author: Per CURIAM.

text:
    HALL OF DISTRIBUTORS, INC., Plaintiff, v. BOWERS et, Defendants.
    United States District Court, N. D. Ohio, W. D.
    No. 7446.
    Decided March 22, 1956.

      Dan H. McCullough, Richard T. Secor, John J. Schuchmann, Toledo, for plaintiff.
    C. William O’Neill, Atty. Geni., Kiehner Johnson, Asst. Atty Geni., Columbus, Robert A. Fries, Pros. Atty., Bowling Green, for defendants.

      Before ALLEN, Circuit Judge and KLOEB and CONNELL, District Judges.
   OPINION

Per CURIAM.

Plaintiff is a Michigan corporation authorized to do business in the state of Ohio and is engaged in sale, through the public auction method, of standard goods, including watches, electrical appliances, household goods, furniture, blankets, ironers, radios, television sets, washing machines, electrical driers, sporting goods and many other standard articles of jewelry and merchandise, not including diamonds.

Defendant Stanley Bowers is the Tax Commissioner of the state of Ohio, and the other defendants are county officers of Wood County, Ohio, all charged with the duty, among other things, of administering and enforcing the various sections of Ohio law in Chapter 1318. R. C., which became effective October 11, 1955.

Prior to October 11, 1955, plaintiff rented a premise in the city of Bowling Green, Wood County, Ohio, and advertised an auction sale of new merchandise to be held on the night of October 12, 1955. On October 11, defendants notified plaintiff of their intention to prosecute plaintiff under the penalty provision of §1318.99 R. C., if a public auction sale of new merchandise was conducted without compliance with §§1318.01 to 1318.07 of Chapter 1318 R. C. Plaintiff had made no application for license to conduct the sale.

Sec. 1318.02 R. C., requires a corporation which desires to conduct a new merchandise public auction sale to file with the County Auditor of the county in which such sale is proposed to be held an application for a license not less than ten days prior to the date such sale is to be held. Certain information relative to the corporation is required to be furnished in the application. Prior to the filing with the County Auditor of the application, the applicant must send to the State Department of Taxation, by registered mail, a notice of intent to conduct such sale.

Sec. 1318.03 R. C., requires the applicant for license to give a penal bond to the state, approved by and filed with the auditor of the county in which such sale is proposed to be held, in the sum of the value of the new ■ merchandise described in the application, for the satisfaction of all judgments, tax assessments, or fines against the applicant arising out of or by reason of such sale and for which an action of prosecution is commenced within one year after such sale, or in the case of taxes, the assessment of which is within one year after such sale. The statute further requires that the applicant and surety shall appoint the County Auditor as their agent for the service of process in any civil suit arising out of or by reason of the sale.

Sec. 1318.04 R. C., requires a license fee in the sum of. $10.00 per day for each day the sale is proposed to be conducted.

Sec. 1318.05 R. C., provides that the auditor of the county in which a new merchandise public auction sale is proposed to be held shall issue to an applicant therefor a license for such sale upon compliance with §§1318.02 to 1318.04 R. C., and upon presentation of the receipt provided for in §1318.04 R. C.

Sec. 1318.06 R. C., requires the licensee to file in duplicate with the auditor of the county in which such sale was held an inventory of all new merchandise sold at such sale and the price received therefor.

Sec. 1318.08 R. C., provides for certain exemptions from compliance with the Act and exempts a taxpayer who has filed a personal property tax return and has been assessed in the county in which the new merchandise is offered for sale by the taxpayer at his place of business. It requires such taxpayer to file with the County Auditor annually, and at least ten days prior to the first sale claimed to be exempt under the provisions of this section, an affidavit stating that such taxpayer or the consignor of such merchandise has filed a personal property tax return and has been assessed in the county in which the new merchandise auction sale is to be held. The statute further provides that a taxpayer who files such affidavit shall be the taxpayer within the meaning of §§5711.01 to 5711.99 R. C., which are the sections of law which require a taxpayer to file annually a personal property tax return and pay a tax on all taxable personal property.

Plaintiff complains that the aforesaid sections of Ohio law under Section 2 of Article IV and under Amendment XIV, Section l, of the Constitution of the United States, in that they set up standards which are vague and arbitrary and subject the complainant and its officers, agents, servants and employees to the arbitrary acts of the defendants and require of complainant standards which it cannot meet and which are not required of taxpayers in the state of Ohio who are taxpayers in the county of Wood; that the said sections of law are unconstitutional and void in that it is beyond the power of the Legislature of the state of Ohio to enact legislation which is discriminatory, stringent, oppressive and which, through its various provisions, places an unreasonable burden upon interstate commerce; that the enactment of the public auction sales law was not necessary to the health, morals, peace, convenience or safety of the citizens of the state of Ohio; that compliance with the Act would render the sales of new merchandise at public auction by the complainant uncertain and unprofitable, and that the said sections give to merchants of Wood County, Ohio, who are taxpayers therein special privileges and immunities not accorded to plaintiff.

Plaintiff asks that the complained of sections of the Revised Code of Ohio be declared unconstitutional and void, that the court restrain the defendants from the enforcement of the law, and that pending the final hearing and determination of this cause the court issue a temporary restraining order restraining the defendants from enforcing the said Act.

The complaint was accompanied with a motion for preliminary injunction and an affidavit in support thereof.

The nature of the complaint invoked the provisions of Sections 2281 and 2284 of Title 28, United States Code Annotated, and a three-judge court was duly impaneled. The matter was heard and, by agreement of counsel, was submitted on its merits, on the pleadings, briefs, stipulations and proffers of evidence of the parties, with leave to defendants to file a motion to dismiss the complaint, which was done in due course. Defendants moved the court to dismiss the complaint because plaintiff fails to state a claim against defendants upon which relief can be granted and the complaint does not state any substantial constitutional question.

Article IV, Section 2, of the Constitution of the United States reads as follows: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

The Fourteenth Amendment, Section 1, reads in part as follows: “* * «■ No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Plaintiff not having filed application for license to conduct a sale nor made any pretense at compliance with the provisions of Chapter 1318. R. C., we have given no consideration to its complaint that the Act sets up standards which it cannot meet and makes requirements which would render the sales of new merchandise at public auction by the complainant uncertain and unprofitable.

In the case of Smith v. Cahoon, Sheriff, 283 U. S. 553, at page 562, we find the following:

“* * * The appellant did not apply for a certificate, and the principle is well established that when a statute, valid upon its face, requires the issue of a license or certificate as a condition precedent to carrying on a business or following a vocation, one who is within the terms of the statute, but has failed to make the required application, is not at liberty to complain because of his anticipation of improper or invalid action in administration. Gundling v. Chicago, 177 U. S., 183, 186; Lehon v. Atlanta, 242 U. S., 53, 55, 56; Hall v. Geiger-Jones Co., 242 U. S., 539, 553, 554. This principle, however, is not applicable where a statute is invalid upon its face and an attempt is made to enforce its penalties in violation of constitutional right. * * *”

This case is followed in Highland Farms Dairy, Inc., et al. v. Agnew, et al., 300 U. S., 608, 616, where we find the following:

“* * * One who is required to take out a license will not be heard to complain, in advance of application, that there is danger of refusal. Lehon v. Atlanta, 242 U. S., 53, 56; Smith v. Cahoon, 283 U. S., 553, 562. He should apply and see what happens.”

We believe that plaintiff should not be heard to complain that the sections of law set up standards which it cannot meet and that these sections render the sales of new merchandise at public auction by the complainant uncertain and unprofitable until it has made a try at it.

In the consideration of this case, we desire to follow certain well known principles of law applicable to a case of this nature which we find well defined in the case of Feldman v. City of Cincinnati et al, 9 O. O. 149, 20 Fed. Supp., 531:

“1. The court has no right to reconsider or pass on the wisdom of legislation.
“2. The police power of the state acting as an arm of the state is an attribute of sovereignty.
“3. The validity of a statute passed in the exercise of police power depends primarily on whether it is reasonable or arbitrary.
“4. The fact that the court differs with the Legislature in its views of public policy or holds views inconsistent with the propriety of legislation affords no ground for judicial interference therewith, unless the act is unmistakably and palpably in excess of legislative power; the Legislature being primarily the judge of necessity of enactments respecting local conditions.
“5. A statute is presumed to be valid and the burden is on the parties attacking it as violating the due process clause of the Fourteenth Amendment to show that its provisions are so clearly unreasonable and arbitrary as to deprive them of their property without due process of law.
“6. The court will not substitute its judgment for legislative discretion, in the absence of clear and palpable abuse of legislative power.
“7. Every possible presumption is in favor of the validity of a statute or statutes in question until the contrary is shown beyond rational doubt.”

We desire also to proceed on the premise that the business of the auction sale of merchandise is one that requires public supervision so that purchasers will not be imposed on or the owners of property sold at auction defrauded, and that the state, in the exercise of its police power, may limit or qualify this right. This principle of law we find in 5 Am. Jur., Section 3, page 447.

We desire to proceed further on the premise that an auction sale is not of itself a nuisance, but that the business is a legitimate subject of regulation to prevent abuses and frauds. 31 A. L. R., 299.

Plaintiff cites and relies upon the following cases: Nippert v. City of Richmond, 327 U. S., 416; Toomer v. Witsell, 334 U. S., 385; Sipe v. Murphy et al., 49 Oh St 536; Nickles v. Echelberger, 21 Abs 679; Myers v. City of Defiance, 67 Oh Ap 159, 21 O. O. 165; Frecker v. City of Dayton, 153 Oh St 14, 41 O. O. 109.

In the case of Nippert v. City of Richmond, the court concluded, at page 434, as follows: “The tax here in question inherently involves too many probabilities, and we think actualities, for exclusion of or discrimination against interstate commerce, in favor of local competing business, to be sustained in any application substantially similar to the present one. * * *"

The city of Richmond had adopted an ordinance which provided for an annual license tax in the sum of $50.00 on agents, solicitors and persons, firms or corporations engaged in the business of soliciting and, in addition thereto, a tax of one half of one percentum of the gross earnings, receipts, fees or commissions for the preceding license year in excess of $1,000.00.

The ordinance further provided that an applicant for a license must produce to the Director of Public Safety evidence of the good character of the individual, the members of the firm, or the chief officers of the corporation, as the case may be, and it shall thereupon be the duty of the Director of Public Safety to make a reasonable investigation of the character of said individual, each of the members of the firm, or each of the chief officers of the corporation, as the case may be, and if he be satisfied that the individual, the members of the firm or the principal officers of the corporation, as the case may be, be of good moral character and a person or persons fit to engage in the proposed business, he shall issue the permit.

The above considerations, among a number of others, led the court to the conclusion that the tax in question involved too many probabilities in favor of local competing business to be sustained in any application, and the quite apparent purpose of the ordinance to discriminate against solicitors and in favor of local merchants, led the court to hold the ordinance unconstitutional.

In the case of Toomer v. Witsell, the court held that two requirements of an act of the Legislature of the state of South Carolina relative to shrimp fishing rendered the act unconstitutional and in violation of the commerce clause of Article 1, Section 8 of the Constitution.

Section 3379 of the act required the payment of a license fee of $25.00 for each shrimp boat owned by a resident and a fee of $2,500.00 for each one owned by a nonresident. Section 3414 of the act required that owners of shrimp boats fishing in the maritime belt of South Carolina dock at a South Carolina port and unload, pack and stamp their catch before shipping or transporting it to another state, and the court was of the opinion that these requirements were in violation of Article 1, Section 8 of the Constitution. We do not find such discrimination in favor of a local industry and against a foreign industry in the case before us.

In the case of Sipe v. Murphy, the court concluded as follows on page 545: “Upon an examination of the ordinance under consideration, we are led to the conclusion, that its passage was not a reasonable exercise of the power to legislate on the subject of auctions, as conferred by §1692 R. S.”

In this case there appears to be a palpable discrimination between goods manufactured and sold in Columbus and imports into Columbus from the outside. The quite evident purpose of the ordinance was to create a monopoly by protecting local tradesmen and merchants against outside competition.

The case of Nickles v. Echelberger involved an ordinance of the city of Ashland, Ohio, which required any peddler, transient, person or persons within the limits of the city to obtain a license and permit for such business from the mayor. Mr. Rastetter was engaged as a driver for a bakery and he received his load in the morning and settled at night for the articles sold, and was paid a salary with commissions by the bakery that manufactured the bread. The case turned on the point that Rastetter’s employer was a manufacturer and that, under the provisions of §3672 GC (§715.63 R. C.), the manufacturer’s agent had a right to sell goods of his own manufacture in any way. This case has no application to the case before us.

In Myers v. City of Defiance, an ordinance of the city of Defiance required all persons engaged in the business of dry-cleaning and pressing to secure a license, and further required that when a drycleaning or pressing establishment was located outside the municipality, as a prerequisite to the issuance of a license, the owner should give a $1,000.00 cash bond conditioned that all property removed from the municipality would be accounted for. The court concluded on page 174 as follows:

“It is therefore apparent from the provisions of section 2 of the ordinance that the purpose of the ordinance is not to furnish financial protection to persons securing the services of licensees under the ordinance, but to place an additional burden on applicants for licenses who maintain their establishments outside the limits of the city.”

The case of Frecker v. City of Dayton involved an ordinance of the city of Dayton which provided that no person, firm or corporation shall sell or offer to sell, in the parks, and on or from the streets, sidewalks and alleys of the city of Dayton, Ohio, any ice cream in any form, popsicles, ice sherberts or frozen desserts of any kind, any and all kinds of soft drinks, such as pop, cola drinks or others, candies of any kind, hot dog or other sandwiches, and peanuts, popcorn, or other similar products. The court concluded on page 17 as follows:

«* * * <D0es an Ohio community possess power to ban the transaction of business upon its streets and other public places?’
“* * * Not only is discrimination apparent on the face of ordinance No. 16059, but the evidence in this case shows that there is a discrimination between dealers in comparable merchandise and that many other street peddlers, hawkers and hucksters are licensed to use the streets of the city of Dayton for the sale of their merchandise.”

The Frecker case thus appears to have involved only the question of whether or not a community had the power to ban the transaction of certain businesses upon its streets and other public places to the exclusion of other modes and methods of business.

We turn to the case of Holsman v. Thomas, 112 Oh St 397. In this case a local police ordinance enacted by the council of the city of Cleveland, Ohio, was designed to regulate auctions of jewelry and it provided, among other things that no jewelry should be sold at auction for a period greater than sixty days in one year, and that the auctioneer must have been a resident of the municipality for one year and must have had a regular stock of jewelry for six months of that year. The court concluded that this ordinance was a valid and constitutional enactment and was not in conflict with Article XIV, Section 1 of the Constitution of the United States. On page 404, we find the following:

“Under the decisions of the United States, and of this state, it is held that the inalienable rights given to the citizens of this state in Article I of the Ohio Constitution, and the equal protection and benefit guaranteed them in that document as well as in the federal Constitution, do not render the citizens immune from the operation of the police power.
“If the ordinance is valid, it is so because it falls within the police power, and if within the police power the fact that plaintiff’s trade is regulated thereby, and that incidental loss may result to him therefrom, does not impair the validity of the ordinance.
“Does the ordinance fall within the police power?
"Now, the police power relates not merely to the public health and to public physical safety, but also to public financial safety. Laws may be passed within the police power to protect the public from financial loss. * * *"

The court affirmed the judgments of the lower courts and held the ordinance valid.

In the case of Wilson v. City of Zanesville, 130 Oh St 286, 4 O. O. 311, the court had before it an ordinance of the city designed to regulate the hours of work for barbers by way of licensing barbers and regulating the barber shops.

The court concluded that regulations which are reasonable and have a definite relation to the public health, morals and safety, or to the general welfare, constitute a valid exercise of the police power.

In the case of Feldman v. City of Cincinnati, heretofore referred to. the court referred to and commented on the case of Holsman v. Thomas, 112 Oh St 397, and Wilson v. Zanesville, 130 Oh St 286, 4 O. O. 311. We believe that this case fully and correctly sets forth the considerations , that should guide us in the case before us.

It is our opinion that the Legislature of the state of Ohio, in the exercise of its police powers, and having in view the nature of the business sought to be regulated, had full authority to enact the statutes under Chapter 1318. R. C., and that this authority was not exercised in an unreasonable and arbitrary manner.

Certainly the license fee of $10.00 per day is not excessive and unreasonable considering the nature of the business sought to be regulated. The work involved in the consideration of an application for a license, the issuance of the license, and the supervision of the licensee required by the statutes, justified the sum of the license fee in question.

The requirement of the bond does not discriminate between a licensee and a taxpayer of a county in which the auction sale is proposed to be held, but rather, in our opinion, has a tendency to bring the licensee and the taxpayer on a parity. In the case before us, the taxpayer in Wood County, Ohio, who has filed a personal property tax return and has been assessed in the county in which the new merchandise is offered for sale by the taxpayer at his place of business is exempt, and properly so, from filing an application for a license to conduct an auction sale but in lieu thereof is required to file an affidavit that such taxpayer or the consignor of such merchandise has filed a personal property tax return and has been assessed in the county in which the new merchandise auction sale is to be held. One purpose of the bond requirement is obviously to make the licensee amenable to taxation on the same basis as the local taxpayer. The only orderly method of establishing this status is to require the applicant to receive a license and to furnish a bond so that there may be some assurance and some guarantee that the personal property taxes and the state sales taxes required of the resident taxpayer who desires to conduct an auction shall also be met by the applicant for a license who is not an established taxpayer of the county in question. It is to be noted in passing that it is only the taxpayer in the county in which he proposes to hold an auction sale who is exempt from filing an application for a license under the provisions of the sections under Chapter 1318. R. C. All other persons desiring to conduct an auction sale of new merchandise, whether they reside in the other eighty-seven counties of the state of Ohio or whether they reside outside the state of Ohio, are treated alike. They must file application, be licensed and furnish a bond so as to bring themselves on a parity with the obligations of the local taxpayer so that their taxes may be returned and accounted for. Another apparent purpose of the bond requirement is to make the licensee amenable to any suits that may arise as the result of their activities in the auctioneering of goods, and to guarantee the satisfaction of all judgments, tax assessments or fines. The protection of the local citizens who buy merchandise at auction sales from fraud and misrepresentation appears to be one of the primary objectives of the bond requirement.

We are of the opinion that the requirements of the statutes in question are not unreasonable and are not arbitrary, and that the police power of the state is properly invoked.

The motion to dismiss the complaint is sustained.


source: Caselaw Access Project

author: By GRIFFITH, J.

license: Public Domain

text:
    CORNELL, Admr. Bureau of Unemployment Compensation, Appellant, v. BOARD OF REVIEW, BUREAU OF UNEMPLOYMENT COMPENSATION, JORDAN, R. G. BARRY CORPORATION, Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 5298.
    Decided November 4, 1955.
    Hon. C. William O’Neill, Atty. Geni., William M. Gemmill, Asst. Atty. Geni., Columbus, for appellant.
    John W. Hardwick, Asst. Atty. Geni., Columbus, for appellee, Board of Review.
    (NICHOLS, PJ, of the Seventh District; FESS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By GRIFFITH, J.

This is an appeal on questions of law from the final order and judgment of the Court of Common Pleas of Franklin County entered on May 2, 1955, affirming the decision of the Board of Review, Bureau of Unemployment Compensation. The facts are few. Cora Jordan was employed by the R. G. Barry Corporation until January 8, 1952, when she was laid off for lack of work. She had a benefit year established beginning February 24, 1952, as a result of this layoff. She drew three weeks of benefits of $21.00 each for the weeks ending March 8th, 15th, and 22d, 1952. She returned to work and worked a short time until April 3, 1952, when she quit without just cause. The effect of this second separation of employment is the point on which the Board of Review and the Administrator disagreed. The Board of Review’s position is that no benefits may be paid to claimant during her benefit year commencing February 24, 1952, for any unemployment subsequent to this second separation of April 3, 1952, on the basis of any base period wages paid to her by R. G. Barry Corporation (her sole base employer).

The Administrator’s contention is that the provisions of §1345-8-e GC, do not warrant excluding the base period wages of Cora Jordan in her first benefit year; that if she should make application for a second benefit year then the wages earned by Cora Jordan for the week of employment when she became re-employed by R. G. Barry Corporation must be excluded from her base period wages, but that the maximum benefit amount became fixed by the determination of the first claim for benefits determined April 4, 1952, and that no exclusion of base period wages may be made on the basis of any separation after the first claim for benefits. We find nothing in the statute that limits the fixing of the maximum benefit amount to the determination of the first claim. It was not the intention of the Legislature when it enacted §1345-8-e GC that the maximum benefit amount becomes fixed and cannot be changed after the first claim for benefits during the benefit year. When an employee quits her work without just cause no benefits thereafter shall be paid based upon such wages formerly paid to such employee during her base period. In this case the trial court found that the decision of the Board of Review, Bureau of Unemployment, is not unlawful, unreasonable, nor against the manifest weight of the evidence, and affirmed the Board’s decision. This Court is in accord with the judgment of the trial court in all respects.

We find no assignment of error well made. There being no error in the record, the judgment is affirmed.

NICHOLS, PJ, FESS, J, concur.


author: By BARTLETT, J.

text:
    WRIGHT, Plaintiff, v. DESHLER CORPORATION, Defendant.
    Common Pleas Court, Franklin County.
    No. 190552.
    Decided October 18, 1954.
    Walcutt & Henney, for plaintiff.
    Hamilton & Kramer, for defendant.
   OPINION

By BARTLETT, J.

Suit for personal injuries resulting from a fall on the stairway of the Deshler Hilton Hotel. Based on negligence in failure to provide nonskid treads or carpeting, hand rails for said stairs, and obstructing the landing of said stairs with a dangerous sign.

Motion to strike from this petition filed consisting of 16 branches, are all overruled. Motion to make petition definite and certain overruled.

Branches 1, 2, 3 and 4, to strike certain words from the petition, refer particularly to the “Ionian Room” and its patrons with a seating capacity in excess of 100, in which was dispensed food, drink and entertainment, while plaintiff was a patron of the “Hour Glass” room which dispensed food, drink and entertainment; and the necessity of the patrons of both rooms to use the same stairway. The defendant claims such facts have no causal relation with plaintiff’s right of action.

Sec. 3183.01 R. C., defines “assembly halls” as including “all buildings or parts of buildings seating or accommodating one hundred persons or more and used for the assembly of persons for * * * entertainment, or amusement, * *

Sec. 3183.29 R. C., requires “all stairways in assembly halls shall be enclosed by fire division walls * * and then provides:

“Otherwise stairways and inclines shall be constructed and equipped the same as required for theatres.”

The allegations with reference to the Ionian Room, and the use of this stairway by its patrons bring the stairway in question within the detailed requirements of this statute, because it accommodates in excess of one hundred persons. This statute among other things requires: “Handrails shall be provided on both sides of all stairways and steps.” Also:

“Stair treads shall be provided with approved nonslip treads, or shall be carpeted or covered with other material to prevent slipping or tripping.”

Sec. 4101.14 R. C., also requires handrails on all stairs in hotel.

These statutes were enacted by the Legislature in the interest of public safety, and the violation of the specific requirements thereof, constitute negligence per se, the providing of such handrails, nonslip treads, carpeting or other covering for stair treads being such specific requirements.

Branches 5 and 12 request the striking from the petition of the reference to handrails, on the theory that the defendant hotel owned no duty to provide such handrails. The statute clearly contradicts such a theory.

Branches 9 and 13 request the striking from the petition of all reference to the landing on the stairs being obstructed by sign or easel, as being immaterial and having no connection with plaintiff’s fall; but the averments of the petition do connect this obstruction with her alleged injuries.

Then, too, §3185.54 R. C., requires enclosed fireproof stairways “shall be kept free from encumbrances or obstructions at all times.” This being a public safety requirement, violation thereof, constitutes negligence per se.

The motion to make definite and certain the alleged injuries to plaintiff’s legs, back, etc., is overruled, for the reason that bodily physical injuries in a negligence case constitute general damages and need not be specially pleaded as such damages are presumed to flow from the injury. 13 O. Jur. Damages, Sections 155 and 161, pages 259 and 266.

Entry accordingly with exceptions by counsel for defendants.


author: By FESS, J.

text:
    KEMMERER, Plaintiff-Appellant, v. KEMMERER, Trustee, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5232.
    Decided March 13, 1956.
    James B. Albers, Columbus, for plaintiff-appellant.
    Marion A. Ross, Columbus, for defendant-appellee.
    (FES'S, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By FESS, J.

Appeal on questions of law and fact from a judgment by the Common Pleas Court for the defendant.

In 1932, plaintiff’s decedent, Peter W. Kemmerer, entered into a trust agreement, as donor of certain items of personal property, with his son Paul, as Trustee. After the son’s death, on October 6, 1947, decedent executed an amendment to the 1932 agreement reciting the death of the son, that the assets of the trust then consisted of cash on hand and real estate located at 1101 Dublin Avenue, Columbus, Ohio. The amended agreement conveyed and transferred the assets to Donor’s daughter-in-law, Margaret A. Kemmerer (defendant herein) to have and to hold the same as Trustee pursuant to the provisions of the 1932 agreement as amended. The amendment provided that the Trustee should pay to the Donor the net income from the trust periodically, as well as part of the principal upon request of the Donor. Upon the death of the Donor, the Trustee was directed to pay the funeral expenses, provide a grave and monument, pay $1500.00 to Alice M. Trapp (his daughter; and the remainder to the two sons of the Trustee. On November 11, 1947, the Trustee and the Donor’s attorney placed $9790.00 in currency in a safety deposit box as part of the trust res. On October 6, 1947, decedent conveyed to Margaret A. Kemmerer, Trustee, by warranty deed, the Dublin Avenue property. The deed was recorded June 14, 1948, and the 1932 Trust Agreement and the 1947 amendment were recorded in July, 1948.

In the 1932 agreement, the Donor reserved the exclusive right at any time to alter, amend, modify or revoke in whole or in part the trusts.

In September, 1948, Peter W. Kemmerer filed an action in the Common Pleas Court seeking to set aside the trust. In this action, the Court recognized that the Donor had the right to revoke the trust, but by reason of confusion exhibited by the Donor in his testimony, found the Donor did not understand the import of a revocation of the trust which he had signed on August 20, 1948. The decision was rendered June 10. 1949, but the judgment for defendant was not entered until January 9, 1950.

After the adverse decision, on application of his daughter, Alice M. Trapp, the Probate Court on August 11, 1949, found Peter W. Kemmerer, age 83, a mentally incompetent person, and appointed John S. Dunkle, his then attorney, as guardian of the estate. On September 14, 1949, Dunkle, as guardian, filed an action in the Probate Court against Margaret A. Kemmerer, Trustee, seeking to set aside the deed of October 6, 1947, and the removal of the defendant as Trustee. On December 13, 1949, the Probate Court sustained a demurrer to the petition. Apparently, this action has not been journalized nor the petition dismissed.

On January 14,1950, on application of Dunkle therefor, the guardianship was terminated by the Probate Court. The entry filed September 14, 1950, recites that upon the evidence the Court finds that Peter W. Kemmerer has recovered his normal mental condition, orders the guardianship terminated and restores the ward to the full control of his property.

On July 31, 1953, by formal instrument executed by Peter W. Kemmerer, the Trust was revoked and notice thereof given to the defendant. The instant action was commenced August 26, 1953. After setting forth the 1932 Trust Agreement with its provision for revocation, the 1947 amendment, the revocation and notice thereof, plaintiff prays that the defendant be ordered to reconvey the Dublin Avenue property to plaintiff and for other and further relief. Peter W. Kemmerer’s deposition was taken in October, 1953, and also on December 21, 1953, ten days before his death on December 31, 1953. The action was revived in the name of his executor.

In her answer, defendant denies the revocation of the Trust, and alleges that from January 1, 1948, to date of his death, the Donor did not have the physical, or mental, capacity to modify or revoke the terms and conditions of the Trust; that since January 1, 1948, Donor had been in a confused mental and physical state and had dissipated large sums of money belonging to the trust estate. She sets forth the adjudication of the Probate Court in September, 1949, and that since that time Peter W. Kemmerer had not been adjudicated competent. She also contends- that the issues raised are res judicata by reason of the judgment in the action brought in the Common Pleas Court.

The sole question to be determined upon this trial de novo upon a voluminous record of more than 900 pages of testimony, interspersed with innumerable objections and extensive arguments of counsel, is whether Peter W. Kemmerer, on July 31, 1953, had sufficient mentality to understand the nature of the revocation which he then executed. Much testimony was received tending to show that the decedent was unduly influenced to revoke the trust by his daughter, Alice M. Trapp. Since undue influence is not an issue in the case, such testimony bears only upon whether the decedent appreciated the result of his revocation and the consequences thereof. In other words, did the aged man desire to revoke the trust and did he know what he was doing when he signed the instrument? Prima facie, the revocation is valid, and the burden of proving the decedent to be incompetent is upon the defendant.

With regard to the adjudication of incompetency by the Probate Court, all persons are presumed to be sane until proven insane. No presumption of insanity can arise until a permanent mental disorder is proven to exist. When once established, the law will presume that condition to continue for a reasonable length of time. But this presumption of continuance of such insanity is rebuttable and is removed when sufficient evidence has been introduced to meet, extinguish, rebut, countervail or overcome such presumption arising from the adjudication of insanity. Kennedy v. Walcutt, 118 Oh St 442. In the instant case, no commitment was made nor was a guardian of his person appointed. Within a few months after the adjudication upon the evidence, the court found Peter W. Kemmerer had recovered. The adjudication of incompetency, as well as his restoration, are matters to be considered by this court together with the other circumstances disclosed by the evidence in determining the issue.

The testimony with respect to the competency of the decedent is in sharp conflict,—on behalf of the plaintiff, tending to show that on the day he signed the instrument he understood the significance of his revocation and wanted back his property;—on behalf of the defendant, the evidence discloses that when he was examined by a neurologist and psychiatrist on June 15, 1949, incident to the application for adjudication of incompetency, the doctor reported that Mr. Kemmerer was,

“quiet, agreeable, and cooperative until his present difficulties were discussed. He then became excited, over-active and mentally confused. His stream of mental activity was coherent and logical except for the above when he was then unable to give logical answers to questions. The mood was quite shallow, His emotional responses not being in keeping with the thought content. He showed considerable emotional instability, laughing or crying at the slighest provocation. No hallucinations were elicited nor does he seem to be reacting to any. He is oriented for place and person. He has a proper grasp on remote events, but has a poor grasp on recent events. He did poorly on the tests for retention and immediate recall. He has no insight into his condition, and judgment is impaired.
“It is my opinion, as the result of the above examination and the history of the case, that Mr. Kemmerer is suffering from cerebral arteriosclerosis with senile changes. It is my further opinion that this man is now mentally incompetent, and that he was incompetent when in the hospital prior to his operation.”

At the trial, this physician verified his diagnosis of 1949 and in answer to a question as to whether it was probable that a man eighty-three years old, adjudged incompetent on August 11, 1949, who was suffering from cerebral arteriosclerosis with senile changes, would ever be competent, said that he would probably never be competent. This opinion was corroborated by a Dr. Henry Luidens, an experienced phychiatrist. In answer to a hypothetical question, the doctor stated that in his opinion “the nature of the illness (cerebral arteriosclerosis) is of itself the result of damage to brain tissue, which can not be repaired, does not improve, and in no case has ever shown itself to be restored to a normal condition. The older the age, the more likely that is. Of course, it is never repairable at any age, but, of course, it is more severe at older ages.” This witness further expressed the opinion that Peter W. Kemmerer was incompetent on July 31, 1953. Medical testimony on behalf of the plaintiff tended to show that an aged person suffering from cerebral arteriosclerosis would have periods of recovery and lucid intervals.

In addition to the medical testimony, the evidence is undisputed that at the time the defendant was appointed trustee, the decedent deposited $9790.00 in cash in a safety deposit box to which the defendant and decedent’s then attorney, Ralph Lucas, had access; that without the consent or knowledge of the defendant, Mr. Lucas removed this sum from the box in the spring of 1948 and gave it to decedent. At this time decedent had left the Dublin Avenue home and was residing either in a boarding house or with his daughter. It is of some significance that neither attorney Lucas nor Alice Trapp were called to deny or explain this occurrence. An incident is related by the defendant and her son of the old man returning to the home, taking the boy out in the yard and showing him rolls of bills of large denominations and remarked to the boy “Enough money to choke a horse.” When the old man returned to the home on July 21, 1952, after being absent since 1948 except for occasional visits, he complained to defendant that he had no money left and said he had given it to his daughter. There were, however, certain medical, hospital bills and board bills in excess of $1,000.00, which apparently he had paid out of the cash received from Mr. Lucas.

Notwithstanding his statement to his daughter that he had no money left, he apparently had sufficient cash to keep himself supplied with whiskey. In addition to his physical and mental infirmities, he was an inveterate drinker. There is credible testimony that he became intoxicated daily during the last six months of his life. He was quite deaf and became loud, boisterous, abusive and profane.

Neither the trial judge nor this court has had the opportunity to observe the demeanor of the decedent on the witness stand, but are confined to the dry record of his testimony reported in the two depositions. We admit that it is difficult to appraise the credibility of witnesses on a review such as this. In the main, the incidents related by the witnesses are undisputed and a number of them partially corroborated. The conflict arises from the opinions of experts and lay witnesses with respect to the competency of the decedent.

But, upon a review of the record as a whole, we find that on July 31, 1953, Peter W. Kemmerer did not have the mental capacity to revoke the trust.

Finding and judgment for defendant and petition dismissed at plaintiff’s costs.

MILLER, PJ, HORNBECK, J, concur.


author: By THE COURT.

text:
    BOARD OF LIQUOR CONTROL, Appellee, v. WALNUT CAFE, INC., Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4836.
    Decided October 29, 1953.
    Hon. C. William O’Neill, Atty. Geni., Robert B. Rady, Louis S. Evans, Asst. Attys. Geni., Columbus, for appellee.
    John T. Feighan, Jr., Thomas C. Begley, Cleveland, for appellant
    (PUTNAM, PJ, MONTGOMERY J, of the Fifth District; NICHOLS, J, of the Seventh District, sitting by designation in the Second District.)
   OPINION

By THE COURT.

This case comes into this Court as an appeal from the judgment of the Common Pleas Court of Franklin County affirming an order of the Board of Liquor Control in which said Board suspended the Class D-5 permit of the appellant for a period of fifteen days for an alleged violation of Regulation 59 of the Ohio Board of Liquor Control in that:

“On July 6, 1951 you and/or your agents or employees, did allow and permit employees, agents or other persons, to solicit patrons for the purchase of drinks of beer or intoxicating liquor—in violation of the provisions of the Liquor Control Act and the regulations of the Board of Liquor Control.”

Regulation 59 reads as follows:

“The holder of a permit issued by the Department shall not, nor shall any of his agents or employees solicit or in any manner approach a patron for the purchase of drinks of beer or intoxicating liquor for himself or such agent or employee or any other person. The holder of a permit issued by the Department shall not permit any person not in his employ to solicit or in any manner approach a patron for the purchase of drinks of beer or intoxicating liquor either for himself or for any other person.”

The assignments of error in this case are as follows:

1. The Court erred when it sustained the order of the Board of Liquor Control.

2. The Court erred when it found the order of the Board of Liquor Control was in accordance with law.

3. The Court erred when it found the order of the Board of Liquor Control was supported by reliable, probative and substantial evidence.

Two principal questions are presented to this Court by this appeal. The first is, that since the one who is alleged to have solicited a drink of beer or intoxicating liquor was a cigarette girl who was selling cigarettes in the establishment under an arrangement by which her employer was paying to the owner of the establishment, that is, the D-5 permit holder, $75.00 per month for the privilege of checking hats and selling cigarettes, that she was neither an agent nor employee of the D-5 permit holder but an independent contractor and consequently did not come within the provisions of the regulation or statute. It is the judgment of this Court, as was the judgment of the Common Pleas Court and for the reasons stated by said Court in its decision, that under the circumstances of this case she was an agent and not an independent contractor and thus did come within the provisions of the regulation.

The second proposition advanced in this Court is that there is no reliable, probative and substantial evidence that the drink solicited by this cigarette girl and furnished to her at the time was either beer or intoxicating liquor, the drink which is interdicted by regulation of statute.

We have examined the record in this case and we find that that claim of the appellant is true. The only reference in the record is that she asked for a drink and it was furnished her. There is no evidence at all as to what kind of a drink it was—soft drink, beer or intoxicating liquor. This Court has considered seriously whether or not in the connection with which this case arose, the testimony as to the word “drink” is sufficient to prove beer or intoxicating liquor was furnished upon solicitation, and we have arrived at the conclusion that since the burden of proof was upon the appellee to prove a violation of the statute, the proof simply that a drink was furnished, is not sufficient to prove that this was either beer or intoxicating liquor.

For this reason and this reason alone the judgment is reversed.

PUTNAM, PJ, MONTGOMERY and NICHOLS, JJ, concur.


text:
    HERTZ, Ex Parte.
    Ohio Appeals, Second District, Franklin County.
    No. 4928.
    Decided April 2, 1953.
    Petitioner, for himself.
    C. William O’Neill, Atty. Geni., Thomas R. Lloyd, Asst. Atty. Geni., Columbus, for respondent.
   OPINION

By THE COURT.

This is an application for leave to appeal, in the case of State of Ohio v. Carl C. Hertz, No. 92781, Franklin County, Ohio, more than thirty days after sentence and judgment. Such an appeal is permissible under §13459-4 GC “only by leave of Court or two of the Judges thereof ” This Court recently held in State v. McGahan, 86 Oh Ap 283, that leave to appeal would not be granted without a showing of good cause. See also, In re Martin, 61 Abs 309, 104 N. E. (2d) 194. The only ground set forth by this petitioner is that he learned that his sentence was illegal, after he became incarcerated. This, in our opinion, does not constitute good cause for the granting of an appeal more than thirty days after sentence and judgment.

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


author: By BOLI, J.

text:
    FREE HOLINESS CHURCH OF GOD OF MIDDLETOWN, Plaintiff, v. CHURCH OF GOD, A FREE HOLINESS CHURCH, Defendant.
    Common Pleas Court, Butler County.
    No. 72774.
    Decided August 22, 1955.
    George H. Elliott, Clinton W. Boyd, Jr., Middletown, for plaintiff.
    Finkelman & Ross, Middletown, for defendant.
   OPINION

By BOLI, J.

This is a dispute between two church groups in Middletown involving the ownership of a church building. The parties will be referred to as the plaintiff or the Cox group and the defendant or the Lawson group.

More than twenty years ago, the Cox group organized an independent church which was not affiliated with any national or large group. At first, they held their services in rented quarters until about 1940 when they began to raise money to purchase a building of their own and in 1942, they purchased property at 2808 Yankee Road, the deed being made to Bruce Lawson, Jake Lewis .and Jim Ratliff as trustees of The Church of God, a Free Holiness Church.

They held their services in an old building on the premises until they had enough money to begin to erect a new church edifice. They used this new building until in the late fall of 1954 when they gave up holding services therein because they couldn’t afford to buy a furnace to heat the building during the winter months. After that, they held services in various homes of the members.

During practically all of this period and up to the fall of 1954 Reverend Cox was the pastor of the church although at times he would be away holding evangelistic services.

In December, 1954, after closing the church, Reverend Cox went to Zag, Kentucky. Witnesses for defendant group testified he told them he was through with the church and was going to give it up. This was denied by Reverend Cox.

Prior to 1954, Rev. Eddie Lawson organized a church on the Oxford State Road which later he conveyed to The Church of God, Cleveland Assembly. Subsequently he organized a group called Family Theater Mission because they held their services in the Family Theater in Middle-town.

Because this small group could not meet the expenses at the Family Theater, in the fall of 1954 Lawson asked Milburn Lewis, a member of the Cox group, if he could use the church in which to hold a revival. Lewis advised him that Reverend Cox was still in charge of the church.

Shortly thereafter, Reverend Lawson began to hold services in the church and this has continued to date. Millard Hill, who had been a trustee of the church under the Cox group but was not a member of the church, had the key to the church and he assisted in securing and installing a new furnace in the building.

Defendant offered in evidence a petition headed as follows:

“We, the undersigned, do state that we are members of The Church of God, Free Holiness located at 2808 Yankee Road, Middletown, Ohio; that we do petition that a meeting be held of all the membership of said Church for the purpose of electing officers and Trustees of said Church to operate and conduct the business of said Church.”

This petition contains the names of 57 persons, only two or three of whom were members of plaintiff’s church group. The others were either members or attendants at the Family Theater Mission.

In the March 1 issue of The Middletown Journal classified column appeared this notice:

“NOTICE—March 2 at the Garfield Mission 7:30 p. m. Church of God members are requested to be present to reorganize Church located at 2808 Yankee. Rev. Eddie Lawson.”

Several witnesses of plaintiff’s group testified they drove past the Garfield Mission that night and saw only some colored people holding a meeting there.

The minutes of that meeting were placed in evidence and are as follows:

“3/2/55
“Conference held to reorganize The Church of God, a Free Holiness Church, 2808 Yankee Rd., Middletown, Ohio.
“Moderator for meeting Rev. Eddie Lawson, Polly Ann Pember at piano.
“Business transacted as follows;
“(1) Trustees appointed;
“1. Bruce Lawson, 3230 Mohawk St.
“2. Estill Lawson, 708 Oxford State Road.
“3. Clell Hitte, R. R., No. 2, Franklin, Ohio.
“(2) Sec. and Treas. appointed;
“Gladys Hitte, R. R. No. 2, Franklin O.
“(3) President and Pastor;
“Rev. Eddie Lawson, Box 213, Middletown, Ohio.
“(4) Board members elected;
“1. Gilbert Ratliff—R. R. No. 2, West Midd.
“2. Millard Hill, Jr.—Mohawk St., City.
“3. Floyd Oaks—4917 Grand Ave., City.
“4. George Cox—Seneca St., City.
“(5) Moved and seconded that members incorporate said church, and that the trustees have full power to transact business of said church.
“(6) Moved and seconded that the trustees, Board members, and pastor have the power to vote in pastor for church.
“(7) Teachings of church read and passed by church.
“Service closed with song and prayer by all.
Sec.
Gladys Hitte”

It also shows that out of approximately 25 persons present at this meeting there were not more than six of them that had been affiliated with the plaintiff church group.

Pursuant to the minutes of the meeting of March 2, on March 8, 1955, the Lawson group incorporated a church as “The Church of God, a Free Holiness Church” with Bruce Lawson, Estill Lawson, and Clell Hitte as incorporators.

On March 16, 1955, the trustees of the defendant group conveyed by deed the church property to “The Church of God, a Free Holiness Church,” a corporation not for profit.

The Lawson group have continued to hold services in the premises in question with an attendance of from 40 to 80 persons.

It is the claim of the plaintiff that the Lawson group simply took possession of the church and claimed ownership of it and have continued to use it without any action being taken by the Cox group to divest themselves of the ownership and right to the premises.

It is the claim of the defendant that Reverend Cox and his group abandoned the church and that since Millard Hill had been a trustee of plaintiff group, he had a right to open the church and that they should be declared the lawful owners of the church because they are the only group that is large enough to continue to carry on and use the church.

It must be borne in mind that this action involves the possession and ownership of the church real estate. It is conceded that the Cox group purchased the property—made improvements thereon over the years and actually used the premises for church purposes until the fall of 1954.

The conveyance of real estate by an unincorporated religious society is no different than a conveyance by several individuals or a corporation, in that the title owner? must make the conveyance. Jn the ca?e of a religious society, the title is held by trustees for the benefit of the members of the society—the members are the owners.

So, in this case, the plaintiff group could not be divested of its ownership excepting by a conveyance duly authorized by a majority of the membership of that group—and this, only after due notice to the membership of a meeting called for that purpose.

From the facts heretofore stated, it is obvious that a majority of the membership of the plaintiff group have never authorized the conveyance of the church property.

Without permission granted by a majority of the membership of the plaintiff group, the Lawson group, unable to meet its expenses at the Family Theater, moved in and attempted to assume possession and ownership of the church property.

The notice in fine print in the classified column of The Middletown Journal on March 1 of a reorganization meeting on March 2 signed by Rev. Eddie Lawson who admittedly had never been a member of the plaintiff group certainly did not constitute due or reasonable notice to the membership of the plaintiff group.

This meeting was called to reorganize the church—here again, the only way the church could be reorganized was by a majority vote of its members. The evidence shows that there were approximately 25 persons present at that meeting and that no more than six of them were either members or had been attendants of the plaintiff church. The minutes of that meeting do not show how those six members voted on the business transacted. The minutes show that Rev. Eddie Lawson was moderator of that meeting—that the trustees appointed were Bruce Lawson, uncle—Estill Lawson, son—and Clell Hitte, son-in-law of Reverend Lawson and Gladys Hitte, daughter of Reverend Lawson as secretary and treasurer and Eddie Lawson as president and pastor.

The minutes do not reveal whether there were no more offices to fill or whether they ran short of Lawsons.

It is significant that in this so-called reorganization of the church no one of the trustees, officers or pastor named at the reorganization meeting either belonged to or had been an attendant at the plaintiff church.

Significant, too, is the fact that in the incorporation of the church and in the deed from the trustees of the newly incorporated church the name of “The Church of God, a Free Holiness Church” was adopted by the Lawson group when it so happens that the original deed to the church property in question made to the Cox group was made in the same name. This indicates to us that one’s absorption in church work doesn’t necessarily dull one’s cunning.

The evidence also shows that the two contending groups are of different faiths. The plaintiff group has followed the articles of faith propounded by Reverend Cox.

Reverend Lawson of the defendant group testified that he formerly belonged to The Church of God, Cleveland Assembly, and preached in their churches although he didn’t believe in all their doctrines.

It seems that the Church of God, Cleveland Assembly, believed in tithing and in the millenial reign wherein Christ will reign on earth for a thousand years during which time the Devil will be bound.

The Cox group do not believe in this teaching.

Although putting the Devil out of business for a thousand years should be welcome news to anyone, especially during the present heat spell, somehow we could never get ourselves worked up over the question of what is going to happen one thousand years from now—our preference is for matters a wee bit more imminent—such as, will the Redlegs finish in the first division this year?

Because there is no proof that the plaintiff group has ever divested itself of the title to the premises in question, we find that the plaintiff is entitled to the relief prayed for in its petition.


author: By RUTHERFORD, Judge.

text:
    UNITED ELECTRIC FIXTURE & SUPPLY CO., Plaintiff, v. UNITED ELECTRIC SUPPLY COMPANY, Defendant.
    Common Pleas Court, Cuyahoga County
    No. 674485.
    Decided June 4. 1956.
    Harry J. Dworkin, Robert M. Lawther, for defendant.
    Gottfried, Ginsberg & Guren, for plaintiff.
    (RUTHERFORD, J, of Morrow County, sitting by assignment in the Common Pleas Court of Cuyahoga County.)
   OPINION

By RUTHERFORD, Judge.

In this action the Plaintiff, United Electric Fixture and Supply Co., a Corporation, seeks a permanent order perpetually enjoining the Defendant, United Electric Supply Company, a Corporation, from doing business in Cleveland or Cuyahoga County under its corporate name.

From the evidence and from the law applicable, the Court makes the following separate finding of facts and conclusions of law:

FINDING OF FACTS

The United Lamp Company commenced business in 1910. The business was incorporated under the name of United -Lamp Company in 1940, and in December, 1954, the corporate name was changed to United Electric Supply Company.

The United Electric Fixture and Supply Company commenced business in 1913 as a Corporation which was dissolved in 1920. A partnership then operated under the same name until the business was again incorporated under the name of United Electric Fixture and Supply Company in January, 1955.

Plaintiff’s business has been continuously controlled by the Desberg family, and the Defendant’s business has been continuously eon-•.rolled by the Hyman family.

Plaintiffs are located at 1772 East 9th Street, Cleveland, Ohio, and are both wholesalers and retailers of electrical supplies.

Defendants are located two or three miles from plaintiffs, at 5805 Euclid Avenue, Cleveland, Ohio, and are wholesalers of electrical supplies.

The wholesale business of each is carried on principally in Cuyahoga County, sales being to department stores, manufacturers, contractors, hardware stores, retail electric stores, etc. Each have outside salesmen who make personal contact.

Neither manufactures any of the products its sells. Both are wholesalers of products most of which carry brand names of the manufacturers. In some instances, they have the same source of supply. For example, both are Class B dealers of General Electric.

The wholesale business of neither is appreciably larger than the other.

Both corporate names have been approved by the Secretary of State.

The evidence fails to establish that the defendants changed the corporate name from United Lamp Company to United Electric Supply Company in December, 1954, with any calculation or intent to induce persons to deal with them in the belief that they were dealing with the Plaintiff. The Court does find from the evidence that the purpose of the defendants in changing the name from United Lamp Company to United Electric Supply Company was neither calculated to deceive the public or to divert any of the plaintiff’s business to the defendant or to pass off defendant’s business as being that of the plaintiff, but was for the purpose of making defendant’s corporate name descriptive of the business engaged in, namely, electric supplies, of which lamps constituted only a portion.

The Court fails to find either from direct evidence or by reasonable inference any facts to establish either any financial loss or probability of future damage resulting to plaintiff from defendant’s use of its corporate name.

In several months time there have been six or seven instances of confusion in delivery of mail or by suppliers. However, in the last three or four months prior to trial, evidence of such confusion is almost nil.

CONCLUSIONS OF LAW

Under the facts, wilful intent to injure the plaintiff or purposely take advantage of the established reputation of the business of the plaintiff for the defendant’s benefit is not involved. The facts show no evidence of calculation to deceive upon which an injunction could be granted. As to the remaining issue, whether or not there is sufficient tendency to confuse to warrant the granting of an injunction, the evidence shows the actual confusion to be inconsequential and trifling, and it is the Court’s finding that the evidence showing confusion, either directly or by inference, is too meager and unconvincing to warrant the issuance of an injunction, as to which the burden of proof rests upon the plaintiff.

Since the defendant acquired the corporate name first, and there is no evidence that the plaintiff had made reservation of its name, the plaintiff cannot seek relief under the provisions of §1701.08 R. C., but must do so by principles of equity and the statutes providing relief by injunction.

Many cases have been cited by both sides, each of which have come to their respective conclusions upon the particular facts involved. Among these cases are those set forth in 115 A. L. R. 1241 et seq., 66 A. L. R 948 et seq., and from the Court of Appeals of this District, Stern Furniture Co. v. Stern, 52 Abs 527, and Cleveland Opera Company v. Cleveland Civic Opera Association, 22 Oh Ap 400. ,The latter two cases would be stare decisis if the facts were the same as those of the case now before the court. This court, however, believes that the case now being decided would be differentiated from those cited, first, because the word “United” has long been in use by both plaintiff and defendant, and the words “Electric Supply” which have been added, are typically descriptive of the business carried on; second, because in the cases cited, business was being done with the public in general, and the general public would be much less discriminating than the business organizations with whom plaintiff and defendant do business in the case before us.

The Court realizes that it is a fine line which is drawn between those cases in which an injunction is granted and those in which injunctive relief is denied, but does not find the evidence, either direct or by inference, of confusion or of the probability of confusion to be sufficiently strong to warrant the granting of an injunction. Neither has the evidence established that plaintiff has sustained damage or the probability of any substantial damage to the plaintiff by defendant’s continued use of its corporate name.

To deprive the defendant of the word “United” would appear to be an injustice, and to enjoin the defendant from using the descriptive words “Electric Supply” appears to be unwarranted under the law as applied to the facts determined from the evidence.

IT SHOULD THEREFORE BE ORDERED, That plaintiff’s prayer for an injunction be denied, and a Journal Entry may be submitted accordingly. Court costs are to be taxed to Plaintiff.


author: By HORNBECK, J. By CONN, J.

text:
    PEPPE et, Plaintiffs-Appellants, v. KNOEPP, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5396.
    Decided March 7, 1956.
    John c. Wheatley, Jr., Columbus, for plaintiffs-appellants.
    Porter, Stanley, Treffinger & Platt, Bruce G. Lynn, of Counsel, Columbus, for defendant-appellee.
    (CONN, J., of the Sixth District, sitting by designation in the Second District.)
   OPINION

By HORNBECK, J.

At times in this Court, a case after submission is assigned to a member for opinion before the full Court has agreed on the judgment. In that situation, final consideration is deferred until the opinion is prepared and the Court may consider it along with the evidence and the briefs. That was the procedure followed on this appeal and explains why the minority opinion sets forth the operative facts and discusses the specific assignments of error and cases cited by counsel.

We adopt the statement of facts and are in accord with the minority opinion, in the main, but differ as to the judgment which should be entered here, which we find should be an affirmance. The minority opinion does not pass upon the legal issues urged and briefed in this Court, but conciudes that inasmuch as no equitable defense was pleaded in the trial court, it erred in entering judgment for the defendant.

We are of opinion that the equitable defense upon which the defendant relied was by common consent, in the trial court, stipulated, presented and argued and that the trial judge properly decided it upon the theory that the defendant was asserting such defense. The defendant, by the authority of §2309.53 R. C. should now be permitted, in the interest of justice, to file an answer setting up his equitable defense in accord with the proof. This would be, in effect, an amendment to the answer of a general denial which is made pro forma in the Municipal Court in forcible detainer actions where a defense is interposed.

The trial judge upon his findings of fact held that in equity forfeiture of the lease upon which the plaintiff relied should not be decreed because based upon the breach of the contract to pay rent which was but security for the performance of that obligation which had been tendered.

Appellant contends here, as in the trial court, that the other several clauses in the contract supporting their rights to forfeiture were broader than, and independent of, that one relating exclusively to default in the amount and time of rental payments.

We are of opinion that, notwithstanding the multi-phrased provisions for forfeiture in the lease, the central and dominant intent and purpose was to assure the payments by lessee of the rents in the amounts and at the time provided therein. The Court did not err in so holding and in applying the well-recognized principle that “equity abhors a forfeiture and will only decree it when such relief is clearly required,” and that breach of conditions as to payment of rent alone does not necessarily require such action.

Without detailing the facts, it is clear that the equities in this case are with the defendant. Conceded that there was a breach of the condition respecting the payment of the rent, it was not because of any fault of the defendant but of his lessor through whom the plaintiff throughout the years had received the rent.

Because of our view that the judgment may be affirmed upon the issues drawn and decided in the trial court, we refrain from projecting and discussing in this opinion other issues that might upon the factual developments have been raised.

We find no prejudicial error in this record. The judgment will be affirmed.

MILLER, PJ, concurs.

DISSENTING OPINION

By CONN, J.

This is an appeal on questions of law from the judgment rendered by the Municipal Court for the defendant in a forcible detainer action brought by plaintiffs against him.

Plaintiffs allege in their petition that ever since the 15th day of January, 1955, the defendant, Harold G. Knoepp, has forcibly detained from plaintiffs certain real estate situated in the City of Columbus, more particularly described in said petition.

Plaintiffs further allege that defendant entered upon said premises as a tenant of plaintiffs under a lease providing for a forfeiture of said premises in event of nonpayment of a monthly rental, in addition to the basic rental, and that said additional rental has not been paid since January 15, 1955.

Plaintiffs further alleged that on June 17, 1955, plaintiffs duly served defendant a notice in writing to leave said premises within three days after service of same. Plaintiffs pray for restitution and costs.

Pursuant to Rule 18 of the Municipal Court of the City of Columbus, no further pleading is required in forcible detainer actions. Under this rule, the cause of action set up in plaintiffs’ petition is considered denied as an entirety. In other words, the general issue in this case is non detinet, which denies plaintiffs’ right of possession in the property and its wrongful detention, and which excludes further legal defenses raised by special plea.

Plaintiffs assign as error that the judgment of the trial court is prejudicially erroneous and contrary to law, and that the Court also erred in overruling plaintiffs’ motion for a new trial.

The material facts are not in dispute and are brought into the record by stipulation of the parties and, briefly stated, are as follows:

The premises alleged to be unlawfully detained by defendant consist of three lots in S. Bartlett’s Addition to Columbus which, on March 30, 1938, were leased by one, Florence R. Hildreth, plaintiffs’ predecessor in title by written lease, for a period of 20 years to P. H. Butler Company, a Pennsylvania corporation, said lease being identified as Plaintiffs’ Exhibit I.

That plaintiffs are the successors in title to said lessor and assignees of said lease; that defendant is in possession of said premises as a sub-lessee of Thorofare Markets, Inc., the successor, by change of name, of the original lessee, P. H. Butler Company, pursuant to written documents and introduced in evidence as Defendant’s Exhibits A and B; and that plaintiffs and defendant are each entitled to the benefits and are bound by the terms of said original lease.

It was further stipulated that the basic rental under the terms of the lease is $500,00 per month; that the lessee shall submit to lessor on or before the 15th day of each calendar month a statement of the gross sales for the preceding month and. when gross sales shall exceed $40,000.00 for any month, then an additional rental of l-% per cent shall be paid on the excess over $40,000.00 on or before the 15th day of the succeeding month; that defendant paid the monthly rental to Thorofare Markets, Inc. and said company, on behalf of defendant, forwarded same from time to time to plaintiffs.

That the gross sales for December, 1954, and for March, 1955, each exceeded $40,000.00, to the extent, respectively, of $50.39 and $76.79, as additional rent; that said sums were forwarded to Thorofare Markets, Inc., who neglected to add said amounts to the basic monthly rental or submit monthly statements when making remittance of the basic rents for said two months; and that said unpaid rentals were tendered to plaintiffs after they had served notice on defendant to leave said premises.

The cause was submitted to the trial court on the petition of plaintiffs, opening statements of counsel and stipulations, exhibits, briefs, and motions for judgment made by the parties respectively. Upon consideration, the Court found for the defendant and entered judgment. The Court also made separate findings of fact, based on stipulations of counsel, somewhat abridged, and also separate conclusions of law, as follows: “Equity will grant relief against forfeiture for nonpayment of rent.”

Plaintiffs base their claim for right of possession and unlawful detention on the breach of certain covenants of the lease, which are binding on the defendant under the terms of the sublease, having reference particularly to the breach of the following provisions of the lease:

“* * * Lessee expressly waives the service of any notice of intention to terminate this lease or to retake said premises and waives service of any demand for payment of rent or any other payment or for possession, or of any and every other notice or demand prescribed by any law of the State of Ohio, and agrees that the simple breach of any of the covenants herein shall of itself constitute a wrongful detainer of said premises by leases within the meaning of the statutes of the State of Ohio governing forcible entry and detainer.”
“Forfeiture upon Breach by Lessee. That if the rent hereinbefore provided to be paid, or any part thereof, shall at any time be in arrears and unpaid, and without any demand being made therefor, if lessee shall fail to keep and perform any of the covenants, agreements, provisions, terms or conditions of this lease on the part of lessee to be kept and performed * * * then, and in any such event, it shall be lawful for lessor to enter into said premises, and again have, repossess and enjoy the same as if this lease had not been made, and thereupon this lease and everything herein contained upon the part of lessor to be done and performed shall cease, determine and be utterly void; without prejudice, however, to the right of lessor to recover from lessee all rent due up to the time of such entry.”
“Payments, et cetera, After Termination. That no payment of money by lessee to lessor after the termination of this lease in any manner, or after the giving of any notice by the lessor to the lessee, shall reinstate, continue or extend the terms of this lease or affect any notice given to lessee prior to the payment of such money, * *

The stipulated facts disclose that plaintiffs did not receive payment of the additional rentals for the months of December, 1954 and March, 1955, nor statements of the gross sales for said months and that defendant made default in not observing the provisions of the lease.

Moreover, the lease expressly provided that defendant agrees the simple breach of any of the covenants of the lease of itself constituted a wrongful detainer of said premises by defendant within the meaning of the statutes of the State of Ohio, governing forcible entry and detainer, and that if the rent or any part of it be in arrears and unpaid, or the defendant fail to keep any of the covenants of the lease, then it shall be lawful for plaintiffs to enter said premises and repossess them.

The undisputed facts established on the trial sustained the allegations of plaintiffs’ petition that defendant has made default and pursuant to the terms and provisions of the lease, plaintiffs were entitled to possession of the leased premises.

As pointed out above, the rules of the trial court did not require the defendant to file an answer in this form of action. However, where the defendant has an affirmative defense, including confession and avoidance, it appears that, under our procedure, defendant should have pleaded such defense, and prayed for the relief sought, in order to invoke the well-established maxim that equity abhors a forfeiture.

Pursuant to §1901.18 R. C., subsection C, the Municipal Court has jurisdiction to grant relief:

“In any action at law based on contract to determine, preserve, and enforce all rights, legal and equitable, involved therein. * * *”

In the exercise of equitable jurisdiction conferred by statute, the Court adjudges such issues as are raised on the pleadings and the evidence. In the instant case, the equitable jurisdiction of the Court was not invoked.

The judgment entry, following the submission of the case, was equivalent to a finding that defendant was not guilty, the entry reading in part “judgment for defendant for costs.”

Defendant contends that the law of Ohio is clear that equity will relieve against forfeiture of a lease for nonpayment of rent. We agree with this contention. Defendant cites several cases which we have examined, and it appears that in each of these cases this well-known rule was given recognition where the pleadings and proof have invoked the exercise of equitable jurisdiction.

The principal case relied on is Tabor v. Bellman, 13 Oh Ap 383 (Lucas County). This was an injunction proceeding brought in the Common Pleas Court to restrain the issuance and service of a writ of restitution in a forcible detainer case on a judgment rendered in the Municipal Court. It was held that equity will relieve against forfeiture of a lease for nonpayment of rent when equity will be subserved thereby.

The defendant has also cited Nagy v. Vargo, 7 Abs 457 (C. A. Lorain County), and BiBaw v. Cohn & Carney (C. A. Mahoning County). In each of these cases the Municipal Court had granted restitution. The Court of Appeals had for review the record of proceedings in original actions brought in the Court of Common Pleas to restrain the issuance of writs of restitution and to set aside the judgments of forfeiture of leases. Also, Gould v. Hyatt, 4 Abs 468 (C. A. Lucas County). This action was brought in the Common Pleas Court to enjoin the lessor from declaring a forfeiture of a certain lease. It was held that where equities of the parties can be otherwise adjudicated, a lease will not be forfeited for nonpayment of rent.

In Rea v. Helsey, 86 Oh Ap 114 (Franklin County), cited by defendant, it appears that equitable issues were raised on the pleadings in the Municipal Court and that Court found the tenant was entitled to equitable relief against a forfeiture. On appeal, the judgment was affirmed.

The case of Adair v. Crepps, 81 Oh Ap 136 (Hamilton County), relied on by plaintiffs, was an action in forcible entry and detainer, brought in the Municipal Court. The defendants were in possession of real property under a lease containing a privilege of purchase clause. It appeared that defendants were in default for nonpayment of rent. The Court held that the privilege of purchase clause created an equitable interest in defendants, which deprived the Court of Jurisdiction. On appeal to the Court of Appeals, judgment was reversed on the ground that the bill of particulars stated a good cause of action in forcible entry and detainer, which raised the issue of right of possession.

In the Court’s opinion, page 144, the Court said:

“If in truth and in fact defendants have a good defense to this action, calling for the exercise of equitable jurisdiction on the part of the court, pleading and proof will defeat this action for possession only.” See Jaeger v. Goldsweg, 42 Abs 340.

In the instant case, the terms of the lease provide, among other things, that a “simple breach of any of the covenants” of said lease “shall of itself constitute a wrongful detention”; that no payment of money by defendant after notice of termination of the lease shall reinstate the lease.

The respective rights and duties of the lessor and lessee, which are binding on the parties to this action, are set forth in the lease in clear, comprehensive and unambiguous terms. No claim is made that either of the parties did not have a right to contract, or that any of the covenants in the lease were not binding on the parties, including the provisions relating to default and right of re-entry. 10 O. Jur. 2nd, 573, Sec. 503.

It is not the province of the courts in actions at law, to reform contracts by judicial intervention, nor relieve a party from his contractual obligations fairly and honestly entered into.

In this case, no defense, equitable or otherwise (excepting a general denial considered as filed under the rules of the trial court), having been pleaded, the trial court erred in entering judgment for the defendant in this action on the ground that equity abhors a forfeiture, without first requiring defendant to plead his equitable defense, and considering the evidence introduced on the issues thus raised.

Judgment of the Municipal Court reversed and cause remanded thereto for a new trial, costs to abide final judgment.