author: By BIRRELL, J.

text:
    RICHMOND et, Plaintiffs, v. HALLOCK et, Defendants.
    Common Pleas Court, Trumbull County.
    No. 63486.
    Decided March 27, 1956.
    C. H. Klinger, Murray F. Hallett, for plaintiffs.
    Pickering & Battista, Minerva, Hoppe, Day & Ford, Warren, for defendants.
   OPINION

By BIRRELL, J.

The Amended Petition in this case alleges that the Plaintiffs are entitled to immediate possession of certain premises in the Township of Braceville which they allege were purchased on June 25th, 1912, by James F. Richmond, who caused the record title thereto to be put in the name of Hattie Beattie, now Hattie Beattie Hallock, and that said premises were conveyed to her as trustee “under a valid, continuing and subsisting trust.” The petition further states that James F. Richmond died November 11th, 1915, and that said trust estate was terminated and the Plaintiffs and certain defendants became owners of the premises. Plaintiffs further claim that Hattie Beattie Hallock concealed her trusteeship from them since that date, and they therefore request both possession of the premises and an accounting and judgment for the profits of said property since that time. The Defendant, Hattie Beattie Hallock denies that James Franklin Richmond purchased said premises or that they were conveyed to this Defendant as trustee, or that she has held said property in trust, and further denies that she has concealed anything from these Plaintiffs.

The evidence is as follows: Plaintiff first offers the deed from-Betsy A. North (widow) to Hattie Beattie, dated June 25th, 1912, and recorded at Vol. 213, page 417, Trumbull County Records of Deeds, which is a warranty deed conveying a fee simple title to Hattie Beattie with nabendum clause:

“To have and to hold the above granted and bargained premises with appurtenances thereof to the said grantee herein, her heirs and assigns, forever.”

Plaintiffs next present the record of a Lease from Volume 7, page 314-315, Trumbull County Leases and Agreements, the pertinent part of which follows:

“For and in consideration of one hundred dollars to me in hand paid, the receipt of which is hereby acknowledged, I, James F. Richmond, owner in fee, and I, Hattie Beattie, owner as Trustee, both of Phalanx, Trumbull County, Ohio, do hereby grant and lease to the Buckeye Pipe Line Company, its successors and assigns, the right of way * * * (et) over the property .... (described in the deed above mentioned).”

This Lease was signed and acknowledged August 14th, 1912, by James F. Richmond and Hattie Beattie.

Plaintiffs then offer a second Lease recorded at Volume 7, page 357. Trumbull County Records of Leases and Agreements from James F. Richmond and Hattie Beattie to the Trumbull Public Service Company, granting the “right to erect, construct, operate and maintain an electric line over” these same premises, which was signed and acknowledged by Hattie Beattie and James F. Richmond February 18th, 1913.

Plaintiff, likewise, offers a certified copy of the death certificate of a James Richmond which purports to prove that one James Richmond was born on June 10th, 1862, and died November 10th, 1915.

In addition to the foregoing exhibits Plaintiff called Hattie Beattie Hallock as a witness, who testified that she now lived in Minerva, that she formerly lived at Phalanx on the premises described in the petition, that she previously had lived and worked in Cleveland, coming from Cleveland to Phalanx. She was very deaf, and failed to understand or answer many questions. She did not know Betsy North,' but thought that the farm was formerly owned by Mr. Richmond. She had no memory of the Lease to The Buckeye Pipe Line Company, nor of ever reading or signing it. Her unrequested statements regarding Mr. Richmond were stricken from the record as unresponsive to the questions asked.

From this very meager evidence at least three things are clear: (1) The Phalanx farm conveyed to Hattie Beattie by Betsy North, June 25th, 1912, by Warranty Deed transferred title to her in fee simple. (2) James F. Richmond, designated as “owner,” and Hattie Beattie, designated as “Trustee,” leased a right of way across the premises to the Buckeye Pipe Line Company August 14th, 1912. (As far as the lease of February 8th, 1913, is concerned there is no mention of ownership, or trusteeship, in that lease. It adds nothing to support the claim of Plaintiffs’ petition other than that both Richmond and Beattie joined as grantors under date of February 18th, 1913.) (3) One James Richmond died November 10th, 1915 (whether or not this is the same person was not admitted).

The question for the Court to determine is whether or not a trust has been proven.

Were the Court to assume the preliminary inferences desired by the Plaintiffs, the Court is immediately confronted with the unanswered question of the terms of the trust. Property is conveyed to Defendant Hattie Beattie Hallock on June 25th., by deed in fee simple. Several weeks later Mrs. Hallock signs a lease in which James Richmond is described as owner and herself as Trustee. James Richmond dies several years later. Defendant continues in uninterrupted 'possession and ownership of the property for forty years. Suddenly persons unknown to her, strangers to the title, with no knowledge of the situation, except, apparently, this lone record of the Lease to the Buckeye Pipe Line Company, appear and state that this Defendant, by signing the Lease has acknowledged that she holds the property in trust for their benefit. How can v/e assume that a trust has been shown without any proof of its terms’ If a trust were established why must the Court infer that the trust was for the benefit of these unnamed parties? Why cannot the Court as easily, and with perhaps more reason, assume that the trust, if proven, was for the benefit of the Defendant? And that, if Richmond may have purchased the property and claimed ownership thereof during his lifetime, the purpose of the unqualified deed was to convey the premises to the Defendant, as her own property, at his death. It appears just as reasonable to draw such an inference from the situation, as to infer that Hattie Beattie was intending to convey the property to the estate of James Richmond or to his heirs after his death. Posed with this situation the Court is driven to investigate the subject of trusts, especially with reference to the manner of their creation.

An express trust must be created by the settler, the Court of Equity will not create it for him. 40 O. Jur. 140, Sec. 15. It is clear in this case that the one who owned the real estate previous to Hattie Beattie did not create this trust. Mrs. North conveyed the property to Hattie Beattie by warranty deed in fee simple. There are no indications that a trust was intended. Judge Ashburn in the case of Faurot v. Neff, 32 Oh St 44, at p. 47, refers to the statement by Justice Story in his Equity Jurisprudence defining the general rule:

“A trust is never presumed or implied, as intended by the parties, unless taking all the circumstances together, that it is the fair and reasonable interpretation of their acts and transactions.”

There are no acts or transactions shown surrounding this transfer of property. The evidence is uncontradicted that Mrs. North sold the property to Hattie Beattie.

It is clear in this instance that James Richmond never owned this’ real estate, never furnished the money to buy the real estate (no testimony to that effect being permitted by Plaintiff), and never held the title to such real estate. It is absolutely necessary, if we were to suppose that a trust was created by James Richmond on June 25th, 1912, as alleged in Plaintiff’s Petition, that he owned the property at the date of transfer to Hattie Beattie.

An owner of property, after parting with title to the same, cannot by subsequent statements change the title which he has parted with from a fee simple to a trust status. Harvey v. Gardner, 41 Oh St 642, see pages 647-8 for the Court’s opinion of the evil of admitting subsequent statements for such purposes:

“If subsequent and not contemporaneous the door might be open to constant frauds upon the rights or property. Where the conveyance is absolute on its face it would be unsafe, and contrary to reason and the rules of evidence, to permit a third person - - - a stranger to the instrument - - - to use the parol admissions or declarations of the grantor, made long after the conveyance, for the purpose of divesting the grantee of his rights by fastening a trust or incumbrance on the estate.”

There being no proof of any contemporary arrangement for a trust on June 25th, 1912, the date of the conveyance, the statement of James Richmond in the lease of August 14, 1912, has no weight in proving or inferring that a trust was created previous to that date.

The second necessary supposition would be that the signing of the Lease on August 14, 1912, by Hattie Beattie constitutes a declaration of trust on her part. It is possible for the owner of property to create a trust therein by her own statement that she holds property in trust 40 O. Jur. 141, Sec. 16, and such trust may be created in real estate. Did her signing of the lease of August 14, 1912, create a valid trust? It may very readily be argued that the signing of this lease wherein James Richmond designates himself as “owner” and Hattie Beattie designates herself as “Trustee,” declares that she held the property as trustee for James Richmond. But where do the Plaintiffs in this case enter this picture? Even if it were held that a trust had been created the Court has no power to extend the terms of the trust beyond the owner James Richmond. As above stated one inference is as good as the other. It is as simple and as easy to assume that Hattie Beattie was to own the property outright after James Richmond’s death as it is to assume that she was to lose her interest in the property at that event, and that the property should be returned to the heirs of James Richmond.

One of the important elements of a trust is “Certainty.”

“The declaration must make reasonably certain its material terms, so that a Court may enforce its execution.” 65 C. J. 270, Sec. 50.

“The declaration must contain sufficient words to create the trust, and it must embody all of the essential elements of a trust. It must express the intention to create a trust * * * and state with certainty the terms, subject, persons and object of the trust; and it has been stated that the trustee must be authorized and directed to perform certain duties and assume certain obligations.” 89 C. J. S. 771, Sec. 42.

“It is essential to the creation and existence of a trust that a cestui que trust or beneficiary competent to take the beneficial interest thereof, be designated with sufficient clarity and certainty to be capable of identification, although not necessarily by name, and that such cestui que trust or beneficiary be in existence, or at least, if not ascertainable until a future event or unborn, within the possibility of being ascertained or coming into existence. 54 Am. Jur. 114-5, Sec. 136.

There is just nothing either in the lease, or in the evidence to connect the claimants in this lawsuit with this so-called trust. In fact the evidence would appear to fit the remark of Judge Ashbury at page 47 of his Opinion in the Paurot v. Neff case, supra:

“The transaction here * * * partakes more of the nature of a gift than of a trust.”

Leaving aside the consideration of the entire absence of designation of cestui que trust and of directions to the trustee of the manner of execution thereof, the Court does not think that a mere designation of grantors in a lease with descriptive words is sufficient to prove an intention to create a trust. Without dispute the intention of the lease was to convey the right to use the property for the purpose therein mentioned, to-wit—

“the right of way to lay, maintain and/or operate pipe lines, telegraph lines, if the same shall be found necessary over and through my lands” etc.

The lease itself was given to the Buckeye Pipe Line Company. Who prepared the lease and why the Grantors were so described therein is not explained. Nothing is granted from Hattie Beattie to James Richmond and the Court doubts entirely that any intention to so grant to James Richmond existed in the mind of Hattie Beattie. At least no evidence of any kind explaining or amplifying such an intention has been suggested. Were there proof of some sort of the creation or even a suggestion of the creation of a trust the use of descriptive words in the Lease would serve as corroborative evidence. But there is no evidence for it to corroborate. By itself it is not such clear, certain and convincing proof as is required to establish a trust in this case.

Flanders v. Blandy, 45 Oh St 108 at p. 116.

“It is obvious and well settled by authority that before the owner can be held as a trustee for the benefit of a mere volunteer there must be a distinct, perfect and unequivocal declaration of trust.”

Mannix v. Purcell, 46 Oh St 102, Syl.

“It is competent to prove by parol evidence that land conveyed to a grantee by a deed absolute on its face, is in fact held by him for charitable uses, but such evidence should be clear, convincing and conclusive."

Russell v. Bruer, 64 Oh St 1, 2 Syl.

“A trust engrafted on an absolute deed may be shown by parol evidence; but the declaration of such trust must be contemporaneous with the deed, and the evidence beyond a reasonable doubt as to the existence of the trust, and must be clear, certain and conclusive as to its terms and conditions.” (Followed at Hill v. Irons, 160 Oh St 21.)

From the foregoing discussion it is clear that the Court does not find the evidence either clear, convincing, conclusive, certain, distinct, perfect nor unequivocal, nor that any trust on the part of the defendant has been proven. The judgment must, therefore, be rendered in favor of Defendant, Hattie Beattie Halloek, and the petition dismissed at Plaintiff’s costs.


source: Caselaw Access Project

license: Public Domain

text:
    MIDWEST AIRMOVING CORPORATION, Bankrupt, In re.
    IN THE DISTRICT COURT OF THE UNITED STATES NORTHERN DISTRICT OF OHIO EASTERN DIVISION.
    No. 82793.
    Decided March 24, 1959.
    Theodore R. Spilka, Cleveland, trustee.
    Marvin L. Gardner, Cleveland, trustee’s atty.
    Howard L. Sokolsky, Stanley B. Wiener, Cleveland, for Noll Equipment Company.
   OPINION

To the Honorable Judges of the United States District Court, for the Northern District of Ohio, Eastern Division, sitting in Bankruptcy:

I, William B. Woods, Referee in Bankruptcy, in charge of the above proceeding, do hereby certify:

That in the course of this bankruptcy proceeding, Theodore R. Spilka, receiver of bankrupt, filed his petition to sell certain chattels of the bankrupt, and to this Noll Equipment Company filed its answer and cross-petition claiming reclamation of two items, and thereafter said chattels were sold by Theodore R. Spilka, trustee, and the rights of Noll Equipment Company as cross-petitioner were transferred to the fund in the order of sale, subject to rights of said cross-petitioner to be determined thereafter, to which said cross-petitioner consented; and thereafter upon further hearing, statements of counsel, and filing of briefs, an order was entered on March 3, 1958, denying the lien of said petitioner, Noll Equipment Company, and allowing same as a general claim for $12,500.00. Cross-petitioner, Noll Equipment Company, excepted to said order, and on March 5, 1959, filed its petition to review said order in the District Court.

Findings of Fact

(1) That a Creditors’ Petition v. Midwest Airmoving Corporation of Willoughby, Lake County, Ohio, was filed on January 2nd, 1959, and with it a consent to adjudication, and upon reference Theodore R. Spilka was appointed receiver of bankrupt, and said Theodore R. Spilka is now the acting and qualified trustee of said bankrupt.

(2) That said Noll Equipment Company, of Cleveland, Ohio, cross-petitioner, and respondent herein, is and was at all times herein an Ohio Corporation engaged in buying and selling machinery.

(3) That on July 17, 1958, Midwest Airmoving Corporation, bankrupt herein, entered into a written agreement with Noll Equipment Company, which has been stipulated as Cross-Petitioner’s Exhibit 1, which said agreement concerned:

1 Hand brake, 1 Model C. 3-8 Sturdybender Press Brake, 1 Dries & Krump Shear, Machinery, equipment, tools, parts, material, fixtures, office equipment, patterns, dies, blue prints, patents, parts in process, aluminum sheets, copper sheet, aluminize steel, trade name, and good will.

(4) That the Sturdy Bender Press Brake was purchased in June 1957, by the Noll Equipment Company for $4700.00 (Rec. 8), and the Dries & Krump Shear and equipment was purchased on July 8, 1958, for $1,000.00, and both machines were delivered to the bankrupt in good operating condition (Rec. 11).

(5) That promissory notes were given by the bankrupt to Noll Equipment Company, payable in twenty monthly installments for a total of $12,500.00, and that bankrupt after the 20th payment had the right to purchase the machinery for $1250.00 (Corrigan testimony R. 27, Ruben’s R. 38-9).

That the several original promissory notes given by bankrupt to Noll Equipment Company are attached to the exhibits of exceptor’s memorandum brief filed by Noll Equipment Company’s counsel on February 6, 1959.

(6) That all of the discussion with reference to the two machines were between Bud Noll, President of the Noll Equipment Company, and Robert Ruben, President of Midwest Airmoving Corporation, and that the terms of the written contract entered into were likewise made at the instance of Bud Knoll and Robert Ruben (Rec. 35), and the only witness called to testify by cross-petitioner, Noll Equipment Company, was Leo Corrigan, who was not present when said contract was signed, or discussed by the parties thereto (Rec. 35).

(7) That the appraisal of the two machines sold by said written agreement made by the appraiser for the Bankruptcy Court was $16,500, (R. 31).

(8) That the purchase price for the two machines was $12,500, of which $8,500 for the Sturdy Bender Press Brake, and $4,000 for the Dries & Krump Shear (Rec. 37).

(9) That the bankrupt pursuant to the terms of the contract (Exhibit 1 — Paragraph 7) took out insurance for the said machines in the sum of $12,500, the list price for the two machines (R. 37-8).

(10) That by the terms of said written agreement (Exhibit 1 — Paragraph 4) the bankrupt herein agreed to pay at its own cost and expense all repairs and replace all parts during the terms of said agreement cRec. 28).

(11) That the said agreement (Exhibit 1) was not filed with the recorder of Lake County, the residence of plaintiff being at Willoughby, Lake County, Ohio (Rec. 60).

Conclusions of Law

(1) That the written agreement of parties executed July 17th, 1958, for the sale of the chattels in question as evidenced by the accounts, the 20 notes given for the purchase price of $12,500, terms of the contract itself, and conducct of the parties, constituted a conditional sale contract and not a lease.

(2) That the only witness, Lee Corrigan, called to testify by the cross-petitioner, was not present when the contract was entered into, or when the terms were agreed upon.

(3) That the agreement entered into on July 17, 1958, by and between the Noll Equipment Company and the Midwest Airmoving Corporation, the bankrupt herein (respondent’s Exhibit 1), was a conditional sales contract and was not recorded in Lake County, the residence of the corporation, as provided by §1313.11 R. C.

(4) That failure to file the conditional sales contract by the Noll Equipment Company with the County Recorder of Lake County as provided under §1319.11 R. C„ said conditional sales contract is void as to the Trustee.

(5) That the claim of lien of Noll Equipment Company, cross-petitioner, is denied and dismissed, and that claim is allowed for $12,500 as a general claim.

Memorandum

Theodore R. Spilka, Receiver of the Midwest Air Moving Corporation, bankrupt, filed his petition to sell assets of bankrupt, and to this Noll Equipment Company filed its answer and cross-petition claiming reclamation of two items — a Hand Brake, being 1 Model C. 3-8 Sturdy-bender Press Brake, and one Dries & Krump Shear, with machinery and equipment parts in process, trade name and good will. The chattels of bankrupt including the two machines in question were sold by Theodore R. Spilka, trustee in bankruptcy, and the rights of Noll Equipment Company as cross-petitioner were transferred to the fund in the order of sale, subject to the rights of the cross-petitioner to be determined thereafter, to which said cross-petitioner consented.

The facts in the controversy show that on July 17, 1958, Midwest Airmoving Corporation, now bankrupt, entered into an agreement with Noll Equipment Company for the leasing of the said tool machines, with an option to purchase at the end of twenty months after paying the sum of $12,500 in rental fees; and upon payment of said amount the equipment would belong to the bankrupt, as appears in Clause Two of the agreement (cross-petitioner’s exhibit 1).

The agreement further provides that the lessee at its own cost and expense make all repairs and replace all parts during the term of the agreement (Clause 4); and the lessee shall at its own cost and expense insure the machinery and equipment at an amount equal to the list price (Clause 7).

The agreement was entered into by Sanford Noll, President of the Noll Equipment Company, and Robert Ruben, President of the Midwest Airmoving Corporation, and the record shows that the only witness, Leo Corrigan, was not present when the agreement was .entered into, or the terms discussed by the signers, Noll and Ruben.

The evidence shows that promissory notes were given by the Midwest Airmoving Corporation, now bankrupt, to Noll Equipment Company for an amount of $12,500, which notes were in the possession of Noll Equipment Company, but were not introduced as exhibits or part of the evidence; but since the hearing and the memorandum briefs filed by Noll Equipment Company on February 6, 1959, said several notes were attached to the memorandum brief filed by said cross-petitioner. The appraisal of the property in question was made by the court appraiser and was for the amount of $16,500.

The evidence further shows that the agreement entered into between Noll Equipment Company and the bankrupt was never recorded in Lake County, the situs of said bankrupt corporation.

LAW

The question here presented is whether or not the agreement entered into by bankrupt and the Noll Equipment Company was a conditional sale contract, or a lease, and if a conditional sale contract; was it valid as against the trustee in bankruptcy, although not recorded in Lake County, §1319.11 R. C., which required filing with the Recorder in the County of the buyer of chattels so sold.

In determining whether or not a lease entered into by and between a Lessor and Lessee is a conditional sales contract is determined by the action of the parties and the terms of the lease which includes an option to purchase. The Courts have held that where a so-called lease contains no reference to a prospective purchase if in reality the real Agreement is that the property should belong to the Lessee upon the payment of a rental for the terms specified it will be held to be a conditional sale. There are several cases which support this viewpoint. In the case of In re Pickett, 37 O. L. R. 153, it was held:

“Contract under which one party leases to another a piece of farm machinery for a certain number of months for payment of certain sum down and certain further sums at later dates, and providing that Lessee may purchase the machinery at the end of the term by paying Lessor further the sum of One Dollars, is a conditional sales contract.”

In Re Pickett, supra, the facts are almost identical with the one before this Court. The Lessor agreed to buy a harrow for $260.00 paying the lessee $10.00 down and he was to give two notes one for $100.00 and one for $150.00, and after the payment of $250 he was entitled to purchase the harrow for one Dollar. The Lessee entered into this contract on June 4, 1931, and was adjudicated a bankrupt on December 16, 1931, and no payment was made on the contract; nor on the notes to the Lessor.

The Court said on page 1954:

“Lessor agreed to purchase a harrow for $260.00, $10.00 down and two notes, both dated June 4, 1931, one for $100.00, payable July 1, 1931, and the other for $150.00 dated October 15, 1931. Lessee, if all conditions kept, can purchase upon expiration of the term for $1.00.’

On Page 155,

“The Bankrupt filed his Petition in Bankruptcy and was adjudicated a bankrupt on December 16, 1931. Nothing was paid by him on the contract nor on the notes.” (Emphasis ours.)

This reported Ohio case is quite like the one now before this Court. Here the bankrupt agreed to purchase two machines for $12,500.00, and gave notes in varying amounts to be paid in twenty months. At the end of the period upon payment of $1,250.00 the machines were to be purchased by bankrupt for that amount. Nothing was paid on this contract, and as in the Pickett case, supra, the Court finds that it was a conditional contract which should have been recorded. In the present case the conclusion seems more compelling because this bankrupt was to carry insurance on the machinery, and was to make all repairs.

Extensive briefs have been filed by counsel for the parties, but without reviewing the decisions quoted, it seems apparent that the rule of the Pickett case must be applied here. A recent decision to the same effect is recorded from the Fifth Circuit as late as December 11, 1958, appearing in C. C. H. No. 59389, the case entitled First National Bank of Fort Smith v. Phillips, C. C. H. 59389. As in the case at bar, the seller insisted that the buyer had no obligation to pay, and the Court cited Willison on Sales, Second Edition, Section 336, Page 780:

“In determining whether or not a given instrument is a conditional sales contract, we must find what the intention of the parties was at the time it was entered into Once the intention of the parties becomes clear, it is immaterial what the instrument is called nor how skillfully the real intention of the parties is disguised . . .

Hutcheson, Chief Judge of the Fifth Circuit, answering the argument of this cross-petitioner, said on page 66062 of C. C. H.:

“Appellants reliance upon the fact that the Bankrupt ‘was not obligated at all to pay the total purchase price’ as establishing that the instrument was not a condition sale by a Lessee, is, we think, entirely misplaced.”

In 9 O. Jur., 2d, page 623, Paragraph 7, rule is stated as follows:

“The test most frequently applied in determining the character of a contract, as a conditional sale or a lease, is whether the so-called lessee is ooligated to accept and pay for the property at some future time; if this is the effect of the contract, it will be construed to be one of conditional sale, and not a lease, notwithstanding the use of terms therein commonly used in leases and not ordinarily used in sales contracts. So too, a contract which purports to be a lease with an option of sale may be a conditional sale and come within the operation of the statutes as to the letter. And even where the so-called lease contains no reference to a prospective purchase, if the real agreement is that the property should belong to the lessee upon the payment of the rental for the term specified, it is a conditional sale.”

Other cases are to be found In Re Sheets Printing & Manufacturing Company, by Judge Taylor of this District, found in Volume 14 A. B. R., page 668. Also there is Unitype Company v. Long, 16 A. B. R., page 282, decided in 1906 by Sixth Circuit, and Re Gaglione & Son, 200 Fed. 81, 28 A. B. R. 694. Also In Re Rainey, 31 Fed. 2d, 197.

So the failure to file the written agreement as a conditional sale contract with the Recorder of the County, residence of buyer, here Lake County, by the cross-petitioner, makes void its claim of lien, and was so held by this Referee in In Re Hatchmaster Incubator Company, No. 50361, in a bankruptcy proceeding in this Court. Also it might be noted that the same rule applies as to liens of chattel mortgage claimants, where the filing has been in a County other than that of the residence of the mortgagee, and was so held by His Honor Judge Jones in these cases — In Re K-T Sandwich Shoppe of Akron, 1929, 34 Fed. 2d, 962, and in Re Poston Construction Company, 1953, 115 Fed. Sup. 323.

The finding is that the Claim of lien of cross-petitioner, Noll Equipment Company, be denied and dismissed, and that its claim for $12,500 be allowed as that of a general creditor.


author: By THE COURT.

text:
    DAILEY, Plaintiff-Appellee, v. DAILEY, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    Nos. 6006, 6007.
    Decided January 13, 1959.
    Butler, Addison, Smith & Carmack, Richard C. Addison, of Counsel, Columbus, King & Gross, Gale R. King, of Counsel, Columbus, for plaintiff-appellee.
    Earl W. Charls, Ginocchio & Ginocchio, Louis Ginocchio, of Counsel, Cincinnati, for defendant-appellant.
   OPINION

By THE COURT.

Submitted upon motion of the plaintiff-appellee seeking an order requiring the defendant-appellant to pay her the sum of $500 expense money to partially reimburse her for expenses incurred herein. The appeal is on questions of law from two judgments entered on July 18, 1958, one finding the defendant-appellant guilty of contempt of court for failing to make alimony payments in accordance with the terms of the decree of divorce entered on October 25, 1951. The other appeal is from a judgment overruling the defendant-appellant’s motion to modify the terms of the said divorce decree. The two appeals have been consolidated and will be considered as one.

Now. the record reveals that the defendant-appellant has filed a supersedeas bond in the sum of $11,500, but it is silent as to any need of the plaintiff-appellee for expense money in order to defend in this court. An allowance of temporary alimony may not be claimed as a matter of right but rests solely in the discretion of the trial court. Sudro v. Sudro, 6 Abs 460, Norton v. Norton, 111 Oh St 262.

This court held in the case of Phillips v. Phillips, 70 Abs 552, that expense money will not be allowed where the wife has ample funds with which to defend the action.

In the case of Norton v. Norton, supra, the court says at page 270:

“Temporary alimony is granted the wife upon the theory that she is entitled to make her defense, and that she has no means to defend herself during the pendency of the suit. In the case herein ample evidence exists of the wife’s financial inability to conduct the defense.”

It is also to be noted that §3105.14 R. C., as amended, effective October 5, 1955, now provides that temporary alimony may be granted to either of the parties for sustenance and expenses for good cause shown when supported by satisfactory proof.

We find that no good cause has been shown for the allowing of the motion and the same will be overruled.

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


author: By THE COURT:

text:
    STATE, Plaintiff-Appellee, v. CARTWRIGHT, Defendant-Appellant.
    Ohio Appeals, Second District, Fayette County.
    No. 301.
    Decided September 28, 1957.

      Rollo M. Marchant, Pros. Atty., for plaintiff-appellee, contra the motion.
    Eugene Yazel, Marion, for defendant-appellant, for the motion.
   OPINION

By THE COURT:

This case is submitted on motion of defendant-appellant for “leave to appeal on questions of law from the entry and final order set 'forth in the notice of appeal attached herewith * * *.”

The notice of appeal is directed to “an entry and final order rendered by the Court of Common Pleas in the above entitled cause on the 16th day of July, 1957.” The correct date of the filing of this entry appears to be July 15, 1957. .

The notice of appeal was filed in the Common Pleas Court, August 15, 1957. It thus appears that the notice of appeal in any event was filed at least thirty-one days after the date of the order to which the notice of appeal is directed.

The order of the trial judge, of date July 15, 1957, was the overruling of a motion of defendant seeking leave to withdraw his plea of “guilty,” entered without benefit of counsel, upon which sentence and judgment was pronounced, on the 22d day of April, 1955, and to enter a plea of “not guilty” for the following reasons: Six reasons are set out in the motion.

It will be observed that the notice of appeal is specific, and is directed to the action of the trial judge on the motion for leave to change defendant’s plea and not to the sentence and judgment pronounced on defendant’s plea of guilty on April 22, 1955.

Inasmuch as the notice of appeal was not filed within 30 days from the order to which the appeal is directed, leave to appeal is requisite to the presentation of the appeal.

Counsel for appellee in opposing the motion for leave to appeal directs attention to the statute, §2953.05 R. C., and asserts that defendant has failed to show cause why he should be granted leave to appeal.

He also cites §2943.03 R. C., which, in part, provides that “The Court may, for good cause shown, allow a change of plea at any time before the commencement of the trial.”

We have examined the files in the case and find that the journal entry of July 15, 1957, wherein defendant’s motion to withdraw his plea of guilty is overruled, also incorporates much of the factual development incident to the decision and order.

Appellant cites and relies upon Brooks v. State, 17 Oh Ap 510, where the Court of Appeals for Perry County, Ohio, reversed the judgment and sentence of the trial judge in the trial of Brooks, who was charged with and convicted of the offense of murder in the first degree. The court held that Brooks who, without counsel, had pleaded guilty to the crime charged, was under the circumstances appearing, denied his legal rights in the failure of the trial judge to sustain Brooks’ motion for leave to withdraw his plea of guilty and to enter a plea of not guilty. The case presents facts quite like those claimed by defendant in behalf of his motion in this case.

The distinguishing difference between the Brooks case and the instant case is that, in the former, the motion for leave to change the plea was made before sentence and judgment. Here the motion was made more than two years after sentence.

It should be observed that the issues attempted to be presented in this and in many similar proceedings emphasize the importance of the most diligent care on the part of the trial court in accepting a plea of guilty from a defendant who is without counsel.

First of all, even in a case where guilt may seem apparent, it is the positive duty of the court to explain carefully to the accused all his legal and constitutional rights, including especially his right to representation by counsel both before arraignment and at all subsequent stages of the case, to inquire as to defendant’s wishes with respect to counsel and, if so requested, and if he finds defendant indigent, to appoint counsel for him. This obligation of the trial judge to inform an indigent defendant of his right to appointment of counsel to represent him, §2941.50 R. C., is prior to and different from the obligation to determine the propriety of accepting a plea of guilty and pronouncing sentence under §§2947.05, 2947.07 R. C. Of course, in any case the court will accept a plea of guilty only when convinced of the defendant’s guilt.

The record now before us is not sufficient to enable us to pass upon these questions even if we were empowered to do so in the present proceeding.

If the relief sought by the present motion were granted, there would still remain unreversed and unmodified the judgment and sentence against the defendant, and no relief is presently sought with respect thereto.

The judgment and sentence having been entered at a term prior to the term within which the motion to change the plea was filed, a different procedure would be required to set it aside. The perplexing question as to what procedure, if any, might be effectively followed at this late date is not before us for solution.

Inasmuch as the relief sought in the motion would not, if sustained, accomplish a reversal of the sentence of defendant, it would serve no good purpose to grant the leave to appeal.

The motion for leave to appeal will be denied.

We note that counsel for defendant-appellant was criticised by the trial judge for his conduct in presenting the motion, but that the situation was cleared up by correspondence wherein counsel supplied an explanation of his position, which explanation was apparently accepted by the trial judge as satisfactory.

We call attention to the fact that the entry criticising counsel remains unmodified. No doubt, the court, in fairness to counsel, will clarify the situation with respect to this matter, so that the record will properly reflect the true position of counsel, and the present view of the court.

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


text:
    BENEFICIAL FINANCE COMPANY, Plaintiff-Appellant, v. SMITH, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5800.
    Decided December 20, 1957.
    Henry A. Reinhard, Columbus, for plaintiff-appellant.
    Marie C. Galleher, Columbus, for defendant-appellee.
   OPINION

By THE COURT.

This is a law appeal from a judgment of the Municipal Court of Columbus, Ohio. Inasmuch as there was no jury, it became the duty of the court to decide both the facts and the law in the case.

The case began against Howard Smith and his wife, Mary Smith; but during the trial, Mary Smith was dismissed by agreement as a party defendant for the reason, according to appellant’s brief, that she did not sign the financial statement. In this court the remaining parties are the plaintiff, appellant herein, and Howard Smith, defendant, appellee herein.

It appears that Howard and Mary Smith had lived in Cleveland, where they had a loan with another branch of appellant company; and after moving to Columbus, their loan was purchased by appellant’s local office.

On April 2, 1954, when the balance owed by the appellee to the appellant was $559.00, appellee and his wife asked to borrow about $160.00 over and above the balance on the existing loan. A loan was made for $725.00, on which three payments were made in the amount of $43.00 each for a total of $129.00.

Then the Smiths went into bankruptcy and listed the debt owed to the appellant. After the bankruptcy the appellant picked up personal property or furniture in the home, on which it realized $80.00.

In the action the appellant claimed the right to recover judgment against Howard Smith on the basis that the debt was not dischargeable in bankruptcy because Howard Smith failed to list certain debts which, it claims, he had knowledge of and which appellant did not have knowledge of at the time he increased his loan in Columbus.

The evidence is conflicting on both questions as to the knowledge of the appellant of the debts by virtue of the earlier loan made in Cleveland and as to whether Howard Smith knew of the debts which were not included in his financial statement. The trial court was not favored with a copy of the financial statement made by the Smiths when they procured their loan in Cleveland, and some of these debts shown in the bankruptcy schedule under plaintiff’s Exhibit No. 1 go back into early 1953 However, at Page 20 of the bill of exceptions, Mr. Burch of the appellant company, in response to Question 97, was asked by the court:

“Q97. Well, it was his obligation if he borrowed from you. A. Well, all right, but we held the paper on it.
“THE COURT: I think her point is: did you get the papers from the Cleveland office?
“THE WITNESS: Yes, we got the papers, sir.
“THE COURT: — That they sent to you. Then you had all the knowledge they had up there?
‘THE WITNESS: That is, I suppose, true.
“THE COURT: That’s what you’re trying to get at?
“MRS. GALLEHER: Yes.”

On the second point, as to whether Howard Smith knew of these debts, the testimony was generally to the effect that his wife takes care of the bills and that he was not aware of a lot of these bills that are listed:

“Q25. You mean you don’t know anything about Dr. dayman’s bill? A. Well, let me put it this way. My wife takes care of paying all our bills, and I was not aware of a lot of these bills that are listed. In fact, I was aware of none of them that are listed on that account.”

He further testified that he was not living at home for almost a year. In that manner he explains that he was not aware of all these claims when he signed the financial statement on April 2, 1954. which claims it became necessary for him to list in his schedule of debts in his bankruptcy petition which was signed on October 18, 1954.

It must be borne in mind that in determining this case, the trial court was only considering the evidence against Howard Smith since Mary Smith had been dismissed as a party defendant before the case went to final judgment. As urged by the appellee herein, the burden rested upon the appellant to prove that this debt was not discharged nor dischargeable in bankruptcy.

There is ample evidence to sustain the judgment of the court for the defendant. It had the opportunity of observing the witnesses and determining their credibility. We find, therefore, that the first assignment of error, that the judgment of the Municipal Court, is contrary to the manifest weight of the evidence, is not well taken. From a review of the briefs of counsel, the pleadings, and the evidence, we find that the second assignment of error, in which appellant contends that the judgment of the Municipal Court is contrary to law, is not well taken.

The judgment of the Municipal Court will be affirmed.

Judgment affirmed.

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


text:
    STATE, ex rel. MATTOX, Plaintiff, v. STATE and R. B. ECKLE, Supt., Defendant.
    Ohio Appeals, Second District, Madison County.
    No. 196.
    Decided June 15, 1955.
    Raymond Mattox, on his own behalf.
    C. William O’Neill, Atty. Geni., Roger B. Turrell, Asst. Atty. Geni., Columbus, for defendant.
   OPINION

By THE COURT:

This is an original action in habeas corpus. An examination of the record discloses that on the 23rd of July, 1954, a like action was filed in the Common Pleas Court of Madison County, Ohio, of which the court took jurisdiction and decision was rendered on March Í0, 1955. The petition in this case was filed on February 11, 1955. Thus both cases were pending at the same time and the first court to assume jurisdiction had the exclusive right to make the adjudication. 11 O. Jur. 726.

The court on its own motion dismisses the petition.

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


author: By SKEEL, J.

text:
    BELCHER, Plaintiff-Appellee, v. BELCHER, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6080.
    Decided May 26, 1959.
    Keith McNamara, Columbus, for plaintiff-appellee.
    Henry A. Reinhard, Columbus, for defendant-appellant.
    (SKEEL, J, of the Eighth District, sitting by designation in the Tenth District.)
   OPINION

By SKEEL, J.

This appeal comes to this court on questions of law from a judgment entered for the plaintiff by the Court of Common Pleas (Domestic Relations Division) of Franklin County. The action was one seeking divorce.

The plaintiff filed her petition June 13, 1958. Personal service was had on the defendant on June 16 and returned by the sheriff on June 20, 1958. The defendant filed his motion to make the petition definite and certain on July 10, 1958, and without a ruling on the motion journalized on the record, the plaintiff complied with defendant’s request by filing an amended petition on September 5, 1958, setting out facts which she alleged supported her claim that the defendant had been guilty of gross neglect of duty. These allegations are that the defendant failed to support the plaintiff and the three children born of this marriage, that he drank excessively, and preferred the company of other women rather than to entertain the plaintiff, that he struck the plaintiff and abused her so that she had to move to the home of her parents. Further, that he has failed to pay obligations incurred, causing plaintiff much embarrassment, and has not conducted himself in a manner which a wife has a right to expect. The defendant did not file an answer.

On October 28. 1958, after trial on October 25, as an uncontested case, a journal entry was filed and journalized granting the plaintiff a decree of divorce on the ground of gross neglect of duty. A motion for new trial was filed the same day the decree for the plaintiff was journalized, setting up four grounds or claims in support of the motion, which are in substance as follows:

1. That there was no service of summons on defendant on the plaintiff’s amended petition.

2. Fraud alleged to have been perpetrated by plaintiff against the defendant in securing the divorce.

3. Neither the defendant nor his counsel were apprised of the time of the hearing.

4. That the purported amended petition substantially changed the allegations as set forth in the original petition and since no service was had upon the defendant on the amended petition, he had no opportunity to interpose a defense.

The court, on December 1, 1958, rendered a written decision giving the reasons for overruling the motion for new trial (referred to by the court as a motion to vacate the decree of divorce), which opinion was filed by the court with the papers in the case. No bill of exceptions was presented by the defendant to demonstrate any basis for his claims set out in the motion so that in considering this appeal only such facts as appear on the face of the record can be considered.

The plaintiff filed an affidavit as evidence (on defendant’s motion for new trial) in support of her contention that the defendant was notified as to the date set for the hearing of the case on the merits. The notice was accomplished by the assignment commissioner mailing a post card. This card stated the fact that the case would be heard October 25, 1958, at 9:00 A. M. of that day. The card was dated October 15, 1958, as shown by a copy thereof said to have been received by plaintiff’s counsel. This card was attached to counsel’s affidavit filed November 24, 1958, in support of his contentions on the hearing on defendant’s motion to vacate the decree of divorce or the motion for new trial as designated by the defendant.

Upon giving notice of appeal, the defendant filed the following assignments of error:

"1. That there was no service of summons upon the defendant upon the amended petition and that this defendant was not legally served with process according to law. The trial Court was without jurisdiction to hear the case.
“2. That neither the defendant nor his counsel were apprised of the time of the hearing of the divorce.
“3. That the purported amended petition substantially changed the allegations as set forth in the original petition and since no service was had on the defendant he had no opportunity to interpose a defense.”

The amended petition did not change the issues of fact or the grounds upon which plaintiff prayed for divorce as set out in the petition filed on June 13, 1958, so that new service on the defendant on the amended petition was unnecessary The ground alleged by the plaintiff upon which she claimed to be entitled to a divorce in both petitions, was gross neglect of duty. While some of the allegations in the amended petition might not, on strict construction, be directly applicable to the grounds alleged, yet the defendant did not see fit to file a second motion seeking to strike such allegations from the petition. There is no legal requirement for new service in 9 divorce action because of the filing of an amended petition, particularly where the amended petition restated the same cause of action as contained in the original petition.

In the case of Hanna v. Hanna, 93 Oh Ap 370, at page 379, 114 N. E. (2d), 133, 138, the court said:

“We think it requires no citation of authorities to fortify the statement that the original service conferred jurisdiction upon the court over the defendant to grant relief to the full extent of the prayer based on the cause of action alleged and proven. It also forewarned the defendant that the court might make interlocutory orders without further notice. We are advised of no rule of court requiring notice of the filing of an amended petition before the answer day. Certainly, causing summons and a copy of the amended petition to be served by mail upon the defendant satisfies all reasonable requirements. If the filing of the amended petition related back to the filing of the petition, which we think it did, then clearly no further service or notice was required.
“When we consider that service in all respects regular was made upon filing the petition and that actual notice was brought to the defendant by an irregular service on the filing of the amended petition, and that the divorce was granted on the ground of extreme cruelty alleged in both tire original and amended petition in exact terms, we cannot doubt that the court acted within its jurisdiction.”

In the case now being considered, the defendant was personally served with process. After service, he appeared in court seeking by motion to direct the plaintiff to make her petition definite and certain. We find, therefore, that the court was vested with jurisdiction to try the right of the plaintiff to a divorce on the allegations of the amended petition. This view is further supported by the case of Arnold v. Arnold, 110 Oh St 416, 144 N. E. 261, where the Supreme Court said in the second paragraph of the syllabus:

“2. An action for divorce, though more than one of the statutory causes may be relied upon, constitutes a single cause of action and operative facts may support more than one of the causes relied upon. In such event it is not necessary to classify the allegations under the respective statutory causes and even though certain allegations more particularly applicable to one statutory cause may be wholly insufficient to sustain that cause independently of other causes such allegations are pertinent and may be considered for the purpose of lending weight and color to other causes more particularly relied upon.”

Assignment of error three is also overruled for the reason that, as just stated, the amended petition did not change the plaintiff’s cause of action. The defendant was before the court in a divorce action on a petition that charged that he was guilty of gross neglect of duty. This was the cause of action which was tried by the court and a decree of divorce was entered on the ground alleged.

The second claim of error, namely, that neither the defendant nor his counsel was apprised of the time the case was set for trial, is not sustained by the record. It would require a bill of exceptions setting-out the evidence on the motion for new trial (or motion to vacate the decree of divorce) to give consideration to this claim of error. Such evidence is not before this court and we must, therefore, assume that the court correctly decided that question in ruling on the motion against the claim of the defendant.

For the foregoing reasons, the judgment of the Court of Common Pleas is affirmed.

BRYANT, PJ, DUFFY, J, concur.


text:
    TIPTON, Plaintiff-Appellant, v. MORROW, Admr., Defendant-Appellee.
    Ohio Appeals, Second District, Fayette County.
    No. 299.
    Decided December 30, 1957.
    F. Scott Zimmerman, Washington C. H., for plaintiff-appellant.
    Kenneth O. Stone, Sabina, for defendant-appellee.
   OPINION

By THE COURT:

Appellee moves to dismiss the appeals of appellant. The separate appeals are directed to the order of the trial judge on a motion for judgment notwithstanding the verdict and the sustaining of defendant’s motion for new trial.

Appellant, having failed to file a bill of exceptions on the appeals or any briefs relating thereto, the motion to dismiss the appeals was interposed.

Plaintiff moved to amend his notices of appeal which had been upon questions of law to questions of law and fact.

We granted leave to appellant to file brief on his application within 10 days. No brief has been filed.

The orders to which the appeals are directed grew out of an action for money on an implied contract for services. Manifestly, the orders in the action in which they were made were not appealable on questions of iaw and fact under the applicable section of the Code. So that, the motion to amend the notice of appeal can not be sustained and must, therefore, be overruled.

Rule VII of our Court fixes the time within which briefs shall be filed and a failure to observe this rule, except for good cause shown, has uniformly been held in this court to support the dismissal of the appeal or an affirmance of the judgment. The time within which the bill of exceptions shall be filed is fixed by statute. This time has elapsed and we have no authority to extend it. The motion to dismiss the appeals is, therefore, well-taken and must sustained.

There also arises the question whether or not the entry sustaining the motion for judgment notwithstanding the verdict is a final order or judgment such as will sustain an appeal. This entry recites:

“On motion of the Defendant for judgment notwithstanding the verdict of the jury, the Court finds that the applicant is entitled by law to a judgment in his favor upon the evidence received on the trial and on the statements admitted in the pleadings notwithstanding the general verdict to the contrary.
“It is, therefore, ORDERED that the judgment entered herein on April 24, 1957, in conformity to the verdict, be, and is hereby vacated; and it is further ordered that the Defendant go hence with his costs for which judgment is hereby rendered against the plaintiff.”

It will be noted that there is no judgment dismissing plaintiff’s action and the probable effect of this entry is to require the plaintiff to pay the costs in the case to the time when this entry was filed, and to vacate the judgment. This order did not in terms dismiss plaintiff’s action which was essential to a final order.

There is no question that the order granting a new trial was reviewable on appeal had appellant conformed to the statute and our rule.

The motion of appellant for leave to amend her notices of appeal will be overruled. The motion of appellee to dismiss plaintiff’s appeals will be sustained.

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


author: By DUFFY, J.

text:
    MOTORISTS MUTUAL INSURANCE COMPANY, Plaintiff-Appellant, v. BUCKEYE UNION CASUALTY COMPANY, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5953.
    Decided March 24, 1959.

      Lane, Huggard & Alton, Columbus, for plaintiff-appellant.
    Joseph M. Thatcher, Columbus, for defendant-appellee.
   OPINION

By DUFFY, J.

This case was submitted to the trial court upon a statement of stipulated facts, which stipulation was as follows:

“1. The Defendant, Buckeye Union Casualty Company, carried a policy of liability insurance on the Columbus Motor Car Co., which is' attached, on the dates in question.
“2. The Plaintiff, Motorists Mutual Insurance Company, carried a policy of liability insurance on a 1950 Renault Sedan on the dates in question which was issued to Richard C. Bull.
“3. On July 15, 1954, Richard C. Bull was driving west on Broad Street in Bexley, Ohio, and struck the rear of a vehicle owned by John l. Ireland as it was stopped headed west at the intersection of Parkview and Broad Streets.
“4. At the date of said accident, the owner of said 1950 Renault Sedan listed on the Certificate of Title for said vehicle, was the Columbus Motor Car Co. Richard C. Bull signed the application to transfer said title to him on July 16, 1954, and on July 17, 1954, a Title for said vehicle was issued to Richard C. Bull.
“5. Claim was made by John I. Ireland upon Plaintiff, Motorists Mutual Insurance Company, which in turn demanded that said claim be paid by Defendant, Buckeye Union Casualty Co. Buckeye Union Casualty Co. refused to pay said claim and said claim, amounting to $188.84, was paid by Plaintiff, Motorists Mutual Insurance Company. Plaintiff has demanded that said sum be paid to it by Defendant, which was refused.
“6. The reasonable adjustment expense of Plaintiff was $38.00.
“7. Copies of each policy are attached hereto.”

The trial court was requested to make separate findings of fact and conclusions of law, and his findings of fact were as follows:

“1. The court adopts the stipulation of facts by the parties as its finding as to the facts covered thereby.
“2. The court further finds that the plaintiff and defendant were co-insurers and each independently liable for its proportionate share of the loss.
“3. The plaintiff paid the entire loss and became a volunteer as to its payment of defendant’s share of the liability.”

The following were his conclusions of law:

“Having paid a claim that it was not obligated to pay, the plaintiff is not entitled to contribution from the defendant.
“Farm Bureau Mutual Automobile Insurance Co. v. The Buckeye Union Casualty Co., 147 Oh St 79, applied and followed.
“Aetna Casualty and Surety Co. v. Buckeye Union Casualty Co., 157 Oh St 385, does not apply.”

The trial court thereupon entered judgment for the defendant, The Buckeye Union Casualty Company, and later overruled a motion for a new trial. Plaintiff appealed from the judgment of the Municipal Court to this court on questions of law and fact. The appeal on questions of fact having been dismissed, this court retained the case on the questions of law.

It is the plaintiff-appellant’s position that the policy of insurance issued by them to Richard C. Bull was excess insurance in view of the fact that title to the automobile had not passed to Mr. Bull and that they were secondarily liable to Mr. Ireland for his damage. Plaintiff-appellant contends that since they were only secondarily liable to Mr. Ireland, they are entitled to reimbursement for the payment of the damage plus necessary expenses in making the settlement, from the defendant-appellee. Defendant contends that the policy issued to Richard C. Bull by the plaintiff was not excess insurance, and the title to the automobile did not have anything to do with the coverage of the policy issued by plaintiff under the facts of this case; that the question presented was not one of primary and secondary insurance but rather one of contributing insurance, with the plaintiff being in the position of a volunteer as to that portion of that claim which it paid in excess of its policy coverage and not entitled to any contribution from other insurers.

The policy of the defendant-appellee states in Condition 15:

“If the insured has other insurance against a loss covered by this policy the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss.”

Condition 18 of the policy issued to Richard C. Bull by the plaintiff - appellant contains the following:

“If the insured has other insurance against a loss covered by this policy the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insurance with respect to temporary substitute automobiles under Insuring Agreement IV or other automobiles under Insuring Agreement V shall be excess insurance under any other valid and collectible insurance available to the insured, either as an insured under a policy applicable with respect to said automobiles or otherwise.”

It was noted that the provisions of the respective policies, were somewhat identical and did leave for the trial court to decide whether or not the policy of insurance issued by plaintiff to Richard C. Bull was excess insurance in view of the fact that title to the automobile had not passed to Mr. Bull. However, the trial court came to the conclusion that title was not important inasmuch as the policy was issued for that specific, automobile which Mr. Bull was driving at the time of the accident, and for that reason the case of Farm Bureau Mutual Automobile Insurance Company v. The Buckeye Union Casualty Company, 147 Oh St 79, set forth the rule of law which should be applied and followed in this case. The Supreme Court, in the last syllabus, had the following to say:

“If the policy of each of several insurers limits its liability to such proportion of a loss as the amount insured by such insurer bears to the total applicable limit of liability of all valid and collectible insurance against such loss, the payment by one insurer of more than its propor - tion of a loss creates no right to contribution from the other insurers ”

That appears to be the situation in this case, and the judgment of the trial court should be affirmed.

BRYANT, PJ, MILLER, J, concur.


author: By MILLER, J.

text:
    AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA, Plaintiff-Appellee, v. STANDARD OIL COMPANY, an Ohio Corporation, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6066.
    Decided April 7, 1959.

      Collier & Brannock, Keith W. Brannock, of Counsel, Columbus, for plaintiff-appellee.
    McAfee, Grossman, Taplin, Hanning, Newcomer & Hazlett, William Tousley Smith, of Counsel, Cleveland, for defendant-appellant.
   OPINION

By MILLER, J.

This is a law appeal from a judgment of the Municipal Court rendered in favor of the plaintiff after overruling the defendant’s demurrer to the amended petition. In response to this ruling, the defendant indicated its desire not to plead further; hence, the final judgment was entered.

The error assigned is that the trial court erred in overruling the demurrer. The action is one for damages and requires a careful examination of the amended petition, as the sufficiency of the same is the matter now before the court. We, therefore, quote the same in full, to wit;

“Now comes the plaintiff and says that it is a corporation organized under the laws of the State of Florida and licensed to transact insurance business in the State of Ohio, and under said license they are in the business of writing automobile fire insurance: that on the 12th day of December, 1957, there was in full force and effect a policy of automobile fire insurance with one Paul Elliott, and that by reason of damage to the insured automobile resulting from the negligence of the defendant, the plaintiff was required to and did pay the said Paul Elliott the sum of Three Hundred and Ten ($310.00) Dollars and as a result thereof they have become subrogated to said extent.
“Defendant is, and at the time herein complained of was, a corporation organized under the laws of Ohio, and on or about the 12th day of December, 1957, owned and operated a certain filling station at Country Club Road and East Main Street, in Franklin County, Ohio.'
“Plaintiff says that on the aforesaid date Paul Elliott drove his automobile to said station for the purpose of having defendant service the radiator which was frozen solid. The defendant on said date then took the car into custody and was engaged in the task of working on said automobile when he instructed Paul Elliott to get in and start the engine. While the engine was in the process of being started it was suddenly engulfed in flames which spread to the remainder of the automobile and burned the entire automobile.
“The materials being used on the engine, the engine, and the premises were under the exclusive control and care of the defendant at the time the fire occurred. The exact cause of the fire being unknown to the plaintiff, but such cause is known to, or should be known by the defendant.
“As a proximate result of the defendant’s negligence in servicing the radiator of Paul Elliott’s car, plaintiff suffered damage, in that, the reasonable value of the automobile immediately before the fire was Three Hundred and Ten ($310.00) Dollars, and its reasonable value immediately thereafter was Sixty ($60.00) Dollars, leaving the plaintiff damaged in an amount of Two Hundred and Fifty ($250.00) Dollars.
“WHEREFORE, the plaintiff prays for judgment against the defendant in the sum of Two Hundred and Fifty ($250.00) Dollars, and for costs.
/s/ Keith W. Brannock
Collier and Brannock
Attorneys for Plaintiff”

It is urged by counsel for the plaintiff that it has set forth a good cause of action requiring the application of the doctrine of res ipsa loquitur. This doctrine has been defined on most numerous occasions by our courts as a rule of evidence which permits the jury, but not the court, in a jury trial to draw an inference of negligence where the instrumentality causing the injury was under the exclusive possession, management and control of the defendant, and the accident occurred under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed. Koktavy v. United Fireworks Mfg. Co., Inc., 160 Oh St 461; Krupar v. Procter & Gamble Co., 160 Oh St 489; Renneckar v. Canton Terminal Restaurant, Inc., 148 Oh St 119; 29 O. Jur., 631, Section 153, and cases cited.

It is to be noted that in passing upon a demurrer, the petition must be liberally construed in favor of the pleader, and also it should be noted that a demurrer searches the record and admits all facts well pleaded. In so doing, we conclude that the petition alleges:

(1) That the instrumentality causing the injury was in the exclusive custody, control and care of the defendant at the time of the accident:

(2) That the plaintiff was damaged in the sum of $250:

(3) That the damage resulted from the negligent acts of the defendant, which was the proximate cause of the plaintiff’s injury.

As stated in Parras v. Standard Oil Company, 160 Oh St 315,

“The mere happening of an accident gives rise to no presumption of negligence * *

However, it does warrant an inference of negligence if the doctrine of res ipsa is applicable. Res ipsa is a rule of evidence which permits the jury, but not the court, in a jury trial to draw an inference of negligence where the instrumentality causing the injury is under the exclusive management and control of one of the parties, and an accident occurs under circumstances where, in the ordinary course of events, it would not occur when ordinary care is observed. It is an evidential inference, not controlling upon the jury, but to be considered by the jury under proper instructions. Res ipsa loquitur means that the facts of the occurrence warrant an inference of negligence, not that they compel such an inference. Loomis v. The Toledo Railways & Light Co., 107 Oh St 161; Glowacki, a Minor, v. The North Western Ohio Ry. & Power Co., 116 Oh St 451; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, and not by the court.

It is said in 29 O. Jur., 636:

“All that the rule of res ipsa loquitur means is that the circumstances involved in or connected with an accident may be of such unusual character as to justify, in the absence of any other evidence bearing upon the subject, the inference that the accident was due to the negligence of the one having the possession or control of the article or thing which caused the injury, because, in the absence of explanation, this is the only fair and reasonable conclusion.”

Now, did the accident occur under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed? Does not the answer to this inquiry depend upon the evidence contained in the record and not the allegations contained in the petition? We are referred to the case of Soltz et al v. Colony Recreation Center, a Partnership, et al, 151 Oh St 503. But this case was decided not upon the pleadings, but upon the record made in the trial of the case.

We note that Judge Taft says at page 512, supra:

“In the instant case, plaintiffs have consistently maintained that the process used by defendants was one which did not represent a threat of serious injury or death. While the process did involve use of an inflammable liquid, defendants have argued and the record discloses that it has been generally used safely and without mishap in this kind of business for years. If so, it would follow that there was no threat of serious personal or even property injury involved in its use. There are no other circumstances in the record to indicate that ordinary care on the part of defendants in the use of this process would necessitate a high degree or great amount of care.”

Here we have no evidence in the record indicating whether or not the accident would have occurred if ordinary care had been observed. In the absence of such evidence, how can it be determined whether or not the acts being done by the defendant required a high degree of care or only ordinary care? This is a factual question and not one to be determined on demurrer.

It is our conclusion that the amended petition states a good cause of action and the trial court did not err in overruling the demurrer and entering final judgment in favor of the plaintiff.

The judgment is affirmed.

BRYANT, PJ, DUFFY, J, concur.


author: By PETREE, PJ.

text:
    CALL, Plaintiff-Appellee, v. CALL, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6035.
    Decided November 5, 1958.
    King & Gross, George W. Gross, of Counsel, Columbus, for plaintiffappellee.
    Tyack & Gertner, George E. Tyack, of Counsel, Columbus, for defendant-appellant.
   OPINION

By PETREE, PJ.

This cause comes on to be heard upon the motion filed on September 30, 1958, of the plaintiff, appellee herein, which reads as follows:

“Now comes the plaintiff-appellee and moves the court for an order dismissing the within-styled appeal.”

The order appealed from by the defendant, appellant herein, was filed in the Common Pleas Court, Division of Domestic Relations, on September 3, 1958. The order of the trial court overruled the motion of the defendant, appellant herein, to change the custody of the minor child of the parties. The entry contained additional orders with reference to visitation rights and certain costs. The appellee contends that the appeal should be dismissed because of the failure of the appellant to properly perfect his appeal by filing an appeal bond as provided for by §3109.07 R. C.

Chapter 3109 R. C., bears the heading “Infants.” Sec. 3109.01 R. C., deals with a definition of the age of majority. Sec. 3109.02 R. C., makes certain exceptions for veterans as to their right to contract. Sec. 3109.03 R. C., deals with the right of parent to custody. Sec. 3109.04 R. C., provides for court decision as to custody as between parents. Sec. 3109.05 R. C., deals with the support of children. Sec. 3109.06 R. C., deals with the certification by any court other than a juvenile court respecting the care, custody, and support of a child under eighteen years of age to a juvenile court for further proceedings; said section makes other provisions relative to custody. The last section of the chapter is §3109.07 R. €., which reads as follows:

“An appeal to a higher court may be had upon the appellant’s giving bond, with one good surety, to the adverse party, approved by the court from whose decree the appeal is taken, in a sum to be determined by it, but not less than accrued costs and a fair estimate of accruing costs. The court before whom such appeal is heard may decree the costs of the proceeding against either party, or divide them in any proportion.”

In Volz v. Volz, 167 Oh St 141, the Supreme Court, in Paragraph 4 of the syllabus, held as follows:

“4. The word ‘appeal’ as used in §8005-7 GC, and §3109.07 R. C., has the meaning specified in subdivision (A) of §2505.01 R. C.”

Sec. 2505.01 (A) R. C., which is referred to, is as follows:

“(A) ‘Appeal’ means all proceedings whereby one court reviews or retries a cause determined by another court, an administrative officer, tribunal, or commission.”

Since appeal as defined by §2505.01 (A) R. C., includes a review of the case as well as a retrial of the case, we feel bound to follow the majority opinion in Volz v. Volz, supra, respecting the manner in which one may appeal under the chapter on infants, which includes §§3109.03 to 3109.07 R. C. Since the Supreme Court in that majority opinion held that §3109.07 R. C., made the giving of a bond a condition of the right of appeal, and the time within which the appeal must be perfected will necessarily be as specified in §2505.07 R. C., we conclude that the appeal herein should be dismissed for the reason that it was not perfected within the time provided for by §2505.07 R. C. While the notice of appeal to a judgment of September 3, 1958, was filed on September 18, 1958, and amended on September 19, 1958, yet no bond was fixed by the trial court as required by law nor filed until September 30, 1958.

On this question of fixing bond, in Gregg v. Mitchell, 99 Oh Ap 350, Headnote 3, we find the following:

“3. Sec. 3109.07 R. C., which provides, inter alia, that ‘an appeal to a higher court may be had upon the appellant’s giving bond * * * approved by the court from whose decree the appeal is taken, in a sum to be determined by it,’ prescribes the only method by which an appeal may be effected from an order fixing the custody of a child.”

While ordinarily the notice of appeal is the act which is jurisdictional, Volz v. Volz, supra, holds otherwise in this particular type of appeal.

The motion of the appellee to dismiss the appeal will be sustained; and in this particular case, although amended to an appeal on law and fact, it will not be retained on questions of law.

Since the decision in Volz v. Volz, supra, is clear and controlling upon this court, the application for oral hearing on this motion will be denied.

Motion sustained.

BRYANT and MILLER, JJ, concur.


author: By BRYANT, J.

text:
    ZELKOFF, d. b. a. TOM THUMB RESTAURANT, Appellant, v. BOWERS, Tax Commr., Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6000.
    Decided March 24, 1959.
    Carlton S. Dargusch, Jack H. Bertsch, Robert T. Fitzsimons, Columbus. for appellants.
    Mark McElroy, Atty. Geni., John M. Tobin, Asst. Atty. Geni., Columbus, for appellee.
   OPINION

By BRYANT, J.

Thomas Zelkoff, appellant herein, for a number of years conducted a restaurant known as Tom Thumb Restaurant, 1628 Neil Avenue, Columbus, Ohio.

Under date of July 23, 1957, Stanley J. Bowers, Tax Commissioner of Ohio, appellee herein, made an assessment against Zelkoff for the period from January 1, 1953 to January 31, 1957, for sales tax allegedly due and unpaid for this period in the amount of $1,893.60. To this was added a penalty of fifteen percent or $284.04 making a total of $2,177.64.

Application was made to the Tax Commissioner for a reassessment of the amounts due, which on January 24, 1958, resulted in an order reaffirming the total assessment originally made in the amount of $1,893.60 with the fifteen percent penalty entirely suspended upon condition that the total amount be paid within thirty.days, otherwise the full penalty to be added.

However, further consideration was given to the matter and the journal entry of January 24, 1958, was vacated by the order of February 20, 1958, in which the assessment was reduced to $1,251.42 with the penalty suspended upon condition of the payment of the full amount within thirty days, otherwise a penalty of $187.71 was added bringing the total amount due to $1,439.13.

The final order of the Tax Commissioner was appealed to the Board of Tax Appeals, where on July 2, 1958, the said Board affirmed, without change, the final order of the Tax Commissioner.

With reference to the pertinent facts, we quote the following from the second page of the opinion by the Board of Tax Appeals:

“From the evidence it appears that the appellant owned and operated the Tom Thumb Restaurant located at 1628 Neil Avenue, Columbus, Ohio, from sometime in 1941 until February 1, 1957. Food served on the premises was of two types, i. e., sold to be consumed on the premises and sold to be carried out. The appellant testified that the Tax Commissioner test checked this business in either 1948 or 1949, and that no assessments were made subsequent to that time until the one in issue. The evidence shows that after the business was sold on February 1, 1957, an examiner from the Tax Commissioner’s office made an audit of the successor’s cash register tapes for a two-week period running from February 16 to February 28, 1957. These tapes indicated carry-out sales, sales under forty-one cents, and taxable sales. For the audit period here in issue the sales invoice slips and register tapes had been destroyed by the appellant. There was also testimony to the effect that an audit was made on another Tom Thumb Restaurant owned by the appellant located at 23 North Third Street, Columbus, Ohio, at approximately this same time.”

In its notice of appeal to this court from the final order of the Board of Tax Appeals, Zelkoff makes five assibnments of error as follows:

“1. The Board of Tax Appeals erred in affirming an assessment based upon a test check run against a successor vendor’s business.
“2. The Board of Tax Appeals erred in holding that a vendor who does not have records of his exempt sales, may be assessed on the basis of a test check run against a successor vendor’s business.
“3. The Board of Tax Appeals erred in affirming the assessment even though the tax commissioner did not consider all evidence relating to the vendor’s exempt sales.
“4. The Board of Tax Appeals erred in affirming the assessment in the face of substantial evidence rebutting its correctness and validity.
“5. The Board of Tax Appeals erred in other respects, both in law and fact, apparent from the transcript, the record and the decision.”

It is to be noted that in the proceedings before the Tax Commissioner, subpoenas were issued to Zelkoff on April 8, 1957, and again on May 3, 1957, ordering him to produce “all books, accounts, papers, and records, pertinent to and concerning the operation of any and all business in which he was engaged for the period of January 1, 1953 to January 31, 1957, both inclusive, * * It further appears that Zelkoff represented to the examiners of the Tax Department that there were no records as to tax-exempt sales made from his place of business at 1628 Neil Avenue, Columbus, Ohio. In the file there appears the following sworn statement signed by Zelkoff:

“I, Thomas Zelkoff, who resides at 2115 Waltham Ave., Columbus, Ohio, in answer to the subpoena served on me for all records pertaining to the operation of my business at 1628 Neil Ave. from 1-1-53 to 1-31-57, hereby certify that there are no records of carry-out sales or sales under 41c for said period.
“Sworn to and subscribed before me this 22nd day of May, 1957.”

In a report made by Examiner Charles B. Burtch, there appears the following statement:

“Accountant was questioned as to how he arrived at taxable sales He stated that he had been using the same percentage for several years and that they were furnished to him by the vendor and that they had been established by a test check run by our department. The vendor was then called and asked to produce any records of taxable sales. Vendor stated that he had none and also stated that the percentage of exempt sales being used had been taken from a test check made by our examiners. A subpoena was then issued to have vendor produce all records. Examiner then went to successor to see what records of taxable sales could be obtained. This disclosed that the successor, George Roberts, had managed both of the Tom Thumb Restaurants for the vendor for a period of approximately ten years. Immediately after he acquired this business he put in a new cash register and had a complete record of taxable sales. Two weeks of tapes were taken and a check was made as shown on Sheet No. 4 and is the basis for percentage of taxable sales used in this audit. This check shows 2.9% carryout and 21.9% of gross under 41c. Vendor was using 15% carryout and 28.3% of gross under 41c.
“Vendor in answer to our subpoena appeared in our office on May 22 and produced guest checks from his restaurant at 23 N. 3rd St. Vendor requested that we use these guest checks as a method of arriving at taxable sales. Vendor claimed that our department had made a check on both restaurants and had allowed him to use the same percentages on both restaurants and therefor the guest checks from 23 N. 3rd. would be a true indication of taxable sales for this audit. Examiner refused to use these guest checks. Vendor also claimed that the successor’s operation was much different and that the check we are using for a basis of establishing taxable sales would not be a true picture of his operations. Vendor claimed that his successor had raised his prices and also added meals to his menu. Vendor claimed that while he operated he had nothing but a sandwich shop. The Examiner checked this with the successor and he states that he has raised no prices and that during the period of years that he managed this restaurant they had always served meals, such as hamburger steak plate, tenderloin steak plate and a pork chop dinner. His only addition to the menu being a Swiss Steak Dinner and Spaghetti Dinner. The Examiner knows this to be a true situation as I have eaten in this restaurant many times. Successor was also asked if he had noticed any appreciable difference in the carryout trade. Successor stated that while he had no proof of carryout sales before he took over as owner he could notice no big change in these sales.
“Vendor admitted that his check was at least 8 or 9 years old and due to price increases during this time Examiner feels that 21.9% is a fair percentage and is allowing 22%. Vendor was very emphatic that his carryout could not be as low as 2.9% and Examiner has adjusted this and allowed 5%. This Examiner feels that 5% carryout and 22% under 41c are in line with this business in this location and deficiency is based on these percentages.”

The several errors assigned by Zelkoff principally are directed to the evidence considered by the Tax Commissioner and by the Board of Tax Appeals. The first two assignments of error and much of the time in the argument of the case, complain about the use of a test check run against a successor vendor’s business. The third and fourth assignments of error complain of alleged failure to consider all the evidence relating to vendor’s exempted sales or failure to consider testimony allegedly rebutting the assessment, while the fifth assignment is general in nature.

The Board of Tax Appeals in its opinion relies upon the provisions of law requiring vendors to keep “complete and accurate records of sales of taxable property,” See §5739.11 R. C., which reads as follows:

“Each vendor shall keep complete and accurate records of sales of taxable property, together with a record of the tax collected thereon, which shall be the amount due under §§5739.01 to 5739.31 inclusive. R. C., and shall keep all invoices, bills of lading, retained parts of canceled prepaid tax receipts, and such other pertinent documents, in such form as the tax commissioner requires by regulation. Such records and other documents shall be open during business hours to the inspection of the commissioner, and shall be preserved for a period of four years, unless the commissioner shall, in writing, consent to their destruction within that period, or by order require that they be kept longer.”

Also relied upon is Rule No. 71 of the Tax Commissioner of Ohio which reads as follows:

“Vendors shall keep such complete and accurate records as will readily disclose all of the information required on the Sales Tax Return. In addition the vendor shall keep all invoices supporting claims for exemption, where such exemption is claimed by virtue of the nature of the item sold: he shall keep all sales invoices, cash register tapes, day books, bank deposit slips and such other records as may verify the gross sales figure; he shall keep all certificates of exemption in whatsoever form drawn to support claims for exemptions where such exemptions are claimed by virtue of the occupation or character of the purchaser: and he shall keep copies of the vendor’s purchase orders which are tendered as a receipt upon the purchase of prepaid tax receipts from the County Treasurer or agent of the Treasurer of State, from which such receipts are purchased.”

It would appear that it was the practice of Zelkoff and his employees to make out individual guest slips for each sale, that these slips numbered about one thousand slips per day or seven thousand slips per week. (Record, p. 10, 11.3 to 8.J

It further was clear that Zelkoff did not have any of these slips available at the time of the audit. At page eight of the record, Zelkofi testified as follows:

“Q. Did you have any sales slips available at the time of the assessment from — that is, sales slips from the restaurant under review?
“A. No, sir.
“Q. Why didn’t you have any sales slips available, Mr. Zelkoff?
“A. Well, in the first place, we didn’t have any room to keep them. You know, those things accumulate pretty fast.”

It should be pointed out that the Board of Tax Appeals agreed with counsel for Zelkoff in objecting to the test check of the successor’s business. (See B. T. A. opinion page 5, paragraph 2.)

It is apparent that Zelkoff relied upon a test check claimed to have been made in 1948 or 1949 in which the percentage of carry-out business and the percentage of sales in amounts below forty-one cents were established. (Record, p. 12.)

The sale of the business in this case took place on or about February 1. 1957, and the audit by the State Tax Department was begun within two weeks of that date. While it is true that storage of a four-year supply of sales checks would require considerable space, it appears unusual that not even six months or even one week supply of sales slips were available. Whatever the reasons may be, the fact is that a record of taxable sales was required to be kept and was not furnished even though several subpoenas were issued for it. Under such circumstances where the gross receipts arising from sales are established, all sales of tangible personal property are presumed to be taxable. Here the amount of gross receipts was not in dispute.

The Board of Tax Appeals relied upon the case of Obert et al, v. Evatt, Tax Commr. et al, 144 Oh St 492, decided February 28, 1945, holding that where a vendor claims the allowance of tax-exempt sales is insufficient, the burden of proof to support such claim is on the vendor This case also stands for the proposition that where the amount of gross receipts from sales is known, the burden of proof is on the vendor to show what part arises from tax-exempt sales. In the Obert case, supra, the second and third branches of the syllabus are as follows:

“2. Where a vendor liable under §5546-12a GC, claims that the Tax Commissioner in making an assessment by virtue of §5546-9a GC (as amended 116 Ohio Laws, pt. 2, 329, 117 Ohio Laws, 763, and 119 Ohio Laws, 45), has made an insufficient allowance for tax-exempt sales, the burden of proof rests upon such vendor.
“3. Where the amount of vendor’s gross receipts from sales are known, the burden rests upon such vendor to show what part, if any. of such receipts resulted from sales of tax-exempt merchandise.”

To the same effect is the holding in Manton, dba Civic Center Grill & Bar v. Glander, Tax Commr., 150 Oh St 198, in which the Obert case, supra, was cited with approval as was also the case of Edelstein v. Glander, Tax Commr., 148 Oh St 19.

The Supreme Court of Ohio, in a long line of decisions, has consistently held that every sale or use of tangible personal property in Ohio is presumed to be taxable and the burden of proof is on the vendor ,o establish affirmatively his right to exemption. See Merchants Cold Storage Co. v. Glander, Tax Commr., 150 Oh St 524; National Tube Co. v. Glander, Tax Commr. et al, 157 Oh St 407; The Standard Oil Co. v. Peck, Tax Commr., 163 Oh St 63, and Union Carbide & Carbon Corp. v. Bowers, Tax Commr. et al, 166 Oh St 419.

We agree with the holding of the Board of Tax Appeals that it was not proper to use a test check of the business of another in computing and determining the various exempt percentages. The fact remains that under the statutes as presentely in force and under the many decisions of the Ohio Supreme Court, the entire receipts arising from sales of tangible personal property could have been held to be taxable. Both the Tax Commissioner and the Board of Tax Appeals gave consideration to the testimony of Zeikoff and we do not believe that we would be justified in holding as a matter of law that their decision is contrary to law or the weight of the evidence. Zelkoff’s own testimony in effect is that he relied during the audit period of January 1, 1953 through January 31, 1957, upon a test check alleged to have been made in 1948 or 1949. The Tax Commissioner and the Board of Tax Appeals held this was insufficient and we believe they were correct in so holding.

For the reasons above set forth, the five assignments of errors, in our opinion, are not well taken and must be therefore overruled, and the judgment of the Board of Tax Appeals affirming the final assessment made by the Tax Commissioner is affirmed and the cause remanded.

MILLER and DUFFY, JJ, concur.