author: By SKEEL, PJ.:

text:
    KAMINSKI et, Plaintiffs-Appellees, v. LAWYERS TITLE INSURANCE CORPORATION, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22343.
    Decided February 18, 1952.
    Robert A. Good, Ralph Dodero, Cleveland, for plaintiffs-appellees.
    Klein & Diehm, Cleveland, for defendant-appellant.
   OPINION

By SKEEL, PJ.:

This appeal comes to this court on questions of law from a judgment entered for the plaintiff in the Common Pleas Court of Cuyahoga County. The action is one for alleged breach of the provisions of an escrow agreement.

The plaintiffs’ petition alleges that in a transaction in which the plaintiffs contracted with Sinclair Hill Builders Inc., to build them a brick single residence on a lot located at 7507 Ridgefield Avenue, Parma, Ohio, the defendant was agreed upon by the parties as the escrow agent. It is alleged that the escrow agreement provided in part that there would be deposits in escrow with the escrow agent of $12,400.00 (the purchase price). It further contained the following provision:

“After all funds and instruments have been deposited, you are to file for record the instrument deposited herein with you when you are in a position to furnish the-for the amount of the purchase price, guaranteeing the record title, * * * in the plaintiffs. * *
“After the above instruments have been filed for record you are to credit to the first party (Sinclair Hill Inc.) the balance of the purchase price, less charges * *

The plaintiffs allege that about September 8, 1948, there was deposited with the defendant as escrow agent the sum of $5,841.41 from another escrow and that the defendant, before the full purchase price had been paid, filed the deeds for record and closed the escrow and paid that amount, less charges, to Sinclair Hill Inc. It is further alleged that thereafter said contractor failed and refused to complete its contract to build the said dwelling to the plaintiffs’ damage in the sum of $5,305.80. That said damages were sustained by reason of defendant’s breach of said escrow agreement in paying out the monies received before the full amount had been paid in.

The defendant’s answer admits the escrow agreement, denies all other allegations and pleads that the petition does not state a cause of action. A reply was filed denying all affirmative allegations of the answer.

The evidence which is not in dispute upon the material issues is as follows:

On April 4th, 1948, the plaintiff entered into a written agreement with Sinclair Hill Builders, Inc., a partnership, whereby the builders were to construct a brick single home for the plaintiffs at 7507 Ridgefield Avenue in Parma, for $12,400.00. A down payment of $2,500.00 was made at about the time the contract was signed. At the same time the plaintiff gave Sinclair Hill, real estate brokers, the exclusive right to sell their home at 1526 Botany Avenue for $9,500.00 for the sale of which they were to recceive the regular real estate commission.

The new home was' to be built on a lot in Parma which the builder was to acquire, the builder to receive in exchange therefor a lot owned by the plaintiffs on West 13th Street in the City of Cleveland. The builder acquired the designated lot for $1,000.00 and had the deed made directly to the plaintiffs. This deed was dated May 28, 1948 and was delivered to this defendant with the other papers in the escrow on September 8, 1948. The plaintiffs delivered a quit claim deed for the 13th Street lot to the builder.

On April 28, 1948, Sinclair Hill, real estate brokers, acting through Wm. M. Hill, a partner, sold the Botany Avenue property for $9,350.00 and received $2,925.00 on the purchase price which, to the knowledge of the plaintiffs, was retained as a payment on the contract to build the single brick home at 7507 Ridgefield Avenue. At the time of the sale of the Botany Avenue property, the plaintiff signed an escrow agreement with the broker and the purchaser, at the broker’s office placing the Botany transaction in escrow with the defendant and at said time the plaintiff also delivered an executed deed to said property to the broker. That escrow agreement provided that the proceeds should be transferred to another escrow agreement signed by the plaintiff in the office of Sinclair & Hill for the purchase by the plaintiff of the Ridgefield property.

On September 8, 1948, the balance due from the purchasers of the Botany Avenue property of $6,425.00 was paid to the defendant. The transaction was thereupon completed and there remained to the credit of the plaintiff $5,841.00 which was transferred to the escrow for the purchase of the Ridge-field property.

The provisions of the second escrow agreement, wherein the plaintiff was purchasing the Ridgefield Avenue property from Sinclair & Hill, in part provided that after all of the funds were deposited with the defendant it was to file for record the deeds that had been deposited with it and when it was in a position to furnish title insurance in the amount of the purchase price, guaranteeing the record title in the plaintiff the escrow agent was then to pay to the seller (contractor) the balance of the purchase price, less charges.

The amount so held on deposit, plus the amounts previously paid to the seller (contractor) by the plaintiff and the down payment on the Botany Avenue property, left undeposited abount $1,124.00. The seller, on September 9, 1948, authorized the defendant to file the deeds, endorsing on the escrow agreement, the following:

“9/9/48. File deeds and we will collect any shortage due from Kaminski in this transaction.
Sinclair Hill Builders Inc.
By Wm. M. Hill.”

The defendant thereupon, on September 10, 1948, filed the deeds with the county recorder, paid out to the seller (Sinclair Hill) the funds on deposit and closed the escrow.

After the escrow had been closed on September 10, 1948, Sinclair & Hill notified the plaintiffs to pay the balance due to the defendant and in response to such demand the plaintiff drew $1,124.00 out of a bank account and tendered it to the defendant at their office as the balance necessary to complete the transaction. The plaintiffs were then informed by the defendant that the escrow had been concluded, gave them an accounting and refused to take the money tendered by the plaintiff. The plaintiffs had not been notified prior to this incident which took place on Sept. 28, 1948, of the manner in which the escrow had been concluded.

The contract dated Apr. 4, 1948, in which the plaintiffs contracted to have Sinclair Hill Builders Inc., construct a dwelling for them on Ridgefield Avenue for $12,400.00 provided in part:

“The agreed construction cost of the above mentioned property is $12,400.00. The full construction cost is to be deposited in escrow at a mutually agreed bank or trust company. * * *
“Party of the First Part (plaintiffs herein) hereby deposits the sum of $2500.00 to the party of the second part (Sinclair & Hill) which amount will be credited to them in the escrow.”

The only provision in the escrow agreement on the subject of payment is quoted above. The parties had therefore made no agreement that payment should depend on the progress of the work and when the full deposit was made the builder was entitled to the money without regard to the work done. The escrow agreement was signed almost at the beginning of the transaction and deposited with the builder and the date of the deposit of the money was wholly dependent upon receiving payment for the Botany Avenue property except for the balance of $1124.00 which was tendered when demanded on September 28, 1948.

The building at the time the escrow was closed, was a little over fifty percent completed. It was claimed by defendant that further work was done after Sept. 10, 1948. In any event, the builder thereafter defaulted in the performance of the contract and Hill left the jurisdiction in early November, 1948. The plaintiff was compelled to finish the house at a cost in excess of five thousand dollars. It was upon these facts that the plaintiffs were awarded a judgment in the sum of $4000.00.

Defendant claims the following prejudicial errors:

1. The defendant was entitled to a verdict and judgment as a matter of law.

2. The court erred in its charge.

3. The verdict and judgment were excessive.

The foregoing evidence given for the purpose of proving the allegations of plaintiffs’ petition, when considered in the most favorable light in support of plaintiffs’ contentions, establishes the following facts:

1. That the plaintiffs dealt directly with Sinclair Hill through Wm. M. Hill, concerning the purchase of a new home to be built in Parma and the sale of their then residence on Botany Avenue.

2. That all payments, except the money received from the mortgage of the Botany Avenue property and all contracts, deeds and escrow agreements were signed and delivered to Sinclair & Hill before the defendant had any knowledge of the transaction other than verbal instructions that title searches were to be made which were received after the sale of the Botany Avenue property.

3. The plaintiffs did not rely on the defendant to make payments to the builder, based on the progress of the construction, nor was the defendant ever directly instructed at the time the escrow agreement was delivered to it that the building was still under construction. In fact, by the description of the escrow instruction dealing with the Parma property, it could reasonably be assumed that the transaction at the time was concerned with a completed dwelling.

4. The provisions of the escrow agreement that papers were to be filed when all the funds had been deposited, was not intended by the parties to mean that the escrow agent (defendant herein) could not act until $12,400.00 had been received. To the knowledge of the plaintiffs by their own acts and that of Sinclair & Hill $5425.00 had been paid to the builder before the escrow agreement had been accepted by the defendant.

5. The provision of the escrow agreement that the deeds were to be filed when the purchase price had been deposited was for the benefit of the contractor and not the plaintiff (the escrow agent not being charged with the duty of withholding payment until the building was completed) and when the deed was recorded whereby plaintiffs became the legal owners of the property, before they had performed the obligation imposed upon them to pay the balance due the seller of $1124.00 into escrow, such act did not breach any promise or benefit due the plaintiffs under the escrow agreement.

6. Whatever took place thereafter, with regard to the failure of the contractor to complete the building, could not constitute the breach of any duty or a damage that might have been reasonably anticipated as a result of the breach of any duty owed by defendant to plaintiffs, under the terms of the escrow agreement.

7. Plaintiffs, by their conduct on Sept. 28, 1948 (18 days after the escrow had been closed and the funds on deposit had been paid to the builder) were not concerned with the progress of the work or its relation to the payment of the purchase price to the builder, because if the offer to pay the balance due had been accepted they would thereby have compelled the abstract company to conclude the transaction and $1124.00 more than was paid would, under the escrow agreement, have been paid to the builder without any reference to the progress of the work, the tender being made at a time when plaintiffs lived close to the building and knew at all times what was being done. They cannot now charge defendant with a claimed foreseeable result that they themselves did not see in attempting to make it necessary by depositing the rest of the contract price to cause the entire balance to be paid to the contractor. The plaintiffs, by this conduct, place an interpretation on the terms of the escrow agreement totally different than they now seek to impose against the defendant.

8. Neither the contract for the building of the house, nor the escrow agreement, provided for payment as the work progressed, but was dependent upon the sale of the Botany Avenue property which was bound to be long before the house was completed.

Upon the foregoing undisputed facts, the plaintiffs have failed to establish any breach of the provisions of the escrow agreement effecting any of their substantial rights thereunder or even if such breach was established, that any foreseeable damage to the plaintiffs resulted.

In 19 American Jurisprudence, page 438, it is declared:

“According to some decision, a condition in the deposit of a deed in escrow for the sole benefit of one of the parties, may be waived by such party and a delivery enforced notwithstanding such condition.”

The plaintiffs cannot make their own default in payment of the balance due into the escrow account the means of withholding the right of the contractor to waive the provision (which is for his sole benefit) that when all of the funds have been deposited the deeds shall be filed and the amount due under the contract paid to him. The plaintiffs received everything they were entitled to under the escrow agreement, without themselves having met the full obligations thereunder.

We must- conclude, therefore, that the defendant was entitled to a directed verdict and judgment at the conclusion of the case. But having overruled such motion the court committed error prejudicial to the rights of the defendant, as was also true in overruling defendant’s motion for judgment notwithstanding the verdict.

Having come to this conclusion, an extended consideration of the other claims of error will be unnecessary. Under the theory of the case, the court’s charge and the refusal to submit a defendant’s verdict, was erroneously prejudicial to the defendant.

The cause is therefore reversed and remanded with instructions to grant defendant’s motion for judgment notwithstanding the verdict. Exceptions noted. Order see journal.

HURD, J, THOMPSON, J, concur.


source: Caselaw Access Project

author: By ZIEGEL, J.

license: Public Domain

text:
    WEDL, Adoption, In re.
    Probate Court, Preble County.
    No. 17573.
    Decided August 4, 1952.
    Warren E. Slifer, Germantown, for the petitioners.
    Dye & Ernst, Eaton, for the parents.
   OPINION

By ZIEGEL, J.

The sole question before this Court is whether the natural parents of the child sought to be adopted have “willfully failed to properly support and maintain the child for a period of more than two years immediately preceding the filing of the petition,” so as to come within the provisions of sub-paragraph (R) (4) of §8004-6 GC, which avoids the necessity of actual consent to adoption on the part of parents under such circumstances. Here the natural parents specifically refused to consent to the adoption and both of them appeared in Court with counsel and vigorously resisted the granting of the petition.

The essential facts as found by the Court reveal that Nancy Jo Schul was bom on February 19, 1949 to Emily Caroline and Irvin Jacob Schul. At that time there were six other children in the Schul family, three of whom were mentally retarded. Realizing that another child would add considerably to the burdens already existing and appreciating the inadvisability of raising another child in the same household with those who were feebleminded, even before the birth of Nancy Jo discussion took place between the Schuls and the Wedls, the petitioners herein, Belva Wedl being a sister to Emily Schul, concerning the Wedls taking charge of the new baby. The Wedls were then and are still now childless. An arrangement was arrived at, with the result that several'hours after the birth of the child she was turned over to the Wedls and has resided with them ever since. No discussion was had concerning payment of support by the Schuls and while apparently there was some talk of the eventual adoption of the child no conclusions were reached on this point. Specifically, it appears that Irvin Jacob Schul, Nancy Jo’s father, was even reluctant about permitting the Wedls to keep her at all.

Thereafter these two families visited back and forth. Nancy Jo knew that the Schuls were her parents. Gradually disagreement concerning the child developed, with the result that several months before the petition for adoption was filed all contacts between these two families ceased. At no time did the Wedls request or seek any assistance from the Schuls, or try to get the Schuls to assume custody of her. It appears that during all of this time the Schuls were physically and financially able to contribute to the support of Nancy Jo, although except for Christmas and birthday presents nothing was offered. As to the Wedls, it is evident that they provided an excellent home for the child and treated her as if she were their own.

From the above it is obvious that the Schuls have not personally supported or maintained the child, and that this personal failure continued for a period of in excess of two years prior to the filing of the petition for adoption. The question to be decided, however, is not whether the Schuls personally supported and maintained the child, but whether they “willfully failed to properly support and maintain” her. The reported case law of Ohio is completely devoid of anything that might aid the Court to determine what the legislature meant by “willfully failed to properly support and maintain.” A historical review of Ohio’s various adoptions statutes and a search in other jurisdictions has, however, proved helpful.

Ohio’s first adoption statute was passed in 1859 (56 Ohio Laws 82). This statute provided that the written consent of the parents of a child was a prerequisite to the adoption, of that child by another unless, insofar as it applies to the factual situation in the case at bar, the parents had “abandoned” said child. This enactment became Revised Statutes Section 3137 and after 1910 §8024 GC; although it was amended several times in other respects (See 67 Ohio Laws 14, 1870; 93 Ohio Laws 117, 1898; and 102 Ohio Laws 305, 1911), the word “abandoned” remained without interruption from 1859 to 1921 when the statute was again amended (109 Ohio Laws 177), the number changed to §8025 GC, at which time all reference to the word “abandoned” was omitted. The 1921 Act spelled out the type of consent required much more completely than had any former act. The written consent of the parents was required except, in essence, (1) the parent or person awarded custody by the juvenile court might give consent if the juvenile court approved; (2) the parent awarded custody by a divorce decree could give consent if the divorce court approved; (3) the legal guardian could give consent if both parents were dead; (4) a certified institution having permanent custody acquired either by voluntary surrender or court commitment might also execute a written consent to the adoption. It may be noted in passing that under the facts in the instant case as applied to the 1921 Act the petition for adoption could not possibly have been granted.

It is also well to pause here and consider the effect of the word “abandon” as it appeared in the Ohio Adoption Act from 1859 to 1921. Again there is no reported Ohio case law definition in point. A survey of existing adoption statutes, however, reveals that this word “abandon” still appears in many of them in connection with avoiding the necessity of parental consent to an adoption, and there are numerous reported case law definitions on this point from other states, particularly in Illinois, Pennsylvania, and New York. The settled definition seems to be that abandonment of a child, within the meaning of the Adoption Act, imports any conduct on the part of a parent which evidences a settled purpose to forego all parental duties and relinquish all parental claim to the child. For a few of such cases, of which there are many, see: In re Cohen’s Adoption, 279 N. Y. S. 427; Check v. White, — Ill. App. —, 91 N. E. 2d 640; In re Diana, 165 Pa. Super. 12, 67 A. 2d 751; In re Adoption of Susko, 363 Pa. 78, 69 A. 2d 132; Stalder v. Stone, 344 Ill. App. 266, 100 N. E. 2d 497. Specifically, it has been held that merely permitting a child to remain for a time undisturbed in the care of others is not such abandonment as would deprive a parent of the right to prevent adoption of such child since in such case abandonment must be “willful”; that is, accomplished purposely and deliberately, in violation of law. Truelove v. Parker, 191 N. C. 430, 132 S. E. 295. Further, a child left in the care and custody of another by its parents, without agreement or provision for its support, mere failure of the parents of the child, in the the care and under the custody of another, to contribute, while it is in such custody and care, to its support and maintenance, does not constitute abandonment. In re Kelly, 25 Cal. App. 651, 145 P. 156.

Applying the abandonment statutes and the adjudicated definitions to the instant case it is again obvious that the petition for adopion would have to be dismissed because of lack of parental consent. Under these definitions the Schuls have not “abandoned” the child. On the contrary they have kept close touch with it during all of the time that it has been with the Wedls. As a matter of fact the first sign of defection between these two families developed out of disagreement over the child. They have not evidenced any settled purpose to forego all parental duties and relinquish all parental claim to the child. The fact that the Schuls have not contributed to the support of the child is not a criterion for determining abandonment.

The Ohio Adoption Act reached its most severe point in 1921 when some positive prior act, either on the part of a court or in the voluntary surrender of a child to a certified institution by the parents was required before written parental consent to an adoption could be dispensed with. The 1921 Act continued without change until the passage by the legislature of the new Probate Code in 1931, at which time the various adoption laws were incorporated in that Code. Former §8025 GC became §10512-11 GC (114 Ohio Laws 472). This 1931 enactment used the words “failed and refused to support the child for two consecutive years,” and provided that if one parent so “failed and refused to support the child” the written consent of the other was sufficient; or if both of the parents so “failed and refused to support the child,” the consent would be given by the juvenile court. Neither the word “willfully” nor the word “abandoned” is used here, but instead the word “refused” appears. Webster’s New International Dictionary, Second Edition, defines “refuse” as “to decline to accept, to reject; to decline to submit to or undergo; to decline to do, give or grant.” In other words, refusal is an active, as distinguished from a passive, concept. While a parent may “fail” to support a child by doing nothing, that parent cannot be said to have “refused to support a child unless he specifically declines to carry out a positive request or lawful order to support the child. The conjunctive “and” was used in the 1931 Act undoubtedly in its common sense, so that the words “failed and refused” must be read and considered together. Thus, under the 1931 Act as applied to the instant case, the Schuls cannot be said to have “failed and refused to support” Nancy Jo since at no time did the Wedls either request or direct them so to do.

Although a minor amendment occurred in 1939 (See 118 Ohio Laws 626), there was no significant change insofar as the determination of the present case is concerned until 1943 when the legislature decreed that the consent of the parents of a child to an adoption of that child would not be required if the parents had “willfully neglected”- the child for two years, in which case the Probate Court would certify the matter to the Juvenile Court for a hearing upon that question, the Juvenile Court to certify its findings back to the Probate Court. (See 120 Ohio Laws 434, which also changed the number to §10512-14 GC.) For the first time the word “willfully” appears in the Ohio Adoption Code. The very next session of the legislature again amended this section, this time to approximately its present form, the words “willfully neglected” being changed to read “willfully failed to properly support and maintain” and the intervention of the Juvenile Court being dispensed with. (See 121 Ohio Laws 448). The present act was passed in 1951 and, although there were a few insignificant amendments, amounted primarily to a recodification of existing law, the section number being changed to §8004-6 GC. (124 Ohio Laws, S. 65).

A survey of the language employed in these various Ohio adoption statutes plainly indicates that their express purpose is to protect the inherent rights of natural parents to their children, and to spell out specifically how those rights can be lost insofar as legal adoption of the child by outsiders is concerned. Adoption statutes, being in derogation of the common law which does not recognize adoption, should be strictly construed. While the language of the present act permits more latitude in determining when the rights of parents to their child have been lost so that their positive consent to an adoption of that child by another is not required, it does not open the door completely. The word “willfully” still appears to require a showing of something more than a simple failure properly to support and maintain. “Willful” has been defined by Ohio courts in other types of cases where the word is used in a statute, and a summary of these decisions indicates that the closest synonym is “intentional” or “an intentional omission of a duty.” Rankine v. Penna. & O. Coal Co., 15 C. C. (ns) 17, 23 C. D. 349; Saxton v. Seiberling, 48 Oh St 554, 29 N. E. 179, as used in divorce statute it means intentional, purposely, designedly, Hanover v. Hanover, 34 Oh Ap 483, 171 N. E. 350.

In the light of these definitions, in the light of the historical development of Ohio’s Adoption Act, it cannot be said under the facts of this case that the Schuls have “willfully (or intentionally) failed to properly support and maintain” their daughter Nancy Jo. Their failure consisted of the simple and excusable failure of not providing any financial assistance to the Wedls in the care of the little girl. On the other hand they kept in close touch with the Wedls and with Nancy Jo and were constantly assured that she was being well cared for. They stood ready at any time to perform their normal parental duties. Such conduct can neither constitute abandonment, or refusal to support, or willful neglect, or willful failure to properly support. The Schuls not having consented to the adoption of their daughter Nancy Jo by the Wedls and not having waived their rights to the child by any act or failure to act on their part, the petition for adoption must be dismissed.

It is with reluctance that the Court has arrived at this conclusion. The Wedls pass all of the tests for an excellent adoptive placement for Nancy Jo. Since her birth they have given her the only steady diet of love and care that she has known. All of the evidence indicates that her life with the Wedls would be much more happy, pleasant and profitable to her than it will be if she is returned to the Schuls. This court, however, cannot arbitrarily set aside positive rules of law in favor of social theory. Ours is a government of law, not of men.


author: By THE COURT:

text:
    DEVLIN et, Plaintiff-Appellant, v. WEBSTER et, Defendants-Appellees.
    Ohio Appeals, Second District, Montgomery County.
    No. 2136.
    Decided January 10, 1952.

      Nichols, Wood, Marx & Ginter, Cincinnati, Canny & Holzfaster, Dayton, for plaintiff-appellant.
    Estabrook, Finn & McKee, Arthur Meyring, Guy Miller, Dayton, Alley, Cole, Grimes & Griedman, New York, New York, for defendants-appellees.
   OPINION

By THE COURT:

Submitted on an appeal on questions of law from a judgment of the Common Pleas Court. The judgment was entered after plaintiff had elected to plead no further, demurrer to the first cause of action and certain motions to strike from the third cause of action treated as a demurrer having been sustained. A motion to strike certain parts of the second cause of action was also sustained. The action of the trial judge as to these orders is challenged by the appeal.

The demurrer to the first cause of action was predicated upon a statute of limitations. Appellees maintain and the Court adopted the contention that the cause of action was governed by §11224 GC, the four year statute of limitations and that the cause of action accrued more than four years prior to the filing of the petition.

We have been favored with the separate opinions of the trial judge upon the demurrer to the first cause of action and upon the motions to the second and third causes of action. We are in accord with the conclusion reached by the trial judge on the demurrer to the first cause of action and the reasons assigned therefor and without further comment, hold against the appellant on the first assignment of error.

The second assignment is that the Court erred in striking most of the material allegations from plaintiffs second cause of action. The motion was to strike from the second cause of action of the petition all allegations following the figure $1,250,000.00 in the seventh line thereof on the ground that said allegations plead conclusions of law and fact rather than ultimate facts. The Court sustained the motion in its entirety. With the matter stricken as ordered by the Court the second cause of action would read:

“For her second cause of action plaintiff adopts and incorporates all of the allegations contained in her first cause of action as if entirely rewritten herein and says that in or about February, 1946, defendant WEBSTER, and the other individual defendants who were then directors of STANDARD, caused STANDARD to acquire all of the outstanding capital stock of CLIFFORD FOR approximately $1,250,000.00.”

It should be noted that the motion here under consideration and the motion to the third cause of action are to strike certain portions of the petition.

In the type of action here, a derivative suit by a shareholder, on behalf of her corporation, who pleads want of knowledge of certain specific facts material to the causes of action because of the dominant position of the defendants, the controlling directorate of the corporation, much liberality is accorded the pleader. 19 C. J. S. 218, 219; Mann v. Luke, 44 N. Y. S. (2d), 202, 2nd syl., and every fair intendment must be resolved in favor of such a pleading in a test of its sufficiency:

“A pleading is sufficient if, on analysis, it indicates a case of wrong doing particularly in case of complaint in stockholder’s action in which a wider latitude is warranted because of plaintiff’s apparent difficulty of acquiring detailed knowledge.” 2nd Syl. Mann v. Luke, et al, supra.

Substantially, plaintiff pleads in her second cause of action that the defendants in acquiring all of the outstanding capital stock of Clifford for approximately $1,250,000.00 did so with the knowledge that the consideration paid for the stock was greatly in excess of its true value; that in consumating the transaction by which Standard acquired the stock the defendant directors of the Standard, dominated by defendant Webster, disregarded their duties for the purpose of enriching themselves at the expense of Standard and further, that defendant Webster and the other individual defendants, who were then directors of Standard, made secret profits in connection with said acquisition by means of commissions granted to them with respect to the sale of Clifford stock to Standard.

The mere fact that the pleader did not state the amount in dollars, that Standard paid for the Clifford stock does not afford support for the conclusion that it should be stricken. The averment is definite that the amount paid was greatly in excess of the true value of the stock of Clifford and that in completing the transaction, viz: in paying a sum far in excess of the value of the Clifford stock the directors acted in violation of the good faith owed by them as quasi trustees of the stock holders and that the breach was willful and fraudulent. It is permissible to characterize acts set forth which of themselves permit a conclusion of bad faith as willful and fraudulent.

It is asserted that the plaintiff in pleading that:

“the consideration paid by Standard was greatly in excess of the true value of said stock and that the purchase price was grossly excessive and a waste of the assets of Standard.” was an expression of one idea in three different ways. Assuming that is true, if the idea expressed is the averment of an ultimate fact it is sufficient to meet the demand of good pleading. It follows the specific averment of the acquisition of all of the outstanding stock of Clifford for approximately $1,250,000.00, in connection with the adopted allegations from the first cause of action stating defendant Webster’s relation to Clifford and his domination of the directors of Standard.

It is urged that the averment that “the defendants arranged and consumated the acquisition of Clifford contrary to the duties owed by them to Standard as directors thereof for the purpose of enriching defendant Webster and other individuals,” offends the rule against the pleading of ultimate facts and is not in furtherance of any cause of action pleaded by the plaintiff. We do not agree with either of these propositions. The quoted language must be read with that which precedes it. Manifestly, had the plaintiff undertaken to plead with particularity those acts which were done by the Directors in consumating the transaction whereby Clifford stock was obtained she would be properly met with the claim that she was pleading evidence. We are in accord with the rationale of the opinion in Shaw v. Midland Bank, 70 Oh Ap 181, and believe that it has application to the second and third causes of action of the plaintiff in this case.

We are cited to Railroad v. Wilson, 31 Oh St 555, to the effect that an allegation of duty without stating the fact from which the duty arises, is without legal significance. It is not necessary to plead the well recognized obligation of the directors in performing their official duties to act fairly toward the stock holders whose corporation they are administering, nor is it necessary to further elucidate how Webster profited by the purchase by Standard of the Clifford stock beyond the averments of his relationship to Clifford and Standard in connection with a grossly excessive purchase price, and his full knowledge thereof.

In our judgment, no part of the second cause of action of the petition should have been stricken.

The motions directed to the third cause of action are numbered, second to the eleventh inclusive. The trial judge sustained all of them, treated them as a demurrer and sustained the demurrer. The claimed infirmities of the averments in the third cause of action are characterized as irrelevant, immaterial, pleading of conclusions and not averments of ultimate facts.

Coming specifically to the numbered branches of the motions directed to the third cause of action, we hold that the Court did not err in sustaining the second motion as to that part of the paragraph following “herein,” third line, page seven, and ending with “themselves,” eighth line, page eight; in sustaining the third, seventh, eighth, ninth and tenth motions and erred in sustaining the second excepting only the word “Consequently,” line eight, page eight; the fifth and sixth motions. The eleventh motion is not definite and certain as to the particular part of the cause of action to which it is directed.

We recoginze that there may be some doubt if the phrase beginning in the third line of page nine is appropriate but do not hold that it should be stricken. It reads: “and made without the knowledge or consent of the shareholders of Standard.”

Some of these averments may be subject to a motion to make definite and certain but to strike them from the petition and thereby prevent their restatement in any subsequent pleading is not justified. Briggs v. The Gilbert Grocery Co., 116 Oh St 343.

Notwithstanding the deletions resulting by the sustaining of the motions to the third cause of action it states a good cause of action against the general demurrer and in sustaining the demurrer the judgment must be reversed.

The judgment will be affirmed in part and reversed in part in accordance with this opinion and the cause will be remanded for consideration of the alternative part of the first motion directed to the second cause of action which seeks to require that certain averments thereof be made definite and certain and for further proceedings according to law.

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


author: By PORTER, J.

text:
    COLLINS v. JORDAN et.
    Common Pleas Court, Miami County.
    No. 33606.
    Decided June 14, 1949.
    McKeever & Monahan, Wapakoneta, for Collins.
    James H. DeWeese, Piqua, for Jordan.
   OPINION

By PORTER, J.

This is an action for a declaratory judgment. The plaintiff, Henry Collins, has in his possession the bonds in question, all of which are series G U. S. Government bonds as follows:

M1460977G dated April 1943 in the amount of $1000.00
M925646G dated Oct. 1942 in the amount of 1000.00
M1675783G-dated Sept. 1943 in the amount of 1000.00 D1410306G dated Sept. 1944 in the amount of 500.00
D849498G dated Feb. 1944 in the amount of 500.00
D1407756G dated June 1944 in the amount of 500.00
D1411427G dated Nov. 1944 in the amount of 500.00

These are registered in the name of C. Ray Jordan, now deceased, and are payable on death to his wife, who predeceased him. In his petition the plaintiff maintains that the bonds were given to him by C. Ray Jordan, “during his lifetime,” but whether the alleged gift was inter vivos or causa mortis is not specified.

To support such a gift clear and convincing evidence is required. Bolles v. Toledo Trust Co., 132 Oh St 21, 4 N. E. 2d 917. The evidence has not been of that character.

As far as the proof showing that there has been a gift causa mortis there has been a complete failure. I think that all it is necessary to note in this connection is that nowhere in the record is it disclosed that at the time of the delivery of the bonds, April, 1948, by C. Ray Jordan to the plaintiff was C. Ray Jordan under an apprehension of death. It also appears in the record that C. Ray Jordan continued after the delivery to receive the interest (R. 16) and this was a retention of control inconsistent with a gift causa mortis. Furthermore, a gift causa mortis is conditional. “It is not complete during the donor’s life, but takes effect only upon his death. It may be revoked before the donor’s death. Since it is made in contemplation of death, there is a defeasance of the gift if the danger of death passes without the donor dying.” 20 O. Jur., page 45. The alleged gift here took place April, 1948. C. Ray Jordan died March 31, 1949. Certainly even if there was an apprehension of death on the date of the gift, it was not made in last sickness, “by a donor who is in peril or apprehension of death.” Or if he was, that extremity passed and there was a defeasance.

I dwell on this because there are some cases in other jurisdictions in which a gift causa mortis of registered bonds such as those involved in this case has been recognized. In re Borchard’s Estate, Sur., 1942, 179 Misc. 456, 38 N. Y. S. 2d 987; Dietzen v. American Trust & Banking Co., 175 Tenn. 49, 131 S. W. 2d 69. The reasoning of these holdings is that the treasury regulations do not forbid testamentary dispositions and gifts causa mortis are much the same.

The plaintiff’s claim that there was a gift inter vivos has not been proved by clear and convincing evidence either. It is necessary to recall that the essential elements of such a gift are:

1. A present intention to transfer the title and right of possession' to the donee, and,

2. A delivery by the donor to the donee of the subject matter of the gift to the extent practicable or possible.

Next, it is necessary to look at the record in the light of this rule. When this is done, it is seen at the most C. Bay Jordan wanted Henry Collins to have the bonds “after he died” (R. 20, 21, 41, 42). The nature of the gift is therefore seen to be as an ineffectual testamentary disposition.

However, in the interest of the finality of this decision, the court has assumed that the necessary elements of a gift inter vivos were present, and has examined the cases which hold the answer to the question — Is it possible to make such a gift of a government bond of the type in question?

The exact question hasn’t come under discussion in any Ohio case of which I am aware. However, the nature of such bonds as contracts between the federal government and the purchaser is- clearly established by the line of cases involving the right of the person designated as beneficiary to become the absolute owner on the death of the purchaser. In re Di Santo’s Estate, 1943, 142 Oh St 223, 51 N. E. 2d 639; Laufersweiler v. Richmond, Probate Court, 1942, 8 Ohio Supp. 76.

It was observed by the Supreme Court in the Di Santo case, 142 Oh St at page 231, 51 N. E. 2d at page 642, that the terms of the treasury circulars are specifically made a part of the contract as if they were fully set out in the bond form. This is followed by this statement:

“The bonds in question are not transferable. The identity of the owner as well as that of the payee is to be determined according to the tenor of the bond.”

The opinion concludes with the statement: “Being of the opinion that each of the bonds in question evidences a contract between the United States of America and the registered owner for the benefit of a third person, the designated beneficiary, the judgment of the Court of Appeals should be and hereby is affirmed.”

Before discussing selected cases arising outside Ohio which do involve the question, it is helpful to note that the authority for the issuance of these bonds is found in 31 U. S. C. A. §757c. Pursuant to this statutory authority, the Secretary of Treasury has promulgated certain regulations governing the transfer of such bonds. One is 315.11 which reads as follows:

“Not transferable. Savings bonds are not transferable and are payable only to the owners named thereon, except in case of the disability or death of the owner, authorized re-issue, or as otherwise specifically provided in this sub-part, but in any event only in accordance with the provisions of these regulations.” C. C. H., Federal Banking Law Reporter, Vol. 1, page 8506.

As previously noted, the bonds in question are Series G bonds. Examination of circular No. 530, Vol. 1, C. C. H. Federal Banking Law Reporter, page 8501 et seq., shows that it applies to all United States savings bonds including E, F and G. I mention this because E bonds were involved in the first selected ease to be discussed, one which involves a gift causa mortis (but the reasoning of the opinion is applicable to a gift inter vivos). It is Fidelity Union Trust Co. v. Tezyk, a case decided by the New Jersey Court of Errors and Appeals September 12, 1947 and reported in 140 N. J. Eq. 474, 55 A. 2d 26, 173 A. L. R. 547.

In that case on February 5, 1945, the decedent, in whose name E bonds were registered, told the donee’s mother that he wanted to see her daughter. Mother and daughter went to his apartment and he gave the mother a brown envelope and said, “This is going to help you send your son through school.” The donee kept these bonds until after the death of the decedent, on February 10, 1945. The question presented was whether or not E war savings bonds can be subject of a gift causa mortis when no further action is taken beyond a handing over to the donee with an expression of intention that ownership shall be transferred. The court observed:

■ “This is a novel question in this jurisdiction, and the vast holdings of bonds of this type make the question one of serious import.”

It points out further that the cases from various jurisdictions are consistent in holding that such bonds represent a proper pledge of federal credit; that the legislation providing for such bonds properly makes them subject to regulations of the Treasury Department; and that such regulations must be recognized and given the force of federal law by the courts of the various states. It therefore considered the real question to be whether the federal regulations affecting bonds of this type impose conditions which support or prohibit a gift of such bonds causa mortis.

Regarding transferability, the regulation then in force was 315.8 which reads as follows:

“U. S. Savings Bonds are not transferable and are payable only to the owners named except in the case of disability or death of the owner or as otherwise specifically provided herein, but in any event only in accordance with the provisions of these regulations. * * *”

The court observed that such bonds have a peculiar status, “for they are intended for issue in every state, are backed by the credit of the federal government, and are offered for sale subject to conditions which it must be assumed were intended to enhance the borrowing power of the federal government. Conversely, it reasonably cannot be assumed that these conditions, made known to purchasers throughout the country, were intended to be subject to rules pertaining to the devolution of personal property in the various states, or to varying interpretations which might be accorded by the different state courts.”

The court cited section 315.2 which provides that U. S. savings bonds will be issued only in registered form. The form of registration used must express the actual ownership of and interest in the bond and, except as otherwise provided in these regulations, will be considered as conclusive of such ownership and interest. They observe that if gifts causa mortis of such bonds are held valid without re-issue and registration, then to that extent the federal regulations are set aside or made subject to state rules and that individuals, demonstrating circumstances of varying equity, may negate the conditions under which federal credit was pledged, and registration of these bonds no longer could be “considered as conclusive of * * * ownership and interest.”

Of special interest is the following observation of the court:

“It is possible that the real intentions of the donor would be achieved through upholding the validity of gifts causa mortis of E bonds. It can be argued that such gifts would not violate the apparent nature of these bonds and make them subject to barter and sale on the open market. At the same time, it seems quite clear that the conditions under which these bonds were issued makes registration the sole evidence of ownership with the one necessary exception of recognizing-formal procedures for the administration of estates. If any further exception is to be made for gifts causa mortis, then this action should be taken by the federal government, so that there might be a consistency in the terms of these obligations throughout the states.”

Next consideration is given to Marshall v. Felker, 1945, 158 Fla. 476, 23 So. 2d 555, 161 A. L. R. 167, in which a gift inter vivos of United States war savings bonds was sustained. Although the regulations governing the issuance provided that no judicial proceeding would be recognized if it gave effect to an attempted voluntary transfer inter vivos of a bond, the court did not construe this as making unlawful such a transfer, as between a donor and donee. It added that whether such a provision would become material in a controversy between the donee and the government was a question which was not before them. According to the editors of A. L. R., “It was the view of the court that the general rule that every species of personal property of which the legal or equitable title can pass by delivery, actüal or constructive, may be the subject of a valid gift, either inter vivos or causa mortis, is applicable to ‘not transferable’ savings bonds issued by the federal government so long as the federal statutes, rules and regulations under which they were issued, contain no express prohibition against the transfer of such instruments by gifts.”

The next case to be considered is that of Brown v. Vinson, decided by the Supreme Court of Tennessee in 1949, 188 Tenn. 120, 216 S. W. 2d 748, 749. In my judgment this is of special interest because the facts before the court were somewhat similar to those before this court and because of the careful analysis of the applicable authorities both pro and con by Justice Tomlinson.

The facts were that the owner of E bonds folded them one over the other and on the outside bond penciled the following: “To Leatha Vinson and (Oik) Vinson Bob Brown,” and thereupon delivered them to Vinson and wife as a gift inter vivos. Brown died a few weeks later. This was a suit between the administrator of his estate and the grantees in replevin.

The court noted that on the face of each bond it was stated that the bond was issued pursuant to treasury department circular No. 653 and that it was not transferable except as provided in said regulations and is payable only to the registered owner.

The court noted also that the circular referred to contained a regulation that bonds of series E will not be transferable and will be payable only to the owner named thereon except in case of death or disability of the owner or as otherwise specifically provided in the regulations governing savings bonds, and in any event, only in accordance with said regulations. Accordingly, after they are duly issued, they may not be sold, discounted or disposed of in any manner other than as provided in the regulations governing savings bonds and except as provided in said regulations, and the Treasury Department will recognize only the described owner during his lifetime and thereafter his estate or heirs.

The court first noted that under Tennessee law, a gift inter vivos is not effective until the complete dominion and control of the gift is surrendered by the donor and acquired by the donee. (The same is true in Ohio.)

In other words, the court concluded that the donor did not do everything possible to give the donee complete dominion over the gift because he did not have the bonds reissued in the name of the donee which he could have done under the regulations — or he could have named them as beneficiaries.

The court noted with approval the New Jersey case of Fidelity Union Trust Co. v. Tezyk, supra, wherein the question before the court was whether or not such bonds can be the subject of a gift causa mortis— and wherein it was concluded that it is clear that the conditions under which such bonds were issued make registration the sole evidence of ownership with the one necessary exception of recognizing formal procedures for the administration of estates. The reasoning of the New Jersey Court has already been set forth in this opinion.

Consideration is next given to the Kentucky case of Moore’s Administrator v. Marshall, 302 Ky. 729, 196 S. W. 2d 369, 372, 168 A. L. R. 241, wherein it is called to attention that the act of Congress authorizing the issuance of these bonds and the regulations of the treasury pursuant thereto are a part of the contract and restated the purposes called to attention in the Tezyk case. It noted that the Kentucky court, with reference to nontransferability, said:

“The non-transferability of the certificates was a protection and a security for both the government and the registered owner thereof, and this court has no power to waive this benefit on behalf of the government. * * *” The court notes that the Kentucky court made this further pertinent observation:
“A holding that these United States Savings Bonds are transferable by gift inter vivos would defeat the purposes of the Act of Congress and the Treasury regulations, and would open the door for evasion of plainly expressed restrictions on transfer.”

It further quotes with approval a pertinent excerpt from a Pennsylvania case as follows:

“That there should be one law regulating U. S. bonds is a matter of necessity and this must be the law of the Federal Government which issues the bonds.” [Ruben v. Ruben, 95 Pittsb. Leg. J. 65.]

The court recognizes that the Florida case of Marshall v. Felker, 156 Fla. 476, 23 So. 2d 555, 161 A. L. R. 167, holds that such bonds may be the subject of a valid gift inter vivos for the reasons mentioned herein where that case is discussed. The Tennessee court states that it is compelled to disagree with the conclusion of the Florida court and notes that it overlooks the clear purpose in the making of the regulations under which the bonds were issued and defeats those provisions though they are in fact a part of the contract. It further notes that if the donee cannot collect the debt evidenced by the paper called a bond, then, “it seems clear that the decision in the Florida case does not meet the requirements of our rule that a gift inter vivos must be complete.” Since the rule in Ohio is also that a gift inter vivos must be complete, this reasoning applies with equal force to the case before the court.

The Tennessee court also discusses the Dietzen case which is mentioned herein as authority for the proposition that gifts causa mortis of such bonds are okay on the reasoning that such gifts, while not testamentary in character, nevertheless bear some resemblance thereto in that it is a disposition of property in contemplation of death; and that under the fair interpretation of the regulation there is nothing therein inconsistent with the view that such bonds are transferable by will and by analogy by gifts causa mortis. They conclude that an attempted gift inter vivos, without registration, etc., in the name of the donee, is not effective, since it is a violation of the regulations and provisions under which these bonds were issued. It is stated that to hold otherwise would be to ignore the regulations which are a part of the law under which such bonds were issued and would hinder the accomplishment of the purposes intended by those regulations and lead to confusion in the disposition of the great amount of these bonds issued in every one of our states.

This court adopts as its own the reasoning of the New Jersey and Tennessee Courts and concludes that a bond of the type in question is not a proper subject of a gift inter vivos.

Accordingly, it is held on the issue joined in favor of the defendant and the prayer of the petition is denied. Counsel for the defendant will please prepare an entry carrying this decision into effect and submit it for approval.

Supplemental Decision

At the time the decision filed herein was written, the court had been cited to the so far unreported In re Estate of Sibert, No. 995 Court of Appeals of Allen County (60 Abs 113). It had been called to the court’s attention by the attorneys for the plaintiff. Possibly some mention should have been made of it in the decision. Since writing the decision, a copy of the opinion has been furnished to me and the holding is such as to require this supplemental decision.

The case was decided June 29, 1950. It was an appeal from the Probate Court of Allen County which held that the donees of certain registered United States Savings Postal Certificates might keep as their respective property though registered in the name of the decedent. According to the court the evidence showed that the decedent, a sister of the donees, was ill with cancer for several years before her death and she died from this illness on February 1, 1947. During her lifetime she was the owner of the postal saving certificates in question, and at the time of her death two of these were in the possession of each sister. They testified that in the latter part of August 1946 upon their sister’s return from the hospital, they .were given to them and that at the time the sister knew that she had cancer and could not recover.

The court stated the claim of the administrator to be that the title to these certificates did not and could not pass to the respondents, under the admitted facts in evidence. “That these certificates are non-negotiable and non-transferable and could not be the subject of a gift by delivery only, during the lifetime of the decedent.” The court observed further that it was unable to find where this question had been heretofore considered by the courts of Ohio but that it had been passed upon in the courts of other states. However, the only case outside Ohio discussed was that of Marshall, Executor v. Felker, the Florida case reported in 156 Fla. 476, 23 So. 2d 555, 161 A. L. R. 167. They quoted at length from the opinion in that case because, as stated, the views expressed therein were “in accofd with our view of the law governing the case at bar.” They noted that other cases cited by counsel involved the transfer of war savings bonds which “are governed by different rules and regulations than govern postal savings certificates.” However, a reference to the decision shows that in the Florida case both postal saving certificates and war savings bonds were involved. Without distinguishing between the two, the court in that case said [156 Fla. 476, 23 So. 2d 557]:

“It is the general rule that every species of personal property of which the legal or equitable title can pass by delivery, actual or constructive, may be the subject of a valid gift, either inter vivos or causa mortis. 28 C. J., Gifts, §§38, 39, 114; 38 C. J. S., Gifts, §§30, 31, 90; 24 Am. Jur., Gifts, §66. The rule applies to ‘nonnegotiable’ or ‘nontransferable’ postal savings certificates and savings bonds issued by the federal government so long as the federal statutes, rules and regulations under which they are issued contain no express prohibition against the transfer of such instruments by gift. In re Diskin’s Estate, 105 Pa. Super. 519, 161 A. 893; In re Vanicek’s Estate, 145 Neb. 531, 17 N. W. 2d 477; Blair v. Kirchner, 319 Ill. App. 348, 49 N. E. 2d 292; Dietzen v. American Trust & Banking Co., 175 Tenn. 49, 131 S. W. 2d 69.

“We find nothing in any of the rules or regulations brought to our attention which will prevent an inter vivos gift of the securities in question. Indeed, Section 1624 of the Postal Laws and Regulations seems to be clear to the effect that if the rights and interests of a donee beneficiary in postal savings certificates have been adjudicated by a court of competent jurisdiction payment will be made by the United States Post Office Department upon production of a judgment or decree containing such adjudication. And though section 315.151 of the Regulations governing the issuance of United States savings bonds provides that no judicial proceedings will be recognized ‘if they would give effect to an attempted voluntary transfer inter vivos of the bond’ we do not construe this provision as making unlawful such transfer, as between a donor and donee. Whether the quoted provision would become material in a controversy between the donee and the government is a question not before us, this being a suit between the donee and the executor of the decedent. Moreover, the fact that the donee may experince some difficulty in procuring the proceeds of the securities when they are presented to the issuing agency for payment is also outside the issue. But whatever the outcome of her controversy with the federal government may be when the bond is presented for reissue or payment, it is clear to us that as against the executor of the decedent she may acquire the bond by gift inter vivos, and with it whatever value it may possess in her hands.”

The Court of Appeals of Allen County gives the impression that it makes a great difference as to whether or not the nontransferable securities are postal savings certificates or war bonds, but the case on which they place chief reliance makes only slight, if any, such distinction (though it could have).

The case may be, therefore, authority for the position of the plaintiff that nontransferable bonds are the proper subject of a gift inter vivos. In fact it is, whether it was intended to be or not. However, it is not being followed because it is felt to be wrong.

It is believed to be wrong because the reasons which the Florida Court give in support of its holding just do not stack up when compared to the reasons advanced by those courts which hold such nontransferable and nonnegotiable bonds not subject to gift by delivery.

Selected eases involving the question are treated editorially in 161 A. L. R. 170 et seq. It is only necessary to appreciate the statement just made to read the decision in the Florida case and then read the decision of the Tennessee Supreme Court in the case of Brown v. Vinson, 188 Tenn. 120, 216 S. W. 2d 748.

ON MOTION FOR NEW TRIAL

There is for decision a motion for a new trial, in opposition and in support of which the parties have furnished helpful briefs.

The plaintiff has strongly urged that the Court was wrong in finding that the evidence did not clearly and convincingly show that there was a “present intention” on the part of C. Ray Jordan to transfer the title and possession of the bonds to him. Such a present intention is necessary in order for the plaintiff to establish that there was a valid gift inter vivos. The record has been combed for all the testimony pro and con on this question.

In support of the plaintiff’s position the chief fact is that it was established by three witnesses that Mr. Jordan did deliver the bonds in question to the plaintiff. He turned them over to him. According to Mrs. Collins, at the time he did so, he said, “Henry, they are yours,” (R. 11). At R. 11 and 14 the same witness said, “Yes, he [the decedent] said if it was all right with the mister he would like to have the interest for a little bit of pin money. * * * He said if it was all right with the mister. The mister said he could do with it as he pleased.”

Mr. Collins testified that when the decedent delivered the bonds to him he said, “Here, Henry, I will give you this for what you have done for me.”

Against the plaintiff’s contention is the testimony of Mr. Myers that the decedent said: “Henry, I want you to have these after I am dead. You put them away so you got them,” (R. 20, 21); and the testimony of Mr. Collins that the decedent said, “Henry, there is some interest coming due on the bonds and I will keep that for pin money,” (R. 26); and the testimony of Mr. Collins at R. 41, 42: “Q. I believe you testified that night Ray told you that he wanted you to have these bonds after he died. A. That’s right.”

In its former decision too much weight was given by the Court to the evidence that the donor retained the interest and too little weight was given to the evidence of three witnesses that the bonds were delivered to the donee.

In support of his motion for a new trial, the plaintiff has cited the Court to the case of State ex rel. Shaffer v. Kuthy, 47 Abs 14, 145 Oh St 516, 71 N. E. 2d 734, in which it is held that the fact that the donor of certain certificates of stocks continues to receive dividends and exercise his voting privileges thereunder, subsequent to the delivery of said certificates as a gift to the donee, does not constitute such a retention or control and dominion by such donor as will make such gift conditional and incomplete.

In the light of this, and on reconsideration of all the testimony regarding “present intention,” the Court reverses its former position and finds that the evidence is clear and convincing that there was a present intention on the part of the donor, C. Ray Jordan, to transfer the title and right of possession of the bonds in question to the donee, the plaintiff.

However, the court still feels that nontransferable bonds are not the proper subject of a gift inter vivos. Hence, the change in the position of the court on “present intention” does not affect the verdict already reached and the motion for a new trial is overruled.


author: By THE COURT: By THE COURT:

text:
    COLLINS, Plaintiff-Appellant, v. JORDAN et, Defendants-Appellees.
    Ohio Appeals, Second District, Miami County.
    No. 468.
    Decided June 13, 1952.

      McKeever & Monahan, Wapakoneta, for plaintiff-appellant.
    James H. DeWeese, Piqua, for defendants-appellees.
   OPINION

By THE COURT:

This matter comes on to be heard on a motion filed by defendants-appellees to affirm the judgment of the trial court for the reason that the assignments of error filed by the plaintiff-appellant cannot be considered or determined in the absence of a bill of exceptions, and that no bill of exceptions has been filed.

The errors assigned are: That the court erred in overruling motion for new trial; that the judgment is contrary to the evidence; that the judgment is contrary to law.

Obviously, a bill of exceptions would be required in the consideration of the first two errors assigned. However, a bill of exceptions would not be required in the consideration of the third error assigned, to-wit: That the judgment is contrary to law, for the reason that in the judgment entry a legal question is raised. Plaintiff-appellant is not required to present a bill of exceptions to raise any questions which appear upon the face of the record. Sec. 11564 GC.

Accordingly, the motion to affirm the judgment on the ground that no bill of exceptions has been filed will be overruled.

This matter also comes on to be heard on a motion filed by the defendants-appellees to dismiss the appeal and/or affirm the judgment on two grounds: That the order appealed from is not a final order; that the notice of appeal was not filed within the time required by law.

The notice of appeal designates the order appealed from as being the judgment filed March 7,1952. The entry filed March 7, 1952 was not a judgment but merely an order of the court overruling a motion for new trial. An order overruling a motion for new trial is not a final order from which an appeal may be taken. Vol. 2 O. Jur. Pt. I, P. 204. However, the notice of appeal is from the judgment of the court. This Court may in the exercise of a broad discretion permit an amendment of the notice of appeal by inserting the correct date of the judgment, which was August 27, 1951. In order to save the appeal, however, the notice of appeal would be required to be given within twenty days after the judgment was journalized. It is obvious that a notice of appeal filed March 27, 1952, directed to a judgment filed August 27, 1951 was not filed within the time required by law.

A motion for new trial was filed in this case and ordinarily a motion for new trial will toll the statute, but the motion for new trial must be seasonably and properly filed. True the notice of appeal in this case was given within twenty days after the entry was filed overruling the motion for new trial. But we come now to consider whether or not the motion for new trial tolled the statute. The record in this case shows that the court first entered judgment on June 3, 1950. On December 5, 1950 an entry was filed vacating the judgment with the consent of the plaintiff, and the cause was assigned for further hearing. It appears that a further hearing took place and that the decision of the court was filed on August 2, 1951 and a supplemental decision on August 9, 1951. The motion for new trial was filed August 18, 1951, which was before judgment was finally entered. The judgment was entered on August 27, 1951. Accordingly, the record shows that the motion for new trial was prematurely filed inasmuch as it was not filed after judgment was rendered. Secs. 11576 and 11578 GC as amended October 11, 1945. The motion for new trial in legal effect was overruled when judgment was entered. See Raykovick v. Youngstown, 50 Abs 363, 367; 79 N. E. 2d. 242. Consequently, the motion for new trial did not toll the statute as it was not directed to the judgment. The time within which notice of appeal was required to be filed ran from the date of the judgment and had long since expired at the time the notice of appeal was filed.

Decided July 28, 1952.

The second motion under consideration will be sustained in both of its branches and the appeal will be dismissed.

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

ON APPLICATION FOR REHEARING

No. 468.

OPINION

By THE COURT:

Application for rehearing is hereby denied.

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


author: By FESS, J:

text:
    DOERING, Paintiff-Appellant, v. CLEVELAND (City), Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22301.
    Decided April 22, 1952.
    Harrison, Thomas, Spangenburg & Hull, Cleveland, for plaintiff-appellant.
    Robt. F. Monney, Richard C. Green, Cleveland, for defendant-appellee.
    (FESS, PJ, CONN, J, SAVORD, J, of the 6th District sitting by designation in the 8th District.)
   OPINION

By FESS, J:

Appeal on questions of law from a judgment entered upon a verdict for defendant. Plaintiff brings her action against the defendant for damages alleged to have been sustained by her as a passenger upon a bus as a result of a sudden stop. The principal items of negligence alleged are:

1. In causing the bus to be stopped in a sudden, unusual and violent manner, and

2. In failing to provide a safe seat or footrest therefor. The answer was a general denial.

The principal assignment of error is that the court charged upon the subject of emergency. It is clearly prejudicial error for- the court to inject into a case an issue or question not raised by the pleadings or the evidence, if it would tend to confuse the questions properly in the case and mislead the jury to the prejudice of the appellant. Cf. 2 O. Jur., p. 1450.

The defense of emergency was not raised by the pleadings nor by the evidence. There is no evidence in the record to support an inference that the driver of defendant’s bus was confronted by a sudden emergency and the inclusion of the subject in the charge was therefore prejudicial to the plaintiff. Cf. Nardi v. Reliable Trucking Co., 85 Oh Ap 122. Defendant asserts that the error was invited. It appears from the record that when the court had substantially completed his general charge, the following transpired:

“The Court: Anything further from counsel for plaintiff?
“Mr. Harrison: (Plaintiff’s counsel) Just one point. Your Honor. (Consultation had between court and counsel not within hearing of jury)
“The Court: It has been called to my attention, and properly so, that I should say something to you further about the sudden and violent stop as claimed by plaintiff.”

The court then proceeded at some length to discuss the subject of emergency. It is hardly conceivable that counsel for plaintiff would have requested the charge, since it obviously was a matter of interest to the defense. Furthermore, the record discloses a specific exception at the close of the general charge of plaintiff to any charge on the doctrine of emergency.

Upon preponderance of the evidence, the court said:

“Before the plaintiff may recover in this action, she must prove to you by a preponderance of the evidence one or more of the essential and material allegations in her petition.
“And by a preponderance of the evidence we mean the greater weight of the evidence, or that evidence which appeals more strongly to your minds than the evidence offered by the defendant to the contrary.
“Preponderance of the evidence does not necessarily mean the greater number of the witnesses. It simply means the greater weight of the testimony.”

The second paragraph of the quoted portion is erroneous. It is well settled that an instruction which improperly places the burden of proof or erroneously defines preponderance of the evidence is prejudicial.

Klunk v. Hocking Valley Ry., 74 Oh St 125; Baltimore & Ohio Rd. v. Linn, 77 Oh St 615; Cincinn. H & D Ry. v. Frye, 80 Oh St 289; Montanari v. Haworth, 108 Oh St 8, 14; Tresise v. Ashdown, 113 Oh St 307; Cowley v. Bolander, 120 Oh St 553; Cleveland Ry. Co. v. Goldman, 122 Oh St 73; Indus. Comm. v. Weaver, 127 Oh St 18; Indus. Comm. v. Ripke, 129 Oh St 649; Krueger v. Frazier, 31 Oh Ap 28; Aarons v. Levy Bros., 44 Oh Ap 488; Cin. Gas & Elec. v. Coffelder, 11 C. C. n. s. 289.

The giving of the erroneous instruction in the general charge was not cured by the giving of plaintiff’s special request No. 1. Indus. Comm. v. Ripke, supra; Cleve. Ry. Co. v. Goldman, supra; Bosjnak v. Superior Steel Co., 145 Oh St 538; Westropp v. Scripps Co., 148 Oh St 365 (1).

“1. It may be observed, however, that the last paragraph of the plaintiff’s charge No. 1 is prejudicial to the defendant and the charge should have been refused.”

Complaint is also made with respect to the giving of the defendant’s request to charge:

“I charge you as a matter of law until proven to the contrary by the greater weight of the evidence that the defendant is presumed to be free from negligence, so that in the event you find an accident occurred to the plaintiff on a bus operated by the defendant, you must not assume that the defendant was negligent simply because such accident occurred.”

The standard charge on the subject frequently employed is as follows;

“Negligence is never presumed, but the presumption of law is that every one discharges the duties which the law imposes. In other words, the law assumes that every one does what, in law, he should do. Because of this presumption, the burden of proving the truth of the alleged facts whereby one charges another with liability for negligence is upon the one making the claim. In this case, therefore, the burden rests upon the plaintiff to prove by a preponderance of the evidence that the defendant was negligent as he charges in his petition; and if, under the law and the evidence, you find the defendant was negligent, then in addition thereto the plaintiff must prove by a preponderance of the evidence that such negligence was the proximate cause of the injury or damages plaintiff sustained. The fact of the happening of the occurrence in question raises no presumption of negligence nor does the fact that plaintiff was injured raise any presumption that either the plaintiff or the defendant was negligent at the time and place in question. What the plaintiff affirmatively alleges, unless admitted by the defendant, the plaintiff must prove by a preponderance of the evidence.”

The Supreme Court has recently defined a presumption of law as follows:

“A presumption of law is equivalent to a substantive rule of law to the effect that a particular fact must be assumed when another particular fact or group of facts exist, unless and until the assumed fact is rebutted by substantial evidence.”

Shepard v. Midland Mutual Life Ins. Co., 152 Oh St 6; Eggers v. Industrial Comm., 157 Oh St 70, 80. In the Eggers case the court also said:

“In the instant case it can be said with certainty that no facts were proven which would compel a court or jury to determine that Eggers’ death resulted from an injury which arose out of his employment. As distinguished from a ‘presumption’ in the strict sense, an ‘inference’ may be defined as a conclusion which the court or jury may reach from facts or circumstances which are proved but which conclusion is not mandatory. In such case the facts or circumstances so proved are competent evidence to be considered and on which a conclusion may but need not necessarily be reached.
“A study of the cases where the so-called rule of ‘presumption’ has been applied convinces us that the courts have applied what could more properly be termed a rule of ‘inference’ than of ‘presumption.’ ”

The presumption of freedom from negligence is in a somewhat intermediate category between a presumption of law and an inference, which for want of a better definition may be termed a presumption of fact which may be overcome by some, but not substantial evidence. We do not regard the statement from Wigmore, Sec. 2491, and the language of Judge Hart in Shepard v. Insurance Co., supra, p. 25, to mean that in the event there is some evidence tending ,to show negligence that the court should make no reference in his charge to the presumption of freedom from negligence. Such philosophical niceties display scholarly erudition but have questionable practical value in the trial of a law suit. After all, the presumption of freedom from negligence is a fundamental principle long recognized and should not be ignored. Nor do we agree with the conclusion in Wold v. Hawk, 63 Oh Ap 122, that the presumption of freedom of negligence, being one of law, is for the court only, and a charge as to the presumption should not be given in the face of evidence of probative value upon the issue of negligence. If there is no evidence of negligence, the plaintiff fails, regardless of the presumption. If there is some evidence of negligence, the defendant is ordinarily entitled to an appropriate reference to the presumption of freedom from negligence.

We therefore conclude that the charge as given, although awkward was not prejudicial to the plaintiff. Other errors assigned are not well taken or are found non-prejudicial.

For the errors in the charge, the judgment is reversed and the cause is remanded for a new trial. Exc. Order see journal.

CONN and SAVORD, JJ, concur.


text:
    HAMILTON, Plaintiff-Appellee, v. HAMILTON, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2208.
    Decided December 3, 1952.
    Wasserman & Talbot, C. W. Magsig, Dayton, for plaintiff-appellee.
    Gertrude Bucher, T. L. Barger, Dayton, for defendant-appellant.
   OPINION

By THE COURT:

This is an appeal on questions of law from the judgment of the Common Pleas Court of Montgomery County granting the plaintiff a decree of divorce and awarding alimony and support for a minor child.

The defendant-appellant assigns as error: That the judgment is contrary to law; that the judgment is not supported by sufficient evidence and is contrary to the weight of the evidence; that there was no corroboration of the evidence; that the court erred in the exclusion and admission of evidence; that the allowance for support of the child was excessive.

The plaintiff in her petition charged the defendant with gross neglect of duty, to which the defendant filed a general denial. Later the defendant filed a cross-petition in which he charged the plaintiff with gross neglect of duty and extreme cruelty. The court dismissed the cross-petition of the defendant and found that the defendant had been guilty of gross neglect of duty as charged in the petition. The court further found that the title to the property in which the parties had resided was in the plaintiff and decreed the property to her, together with the household goods, as alimony. The court awarded to the plaintiff the custody of the minor child, who is afflicted with epilepsy, and ordered the defendant to pay for support and maintenance, care and education, of said child, the sum of $18.00 per week. From this order the appeal was taken.

The assignments of error and briefs of counsel for the appellant relate to the issue made by the petition and the answer of the defendant. Was the defendant guilty of gross neglect of duty? The record, which has been carefully read and considered, is replete with accusations and denials on the part of both parties. The gist of the charge made by the plaintiff is that defendant was guilty of gross neglect of duty in that he failed to provide for the family. In the determination of this issue the court exercises a broad discretion, but it must be a sound discretion. DeGarmo v. DeGarmo, 56 Abs 357. Gross neglect denotes something more than mere neglect. McGhee v. McGhee, 45 Abs 465; Brown v. Brown, 50 Abs 90, 94. In Porter, Exr. v. Lerch, 129 Oh St, 47, the ninth paragraph of the syllabus is as follows:

“The term ‘any gross neglect of duty’ made one of the causes for divorce under §11979 GC, is elusive of concrete definition and its application as a cause for granting a divorce must depend upon the circumstances of the particular case.”

In Mark v. Mark, 145 Oh St, 301, the third paragraph of the syllabus is as follows:

“ ‘Any gross neglect of duty’ as used by §§11979 and 11997 GC, refers to an omission of legal duty.”

Sec. 11979 GC, and related sections were repealed and reenacted with amendments effective August 28, 1951. Sec. 11979 GC, which sets forth the grounds for divorce, is now §8003-1 GC. The petition in this case was filed May 8, 1951, and is therefore controlled by the provisions of the old sections of the code. However, the amended sections insofar as they relate to the issues presented here, carry the same provisions as in the old code.

We now consider the evidence to determine whether under the circumstances in this case the defendant was guilty of violating a legal duty. The parties were married in 1926. To this union four children were born. In the decree the court finds the two eldest to be twenty-one years of age, and the third child to be eighteen years of age, and the fourth child, an epileptic daughter, to be fourteen years of age. The three eldest children were all emancipated and lived outside the home several years prior to the institution of this action. In the early years of their married life the unsettled economic conditions existing in the country resulted in the usual “ups and downs” of family life. During the depression, the defendant lost his employment and was on W. P. A. During the entire period of their married life, according to the testimony of the plaintiff, she worked from time to time and contributed to the joint bank account; that family expenses were paid out of this account. A part of her employment was during the depression years and a part during the war period, at which time it was considered the patriotic duty of every woman who could do so, to be gainfully employed. The evidence as to the period of plaintiff’s employment, the amount of her earnings, and whether she contributed all or any part to the joint bank account, is in conflict and in many respects very unsatisfactory. The defendant testified that he had steady employment at the Frigidaire from 1935 to 1942; that during the war period he was employed at the United Aircraft Products, and then was re-employed by the Frididaire. During this period the defendant earned good wages, but the plaintiff also at intervals worked during this same period. During this same period the parties changed residences frequently and owned several different pieces of real estate, the title to which was always taken in their joint names. In the spring of 1946, the parties sold their residence in Dayton and bought a summer resort in Wisconsin. At the time of the purchase the resort had on it one cabin; other cabins were built through their joint efforts. This venture did not prove a financial success and the parties returned to Dayton and began to build the residence in which they lived at the time this action was instituted. The title to the vacant lots on which the residence was erected was taken in the name of the plaintiff. The defendant during the last few years followed the carpenter trade, working for two construction companies. While otherwise employed, the defendant began to construct their residence, largely through his own efforts, in October 1949. In the spring of 1950, they sold the resort in Wisconsin for $10,000.00. After paying the bills for the erection of the cabins and the mortgage on the resort, the balance of $5500.00 was applied towards the payment of material and the notes given in financing the residence under construction, and for the purchase of new household furniture. The parties occupied the residence in the summer of 1950, before it was completely finished. The record shows that the parties agreed that the residence would sell for $10,000.00, and that $2500.00 was expended for new furniture. The mortgage indebtedness amounts to approximately $3000.00.

After the parties returned from Wisconsin, they lived in the home of Mrs. Lochner, from March 1949 to November 1949. According to the testimony of Mrs. Lochner they got along agreeably; that the defendant worked steadily, and took overtime work; that the plaintiff workedj also, stating to Mrs. Lochner that she had too much time on her hands.

The pattern of family life, economic and otherwise, is all too common and presents a case where the wife was trying to augment the husband’s income, not because he was indolent, shiftless, a spendthrift, a drunkard or a gambler, but because she desired the benefits of a higher standard of living and wanted more for the family than the husband’s income would provide. During the trial more emphasis was placed on the employment of the plaintiff than on the employment of the defendant.

What meager evidence is found in the record concerning the husband’s employment shows that during the last few years while employed as a carpenter, the union rate was $2.50 per hour for a forty hour week and $5.00 per hour for over-time; the defendant was a member of the union. A part of this time he earned $1.55 per hour. In the winter time, due to bad weather conditions, he was not employed full time. This situation prevailed generally in the construction business. There is not a scintilla of evidence to show that his earnings were expended for any purpose other than for the benefit of the family. There is no evidence thát he indulged in any bad habits which consumed his earnings. During the last few years, after the three eldest children became emancipated, the estate created through their joint efforts increased. It is extremely difficult to extract from the record any definite statement which caused the estrangement. On page 16 of the record on direct examination, the plaintiff testified that they worked together to pay their obligations up until the trouble started. On the same page of the record on direct examination, she stated that they never kept a record as to the amount of money received or how it was expended; that they both worked and used the money as man and wife would do to run a home. On page 100 of the record, one of the daughters in answering the question as to why her mother was employed at times, testified: “Mother has always liked clothes as any other woman; she just liked extras we didn’t have.” On the same page this daughter in response to the question as to whether she knew any occasion when her father was unemployed, testified: “Not while I was home.” This testimony is typical of much of the testimony of the various witnesses running throughout the entire case. The husband testified that the wife worked because she wanted things he couldn’t afford.

Usually, the grounds for divorce arise prior to the estrangement or separation. In this case it is difficult to point to any evidence which gives rise to grounds for divorce prior to the estrangement or separation, or thereafter. With respect to the charge of the failure to provide, the wife on page 41, while on cross-examination, testified as follows:

“Q. Did he support you consistently all the time except when he was out of work?
“A. Except when we were having trouble he did.”

The record shows that the plaintiff filed an action for divorce in May 1950. In October 1950, a separation agreement was executed. In November 1950, the parties became reconciled, whereupon the action was dismissed. The record is entirely silent as to the thing which provoked the filing of the action, what were the facts alleged, what happened between the parties from May 1950 to November 1950, who induced or the reason underlying the reconciliation. From November 1950 to May 1951, the parties lived under the same roof with their minor daughter. The record shows that beginning in January, 1951, and continuing to May 1951, the plaintiff refused to converse with the defendant, although living in the same home. During all of this time the defendant was steadily employed. In May 1951, while the defendant was living in the home, plaintiff filed this action. She requested a court order to require the defendant to vacate the premises. This, he did voluntarily and no order was made.

A more detailed analysis of the evidence would serve no useful purpose. The court has attempted to detail the material aspects of the evidence. In our opinion the evidence does not present a case of gross neglect of duty. What caused the estrangement, other than incompatibility, is not shown by the record. The court refused defendant’s counsel at one point to cross-examine the plaintiff with respect to her associations with male companions. While this line of examination may not have resulted in evidence of any probative value, on the issue made, we believe that the court committed prejudicial error in refusing this line of cross-examination.

The record fails to present any one isolated act on the part of the defendant or any continuous course of conduct which would support the charge of gross neglect of duty.

This record presents a situation where the words used by this court in Brown v. Brown, 50 Abs 90, at page 96, may be appropriately applied:

“We appreciate that courts at times and in certain instances, when it appears that it is highly improbable that the parties will again live together as husband and wife, stretch a point and release them from their marital obligations. This might afford a proper solution of the dilemma, but it is an exercise of arbitrary power, unjustified and unauthorized under our established legal procedure.
“The case of the plaintiff here fails completely upon analysis of the facts as relates to the essentials of proof.”

In our opinion the judgment is-contrary to the manifest weight of the evidence, is not supported by sufficient evidence and is contrary to law. The question of the lack of corroboration is of no moment. The evidence given by the plaintiff was to some extent corroborated, but the evidence as given and as corroborated was insufficient to make a case of gross neglect of duty. We believe the trial court improperly sustained the objection to a line of cross-examination of the plaintiff, which ruling was prejudicial to the defendant.

The judgment granting a divorce to the plaintiff will be reversed. We also reverse the order of allowance for the support of the minor child, and remand the case to the trial court for further proceedings according to law on this particular issue.

Judgment accordingly.

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


author: Per CURIAM.

text:
    TOM’S EXPRESS, INC., v. DIVISION OF STATE HIGHWAY PATROL, DEPARTMENT OF HIGHWAYS, OHIO.
    United States District Court, S. D. Ohio, E. D.
    Civ. No. 3266.
    Decided February 20, 1952.
    Taylor C. Burneson, Columbus, for plaintiff.
    C. V. Thomas, Asst, Atty. Genl., Columbus, for defendant.
    Before ALLEN, Circuit Judge, and UNDERWOOD and DRUFFEL, District Judges.
   OPINION

Per CURIAM.

This is an action wherein plaintiff seeks an adjudication that §7250-3 GC, which section requires that freight trailers and commercial cars weighing three tons or more be equipped with metal protectors or flexible flaps on the rear-most wheels, be declared invalid, unconstitutional and inoperative and that its enforcement be enjoined as it applies or purports to apply to vehicles operated by the plaintiff exclusively in interstate commerce.

The District Court issued a temporary restraining order enjoining the enforcement of §7250-3 GC. On November 30. 1951 a three-judge court was convened in accordance with provisions of Title 28, Section 2284 U. S. Code. At the opening of the hearing on that date Red Star Transit Company, Inc. was permitted to intervene as a party-plaintiff.

The court having carefully considered the evidence and being fully advised in the premises, makes the following Findings of Fact and Conclusions of Law.

Findings of Fact.

1. That §7250 GC provides:

“No person shall drive or operate or cause to be driven or operated, any commercial car, trailer or semi-trailer, used for the transportation of goods or property, the gross weight of which, with load, exceeds three tons, upon the public highways, streets, bridges and culverts within the state of Ohio or any subdivision thereof, unless such vehicle is equipped with suitable metal protectors or substantial flexible flaps on the rear-most wheels of such vehicle or combination of vehicles to prevent as far as practicable such wheels from throwing dirt, water or other materials on the windshields of following vehicles; such protectors or flaps shall have a ground clearance of not more than one-fifth of the distance from the center of the rear-most axle to the center of the flaps under any conditions of loading of the motor vehicle, shall be at least as wide as the tires they are protecting; provided, however, that if the motor vehicle is so designed and constructed that the above requirements are accomplished by means of fenders, body construction or other means of enclosure, then no such protectors or flaps shall be required; and further pi'ovided that rear wheels not covered at the top by fenders, bodies, or other parts of the vehicle shall be covered at the top by protective means extending at least to the center line of the rear-most axle.
“Any person found guilty of a violation of this section shall be guilty of a misdemeanor and upon conviction thereof shall be fined not more than twenty-five dollars.”

2. That compliance with §7250-3 GC for trucks used exclusively in interstate commerce would cost the plaintiff trucking companies more than $3,000 each.

3. That weather conditions in the State of Ohio cause Ohio roads to be wet and dirty for a substantial portion of each year.

4. That no legislation by Congress or regulations of the Interstate Commerce Commission requires motor carriers travel-ling in interstate commerce through the State of Ohio to make any provisions to prevent rear wheels of their vehicles from throwing dirt, water or other material on the windshield of the following vehicles.

5. That plaintiffs by this action are seeking to have a statute of the State of Ohio declared invalid, unconstitutional and inoperative as it applies to vehicles operated by them exclusively in interstate commerce.

Conclusions of Law.

1. That the matter in controversy exceeds the sum of $3,000, exclusive of interest and costs, and arises under the constitution and laws of the United States.

2. This court has jurisdiction of the parties and the subject matter of this action.

3. That §7250-3 GC is a valid exercise of the police power by the State of Ohio. This Act does not conflict with or overlap any Act of the Congress of the United States or any regulation of the Interstate Commerce Commission. The federal government has not preempted the field of motor carrier regulations in connection with mud guards.

4. That the temporary restraining order issued herein should be dissolved and the action dismissed at plaintiff’s cost.

Entry accordingly.