that to all intents and purposes it was tendered and approved and the penal sum thereof fixed within the time provided by law, namely, September 10, 1954.

The Clerk of Courts is an officer of the Court. The fixing of the amount of the bond was the only act to be completed to make the bond effective. The Clerk had approved the bond “subject to an order fixing the amount thereof” on the 10th of September and the Court by entry fixed the amount on the 10th. The fact that the entry did not reach the Clerk until the 13th is not controlling.

So that the record may be correct an entry nunc pro tunc may be prepared showing the filing of the bond to have been made with the Court as of the 10th of September 1954.

Motion will be overruled.

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