text:
    STATE, ex rel. MAXWELL, Relator, v. INDUSTRIAL COMMISSION, Respondent.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5976.
    Decided March 10, 1959.

      Schwenker, Teaford, Brothers & Solsberry, L. Bernell Solsberry, of Counsel, Columbus, for relator.
    Mark McElroy, Atty. Geni., John R. Barrett, Asst. Atty. Geni., Columbus, for respondent.
   OPINION

By MILLER, J.

This is an original action in mandamus wherein the relator is seeking an order commanding the Industrial Commission of Ohio to take and accept jurisdiction of relator’s claim for benefits under the silicosis and occupational disease provisions of the Workmen’s Compensation Law of the State of Ohio, and for such other relief as may be proper and necessary in protecting relator’s rights herein.

The case is submitted to this court upon the pleadings and the official file of the Industrial Commission. From these it appears that the relator, Allen Maxwell, became totally disabled on or about June 26, 1952, because of the disease of silicosis which arose out of his employment as a coal miner; that his employer was amenable to the Workmen’s Compensation Act, and a claim was filed with the Industrial Commission on June 24, 1955. The claim was rejected by the Administrator of the Bureau for the reason that the relator’s application, on its face, showed that he became disabled by reason of silicosis in 1952 and, upon application to the Commission, the action of the Administrator and Board of Review was affirmed on February 26, 1958. Now the sole question for our determination is, whether the application was filed within the time allowed for such filing under §4123.68 R. C. The effective part of this section provides that all claims for silicosis “are forever barred unless application therefor is made to the commission within one year after total disability began or within such longer period as does not exceed six months after diagnosis of silicosis by a licensed physician.” It is clear that more than one year elapsed after the disability arose before the claim was filed, leaving only the question whether the claim was filed within the specified six months after diagnosis by a licensed physician.

It appears that the rejection was grounded upon the following information contained in the “Attending physician’s Report,” which was made a part of the relator’s application. It contains these statements by a licensed physician, Dr. Wetterauer:

“Date of first treatment by you — 3-21-49.
“Date of diagnosis by you----- 1952.
“What is the diagnosis - - Silicosis with emphysema and cavitory changes in left upper lobe, susp tbc.”

The following affidavits of D. E. Wetterauer, M. D. and R. A. Nebinger, M. D. are contained in the Industrial Commission file. We quote them in full, as they appear to be most'pertinent to the issue presented:

“AFFIDAVIT
“STATE OF OHIO,
MUSKINGUM COUNTY, ss:
“I, D. E. Wetterauer, M. D„ being cautioned and sworn, upon my oath, depose and say that I first examined Allen Maxwell, Rt. No. 2, Roseville, Ohio, on March 21, 1949, in the Muskingum County Health Center, Zanesville, Ohio, for retake. X-rays as a result of a mass survey. I next saw him on January 22, 1952, when he came in for X-rays. On February 4, 1952, I saw him again for stereoscopic X-rays. He was back again on July 16, 1952, as a result of a mass survey. On April 11, 1955, I examined him again by X-ray and laboratory study. On April 25, 1955, I rechecked him again as I felt further search and diagnosis was necessary as I was searching for tubercli bacillus as the X-rays were showing questionable cavitation and my stereoscopic examination and X-rays also revealed the possibility of effects of exposure to various dusts. I was then trying to establish if there was secondary infection of tuberculosis and this was the first time that the possibility of residuals of dust exposure was made known to the patient.
“I further state that all of my diagnosis at the Zanesville Health Center were referred to R. A. Nebinger, M. D., Roseville, Ohio (Maxwell’s family physician), and some time on or after May 9, 1955, was the first time that Allen Maxwell was told his condition might be complicated by residuals of dust exposure, whereupon he was immediately back to see me after May 9, 1955, requesting me to fill out the medical part of an occupational disease application for Workmen’s Compensation.
/s/ D. E. Wetterauer, M. D.”
“AFFIDAVIT
“STATE OF OHIO
MUSKINGUM COUNTY, ss:
“I, R. A. Nebinger, M. D., being first duly cautioned upon my oath, say that I have been the family physician for Allen Maxwell during the ten years last past.
“Sometime in 1949, or thereafter, Allen Maxwell complained to me of the fact that he was short of wind and might have some chest condition. I never took any x-rays, however, between that time and April 25, 1955,1 received several reports from the Muskingum County Tuberculosis Clinic, D. E. Wetterauer, M. D. in charge, stating this patient had pathology in the chest, and during this time that they were proceeding at the clinic to verify their diagnosis of tuberculosis, taking many x-rays and sputum test.
“Sometime in late April or early May in 1955, I received the first report from the clinic indicating that the patient had silicosis and it was at this time that the patient first learned that his condition had been diagnosed as such. I further state, upon my oath, that I relied upon the reports of Doctor Wetterauer, since the only means of diagnosis of silicosis is through x-rays, which were not in my possession, and I never saw any of the x-rays of Maxwell’s chest, therefore, I could not have told Maxwell his ailment prior to April, 1955.
/s/ R. A. Nebinger, M. D.”

Now, §4123.68 R. C., is a remedial statute which grants to a claimant a certain period of time within which a claim for silicosis may be filed and should be liberally construed. In Haisman v. Crismar, 18 Abs 180, the court held that the statute authorizing a new action within one year, where the plaintiff has commenced his action before running of limitations and has failed otherwise than on the merits, must be liberally construed. See also Hershner v. Deibig, 64 Oh Ap 328, and Reid v. Doubleday, 109 F. Supp., 354.

In construing the provisions of the Workmen’s Compensation Act, our courts have uniformly held that it should be liberally construed in favor of the employee in order to carry out the purpose of its enactment. Bowling v. Industrial Commission, 145 Oh St 23; Covert v. Industrial Commission, 139 Oh St 401, Industrial Commission v. Weigandt, 102 Oh St 1; Nelson v. Industrial Commission. 150 Oh St 1; and Eagle v. Industrial Commission, 146 Oh St 1. In giving a liberal construction to the statute involved herein, we think it is also incumbent upon the court to give a liberal interpretation to the medical affidavits and other evidence submitted on behalf of the relator. From these, we find that the first positive diagnosis of silicosis was made by Dr. Wetterauer on April 25, 1955, at which time the diagnosis was made known for the first time to the relator’s attending physician. The claim was filed on June 24, 1955, which was well within the six-month period after the physician’s diagnosis of silicosis and, in refusing to accept jurisdiction of the relator’s claim, the Commission abused its discretion.

The case of State, ex rel. Willis v. Industrial Commission, 78 Abs 354, decided by this court and cited by the respondent, is not on all fours with the case at bar. The cited case involved a different section of the Revised Code, to wit, §4123.85 R. C., which limits the time for filing claims for certain occupational diseases to six months after the disability due to the disease began. It was held in that case that the failure to file a claim within the six months, because of a lack of knowledge of a compensable disease, did not prevent the running of the limitation period. But in our case, under §4123.68 R. C., the limitation period does not begin to run until a diagnosis of silicosis has been made by a physician. Lack of knowledge in this instance should prevent the running of the statute until the diagnosis is completed and made known to the claimant or his representative.

The writ will be allowed as prayed for in the amended petition.

BRYANT, PJ, DUFFY, J, concur.


source: Caselaw Access Project

author: By TROOP, J.

license: Public Domain

text:
    CRABBE et, Plaintiffs, v. FREEMAN, Defendant.
    Municipal Court, Columbus.
    No. 73248.
    Decided April 29, 1959.

      Justin L. Sillman, Charles E. Brown, Columbus, for plaintiffs.
    Elliott, Hilliard & Martin, Columbus, for defendant.
   OPINION

By TROOP, J.

This cause is on to be heard upon the merits having been submitted upon the motion of the plaintiff for judgment made at the close of the evidence.

The court finds as basic matters of fact that the defendant sold a 1955 Pontiac four door station wagon to the plaintiff on or about June 12, 1958, for the sum of $1425.00, which automobile had been used by the defendant in connection with his business and .to provide personal transportation for the defendant and his wife. Further, the court finds that the speedometer in the 1955 Pontiac registered approximately 22,000 miles at the time of sale and that the actual mileage that the car had been driven was in excess of 50,000 miles; the speedometer mileage having been inadvertently reduced by a filling station mechanic who reported that fact to the owner defendant, who, therefore, knew that the speedometer reading had been changed and the defendant owner knew that the change resulted in the registered mileage being reduced from in excess of 50,000 miles to approximately 22,000 miles. The court further finds that the defendant did not correct the speedometer reading after having been advised of the reduction and acquiesced in the arrangement Mrs. Freeman had made, with Mr. Ross of Marty’s Pontiac, for the destruction of one set of service records for the car which delayed plaintiff in his effort to ascertain the actual mileage record of the car. Further, the court finds that the plaintiff relied upon the misrepresentation of mileage as 22,000, a material fact, to his damage, the car being of the value of $1150.00 at the time of sale, the value being less because the actual mileage was in excess of 50,000 miles and not 22,000 miles.

The particular question to be resolved in this case has never been passed upon by the courts of this state, at least this court has been unable to discover an Ohio case in which the court has considered whether the turning back of the speedometer on an automobile, in anticipation of offering it for sale, amounts to actionable fraud. The courts of a few other jurisdictions have considered the question so we can look to them for some basic concepts and rules, but, in addition, we will review some of our own concepts and look to the possible application of the rules followed in this jurisdiction to the instant case.

Reiteration of accepted fundamentals may seem unnecessary, but since Ohio courts have not passed upon our particular problem a review of announced principles must provide the basis for decision. 24 O. Jur. 2d, page 634, p. 20, provides a summary of the elements of actionable fraud. Without quoting exactly, the elements are, briefly;

1. A false representation; actual or implied, or the concealment of a matter of fact, material to the transaction; made falsely.

2. Knowledge of the falsity — or statements made with such utter disregard and recklessness that knowledge is inferred.

3. Intent to mislead another into relying on the representation.

4. Reliance — with a right to rely.

5. Injury as a consequence of that reliance. All of these elements must be present if actionable fraud is to be found. The absence of one element is fatal to recovery.

A false representation orally made presents problems enough, but without that oral pronouncement we are presented with much more difficult legal questions. The text writers do offer some propositions pointed in that direction, however, and we find some of them set out in 24 O. Jur. 2d. At page 676, p. 74, we find;

“One of the fundamental tenets of the Anglo-American law of fraud is that fraud may be committed by a suppression of the truth * * * as well as by the suggestion of falsehood * * *.” and—
“A false impression may be produced by the concealment or nondisclosure of facts which there is a duty under the circumstances to disclose. Allowing a party to proceed upon an erroneous belief contributed to by one’s acts is active concealment, equivalent to misrepresentation.”

A rule concerning silence as fraud is found at page 678, p. 76;

“Though generally mere silence does not amount to fraud, there are times and occasions when it becomes the duty of a person to speak in order that the party he is dealing with may be placed on an equal footing with him, when a failure to state a fact is equivalent to a fraudulent concealment and amounts to fraud equally with an affirmative falsehood.”

and at page 679 a refinement or limitation upon the general rule;

“* * * those who do not look to him for information and expect no disclosure from him cannot properly complain of his silence or successfully contend that he has suppressed the truth.”

■ 23 Am. Jur. sets out some rules more particularly respecting silence and concealment. At pages 852 and 853, p. 77, we find;

“there must be something more than mere silence, or a mere failure to disclose known facts.”
“the silence must, under the conditions existing, amount to fraud, because it amounts to an affirmation that a state of things exists which does not, and the uninformed party is deprived to the same extent that he would have been by positive assertion.”

Continuing in p. 77, the text writers discuss the term an act of concealment — silence amounting to concealment as follows;

“The term generally infers also that the person is in some way called to make a disclosure.”
“in the sense opposed to mere nonactionable silence may consist in withhholding information asked for or in making use of some device to mislead, thus involving act and intention.”

The foregoing proposition is taken from Syllabus 3 of Kohl v. Lindley, 39 Ill. 195, a case involving the sale of hay in ricks in a field. The question before the court concerned possible fraud or warranty by the seller. In discussing the rule of law to be applied, the court quotes from 1 Parsons on Contracts, 461, as follows:

“The common law does not oblige a seller to disclose all that he knows which lessens the value of the property he would sell. He may be silent, leaving the purchaser to inquire and examine for himself or require a warranty. He may be silent and be safe; but, if he be more than silent, if by acts, and certainly if by words, he leads the buyer astray, inducing him to suppose that he buys with a warranty, or otherwise preventing his examination or inquiry, this becomes a fraud, of which the law will take cognizance.”

The court had no difficulty in finding no fraud present since the buyer could examine the hay and by a reasonable exercise of his own senses could determine the quality of the hay. The buyer could tell by the color and smell of the hay whether or not it was damaged.

23 Am. Jur., page 857, p. 80, moves in a somewhat different direction. It discusses the situation where one party has superior knowledge not within the fair and reasonable reach of the other party and which he could not by reasonable diligence discover. The text goes on to say that some courts have gone so far as to hold that each party is bound in every case to communicate facts if he knows the other to be ignorant of them and if those facts are not—

1. Open and naked,

2. Equally within reach of observation of both parties,

3. Open to common observation,

4. Apparent on inspection,

5. Not discoverable at first view,

6. Not visible to the eye.

That the mileage traveled by a used car, offered for sale on a lot or at a private sale, is a material fact, it seems to this court, to be indisputable. It would seem that any purchaser of a used car will want to know the mileage. The testimony of Mr. Richard K. Beem is to the effect that many, if not most, speedometers are turned back on used cars before being offered for sale on the used car market. He asserts that the buying public expects them to be turned back, but admits that the speedometer record does influence the sale, if only to quiet the mind of the purchaser. If the mileage recorded on the speedometer is not an important and material fact that influences the purchaser, why then, do used car dealers spend the time and money required to turn them back. This court is convinced that no purchaser in full possession of all of his faculties will not consider mileage traveled in deciding which used car he will buy; if it were not so, speedometers would never be turned back.

That the rule of caveat emptor is approved and established in Ohio goes without saying. It is equally well established that a buyer may always protect his position by exacting an express warranty. Other rules have been recognized by our courts and applied to particular sitúations over the years. A classic case, decided in 1860, makes our point. In Hadley and Hawkins v. The Clinton County Importing Company, 13 Oh St 502, the court holds;

“1. In executed contracts of sale of personal property, the rule of the common law is, caveat emptor, and there is no implied warranty as to the quality of the article sold. But fraud in the vendor constitutes an exception to the rule.”

The court was concerned about the sale of a cow purchased to improve the herd of the purchaser. The cow had lost a calf, dead several weeks prior to delivery, which fact the sellers knew and did not disclose. In the decision of the court, which is replete with procedural tangles and questions as to proper charges, some propositions emerge such as, “it was an important inquiry whether the means of knowledge on the subject was equally accessible to both parties.” (Page 508.) And near the bottom of the page the court says, “In other words, good sense and the law will more readily authorize the finding that there was an obligation to disclose a latent, intrinsic defect in the article sold, more peculiarly in the knowledge of the vendor, than extrinsic facts affecting its value, as to which the means of knowledge was equally accessible to both parties.”

The important question, says the court in this early case, is whether under the particular circumstances, the omission to disclose is a fraudulent act, giving a right of action for deceit.

Caveat emptor is still the rule in the automobile age and under the Uniform Sales Act. The case of Regula v. Gerber, 47 Abs 196, is a Common Pleas Court case, from which no appeal was taken, and announces interesting rules. Syllabus 3 reads:

“Where one buys a secondhand automobile ‘as is’ without warranty, he is put upon notice that he is buying such automobile at his own risk, and he should acquaint himself with the whole situation, and he is not entitled to rescission except for fraud, imposition, or other like reasons.”

The court found, however, that “the defect” in the connecting rod bearings was in existence at the time of the sale and that this defect only became apparent after the heavy motor oil in the crankcase became warm. Hence, the rule set out in Syllabus 4;

“Where a defect in an automobile is concealed by the use of heavy motor oil in the crankcase of an automobile, and the purchaser of said automobile has no notice of such defect and is misled as to such defect either by fraud, misrepresentation, deceit or imposition, a warranty is implied, and such purchaser is entitled to rescission of the contract of sale if timely made.”'

It should be noted that the court at page 201 quotes from 46 Am. Jur., page 284, p. 65, concerning the principle that fraud cannot be predicated upon mere silence or failure to disclose known facts when there is no duty to speak. Significantly the court quotes further that the rule “does not justify resort to active deceit or fraud, and hence does not apply when one in addition to nondisclosure of material facts uses any artifice, wile, or deceptive conduct designed to throw the other party off his guard and lull him into a false security.”

And now to examine our particular set of facts. The defendant knew the actual mileage to be better than 50,000 miles. He knew also that the mechanic had turned the speedometer back to read 22,000 miles. The lubrication stickers had been removed from the car when it had been waxed and polished, so the defendant testified. Service records were destroyed on order of Mrs. Freeman, with at least acquiescence by the defendant. The plaintiff and Mr. C. C. Crabbe testified that the defendant stated, in response to plaintiff’s inquiry, that the speedometer registered actual miles, which fact is flatly denied by defendant.

Assume nothing were said regarding mileage as defendant insists. As difficult as it is for the court to believe that a prospective used car buyer will make no inquiry about miles traveled, we will make that assumption. We then have a case of nondisclosure and an Ohio court says the test of fraud in case of nondisclosure of a material fact is whether the defendant “uses any artifice, wile, or deceptive conduct designed to throw the other party off his guard and lull him into a false security.”

This court has already said that the mileage traveled by an automobile is a material fact when that car is offered for sale as a used automobile. The speedometer on this car could be read by a prospective purchaser and was read by this plaintiff, if nothing were said concerning mileage. Such reduced mileage register was a “wile” or “artifice,” particularly when coupled with the supplemental efforts to keep the record of actual mileage completely obscured. The fact of knowingly permitting the speedometer to read 22,000 miles is an “artifice” designed to throw the prospective purchaser off his guard and lull him into a false sense of security, that is, making him think he is purchasing a car subject to less wear and tear and in better condition than it in fact really is, having been driven more than 50,000 miles.

The elements of actionable fraud outlined above, and approved and followed by courts in Ohio, are present in the instant case. The only element about which there is any question is the matter of intent. Talcott v. Henderson, 31 Oh St 162, suggests that knowledge connected with the concealment of a fact is fraud. It further suggests that the simple failure to disclose a fact is not equivalent to concealment. The question is whether there was intent to injure and the court said that the presence of intent is purely a matter for the trier of the facts to determine. That duty this court will assume.

In this case, the defendant knew and did not disclose. It is unreasonable to expect the speedometer to be restored to accurate mileage, but a simple expedient would suffice. If there were no intention to mislead or injure on the part of the seller, he need only say to the prospective purchaser that the speedometer reading is not accurate and report the actual mileage that the register should reveal. The defendant did not report the inaccuracy to the plaintiff, in fact he did more than not report, and this court finds as a matter of fact that the defendant intended the misrepresentation to mislead the plaintiff.

Without further examination, it would appear that the concept of fraud approved in Ohio and applied to our case leads to the conclusion that the defendant’s failure to disclose provides the basis upon which to predicate an action for fraud. Still further, using the tests suggested in 23 Am. Jur., page 857, p. 80, previously outlined, it appears to this court that there is a situation where one party has superior knowledge not within the fair and reasonable reach of the other and which he could not by reasonable diligence discover. This court feels that the defendant was bound to communicate. The fact concealed, greater mileage traveled by more than twice that shown by the speedometer record, was—

1. Not a fact open and naked,

2. It was not ascertainable to each, being equally within the observation of both,

3. It was not a fact open to common observation,

4. Not apparent upon inspection, and

5. By no means visible to the eye and discoverable at first view.

Several other jurisdictions have been taken a clear and unequivocal position on the speedonieter situations. Those decisions are available to reinforce by particular application of principles what this court believes to be the correct position under the general propositions adopted in Ohio. Reference is to only one case, Jones v. West Side Buick Company, 231 Mo. A. 187. While in this case the defendant is a dealer, we believe the rules announced to be wholesome and salutary and it should be applied to the sale of used cars generally. The following syllabi are statements of the rules; they read—

“1. The action on part of Automobile Sales Agency in turning back speedometer before offering said car for sale, held to be fraudulent.”
“3. Where prospective customer looks at a speedometer reading, he is rightfully entitled to rely upon the reading and to believe the car has gone the number of miles shown by speedometer.”
“4. Where speedometer on an automobile had been turned back to make it appear that car had only been driven the number of miles which the speedometer was made to indicate, held that no oral or written representation was necessary to show that such act was calculated to mislead another and thereby allow fraud-feasor to obtain an undue advantage.”
“5. A representation with reference to the mileage of an automobile held to be a representation with referenc to a material fact, and it is none the less a representation if made through the medium of turning back the speedometer than if made by mouth or written guarantee.”

Saberton v. Greenwald, 146 Oh St 414, is the authority for the assessment of punitive damages in fraud cases. Syllabus 2 reads;

“In an action to recover damages for a tort which involves the ingredients of fraud, malice or insult, a jury may go beyond the rule of mere compensation to the party aggrieved and award exemplary or punitive damages.”

In conclusion, the court believes the nondisclosure of the material fact of the true mileage on the automobile offered for sale as a used car, intention being clear from other accompanying acts, constituted actionable fraud under rules approved and followed in Ohio. Decisions in other jurisdictions appear to be sound in view of the widespread use of automobiles and the sale of them as used vehicles to those who are in no position to ascertain their quality and who are entitled to rely upon the representations of those who sell, either dealers or individual owners, and a speedometer reading exhibited to a prospective buyer is a representation of a material fact.

Motion of plaintiff for judgment is sustained and judgment is for the plaintiff for damages in the amount of $275.00, the difference in value arising as a result of the difference in mileage shown and actual, and for punitive damages in the sum of $1000.00

Judgment for the plaintiffs for $1275.00 and costs.


author: Per CURIAM:

text:
    CENTRAL NATIONAL BANK OF CLEVELAND, a Corporation, as Executor of the Estate of Edward E. Hoffman, deceased, Plaintiff-Appellant, v. SOCIETY FOR SAVINGS IN THE CITY OF CLEVELAND, a Corporation, and CARPENTER, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24736.
    Decided April 23, 1959.
    Fleck & Fleck, for plaintiff-appellant.
    Ralph Vince, for defendant-appellee, Laura Carpenter.
    Harry B. Olds, Jr., E. C. Phillips, for defendant-appellee, Society for Savings in the City of Cleveland.
   OPINION

Per CURIAM:

This appeal comes to this court on questions of law from a judgment of the Probate Court of this county rendered in favor of defendantappellee, Laura Carpenter, on her cross-petition. Plaintiff-appellant filed a petition for declaratory judgment as executor of the estate of Edward F. Hoffman, deceased, against the defendants herein, praying for an order of the court directing that the funds on deposit in the Society for Savings in the City of Cleveland in the name of the decedent be an item of personalty which should rightfully be part of the assets of decedent’s estate. Defendant, Laura Carpenter, filed an answer and cross-petition wherein she averred that Edward F. Hoffman personally delivered to her the savings passbook in question and that the delivery was made for the sole intent and purpose of making an immediate gift to her of the funds in said account represented by passbook account No. 348593, with the defendant, Society for Savings in the City of Cleveland, and that by reason thereof said Laura Carpenter became the owner of said bank account and immediately entitled to the possession thereof.

Upon trial, the Probate Judge found “by clear and convincing proof” that defendant cross-petitioner, Laura Carpenter, was the donee of a valid gift inter vivos from the decedent, accompanied by the delivery of the savings passbook in question, with words and actions clearly showing the intent of the donor.

Upon a careful examination of the bill of exceptions, it is our judgment that there is abundant evidence supporting the finding of the trial court by the requisite degree of proof.

Plaintiff-appellant argues that because the defendant, Laura Carpenter, did not have an order in writing in accordance with the rules of the defendant bank that the gift in praesenti was thereby defective. With this contention we do not agree. The rules and regulations in question are such as are adopted by the bank for its own protection and cannot invalidate the gift so long as the essential elements of the gift are evidenced as between the donor and donee.

We think that the rule in the case of Polley v. Hicks, 58 Oh St 218, 50 N. E. 809, is applicable to the facts of the case. Syllabus one reads as follows:

“1. A delivery to a donee, of a deposit book issued by a savings bank containing entries of deposits to the credit of the donor, with the intention to give the donee the deposits represented by the book, and accompanied with appropriate words of gift, is a sufficient delivery to constitute a valid gift of such deposits, without assignment or transfer in writing.” (Emphasis ours.)

To the same effect, see also Bolles v. Trust Co., 132 Oh St 21, 4 N. E. 2d 917.

These cases are in accord with the great weight of authority as set forth in Brown on Personal Property, Second Edition, page 191, as follows:

“The overwhelming weight of authority accordingly is that a manual delivery with the requisite donative intent, of certificates of stock, savings account passbooks, and life insurance policies constitute good gifts of the shares, of the savings account, and of the insurance contract.” (Emphasis ours.)

For the foregoing reasons, the judgment of the Probate Court is affirmed.

HURD, PJ, KOVACHY and SKEEL, JJ, concur.


author: By THE COURT.

text:
    CHAMBERS, Plaintiff-Appellee, v. ROBERT, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5918.
    Decided November 25, 1958.
    Reeves & Herron, Robert L. Herron, of Counsel, Columbus, for plaintiff-appellee.
    Power, Griffith & Jones, Sidney Griffith, J. Raymond Prohaska, of Counsel, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This is a motion filed by the plaintiff-appellee, seeking an order “* * * to amend the Bill of Exceptions in the cause herein, specifically in the wording of the general charge of the court.”

In support of the same, there has been filed the following certification, to wit:

“October 23, 1958
“I hereby certify that due to error in transcription the corrections as appearing on page 7 of the charge in this case, should be made and page 7a should be inserted in place of page 7 thereof.
/s/ Evelyn Walters
Reporter
/s/ Robert Draper
Judge”

It therefore appears that an error has been made in transcribing the charge given by the court which, in the furtherance of justice, should be corrected.

Such a correction was held to be permissible in O’Neill et al. v. Bartlett et al., 53 Abs 508, the syllabus of which provides:

“Where the undisputed testimony shows that a mistake in a general charge contained in a bill of exceptions was caused by accident or error, such bill of exceptions will be, under authority of §11572-a GC, remanded to the trial court for correction.”

The Bill of Exceptions will be ordered remanded to the trial court for correction. After the same has been refiled in this court, supplemental briefs may be filed within rule. If such is not desired and further argument waived, a stipulation should be filed to this effect. Thereupon, the court will pass upon the assigned errors; otherwise, the cause will be reassigned.

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


author: By GESSAMAN, J.

text:
    CURTISS-WRIGHT CORPORATION, Appellant, v. TICHENOR, Admr., etc., et, Appellees.
    Common Pleas Court, Franklin County.
    Nos. 197525, 197526.
    Decided December 23, 1957.

      Breed, Abbott & Morgan, New York, N. Y., Thompson, Hiñe & Flory, Cleveland, Carlton S. Dargush, Jr., for appellant, Curtiss-Wright Corporation.
    Porter, Stanley, Treffinger & Platt, for appellee, North American Aviation, Inc.
    William Saxbe, Atty. Geni., John W. Hardwick, Asst. Atty. Geni., for appellee, James W. Tichenor, Administrator.
   OPINION

By GESSAMAN, J.

These cases have previously been consolidated for trial only. Each is an appeal from an order of the Administrator of the Bureau of Unemployment Compensation. Each is now submitted to the court upon the motion of North American Aviation, Inc. (North American) to dismiss the appeal. The grounds upon which each motion is based are stated by counsel for North American as follows:

“(a) The Court has no jurisdiction of and has not been empowered by statute to hear or determine the within appeal, and said appeal is not authorized by law; and
(b) Curtiss-Wright Corporation is not aggrieved and is not a proper party appellant under §4141.26 R. C.”

In this opinion the motion of each case will be considered separately.

As to the Motion to Dismiss the Appeal in Case Number 197,525

This appeal is from an order of the administrator dated March 15, 1957, denying the applications of Curtiss-Wright for a review and redetermination of its contribution rate for the years 1953 to 1957, inclusive. One of the applications is found at page 17 of the transcript and reads in part as follows:

“We feel it advisable to file this letter formally requesting a review and redetermination of our 1956 rate determination for the reason that you omitted experience rating factors to which, in accordance with our previous protests, we believe ourselves entitled.
“Our earlier request for review and redetermination concerning our rates for 1953, 1954, and 1955 are still pending before you.”

There is no dispute of the fact that the contribution rate of CurtissWright for the years in question was the statutory minimum.

The notice of appeal herein reads as follows:

“Curtiss-Wright Corporation, Appellant, hereby gives notice, pursuant to §4141.26 R. C., of its appeal from the decision dated March 15, 1957, of the Administrator of Bureau of Unemployment Compensation, denying certain applications of Curtiss-Wright Corporation for review and redetermination of annual contribution rate determinations for the years 1953-1957, inclusive. Said decision was mailed to CurtissWright Corporation on March 15, 1957.”

The closing paragraph of the Administrator’s decision, referred to in the notice of appeal, reads as follows:

“The Administrator therefore denies the applications for review and redetermination of the rates established for Curtiss-Wright during the aforesaid years.” (1953, 1954, 1955, 1956 and 1957.)

Provision for an appeal from such an order is found in the third paragraph of §4141.26 R. C., which reads as follows:

“The employer shall be promptly notified of the administrator’s denial of his application or of the administrator’s redetermination, which shall become final unless, within thirty days after the mailing of notice thereof to the employer’s last known address or, in the absence of mailing, within thirty days after the delivery of such notice, an appeal is taken to the court of common pleas of Franklin county. Such appeal shall be taken by the appellant by filing a notice of appeal with the clerk of such court and with the administrator. Such notice of appeal shall set forth the decision appealed from. Proof of the filing of such notice with the administrator shall be filed with the clerk of such court.”

But we have in this case the peculiar situation of Curtiss-Wright appealing from an order in which the administrator denied requests to review and redetermine its contribution rates which already were at the statutory minimum.

In Ohio Contract Carriers Assn., Inc. v. Public Utilities Commission, 140 Oh St 160, the following basic rule is found in the syllabus:

“Appeal lies only on behalf of a party aggrieved by the final order appealed from. Appeals are not allowed for the purpose of settling abstract questions, but only to correct errors injuriously affecting the appellant.”

To the same effect is the language of the Supreme Court found at page 365 of the opinion in The Rollman and Sons Co. v. Board of Revision of Hamilton County, 163 Oh St 363:

“* * *■ the appellant has not shown that it was injured by the action of the board, and one who is not injured thereby cannot question the validity of a statute or an order of an administrative body.”

We have previously adhered to these rules in the case of Curtiss-Wright Corporation v. Cornell, Administrator, etc., et al., Number 186,297.

But counsel for Curtiss-Wright say that “the statute is concerned with determinations, not rates.” (brief page 20) and that the rate is fixed by statute (brief page 15) not by the administrator. They appear to overlook the fact that in §4141.25 (3) R. C., the General Assembly provided that

“The administrator of the bureau of unemployment compensation shall determine as of each computation date the contribution rate of each employer for the next succeeding contribution period.”

Obviously, there are factors that are considered by the administrator in fixing the rate. Divorced of all irrelevant argument, one will inescapably find that the real grievance of Curtiss-Wright concerns the action of a former administrator in determining that North American was the successor in interest to Curtiss-Wright. Counsel for CurtissWright urge that this appeal is from that “determination.”

We held in the Cornell case, supra, that

“* * * there is no provision in the statute under consideration for an appeal * * * upon a question which was not the ultimate question determined by the administrator.”

The Court of Appeals affirmed our decision in Curtiss-Wright Corp. v. Cornell, 100 Oh Ap 240, and we still adhere to it.

What v/as the ultimate question determined by the administrator To put it another way, from what order has Curtiss-Wright appealed? Sec. 4141.25 R. C., provides that the administrator, at a certain date, shall determine the contribution rate of each employer. By clear and unambiguous language, §4141.26 R. C., provides that the administrator shall, not later than January first, notify each employer of his contribution rate; that such rate shall become binding unless within sixty days the employer files an application for review and redetermination; that the employer shall be notified of the administrator’s denial of his application which shall become final unless appeal is taken to this court; that the appeal shall be taken by filing a notice of appeal and that “Such notice shall set forth the decision appealed from.”

In this case, the attempted appeal is from the administrator’s denial of Curtiss-Wright’s application for review and redetermination. Application for review and redetermination of what? The contribution rate, of course. The statute, itself, makes that crystal clear. In fact, so clear, that in our opinion there is no room for argument.

From the foregoing it should be clear that it is our opinion that the attempted appeal herein is from an order of the administrator which finally fixed Curtiss-Wright’s Contribution rate and that since that rate was at the statutory minimum, there is no error in the case which injuriously affects the appellant and therefore Curtiss-Wright is not aggrieved by the order appealed from and therefore may not appeal. Ohio Contract Carriers and Rollman cases, supra.

As we have already observed, there are many factors which are considered by the administrator in determining the rate. An employer may not agree with the administrator upon his finding on any given factor but that disagreement does not give rise to a right of appeal upon that finding. The statute, as we have observed, authorizes the appeal from the order which finally determines the rate and there is no provision of statute or rule of law which allows an appeal merely because there is a disagreement with a reason given for the decision or, in fact, if an incorrect reason is given for the decision. In the case of Agricultural Insurance Co. v. Constantine, 144 Oh St 275, the Court said at page 284:

“By repeated decisions of this court it is the definitely established law of this state that where the judgment is correct a reviewing court is not authorized to reverse such judgment merely because erroneous reasons were assigned as the basis thereof.”

In the case of Collopy v. Haloway, 49 O. O. 46, Judge Bell, formerly a Judge of the Supreme Court,- said:

“It is well settled in Ohio that where an administrative agency arrives at a correct conclusion, upon review, a court will not be concerned with the reasoning by which the conclusion was reached.”

Counsel for Curtiss-Wright urge that this appeal is permitted under subsequent language in §4141.26 R. C., which is as follows:

“This section applies to all other determinations and orders of the administrator affecting the liability of an employer to pay contributions or the amount of such contributions or respecting applications for refunds of contributions.”

The weakness of counsels’ argument is found in the use of the word “other” by the General Assembly. That is to say, provision is made in this sentence for appeals from “determinations” other than those previously mentioned in the statute and one determination previously mentioned in the statute is the administrator’s denial of an application for review and redetermination. This appeal is from such a denial. Therefore, the “other determinations” provision does not deal with or authorize this appeal.

The motion in this case is sustained.

AS TO THE MOTION TO DISMISS THE APPEAL IN CASE NO. 197,526.

This appeal is from an order of the administrator, dated February 14, 1957, denying an application by Curtiss-Wright for a determination of successorship. Upon motion of North American, the administrator determined not to make a re-determination of successorship and dismissed the application without proceeding with the hearing. The issue now before the Court in this case, as stated by counsel for CurtissWright, is as follows:

“Does a determination by the Administrator on a question of successorship come within the class of ‘other determinations’ applicable under this statutory provision?” (Sec. 4141.26 R. C.)

On the other hand, counsel for North American urge that the real issue is “whether the February 14, 1957, decision is a determination ‘affecting the liability’ of Curtiss-Wright ‘to pay contributions or the amount of such contributions.’ ”

In this respect, what does the statute say? The pertinent language is'

“This section applies to all other determinations and orders of the administrator affecting the liability of an employer to pay contributions or the amount of such contributions or respecting application for refunds of contributions.”

Obviously, the phrase “respecting applications for refunds of contributions” has no application here. Breaking down the balance of the sentence, we find that there are two types of determinations and orders from which an appeal may be had. They are (1) a determination and order of the administrator affecting the liability of the employer to pay contributions and (2) a determination and order of the administrator affecting the amount of such contributions. Does the determination or order of February 14, 1957, fall in either of these two categories? It is admitted that this is the part of the section under which CurtissWright claims its right to appeal.

At pages 7 and 8 of the transcript, we find a letter from Mr. George R. Hill, Vice President for Finance of Curtiss-Wright to the administrator, dated April 11, 1956. It is headed “Re Request for Determination of Successorship” and is the application for re-determination of successorship. The first three paragraphs of that application are as follows:

“Under date of October 2, 1952, Ernest Cornell, who was then Administrator of the Bureau of Unemployment Compensation, determined that North American Aviation, Inc., was the successor-in-interest to Curtiss-Wright Corporation for purposes of the Ohio Unemployment Compensation Act and, as such successor-in-interest, was entitled to the resources and liabilities in the unemployment compensation account of Curtiss-Wright Corporation.
“We promptly appealed your predecessor’s determination to the Court of Common Pleas of Franklin County. That appeal was subsequently dismissed on jurisdictional grounds, Curtiss-Wright Corporation being deemed not to have been a party to the proceeding before Administrator Cornell. As you know, this decision was affirmed by the Court of Appeals of Franklin County, and the Supreme Court of Ohio has recently declined to allow our motion to certify.
“In accordance with the procedure indicated during course of that litigation, Curtiss-Wright Corporation hereby requests your determination as to whether North American Aviation, Inc., became the successor-in-interest to Curtiss-Wright Corporation for purposes of §4141.24 R. C., as the result of the transactions in November, 1950, between these two employers.”

Subsequent thereto, North American filed its motion to dismiss the application “for lack of jurisdiction to maintain it.” On February 14, 1957, the administrator did dismiss the application and the following is the concluding paragraph of his decision: (Transcript page 177)

“For the foregoing reasons, I conclude that I am without the power or authority under the statutes to grant a review and redetermination to Curtiss-Wright Corporation.”

It is from the latter order that this appeal has been taken.

From an examination of the entire decision, it is apparent that the administrator made no determination on the question of successorship. On the contrary, he dismissed Curtiss-Wright’s application to do so. Therefore, in the final analysis the administrator did not make a "determination and order” on the date in question from which an appeal is authorized.

There is a further basis for that conclusion when we compare the administration’s decision with that part of the statute dealing with “other determinations.” Any comparisons will disclose that the decision of February 14, 1957, is not a determination and order of the administrator affecting the liability of the employer to pay contributions, because Curtiss-Wright never has questioned its liability in that respect; —at least no claim has been made to that effect. Furthermore, it is clear that the decision of February 14, 1957, is not a determination and order of the administrator affecting the amount of such contributions for, as we have pointed out in discussing case No. 197,525, the contribution rate of Curtiss-Wright for all years in question was the statutory minimum. In our opinion in the Cornell case, supra, we said that “The transfer of the credit from Curtiss-Wright to North American might affect but does not ipso facto affect a subsequent rate for CurtissWright.” We are still of that opinion. In fact, the records of these two cases disclose that Curtiss-Wright’s contribution rate for each year since our decision in the Cornell case (1953) has been at the statutory minimums.

Counsel for Curtiss-Wright urge that “affecting” (used in §4141.26 R. C., supra), should be construed to mean “in connection with” for the reason that §4141.46 R. C., provides that “§§4141.01 to 4141.46 inclusive, R. C., shall be liberally construed.” It is readily apparent that this argument is based upon the false premise that the word “affecting” needs to be construed. It does not. It is clear, definite, and is not ambiguous. Counsels’ argument overlooks a well established and widely recognized rule of statutory construction which is stated as follows in 37 O. Jur. 508-9:

“A construction adopted should not be such as to defeat the obvious intention of the legislature or do violence thereto, wholly or partially, but rather one which would carry such intention into effect.”

The rule is stated in slightly different language in Knox v. Covrett, 85 Oh Ap 524, at page 528:

“In the application of the provisions of a statute, it is the invariable rule of the courts to give effect to the intent and purpose of the legislature. Where this intent and purpose is clearly expressed in the statute, the courts do not have the power to amplify the legislative provision by adopting rules of interpretation or by giving the statute a meaning contrary to its express provisions.”

If the legislature had intended to give a right of appeal from any determination and order “in connection with” the liability of an employer to pay contributions or “in connection with” the amount of such contributions, it would have said so. But it did not and this Court has no power to extend the right of appeal beyond that expressly given by the legislature. In State, ex rel. Foster v. Evatt, 144 Oh St 65, the Supreme Court said in syllabi 7 and 8:

“7. Courts have no legislative authority and should not make their office of expounding statutes a cloak for supplying something omitted from an act of the General Assembly. The question is not what did the General Assembly intend to enact, but what is the meaning of that which it did enact. * * *”
“8. There is no authority under any rule of statutory construction to add to, enlarge, supply, expand, extend or improve the provisions of the statute to meet a situation not provided for.”

This Court, and no court, can expand the plain and unambiguous language of the legislature to cover the appeal here attempted. As we have already said, there is nothing in this part of the statute that needs interpretation. It needs only to be applied. In Sears v. Weimer, 143 Oh St 312, the Supreme Court said:

“Where the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to rules of statutory interpretation. An unambiguous statute is to be applied, not interpreted.”

Counsel for Curtiss-Wright contend that if the statute does not authorize this appeal, then it is unconstitutional in that it denies to Curtiss-Wright due process of law. Counsel, in this respect, overlook “the fundamental rule that to be entitled to institute appeal or error proceedings a person must have a present interest in the subject-matter of the litigation and must be aggrieved or prejudiced by the judgment, order or decree.” Ohio Contract Carriers Assn. Inc. v. Public Utilities Commission, 140 Oh St 160, at page 161. In the syllabus the Court said:

“Appeal lies only on behalf of a party aggrieved by the final order appealed from. Appeals are not allowed for the purpose of settling abstract questions, but only to correct errors injuriously affecting the appellant.”

Curtiss-Wright was not injuriously affected by the decision of February 14, 1957, nor was it aggrieved or prejudiced thereby, because it determined or decided nothing.

There is pending in each of these cases, a motion by Curtiss-Wright to complete the record. Counsel for Curtiss-Wright feel that there are many exhibits that were presented to the administrator and have not been transmitted to this court but are necessary for a final determination of these cases on the merits and even for the consideration of these motions.

At the oral argument on these motions, the Court was favored with an affidavit of Mr. Treffinger, outlining the present whereabouts of the 188 papers listed in Exhibit A to the affidavit in support of CurtissWright’s motion to remand to complete the record. Part of the exhibits are on file in the Cornell case, supra (Number 186,297) and we have re-examined them. Part of them, as we have said, are already on file in these two cases and we have examined them. Mr. Treffinger has furnished the Court with photostatic copies of the remainder and we have examined them. Without any question, we are of the opinion that everything is on file in these two cases, necessary to a complete consideration and determinations of each of these motions. The exhibits not originally certified to this court by the administrator are wholly irrelevant to the questions raised by the motions.

The motion in this case is sustained.


author: By BRYANT, J.

text:
    BIERNBAUM et, d. b. a. MARION ASSOCIATES, Plaintiffs-Appellants, v. MIDWEST OIL & GAS COMPANY, Defendants-Appellees.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5917.
    Decided March 3, 1959.
    Gingher & Christensen, Malcolm L. Miller, George D. Massar, of Counsel, Columbus, for plaintiffs-appellants.
    Knepper, White, Richards, Miller & Roberts, Grant S. Richards, Milton Bartholomew, of Counsel, Columbus, for defendants-appellees.
   OPINION

By BRYANT, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin County. Sam Biernbaum and ten others doing business as Marion Associates, plaintiffs-appellants herein, will be referred to as plaintiffs. The Midwest Oil & Gas Company, defendantappellee herein, will be referred to as the defendant. The petition, omitting the caption, signature and verification is as follows:

“Plaintiffs say that defendant is a corporation organized and existing under and by virtue of the laws of the State of Ohio; that on or about the 11th day of October, 1954, plaintiffs and defendant executed a certain written instrument, being a participation and profit-sharing agreement in an oil and gas lease, whereby plaintiffs acquired an undivided one-fourth interest in the production of a certain oil and gas lease known as Parker Mack Well No. 1 for the sum of Three Thousand Dollars ($3,000.00); that plaintiffs paid to defendant said sum of Three Thousand Dollars ($3,000.00), and that on or about the 9th day of December, 1954, plaintiffs paid to defendant the further sum of Four Thousand Two Hundred Sixty-eight Dollars ($4,268.00) as their pro rata share of equipping said well as provided in said agreement.
“Plaintiffs further say that defendant has not registered said participation and profit sharing agreement representing a fractional interest in said Parker Mack Well No. 1 with the Division of Securities, State of Ohio, as is required by Chapter 1707 ft. C.; that plaintiffs have tendered said agreement and the interest represented thereby to defendant in person and demanded that defendant refund to them the sum of Seven Thousand Two Hundred Sixty-eight Dollars ($7,268.00), and that defendant has refused to comply with said demand.
“WHEREFORE, plaintiffs pray for judgment against defendant in the sum of Seven Thousand Two Hundred Sixty-eight Dollars ($7,268.00) and for their costs herein expended.”

To this petition, defendant filed an answer, which omitting the caption and verification and the prayer for dismissal, is as follows:

“Defendant admits that it is a corporation organized and existing under and by virtue of the laws of the State of Ohio, that ‘Marion Associates,’ by Allen Fireman (Mgr.), had a transaction with the defendant corporation whereby said ‘Marion Associates’ acquired an undivided one-fourth interest in the production of an oil and gas well; that on October 12, 1954, the defendant corporation received $3,000.00 from ‘Marion Associates’ and, on December 13, 1954, received the further sum of $4268.50 therefrom; that the defendant corporation did not register any participation and profit sharing agreement in said oil and gas well with the Division of Securities of the State of Ohio; that the plaintiffs have tendered to the secretary of the defendant corporation a printed, typewritten and written document and have demanded the payment to them of the sum of Seven Thousand Two Hundred Sixty-Eight and no/100 Dollars ($7,268.00); and that the defendant refused to comply with said demand.
“Further answering, the defendant says that if the defendant violated any provision of law in connection with the transactions between ‘Marion Associates’ and the defendant corporation, such violation did not materially affect the protection contemplated by such violated provision.
“Defendant denies each and every, all and singular the statements contained in plaintiffs’ petition, save and except such as are herein expressly admitted to be true.” (Emphasis added.)

Plaintiffs’ reply consisted of a denial of all allegations in the answer that were not admissions of allegations contained in the petition.

The matter came on for hearing before the Common Pleas Court where counsel for plaintiffs said they were bringing the action under the provisions of the Ohio Securities Act, being §1707.01 et seq, R. C., and specifically under §1707.43 R. €., which section reads in part as follows:

“Every sale or contract for sale made in violation of §§1707.01 to 1707.45, inclusive, R. C., is voidable at the election of the purchaser. The person making such sale or contract for sale, and every person who has participated in or aided the seller in any way in making such sale or contract for sale, are jointly and severally liable to such purchaser, in an action at law in any court of competent jurisdiction, upon tender to the seller in person or in open court of the securities sold or of the contract made, for the full amount paid by such purchaser and for all taxable court costs, unless the court determines that the violation did not materially affect the protection contemplated by the violated provision.”

The concluding paragraphs of said section require actions to be brought within two years and deny recovery to any purchaser who fails to answer within thirty days thereafter an offer made to refund the full amount paid by such purchaser. No question is made of the time within which the action was brought nor is there any claim that anyone refused to accept a refund of the purchase price.

The principal matter in dispute seems to turn upon the application, meaning and effect of the phrase

“* * * unless the court determines that the violation did not materially affect the protection contemplated by the violated provision.” (Emphasis added.)

On behalf of the defendant it is admitted that the defendant did not register the agreement in question with the Securities Division of Ohio but the defendant claims that such failure on its part “did not materially affect the protection contemplated by such violated provision.”

On the day of the hearing in the lower court, counsel for plaintiffs made a recital of the facts, as contended for by plaintiffs, most of which are not in dispute. This was followed by a statement by counsel for the defendant, a considerable portion of which was devoted to the meaning of the words, “unless the court determines that the violation did not materially affect the protection contemplated by the violated provision,” contained in §1707.43 supra, R. C.

At this point counsel for plaintiffs moved for a judgment on the pleadings and on the opening statement of counsel on the ground that in them were contained admissions of all the material allegations of the petition. Whereupon counsel for the defendant moved for judgment for the defendant on the pleadings. The court took both motions under advisement and called upon plaintiffs to submit their evidence and plaintiffs at that point rested their case contending that in light of the admissions in the answer and the opening statement, the burden of going forward was upon the defendant. Defendant renewed its motion for judgment on the pleadings, whereupon the court, after a recess, overruled the motion of defendant for judgment on the pleadings. It was then the opinion of the court below that it did not “have before it at this time the matter of determining the violation as it materially affects the person contemplated to be protected by the Securities Act.” (Record, p. 16). The court stated with reference to the defendant that “it would have the burden of proof to show that the admitted violation did not violate the rights of the parties.” (Record, p. 16, lines 12 through 14.)

Motion of plaintiffs for judgment on the pleadings and the opening statements of counsel for the defendant was overruled and defendant was directed to proceed with any testimony “that will tend to show the applicability of the last phrase of the first paragraph of §1707.43 R. C.” (Record, p, 16, lines 17 through 19.)

Exceptions were taken to the rulings and defendant then moved that the petition be dismissed on the ground that plaintiff offered no testimony or evidence in support thereof, which motion was also overruled.

At this point the defendant called Allen Fireman, one of the plaintiffs, and the one who verified the petition. Fireman identified the several plaintiffs and told of actions taken by them and who told of a visit to the Securities Division of Ohio “after the well was drilled in.” (Record, p. 24, 1.14.)

Fireman also told of his previous experience in investing in oil and gas well drilling operations which at page 36 of the record, lines six through twelve, this testimony was given on recross-examination:

“Q. Will you tell the Court how the failure to register this well has materially affected your rights? Give me one example — one example— tell the Court how your rights have been affected by the failure to register this well.”
“A. Well, sir, I can’t tell you what I would have done if I would have seen the registration. That is and if, and I don’t know what I would have done.”

With the testimony concluded there was further argument, whereupon the court (Record, p. 40) stated,

“* * * the Court is unable at this time to say and to determine that the violation of the registration provision of the Securities Act materially affected the protection contemplated by the violated provision. * * *”

The Court continues:

“The Court does not feel that the case is in such condition that final judgment should be given either side on anyone’s motion to date. The Court does feel that the motion made is in effect a demurrer to the allegations in the petition. The Court feels that if it is considered to be a demurrer, that it should be sustained. Namely, that as now set forth in the petition, there is no showing of a cause of action. The Court will, therefore, sustain the motion of the Defendant as a demurrer made to the petition as it now stands, and the Court will permit the Plaintiff to file an amended petition with other necessary pleadings, and to continue this case for further hearing.”

The two errors assigned are as follows:

“FIRST ASSIGNMENT OF ERROR. The trial court erred in overruling plaintiffs’ motion for judgment at the close of the opening statements.”
“SECOND ASSIGNMENT OF ERROR. The trial court erred in sustaining defendant’s motion for judgment considered as a demurrer to plaintiffs’ petition.”

Coming now to consider the issues presently before this court, it is difficult to follow the reasoning of the court below. At one time in the proceedings when the petition, answer, reply and opening statements of counsel only were before the lower court, it appears that that court found the allegations of the petition to be sufficient and correct and that they clearly set forth a violation of §1707.03 supra, R. C. At page 15 of the record, lines six through eighteen, the court said:

“The Court has before it only, of course, the pleadings and the proposed opening statements of counsel. There is an allegation in the petition that there was a violation of this chapter of the Securities Act of the Code, in that the Defendant failed to register the participation and profit-sharing agreement described in the petition. According to §1707.3 R. C., every sale, or if there is a sale made in violation of the various sections of this Chapter on Securities, it is voidable at the allegation of the purchaser. The petition clearly alleges such a violation and allegation to void the sale, and has requested for the return of the money upon the proper tender of the securities.”

Only one witness was called, Allen Fireman, a plaintiff, called by defendant for cross-examination. Yet at the conclusion of his testimony, the court held that the allegations of the petition were insufficient. In the record at page 40, lines one through twenty-two, the court held as follows:

“I think the Court at this time will rule on this motion in this way. The Court has requested the Defendant here to go forth with the burden and to show or submit evidence or information on the applicability of the last phrase in the first paragraph of §1707.43 R. C. At this juncture in the case, with the Plaintiff only having been on the stand as on cross examination, the Court is unable at this time to say and to determine that the violation of the registration provision of the Securities Act materially affected the protection contemplated by the violated provision. The Court does not feel that the case is in such condition that final judgment should be given either side on anyone’s motion to date. The Court does feel that the motion made is in effect a demurrer to the allegations in the petition. The Court feels that if it is considered to be a demurrer, that it should be sustained. Namely, that as now set forth in the petition, there is no showing of a cause of action. The Court will, therefore, sustain the motion of the Defendant as a demurrer made to the petition as it now stands, and the Court will permit the Plaintiff to file an amended petition with other necessary pleadings, and to continue this case for further hearing.”

If the court below was correct in holding the burden of proof had shifted to the defendant and, we believe the court was correct in that ruling, the question therefore properly before the court is whether or not in iight of all the record as it then stood including pleadings, opening statements and evidence, the defendant had maintained the burden of proof and had shown to the court that the admitted violations “did not materially affect the protection contemplated by the violated provision.” (See §1707.43 supra, R. C.)

All parties seem to agree that the agreement entered into was a security and that it should have had the approval of the Securities Division before being sold. We do not believe that a violation such as this can be regarded lightly, but on the contrary, that unless the defendant is able to show that there was no relevant connection between the protection intended by the Securities Act and the violation in question, that the defendant shall be held liable under the provisions of the said §1707.43 supra, R. C.

In the state of the record as it is now before us, it was the duty of the court below to determine whether or not the defendant had sustained the burden of proof upon him and this the court did not do. That being the case, the second assignment of error is well taken and must be sustained. From what has been said it is our opinion that the first assignment of error is not well taken. This is for the reason that in the answer of the defendant, the defense of non-materiality of the violation to the protection intended is raised and proof of that could constitute a complete defense, and this allegation was put in issue by the reply on the part of the plaintiffs. Hence, the first assignment of error must be overruled.

For the reasons above set forth the judgment of the court below is reversed and the cause remanded for further proceedings according to law.

MILLER and DUFFY, JJ, concur.


author: By HUNSICKER, J.

text:
    MITCHELL, Plaintiff-Appellee, v. MITCHELL, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24719.
    Decided May 7, 1959.
    Alto W. Brown, for plaintiff-appellee.
    H. Vincent E. Mitchell, for defendant-appellant.
    (DOYLE, PJ, STEVENS and HUNSICKER, JJ, of the Ninth District, sitting by designation in the Eighth District.)
   OPINION

By HUNSICKER, J.

This is an appeal on questions of law from a judgment entered upon a motion to modify an order for the support of minor children. This order was a part of a decree of divorce granted May 4, 1953, to Deborah H. Mitchell (now Deborah H. Thayer). The order for support of the minor children of the parties was included in the divorce decree as an agreement of the parents, which agreement was approved by the Judge who presided at the divorce hearing.

The original order of support, based upon an agreement of the parents executed January 3, 1953, provided among other things for a payment of $300.00 a month for their five minor children. From this sum $50.00 a month was to be deducted for insurance premiums: this insurance, on the life of H. Vincent Mitchell, is pledged to secure the payments for support.

The trial judge, on the hearing of the motion filed by Mrs. Thayer to modify the order of support determined that:

“The defendant shall pay to the plaintiff the sum of Four Hundred Dollars ($400.00) per month for the support of said minor children, said payment to be paid on the 1st of each month in advance for the succeeding month;
“The defendant shall also pay the medical and dental expenses for said minor children in excess of Ten Dollars ($10.00), after notice is first given the defendant of such need, except in the case of an emergency; The defendant shall pay to the plaintiff the sum of five Hundred Dollars ($500.00) per year, payable at the beginning of the college year, for each of the minor children of these parties electing to matriculate (sic) in any accredited college, but no one child shall be entitled to more than four (4) years of payments.
“The defendant to pay the cost of this proceeding.”

From the judgment entered on the motion to modify, H. Vincent Mitchell lodged an appeal to this Court, saying:

“1. The Court was without jurisdiction to order the defendant to contribute the sum of $500.00 per year per child for a college education.
“2. The Court erred in finding that there were changed conditions justifying an additional award of $100.00 a month for the support of the five minor children where the record was devoid of evidence of such changed conditions and the Court thereby committed an abuse of discretion.
“3. The Court erred in finding that there was evidence to justify an order compelling the defendant to pay for medical, dental and hospital bills in excess of $10.00 per illness per child where no evidence of changed conditions existed and the Court thereby committed an abuse of discretion.
“4. The Court erred and committed an abuse of discretion in entering on the 27th day of September, 1958, Findings of Fact and Conclusions of Law which were not supported by any evidence.”

From our .examination of the bill of exceptions, we conclude that there was sufficient evidence to justify the trial Judge in his finding that there was a change of conditions which authorized the increase in the monthly order of support and the order for medical expense. With respect to the order of payment for college for each child who desires to attend college, we believe the trial Judge exercised a power not granted to him by the law of Ohio.

It must be remembered herein that the original agreement of support dated January 3, 1953, and later incorporated into the divorce decree aated May 4, 1953, did not provide for a college education for these children. The members of this Court believe it would be a fine thing for these children to attend college but that is a matter of voluntary action on the part of the parents and not something which the present law of this state (in the absence of agreement) can compel or order.

We do not interpret the holding in the case of Robrock v. Robrock. 167 Oh St 479, 150 N. E. 2d, 421, to mean that a trial court in the exercise of its equity powers under §3105.21 R. C., may order, in the absence of an agreement of the parties, a college education for their children, which will in most instances extend that portion of their support beyond minority. The Robrock case, supra, interpreted the law with reference to rights granted by agreement of the parties. We do not understand that the rule set out in Thiessen v. Moore, 105 Oh St 401, 137 N. E. 906, and Miller v. Miller, 154 Oh St 530, 97 N. E. 2d 213, with respect to the support of children beyond their minority is changed by the enactment of §3105.21 R. C., or by the holding in Robrock v. Robrock, supra. We adhere to the statement contained in the opinion in the case of Wynn v. Wynn, 6 Abs 450, wherein the court said:

“We find no law requiring a parent to send a minor child to college. While it is a laudable act on the part of a parent to send a child to college, especially where such child has the desire to go and the ability to profit by it, we know of no law substituting the judgment of the court for that of the parent as to whether or not the parent shall send his child to college after such child has had more education than the compulsory school law requires and the child is past the compulsory school age.”

Although we do not base the conclusion reached herein upon a finding of the present inability of Mr. Mitchell to meet all of the payments ordered by the trial Court, we do believe that in respect to his physical condition, the additional order for the payment of a college education to each child is not justified by the evidence.

It is the conclusion of this court that.that part of the judgment herein of the trial court, which orders a payment for a college education for each of the children of H. Vincent Mitchell who desire to attend college, should be reversed, but as to all other parts of the judgment under review herein the judgment is affirmed.

It is therefore ordered that a journal entry be prepared modifying the judgment of the trial Court in conformity with this opinion and that as modified the judgment be affirmed. The cause will be remanded to the Court of Common Pleas for execution and for further proceedings according to law.

Judgment affirmed in part and reversed in part. See journal entry with exceptions noted.

DOYLE, PJ, STEVENS, J, concur.


author: By BAYNES, J.

text:
    HARPER, Plaintiff, v. OHIO SOCIETY FOR CRIPPLED CHILDREN INC., et, Defendant.
    Common Pleas Court, Madison County.
    No. 20858.
    Decided April 3, 1959.

      Maurice E. Beathard, London, for plaintiff.
    David G. Howell, Jackson, for the Ohio Society for Crippled Children, Inc., et al.
    William Saxbe, Atty. Geni., Columbus.
    Neva H. Wertz, Asst. Atty. Geni., Columbus.
    Mark McElroy, successor to William Saxbe, Atty. Geni., Columbus, for defendants.
   OPINION

By BAYNES, J.

Plaintiff filed a petition for declaratory judgment asking the Court to determine if the plaintiff, until her death or remarriage, has the right to sell or encumber any and all real estate, under the terms of the Will of her deceased husband, if she deems it necessary for her support, care and maintenance, without a prior judicial determination as to her need.

Defendants are The Ohio Society for Crippled Children, a devisee and the major residuary legatee and an individual who is also a devisee. The Attorney-General of Ohio has been made a party by virtue of his common law duty and the Charitable Trust Act, §109.23 et seq, R. C.

Plaintiff moved for judgment on the pleadings. Briefs have been filed on behalf of plaintiff, The Crippled Children’s Society, and the Attorney-General. The burden of plaintiff’s brief is that she has the unqualified right to pick and choose what real estate she desires to sell without limitation. The Society for Crippled Children’s position is that plaintiff has no right or power to sell its specific devise and no power to sell any of the real estate in the residuary without prior court authority.

The. Attorney-General in a particularly lucid brief, supported by convincing authority, takes the position that plaintiff has no right or power to sell the specifically devised real estate and that in the residuary only in the event the income from all the real estate becomes insufficient for plaintiff’s support, care and maintenance. Further, that she does not require prior Court authority to sell real estate in the residuary, but if she does, she does not become the absolute owner of the proceeds, but holds the same as a quasi-trustee.

The facts are that plaintiff’s spouse died on September 18, 1953 His estate was administered in the Probate Court of this County. Plaintiff was designated executrix without bond. Item I provided for payment of debts. Item II bequeathed all personal property to plaintiff. Item III devised testator’s home farm of 220 acres to plaintiff for life or so long as she did not remarry. Upon her death or remarriage, the remainder was devised to the Crippled Children’s Society on condition that the farm be neither sold or leased by the Society, coupled with a contingent devise should the Society cease to exist. Item IV devised eight acres to plaintiff for life and the remainder to the defendant Cummins in fee simple.

The first paragraph of Item V states:

“Item V. All the rest, residue and remainder of my estate, I give, devise and bequeath to my said wife, Bess I. Harper, for and during her natural life or so long as she remains my widow, provided, however, that my said wife shall pay all taxes and assessments when due, keep the properties fully insured against loss by fire and wind and maintain the said properties in a good physical condition. Upon the death or remarriage of my said wife, I give all the said remainder of my estate and all the estate therein, excepting such property as my said executrix shall have sold under the provisions of this will, to the person who shall be appointed administrator de bonis non with Will annexed, of my estate, and I direct that my said administrator de bonis non with will annexed shall within a reasonable time (giving due consideration to depressed values which may exist at the time of my said wife’s death) convert said property into cash. Hereby granting unto my said administrator, d.b.n„ w.w.a. full power to sell said properties, and assets to such persons and upon such terms and conditions as he shall deem best, and to make and execute all proper deeds or other instruments of conveyance to the purchaser or purchasers, without application to any court for authority to so sell and convey. The receipt of my administrator d.b.n., w.w.a. or his successor in office, shall be a full and complete discharge and acquittance for all payments of money by any purchaser. and no purchaser or purchasers shall be liable to see to the application of the money so paid for the purposes of the trust.”

The second paragraph of the residuary provides the net proceeds of the residue after plaintiff’s death or remarriage are to pay legacies of $2,000 to the Oak Hill Cemetery Association; $1,000 to the Georges-ville Cemetery; $1,000 to the First Methodist Episcopal Church of London; $1,000.00 to the First Presbyterian Church of London; and the balance to tfog Crippled Children’s Society. An added proviso was that if the residuary was insufficient to pay the first four legacies in full, payment was to be pro rata.

The third paragraph of the residuary gave the executrix power to mortgage or encumber “any of the assets of my estate,” for any purpose necessary in the execution of the Will, particularly for debts, taxes, costs of administration et cetera.

The fourth paragraph states:

“And if my said wife shall find it necessary for her support, care and maintenance, the income from the property hereinbefore devised to her for her life being insufficient for such needs, then my said wife shall have the right and power to invade the principal of my estate by sale of such part thereof as may be required, or by borrowing such money for her support, care and maintenance as may be required, with full power to sell, convey or mortgage as she deems best, without application to any court and without liability of any purchaser or lender to see to the application of the purchase money so advanced, but said conveyances, notes and mortgages of my said wife shall be sufficient authority and discharge therefor.” (Emphasis added.)

It may be elementary, but definitions may be helpful. A devise is a testamentary gift of real estate. A legacy is a testamentary gift of personalty. A life estate is an interest limited to the life of the party holding it; it is one of freehold and not of inheritance. A life estate is not converted into a fee by annexing power to sell to obtain funds for support: Johnson v. Johnson, 51 Oh St 446, 38 N. E. 61.

A residue or residuary estate is what remains of testator’s estate after deducting debts and the bequests and devises; or what is not specifically devised and bequeathed.

A demonstrative legacy is one of a certain amount or quantity, the particular fund or personal property being pointed out from which it is to be paid or taken. Abatement of legacies means reduction or failure because of fund insufficiency. Residuary legacies abate before general; general before specific and demonstrative; and demonstrative and specific abate ratably.

There is injected in the briefs of plaintiff and the Society for Crippled Children certain stated facts not alleged in the pleadings which we disregard. It appears, or can be inferred, from the admitted allegations that the administration of the Estate has been completed. That the plaintiff, as surviving spouse, elected to take under the Will and not according to the statute. That it was not necessary to sell or encumber “any of the assets” of the estate in order to complete the administration, or in event it was necessary it did not affect the real estate in Items III, IV and V now held by plaintiff for her life or until her remarriage.

We do not think that a fair construction of the language of the Will raises any ambiguities with reference to what real estate the plaintiff has the right or power to sell or encumber for her support, care and maintenance. This is particularly true when the difference is noted between the choice of words used in the third and fourth paragraphs of Item V of the Will. During administration, the executrix could sell or encumber “any of the assets of my estate.” But after administration, plaintiff, the life tenant, has “the right and power to invade the principal of my estate.”

In this and subsequent analysis of the Will, it is to be borne in mind that the intention of testator is to be ascertained and given effect; 41 O. Jur. 590, Sec. 467. That the Will is to be construed as a consistent whole; 41 O. Jur. 600, Sec. 469. See also Jarman’s Rules on Will Construction, especially XII, XV, XVII, XVIII and XXII, Deibel on Probate Law, 5th ed„ 126, Sec. 251.

Significance has been given by the Attorney General and on behalf of the Society for Crippled Children to the fact that in Item III the testator restricted the remainderman from selling or leasing the farm and provided that the farm shall be held in perpetuity for charitable purposes. It would seem that this restriction has especial significance when compared to the contingency provision as to the legacies in the second paragraph of the residuary clause, Item V (see p. 3, supra).

Moreover, testator’s use of the word “principal” in the fourth paragraph of Item V can only be referrable to the property from which the demonstrative legacies were to be paid and cannot by any reasonable construction refer to the devises of real estate in Items III and IV. The only interest plaintiff has in Item III is a contingent life estate based upon whether she remarries before her death and an unqualified life estate in Item IV.

The declaration of the Court will be that plaintiff has no right or power to sell or encumber the real estate specifically devised in Items III and IV of the Will of John E. Harper, deceased, now or at any later time.

As has been noted, the Attorney General concedes that plaintiff has the power to sell real estate falling within the residuary clause, Item V of the Will, without court approval. Counsel for the Society for Crippled Children says not so. This for the reason that to permit her to do so would tend to enable her to deny the legatees in Item V of their expectancy and thus defeat testator’s intention.

We cannot agree with the validity of the Society’s position or the reason given therefor. In the first place, the power granted by testator by the words used in Paragraph 4 of Item V of the Will are plainly stated. But it does not follow that plaintiff has the absolute right to sell the assets. That, too, is plainly stated. As to the right to sell, there is a specific condition attached, namely, there must be a “need.” How can it be said that the remaindermen of the residuary interest are without a remedy? The judicial system provides the forum for the adjudication of rights and wrongs.

All briefs of counsel refer to the case of Johnson v. Johnson (1894), 51 Oh St 446, 38 N. E. 61, to support their respective contentions. We have Sheppardized the case, and its citations are very numerous. No cited case that we have examined has deviated from its three fundamental propositions; see Tax Commission v. Oswald, 109 Oh St 36, 141 N. E. 678; Haldeman v. Pace, 125 Oh St 53, 180 N. E. 547; Ohio National Bank v. Boone, 139 Oh St 361, 40 N. E. 2d 149, 22 O. O. 414.

The instant case is stronger on the facts than the Johnson case because plaintiff’s testator restricted the power to sell only if a need greater than the income would provide arose, and, inferentially, which plaintiff’s own assets are insufficient to meet. In the Johnson case, the life tenant, testator’s surviving spouse, had an unqualified right to “sell, convey, exchange or dispose of the same as she may think proper.”

In essence, the Johnson case held: First, the remainder was vested subject to be divested. Second, the devisee took only a life estate, and is a quasi-trustee for the remaindermen with no right to use the property except for her support or benefit of the estate. Third, any person acquiring property from the life tenant by gift, fraud or collusion holds the same as a trustee for the remaindermen with liability to account to them in equity.

The Second District Court of Appeals of a 1958 case, In re Estate of Kyle, 106 Oh Ap 502, 7 O. O. 2d 229, stated, although the Will did not require court approval of the sale of principal when life tenant had power to sell if needed for her comfort and support, that the validity of sales were subject to judicial inquiry, citing Kern v. Kern, 100 Oh Ap 327, 136 N. E. 2d 675, 60 O. O. 285 (M. C. O.).

The Kern case held that the power of the life tenant to sell excludes loss or disposition through waste, gift and testamentary disposition. Also that what is necessary to sell is a factual matter to be established by proper evidence.

It was held in Gould v. Porter, 103 Oh Ap 156, 144 N. E. 2d 555, 3 O. O. 2d 214, that a conveyance at time when life tenant had ample funds for her support is null and void; see also Windnagel v. Windnagel, 104 Oh Ap 22, 146 N. E. 2d 457, 4 O. O. 2d 69.

All these Appeals cases cited the Johnson case, and it would serve no useful purpose to cite other cases relying on one or more of the principles of the Johnson case, although we have examined many of them.

It will be the further declaration of the court that plaintiff has the right to sell such of the real estate disposed of by Item V of the Will of John E. Harper deceased if she determines such sale or sales to be necessary for her support, care and maintenance as long as she remains unmarried without application to any court; provided, however, that the necessity determined is bona fide, that the sale price constitutes a willing buyer-willing seller transaction, i. e., for its fair market value and that it does not tend to increase the estate of plaintiff, the life tenant, to the detriment of the remaindermen. Further, that a right of recovery lies against either the life tenant or any grantee or both if any such sale or purported sale or attempt to sell constitutes waste, gift, fraud or collusion.

Plaintiff failed to name as parties the Cemetery Associations or the Church bodies so that any judgment rendered herein prejudicial to their interest cannot be binding on them. The doctrine of virtual representation does not apply; 30 O. Jur., Parties, 741, Sec. 28.

Counsel for the Crippled Children’s Society is directed to prepare an Entry in accordance with this opinion submitting same to the Attorney General’s office and plaintiff’s counsel and to the Court for approval, taxing costs to plaintiff and noting exceptions, if any.


author: By MAIDEN, J.

text:
    PARENT, Appellant, v. ADMINISTRATOR and BOARD OF REVIEW, BUREAU OF UNEMPLOYMENT COMPENSATION et, Appellees.
    Common Pleas Court, Mahoning County.
    No. 157307.
    Decided May 22, 1959.
    Vincent E. Gilmartin, for appellant.
    Mark McElroy, Atty. Geni., Daniel T. Lehigh, Asst. Atty. Geni., for appellees.
   OPINION

By MAIDEN, J.

A careful study of the unemployment compensation law, §4141.01 R. C., does not disclose any definition of unemployment. Subsection (B) of that section defines employment to mean “service performed for wages under any contract of hire, written or oral, express or implied, . . .”

A reference to any of the standard English dictionaries indicates that unemployment means without employment. It would rationally follow, therefore, that one without employment would be one without “service performed for wages under any contract of hire, written or oral, express or implied, . . .”

Applying the facts as shown by the record it is clear that the appellant in the operation of his side line store does not fall within the meaning above set forth of employment; he is not working for wages, he is not working under any contract of hire, written or oral, express or implied. He is, therefore, unemployed within the meaning of the unemployment compensation law. This construction does not strain in any way the meaning of that law. The Supreme Court in the State of Ohio v. Stevens, 161 Oh St 432, at page 434, affirms the following guide to be used in the interpretation of a statute:

“In the second paragraph of the syllabus in the case of Slingluff v. Weaver, 66 Oh St 621, 64 N. E., 574, this court held:
“ ‘2. But the intent of the law-makers is to be sought first of all in the language employed, and if the words be free from ambiguity and doubt, and express plainly, clearly and distinctly, the sense of the law-making body, there is no occasion to resort to other means of interpretation. The question is not what did the General Assembly intend to enact, but what is the meaning of that which it did enact. That body should be held to mean what it has plainly expressed, and hence no room, is left for construction.’”

It is interesting to note that the Bureau of Unemployment Compensation Regulation 412.2 Miscellaneous disqualifications contains the following:

“An individual who is self-employed is not considered eligible for benefits unless his self-employment is subordinate to a principal occupation.”

This would seem to indicate that the regulations of the Bureau recognize specifically that one who is self-employed may be entitled to unemployment benefits.

Sec. 4141.91 (N) R. C., reads:

“An individual is ‘partially unemployed’ in any week if, due to involuntary loss of work, the total remuneration payable to him for such week is less than his weekly benefit amount.”

Sec. 4141.01 (M) R. C., reads:

“An individual is ‘totally unemployed’ in any week during which he performs no services and with respect to such week no remuneration is payable to him.”

Sec. 4141.01 (H) R. C., defines remuneration to be: “All compensation for personal services, including commissions and bonuses and the cash value of all compensation in any medium other than cash.”

The Unemployment Act, therefore, takes into consideration any remuneration which the employee may receive for personal services from any other source, and such remuneration paid within the week is deductible from that weekly benefit.

The decision of the Board of Review is reversed as being contrary to law. An entry may be draw by counsel accordingly.