author: Per CURIAM:

text:
    BARTON, Plaintiff-Appellee, v. PARATORE, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22495.
    Decided September 29, 1952.

      C. J. French, for plaintiff-appellee.
    Squire, Sanders & Dempsey, Roy C. Green, of Counsel, Cleveland, for defendant-appellant.
   OPINION

Per CURIAM:

This case is an appeal to this Court on questions of law from a judgment of the Municipal Court of Cleveland in a suit for damages for injuries growing out of the collision between automobiles owned and operated by plaintiff and defendant. A verdict and judgment in favor of the plaintiff was rendered in the trial court in the sum of $900.00 on January 23, 1952. On January 25, 1952 a motion was filed by defendant who is the appellant in this Court for judgment non obstante veredicto. On January 30, 1952, defendant appellant filed a motion for new trial. The following day the court overruled the motion for judgment non obstante veredicto, but granted the motion for new trial. Defendant appellant thereupon filed his notice of appeal to this Court on questions of law.

The petition as originally filed alleged that plaintiff was operating his automobile in a westerly direction on Rockside Road which is a duly dedicated highway running in a general easterly and westerly direction, that as his automobile approached Crossview Road which intersects Rockside Road, and as he turned left and entered into Crossview Road, the defendant operating his automobile in an easterly direction on Rockside Road struck and collided with plaintiff’s automobile causing damages to plaintiff’s automobile and to plaintiff. The petition further alleged five specifications of negligence on the part of defendaant.

Upon the trial and at the conclusion of plaintiff’s evidence, defendant moved that the trial court strike four of the allegations of negligence from the petition and this motion was granted, the only allegation of negligence eventually submitted to the jury being the fourth allegation of negligence, to-wit:

“In that defendant failed to stop his said motor vehicle in season to avoid striking plaintiff’s automobile as in the exercise of ordinary care he could and should have done.”

Defendant’s answer and amended answer had denied any negligence on his part in connection with the collision.

At the trial, plaintiff called two witnesses, the plaintiff and the Chief of Police of Seven Hills Village, the municipality in which the accident took place.

The defendant, at the conclusion of plaintiff’s evidence, having moved for a directed verdict, which was overruled, thereupon took the stand and testified in his own behalf and was thereafter cross-examined by plaintiff. Defendant then having rested, his attorney again moved for a directed verdict. This motion was overruled and the case was then submitted to the jury under instructions of the trial court. The jury thereupon rendered its verdict for $900.00 in favor of plaintiff. The defendant filed his motion for judgment non obstante veredicto and a separate motion for new trial. The trial court overruled the former motion but granted the motion for new trial.

The assignments of error raised in this Court the question whether the trial court committed error in failing originally to direct a verdict for defendant at the conclusion of plaintiff’s evidence and again at the conclusion of defendant’s case, and whether the trial court improperly overruled the motion of defendant for judgment non obstante veredicto.

By proceeding with his own evidence, instead of resting after his motion for a directed verdict had been overruled at the close of plaintiff’s case, the defendant has waived that particular ground of error. Halkias v. Wilkoff Co., 141 Oh St 139, Syl. 2. We have before us for consideration, however, the action of the trial court in overruling defendant’s motion for a directed verdict at the conclusion of all of the evidence and its action in overruling defendant’s motion for judgment non obstante veredicto.

In our approach to and determination of the questions raised, we have in mind the propositions of 'law succinctly stated in Wilkeson v. Erskine & Son, 145 Oh St 218, Syl. 2, 3, 4, as follows:

“2. Where a defendant at the close of all the evidence, moves the court to direct a verdict in its favor, the plaintiff is entitled to have the evidence construed most strongly in his favor. (Hamden Lodge v. Ohio Fuel Gas Co., 127 Oh St 469 approved and followed.)
“3. Where, on the trial of a cause, substantial evidence has been introduced from which it might reasonably be concluded that defendant was guilty of negligence which was the proximate cause of plaintiff’s injury, the court may not sustain defendant’s motion to direct a verdict. The test is not whether the trial judge would set aside a verdict in" favor of plaintiff on the weight of the evidence.
“4. Where there is no defect in the statements contained in plaintiff’s pleadings and there is substantial evidence from which a reasonable conclusion might be drawn that defendant was guilty of negligence proximately causing plaintiff’s injury a motion non obstante veredicto attacking a verdict in favor of plaintiff may not be sustained. The weight of the evidence is not involved upon such motion. (Sec: 11601 GC.)”

We have examined the bill of exceptions in this case with care. Without summarizing the facts, we have found no evidence in the case to substantiate the sole allegation of negligence remaining in the petition and submitted by the trial court to the 'jury. On that basis, it appears that the trial court should have granted defendant’s motion for a directed verdict in his favor at the close of all of the evidence, and that, in failing to do so, the court therefore committed error. We also find that the trial court, upon defendant’s subsequent motion for judgment non obstante veredicto, failed to correct its error and erroneously failed to grant defendant’s motion for judgment non obstante veredicto in view of §11601 GC providing as follows:

“When, upon the statements in the pleadings or upon the evidence received upon the trial, one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court, although a verdict has been found against such party and whether or not motion to direct a verdict may have been made or overruled, but no judgment shall be rendered by the court on the ground that the verdict is against the weight of the evidence.”

Since defendant was entitled to judgment on the evidence, the subsequent granting by the trial court of defendant’s motion for new trial could not adequately give to defendant the relief to which he was entitled. This court, confronted with this principle and, having in mind its authority, under §11223-38 GC, to render the judgment which the court below should have rendered, hereby enters final judgment for defendant appellant. 2 O. Jur., Appellate Review, Part II, Secs. 934, 871.

'Judgment reversed and final judgment rendered for defendant appellant. Exc. Order See Journal.

SKEEL, PJ, HURD, J, THOMPSON, J, concur.


source: Caselaw Access Project

author: By SKEEL, PJ.:

license: Public Domain

text:
    BELL, Plaintiff-Appellant, v. VRATARIC, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22648.
    Decided February 9, 1953.
    A. W. Bell, for plaintiff-appellant.
    M. R. Blane, Jerome Leiken, Cleveland, for defendant-appellee.
   OPINION

By SKEEL, PJ.:

This appeal comes to this court on questions of law from a judgment entered for the defendant in the Municipal Court of Cleveland. The action is based on two promissory notes, one note of the face value of $82.50 issued for a valuable consideration and payable in monthly installments of $8.25 beginning one month after date, dated February 27, 1939 in which Louis DeArco was maker and John M. Vrataric payee, said note bearing interest at 8% per annum. A considerable time (1942) after the maker was in default, the defendant and payee endorsed the note to the order of I. R. Rosenblatt who during 1943 collected $15.00 in three separate payments from the maker. I. R. Rosenblatt thereafter endorsed the note without recourse to the plaintiff for a valuable consideration. Being unable to locate the maker, the plaintiff brings this action against the defendant on his endorsement.

The other note was for the face value of $89.10 issued for a valuable consideration payable in monthly installments of $8.91 in which Harry G. Korman is maker, bearing date of November 29, 1939 upon which no payments have been made. This note came into the possession of the plaintiff under the same circumstance as the first note herein described.

Upon the trial, the plaintiff produced as a witness I. R. Rosenblatt who testified in part that he received the notes from John M.. Vrataric, defendant herein, “for collection agreeing to keep the proceeds in full payment for prior legal services amounting to not more than $80.00.” The defendant testified about receiving the notes in the regular course of his business; that he discounted them with Merchants Finance Co. and received $150.00; that the makers defaulted in the payments as they came due whereupon the finance company demanded and he refunded the $150.00 and received the notes back. The defendant further testified that- “in endorsing to Rosenblatt he did not intend to guarantee payment of the two notes in the aggregate sum of $171.00 to cover an indebtedness of only $60.00 but rather the endorsement was intended as a device whereby the said Rosenblatt might collect the same and retain the proceeds in full payment for legal services rendered.”

The only question presented on this appeal is whether or not, upon the foregoing evidence, the trial court was correct, in holding that Rosenblatt accepted said notes as payment in full of the debt due him from Vrataric and that by said agreement he (Rosenblatt) waived any right to hold Vrataric as a prior endorsee?

The plaintiff herein holds said notes as an assignee of Rosenblatt. His rights against the defendant are the same as if Rosenblatt was the plaintiff.

The judgment of the trial court indicates that it found from the testimony of Rosenblatt, who testified for the plaintiff, and that of the defendant that the agreement between the defendant and Rosenblatt, who at that time sustained the relationship of client and attorney, was that Rosenblatt was to take the notes in full settlement of his claim for services against this defendant agreeing to look to the maker of the notes for payment thereby releasing this defendant from further liability for his (Rosenblatt’s) legal services. This being so, if Rosenblatt was plaintiff, such an agreement would clearly preclude him from seeking to enforce an endorser’s liability against his client. We believe this is the proper interpretation of the agreement between Rosenblatt and the defendant and for that reason, affirm the judgment entered by the trial court.

Judgment affirmed. Exceptions noted. O. S. 3'.

HURD, J, KOVACHY, J, concur.


author: By CASE, J.

text:
    HUTSON, Plaintiff, v. HUTSON, Jr., Defendant.
    Common Pleas Court, Fayette County.
    No. 21775.
    Decided June 11, 1954.

      Charles S. Hire, Washington C. H., for defendant.
    Otis B. Core, Washington C. H., for plaintiff.
   OPINION

By CASE, J.

This is a divorce case in which the records show that Plaintiff’s petition, together with a motion seeking a reasonable sum for her support and expenses and for the support of two minor children of the parties during the pendency of this action, were filed on March 31, 1954.

Notice of the filing of said petition and of the aforesaid motion for support and expense money were duly given and served on said Defendant, and said motion came on for hearing and was heard by the Court on April 8, 1954, at which time_ and place both parties to this action were present, represented’ by counsel, and testified with respect thereto.

On April 8, 1954, the court made and issued the following order:

“On motion of the plaintiff herein, and good cause being shown, it is hereby ordered that she be allowed the sum of $250.00 per month for the support and maintenance of herself and two minor children during the continuance of this action, and that she be allowed the sum of. $100.00 as and for her expenses in conducting this action.
“It is therefore ordered that the said Frank L. Hutson, Jr., pay to the Clerk of this Court the sum of $250.00 on or before Saturday, April 10, 1954; and also the sum of $250.00 upon the 10th day of each and every month during the continuance of this action.
“It is further ordered that the said Majorie Lee Hutson have the possession and use of the household furniture during the pendency of this suit; and'the said Frank L. Hutson, Jr. is hereby enjoined from interfering with or disturbing her in the possession and use thereof. To all of which defendant excepts.”

and on April 16, 1954, this court made and issued the following supplemental order with respect thereto:

“The Court, on its own motion, coming now to consider its order hereinbefore made and issued on April 8, 1954, requiring said Defendant to make certain payments to the Clerk of this Court, as and for support and maintenance of said Plaintiff and two minor children and for expenses in prosecuting this action; and it appearing that the Court contemplated and intended that said amounts, so paid and received, should be subject to the fees and charges authorized and required by §2303.20 (K) R. C., and the remaining balance thereof distributed to Plaintiff as and for the purposes above stated; and that specific instructions with respect thereto were inadvertently omitted from the aforesaid order, the Court finds:
“That a supplemental order should be made herein to clarify the aforesaid order and to specifically instruct said Clerk with respect to the receipt and disbursement of said payments.
“It is, therefore, ordered that the aforesaid order, herein-before made and issued on April 8, 1954, be, and hereby the same is, supplemented to provide that said Clerk of Courts be, and hereby said Clerk is, ordered to charge and collect, out of said payments so made, the fees and charges authorized and required by the provisions of §2303.20 (K) R. C., and to distribute the balance of said payments to the Plaintiff as and for the purposes above stated.
“It is further ordered that, in all other respects, the aforesaid order of April 8, 1954, be, and hereby the same is. readopted and reaffirmed as if fully rewritten herein.”

On June 1, 1954, the following motion was filed herein:

“Now comes the defendant and moves the Court that the former order of this Court made and issued on the 8th day of April, 1954, be vacated and modified for the following reasons, to-wit:
“1. That said order is unreasonable, unjust and impossible of compliance, due to lack of employment or earnings on the part of said defendant.
“2. That said defendant has been out of employment since the 8th day of April, 1954, until the 2nd day of June, 1954; that under terms of new employment defendant will receive a gross salary of $3,600.00 per year or an approximate net of $3,346.00 or an approximate monthly salary of $279.00 per month.
“WHEREFORE, defendant moves the Court to modify said former order of this Court in accordance with the present conditions existing relative to the earnings of this defendant.”

On June 2, 1954, the following motion was filed herein:

“Now comes plaintiff through her attorney and says that the defendant has disobeyed the order of the Court heretofore made on the 9th day of April, 1954, concerning temporary alimony and has refused to comply with said order and therefore plaintiff asks for an order of this Court requiring defendant to appear and show cause why he should not be punished as for contempt of Court.”

Upon agreement of counsel for the respective parties and by leave of Court first had and obtained, said motions were scheduled and assigned for hearing simultaneously on June 8, 1954, at which time and place each of said parties were present, represented by counsel, and testified with respect thereto.

FACTS REFLECTED ON THE RECORD MADE DURING THE PRIOR HEARING HELD ON APRIL 8, 1954

From the evidence adduced on behalf of Plaintiff, at said hearing on April 8, 1954, it appears:

1. That Plaintiff and the two minor children • were then residing in the upper duplex at 128% West Temple Street, Washington C. H., Ohio; and that said duplex consisted of three rooms, a kitchen and a bath;

2. That Plaintiff and Defendant had lived together in said duplex from October 1952 to the latter part of March, 1954;

3. That the established rental for said duplex was $50 per month, although Defendant had never been required to pay any rental during such occupancy, and that Defendant’s mother owned said premises and had paid for all utility services during such occupancy by the parties;

4. That Plaintiff and Defendant separated on or about March 27, 1954;

5. That Plaintiff performed all the normal duties of a housewife, including the laundry, and cared for the children during such occupancy;

6. That Plaintiff was 25 years old, had anemia and also suffered with a pelvic and spinal condition which required regular medical care and treatment since February 1953; that ' Plaintiff had not experienced any such physical difficulties prior to marriage to said Defendant; and that Plaintiff’s doctors had prescribed that Plaintiff should do no lifting and should not go up and down stairs;

7. That Plaintiff was employed at the time said parties were married and continued to be employed for a year or more after the marriage; and that Plaintiff was never furnished any funds by Defendant upon which to budget the household expenses or with which to buy groceries, clothing and to obtain dry-cleaning or other incidental household expenses; and

8. That Plaintiff estimated that the following amounts would be necessary and required for the support of the minor children and herself during the pendency of the action:

(a) Groceries and milk, per month__________$100

(b) Electricity, Gas & Telephone ___________ 20

(c) Dry-Cleaning service ____________________ 15

(d) House rent _____________________________ 50

(e) Medical care (Plaintiff & Children) ____ 40

(f) Clothing and other necessary incidentals

For Children and Plaintiff _____________ 40

TOTAL_______(per month)_______$265

From the evidence adduced on behalf of Defendant, at said hearing on April 8, 1954, it appears:

(A) That Defendant was 35 years old; that the parties were married at Newport, Kentucky, January 15, 1949; and that two children, Frank Loring Hutson, III, aged 3% years, and Patricia Ann Hutson, aged 2% years, were born as the issue of said marriage;

(B) That, prior to the filing of this action, said parties and their children resided in an upper duplex owned by Defendant’s mother, and that the parties occupied said premises “rent free;”

(C) That some of the furniture used in their occupancy of said premises consisted of an antique bedroom suite owned by Defendant’s sister Helen Hutson;

(D) That Plaintiff had been suffering from some physical difficulty with her back for which she had been receiving medical treatment from Dr. Woodmansee and Dr. Persinger, and for which there was a bill owing to Dr. Woodmansee of approximately $65 or $70;

(E) That Defendant owed past due accounts for milk which required Plaintiff to pay cash for milk purchased for herself and children since the parties had separated;

(F) That Defendant did not own an automobile but had been previously employed by The Tennessee Corporation as a salesman during the calendar year 1953, and had drawn approximately $4,905.27 as salary from such employment during 1953, and that said employment had been terminated about November 1, 1953; and that Defendant had not been employed since that date;

(G) That, during the aforesaid employment, Defendant had owned an automobile but had disposed thereof and no longer owned an automobile; and that Defendant did not own any real estate, stocks or bonds, and had no savings or checking account in any bank;

(H) That, prior to said employment with The Tennessee Corporation, Defendant had been employed by Kroger Babb for approximately one and one-half years and was earning $125 per week when leaving Babb’s employment; that Defendant’s earnings while working for Babb had averaged $150 per week out of which Defendant paid his own traveling expenses; and that Plaintiff had also been employed during that time and had earned $50 per week;

and, beginning at page 33 of the record, the hearing on April 8, 1954, proceeding to conclusion as follows:

“Q: You and your wife paid all of your expenses?
“A: Yes.
“Q: Did you feel it most profitable to leave that company and go to work for Tennessee Corporation?
“A: I would say it was more profitable.
“Q: Were you able to save or partly save any money?
“A: No.
“Q: You were not?
“A: No.
“Q: You say you have no property at the present time?
“A: No sir.
“Q: Now, Frank, since November of Í953 have you attempted to obtain other employment?
“A: Yes.
“Q: And have you so obtained any employment?
“A: Not as yet.
“Q: Have you immediate prospects?
“A: Yes.
“Q: With what company or individual or concern?
“A: Well, I have a prospect of going into Chamber of Commerce work. I also have a chance to work at North American until maybe the other job comes through. I also have a chance for a job in Washington D. C.
“Q: Are you familar with what the salary pf those jobs would be?
“A: No, I am not. As a matter of fact I did have an interview with a man and he is making an appointment for me to see this man at North American. However, the question of salary, of course, I wouldn’t know.
“Q: You are endeavoring to obtain work?
“A: Absolutely.
“Q: Now, the money that you paid your wife last week was $35?
“A: That is correct.
“Q: From what source did you obtain those funds?
“A: My mother.
“Q: Is that the only source you have of obtaining funds?
“A: That is correct.
“Q: Has your mother supported you and supported your wife and children?
“A: That is correct.
“Q. Do you have any present indebtedness, Frank?
“A: Yes.
“Q: What and to whom?
“A:Well, I would say . . . you mean the full amount?
“Q: Yes.
“A: Well that is rather hard to set a figure, but I would say in the area of $500 or $600.
“Q: Now, have you made available since your separation a place to live, for your wife and minor children?
“A: Yes sir.
“Q: Is that the apartment where she is residing?
“A: That is correct.
“Q: That apartment is owned by your mother?
“A: That is correct.
“Q: Have you attempted to supply your wife and family with the necessities óf life?
“Q: Have you an arrangement with your mother with a promise of payment in the future or otherwise?
“A: Yes. You asked me if I had provided the necessities of life to my wife and children. I have provided her with what they have asked for. They asked me for $25 I gave them $25.
“Q: When you were living together Frank what did the weekly grocery account amount to?
“A: Oh, I would say around $15 or $16 or something like that.
“Q: Are you willing to tell the court that in so far as you are concerned your wife may continue to occupy the apartment that she is now occupying rent free with present utilities furnished, Mr. Hutson?
“A: Yes sir.
“Q: What amount of money are you able to pay through borrowing or otherwise for the support of your minor children?
“A: When one isn’t gainfully employed that is a rather difficult statement to make. I do want to do the right thing by my children. I want to pay without furthering my indebtedness but by the same token I want my children to have whatever they need.
“That is all.
“BY THE COURT:
“Q: As the court understands by your testimony your employment with the Tennessee Corporation terminated on or about November 1, 1953. What was the first date that you recall after November 1st that you first attempted to secure employment?
“A: It had to be during the month of November because I went to Chicago . . . my wife, my sister and myself for the purpose of seeking employment and I know that it had to be approximately right after my termination of employment for the simple reason it was the last football game of the year, so it had to be during November.
“Q: Apparently that effort was unsuccessful?
“A: No sir. This particular employment is concerned with the National Tax Equalization of which a man by the name of Vernon Scott is the President of. Mr. Scott is presently in the process of organizing a new organization to further the promotion among the smaller business men of the country. Such an organization, your Honor, naturally entails quite a bit of work and a lot of detail in getting ready and Mh Scott had told me that he thought I would be able to go to work for them' the first of the year. Getting back to what I had just mentioned I reiterate the fact that in organizing this company it takes time and the first of the year, he wasn’t ready to start with the new company. As a matter of fact I have a letter from him dated February 18th and he said that he felt that he was not going to take .on high salaried executives just to sit around and do nothing.
“Q. Was salary mentioned at the time of the interview?
“A: Mr. Scott did discuss salary. I did, your Honor. That was just a matter of conversation. Naturally, 1 asked him what type of salary the position would pay.
“Q: Did he indicate what that amount would be?
“A: Yes.
“Q: How much?
“A: $12,000 a year.
“Q. Now when did you receive that letter, about the first of the year?
“A: February 18th.
“Q: However, at that time he gave no mention as to prior comments of your going to work the first of the year?
“A: That is correct.
“Q: After that interview you were pretty sure that you would be employed with his firm?
“A: That is right.
“Q: What was the next effort to secure employment?
“A: Well, your Honor, I had talked to Olen Waite, Chamber of Commerce on several occasions concerning the chamber of commerce work.
“Q. When did this conversation take place?
“A: Well, I have discussed that with Olen several times.
“Q: As a result of your conversation, nothing definite was forthcoming in the Chamber of Commerce?
“A: That is right.
“Q: So what was your next effort?
“A: Well, getting back to Vernon Scott, I have talked to him on the telephone in Chicago. It is one of those things, it was just around the corner. Until this week, I actually had to get a job no matter what it was to have a source of income until maybe a better job came around.
“The court has no further questions.
“DEFENDANT RESTS
“THE COURT: Now the court understands from the opening statement that there had been some negotiations between the parties concerning at least the possibility as to temporary alimony and support and expense money during the pendency of this action and that those negotiations did not meet with any satisfactory conclusion to the parties. The court also notes that during the past two weeks the defendant has paid $35 as and for support and maintenance. There is one more question I would like to ask the defendant and the defendant may answer from where he is sitting.
“Q. Have you been ill or physically disabled since the termination of your employment with the Tennessee Corporation?
“A. No sir.
“Now the court desires to ask one further question of counsel concerning the application for expense and support money. Is the court to understand that the expenses so mentioned in the motion include the cost of prosecuting the action?
“MR. CORE: It is satisfactory to the counsel as to the attorney fees after the six weeks has elapsed.
“The court coming now to consider the petition and the motion herein filed on March 31st and the testimony and evidence adduced at this hearing, finds that the defendant should obtain regular and steady employment and should pay to the plaintiff as and for temporary alimony and support money for the minor children of the parties the sum of $250 a month and $100 as and for court costs and expenses in prosecuting this action.
“Now does counsel have any question as to the place or method of payment?
“MR. CORE: I believe it would be best to be paid to the Court, is that right, Mrs. Hutson?
“A: Yes.
“THE COURT: Then the payment of support money should be made to the clerk of courts.
“MR. HIRE: If the court please, what is the date of commencement of that payment?
“THE COURT: The commencing would be as of the date of hearing. The court feels that there is certainly no authority to go back of the hearing date. Does counsel have in mind any court decisions that you can go back to the date of filing the action?
“MR. HIRE: What I am addressing to the court is as to when the payment of $250 commences. The entry usually provides that ... Is it to be made weekly or monthly?
“MR. CORE’: In view of the evidence that the $35 was paid over a week ago,' might ask the court the one payment be ordered and then seven day week hence on that basis. Would that be satisfactory?
“MR HIRE: Obviously, it will not be satisfactory because the defendant has no funds. I have no solution other than to make the statement that the only possible way is through employment. It is incumbent upon Frank to pay this amount as I view the matter your Honor. He has an order that the court has made. The only possible way for him to pay it is to obtain employment. Now, if he can obtain employment, he will be able to meet that payment, I will certainly advise him to do it. If he can’t, he will be in contempt of court, and there will be nothing for me to do other than to bring him in here and plead him guilty.
“THE COURT: As the evidence shows, his mother has furnished all the utilities and rent required for the support and maintenance of this family. There has been no explanation why he has not furnished these, when he can earn $675 a month from Kroger Babb, and his earnings of $4900 for a ten month period of 1953 shows that he can meet the emergency either one way or the other to take care of the necessities of his family; and I don’t think the court’s order is out of line with the standard of his earning ability. I know of no requirement that the court’s order must be based upon actual present employment. I know of no requirement on that at all. The problem of support of any one of his family is a burden that must be assumed and the court cannot assume those problems. It is his problem of how he obtains the money and whether it is from borrowing or whether he gets it from employment.
“Now, Mr. Hire, if the court understands the remarks of counsel at this time. Counsel for defendant says that we are wrong in ordering them to pay this amount and even though the evidence fails to show that he has no present means of payment. Following that line of thought, it would appear that counsel for defendant takes the position that whenever a defendant to a divorce suit appears upon a motion application for alimony and support and he has not gone to apply or has neglected to apply for positions of employment because he anticipated employment paying as high as $12,000 a year, where in the year 1953, evidence has been produced that he made $4900, that the court is powerless to see to it that a man, who from November, 1953, has lived off the bounty of his mother, although he is physically able, that he has no duty to support his wife and children and should be excused because he has no present means of support. The court does not find that counsel for defendant can cite a statute or a case that would permit a thing like that.
“Here is a man 35 years old. Presumably he tó old enough to know what his obligations to his family are. Would it take him from November to the time that this suit was filed, and the record clearly stated that he failed and neglected to help plaintiff when able to do so, the court can not close its eyes to that. Now the manner in which he produces the $250 a month plus the $100 for expense money are items that are his obligation imposed upon him by the court, based upon the showing from his own testimony as to how much he can earn a year. Here he has rested on his laurels waiting for the $12,000 a year job, and that is from his own statement which tended to show that, after this petition was filed, he felt he ought to get out and do something. The court will state that the order stands; that the $250 should be paid in monthly installments, beginning on Saturday of this week, to be paid to the Clerk of Courts.
“MR. HIRE: If the court please, the only way he can pay is to go to North American, and that will bring him in the sum of $51.05 a week. Now under present court order is this defendant going to be able to live?
“THE COURT: The testimony here today of the Defendant shows that he is able to earn, and he should have done it long ago.
“MR. HIRE: He is unable to pay this court order. He can’t pay this $250 a month, as the court orders.
“THE COURT: It is the court’s opinion that he has the capacity to earn. He did earn as high as $4900 during the year of 1953', and he has negotiated for a position paying as high as $12,000 a year. The court fails to see that he can’t get out and earn money for the support of his wife and two children.
“MR. HIRE: The fact remains that the conditions in 1953 were different than in 1954.
“THE COURT: The fact remains also that he has not done anything toward obtaining employment. He did say he talked to some friend who made an appointment for him to see someone at North American. But the court fails to see that he has made a sincere effort to obtain employment. The evidence shows that he does have capacity to earn. The court is always available for any other questions on this matter.
“The court rather regrets this interchanging of remarks between the court and counsel. It is hardly a normal procedure.”

From the testimony adduced on behalf of Defendant, at the hearing on June 8,. 1954, in support of Defendant’s aforesaid motion to vacate and modify the order heretofore made and issued on April 8, 1954, and in opposition to Plaintiff’s motion that Defendant should be held in contempt for failure to obey said order of April 8th, it appears:

1. That Defendant has not been employed since November 1, 1953, and since that time has enjoyed good health and has not suffered from any physical disability;

2. That, during the period from April 8, 1954, to June 8, 1954, Defendant has filed an application for employment with the U. S. Chamber of Commerce, Washington, D. C.;

3. That, within said period, Defendant has registered with the local employment office and, as a result thereof, was referred to the McLean Trucking Company whose main office is in Winston Salem, North Carolina;

4. That negotiations, concerning Defendant’s employment with McLean Trucking Company, had progressed to a point where Defendant really believed that such employment would be consummated on June 2, 1954; and that Defendant did not discover that certain clearance for the establishment of a local terminal for that company had not been completed and approved until after the filing of Defendant’s motion herein on June 1, 1954;

5. That Defendant really believes said employment will commence on or about June 16, 1954;

6. That Defendant’s testimony is to the effect that he is willing to accept any employment offered to him;

7. That Defendant investigated an opportunity for employment with the District Manager of the Ford Motor Company which would require Defendant to drive an automobile; and that Defendant’s driving rights have been revoked and will not be restored before October 1954;

8. That Defendant’s opportunities for employment with prospective employers, other than the MeLean Trucking Company, would, if consumated, produce earnings substantially greater than those offered by the McLean Trucking Company;

9. That Defendant has not acquired any property or earnings since April 8, 1954;

10. That, since separation of the parties herein, Defendant has been furnished board and room by his mother without any charge therefor;

11. That Defendant has purchased no clothing since the commencement of this divorce action;

12. That all money paid in to the Clerk of Courts pursuant to the aforesaid order of April 8, 1954, was borrowed from Defendant’s mother, and was paid as follows:

$250.00 on April 10, 1954
$125.00 on May 8, 1954
$ 50.39 on May 25, 1954
$ 62.50 on June 7, 1954

13. That Defendant has not given or executed any notes to his mother for the amounts so loaned but feels that he is obligated to repay same at the earliest possible date from earnings he will receive from employment in the future;

14. That Defendant was unable to borrow the full amount of $250 which became due under said order on May 10, 1954, because Defendant’s mother claimed that Plaintiff owed Defendant’s mother one month’s rental for occupancy of said mother’s upstairs duplex apartment at 128% West Temple Street, Washington C. H., Ohio, in the amount of $50.00 and that Defendant’s mother also claimed that Plaintiff owed 39 cents for telephone service charges and $24.22 for electricity and gas utility services at said premises;

15. That Defendant was able to borrow from his mother the $62.50 which was paid to the Clerk of Courts on June 7, 1954, to apply on the next $250 payment which would be due under the aforesaid order on June 10, 1954; and

16. That Defendant’s testimony indicated he would experience less difficulty in meeting said $250 payments if the same could be made in four equal installments over each monthly period instead of a single payment as heretofore ordered by the Court.

From the testimony adduced on behalf of Plaintiff, at said hearing on June 8, 1954, in .opposition to Defendant’s motion to vacate and modify the aforesaid order of April 8, 1954, and in support of Plaintiff’s motion that Defendant be held in contempt of court for failure to obey said order, it appears:

(A) That Plaintiff and the two minor children of the parties moved from the upstairs duplex apartment owned by Defendant’s mother to 509 East Street, Washington C. H., Ohio, on or about May 10, 1954;

(B) That said residence property now occupied by Plaintiff is owned by Mrs. Davidson and the rental thereof amounts to $65.00 per month; and that Plaintiff’s sister is living with Plaintiff and is paying $15 per month on said rental;

(C) That Plaintiff has purchased an apartment size refrigerator, a bedroom suite and draperies since moving to said premises and has become indebted therefore to the bank in the sum of $400, and is paying off said indebtedness by making payments of $20 per month;

(D) That Plaintiff has been paying $20 to $25 per week for groceries and $12 per month for milk; and also paid $19 for moving expenses, and has paid $25 in clothing purchases for said minor children;

(E) That, over one two-week period, Plaintiff paid $26 for medical services for herself;

(F) That, upon cross-examination, Plaintiff testified that it might be possible to support and maintain said two minor children and herself on the following budget:

$50 per month for house rental
$90 per month for groceries
$12 per month for milk
$24 per month for utility services
$20 per month for medical treatment for herself
$20 per month to bank on furniture loan
$15 per month for clothing

(G) That Plaintiff is willing to economize in every reasonable way concerning living expenses for the children and herself; but that said children need and require living quarters where suitable yard space is available for them.

At the close of all testimony and argument, on June 8, 1954, it was agreed by and between Plaintiff and Defendant and their respective counsel that final hearing upon Plaintiff’s petition herein should be scheduled and assigned for Tuesday, June 22, 1954, at 10:00 A. M., and said trial date was approved by the Court.

The Court, having hereinabove set forth and reviewed the testimony and evidence of record in this proceeding as introduced on April 8, 1954 and June 8, 1954, comes now to consider the first branch of Defendant’s motion to vacate and modify the aforesaid order made on April 8, 1954, wherein Defendant contends:

“1. That said order is unreasonable, unjust and impossible of compliance, due to lack of employment or earnings on the part of said defendant.”

It is undisputed, and the v records of this Court clearly show that Defendant made, or caused to be made, to the Clerk of Courts certain payments purporting to be in compliance with the aforesaid order as follows:

$250.00 on April 10, 1954
$125.00 on May 8, 1954
$ 50.39 on May 25, 1954
$ 62.50 on June 7, 1954

It is also undisputed, and equally clear, that Defendant not only failed to obtain any employment from November 1, 1953 to April 8, 1954, but also failed to obtain any employment from April 8, 1954 to June 8, 1954.

If there is any support in our law for Defendant’s contention that the Court’s aforesaid order is unreasonable, unjust and impossible of compliance upon the grounds that Defendant owns no property, either real or personal, and is without any employment or earnings, then Defendant’s concept of the law of alimony and support payments for minor children is startling indeed.

“Thus this state of the law would operate to favor the derelict property less husband by making a virtue of his very shortcomings, perchance in respect to the very causes that gave ground for divorce; for all too frequently the fact that the party in fault is without property is clearly associated with conduct that directly led up to the necessity of separation.” Lape v. Lape, 99 Oh St, pages 144 and 145.

Obviously, the allegations contained in Plaintiff’s petition and the undisputed testimony of record herein show that Defendant’s lack of property and lack of employment are clearly associated with such conduct on the part of Defendant that directly contributed to and brought the within proceeding before this Court.

If there is any merit to Defendant’s contention that he should be exempt from temporary alimony and support payments because he is without property and earnings, although mentally qualified for an executive position and physically qualified for employment- in fields -of endeavor requiring lesser degrees of executive skill, then — “The seriousness and obvious injustice of such a situation is at once apparent, especially when we contemplate the very great number of worthy women who would thereby be deprived of a remedy which the law supposedly holds out to them.” (Lape v. Lape, 99 Oh St, at page 145.)

This Court is of the opinion that Defendant’s contention is untenable and is not supported by statutory or case law of this state; and not only should Defendant’s contention be rejected but this Court must subscribe to the reasoning of the Supreme Court of Ohio in the case of Lape v. Lape, 99 Oh St 143, at pages 145 and 146, wherein that court stated:

“It is a known fact that the divorce courts, while all too frequently resorted to by folks of property, are mostly occupied in solving the domestic difficulties of those not blessed with the possession of this world’s goods, and it certainly is to be granted that a good woman, who has faithfully kept the marriage vows, but who has been denied the support of her husband, should in a sense be the ward of the court.
“It would be difficult, it seems to us, to defend the equity of the situation or to commend as really enlightened a public policy which would decree that the erring husband with property should be made to fulfill this obligation, at once moral as well as legal, while another, just as much sinning against the law of both God and man, who made good wages or salary, as the case might be, but who squandered instead of saved, should be released.
“There is no question of the effect of the decision of the court of appeals. It holds squarely that the court is absolutely without power to render any judgment for alimony whatever, unless the aggrieved wife can show that her husband is the owner of property.
“Reasonable men must agree that such a distinction is manifestly opposed to a public policy' of enlightenment and does violence to every principle of equity and fairness.”

By the second branch of Defendant’s aforesaid motion to vacate and modify the aforesaid order, made on April 8, 1954-, said Defendant urges and contends:

“2. That said defendant has been out of employment since the 8th day of April, 1954, until the 2nd day of June, 1954; that under terms of new employment defendant will receive a gross salary of $3,600.00 per year or an approximate net of $3,346.00 or an approximate monthly salary of $279.00 per month.”

At the hearing on June 8, 1954, the testimony adduced on behalf of Defendant clearly admits that such employment was not consummated on June 2, 1954 as anticipated by said motion which was filed on June 1, 1954; and that such employment “was just around the corner” in a somewhat similar fashion to the $12,000 a year job testified to by Defendant on April 8, 1954, and that, subject to certain contingencies, this last anticipated employment could commence on or about June 16, 1954.

Testimony was also introduced on behalf of . Defendant to show that Defendant had investigated some other opportunities for employment which might be consummated at some future date and, if and when consummated, would produce substantially larger earnings than those set forth in branch “2” of Defendant’s motion..

Upon due consideration of all of the evidence adduced on behalf of Defendant’s motion to vacate and modify the order hereinbefore made and issued on April 8,1954, and giving thereto the same weight and credibility with which the Court considered the Defendant’s prior testimony, concerning earnings of $4,900.00 during the first ten months of 1953 and his opportunity for employment in an executive position at $12,000 per year, it does not appear that Defendant has established by clear and convincing evidence that any employment to be obtained by him in the future will produce smaller earnings than that which he has produced or anticipated in the past. Therefore, it must be concluded that there has been no actual change in Defendant’s capabilities for employment which would justify and warrant either a vacation or modification of the aforesaid order of April 8, 1954.

The Court comes now to consider Plaintiff’s motion herein filed on June 2, 1954, wherein Plaintiff contends:

“Now comes plaintiff through her attorney and says that the defendant has disobeyed the order of the Court heretofore made on the 9th day of April, 1954, concerning temporary alimony and has refused to comply with said order and therefore plaintiff asks for an order of this Court requiring defendant to appear and show cause why he should not be punished as for contempt of Court.”

The files and records of this proceeding áhow that the Court’s order of April 8, 1954, required Defendant to make temporary alimony and child support payments in the amount of $250 on the 10th day of each month during the pendency of this action beginning on April 10, 1954. It is undisputed that the files and records also show that, to date, said Defendant has made or caused to be made the following payments which have been received by the Clerks of Courts:

$250.00 on April 10, 1954
$125.00 on May 8, 1954
$ 50.39 on May 25, 1954
$ 62.50 on June 7, 1954

It is undisputed that Defendant’s payment of $250 on April 10, 1954, was in complete accord with the spirit and letter of said order and that no further payment pursuant thereto was due or to become due until May 10, 1954.

It is equally clear that Defendant’s partial payment of $125 on May 8, 1954, was made in advance of the next due date and therefore the balance became due on May 10,1954, amounted to $125, and that only $50.39 of said balance was paid by Defendant after said due date.

According to Defendant’s testimony, his failure to pay the entire amount of $250 which became due on May 10, 1954, arose out of certain claimed expenses for which Defendant’s mother claimed that Plaintiff was indebted to Defendant’s mother for rental and utility services while occupying the upstairs duplex apartment at 128% West Temple Street, Washington C. H., Ohio, during the pendency oí the within action.

From all of the evidence thus far adduced herein, it is undisputed that Plaintiff and Defendant occupied said apartment from October 1952 to the time of their separation late in March of 1954 and that, during such occupancy by Plaintiff and Defendant and their children, Defendant’s mother made no charge at any time for rental and in addition thereto voluntarily paid for all utility services without claiming or attempting to collect any charges for said services.

The evidence of record herein also shows that, prior to separation of Plaintiff and Defendant, Plaintiff had repeatedly requested Defendant to procure and obtain living quarters which would not require Plaintiff to go up and down stairs because Plaintiff’s doctors had advised Plaintiff to avoid using stairs due to her spinal and pelvic condition from which she had suffered since February 1953; and that Defendant had failed to obtain housing accommodations where Plaintiff could avoid the necessity of going up and down stairs.

The record is completely silent concerning any rental agreement entered into by and between Plaintiff and Defendant’s mother and there is no evidence to show that Defendant’s mother gave any notice to or made any demand upon Plaintiff concerning said charges at any time after said child support and temporary alimony order of April 8, 1954, or at any time in advance of Defendant’s failure to make the full payment of $250 which became due under said order on May 10, 1954.

Nor does it appear that Plaintiff and the two small children remained in said upstairs duplex apartment beyond the earliest possible date on which Plaintiff was able to contract for and move to their present residence at 509 East Street, Washington C. H., Ohio.

Defendant’s testimony, at the hearing on June 8, 1954, does show that Defendant caused $175.39 to be paid as and for temporary alimony and child support for the period from May 10,1954 to June 9,1954, and that the unpaid balance which Defendant failed to pay, amounting to $74.61, was not paid because Defendant’s mother .claimed that Plaintiff was indebted to Defendant’s mother for the following items and amounts:

Rent for upstairs apartment ------------ $50.00
Telephone charges ----------------------- .39
Gas & Electric utility service-------------- 24.22
TOTAL______________$74.61

It is axiomatic that Defendant’s mother is not a party to this proceeding, and that said claims which Defendant’s mother has appeared to claim as properly chargeable against the Plaintiff and said minor children as set forth above, are not appropriate subject matter over which the Court has acquired any jurisdiction in this proceeding and therefore cannot be adjudicated in this action. It is equally clear that, as a stranger to this proceeding, Defendant’s mother must invoke the jurisdiction of some court by appropriate legal proceedings before any court could determine that she is lawfully entitled to recovery of said $74.61 from the Plaintiff upon sucli claims. This Court would indeed be derelict in performing its duty if it were to allow such deduction arrangement, between Defendant and Defendant’s mother, to supersede and modify its order heretofore made on April 8, 1954.

In opposing Plaintiff’s motion for contempt, Defendant contends that the principles of law set forth and discussed in the case of Borror v.'Borror, 17 O. D. 147, are applicable to the case at bar. In that case the court held:

“A husband who has been ordered to pay a sum of money down and monthly payments as alimony is not in contempt for refusing to obey the order, if it is not shown that his income during the time in question was sufficient to enable him to comply with the order, and if he shows that he attempted to raise the required amount by mortgaging his real estate, but his wife refused to join in the mortgage deed.”

In that case it is clearly apparent that the wife’s refusal to join in such mortgage precluded the husband from making such payments from the sole remaining source from which such funds could be raised and that the husband, after exhausting all other sources, had made a reasonable and diligent effort to provide said funds from that single remaining source.

From the evidence of record in this proceeding, it does not appear that Defendant opposed his mother’s desire to so charge and collect said $74.61 from Plaintiff; or that Defendant remonstrated and urged upon his mother the serious consequences which could result from Defendant’s failure to carry out the spirit and the letter of this Court’s order heretofore issued on April 8,1954; and, therefore, it must be presumed and concluded that Defendant was agreeable to and in accord with the proposal by which Defendant’s mother claimed and presumed to recover said $74.61 by claiming same as a credit against the $250 which Defendant was under order of this Court to pay to the Clerk of Courts on account of Plaintiff herein on the 10th day of May 1954.

In the light of such facts of record and the inferences which may be reasonably deduced therefrom, this Court is not satisfied that Defendant made a reasonable and diligent effort to comply with said order on May 10, 1954, and must, therefore, find that Defendant is in contempt of court for said failure to comply therewith; and that Defendant still remains obligated under said order to pay said $74.61 before Defendant can be purged of such contempt of court.

It is also clear that Defendant’s partial payment of $62.50 on June 7, 1954, was intended to be made in advance of the due date, and that the balance which became due on June 10, 1954, amounted to $187.50 for the period beginning June 10, 1954; and that, therefore, on June 10, 1954, the files and records of this Court show that said Defendant had accumulated an arrearage in said alimony and support payments of $262.11 which are over due and unpaid.

Again, it is pointed out that Defendant’s testimony fails to show that Defendant had made or was making a reasonable and diligent effort to inform and impress upon the source of his funds that orders for the payment of child support and alimony are strictly enforced by the courts and that Defendant must sustain the punishment provided by law upon failure to comply with said order of this Court.

Therefore the Court must find that Defendant is in contempt of court for failure to pay the full amount of $250 as of June 10, 1954, in accordance with the aforesaid order of this Court; and that by reason thereof Defendant still remains obligated under said order to pay total arrearages amounting to $262.11 before Defendant can be purged of contempt of court in this proceeding.

CONCLUSION

Upon due consideration of all evidence of record and arguments of counsel, and for all of the reasons hereinabove set forth and discussed, the Court finds and orders:

1. That Defendant’s motion herein filed on June 1, 1954, is not well made and should be overruled as to each of its separate branches and in its entirety;

2. That Plaintiff’s motion herein filed on June 2, 1954, is well made and should be sustained; and that Defendant should be held in contempt of court for the reasons and upon the grounds hereinabove set forth and discussed;

3. That, on the Court’s own motion, Defendant should be granted to and including June 18, 1954, to pay the aforesaid arrearages in the total sum of $262.11 and thereby purge himself of said contempt of court; and

4. That, upon Defendant’s failure to so purge himself of such contempt of court by on or before said date, said Defendant should be punished for contempt of court as provided by law.

To all of which decision, findings and order counsel for parties herein interpose their respective exceptions and said exceptions are noted of record.


author: Per CURIAM.

text:
    ANTONELLI, Admrx., Plaintiff-Appellant, v. OHIO EDISON COMPANY, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3574.
    Decided April 10, 1953.
    William W. Weir, Warren, Oscar A. Stephens, Youngstown, for plain tiff-appellant.
    Harrington, Huxley & Smith, Youngstown, for defendantappellee.
   OPINION

Per CURIAM.

Plaintiff, administratrix of the estate of George F. Antonelli, deceased, called administratrix in this opinion, appealed to this court on questions of law from a judgment of the court of common pleas returned for defendant, a public utility corporation, by direction of the trial judge at the close of plaintiff’s evidence in her action to recover damages for the death of decedent, allegedly resulting from the negligence of the defendant.

Immediately prior to his death decedent was engaged as an employee of a television dealer in installing a television and erecting a twenty-five foot antenna on a farmer’s residence in Trumbull county, when the antenna thereof came in contact with one of defendant’s uninsulated primary wires, which at the time were about twenty-five feet above the ground and were transmitting 7000 to 7200 volts of electricity. Defendant’s predecessors obtained the right to erect such wires from the owners of the property on which the antenna was being erected.

As the result of the contact of the antenna with such primary wire decedent was electrocuted.

Plaintiff’s petition charges the defendant with negligence in maintaining the said high voltage wires without insulation within the reach of the pole and antenna being mounted upon said residence and within approximately 8 feet laterally from the porch of said residence and without any warning sign of the existence of such danger, while said defendant ought to have anticipated such consequences as likely to result from the maintenance of its wires at the unusually long distance from the highway; to-wit, approximately 25 feet farther from the highway then elsewhere along said highway, smaller in size and partially obscured from view by the leaves and limbs of trees.

Plaintiff contends by assignments of error, oral argument and brief, that “the court erred in finding that the minds of reasonable men could reasonably come to but the single conclusion that under the evidence as adduced by the plaintiff there was no negligence on the part of the defendant”; that the “court erred in sustaining defendant’s motion for a verdict to be directed in its favor at the conclusion of plaintiff’s evidence”; that “the verdict of the jury is contrary to law”; and finally “for other errors apparent upon the face of the record.”

As a result of a careful consideration of the evidence, the arguments and briefs of counsel, the court concludes that no error prejudicial to plaintiff intervened in the common pleas court, and that the court properly found from the evidence that reasonable minds could not disagree but must find that defendant was not negligent.

The judgment of the court of common pleas is affirmed.

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


author: By BARTLETT, J.

text:
    DAYTON GYMNASTIC CLUB, Appellant, v. BOARD OF LIQUOR CONTROL et, Appellees.
    Common Pleas Court, Franklin County.
    No. 186022.
    Decided March 24, 1953.
    Harry B. Solimano, Dayton, for appellant.
    C. William O’Neill, Atty. Geni., Columbus, for appellee.
   OPINION

By BARTLETT, J.

BOARD OF LIQUOR CONTROL ORDER (SUSPENDING D-4 PERMIT) REVERSED.

This is an appeal under §154-73 GC, seeking a reversal of an order of the Board of Liquor Control suspending the D-4 Permit of appellant for thirty days, for violation of the General Code and Regulation 53 of said Board, on a finding that said Permit Holder on or about the 4th day of June 1952, had. exhibited or used on its said premises Bingo cards which might be used for gaming or wagering on chances of a contest; and that said Permit Holder conducted the playing of Bingo for money on said premises.

The Dayton Gymnastic Club, an old time athletic club, was founded in 1879 and has just completed its new home costing $300,000.00. This club promotes boxing, wrestling, baseball, basket ball; and its pet project is aid to under-privileged children. In recent years, the profits from its operation of Bingo, have been devoted to this charitable program; and the club has raised upwards of $30,000.00 for this purpose.

In the case of State v. Parker, 150 Oh St 22, the Common Pleas Court of Summit County, sustained a demurrer to the indictment brought under §13064 GC, prohibiting a person, “for his own profit,” from promoting a lottery or scheme of chance, because the indictment did not contain the essential allegation that such lottery or scheme of chance was “for his own profit”; and the Supreme Court of Ohio in a per curiam opinion, upheld that decision. The same reasoning would apply to §13063 GC, which prohibits selling or disposing of a ticket or device representing an interest in a lottery or scheme of chance, “for his own profit.”

The Court of Appeals of the Second District, recently held in the case of The City of Columbus v. Clarissa Barr, No. 4815, that Ordinance 1089-1 of said city was in conflict with §13064 GC, because the ordinance omits the words “for his own profit” which said words are contained in said section of the code; and, therefore, said ordinance was unconstitutional and void, under Section 3, Article XVIII of the Constitution of Ohio.

The Columbus ordinance, Sec. 1089-1 provided substantially that:

“Whoever shall have in his possession, * * * any ticket * * * designed or intended to be used in the process of making, paying, * * * an interest in a lottery, policy or scheme of chance, by whatever name, * * * shall be guilty of a misdemeanor * *

The second section of Rule 53 of the Board of Liquor Control provides in substancce that;

“No person authorized to sell alcoholic beverages, shall * * * possess, * * * upon or about the premises of the permit holder, any * * * tickets * * * which may or can be used for gaming or wagering, * * * chances on the result of any contest, or allow or conduct gaming or wagering on such premises or any game of chance or skill.”

The Court of Appeals in the case of City of Columbus v. Barr, supra, said:

“The test to determine if an ordinance is in violation of general law, is * * * does the ordinance forbid that which the statute permits? In our judgment, ordinance 1089-1 is clearly in conflict with §13064 GC when its operative effect is considered. State, ex reí. v. Carian, 133 Oh St 53,” citing also, vice versa, Village of Struthers v. Sokoc, 108 Oh St 263, 2nd Syl.

The Court of Appeals case, supra, further observes:

“By the general law the carrying on of a game of keno (bingo) in all of its constituent parts is not a criminal offense-unless it is carried on for profit. The practical effect of §13064 GC is to permit the play of the game of keno (bingo), if not for profit, without any liability for criminal prosecution.”

The Court of Appeals says further:

“In the factual situation presented in this case if the ordinance upon which the prosecution is based is supported the effect will be to declare acts which are but parts of the lottery, keno (bingo), to be a crime when the conduct of the game in all of its parts would not be a statutory offense.”

It should be observed that the constitutional provision prohibiting lotteries provides no penalty therefor. It is left to the State Legislature to impose the penalty or not as it sees fit. If the council of a municipality like the City of Columbus, cannot supply the penalty where it has been omitted by the General Assembly, it would appear without question, that an administrative Board has no such authority. The function of supplying penalties for violations of statutes or ordinances prohibiting certain acts, is legislative, the City Council is endowed with the power of legislating but the Board, of Liquor Control does not possess the power to legislate; in fact, the Board is a mere creature of the General Assembly.

The Court of. Appeals having declared in the case of City of Columbus v. Barr, supra, that the city ordinance was void and unconstitutional because in conflict with the general law of the state, since the ordinance omits the words “for his own profit” which said words are contained in §13064 GC, it naturally follows that Regulation 53, having omitted the words “for his own profit,” is also void, being in conflict, with general law.

Under §154-73 GC,

“The court may affirm the order of the agency complained of in the appeal, if it finds upon consideration of the entire record * * * that the order is supported by reliable, probative and substantial evidence and is in accordance with law. In the absence of such a finding by the court, it may reverse, vacate or modify the order * *

This court is unable to make such a finding upon a consideration of the entire record and the law governing the subject matter in question on appeal; and it is, therefore, ordered that the appeal be sustained, and the order of the Board of Liquor Control, suspending the permit of appellant, is hereby set aside.

Entry to be drawn accordingly with leave to save exceptions for said Board.


author: By MILLER, J:

text:
    HALLER, Plaintiff-Appellee, v. HOLTHOUSE et, Defendants-Appellants.
    Ohio Appeals, Second District, Montgomery County.
    No. 2201.
    Decided December 19, 1952.
    Jacobson & Durst, Daniel Nevins, Dayton, for plaintiff-appellee.
    Murr, Murr & Young, Dayton, for defendant-appellant, Blanche Holthouse.
    Robert H. Brumbaugh, Dayton, for defendant-appellant, Foster A. Peffly.
   OPINION

By MILLER, J:

This is a law and fact appeal from the judgment of the Common Pleas Court. The action was instituted on October 13, 1949, when the plaintiff, Lois M. Plaller, filed her petition stating that she was the owner and in possession of certain described real estate; that she had acquired title by a deed from Foster A. Peffiy dated October 24, 1945, and recorded October 30, 1945.

The petition then alleged that the defendant, Blanche Holt-house, claimed an estate or interest therein adverse to that of the plaintiff, and then prayed that the defendant may be compelled to show her interest and that the same may be adjudged to be null and void and the plaintiff’s title be quieted.

To this petition the defendant, Blanche Holthouse, filed an amended answer and cross-petition setting forth facts to show that of the 63 feet of land claimed by the plaintiff in her petition only 12 feet actually belong to said plaintiff; that the plaintiff was only in possession of 12 feet, and when the plaintiff acquired title to said 12 feet she inadvertently and through mutual mistake had a 51 foot strip of land included and described in her deed.

This defendant further alleged that the plaintiff was not the owner of the 51 foot strip of land in question; that said plaintiff had never had possession of said land and that she was not now in possession of said land; that plaintiff’s deed described the disputed land by mutual mistake; that the defendant, Blanche Holthouse, had purchased the disputed land from Foster A. Peffiy, the common grantor, on February 17, 1949; that her deed to said property was filed of record February 18, 1949, and that at the time of purchasing said land the rents from the building located thereon were adjusted, and possession was given to Blanche Holthouse by the common grantor; that she managed the rental of the building on the disputed land, took complete control of the property, made improvements thereon, used the rent money for her own uses; paid taxes thereon and used said land openly and notoriously as her own to the exclusion of all others including the plaintiff; that plaintiff made no effort to exercise her right to possess said tract until after the death of Joseph Peffiy, father of Foster Peffly, who negotiated the sale of land to both Lois M. Haller and Blanche Aolthouse, and who had been the actual owner of said tracts, even though he had title of record in the name of his son, Foster Peffly; Blanche Holthouse prayed for an order of court finding that a mutual mistake had been made in the execution of the deed; that it was not the intention of the grantor in plaintiff’s deed to convey the extra 51 feet now in dispute nor was it the intention of the plaintiff to acquire title to said land, and further praying for an order of the court quieting title to the said 51 feet.

Foster A. Peffly was also made a party-defendant who filed an answer and cross-petition setting forth virtually the same facts as those of Blanche Holthouse.

The trial court found that the plaintiff was in the actual possession of the 12 foot strip of land and to which she had legal title and was entitled to the relief sought with reference thereto.

It further found that the plaintiff was not in actual or constructive possession of the remainder of the realty which consisted of 51 feet and, therefore, the prayer of her petition in so far as it related to such remainder should be denied.

On the cross-petitions it found in favor of the plaintiff and against both of said defendants and the cross-petitions were ordered dismissed.

We are in full accord with the judgment of the trial court in the relief granted to the plaintiff on her petition. We cannot concur, however, in the dismissing of the cross-petitions and denying the relief therein sought. We recognize that before a deed may be corrected or reformed because of a mutual mistake of the parties thereto the evidence must establish the same clearly and convincingly. The evidence discloses that the property in question in this case lies just east of Troy Pike and on the south side of Little York Road. Lot 24 lies in the southeast corner of the intersection of the two above mentioned roads, and the quarter of an acre which is mentioned in the description lies immediately to the east of lot 24. On May 11, 1945, the plaintiff herein acquired title to a 60 foot strip of land fronting on the Little York Road. This strip is referred to as a .147 acre tract and it is the most easterly part of the one-quarter acre tract of land. No question is raised as to the ownership of this tract by Mrs. Haller. Foster A. Peffly was the owner in fee simple of the remainder of said quarter acre tract fronting on Little York Road and lying immediately to the west of the 60 foot tract conveyed to Mrs. Haller. Foster A. Peffly was also the owner in fee simple of lot 24. It is conceded that although title was in the nnrpg of Foster A. Peffly the land was actually held by Foster for his father, Joseph Peffly. Joseph Peffly managed the properties and collected the rents without reporting any of the income to his son, and the son would sign deeds whenever requested by his father.

Several months after purchasing the original 60 foot tract Mrs. Haller obtained a deed from Foster A. Peffly to the land which is the subject of this action. The logical interpretation of the description of that deed would be that it conveys the balance of the quarter acre tract plus 12 feet off the east side of lot 24. However, according to the deposition of Almeda Clark who wrote the deed it was not the intention of the parties to convey all of that tract but only 12 feet west of the east line. The purchase price was $300.00. The deed from the Pefflys was dated October 24, 1945, and shortly thereafter the plaintiff constructed a fence around her property which enclosed her original 60 feet plus 12 feet lying immediately to the west of her original 60 feet. She made no attempt to use or take possession of the balance of the land which she now claims she purchased which consisted of 51 feet.

On this 51 foot strip of land is located an old office or garage which at that time was being used as a dwelling, renting for $7.50 per week. After the sale Joseph Peffly continued to collect this rent which was never claimed by this plaintiff. She never made any attempt to control any portion of that land west of the fence, although she stated that the use of the building located in the disputed property was objectionable to her. The 51 foot strip also contained two privies which were objectionable although she made no attempt to exercise any control over them but did complain to the Board of Health about their poor condition.

On February 17, 1949, the defendant, Blanche Holthouse purchased from Foster A. Peffly all of lot 24 and that part of the quarter acre which he still retained, which included the disputed land. The deed to Blanche Holthouse described the property just as the deed by which he acquired title and it does not except the 12 foot strip of land which he had previously intended to convey to Mrs. Haller. Mrs. Holthouse took possession of the 51 foot strip, collected the rents from the building and exercised complete control of the same up until the commencement of this action. Joseph Peffly died on May 31, 1949 and it was soon after this that the plaintiff sent a notice to Mrs. Holthouse demanding possession of the 51 foot strip.

The record reveals further that upon receipt of the deed the plaintiff took the same to the office of the county auditor and after discussing the contents thereof with the clerk, which it appears was not clear, he made out the division sheet showing that the plaintiff acquired only 12 feet of ground. The scrivener who drew up the deed was inexperienced in such work being a secretary in a law office as well as a notary public. She testified that the land intended to be conveyed was to be a strip of only 12 feet, but it appears that she was mistaken as to the location of the various pieces of real estate involved. The plaintiff attempted to explain the reason for enclosing only 12 feet by saying that on the day following her purchase she consulted a surveyor who was working in the neighborhood who told her that 12 feet was all the deed called for. She relied upon his statement, had him measure off the additional 12 feet and then built the fence. Plaintiff testified that she never complained to Peffiy about this alleged defect, which is certainly what an ordinarily prudent person would be expected to do under such circumstances.

Several witnesses testified on behalf of the plaintiff to the effect that Peffiy told them he had sold the plaintiff the added footage but this is in direct conflict with his own conduct, it appearing that he rented the garage for a dwelling and collected the rents for some time without any objection from the plaintiff.

It appears to us that the conduct of the parties hereto must be given great weight in determining the ultimate facts; that in so doing we find the evidence in favor of the defendant’s cross-petition so overwhelming that we think it is clear and convincing. Our judgment will be for the plaintiff as found by the trial court. On the cross-petition of Foster A. Peffiy we find the deed to Lois M. Haller, dated October 24, 1945, should be reformed as prayed for and that title to the same should be quieted in-Blanche Holthouse on her cross-petition.

HORNBECK, PJ, WISEMAN, J, concur.


author: By HORNBECK, J.:

text:
    DAYTON (City), Plaintiff-Appellee, v. SICKLE, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2231.
    Decided April 2, 1953.
    William P. Keane, Pros. Atty., Dayton, for plaintiff-appellee.
    Sharts, Singer & Brown, Dayton, for defendant-appellant.
    Landis, Ferguson, Bieser & Greer, Dayton, Brief, amicus curiae.
   OPINION

By HORNBECK, J.:

The appellant was convicted in the Municipal Court of the City of Dayton, Ohio, of the violation of Section 339 of the General Ordinances of that city.

The contention of appellant below, and here, is that the ordinance under which he was prosecuted is unconstitutional as violative of the Ohio and Federal Constitutions.

The ordinance involved provides:

“The Director of Public Safety, after the consent of the abutting property owner has been first secured, may designate certain street spaces alongside the curb as taxicab stands. Said stands shall be areas restricted from the general parking of vehicles, and shall be indicated by appropriate signs setting forth that fact. It shall be unlawful for any vehicles other than taxicab operators exclusively authorized by the Director of Public Safety so to do, to park in said restricted area so marked. Also, the Director of Public Safety, in a similar manner, may designate one or more restricted areas for the general parking of taxicabs indicated by signs. It shall be unlawful for any vehicle other than a taxicab to park within such restricted area * * * ”

The appeal is submitted upon an agreed statement of facts as follows:

“Appellant, Robert L. Hickle, parked a Chevrolet Sedan Taxicab, License No. 9454 SG, in front of 38 West First Street, Dayton, Ohio, in a space restricted for the use of the Yellow Cab Company, on the first day of August, 1952. Said Taxicab was owned by the Checker Cab Company. Both the appellant and s.aid Company are duly licensed and authorized to operate taxicabs on the streets of said City. The authority for the restricting of said space for the exclusive use by the Yellow Cab Company is Section 339 of the Code of General Ordinances of Dayton, Ohio. The consent of the abutting property owner, The Van Cleve Hotel, had been first secured, together with that of the Safety Director of said City. Said Safety Director set aside said space for the exclusive use of the Yellow Cab Company. Appellee has complied with all formalities set forth in Section 339. Appellant’s testimony was that he would have earned more money than he was able to earn on said date if he had the right to use the various stands now exclusively held by other cab companies. Appellant was charged with violating Section 339, and he pleaded not guilty by reason that Section 339 is unconstitutional. The Court found Section 339 to be constitutional and that appellant was guilty of violating said Section. The Court fined appellant five dollars and assessed costs to him.”

Four errors are assigned, but the validity of the judgment under review depends upon the determination of the question of its constitutionality.

Appellant urges that the ordinance under consideration is an unlawful delegation of legislative power to the Safety Director and the abutting property owner; that it is unreasonable, arbitrary and discriminatory; that it deprives citizens of the equal protection of the law and of their freedom to contract; that it is a combination in restraint of trade.

Counsel for the parties have fully briefed all questions presented. Inasmuch as we are of opinion that one case is determinative of the judgment in this Court, it will serve no good purpose to consider and discuss the various constitutional principles involved.

The City of Cincinnati v. Cook, 107 Oh St 223, is, in our judgment, authority for the holding that the ordinance here under consideration is unconstitutional and invalid because, as held in the second syllabus of the foregoing case, “of its attempted delegation of legislative power, and for the reason that it is violative of the equal protection of the law guaranties of the state and federal constitutions.”

The court in the Cook case had under consideration an ordinance of the City of Cincinnati which made it unlawful for any driver or operator of any vehicle to permit his or her vehicle to stand in front of a certain railroad passenger station therein pamed, between points designated, “unless the permission to stand had been granted by the person having the supervision over said passenger station.”

The only substantial difference between the Cincinnati ordinance and the Dayton ordinance is that the latter requires, as a requisite to the exclusive use of the taxicab stand, not only the consent of the owner of the abutting property, but also the designation of the Director of Public Safety. This does not affect the application of the adjudication in the Cook case. In the ordinance here under consideration there is a delegation of certain power to the property owner, although it is not complete as in the Cook case. The opinion of Judge Matthias in the Cook case is, in its entirety, applicable and, in our opinion, completely dispositive of the issues in this case.

We have a brief amicus curiae on behalf of defendant-appellant, and therein is cited, as in appellant’s brief, §3635 GC authorizing municipalities to establish ordinances for hackney coaches, cabs, or omnibuses, and to enforce the observance and use thereof. It is probable that the City of Dayton is controlled only by its charter, which enables it, subject only to the constitutional provision that those ordinances shall not be in conflict with general law, to legislate on th'» subject, of the establishment of cab stands. But the authority under §3635 GC, which is probably the extent of the authority of the City of Dayton, must be considered in its constitutional aspect.

If this section is construed so as to authorize a municipality to fix cab stands and restrict their use exclusively to one cab company, as against all others, such legislation would be unconstitutional. It is implied in §3635 GC that there will be an equitable establishment of stands for taxicabs.

From the stipulation of facts we can not say that a monopoly has been created by the action of the Director of Public Safety and the owners of property in establishing exclusive cab stands for The Ohio Yellow Cab Company, but the legislation under which they act affords ample opportunity to create a monopoly.

We do not express any opinion on the other grounds of unconstitutionality of the ordinance presented and argued on the errors assigned.

The judgment will be reversed and the defendant will be discharged.

WISEMAN, PJ, MILLER, J, concur.


author: By McBRIDE, J.:

text:
    MUTH, Plaintiff, v. MAXTON et, Defendants,
    Common Pleas Court, Montgomery County.
    No. 103721.
    Decided February 23, 1954.

      Paul G. Muth, Clarence J. Stewart, Dayton, for plaintiff.
    E. E. Duncan, Dayton, for defendants.
   OPINION

By McBRIDE, J.:

This matter was submitted to the court on the pleadings, an agreed statement and briefs. The court was also requested to recognize the findings of the Referee and the decision in the case of Clifford R. Bennett, Plaintiff, v. The Dayton Memorial Park Cemetery Association, et al, Defendants, in Case No. 92612 in the Common Pleas Court of Montgomery County and on appeal in Case No. 2070. For the sake of brevity, the court will briefly state the two principal issues of law submitted in this case and refer to the facts only as required.

At the 1951 annual meeting of the members of The Dayton Memorial Park and Cemetery Association, a non-profit corporation organized under the laws of Ohio, two blocks of votes were offered during the election of officers. The trustees of the association by resolution cast 3565 votes, representing the unsold lots and crypts, title to which was in the name of the association. The plaintiff objects to this practice as “ultra vires, fraudulent and against public policy.”

The plaintiff, in turn, held proxies in favor of the trustees of The Dayton Memorial Park Trust which were not voted for the reason that (a) the Trust was not authorized by the agreement in which it was created to vote proxies and (b) that the voting of such proxies by the trustees is “ultra vires, void and contrary to public policy” and contrary to the former decision of this court.

It was agreed that these two questions determine the major issues in this case.

Aside from the fact that the Association owned the 3565 lots, the only justification for the exercise of voting rights by the corporation appears in the first paragraph of Article Two of the by-laws which provides that

“The ORGANIZERS OF THIS ASSOCIATION and any person, organization, firm or corporation who becomes the owner of a lot in the Dayton Memorial Park and Cemetery is ipso facto, a member.”

The third paragraph of the same article requires a membership to be evidenced by a certificate showing the number of lots owned by the holder and requires the certificate to be exhibited at all elections. Several possibilities arise as a result of these provisions, however, they are not developed in the agreed facts and they are over-shadowed by the first basic question. What right does a non-profit cemetery association or its organizers have to vote unsold lots at an annual election of trustees?

The case of Commonwealth v. Fisher, 2 Brewster’s Reports 394, 7 Phila. 264, in the court of common pleas of Philadelphia County, Pennsylvania (1868) presents a similar situation and the only reported case we have located. The syllabus reads:

“Where the charter and by-laws of a cemetery company provided that every person being the purchaser of one or more of the burial lots, and subscribing to the articles and by-laws, should become a member of the company, and be entitled to one vote for every lot so purchased, it was held that the trustees of said company had no right as such to cast a number of votes equal to the unsold lots remaining in their hands. They could only vote as purchasers of burial lots the same as other persons.”

This case points out that the interests of the trustees of the association and that of its organizers are separate, distinct, and adverse, to a degree and in many respects from those of the purchasers of lots. It will be observed that the court reached its conclusion independently of statute. Even in the absence of statute, it is well settled that it is contrary to public policy for a corporation to vote such stock owned or held by a corporation. Davies Ohio Corporation Law, p. 759; 18 C. J. S. 1241.

Accordingly, the court finds that where by-laws of an incorporated cemetery association provide that a lot owner is a member and entitled to as many votes as lots registered in his name, the trustees of the association are not authorized to vote unsold lots in the name of the association. Any provision of the by-laws which may be construed as authorizing trustees of an incorporated cemetery association to vote unsold lots appearing in the name of the association is void.

There is no provision regulating voting “treasury” stock, use of proxies or voting by fiduciaries in the sections of the code relating to corporations not for profit. Such provisions are a part of the general corporation act. It is a general rule of statutory construction that an act should be ^ construed in its entirety. All sections of the general corporation act should be construed as a whole. This is particularly true when a failure to do so would completely avoid legislation and result in court made law. 37 O. Jur., Section 331 et seq. p. 594. Consequently, it is the opinion of the court that wherever applicable, all sections of the general corporation act control the activities of corporations not for profit as well as corporations for profit.

Sec. 1701.60 (C) R. which prohibits any corporation from directly or indirectly voting upon any shares issued by it, by analogy prohibits a non-profit cemetery .association from voting its unsold lots.

Sec. 1702.11 R. C. states that unless otherwise provided in the articles or the code of regulations, no member of a nonprofit corporation shall vote or act by proxy. Article Three, paragraph (d) of the by-laws of the cemetery association authorizes members to vote by proxy. The printed proxy submitted with the agreed statement of facts is a blank form appointing the trustees of the Dayton Memorial Park Trust, or either of them as agent to vote at any meeting of lot owners of the cemetery association. It further provides: “Said proxy to continue in full force and effect from year to year from the daté hereof, until revoked by the undersigned.”

The stipulations indicate that the Park Trust was organized as a “business trust” in 1926 and that it entered into an agreement with the incorporated cemetery association, which it organized and promoted, to develop land for cemetery purposes. Title to the lots was retained by the trust. When a lot was sold, the purchaser became entitled to vote in the corporation. In many instances over the years, purchasers delivered proxies to the trustees of the Park Trust. These proxies were voted by the trustees as long as the purchasers did not revoke them or appear in person at meetings of the corporation. Therefore, it is apparent without examining exhibits not entered in the stipulation that these proxies are many years old.

Sec. 1701.61 R. C. provides in part that “no appointment of a proxy made after June 9, 1927, shall be valid after the expiration of eleven months after it is made unless the writing specifies the DATE on which it is to expire or the length of TIME it is to continue in force.” The proxy in favor of the Park Trust is in the form of a permanent appointment, continuing perpetually in full force and effect until revocation It fails to specify either a date on which it is to expire or the length of time it is to continue in force. 1935 A. G. Opns. No. 4811. Within the meaning and intent of §1701.61 R. C., the Park Trust proxy (Exhibit C) automatically terminated and became invalid at the expiration of eleven months after it was made.

It is argued on behalf of the Park Trust that if the proxies are proper as to form, the exercise of the right of a fiduciary to vote proxies is justified by §1701.59 R. C. of the General corporation act. This section provides that fiduciaries may vote shares which stand of record in their names and shares not of record in their names upon satisfactory proof of their authority to so vote.. Sub-section (E) expressly provides that the exercise of the powers conferred by this section does not enlarge or affect the right or obligations of any fiduciary with respect to any person other than the corporation issuing such shares. This section does not enlarge the powers of trustees of an express trust.

There is a substantial difference between the right of a fiduciary to vote shares owned by the trust and a proxy to vote shares in which the trust has no interest. A trustee or fiduciary is not an agent, but a person in whom there is vested, for the benefit of another, some estate, interest or power in or affecting property. A trustee has no principal. One who holds a proxy is an agent who represents and acts for his principal.

In this case, the fiduciaries obtained and voted proxies from strangers to the trust. Their right to act as agent for others in connection with the trust property cannot be justified by §1701.59 R. C. Such right is determined by the general law governing the conduct of persons in a fiduciary capacity and the facts and circumstances of the particular situation.

The proxies appointing the trustees of the Dayton Memorial Park Trust were used to make up a quorum and elect trustees of the cemetery association prior to and during the Bennett case from 1941 to 1949. A copy of the trust proxy was introduced as Exhibit No. 145 and it is argued that the right of the trustees to vote the proxies was determined in that case. A review of that record reveals that no issue or determination was made therein of the voting rights or practices of the trust or of the association.

The Referee did find that the trustees had general powers not specifically limited in the instrument, however, there is no expression in the trust agreement granting authority to the trustees to solicit, accept and vote proxies of lot owners who have purchased from the trust and who have no interest other than as members of the incorporated cemetery.

Generally, a trustee is only required to exercise that degree of care and skill which an ordinarily prudent person would exercise in dealing with his own property, however, the degree of good faith required of the trustee is by no means that of the ordinarily prudent person. The highest degree of good faith is a well established rule. It prohibits the trustee from gaining any personal advantage or from accepting any responsibility inconsistent with his duty to the trust. Ordinary rules of fraud or undue influence do not apply where there is a fiduciary relationship. The trustee is required not only to avoid “actionable fraud” but also circumstances which are improper or suggest the appearance of fraud, lack of loyalty, personal benefit or the like.

As suggested by counsel, the court has considered not only the facts stipulated, but for the sake of economy, has reviewed the history of the operation of the business trust and the incorporated association as revealed in the extensive record in the earlier litigation. In that case, the referee and the court found that no “actionable fraud” existed; that the purpose of the trust was legitimate. It is equally apparent that several factors encouraged and producted the earlier litigation in which many acts were declared void. The incorporated association was “definitely subservient” (p. 62 of the report) to the profit incentive of the trust. The non-profit corporation was without title or right to sell a single lot and operated with insufficient income and capital. The trustees, officers and managers of the corporation and the trust were interlocked (p. 68 and 243 of the report) to the point that the corporation had no opportunity to independently exercise its powers as a separate and distinct body apart from the trust that created it.

Item 20 of the finding of facts and law, appearing on page 243 of the report, recites:

“That there has been overlapping of official personnel in the Park Trust, the Abbey Trust, Care Fund Trustees and the Cemetery Association, which overlapping was apparently natural in the initial stages of the development, but WHICH OVERLAPPING PERMITTED A CONCERTED ACTION NOT NECESSARILY CONDUCIVE TO FRAUD BUT OBJECTIONABLE IN GENERAL.” (Emphasis ours.)

The former litigation disentangled the complex situation but failed to remove the cause that produced it. The proxies, perpetual in their nature, represent continuous efforts by the trustees of the Park Trust to use their position as fiduciaries to dominate the corporation indefinitely. If these ancient proxies are still valid, a separate and distinct cemetery corporation independent of the business trust, is an impossibility.

The court is advised that the corporation has failed to acquire the undeveloped trust land as well as the utility tract immediately across from the cemetery, legal title to both of which has apparently reverted to the trust by reason of the failure of the cemetery to meet the escrow conditions imposed by the former order of this court. In view of this fact, it is doubly important that the corporation remain distinct and independent of the trust which still controls its future development as well as the real estate upon which its utility buildings are located.

The case of Commonwealth v. Fisher, 2 Brewster’s Reports 394, 7 Phila. 264, is significant in that it points out that the interests represented by organizers of a cemetery and subsequent lot owners are to a “great degree and in many respects” separate and distinct. The fact that both are mutually interested in the welfare of the cemetery does not avoid the separate and distinct nature of their interests.

In determining whether the action of the trustees of the Park Trust was inconsistent with their responsibilities, the court roust accept the purpose and intent of the former order of this court which was designed to separate titles and interests and establish the independence of the corporation for the benefit of its members rather than for the profit of the trust and its officers.

It is immaterial to suggest that separate and distinct interests may never become adverse. It is encouraging temptation to permit a fiduciary to simultaneously serve in another distinct capacity with relation to the subject matter of the trust. The danger inherent in such a situation is that transactions may be declared void. Stepfield v. 1. J. Fulton. 126 Oh St 351; 88 A. L. R. 991. In the former litigation involving these very parties this court found it necessary to vitiate many transactions. Several unfinished items involving real and personal property still exist between the trust and the corporation. Under such circumstances, a court of equity should not permit the trustees of the Park Trust to resume the dual character of their activities to the detriment of the non-profit cemetery association. To do so would also disregard the purpose and intent of the former order of this court.

It is a well established rule that it is the duty of a trustee not to accept any position or enter into any relation, or do any act inconsistent with the interests or property of the beneficiary. This rule rests upon the principle that as long as the confidential relation exists, the trustee or other fiduciary owes an undivided duty to his beneficiary, and cannot place himself in any other position which would subject him to conflicting duties, or expose him to the temptation of action contrary to the best interests of his original cestui que trust. The rule applies alike to agents, directors, managing officers of corporations as well as technical trustees. The most important phase of this rule is that which forbids trustees and all other fiduciaries from dealing in their own behalf with respect to matters involved in the trust. This prohibition operates irrespectively of the good or bad faith of such dealing. Pomeroy’s Equity, Section 1077, Fifth Edition.

The court accordingly finds that where fiduciaries, without express authority and by use of their position of trust, accumulate proxies from lot owners who are strangers to the crust and the fiduciaries continuously use such proxies to control a non-profit cemetery association for the profit of the trust and its officers, the exercise of such proxies by the trustees is contrary to public policy and violates the right of the members of the incorporated association to conduct its affairs.

An entry may be prepared accordingly on the facts submitted and the case continued for further disposition on other issues in this case.