author: By CLIFFORD, J.

text:
    ASHFORD, d. b. a. JIMMIE’S CAFE, Appellant, v. BOARD OF LIQUOR CONTROL et, Appellees.
    Common Pleas Court, Franklin County.
    No. 188809.
    Decided February 17, 1954.

      Charles T. Kaps, Columbus, for appellant.
    C. William O’Neill, Atty Geni., Kiehner Johnson, Asst. Atty. Geni., Columbus, for appellees.
   OPINION

By CLIFFORD, J.

This appeal arises because of an alleged violation on Sunday, September 27, 1953, of §4301.22 (D) R. C. (§6064-22 [4] GC) prohibiting Sunday sales of intoxicating liquor, to-wit: malt beverages in excess of 3.2% and §4301.66 R. C. (§6064-63 GC), prohibiting the obstruction of an inspection of permit premises. The Board of Liquor Control found that the allegations of the Department of Liquor Control under the charges made were well founded and ordered the Class D-l and D-2 permits of the appellant suspended for a period of forty-five (45) days.

The testimony shows that on Sunday, September 27, 1953, at about 8:10 P. M. two officers of the Cincinnati Police Department in plain clothes, entered the permit premises, walked to the back part of the bar, ordered and were served glasses of draft beer. After remaining there a short while, the officers testified that Haven Ashford, an employee of the permit holder, placed cans of beer labeled in “excess of 3.2%, not more than 7% alcohol by weight” before them from which he poured beer into their glasses. The officers then confiscated the beer, identified themselves, and walked behind the bar, whereupon the officers testified Haven Ashford directed vulgar and profane language at Officer Easterling. It is charged that two violations occurred here, namely, a Sunday sale of intoxicating liquor and that Haven Ashford interfered with the officers’ attempt to inspect the premises.

The Court will deal first with the charge that a beverage in excess of 3.2% alcohol was sold on the permit premises during the hours on Sunday prohibited by §4301.22 (D) R. C. (§ 6064-22 [4] GC). On examination of the record it. is evident there is one omission by the Department in putting on its evidence which is dispositive of this charge. The Department has not shown that the alcoholic content of the beverage in question was in excess of 3.2%. In truth, the nature of the beverage has not been proven at all. Although the officers testified they confiscated the high-power beer which they alleged was sold to them and other patrons, the beer in question was not introduced in evidence nor was any expert testimony given which would indicate that an illegal beverage had been served. There was no competent testimony that the beverages which were actually served contained alcohol in excess of 3.2%. The only testimony on the point at all was the testimony of the two officers that the bartender poured a liquid into their glasses from cans which the officers said were labeled “excess of 3.2%, not more than 7% alcohol by weight.” This testimony alone is not sufficient to prove that the beer served actually was in excess of 3.2% alcohol. Had the Department shown by the testimony of a chemist, after qualifying him as an expert witness, that the beer was over 3.2% alcohol, a different picture would present itself. But this the Department did not do. With respect to this charge, the Court finds that the finding and order of the Board is not supported by reliable, probative and substantial evidence.

Turning now to the second charge, that the employee of the permit holder did “prevent, hinder and obstruct” officers of the law in making an inspection of the permit premises in violation of §4301.66 R. C. (§6064-63 GC), we find the Department has not established an essential element to this charge. In order to determine what conduct shall constitute the offense described in the statute as preventing, hindering and obstructing an officer of the law in making an inspection of the premises, the Court adverts to the cases describing assault. Sound logic requires that to be guilty of a violation of the statute here charged, the accused must at least be guilty of an assault upon the law enforcement officers. If the accused is not guilty of a simple assault, we cannot see how he may be properly accused of preventing, hindering or obstructing an inspection.

The only conduct of which the accused may be reproached, and which forms the basis of this charge, is that he used vulgar and profane words in the presence of the officers at the time they came behind the bar to inspect. Mere words are not enough to constitute an assault. Restatement of the law of Torts, Par. 21. To make the actor liable for an assault, he must have done an act other than the mere speaking of words * * *. Restatement, op. cit. Par. 31. However violent they may be, they cannot - take the place of that force which is necessary to complete the offense. They are often the exhibition of harmless passion and do not by themselves constitute a breach of the peace, as the law supposes that against mere rudeness of language, ordinary firmness will be a sufficient protection. 4 Am. Jur. 134. Judge Weygandt at page 105 of his Ohio Charges and Special Requests, quoting from State of Ohio v. Blaine Snouffer, states:

“The mere uttering of words, however vile and however vulgar, would not justify the defendant in assaulting the plaintiff.”

Assault has been defined as any attempt or offer with force or violence to hurt another, under such circumstances as show an intention with present ability to carry such intention into effect. The record in this case does not indicate an assault was committed.

A careful analysis of the words “prevent, hinder and obstruct” discloses that the commonly accepted meanings of these words as characterized in Websters’ Unabridged Dictionary, do not fit the conduct of the accused on the night in question. The three sentences spoken by the accused did not prevent the inspection. The record establishes that. Nor were they of sufficient duration in time to become a hindrance or obstruction. The few words spoken, in the total absence of other evidence, are not probative of this charge. The Court finds that there is not reliable, probative or substantial evidence in the record to support either of the charges set forth in this case, and that the findings and order of the Board of Liquor Control are not therefore in accordance with law. Reversed.


source: Caselaw Access Project

author: By THE COURT: By HORNBECK, J.:

license: Public Domain

text:
    VUKOVIC, Plaintiff-Appellant, v. WALNUT GROVE COUNTRY CLUB, INC., Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2189.
    Decided January 16, 1953.

      Decided April 20, 1953.
    Robert W. Schroader, Dayton, for plaintiff-appellant.
    Landis, Ferguson, Bieser & Greer, Dayton, for defendantappellee.
   OPINION

By THE COURT:

Submitted on motion of appellee to strike from the files appellant’s notice of appeal on questions of law and fact.

The action is one to recover damages for personal injuries and is not appealable on questions of law and fact.

The motion to strike from the files will be overruled as we do not deem a motion to strike to be the proper remedy. The court sua sponte will dismiss the appeal on questions of law and fact, and retain the case as an appeal on questions of law. Sec. 12223-22 GC.

Appellant will be given leave to file assignments of error and briefs as provided in supplement to Rule VII. A bill of exceptions having been filed prematurely, leave will be granted to refile the same within ten days after the entry is journalized.

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

VUKOVIC, Plaintiff-Appellant, v. WALNUT GROVE COUNTRY CLUB, INC., Defendant-Appellee.

No. 2189.

Robert W. Schroader, Jr., Dayton, for plaintiff-appellant.

Landis Ferguson, Beiser and Greer, Warren A. Ferguson, Robert Landis, Jr., of Counsel, Dayton, for defendant-appellee.

OPINION

By HORNBECK, J.:

This is an appeal on questions of law from a judgment of the Common Pleas Court, dismissing plaintiff’s petition, entered on a verdict for the deffendant.

Plaintiff pleaded that on October 26, 1947, she was a business guest of the defendant club and on its property; that defendant had created a place of danger in that it had caused a hole to be made in the ground on the border of the parking area provided for guests and in failing to take proper precaution to guard guests from the danger thus created.

After formal admissions, defendant denied any neglect and charged plaintiff with contributory negligence.

Six special interrogatories were given to the jury before argument upon request of the defendant. The jury returned a general verdict for the defendant and answered five of the six special interrogatories, which answers were consistent with the general verdict. The trial judge entered judgment upon the verdict and overruled motion for new trial.

Three errors are assigned, which we will state as we consider them. One, the court erred in its ruling on the admissibility of evidence. There was some variation in testimony as to the state of visibility at the time when the plaintiff fell and was injured. One of plaintiff’s witnesses said that it was dusk, about six-thirty P. M., getting dark, and she stated that she could not see when she stepped into the hole into which she fell. There was also dispute whether or not any lights, other than one from an automobile, were operating at the time in question.

It is said in the brief of plaintiff that her counsel marked an exhibit, No. 6, which was a United States Weather Bureau report, showing that the time of sunset on the day of the claimed injury was 5:43 P. M. and that twilight extended until 6:11 P. M. and that it was cloudy.

The trial judge held that the evidence was not proper rebuttal. The record discloses that there was an offer to introduce the report, but no such exhibit as plaintiff’s No. 6 is a part of the bill of exceptions and we may not consider it.

The next question relating to the improper rejection of evidence was the refusal of the court to admit articles of incorporation showing defendant to be a corporation “for profit.” The plaintiff did not plead that the defendant was a corporation for profit but that it was an Ohio corporation, which was admitted by the defendant. It is said that defendant’s counsel, in opening statement, made some observation to the effect that defendant was not a corporation for profit. However, this statement is not in the record. This could, conceivably, work to the disadvantage of plaintiff because jurors might not properly mark the difference in the two classes of corporations. But the trial judge, in the general charge, told the jury that:

“So far as the liability of the defendant is concerned, it doesn’t make any difference whether it is a corporation for profit or not for profit, and so do not let your minds wander off on that question.”

If there had been prejudice in the refusal to accept the testimony, upon the state of the record, it was presumably removed by the charge of the court.

It is urged that the Court erred in admitting defendant’s Exhibit No. 1, a written statement of Charles Froug, M. D„ relating to the physical condition of plaintiff, including some family history which the doctor had secured from her. The physician was called by and testified for the plaintiff. On cross-examination, without objection, and upon re-direct, he was interrogated fully as to the subject matter in the case history. This procedure removed from the plaintiff the privileged communications protection of the statute, §11494 GC.

The second error assigned is that the court erred in failing to charge the jury in accordance with law as to the duty of the defendant.. The brief of appellant cites a number of cases which mark and differentiate the degree of care enjoined upon an owner toward a workman coming to make repairs, a tradesman to deliver goods and a customer or client who is in the status of a business guest of the owner. The trial judge took the norm of the obligation of the defendant toward the plaintiff, in the situation presented in this case to be that of ordinary care. There was no error in the charge in that respect. 29 O. Jur. 402. If appellant desired a more specific charge respecting the duty of the defendant toward its guest, the plaintiff, it should have been requested and, if in proper form, the court would have been required to give it. There is no error of commission in the charge as given.

The third error assigned is directed to the general charge and to the seven special charges given at the request of the defendant and the refusal to give certain of the special charges requested before argument by the plaintiff.

We consider first the request of the plaintiff:

A. “I charge you that plaintiff when she came on the defendant’s grounds as a member of the club operated by it, she could rightfully assume, not having knowledge to the contrary, that all of said grounds which you find were adapted to the use of defendant’s members or patrons, and which she might properly use, aside from any obvious dangers, were reasonably safe for such use by her. And that assumption would apply to the parking area and footpaths you find existed therein or therefrom to the concrete walkways between the club house and parking area, provided by defendant for its patrons, as well as the concrete walks themselves.”

Foltz v. The Defiance County Agricultural Society, 38 O. O 3, and Walter v. Zanes, 29 Abs 35, are cited and the charge, as requested here, was approved in the former decision. The facts in the cited case are meager. The language of the charge permits the conclusion that as a matter of fact the plaintiff did not have knowledge of the condition of the ground where she fell. If the charge had permitted the jury to determine whether or not she had “knowledge to the contrary,” it would be sound.

The next charge requested by plaintiff and refused by the court to which plaintiff takes exception is:

“Plaintiff has alleged that she stepped into a hole in the ground; if you find that there was a hole in the ground at the place where plaintiff fell, and that under all of the circumstances, including the time, the appearance of the walkways, the presence or absence of light, and the plaintiff’s knowledge or lack of knowledge of all of the conditions existing before and up to the time of her fall, the hole constituted a pitfall; I then charge you that the defendant was under a duty to guard the hole; if you find it was in the parking area, in a footpath on defendant’s grounds or in such close proximity to such parking area, footpath or sidewalk that a person in the proper use of such parking area, footpath or sidewalk might accidentally fall into it.”

In all ordinary situations, this charge being correct, stating the law pertinent to one or more of the issues in the case and the same subject having not been covered by other charges given before argument, it would be error to refuse to give it.

Chesrown v. Bevier, 101 Oh St 282. This case and others hold that the failure to observe §11420-1 GC, is prejudicial error. The cases in which this statute has been invoked are those wherein a general verdict only was returned. A development in this case, the return of an answer to a special interrogatory to the effect that it was light at the time that plaintiff fell, in our judgment, clearly establishes that the failure to give this charge could not have been prejudicial even though to refuse it was erroneous. Manifestly, if it was light and the plaintiff fell into a hole of the dimensions described by her witness, Mrs. Deyo, it would not constitute a pitfall. The depression in the ground, which one of defendant’s witnesses said might have existed where a rock had been removed, would not, in any event, be a pitfall. We; therefore, hold that notwithstanding the general rule respecting the failure to give proper special charges before argument, it may not be applied here because of the answer to the special interrogatory.

The trial judge also refused to give special charge No. 3 at the request of plaintiff. This charge assumes that the plaintiff was in the proper use of the sidewalk when she fell into the hole. This is not consistent with the testimony, from which it appears that she had left the sidewalk, and that she knew that she was leaving the sidewalk, before she fell. In this development, the charge does not properly characterize the basis of the obligation of the defendant to guard the hole.

Objection is made to two of the special charges given at the request of the defendant before argument. No. 9 requires no consideration, because it is predicated upon a finding that the place where the plaintiff fell was dark.

We believe that No. 8 was a proper exposition of the law as to one issue of the case.

Upon the whole record, we cannot find that any error is established to the prejudice of the plaintiff.

There was substantial and complete disagreement on every controlling issue raised by the pleadings. The general verdict and the answer to the special interrogatories support the judgment on the verdict.

The judgment will be affirmed.

WISEMAN, PJ, MILLER, J, concur.


author: By SCHNEIDER, J.:

text:
    CLARK, Plaintiff, v. CINCINNATI (City) et, Defendants.
    Common Pleas Court, Hamilton County.
    No. A-142671.
    Decided August 26, 1954.

      Robinson & Hellebush, Cincinnati, for plaintiff.
    Henry M. Bruestle, City Solicitor, James W. Farrell, Jr., Edgar W. Holtz, Asst. Solicitors, Cincinnati, for defendants.
   OPINION

By SCHNEIDER, J.:

Plaintiff seeks to enjoin the City of Cincinnati and its officers from enforcing certain provisions of an ordinance providing for the levy and collection of an income tax.

The taxpayers are divided into two classifications: first, those persons receiving salaries, wages and commissions; and second, corporations, and those persons engaged as individuals in business and professions.

The ordinance was passed by the Council on February 10th, 1954, and by its terms specifically provides that the tax “shall be levied, collected and paid with respect to the salaries, wages, collections and other compensation earned during the period of April 1st, 1954, to October 31, 1954, both inclusive”; and “shall be levied, paid, and collected with respect to the net profits of corporations, businesses, professions and other activities earned from April 1, 1954, to October 31, 1954, both inclusive.”

Persons earning salaries or wages are required under the ordinance to pay one per cent of such wages and salaries received during the months of April to October inclusive.

Corporations and those who earn income from business or professions are levied a tax of one per cent upon the net profits earned during the months of April to October inclusive but are required to pay a tax of one per cent on 7/12ths of the net profits of such business or profession for the entire year of 1954.

Plaintiff’s contention that this provision is retroactive is answered by counsel for the city that the Constitution of Ohio provides only that the general assembly shall not pass retroactive laws; that the City of Cincinnati is controlled by the home rule sections which do not prohibit the City of Cincinnati from adopting a retroactive income tax ordinance. It should be sufficient to remind counsel that Section 10 of Article I of the Constitution of the United States provides “No State shall pass any ex post facto law.” Cincinnati, a municipal corporation, being a political subdivision of the State of Ohio, is doubtless bound by this provision in our United States Constitution notwithstanding its power and authority as a charter city.

The evidence shows that the plaintiff and other persons similarly situated have greater net earnings during the months of November, December, January, February and March tnan they do during the months of April to October inclusive It was also conclusively shown by the evidence that certain wage earners, in particular school teachers in the Cincinnati School District are paid on a ten month year basis and receive no salary or earnings as school teachers during the months of July and August. It is also pointed out that some wage earners have more steady employment and receive greater earnings during April to October inclusive than they do in the remaining months of the year; but, on the other hand, wage earners in other lines of activities have less employment and lower earnings during April to October inclusive than they do in the remaining five months of the year.

It is also to be noted that wage earners pay one per cent upon the gross earnings notwithstanding that the employer withholds federal income tax which the wage earner does not even handle and, furthermore, the wage earner is not permitted to deduct from his wages other taxes such as upon real estate, intangibles, sales, gasoline, inheritance, etc. In other words, he is taxed on his taxes. But corporations, business and professional men are permitted under the ordinance to deduct all such taxes except federal income taxes in figuring net earnings upon which the city income tax is levied.

The Court is not requested in this case to declare the ordinance and the tax levied thereunder to be invalid in its entirety so that plaintiff and others would be relieved from paying any income tax under the ordinance. The right of a municipality to so tax has been upheld by the Courts because the General Assembly has not “preempted this 'field of taxation,” even though Ohio, with other States, apparently waived or granted its inherent rights in this field of taxation by the terms of Amendment XVI of the Constitution of the United States and under which Congress has been increasingly active for many years. It is interesting to note that this amendment to the United States Constitution was effective in 1913, one year after Section 8 of Article XII of the Ohio Constitution was adopted providing that laws may be passed taxing incomes.

What petitioner does contend is that the attempt by the City to collect a tax from him and others similarly situated as provided in Section 3 of the ordinance is discriminatory, arbitrary and illegal. As stated above the levy of the tax is upon earnings for seven specific months. To collect the tax on 7/12ths of the net earnings of the year would mean that the city is in fact collecting a tax upon earnings made three months before the law was effective and two months after the law, by its specific terms, becomes ineffective. These provisions are most confusing and certainly inconsistent. It is shown by the evidence that the greater earnings of plaintiff and others similarly situated are in the five months not included within the ordinance. In such case it is conceivable that one per cent of the net earnings for the seven months would be smaller in amount than one per cent of 7/12ths of the net earnings for the entire year. On the other hand, it is fair to assume that other businesses and professions will face the reverse situation where one per cent of the net earnings for the seven months would be greater in amount than one per cent of 7/12ths of the net earnings for one year. In the one case the taxpayer would be required to pay an amount greater than the amount of tax levied and, in the other case, the taxpayer would pay an amount less than the amount of tax levied. This means simply, that a greater percentage or rate of tax is attempted to be imposed upon one taxpayer within a class or group than upon another taxpayer within the same class or group. This is inconsistent with the provisions of Section 8 of Article XII of the Ohio Constitution that income taxes may be either uniform or graduated. Under this ordinance the tax is neither uniform nor graduated.

The city explains these discriminatory and arbitrary provisions of the ordinance by contending that citizens of the city require services and the city needs the money to pay for such services, that the tax is merely a temporary one, the method used for getting this needed money represents a simplification of collection, and that while the ordinance does not achieve mathematical exactness or precise uniformity in the treatment of all taxpayers it does distribute the tax burden in the fairest and most reasonable manner. It is true that every tax law will necessarily contain some inequalities. The Courts have recognized this fact. However, this Court cannot agree that the present ordinance comes within the classification of insurmountable discrimination and inequality. Expediency will not justify a disregard of the constitutional and legal rights of each individual taxpayer even though the amount involved in any one case might be small. No tax is insignificant, especially when a criminal penalty of possible imprisonment is provided for refusal to pay the tax. Here again this ordinance seems to run counter to the Constitution which provides that “no person shall be imprisoned for debt in any civil action unless in cases of fraud.” A debt owing a governmental unit is no exception.

An order will be made restraining the defendants from levying upon and collecting from plaintiff any amount in excess of one per cent of his net earnings for the months of April 1, 1954, to October 31, 1954, both dates inclusive.


text:
    RIO BAR, Inc. v. STATE.
    Common Pleas Court, Franklin County.
    No. 188588.
    Decided February 19, 1954.

      Fred W. Garmone, H. David Lefkowitz, Cleveland, for appellant.
    C. William O’Neill, Atty. Geni., Kiehner Johnson, Asst. Atty. Geni., Columbus, for appellee.
   OPINION

By CLIFFORD, J.

This appeal arises from an order and findings of the Board of Liquor Control refusing to renew a Class D-5 permit by reason of charges against the appellant under the provisions of Regulation 12, Section III and Regulation 52. The relevant part of the order appealed from is set forth as follows:

“Said Board finds that the appellant knowingly and willfully, on numerous occasions, allowed improper conduct, loud and immoral activities in, upon and about the permit premises, in that the appellant knowingly and willfully allowed and permitted the permit premises to be a loitering place and rendezvous for prostitutes, and open and notorious solicitation of patrons by prostitutes was carried on, on numerous occasions, with the knowledge of the appellant, and by reason thereof the Board finds the appellant is not entitled to the renewal of said permit.”

No consideration is given in this opinion to the findings of the Department of Liquor Control in connection with Regulation 59 since such findings are superfluous and only the record taken before the Board of Liquor Control is pertinent to the appeal before this Court.

The applicable part of Regulation 12, Section III reads:

“In determining whether to grant or refuse a permit the Department shall consider environmental factors affecting the maintenance of public decency, sobriety and good order * * *. If the Department shall find that no substantial prejudice to public decency, sobriety, and good order will result, it may issue the permit. For the purpose of this Regulation, however, the Department shall presume, in the absence of affirmative evidence to the contrary, that the renewal of permits and the transfer of permits to successors in interest at the same locations will not prejudice the maintenance of public decency, sobriety and good order.”

Regulation 52 states in part:

“No permit holder shall knowingly or wilfully allow in, upon or about his licensed premises improper conduct of any kind or character; any improper disturbances, lewd, immoral activities or brawls * * *.”

The facts are gathered from the testimony of two inspectors of the Department of Liquor Control. One of the inspectors testified in regard to several inspections he had made over a period of approximately two weeks. Some of the inspections were made by himself alone, and others in company with another inspector. These inspections establish a course of conduct both in and adjacent to the permit premises. He testified that on these occasions he observed women in front of the premises yelling at cars and making solicitations of men on the street. The inspector also testified that on entering appellant’s premises he observed some the same women seen on the street circulating among the booths and soliciting male patrons. The inspector also testified he was approached by women on the premises and solicited by them. On one occasion when both inspectors were seated at the bar, they were approached by women, and during the conversation, the purpose of the women to prostitute themselves was made clear and the price stated. During this conversation two of the bartenders, then working on the premises, indicated their acquaintanceship with the women involved, and made reference to their desirability. During all the inspections, the same bartender was present and the inspector recognized some of the same women present on every inspection trip he made.

Upon reading the record, there can be no doubt but that prostitution and immoral conduct were being engaged in, both on the permit premises and in the general neighborhood. If it could be shown that the permit holder did not have knowledge, actual or constructive, of this illegal activity, then this fact in a proper case would be a defense. But we do not understand appellant to say that the employees of the permit holder did not know of the illicit activity, and after reading the record it is clear that this position could not be maintained even if it were asserted. There is present in the record such a full measure of evidence, both direct and circumstantial, to the effect that the employees of the permit holder, Rufus Nelson and Nick Albondante, knew of the prostitutes’ activity on the premises over a considerable period of time that there can be no bona fide dispute of the point.

Judge Fess at page 497 of his “Ohio Instructions to Juries”describes the application of circumstantial evidence, and we cite this work as our authority for recognizing circumstantial evidence in the case at bar:

“Evidence is either positive or direct, that is, a recital of facts testified to by eye witnesses, or circumstantial—a recital of facts or mere circumstances connecting one with the commission of an act. Inferences of fact may be drawn from circumstantial evidence as well as from positive and direct evidence, but the circumstances must be such as to make the fact alleged to appear more probable than any other. The fact in issue must be the most natural inference from the circumstances proved.”

Appellant contends in his brief, however, that neither the tacit nor verbal permission of the bartenders allowing the women on the premises can become the words or acts of the permit holder and owners, on the grounds that the act of the servant outside the scope of his authority cannot be regarded as the act of the master. Appellants cite Little Miami R. Co. v. Wetmore, 19 Oh St 110, and Vrabel v. Acri, 156 Oh St 467, 103 N. E. 2d 564, 30 A. L. R. 2d 853, in support of this proposition, but these cases are not applicable. The first case is one concerning a ticket agent who became enraged at the conduct of a passenger and inflicted upon the passenger a blow with a hatchet. In the second case a partner-owner suddenly drew out a .38-caliber gun and shot a patron. In both cases it was sought to make the tort-feasor the servant of the defendant and thus hold the master in damages. The law in these cases does not fit the case at bar.

The Court finds the law lucidly described on this point at 2 O. Jur. 2nd 233 and 2 O. Jur. 2nd 235, and cases cited in the footnotes therein, and it was held in Wittenberg v. Board of Liquor Control, 52 Abs 65, 80 N. E. 2d 711, that “where a permit holder’s employee permitted the premises to be used for immoral purposes, evidence supported conclusion that the licensee had reasonable cause to know that the place he was operating was to be used for a disorderly place and warranted revocation of the permit.” The owner had knowledge. The interests of sound business and good morals preclude the Court in this case from holding otherwise.

Appellant offers the proposition that any misfeasance, malfeasance and nonfeasance on the part of Rio Bar, Inc., cannot now be imputed to the receiver for that organization. This contention has no merit. Our problem here is whether or not the record supports the Board’s order. The statute under which this appeal is brought, §119.12 R. C., §154-73 GC, reads

“* * * The court may affirm the order of the agency complained of in the appeal if it finds, upon consideration of the entire record and such additional evidence as the court has admitted, that the order is supported by reliable, probative, and substantial evidence and is in accordance with law.”

This statute applies to a permit held by a receiver, and a receiver standing in the shoes of the original permit holder takes the permit subject to all the liabilities then attaching to it, and if the permit could be revoked when in the hands of the original holder, then the permit assumes no greater stature when held by a receiver for the permit holder.

The Court recognizes the possibility that creditors of the Rio Bar, Inc., may be penalized, but the Court is bound by the statute and the public welfare. There is no express or implied authority in the statute just quoted which makes the rights of creditors grounds for reversal of the Board’s order. In the absence of a finding that the order of the Board is not supported by reliable, probative and substantial evidence, and therefore not in accordance with law, §119.12 R. C., §154-73 GC, requires this Court to affirm the Board’s order. In this case a matter of greater public interest than the rights of creditors is in issue, and the interest which the law has in seeing creditors paid is over-balanced here by the duty of the law to enforce the principles of public decency.

In the case of State ex rel. Zugravu v. O’Brien, 130 Oh St 23 at page 27, 196 N. E. 664 at page 666, the Court said:

“It follows that if the permit is terminated in a lawful manner under the provisions of the act creating it, the licensee cannot complain as his license to operate was issued to him subject to that contingency.”

At 34 O. Jur. 994, it is said:

“It is a well settled general rule that a receiver acquires no greater right in the property put in his possession by the appointing court than his debtor had. He takes the property in the same plight and condition and subject to the same rights, equities and liens as it stood in the hands of the person or corporation out of whose possession it is taken.” Certainly, if this rule applies to ordinary commercial transactions, the state has a right to apply it when the public interest requires, especially when that right is sought to be enforced against a revocable license granted by the state. Where the permit holder has made himself liable to a revocation by reason of his own criminal conduct, neither he nor his creditors can be heard to cry through the mouth of the receiver that the penalty provided by statute shall not be invoked.

Attorney for appellant urges in his brief that there was no testimony respecting citations issued by the Department in hearings before it and that there was an absence of affirmative evidence before the Department and that the entire proceedings before the Director of the Department of Liquor Control deprived appellant of a fair hearing.

The Court respectfully reiterates that the appeal before this Court is made on the record of the hearing before the Board of Liquor Control. The Court directs the attention of appellant to §4301.26 R. C., §6064-25 GC, §4301.27 R. C., §6064-26 GC and §4301.28 R. C., §6064-27 GC. It is to be observed that a formal record as such is not ordinarily made in proceedings within the Department and that this appeal has been made in compliance with statute. The record taken before the Board rebuts any inference that may be said to arise to the effect that the Department had no affirmative evidence before it to substantiate the revocation. There has been no violation of Regulation 12, Section III by the Department.

The Court finds that the order of the Board of Liquor Control is supported by reliable, probative and substantial evidence, and that the order of the Board is in accordance with law. The order of the Board is affirmed.


author: By THE COURT. By THE COURT.

text:
    YOAKEM, Plaintiff-Appellee, v. WILLIAMS, Defendant, CITY LOAN AND SAVINGS COMPANY, Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4790.
    Decided October 17, 1952.
    O. R. Crawfis, Charles M. Rosenberry Jr., Columbus, for plaintiff-appellee and receiver, Robert Emerson Potts.
    Meredith & Meredith, Harold J. Meredith, of Counsel, Lima, Robert R. Shaw, Columbus, for appellant.
   OPINION

By THE COURT.

The appeal is taken from the dismissal of objections of the defendant-appellant, the City Loan and Savings Company, to the final report and entry dismissing receiver and to journal entry of Court filed on April 18, 1951, upon report and application of Receiver for instructions and the overruling of motion for new trial.

Appellant held a chattel mortgage securing the sum of $1075.79 on a Philco refrigerator and Sweden Speed freezer. There was no question but that the mortgage was valid and that it had been duly filed. The Receiver was named on an application of an unsecured creditor and one of the purposes stated to support the appointment was that the business might be operated by the Receiver so that unsecured creditors might realize something on their claims. The Court, after notice to claimants, including appellant, ordered the Receiver to carry on the business. No objection was made to this order by appellant but later, and after the business had been conducted for a considerable period of time, appellant made application for the return to it of the specific property upon which it had a mortgage. The Court held against this application upon the theory that it came too late.

Thereafter the Receiver made application to the Court for an order of sale. The property was ordered sold and brought an insufficient amount to pay preferred creditors, mortgagees, Court costs and taxes and nothing whatever was realized for general creditors. The Court approved an order allowing Court costs, certain taxes that had accrued during the operation of the business, compensation to the Receiver and to his attorneys and to an auditor for the Receiver who had been appointed by the Court and, after these claims were paid, the appellant to be paid on its mortgage claim 12% of the estimated funds in the hands of the Receiver received from the sale of chattels on which the said City Loan and Savings Company held a chattel mortgage, which was the sum of $79.56.

It is insisted that the order of distribution is invalid. Two Common Pleas Judges have held that the conduct of appellant respecting the Court orders prior to the order of distribution constitute an acquiescence in the act of the Receiver in the carrying on of the business and that the claims which were ordered paid prior to the claim of the mortgage creditors were properly awarded preference.

Decided November 12, 1952.

It should be noted that appellant took no appeal from the order denying the application for a surrender of the mortgaged property. This action by the Court was predicated upon the consent or acquiescence of appellant to the conduct of the business of receivership. Manifestly, the Receiver could not have required any mortgagee to pay any part of the carrying on of the business of the Owl Inn had timely objection been made by a mortgagee.

An examination of the journal entries in this case indicate that it is very doubtful if the application of appellant for reconsideration was appropriate or in time and certainly, if it be treated as a motion for new trial, it was not within time. Then, too, it is obvious that the full order which Judge Reynolds indicated should be made in his decision of September 14, 1951, was not journalized.

We are in grave doubt if all of the taxes which were the subject matter of the allowance by the Court should have been paid prior to the mortgage claims. Some of them and, possibly, some part of all of them should have been so paid. The Court ordered only a proportionate part of these tax claims paid, about 40%. We cannot, therefore, find to what extent any mortgagee, and especially the appellant, could have been prejudiced, if at all by the order on which the appeal is taken.

The appellant has lost heavily by the administration of this receivership but, in great part, at- least, it is the result of the failure to protect its interest in a timely manner. If we had the power to replace the parties in the status which they bore to the property before the appointment of Receiver or immediately before sale, we might afford some relief to appellant. As the record comes to us we can do nothing but affirm the judgment. It will be so ordered.

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

ON APPLICATION FOR REHEARING

No. 4790.

OPINION

By THE COURT.

•' Submitted on application of appellant for rehearing on our decision of October 17, 1952.

Our rules now make no provision for application for rehearing and it is only in exceptional cases that they are entertained.

We find nothing in the application which requires a reconsideration of any of the matters discussed and decided in our opinion.

The application therefore will not be entertained.

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


author: By HUNSICKER, PJ.

text:
    STATE, ex rel. STORC et, Appellants, v. COUNTY COMMISSIONERS OF TRUMBULL COUNTY et al, Appellees.
    Ohio Appeals, Seventh District, Trumbull County.
    No. 1280.
    Decided October 30, 1952.
    Stanley J. Polanski, Warren, Franklin B. Powers, William A. Wick, Youngstown, W. Leo Keating, Warren, for appellants.
    Charles H. Anderson, Pros. Atty., Fred Guarnieri, Asst. Pros. Atty., Warren, Mitchell F. Shaker, City Solicitor, Niles, for appellees.
    W. F. MacQueen, Niles, Amicus Curiae.
    (Judges of the Ninth District sitting by designation in place of NICHOLS, PJ, GRIFFITH, J, PHILLIPS, J, of the Seventh District.)
   OPINION

By HUNSICKER, PJ.

This is an appeal on questions of law and fact from a judgment dismissing a petition, which sought an order preventing the holding of an election on annexation proceedings instituted by the City of Niles, wherein such city sought to annex the greater portion of Weathersfield Township in Trumbull County.

The petitioners herein desire to prevent the annexation election, pending an election to be held by the citizens in a portion of Weathersfield Township. It is claimed that the citizens in this area desire that such portion of the township be incorporated as a village to be known as “Hillcrest.”

It is admitted that: On July 11, 1952, “there wa,s filed with the trustees of Weathersfield Township at a reguliar meeting, a petition for incorporation of the village of Hillcrest”: on August 14, 1952, the council of the city of Niles passed an ordinance directing the city solicitor, Mitchell Shaker, to prosecute the proceedings necessary to effect the annexation to the city of Niles of nearly all of the unincorporated area of Weathersfield Township, including all of the area sought to be incorporated as the village of Hillcrest; on August 22, 1952, Mitchell Shaker, as agent of the city of Niles, filed with the Board of County Commissioners, and the Board of Elections, of Trumbull County, the necessary documents requesting the county commissioners to order an election by the electors in the part of Weathersfield Township sought to be annexed to the city of Niles; the trustees of Weathersfield Township took no action with respect to ordering an election within the area which seeks to become the village of Hillcrest; the Common Pleas Court of Trumbull County has issued a writ of mandamus, directed to the trustees of the Weathers-field Township, ordering them to proceed to perform the duties imposed upon them by §3527 GC.

It must be remembered that the petition to incorporate the village of Hillcrest was duly filed with the proper authorities over a month before the city of Niles took any action looking toward the annexation of the area, including the part which seeks to become the village of Hillcrest.

If the township trustees had proceeded as the statutes of this state require (§3526 et seq, GC), an election to determine the wishes of the electors in the area sought to be known as the village of Hillcrest would long since have been held.

We have not been able to discover a reported case with a similar factual situation. However, the converse of the situation herein is found in the reported case of Waltz v. Bummersteen, et al, 5 Abs 712. The court said in that case:

“When a case is pending before the county commissioners, any action sought before the township trustees, and the ensuing election following their order for incorporation, may be enjoined, if such action concerns territory comprised in the petition pending before the county commissioners.”

That case is authority for the statement of the author of the text material in 28 O. Jur. Municipal Corporations, Sec. 20, pg. 50. See also: State, ex rel. Chisholm, et al., v. McKenzie, et al„ 16 C. C. (N. S.) 172.

We determine that the proceedings to incorporate the village of Hillcrest, which were filed prior to the annexation proceedings of the city of Niles, shall take precedence, and that an injunction shall issue staying further action upon the annexation proceedings pending the election called for in the matter of the incorporation of the village of Hillcrest. It is so ordered.

Injunction allowed.

DOYLE, J, STEVENS, J, concur.


author: By BARTLETT, J.

text:
    PRICE FIELD PILOTS CLUB, Inc., Plaintiff, v. LEE, Defendant.
    Common Pleas Court, Franklin County.
    No. 185365.
    Decided October 5, 1954.

      Mac Lee Henney, Columbus, for plaintiff.
    John J. Chester, Columbus, for defendant.
   OPINION

By BARTLETT, J.

The motion is sustained to strike from the petition the words, (a) “negligently” and (b) “not only from the negligent and careless operation of the aircraft by the defendant.” There must be allegations of the facts upon which the conclusion rests, if the conclusion be pleaded.

(c) The motion is overruled to strike from the petition the words: “That as provided in said article, a meeting of the club was held, upon notice, attended by the defendant, and it was determined by the club membership, following investigation, as provided, that the accident was the result of the defendant Earl M. Lee’s negligence and his violation of said regulations.”

This allegation is a proper and essential pleading of the meeting of the members of the Club on notice, attended by the defendant member, in which the members of the Club, after investigation and hearing, determined, as provided by the by-laws of the Club, that the damage to the airplane resulted from the negligence of the defendant and his violation of the air Regulations in the operation of said airplane, and made an award against him in favor of the club. The issue thus made must be met by the defendant member, if not true by a denial, or if true, by pleading new matter which does not now appear of record, to impeach or avoid the effect thereof.

The motion is sustained to make the petition definite and certain: (a) as to what acts of the defendant are claimed to be negligent, (b) local regulations claimed defendant violated, (c) Civil Air Regulations claimed he violated.

This motion is sustained in full for the reasons set forth in No. 4 and 5, supra.

Plaintiff, a corporation not for profit, was the owner of an Aeronca Sedan Aircraft, and the defendant is a member of said corporation.

On March 8, 1952, defendant was piloting said airplane of plaintiff and attempted to land at the Titusville, Florida, airport, and in doing so, damaged said airplane beyond repair. The value of the plane is averred to have been $2492.00 and its salvage value $350.00 after the crash.

Petition avers “said damage resulted not only from the negligent and careless operation of the aircraft by the defendant, but also resulted from violation by him of the Civil Air Regulations and local regulations.”

The petition sets forth certain by-laws of plaintiff corporation, pertinent parts of which are as follows:

“a. If any accident is caused through violation of Civil Air Regulations or local regulations, the member at fault shall be responsible for the uninsured portion of the damages.”
“b. Any member is liable to the Club for any damage resulting from his own carelessness or negligence.”
“d. In case of doubt as to the cause of an accident, a meeting will be called by officers and members of the Club to decide on the case in question.”

The petition avers a meeting of the Club was held as provided in said by-law, upon notice, attended by defendant, and it was determined by the Club membership, following investigation, that the accident was the result of defendant’s negligence and his violation of said regulations. The petition prays judgment for $2142.00 and costs.

A motion was filed by counsel for defendant to strike from the petition (a) the words: “intelligently” (should be “negligently”), and (b) “not only from the negligent and careless operation of the aircraft by the defendant,” and also, to strike out entirely the averments that a meeting of the Club was held on notice, attended by defendant, and the membership determined that the accident was the result of defendant’s negligence and his violation of said air Regulations.

Counsel for defendant also filed a motion to make the petition definite and certain by stating:

(a) What acts of defendant were negligent,

(b) What local regulations defendant violated, and

(c) What Civil Air Regulations defendant violated.

Counsel for the plaintiff countered in his brief saying that the novel question presented in the instant case, cannot be settled by the commonly accepted rules of negligence pleading; and that the defendant’s liability is based on his contractual obligation as a member of the plaintiff corporation to be bound by the by-laws of such Club, although his liability resulted from his negligence.

“It is a well-settled principle of law, recognized by the courts of this state and by the courts of other states, that the members of a fraternal association by adopting a constitution and by-laws and providing reasonable rules and regulations for settling their own disputes, and by establishing their own tribunals of original, intermediate, and appellate jurisdiction, become bound thereby, provided such constitution, by-laws, rules, and regulations do not contravene the laws of the state. It is also well settled that the members of such an association must conform to the reasonable rules and regulations thereof and must exhaust all remedies within the association and before such regularly constituted tribunals.” Per Curiam opinion in case of International Union of Steam and Operating Engineers, et al. v. Owens, 119 Oh St 94, 98.

In the foregoing case the charter of Local Union No. 293 was revoked by the General Executive Board of the international organization, due to a controversy over the calling of a strike, and immediately thereafter there was instituted a new local union known as No. 874. Substantially all the members of the old local union were transferred into the new union and Owens, as such a member of the old union, applied to the General Executive Board of said international organization, an unincorporated association, for a transfer to the new union; which the Executive Board refused, under the constitution of said International Union which authorized said Executive Board for good cause shown, or for the best interests of the union, to grant or deny such application for transfer. Owens instituted this action for mandatory injunction, to enjoin the International Union from refusing to issue such transfer. The Common Pleas Court found in favor of Owens, and upon appeal the Court of Appeals also found for him and granted such an injunction.

The Supreme Court of Ohio in the Owens case, supra, also stated in its opinion among other things as follows:

“It is conceded in the instant case that the International Union * * * is such a fraternal organization, and it must therefore be conceded that, if the defendant in error, has pursued all his remedies before the tribunals within the association, and if the duly constituted tribunals have failed to observe the constitution, by-laws, rules and regulations of the association, the defendant in error is entitled to invoke the aid of the court to compel such tribunals to accord to him those rights, if any, which are shown to have been denied.”
“We have carefully examined the record and it clearly appears that all the proceedings were regular relating to the revocation of the charter of Local Union No. 293 and the organization of Local Union No. 874. The defendant in error had full notice of and participated in those hearings, and he is precluded by the action in those matters. * * * If he desired and requested a hearing and it was not accorded to him, then a substantial right has been denied him. * * * If no hearing has been accorded to Owens, lie is entitled to have it, but the courts do not guarantee more than that. The International Union * * * is required to complete any uncompleted processes in determining any rights between its members, and likewise any rights between members of any local union and such local union itself.” * * * (Emphasis ours.)
“3. The constitution, by-laws and charter of a labor union, constitute a contract between the members, the parent body, and its subordinate bodies.” Local Union 13013, District 50, United Mine Workers, etc. et al. v. Cikra et al, 86 Oh Ap 41.
“11. Where provisions are incorporated in the constitution and by-laws of a labor union for determining issues arising within the union, each member thereof is bound by such provisions unless they are unreasonable, arbitrary or in contravention of law.” Seligrnan v. Toledo Moving Pictures Operators Union, etc. et al., 88 Oh Ap 137.
“1. When the duly adopted laws of a voluntary labor organization provide for the final settlement of disputes among its members by a regularly constituted standing committee of members, its action thereunder is final, and conclusive and will not be disturbed by the courts unless it was unreasonable, arbitrary, capricious or oppressive.” Boblitt et al. v. C. C. C. & St. L. Ky. Co., 73 Oh Ap 339.
“1. An unincorporated association of grain dealers, * * * may adopt rules and by-laws providing for the arbitration of all matters of difference pertaining to the grain business that may arise between its members.”
“2. A member of such organization, who refuses to comply with the rules and by-laws relating to arbitration, is subject to the penalty for such refusal provided by the rules and by-laws.” Paddock Hodge Co. v. Grain Dealers National Assn. et al., 18 Oh Ap 66.
“*An award covering the issues, made in good faith upon a full hearing, and in obedience to the submission, is final and conclusive.” 4 O. Jur. 2d, Arbitration and Award, Sec. 62, p. 697.
“1. Where the parties to an action pending in the court of common pleas enter into an agreement of arbitration, the same not being made a rule of court, which agreement provides for the submission to arbitrators in such agreement named, of all the issues of law and fact joined between the parties in the action, to hear and finally determine the same, and provides further that the award of the arbitrators shall be final and conclusive upon the parties, and that the prevailing party shall have judgment, and the arbitrators take upon themselves the burden of the submission, and trial is had before them pursuant to its terms, and award is rendered which conforms in all respects to the requirements of the submission, such award, in the absence of fraud and of such manifest mistake as naturally works a fraud, is binding upon the parties and entitles the successful party to judgment thereon.” (Emphasis ours.) Corrigan v. Rockefeller, 67 Oh St 354; Darke County v. Mercer County, 93 Oh St 37.
Where the parties to a contract are bound by the determination of an arbiter, it is error to submit the question thus determined to a jury. 4 O. Jur. 2d, Arbitration and Award, Sec. 62, p. 698.
“The action to enforce a common law award must be brought upon pleadings as in other cases. The action originates in the submission and should correspond in character with it. Accordingly, it is necessary to aver both the submission and the award thereon.” 4 O. Jur. 2d, Ibid, Sec. 68, p. 704; Childs v. Updyke, 9 Oh St 333;
“The award of itself imposes no obligation on the parties. Without their act of submission the arbitrators could possess no power over them, or their business, consequently it is not the award, but the submission, that is the foundation of the action. If the submission were not averred, the declaration would be as defective as if it failed to set out the award itself.” Tullis, Admr. v. Sewell, 3 Ohio 510.
“The enforcement of the award may be sought by the plaintiff through his declaration or complaint in an action thereon, * * *, by appropriate allegations the party seeking to enforce the award must show all facts necessary to create an obligation from the opposite party to him. The fact of submission, as well as the making of the award, should be alleged, therefore; and since a valid award must be based on the submission, by proper averments, it should be identified therewith.
“Averments to establish an oral award pursuant to a common law submission are sufficient if facts are set forth showing the existence of matters in dispute, ***.’’ (Emphasis ours.) 3 Am. Jur. Arbitration and Award, Sec. 161, p. 977.
“It is well settled law, that allegation of duty without stating the facts from which the duty arises, is insufficient, and, without legal significance. It is also true, if the facts stated do not give rise to a duty alleged, the allegation of duty is immaterial.” B. and O. Ry. Co. v. Wilson, 31 Oh St 555, 557;
“It being the object of all pleading to reach a specific and definite issue upon a material fact which constitutes the subject-matter of the dispute, the facts constituting the cause of action * * * should now, as before the code, be stated in their logical order and with clearness and precision. * * * A statement of facts which create a statutory obligation, or give rise to a common law duty, cannot be substituted or dispensed with, by a mere allegation that the obligation or duty exists.” (Emphasis ours.) Wilson ease, supra, p. 559.

The code in express terms directs that the facts constituting the cause of action shall be stated in ordinary concise language. Sec. 2399.04 R. C.

“In drawing his pleading the pleader * * * must vindicate the code system by making a clear and explicit statement of the facts constituting his cause of action in language that is not equivocal, as a party has a substantial right to have the pleading against him so definite and certain as to enable him to know what he has to meet, and to prepare his evidence accordingly; likewise, the pleading should be so framed as to enable the court to understand the precise points of the controversy.” 31 O. Jur. Pleading, Sec. 32, p. 569.

The plaintiff Club, having invoked the aid of the court to collect the alleged award by its members against the defendant, one of its members, is required to conform to the rules of good pleading the same as any other litigant, by stating the facts submitted to the members for their determination of the cause of the damage to the airplane in question. The submission being an essential part of the petition, the facts submitted must be pleaded, in order to show on its face, that the award covers the issues involved. i

“It is not the award, but the submission, that is the foundation of the action.” Tullis, Admr. v. Sewill, supra.

In other words, the gist of the complaint or the essential ground thereof, is the submission of the facets involved in the crash of the plane on which liability of the defendant must rest. Phillips Code Pleading, Sec. 192.

“Inducement is a preliminary statement of fact necessary to show a right of the party to maintain the cause or defense, * * *; its office is explanatory, and therefore matters therein are not required to be stated with exact certainty, as required of matters constituting the gist of the action.” 31 O. Jur. Pleading, Sec. 56, p. 592.

Coming now to the motion of the defendant to strike from the petition:

(a) The word “negligently” (motion says “intelligently”) on page one, third paragraph, in the fourth line thereof, sustained. Whether a particular pleading is merely the conclusion of the pleader, may be tested by the presence or absence of supporting or operative facts. Munn v. Herriff, 2 O. Supp. 401; there must be allegations of the facts upon which the conclusion rests, if the conclusion be pleaded. Trustees of School, etc. v. Odlin, 8 Oh St 293.

No facts alleged as to the negligence of the defendant.

(b) The words, “not only from the negligent and careless operation of the aircraft by the defendant,” first page, fourth paragraph, in first line thereof. Sustained.

(c) Second full paragraph on second page as follows:

“That as provided in said article, a meeting of the club was held, upon notice, attended by the defendant, and it was determined by the club membership, following investigation, as provided, that the accident was the result of the defendant Earl M. Lee’s negligence and his violation of said regulations.”

Overruled. This allegation covers the meeting of the club, on notice, attended by the defendant, in which the members of the club, after investigation, determined, as provided by the By-laws of the Club, that the damage to the airplane was the result of defendant’s negligence and his violation of said air regulations and made an award against him in favor of the Club.

If the allegation as to the meeting and finding of the members be true, the defendant “had full notice of and participated in those hearings, and he is precluded by the action in those matters.” International Union etc. v. Owens, supra, unless he is able to impeach or avoid the finding by pleading new matters not now of record; and if not true, he may enter his denial. In any event, the allegation is an essential and proper part of the petition, which must be met by the defendant.

Finally, on the motion to make the petition definite and certain by stating:

(a) The acts of defendant that plaintiff claims were negligent. Sustained.

The action to enforce a common law award must be brought upon pleadings as in other cases. Childs v. Updyke, 9 Oh St 333; it is not the award, but the submission, that is the foundation of the action. The disputed facts submitted must be pleaded. Tullis, Admr. v. Sewell, 3 Ohio 510; B. and O. Ry. Co. v. Wilson, 31 Oh St 555, 557; 31 O. Jur. Pleading, Sec. 32, p. 569.

(b) The local regulations that plaintiff claims the defendant violated. Sustained. Same reasons as (a).

Also a statement of the facts and issues which create a legal obligation or duty, cannot be substituted or dispensed With, by a mere allegation that the obligation or duty exists. B. and O. Ry. Co. v. Wilson, 31 Oh St 555, 557.

(c) The Civil Air Regulations that plaintiff claims the defendant violated. Sustained. Same reasons as (b).

Entry accordingly with exceptions by both counsel for plaintiff and defendant.


author: By THE COURT,

text:
    SALSBERRY, Plaintiff-Appellee, v. INDUSTRIAL COMMISSION OF OHIO, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4814.
    Decided February 20, 1953.
    John Mitchell, Columbus, Thomas F. Joseph, Martins Ferry, for plaintiff-appellee.
    C. William O’Neill, Atty. Genl., Chalmers P. Wylie, William Ammer, Asst. Attys. Genl., Columbus, for defendant-appellant.
   OPINION

By THE COURT,

This is a law appeal from the judgment of the Common Pleas Court rendered upon the verdict of a jury awarding the plaintiff the right to participate in the compensation fund of Ohio for the death of her husband, Leroy S. Swain, the same being for an injury sustained in the course of his employment. The principal issue arising from the pleadings was whether or not the injury sustained by the deceased, more than two years prior to his death, was a proximate cause of the same. The appellant is urging that the record does not disclose that the plaintiff’s decedent was continuously disabled from the date of injury to the date of death and therefore the requirements of §1465-82 GC were not met. This section provides:

“In case the injury causes death within the period of two years, and in cases in which compensation or disability on account of the injury has been continuous to the time of the death of the injured person and the death is the result of such original injury, the benefits shall be in the amount and to the persons following:
* * * *#*.»>

The record reveals that the Defendant’s Exhibit No. 2, which is the employer’s report of the injury and approved by the decedent, states that the injury was sustained on July 26, 1944, and that the employee quit work on February 14, 1945; that Defendant’s Exhibit No. 3, which is the attending physician’s report, states that he was away from work seven days; that the plaintiff testified that her husband never returned to work. This statement appears to be indefinite as there is no specific date mentioned after which he became unemployed. The specific question therefore presented is, did the decedent’s subsequent employment disqualify the plaintiff from participating in the award, the defendant insisting that continuing in the employment negatives “continuous disability.” Citing the case of Cantanzaret v. Carnegie-Illinois Steel Corporation, an unreported case decided by the Seventh District Court of Appeals. The appellant is urging that “disability” means inability to perform the work for which he was employed. The Court in both the general and special charges stated that “continuous disability” meant not being able to work with the same degree of ease and competency as before the injury.

In the case of The Cleveland Provision Co. v. Hunter, 35 Oh Ap 169, the Court held that a resumption of work and earnings would not be a bar to recovery, the third syllabus of which provides:

“Where ‘disability’ was continuous until death over two years after injury, employee’s widow held entitled to compensation, although deceased had resumed work and former earnings (§1465-82, paragraph 4, GC; 110 Ohio Laws, 227).”

The same legal principle is also pronounced in Industrial Commission v. Christophel, 34 Abs 65.

We are therefore of the opinion that the Court properly charged upon the question of disability.

It is next urged that the Court erred in giving special instructions Nos. 1 and 5 which charged in substance that if the deceased was continuously disabled from the date of the injury and this was a proximate cause but not the sole cause of death, the plaintiff may recover. We find no error in these charges, a similar pronouncement having been made by the Supreme Court of Ohio in the case of Industrial Commission v. Palmer, 126 Oh St 251.

We have carefully examined the entire record, find that it supports the judgment, and that the same is free from prejudicial error.

The judgment will be affirmed.

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


author: By McLAIN, J.

text:
    UNIVERSAL UNDERWRITERS, Plaintiff, v. GRAN et, Defendants.
    Common Pleas Court, Trumbull County.
    No. 61877.
    Decided November 14, 1952.

      William E. Pfau, Sr., Youngstown, for plaintiff.
    George D. Lewis, J. D. Campbell, Warren, for defendants, Betty Lewis and Clark E. Lewis.
    Charles E. Pealer, Warren, for defendant, Archie R. Gran.
   OPINION

By McLAIN, J.

This matter is before the court on the demurrers filed by the defendants to the petition of the plaintiff for a declaratory judgment.

The facts set forth in the petition are that the plaintiff insurance company on the 23rd day of October, 1951, issued a liability policy to the defendant, Archie R. Gran, at Minneapolis, Minnesota, covering a 1947 Packard; that said policy contained a declaration that the automobile would be principally garaged in the town, county and state of the defendant, Gran’s residence at that time, to-wit: Minneapolis, Minnesota.

On the 11th day of November, 1951, the defendant, Archie B. Gran, moved to Leavittsburg, Ohio, and since that date has not kept the automobile garaged in Minneapolis. On the 16th day of February, 1952, Gran was involved in an accident in Trumbull county, Ohio, which involved the defendants, Betty Lewis and Clark E. Lewis.

The plaintiff contends that the removal of the aforesaid automobile from the address set forth in the policy constituted a breach of warranty on the part of the defendant. Archie R. Gran, and asks the court for a declaratory judgment holding the aforesaid policy to be void and of no effect from and after the 11th day of November 1951. It should be added that plaintiff’s Exhibit A discloses that the policy period was from October 23, 1951, to October 23, 1952.

The defendants contend that this is not a proper case for a declaratory judgment, and the case of Ohio Farmers Insurance Company v. Heisel, 143 Oh St, 519, 28 O. O. 460, is relied upon.

The court, however, is of the opinion that under §12102-2 GC (§2721.03 R. C.), any person interested under a contract may have determined any question of construction or validity arising under the contract and obtain a declaration of rights, status or other legal relations thereunder.

The above case did not involve any question of the construction of validity of the contract, but rather a question of fact as to whether or not at the time of the collision, the automobile was being driven with the permission of the insured.

Whether a statement contained in an automobile liability policy is a warranty depends upon the intention of the parties which is determined from the language employed and subject matter to which it relates.

The entire policy as a whole must be considered, and the courts have uniformly held that policies of insurance should be construed in favor of the assured, and any exception to liability should be strictly construed against the insurer.

. In this connection, it should be noted that the policy in Section 8, states that the same applies to accidents which occur and to direct and accidental losses to the automobile sustained during the policy period while the automobile is within the United States of America, its territories or possessions, Canada, or Newfoundland.

It is also well established that a promissory warranty or condition subsequent when relied upon to work a forfeiture under an automobile liability policy, must be created by express terms or by clear implication and are to be strictly construed against insurer. The general principle of law that clauses of warranty, condition, exclusion and forfeiture contained in an insurance policy must be explicit has universal recognition everywhere.

As stated by the Supreme Court of the United States in the case of Moulor v. American Life Insurance Company, 11 U. S. 335, 341, if insurance companies wish to exact from insured persons warranties and agreements as conditions to a valid contract, the terms of the policy to that effect must be so clear as to exclude any other conclusion.

We will proceed to apply the foregoing principles to the facts in this case.

The court is of the opinion that the statement in the policy that the car would be principally garaged in Minneapolis was not a promissory warranty but merely a statement of expectation or intention by the assured.

The contention of the plaintiff that it is not authorized to do business outside of the state of Minnesota is entirely without merit. It evidently had authority to issue a policy at the time the contract was entered into and, furthermore, to issue liability insurance covering the entire United States and at least the assured could not be charged with any limitation of the plaintiff not appearing in the policy.

There are a number of other reasons for construing the place at which the car would be garaged as merely an expression of expectation. It is a well known fact that an automobile is extremely movable and, likewise, people ofttimes change their residence during the term of the policy, particularly those in certain lines of business.

These facts being well known to the insurance company, surely places the duty upon it as the draftor of the instrument if it so desired to state that it desired to be notified of any change of residence or removal of the car to a new home. In other words, if it was the desire and intention of the insuring company to consider the place at which the car is kept as a warranty, it would be its duty to expressly say so, and its failure to do so is a very strong indication that the place where the car was garaged was not intended to be a warranty, the violation of which would forfeit the policy.

If the contention of the plaintiff is tenable, a great many policies would be unconscionably subject to forfeiture. For instance, John Doe purchases a liability policy such as plaintiff’s exhibit A, and states that it will be principally garaged in the town of Minneapolis and the state of Minnesota. The next day he leaves for California for a winter vacation and stays four months having an accident in that state. Could the plaintiff justly or seriously urge that because the automobile was without question not principally garaged in Minneapolis that the policy was forfeited and the insured unprotected?

The policy itself, contains many conditions, limitations and agreements but there is no where any reference to an exclusion as. to where the automobile was to be used in the United States nor is there any explicit undertaking or any agreement on the part of the assured that he would keep the car principally at the address in Minneapolis.

Therefore, the statement as to the place where the automobile would be principally garaged must be fairly and justly construed as a statement of expectation only. There is no explicit provision of forfeiture and at least the intent of the parties to this contract, as reflected by the language of the policy with regard to this provision, is most certainly not clear enough to exclude the conclusion that' it was merely the expression or intention on the part of the policy holder, and that it was not intended that the policy should be void by virtue of a change of residence and use of the car elsewhere.

The views herein expressed are supported in all respects by the Court of Appeals of the United States for this district in the case of Sutton v. Hawkeye Casualty Company, 138 Fed. (2nd) 781.

For the reasons stated, the demurrers of the defendants to the petition for a declaratory judgment filed by the plaintiff are sustained. Exceptions noted.


author: By SKEEL, J:

text:
    LaGRASS et, Plaintiffs-Appellees, v. CREDIT INVESTMENT CO., Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22904.
    Decided December 21, 1953.
    H. W. Kiser, Cleveland, for plaintiffs-appellees.

      G. A. Doyle, Cleveland, for defendant-appellant.
   OPINION

By SKEEL, J:

This appeal comes to this court on questions of law from an order of the common pleas court issued in a special proceeding in aid of execution, directing the garnishee to pay into court monies which the court found, upon the report of a referee, to be held in the hands of said garnishee, to apply upon plaintiffs’ judgment theretofore entered against the defendant. The garnishees failed to comply with said order, and were then cited for contempt of court and an execution issued against their property including a levy on automobiles of the garnishee, Strok. Upon motion to dismiss the contempt proceeding and seeking an order directing the sheriff to release the property of Andrew Strok, the court granted the motion dismissing the proceeding in contempt and the sheriff was ordered to return the property which he had taken into custody on the levy.

This appeal seeks to reverse the order of the common pleas court affirming the report of the commissioner that the garnishees are indebted to the judgment debtor in the sums stated in the commissioner’s report.

So far as the garnishees are concerned, such an order is in no sense a judgment, nor can such an order be enforced by contempt. If the garnishee complies with the order he will be fully protected in any claim made against him by the judgment debtor under the provisions of §11763 GC (§2333.04 R. C.).

Such an order, however, on the garnishee, is not a judgment. Sec. 11765 GC (§2333.06 R. C.) provides as follows:

“The garnishee shall pay over to the officer all money in his hands, or under his control, or which may come into his hands or control, belonging to the defendant, not exceeding the amount of the judgment and costs, and deliver to the officer all property and credits of the defendant in his hands, or which may come into his hands, and take his receipt for such money, property, or credits which shall be a sufficient discharge of liability therefor. Upon refusal by such garnishee to pay over money or deliver property or credits as above required, the plaintiff may commence an action therefor, in his own name against the garnishee and recover them, with costs.”

It is apparent from the foregoing section that until the plaintiff in the action files an action against the garnishee, there is no judicial order against such garnishee for the payment of money.

For the foregoing reasons the appeal of the garnishee is dismissed for the reason that there is no final order, judgment, or order in a proceeding in a special action from which an appeal can be taken. Exceptions noted. Order see journal.

HURD, PJ, KOVACHY, J, concur.


text:
    SCRUTCHINGS, Appellants, v. NIMER, Appellee.
    Ohio Appeals, Ninth District, Summit County.
    No. 4314.
    Decided December 3, 1952.
    Artee Fleming, Akron, Samuel Dashiell, for appellant.
    Herberich, Rowley & Taylor, Akron, for appellee.
   OPINION

By HUNSICKER, PJ.

The plaintiff (appellant), Alfred Scrutchings, filed a petition in the Common Pleas Court alleging that he was employed by the defendant (appellee), Nick Nimer, to perform certain services for the defendant’s benefit. Scrutchings, in his petition, said: “* * * that the terms of employment were reduced to writing, a copy of which writing is hereto attached and marked ‘Plaintiff’s Exhibit A’ that he had “fully performed his part of the contract” but that Nimer had “refused to perform his part of the contract.”

The exhibit attached to the petition is a contract of partnership to engage in the business of selling “food, wines, liquors, beer and the operation of a bar, cafe,” etc.

Nimer filed an answer to Scrutching’s petition and alleged the following defenses: (1) a general denial; (2) a release of all claims against him executed by Scrutchings; (3) the cause of action is for equitable relief by way of a partnership accounting; and (4) an illegal partnership to carry on the sale of wines, liquor and beer when Scrutchings held no license to so engage in such business.

Scrutchings filed a reply to the answer saying: (1) he signed a paper which defendant calls a “full and complete release,” but it was never so inténded to be a “release”; (2) that any money paid to him by Nimer was “earned by performing certain services, as set forth in his contract, Exhibit ‘A,’; (3) the release claimed by Nimer was obtained as a result of fraud.

The cause came on for hearing in the trial court, at which time counsel for Nimer, by oral motion, asked that Nimer be awarded a judgment on the pleadings. The court granted the motion, and a judgment was thereafter “rendered in favor of the defendant and against the plaintiff.”

It is from such judgment that Scrutchings appeals to this .court on questions of law. No assignments of error were filed, but we will examine the matter to determine if the judgment is contrary to law.

The judgment entered herein was granted by virtue of §11601 GC. A motion made under the provisions of this section raises a question of law.

“* * * the right to judgment on the pleadings must arise from a consideration of all the pleadings, it not being infrequent that the averments of an answer may help out a defective petition. And so may a reply contain facts which will aid a weak answer. To justify a judgment ■ on the pleadings, it must be found that taking all their averments as they stand, they present simply a question of law.”

Rheinheimer v. Aetna Life Ins. Co., 77 Oh St 360, at p. 372.

See also: Meyer v. Daniel, etc., 147 Oh St 27, at.p. 28.

The principal question that arises is: Is “Exhibit A” attached to the petition a part of the pleadings, and may it be examined along with the answer and reply to determine the motion for judgment on the pleadings?

It has long been the law of this state that, where a motion is made for judgment on the pleading, only the pleadings may be looked to by the court in a determination of such motion.

Challen v. Cincinnati, 40 Oh St 113.

McCoy, et al., Trustees, v. Jones, et ,al., 61 Oh St 119, at p. 129.

Ex Parte Province, 127 Oh St 333, at p. 334.

Where a motion for judgment on the pleadings is filed by a defendant, “the allegations of the petition and reply are to be taken as true and are to be given the most favorable construction to the plaintiff who is also entitled to all reasonable and fair inferences and intendments to be drawn from such facts so alleged by the plaintiff.”

Williams, et al., v. Village of Deer Park, 78 Oh Ap 231, paragraph 2 of syllabus.

The court in the case of McCoy, et al., v. Jones, et al., supra, said:

“There was good reason for confining such motion to the statements in the pleadings, because to such statements the party making them consents, while the record may be, and often is made, in part at least, by order of the court, against the wishes of both parties; or if concurred in by one party, it may fail to show which one concurred, and it would be unfair to hold a party to consequences flowing from a record to which he did not consent the same as if he had consented thereto.”

In the case of Home Owners’ Service Corp. v. Hadley, et al., 86 Oh Ap 340, the court held that answers to interrogatories do not constitute any part of the pleadings and may not be considered by the court in deciding a motion for judgment on the pleadings. The court further said that interrogatories were designed for the purpose of enabling the interrogating party to properly plead his cause or defense.

In the instant case, the contract upon which Scrutchings based his claims was attached to the pleading, and, although it may have been subject to a motion to strike, Nimer waived any rights he may have exercised in that regard and filed his answer to the petition. This petition in several places specifically referred to the exhibit as the contract which Scrutchings claimed was breached. This written contract, which is made an exhibit, is the basis for the claim of Scrutchings that he was employed by Nimer to perform services, for which services Nimer refused to pay Scrutchings.

It is upon this contract that any rights accruing to Scrutchings depend, and from the terms of the contract the amount of damages suffered by him are to be determined.

In the case of Durant-Dort Carriage Co. v. S. L. Karth & Bro., 14 C. C. (N. S.) 341, the court in a similar situation, but where the exhibit was made a part of the petition, said:

“The court has the right, in construing the petition, to look to the exhibit that is made a part thereof, not to help out the petition to make a good cause of action, but may look to it for the purpose of determining whether the averments of the petition are supported by the exhibit and if there is a variance between the terms of the exhibit and the allegations of the petition, the exhibit must control and the court may declare the petition insufficient.”

We do not have before us the situation that existed in some of the cases cited above, where the rule is announced that only the pleadings may be looked to in determining the motion for judgment on the pleadings. We do not look to a record made without the consent of the party, or to evidence or to other matter not an intrinsic part of the plaintiff’s claim. The entire claim of the petition is that a written contract was entered into by the parties, and that Nimer breached such contract. It became necessary and proper, then, for the court, in order to pass on the motion, to examine the claim of the plaintiff, and, in so doing, to look to the contract for the purpose of determining whether the allegations of the petition were sustained by the terms of the contract.

In so doing, the trial court immediately discovered that the contract was a partnership agreement to engage in the sale of “food, wines, liquors, beer and the operation of a bar.” The answer of Nimer set out that Scrutchings never was authorized by the Departmnt of Liquor Control to conduct such business. This allegation was not denied in the reply, although, in the course of argument on the motion, the plaintiff asked permission to amend the reply by including in the reply a general denial. The trial court never passed on such request, and hence we must consider that the amendment was not permitted.

It is obvious, therefore, that, on this state of the pleadings, Scrutchings was seeking a recovery as a partner in an enterprise which the Supreme Court of Ohio in the case of Nahas. Admx., v. George, 156 Oh St 52, has declared to be illegal.

Whichever way we look at the claims of Scrutchings, we are compelled to examine the written contract. It is not a contract of employment, but a partnership agreement. It is upon such agreement that Scrutchings must stand or fall, and we need not examine the question of whether an action at law may be maintained by one partner against another, or if the partner is first relegated to an action for an accounting. The contract is one to engage in an enterprise in a manner that the law says is improper.

The judgment of the trial court is not contrary to law.

The judgment is affirmed.

DOYLE, J, STEVENS, J, concur.


author: By BELL, J.

text:
    HUNTER et, Plaintiff, v. McKINNEY, Defendant.
    Common Pleas Court, Madison County.
    No. 19230.
    Decided September 13, 1951.

      Jackman & Nichols, London, for plaintiff.
    Richmond & Richmond, London, for defendant.
   OPINION

By BELL, J.

This is an action by an administrator, for the benefit of his decedent’s estate, to recover the funeral expenses of his decedent. The death of plaintiff’s decedent is alleged to have been caused by the wrongful act of the defendant. , The action is not, however, brought under §10509-166 GC, the so-called “Wrongful Death Statute.” Defendant has entered a general demurrer to plaintiff’s petition.

The argument is made by the plaintiff that, since funeral expenses by their very nature, must be paid after death, they are an attendant damage and loss resulting from the injury which caused the death, and so ought to be considered an injury to the decedent’s property within the provisions of §11235 GC, which says: “In addition to the causes which survive at common law, causes of action for .... injuries to ... . property .... also shall survive.”

This argument would be persuasive were it not for the ruling of the Court of Appeals in the case of Hilliard v. Insurance Co., 68 Oh Ap 426. In the first syllabus of that case, the Court says:

“In an action by an administrator under §11235 GC, which provides that ‘in addition to the causes which survive at common law, causes of action for injuries .... to the person . . . . also shall survive; and the action may be brought notwithstanding the death of the person,’ the damages are limited to those for the injuries accruing during the lifetime of the decedent and do not comprehend damages for death resulting from such injuries, or funeral expenses occasioned by such death.”

Counsel, aware of the Hilliard case, state in their brief that even though it not be considered an injury to the property of the decedent, the injury should be considered one to the plaintiff since he did incur the bill and since he was liable therefor in his representative capacity.

In many states, the Wrongful Death Statute, or the cases construing it, specifically permit the recovery of funeral expenses. See cases noted in 94 A. L. R. 438 if. Such is not the rule in Ohio, however. Gaus v. Pennsylvania Rd. Co., 36 Oh Ap 299; Sprung v. E. I. DuPont, et al., 30 Abs 278.

In the majority of states, however, it is held that funeral expenses are recoverable as damages in- an action for death by wrongful act, when the plaintiff has paid or has rendered himself legally liable to pay the funeral expenses of the deceased. The ground for this holding usually, is that the funeral expenses are a direct result of the wrongful death, and, as a matter of justice should be considered as an item of damages suffered by the person liable to pay them.

The Hamilton County Circuit Court in the case of Cincinnati Ry. v. Taylor, 27 C. C. R. 757, recognized this rule and held:

“Funeral expenses incurred by plaintiff in consequence of the death of his wife in a railway accident are proper items of pecuniary loss in an action by the husband individually as they could not be recovered by the administrator in an action under R. S. 6134 (Wrongful Death Statute).”

Although no reason is set out for the above ruling, it was apparently based on the theory that the husband was legally liable to pay the funeral expenses of his deceased wife.

Applying this theory to the case under consideration, is the plaintifl-administrator legally liable for the funeral expenses of his decedent, qualifying him to recover therefor from a wrongdoer?

Sec. 7997 GC, is declaratory of the common law duty of a husband to support his wife and his minor children. It has been held in Ohio, so far as a wife is concerned, that this duty includes the disposing of her body by decent sepulture in a suitable place and that the husband cannot obtain reimbursement from his wife’s estate where he has paid her funeral expenses. The Court held it was immaterial that her estate was ample; he merely discharged his legal duty. Phillips v. Tolerton, 9 N. P. (N. S.) 565 (affirmed without opinion, 82 Oh St 403) Thorton v. Houck, 5 Abs 533.

In the Thorton case, a husband-administrator had paid the funeral expenses and charged the estate of his wife therewith. The Court in its opinion said that if the plaintiff were not the husband of the deceased it would hold that such payments were proper, citing McClellan v. Filson, 44 Oh St 184.

The Supreme Court, in the McClellan case, holds:

“. . . . where it is shown that the purchase of coffin and other necessary articles for the funeral, being suitable to the station of the deceased, were made by the executor, such executor may properly allow such expenses, and pay them from the assets of the estate.”

The funeral expenses of a minor child also come within the duty of a parent to support. Although there is little authority for it, it is submitted that the status of a minor child, in this regard, is similar to that of a wife.

The Court in the McClellan case had before it §10509-121 GC, which reads in part as follows:

“Every Executor or administrator shall proceed with diligence to pay the debts of the deceased, and shall apply the assets in the following order:

1. Costs and expenses of administration.

2. Bill of funeral director not exceeding three hundred and fifty dollars, such funeral expenses other than the bill of the funeral director as are approved by the court.”

In construing this section, the Court reasoned, in part, as follows:

“The language is, ‘every executor and administrator shall pay,’ etc. Unless there is good reason founded upon principle why the married woman’s estate should be excepted, then no exception should be made. It is urged that such good reason is found in the fact that at common law there is a duty upon the husband to dispose of the body of his deceased wife by decent sepulture in a suitable place. This is conceded, and it is not intended here to weaken the force of that duty, nor to impair the liability of the husband for the expenses of such burial. But the husband may be without means and unable to procure the services of those whose business it is to bury the dead, though the wife leave an abundance. What shall be done in such case? Shall the body remain unburied? If in such circumstances it is proposed to resort to the wife’s estate for such expenses, it must be upon some principle, some rule. What shall it be? .... Plainly then, it must be by the force of legislation. That we have, and if we apply it in any case to the estate of a deceased married woman, it is difficult to see why, upon principle, it should not be applied to all. If we undertake to make arbitrary exceptions and distinctions, then the rule fails, for if it can not rest upon the doctrine of a statutory debt, and charge upon the estate, it is not easy to find satisfactory foundation for it. Besides, if the application of the statute be limited to cases where the husband is insolvent, then we impose upon the one who spends time and money upon the conduct of the funeral the burden of first exhausting the liability of the husband by suit, or at least demonstrating his insolvency. A decent regard for the proprieties of the situation would seem not to require this.
“We think the statute was based upon a well recognized necessity, and that such debts may be regarded as created by statute from necessity, and as a charge upon the estate, the same as the necessary expenses of administration, and the statute as furnishing the rule of liability ....
“The question is not simply whether the husband is liable as between him and the undertaker, but may not the estate of the wife also be liable, and may not the executor, having ordered the expense, be justified in paying the claim from that estate? If not, then a woman may die leaving thousands in lands, money, and bonds, and if she happen to leave a husband, and he insolvent, the body may lay uncared for until some charitable friend comes to the rescue, or it be taken care of and buried by the town. Public decency and a just regard for an enlightened sentiment forbids.”

Substituting the word “father” for “husband,” and “son” for “wife,” the reasoning of the McClellan case can well be applied here.

If the death of a person is caused by the wrong' of another, the wrongdoer should be held accountable for all items of damage occasioned thereby. And, since under the laws, erf Ohio, the personal representative, although perhaps not primarily responsible for them, may properly pay the funeral expenses and be compensated therefor, and if he has so paid or obligated himself to pay them, he should be the one to maintain an action for their recovery.

The Court is aware of the ruling of the Municipal Court of Piqua in the case of Hall v. Myers, 49 Abs 345, but does not feel this ruling is compelling in view of the Supreme Court’s opinion in the McClellan case.

It is the opinion of the Court that such expenses should be a proper item of damage in a Wrongful Death action. The Legislature, however, has seen fit to exclude them from such action, and this Court is without authority to change the legislation.

The Court believes that under the authority of §10509-121 GC, and the McClellan case, the suit here is properly brought by the administrator, and the demurrer thereto will be overruled.

Counsel for plaintiff may prepare an entry accordingly, noting defendant’s exceptions and leave to plead within rule, and submit the same to counsel for defendant and to the Court for approval.