source: Caselaw Access Project

author: By HORNBECK, J.

license: Public Domain

text:
    PARRISH, Plaintiff-Appellee, v. MYLES, et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4186.
    Decided January 26, 1949.
    Little & Little, Columbus, for plaintiff-appellee.
    Eugene E. Myles, defendant-appellant in behalf of himself.
   OPINION

By HORNBECK, J.

Defendants appeal from a judgment of the Common Pleas Court dismissing the appeal of defendants from a judgment of the Municipal Court against them. This is the only judgment carried into a journal entry, although there seems to be another decision in the case by another Judge of the Common Pleas Court involving another question. This is not carried into an entry.

The error assigned here is the refusal of the Trial Judge in the Municipal Court to sign a bill of exceptions tendered by defendants. The remedy of the defendant, if the Trial Judge improperly refused to sign the bill of exceptions, is by mandamus and not by appeal. 25 O. Jur., 1152.

Judgment affirmed.

WISEMAN, PJ, and MILLER, J, concur.


author: By WATTERS, J.

text:
    IACOMINTS RESTAURANT, INC., v. HOTEL EMPLOYEES LOCAL NO. 118, et.
    Common Pleas Court, Summit County.
    No. 166,688.
    Decided August 24, 1948.
    Stephen J. Wozniak, Claude Herman, Akron, for plaintiff.
    Don Isham, Akron, for defendant.
   OPINION

By WATTERS, J.

Plaintiff is an Ohio corporation owned and operated by the Iacomini family, engaged in the business of operating a very fine restaurant on West Exchange Street in the City of Akron. The defendant, Hotel and Restaurant Employees and Bartenders Local No. 118, is an A. F. of L. union, and other defendants are officers and representatives of said union.

The evidence, with the exception of certain affidavits filed by each side in re certain claimed and denied misconduct of pickets before the court granted a temporary injunction allowing peaceful picketing and regulating same, was received in the nature of a stipulation by opening statements of the parties, an examination of which will show practically an agreed statement of facts, from which the court finds:

That the restaurant is a non union business. None of the employees belong to the defendant union or any union.

That there is no dispute as to wages, hours, or other such matters, between the employer and its employees.

On or about May 10, 1948, the defendants, the Raleighs, as officers of the union, caused a letter to be sent to plaintiff enclosing a proposed agreement between the plaintiff company and the' union (Plaintiff’s Exhibit 5), which plaintiff contends provides for a closed shop.

On this matter it was further stipulated by counsel as follows: (page 19 of opening statements)

“MR. HERMAN: (for Plaintiff) I understand it is further stipulated by and between the parties that if Iacomini’s Restaurant becomes a union restaurant, so called, and would sign a contract of the type and form submitted as Plaintiff’s Exhibit 5, the picketing by the defendants would then cease, is that correct?
MR. ISHAM: (for Defendants) That is in substance true. I think for the purpose of this record I might state that if a contract, such as the copy submitted to Mrs. Iacomini, which is a comparable contract used by all union restaurants— that if a contract was negotiated satisfactory to both parties, whereby union help was employed and the conditions required of a union establishment carried out, there would be no necessity for picketing, no purpose of picketing, and certainly the pickets would be removed.”

The proposed contract covered employment, wages, hours and working conditions, dismissals, deductions, meals, uniforms and equipment, vacations, overtime and various other matters. In re employment the proposed agreement reads as follows:

“3-EMPLOYMENT
“The Employer agrees to hire and retain in his employ no other employees of the classes herein mentioned, but members in good standing in the Union. In the event the Union is unable to supply satisfactory employees, the Employer may engage non-union employees, thus engaged shall not be objectionable to the Union, and that they shall secure a short time card or working permit from the Union within forty-eight hours after entering the employ of the house; and provided further that they shall perfect their membership in the Union within seven (7) days from the date of being engaged.”

This, in the court’s opinion, coupled with the stipulations of counsel (see above from page 19 of the record) constituted a closed shop demand, along with other demands as enumerated above.

At or about this time, May 10, 1948, the plaintiff having refused to enter into said proposed agreement (Exhibit 5) picketing started. None of the pickets are or have been employees of the plaintiff company.

After the picketing started, and before the temporary injunction was ordered by Judge Harvey, the matters covered in the plaintiff’s and defendants’ affidavits occurred.

Without going into any great detail, I find that on several occasions the pickets went beyond the rules of proper and peaceful picketing. They engaged in some very indecent language, some veiled and unveiled threats to customers, and there was some jostling and pushing of customers. There were too many pickets, and either they had not been properly instructed as to what is peaceful picketing, or they lost their heads.

However, while such conduct was absolutely wrong and inexcusable, it was not what could be called extreme violence in the sense the courts use that term, although subject to regulation and restriction. It was not such violence, etc. the threat of which would continue over under a peaceful picketing permission, under the theory of the Meadowmoor case discussed later.

Thereafter Judge Harvey entered a preliminary injunction, limiting the pickets to two, and putting other restrictions on the picketing operation. (See Journal Entry.)

Thereafter things went along without any real difficulties until the evening of the day the matter was before this court, when there was some disturbance between one of the Iacominis and a picket and a friend of a picket. No evidence was had on that matter, and the court, therefore, does not know who was at fault, but upon conference with the court, and by agreement, the number of pickets was reduced to one, and some further modifications were made as to the manner of walking up and down, and so forth.

As each side has abandoned any right to offer evidence upon that flare-up, it is not before the court, and was probably a case of nervous tension, and not too serious either way.

What both sides often forget in these disputes is that “obedience to law is liberty”, and that without such obedience and respect, we have chaos.

In 1941 in Milk Drivers Union of Chicago v. Meadowmoor Dairies, Inc., 312 U. S., 287, the court held:

Syllabus:

(1) A State is at liberty under the Fourteenth Amendment to use injunctive powers vested in its courts for the prevention of violence by labor unions in industrial disputes.

(2) And where the controversy is attended by peaceful picketing and by acts of violence, and the violence has been such that continuation of the picketing will operate coercively by exciting fear, that violence will be resumed, an injunction by a state court forbidding the picketing as well as the violence does not infringe the Fourteenth Amendment.

The court said on page 294:

“The picketing in this case was set in a background of violence. In such a setting it could justifiably be concluded that the momentum of fear generated by past violence would survive even though future picketing might be wholly peaceful.”

Further the court held in Syllabus No. 5:

“The present decision does not bar resort to the state court for a modification of the terms of the injunction should that court find that the passage of time has deprived the picketing of its coercive influence.”

In other words, at that time peaceful picketing could again be resumed

In the same case Justice Reed, dissenting, said in part at page 320:

“This nation relies upon public discussion as one of the indispensable means to attain correct solutions of problems of social welfare. Curtailment of free speech limits this open discussion. Our whole history teaches that adjustment of social relations through reason is possible while free speech is maintained. * * * Free speech may be absolutely prohibited only under the most pressing national emergencies. * *

Justice Reed was of the opinion that peaceful picketing should have been allowed; that no such emergency existed as would require the court to enjoin freedom of speech, that is peaceful persuasion or peaceful picketing, even admitting the original violence that occurred.

312 U. S., 321, A. F. of L. v. Swing (1941) Syllabus:

“The Constitutional guarantee of freedom of discussion is infringed by the common law policy of a State limiting peaceful picketing by labor unions to cases in which the controversy is between the employer and his employees.”

On page 326 the court said:

“The right of free communication cannot therefore be mutilated by denying it to workers, in a dispute with an employer, even though they are not in his employ.”

The union sought unsuccessfully to unionize a non-union beauty-parlor business. Picketing of the shop followed. The court held peaceful picketing permissible. There was some claim or question of violence, and so forth, but for the purpose of the decision, the court said that the state of the record made it necessary to disregard the question of violence.

In the case of Crosby v. Roth, et al, 136 Oh St 352, 6 O. O. 496, the Ohio Supreme Court enjoined all picketing, even peaceful picketing, on the grounds that there was no legitimate trade dispute. This case was decided in January, 1940.

It will be noted that the union here sought to unionize the restaurant involved, and that none of the employees belonged to any union, nor was there any dispute between the employer and employees. Furthermore, there was extreme violence before the temporary injunction was issued by the trial court. The slashing of patrons’ automobile tires, assaulting of employees and customers, throwing of stench bombs, and dynamiting of the employer’s former residence, and other acts of violence occurred.

In my opinion, under the opinion of the Supreme Court of the United States, in the case of A. F. of L. v. Swing, 312 U. S. 321, February 10th, 1941, discussed herein, there was a legitimate trade dispute, but even so, if the Supreme Court of the United States had let it in, and had decided it, peaceful picketing would not have been allowed, because the United States Supreme Court held (Feb. 10, 1941) in the Milk Drivers Union v. Dairies, etc. 312 U. S. 287, that where the violence is of such magnitude originally that continuation of peaceful picketing will operate coercively, by exciting fear that the former violence will be resumed, then all picketing will be enjoined.

It will be noted that the Ohio Supreme Court decision was in January, 1940, while the other two United States Supreme Court cases were decided February 10, 1941.

It will also be noted that the majority opinion makes no mention of the free speech doctrine laid down by the United States Supreme Court in the Swing and Milk Drivers cases. However, Judge Zimmerman in his dissenting opinion does recognize it and discusses it well and favorably as the law of the land.

In referring to the matter of past violence, Judge Zimmerman made this pertinent and sound observation:

“Responsible labor leaders realize that the pursuit of illegal methods to bring about what may be a desirable result is harmful to the labor movement as a whole, and arouses public opinion against the cause of organized labor.”

From the very fine article of Clare Fahrer, senior student, Law School Cincinnati University, in Ohio Law Reporter, May 31, 1948, citing many cases in re picketing, I quote:

“The United States Supreme Court denied certiorari of the Crosby case on the same day that the A. F. of L. v. Swing opinion was handed down. It may be that the existence of violence in the Crosby case was such that the court did not believe it was a proper link to fit in the chain of decisions on ‘picketing as free speech’ * * * Certainly the Ohio Supreme Court’s opinion paid scant heed to any question of infringement on the right of free speech. At any rate the rule of the Swing decision has been considered to be broad enough to limit substantially if not completely to overthrow the authority of Crosby v. Roth.”

24 O. Jur., page 639, paragraph 35, has this to say on “Closed Shop Agreements”:

“Contracts for the employment of union labor exclusively have generally been sustained as against the objection that they are invalid on the ground of public policy. It has been said by an Ohio court that contracts made by the employer for the exclusive employment of union labor are valid, particularly where the supply of union labor is adequate, or where provision is made for the unionizing of workmen in case of shortage. (Citing 8 Oh Ap 437.) But such contracts * * * are contrary to public policy when they take in an entire industry in a community of any considerable proportions * * * to prevent * * * craftsmen from working at their craft * * * without joining a union.” (Citing 20 Oh Ap 317.)

This same principle was involved in Scaggs v. Transportation Union, 31 Abs. 689, discussed more fully later, where a whole industry, that is, a practical monopoly, was involved.

See Clark Lunch v. Waiters Union, 22 Oh Ap 265, and cases there cited, where the union, for all practical purposes, demanded a closed shop and other regulations. The court held peaceful picketing permissible.

In 1915 the Ohio Supreme Court, in 92 Oh St, 130, Jackson v. Berger, held the following statute, §12943 GC, unconstitutional.

“Whoever * * * coerces or attempts to coerce employees by discharging or threatening to discharge them from their employ * * * because of their connection with such (lawful) labor organization, shall be fined, etc.

The Supreme Court said in substance:

“On January 25, 1915, the Supreme Court of the United States, in the case of Coppage v. Kansas, held that a Kansas statute similar to the above Ohio statute was violative of the federal constitution. * * *.”

The court then said that such a ruling of the United States Supreme Court was binding upon the Ohio Supreme Court.

“Sec. 6241-1 GC. Every undertaking or promise hereafter made, whether written or oral, express or implied, constituting or contained in any contract or agreement of hiring or employment between any individual, firm, company, association or corporation, and any employee or prospective employee of the same, whereby (a) either party to such contract or agreement undertakes or promises not to join, become, or remain a member of any labor organization, or of any organization of employers, or (b) either party to' such contract or agreement undertakes or promises that he will withdraw from the employment relation in the event that he joins, becomes, or remains a member of any labor organization or of any organization of employers, is hereby declared to be contrary to public policy and wholly void.”

This statute is discussed in 24 O. Jur., page 642, paragraph 38. After stating that “Generally speaking, the right of employer to insist upon any agreement as a condition of obtaining employment from him, is well established,” the author then discusses the Jackson v. Berger case, 92 Oh St, 130, in which §12943 GC, was declared unconstitutional. (See above.)

Then the author says: “At the 1931 session of the (Ohio) legislature, however, a statute was enacted which very materially modifies the foregoing rule.” (See Emphasized portion above.) Then he cites present §6241-1 GC, supra.

In this court’s opinion, §6241-1 GC, is not unlike old §12943: GC, and is quite similar to the Kansas statute declared unconstitutional in the United States Supreme Court Coppage case cited above. (See page 132.) The only different feature-perhaps is the application of the present statute to employers and employees alike by its mention of organizations-of employers and unions.

The court discusses this statute because it was called to-the court’s attention in connection with the closed shop contract presented by the Union to the employer here. In other words counsel claim that the contract presented would be- and was illegal, and that therefore peaceful picketing is not permissible to further an illegal purpose.

In the case of LaFrance Electric, etc. Co. v. Electrical Workers Local 8, etc., 108 Oh St, 61, the company claimed that the-union had entered into a conspiracy to ruin plaintiff’s business in order to compel plaintiff to operate its business as a closed union shop. (See page 61 statement of facts.) The court permitted peaceful picketing. This would indicate that a closed shop demand is not an illegal purpose in this state. This is a very thorough opinion, and there are many enlightening discussions all through the opinion.

See also Clarks Lunch Company v. Union (Waiters) 22 Oh Ap, 265, cited and discussed briefly above.

In 1938 in White Allen Chevrolet Inc. v Union No. 314, etc., the common pleas court of Montgomery County (27 Abs, 273) ruled out peaceful picketing to obtain a closed shop. See Syllabus No. 2 and No. 3.

This case was some years before the A. F. of L. v. Swing case in the United States Supreme Court, and the trial court applied the rule on the basis of no trade dispute existing. It does not recognize or discuss the “free speech” doctrine later recognized by our United States Supreme Court. In view of the present law, there was a trade dispute in my opinion.

The case of Scaggs v. Transport Workers (our Ninth District Court of Appeals) 31 Abs 689, decided in 1939, was not a case of picketing, etc., and concerned a virtual monopoly of transportation, and also was decided before the “free speech” decisions of the United States Supreme Court, and involved a different matter entirely than we have here.

The case of Fashioncraft Inc., v. Halpern, et al., 48 N. E. 2nd page 1, Mass. Supreme Court 1943. The court held in syllabus (8) “A strike to compel an employer to accede to union demands for a closed shop was not a ‘lawful labor dispute’ within the statute relating to injunctions.” See also syllabi (1), (12), (13) and (14).

In the discussion by the court on pages 4 and 5 it is apparent that the State of Massachusetts has always regarded a strike for a closed shop as illegal, and in fact a tort, and therefore even peaceful picketing for such purpose is illegal and not permissible and may be enjoined. The court holds this true even taking into consideration the “freedom of speech” doctrine laid down by the United States Supreme Court. The court also holds (top of page 4): “on the other .hand, agreements voluntarily made between an employer and union calling for a closed shop, have always been recognized and enforced in Massachusetts.”

The State of Ohio, as far as I can see, upon examination of the law, has never gone this far as regards closed shop demands.

See 24 O. Jur., 639, “Closed Shop Agreements” supra.

The United States Supreme Court to my knowledge has never said that the right to peaceful picketing is lost where the object is to secure a closed shop. And attention is again called to the A. F. of L. v. Swing case discussed earlier.

Under the “free speech” doctrine of the United States Supreme Court, I would say the union would have just as much right to peacefully picket to secure a closed shop as any other proper demand. And even if you would conclude that a closed .shop demand was illegal, they would still be allowed peaceful picketing where there were other proper demands being made, as in the instant case.

The court will refuse the injunction against peaceful picketing, and allow one picket at any given time under the same restrictions as have been imposed by Judge Harvey and this court.

When I permit peaceful picketing, I mean that. The court will not tolerate any violence or the like. Counsel know what :is proper, and will instruct their clients accordingly.

The court costs will be taxed against both sides equally.

Exceptions to all parties.


author: By CONN, J:

text:
    WHITLOW, Exr., Plaintiff-Appellee, v. THOMAS, et, Defendants-Appellees, and WHITLOW, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21208.
    Decided March 28, 1949.

      Baker, Hostetler & Patterson, Cleveland, for plaintiff-appellee and defendant-appellant Whitlow.
    Jones, Day, Cockley & Reavis, Cleveland, for defendantappellee Thomas and defendant-appellee Holman.
    (CONN, J., of the Seventh District, sitting by designation in place of MORGAN, PJ.)
   OPINION

By CONN, J:

This case comes into this court on the appeal of the defendant, Robert H. Whitlow, from the finding and judgment of the Probate Court in an action brought therein by Robert H. Whitlow, Executor of the Estate of Alice R. Whitlow, deceased, against Lois Holman Thomas and Paul Rockwell Holman and Robert H. Whitlow, individually, praying for a judgment construing. Item I of the Will of Alice R. Whitlow, deceased having reference to the duties of said petitioner respecting the liability for the payment of certain Ohio Succession and Federal Estate Taxes.

Upon trial in Probate Court, the parties presented and filed their written stipulation, with certain exhibits attached, the material parts of which are briefly restated as follows:

The defendant, Robert H. Whitlow, is the second husband and the surviving spouse of Alice R. Whitlow, deceased, the defendants, Lois Holman Thomas and Paul Rockwell Holman are the adult children of Alice R. Whitlow and her first husband, William E Holman, who died testate March 24, 1934 and by his will his surviving spouse, Alice R. Whitlow (then Mrs. Holman) was bequeathed the sum of $25,000.00 cash and also received as beneficiary, the proceeds of life insurance policies in the amount of $180,000.00. On May 15, 1934, the said beneficiary invested $128,000.00 of said proceeds in the purchase of four insurance policies on her life, the proceeds thereof being payable to her Executors or Administrators.

On April 9, and April 10, 1935, Mrs. Holman irrevocably assigned said four policies in equal parts to her children, Lois Holman Thomas and Paul Rockwell Holman, expressly providing that the proceeds be paid to them instead of her executors or administrators, each assignee being designated beneficiary of the policy assigned to him. Upon the death of Mrs. Whitlow a number of years later the proceeds of said policies, with accrued dividends in the total sum of $128,108.53 were paid in equal shares to said beneficiaries. The defendant, Robert H. Whitlow, on April 21, 1935, married Alice R. Holman and from that time to the date of Mrs. Whitlow’s death January 1, 1943, the parties resided in Cleveland, Ohio.

It further appears by the stipulation that Mrs. Whitlow died testate and in her will bequeathed the residue of her estate to the defendant, Robert H. Whitlow, after making provision for the payment of debts, taxes and certain specific bequests to her children. The will of the testatrix was dated June 1, 1942.

The Ohio succession taxes and certain adjusted Federal taxes were paid by the Executor out of the estate, excepting thirty percent of such Federal taxes which was voluntarily advanced and contributed by Lois Holman Thomas.

Thereafter, the Commissioner of Internal Revenue notified the Executor of the assessment of a deficiency in the Federal estate taxes of $36,072.89 by reason of the inclusion of the proceeds of said insurance policies in computing Federal Estate Taxes. Subsequently a compromise settlement of the additional taxes claimed to be due was effected on the basis of $21,555.58 including interest. The Executor having first obtained the approval of the settlement by the Probate Court, made payment of said taxes pursuant to the agreed settlement.

The trial court held that it was the intention of the testatrix not only to charge the tax on property passing under Mrs. Whitlow’s will but also the taxes “upon the insurance payable to her children, for both made up her estate for tax purposes.” The court ordered that the Ohio Succession Taxes resulting from the transfers of policies of insurance shall be paid by and chargeable to the defendants, Lois Holman Thomas and Paul Rockwell Holman and that the Federal Estate Taxes paid by the Executor “in settlement of an asserted deficiency on said tax as a result of such transfers, together with any Ohio estate tax levied, under authority of §5351-1 GC as a result of such increased Federal tax,, shall be paid by the Executor out of the residuary estate-of the decedent herein and shall be chargeable in their entirety against such residuary estate.” It was further ordered that the defendants Lois Holman Thomas and Paul Rockwell Holman be exonerated from any liability for the payment of said taxes and that the executor shall have no right, of reimbursement with respect thereto.

From the finding and judgment, the defendant, Robert H. Whitlow, appealed to this court on questions of law.

There are three assignments of error, each grounded on the true construction of the language employed in Item I of the will, expressive of the intention of the testatrix, an abridged statement of the three assignments of error being as follows:

1. Error in holding that it was the intention of the testatrix that all Federal estate taxes should be paid out of the residue-of the estate.

2. Error in holding that Federal estate taxes on insurance proceeds not passing under the will shall be paid from the residue of the estate.

3. Error in holding that under the language of Item I of the will, exonerating the beneficiaries from Federal estate taxes, was not confined to disposition made in the will.

For the sake of brevity, we will consider the three assign- • ments of error together, not separately, as the focal point-of the issue raised by each of them centers on the true construction and application of the language used by the testatrix, as found in Item I of the will, as follows:

“I direct that all my just debts and the expenses of my last illness and funeral be paid out of my estate as soon after my decease as my Executor shall deem expedient. I direct my Executor to pay from my estate any and all estate, inheritance succession, transfer and other taxes levied against-my estate as whole, or against any legacy, bequest, devise of appointment, or against any legatees, devisees, beneficiary or appointee, it being my intention that my legatees, devisees, beneficiaries and appointees shall receive the full amount of the legacies, bequests, devises and appointments herein made without any diminution on account of such taxes.”

The general rule of construction of language used in a will is to give effect to the intention of the testator. Technical rules of construction are applicable in those instances where the language employed is inconsistent, ambiguous or doubtful. In all instances where the language is plain and free from ambiguity, the intention of the testatrix is ascertained from the will itself, as there is a presumption that the testatrix intended to have done what the language reasonably imports. 41 O. Jur. 575, Sec. 456.

The words and phrases used by the testatrix in Item I have a well settled meaning in the law, and the presumption prevails that they were employed by Mrs. Whitlow to express a definite intention and purpose and that as expressed they would be understood and applied, consistent with the context, in accomplishing the objective so clearly expressed therein.

The use of the word “estate” and the phrases, “my estate” and “my estate as a whole” in Item I, are referable to property to which the testatrix had title and which would therefore pass under her will, in the absence of language expressing a different purpose and application.

The words “legacy” “bequest” “devise” “legatee” or “devisee” are words expressing a well-known concept in the law and are meaningful and harmonious with the entire context of Item I in which they are found.

Furthermore, the concluding provision in this Item I of the will is a reaffirmative statement of the purpose and intention of Mrs. Whitlow already, clearly expressed in the earlier provisions of Item I. This restatement of Mrs. Whitlow’s purpose is noteworthy:

“* * * it being my intention that my' legatees, devisees, beneficiaries and appointees shall receive the full amount of the legacies, bequests, devises and appointments herein made without any diminution on account of any such taxes.” (Emphasis ours.)

The insurance policies are not mentioned in the will and there is no reference to the transfer of these policies which was accomplished years before Mrs. Whitlow made her will. The beneficial interest of the testatrix in these policies was determined upon her death and the proceeds payable to her children under the terms of the irrevocable assignment are not within the well settled meaning of the terms “legacy” or “bequest” in the absence of language clearly expressing an intention on the part of Mrs. Whitlow to include them as such.

The appellee, Paul Rockwell Holman, contends that the word “estate” as used by the testatrix in Item I comprehends the aggregate property transmitted, whether inter vivos or upon death. It is conceivable that the testatrix could have used the word “estate” in the sense claimed. However, rules of construction applicable here require that it be given its usual meaning and one agreeable to the context in which it is found. 41 O Jur. 645, Sec. 517.

As already pointed out, the insurance policies had been assigned prior to the marriage of the testatrix to Mr. Whitlow. Her will was made more than seven years subsequent to her assignment of the policies and the assignment was made nearly eight years prior to her death.

In the light of surrounding circumstances, the contention of the appellee that at the time the will was made the testatrix apticipated there might be some claim asserted by the Commissioner of Internal Revenue that a Federal Estate Tax was assessable against the transfer of' the insurance policies, is not easily apprehended. If the testatrix so anticipated and if she had the purpose and intention to exonerate her children from the payment of such taxes would she not have used language appropriate for such purpose? As suggested earlier in this opinion, the intention of the testatrix is clearly expressed in the language used in Item I and the cardinal rule of interpretation and construction is to give effect to the intention thus expressed. 41 O. Jur. 590, Sec. 467.

The provision of Sec. 826(c) as amended, of the Federal Internal Revenue Code, imposing liability for Federal Estate Taxes on insurance beneficiaries “unless the decedent directs otherwise in his will” would require a clearly expressed intention on the part of the testatrix to exonerate the insurance beneficiaries from liability for taxes. As pointed out by the appellant, the tax stays where the statute puts it unless the Will is crystal clear to the contrary.

It clearly appears that the Will of Mrs. Whitlow wholly fails to disclose an intention to exonerate the insurance beneficiaries of liability for such taxes and in turn shift the burden of their payment to her husband as residuary legatee.

We have been favored with well prepared briefs including copious' citations and clarifying oral arguments. However, it is our opinion that the true construction of the will of Mrs. Whitlow, particularly Item I thereof, is clearly guided and directed by the application of general principles of law which we have endeavored to point out and apply.

It is our conclusion that the trial court erred in exonerating the insurance beneficiaries from liability for Federal estate taxes assessed by reason of the transfer of the insurance policies and from the payment of any additional succession taxes under §5335-1 GC, as a result of such increased Federal estate taxes, and in requiring the executor to pay the same out of the residuary estate.

The judgment of the Probate Court is reversed and the cause remanded to that Court, for further’ proceedings, in accordance with this opinion and judgment of this Court. Exc. Order See Journal.

SKEEL, J, HURD, J, concur.


author: By THE COURT.

text:
    ZIMBELMAN, Plaintiff-Appellee, v. ATKINSON, et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4163.
    Decided November 18, 1948.
    Jerome Goldman, Cincinnati, for plaintiff-appellee.
    Eagleson & Laylin, Columbus, for defendant-appellant, Herschel C. Atkinson
    Vernon W. Wenger, Columbus, for defendant-appellant, New York Casualty Company.
   OPINION

By THE COURT.

The appeal is on questions of law. Fifteen errors are assigned. No. 1 is directed to the overruling of motions of the defendants to strike certain matter from the reply of the plaintiff. Nos. 2 and 3, error in overruling motions of defendants to direct a verdict in their behalf at the conclusion of plaintiff’s evidence and at the conclusion of all the evidence. (4) Error in overruling motions of defendants for judgment on the pleadings. (5) Error in overruling motion of the defendant for judgment notwithstanding the verdict. (13) The verdict of the jury, as against the defendant-appellant, Herschel C. Atkinson, is excessive and manifests the result of passion and prejudice. (15) Other errors apparent upon the face of the record and prejudicial to the defendants. These numbered assignments are found not to be well taken, without comment.

The 7th, 8th and 9th assignments are directed to claimed errors in the special charges given at the request of the plaintiff, special charges refused as requested by the defendants, and error in the general charge. The 10th is error in overruling defendant’s motion for new trial; 11th, 12th and 14th, the verdict is contrary to law and the evidence and the judgment is contrary to law.

In discussing this appeal we will speak of the appellant, Herschel C. Atkinson, defendant-appellant, only, as the rights and liabilities of the appellant, New York Casualty Company, are well defined and controlled by the validity and scope of the judgment against defendant-appellant, Atkinson.

Although counsel have exhaustively argued this appeal in briefs totalling 117 pages, the questions which are dispositive of the appeal are few and do not require extended elaboration.

The claim of the appellee is that she was duly appointed Clerk, Grade 3, in the Classified Service at Cincinnati office for a term beginning December 20, 1938; that her appointment was made from an eligible list certified by the Civil Service Commission and that succeeding her appointment, appellant took the office of Administrator of the Bureau of Unemployment Compensation and by his wrongful acts and conduct, solely for political reasons and based upon corrupt motives, caused appellee to be dismissed and eventually, after she had been reappointed, to relinquish her position on or about May 16, 1939, as a result oí which she suffered compensatory and punitive damages.

The answer of appellant averred that a list carrying appellee’s name as appointee, Clerk Grade III, Cincinnati office, together with other proposed appointees totalling 349, was reported to the State Civil Service Commission, at a salary of $80.00 per month, each, instead of the normal starting rate of $70.00 per month; that after appellant assumed office, he discovered these facts, conferred with the State Civil Service Commission, learned that the appointments had not been approved by it and were subject to recall and -thereafter he requested the recall of the proposed appointments, which request was granted by the commission, and that all of the appointees thus withdrawn had the status of temporary emergency employees and were subject to dismissal; that appellant dismissed all of the 349 and reappointed most of them at $70.00 per month from the eligible list but did not reappoint the plaintiff.

The reply admitted appellant’s reorganization of the Unemployment Compensation Department; alleged that its sole purpose was to institute patronage and the spoils system in the employment of all personnel and to replace employees of a different political faith from that of the defendant, Atkinson, with other employees; admitted that Atkinson had received advice and assistance from the Attorney General and the Civil Service Commission and alleged that the Attorney General had attempted to assist Atkinson in carrying out his alleged corrupt political scheme. The reply was rather extended but renewed the issue of good faith on the part of the appellant and asserted that as soon as the eligible list from which the appointment of Clerks, Grade III, had been made expired, provisional appointments were made at $80.00 per month and on a political basis.

The principal question arising on this appeal is whether or not the evidence supported the charge of the court to the jury that the appellee was duly and regularly appointed as Clerk, Grade III, in the Classified Service and that such appointment was permanent in character and not temporary. This question is simplified by the facts which disclose that appellee, after a competitive Civil Service examination for the position to which she was appointed, was placed second upon the eligible list; that on December 20, 1938, she was notified by the Unemployment Compensation Commission that she was appointed to the position of Clerk, Grade III, Cincinnati office, at a salary of $80.00 per month. She reported for work and was assigned to service on December 23, 1938. On January 16, 1939, the eligible list, upon which was plaintiff’s name, was officially certified by the Civil Service Commission and plaintiff was duly notified of the action of the Commission. Not withstanding the aforesaid action, prior to February 9, 1939, appellee had been carried on the rolls of the Unemployment Compensation Commission and the Civil Service Commission as a temporary employee but on the aforesaid date the Unemployment Compensation Commission made an appointment of appellee and she was named as a permanent appointee to the position in which she had been serving and the salary was. fixed at $80.00 per month, noted as effective February 10, 1939. Thereupon the records of the Unemployment Compensation Commission were accordingly changed. The report of the appointment was made to the Civil Service Commission and the Department of Finance but the appointment was not entered upon the records of the Civil Service Commission.

The record of the certification from the Civil Service Commission to the Unemployment Compensation Commission of the list for appointment of Clerk, Grade III, Cincinnati office, carrying the name of plaintiff as eligible for appointment, the notations of the Civil Service Commission thereon, testified to indicate appointment of plaintiff of date January 21, 1939, the telegram to her of December 20, 1938, saying that she had been appointed clerk at the designated pay of $80.00 per month, without any qualification that the appointment was of a temporary nature, and instructing her to report for work, her acceptance of the employment, her later removal and thereafter her reinstatement after an action predicated upon her claim that she was an appointee in the Classified Service, support the conclusion of the jury that she had a permanent appointment in the Classified Civil Service as of the date claimed by her. The letter from defendant of March 18, 1939, admits the appointments of Clerks, Grade III, at the rate of $80.00 per month, although there is a request that such appointments be recalled from classifications. The appointment conforms to the requirements of §486-13 GC, and is, in the main, supported by State, ex rel. Hoornstra v. Atkinson, Admr., etc., 136 Oh St 571.

The mere failure of the Civil Service Commission to make proper formal entry of an appointment otherwise regularly made and certified to it would not affect the validity of such an appointment. State, ex rel. Hoornstra v. Atkinson, supra.

Without discussing the testimony on the subject, which was extended, we are satisfied to say that it discloses that the plaintiff was regularly and permanently named as a Civil Service appointee to the position in which she served and the charges of the court to that effect were correct.

Plaintiff having attained the status of a regular Civil Service appointee, she was entitled to retain her position during good behavior and efficient service and could only be separated from the service in the manner prescribed by statute, which admittedly was not pursued, in bringing about her removal. Plaintiff’s special charges Nos. 4, 5 and 6 were therefore correct.

The 6th assignment, in the main, is directed to testimony, the purpose of which was to support the claim that the appellant in his acts leading up to the dismissal of the plaintiff acted for political reasons and with corrupt motives and all related to good faith in the steps by him taken. An examination of this evidence discloses that although some of it is remote, we cannot say that any of it may not have had some probative effect upon the material issue of good faith and motive and was competent not only as proof as related to compensatory damages but also on the further question whether or not punitive damages should be awarded and, if so, to what extent.

The 11th, 12th and 14th assignments in conjunction with the 10th, the overruling of the motion for new trial, require determination whether or not the verdict and judgment are against the weight of the evidence or contrary to law.

We cannot support the conclusion that any of these assignments is well made. The issues between the parties were distinctly drawn and the respective claims of the parties were well developed in the testimony. We have held in Rowley v. Ferguson, et al., 37 Abs 531, 48 N. E. (2d) 243, that the appointing power does not have jurisdiction to remove an employee in the permanent classified Civil Service in the absence of complaint, notice and opportunity to be heard, and that such appointing authority could properly be held for damages in his individual capacity for improperly discharging an employee in the permanent classified Civil Service (1st and 5th syllabi).

Upon this record it appears that the appellee was an employee in the permanent classified Civil Service; that she was removed from her employment and no charges were preferred against her. The extent of her damage was a factual question and she was entitled to the judgment of the jury, not only upon the issue of compensatory damages but upon the issue of punitive damages as well.

Finding no error assigned established the judgment will be affirmed.

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


author: By SKEEL, J:

text:
    KING, Estate of In Re; McDONALD, Plaintiff-Appellee, v. CALHOUN, Jr., Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21027.
    Decided March 28, 1949.
    Frank Uible, Cleveland, for plaintiff-appellee.
    Garfield, Baldwin, Jameson, Hope & Ulrich, Cleveland, for defendant-appellant.
   OPINION

By SKEEL, J:

This cause comes to this court on questions of law from a final order of the Probate Court of Cuyahoga County, the action being one for concealing assets under §10506-67 GC.

The deceased prior to his death had been associated with Jo C. Calhoun Jr. in a business venture. Their relationship began in about 1930 when Calhoun conceived the plan of organizing a company to furnish auditing service and business counsel to small businesses. The result was the incorporation of Business Management Inc. Four men, one of whom was Mr. King, became associated with Calhoun in this enterprise. King, prior to this time, was an employee in the Water Department of the City of Cleveland. The plan was for Calhoun to-supply the business and the others were to service such accounts in making audits and then advising any business changes that such audits disclosed to be advisable.

The business continued upon this plan until 1936. By this time three of the original men associated in the business of Business Management Inc had withdrawn, leaving King and Calhoun as the sole owners. Inasmuch as it then became apparent that audits that were made in furtherance of servicing the business accounts of the company had to be signed by a certified public accountant individually, Calhoun and King began to carry on the business under the name of W. Leslie King and Company, and while Business Management Inc., was not dissolved, yet its corporate powers were no longer used in conducting the business.

Thereafter, Calhoun continued to procure accounts and King, to do thé auditing on such new accounts, in addition to continuing to work on the accounts that were formerly serviced as the business of Business Management Inc. The business-continued under the name of W. Leslie King & Company from 1936 to January 1, 1944. King died on that date.

The evidence discloses that after the name of the venture-had been changed to W. Leslie King & Company, Calhoun continued to share in the profits of the company, at first not to any great extent, but as the business increased and the-income would warrant such payment, King and Calhoun would go over the receipts and agree upon the amount Calhoun-should receive. There seems also to be no controversy but that it was agreed that the accounts secured to be serviced by W. Leslie King & Company should belong to the one who’ procured the business. During the last two years before the death of King, the amount paid to Calhoun seemed to show that they, Calhoun and King, had agreed that Calhoun should be paid for his services to the business at the rate of $250.00' per month.

The record further shows that during the last six months-of 1943 King became sick and was unable to do any work necessary to audit and service the accounts. During this time an auditor, Meyers by name, was employed to do the accounting work and that Calhoun agreed during that period not to withdraw money from the business.

Upon the death of King on January 1, 1944, his wife was appointed Executrix of her husband’s estate and Calhoun was employed by her as her attorney.

Shortly after her appointment as Executrix, she gave to Calhoun checks in the total amount of $1873.93 received from customers of W. Leslie King & Company. This money was expended by him for the following purposes:

$900.00 to one of the business customers of W. Leslie King 8s Company, as per agreement with King; and the balance to himself to make up in part the $250.00 per month which he had not received for the last half of '1943.

Calhoun admitted that this amount was not included in the final account which he drew for the Executrix and by her filed in the estate of her husband.

After the death of King, Calhoun carried on the business under the name of W. Leslie King & Company, and by the reports which he furnished the income and expenses for the years in which the business was operated by Calhoun were as follows:

“Year Income Expenses
1943 1,873.93 900.00
1944 14,584.86 10,178.49
1945 16,820.50 12,293.04
1946 7,772.67 4,758.09
Total Income 41,051.96
Total Expenses 28,129.62
Net Income 12,922.34”

In the expenses as thus recorded, there was included for the year 1944, $1700.00 as being returned to a client as per agreement with King. The same item in the same amount was included for the year 1945, plus $1000.00 extra compensation to A. Z. Meyers, the auditor employed by Calhoun. In 1946 there was included $900.00 paid back to a client on the same basis as the $1700.00 item in 1944 and 1945, and also $612.27 as extra compensation to Meyers. The total of these expenditures was $6,812.67. These claims of expenses were not allowed by the trial court.

The complainant also testified that he as Administrator De Bonis Non with Will Annexed, sold the business to Meyers for $2000.00 in June or July, 1946.

The trial court at the conclusion of the evidence entered the following judgment:

“This matter coming on to be heard on the 29th day of November, 1946, and from the testimony, the exhibits and the evidence, the Court finds that the said Jo C. Calhoun Jr., the person against whom this complaint was filed, is “guilty” of having in his possession the sum of $19,743.99 and the shares of stock which were turned over to him by Mrs. King which are assets of the estate of William Leslie King, deceased.
The Court therefore orders, adjudges and decrees that Jo C. Calhoun Jr. shall pay over the sum of $19,743.99 together with the shares of stock which were turned over to him by the said Mrs. King to T. F. McDonald, Administrator de bonis non w. w. a. of the estate of William Leslie King, deceased.
The Court further finds that the complainee also pay the costs of this proceeding taxed at $-.”

The errors complained of are as follows:

“1. The finding and judgment are contrary to law, because there were absolutely no ultimate facts anywhere in the evidence to prove, or from which an inference could be drawn, that Jo C. Calhoun Jr., has concealed, embezzled or conveyed away moneys, goods, chattels, things in action, or effects of the Estate of William Leslie King, deceased.
2. The finding and judgment are not sustained by evidence and are against the manifest weight of the evidence.
3. The Court erred in refusing to grant respondent’s motion for judgment.
4. The amount of the finding of the Court and the judgment are excessive.
5. The finding and judgment are contrary to law.
6. The Probate Court was without jurisdiction to enter said judgment.”

Sec. 10506-67 GC provides as follows:

“Upon complaint made to the probate court or common pleas court, of any county by a fiduciary, creditor, devisee, legatee, heir or other person interested in the trust estate, or by the creditor of any devisee, legatee, heir, or other person interested in the trust estate against 'the fiduciary or any other person suspected of having concealed, embezzled or conveyed away or of being or having been in the possession of any moneys, goods, chattels, things in action, or effects of such estate, said court shall cite the person so suspected forthwith to appear before it to be examined on oath, touching the matter of the complaint. The probate court shall also have power to initiate proceedings on its own motion.”

The business which was carried on by W. Leslie King & Company was for personal services, to-wit, accounting and business advice as developed by the audits. The history of the development and operation of such business clearly shows that it was not the exclusive property either of King or of Calhoun. There is no evidence which in the slightest degree challenges the records kept both before and after the death of King or that would justify a finding that the business was the exclusive property of King. And likewise, the use of the name of W. Leslie King & Company indicates clearly that there was interest in such business other than that of King.

The Court by its judgment not only failed to give any consideration to the interest of each of the persons whose work, the evidence shows, contributed to the success of the enterprise, and awarded the income of the business, after the death of King, to his estate, but also failed to recognize expenses which were unchallenged by the evidence and a part of which were of exactly the same character as paid by King before his death. The death of King in no way deprived Calhoun of his personal interest in the business. His acting as attorney for the Executrix could in no way affect a then existing property interest in such business. This fact, however, does not relieve an attorney employed under such circumstances of the duty of making a full declaration of any adverse interests he may have as against the trust estate. Upon this question the record is silent.

We conclude, therefore, that the judgment is manifestly .against the weight of the evidence and for that reason should be reversed and remanded for further proceedings.

The other errors complained of are so closely related to the question of whether or not the judgment is sustained by .sufficient evidence that they need not be dealt with separately.

We further believe that the question of whether or not the income of the business earned after the death of the deceased, King, could be the subject of a complaint filed under §10506-67 GC is not an issue raised upon the record before us and we therefore will not consider such subject at this time.

The judgment of the Probate Court is reversed and the cause is remanded for further proceedings according to law. Exceptions. Order See Journal.

MORGAN, PJ, HURD, J, concur.


author: By HORNBECK, J. By THE COURT:

text:
    HAMILTON, Ex Parte, Relator-Appellant, v. RUSSELL, Respondent-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2012.
    Decided December 27, 1948.
    Louis C. Capelle, Cincinnati, for relator-appellant.
    Herbert S. Bean, City Atty., Cecil E. Edwards, Asst. City Atty.,. Dayton, for respondent-appellee.
   OPINION

By HORNBECK, J.

The appeal is from a judgment of the Common Pleas Court denying a writ of habeas corpus to appellant on final hearing and trial had.

We do not have the petition, but it may be assumed that-it is in the usual form. The claim of the appellant is that he was not properly charged with an offense and that he was-improperly sentenced and committed. The briefs of the parties and the arguments of counsel were directed to one-charge and one commitment. The record contains two charges and two commitments. If the appellant is properly held on either, the writ must be denied.

One charge is that on or about January 7, 1946, relator was found within the city limits of Dayton at a place there named in a state of intoxication. There is no judgment and sentence on this charge but there is a commitment in regular form directed to respondent, wherein it is recited that the relator was charged and found guilty of intoxication. The sentence is for a number of days from the 9th of January 1949, the 9 being written over a 6, and to pay a fine of $100.00 and costs. The commitment was dated January 9, 1946.

Inasmuch as there is no order and sentence of the trial judge upon which the commitment could issue, and also because, if the relator had been properly committed, his sentence would have been served working out his fine and costs at the per diem allowance, we may properly determine that relator should not legally be held under this commitment.

We then give consideration to the ground upon which the cause was presented to the trial court and urged here, namely, the invalidity of the other proceedings by which the relator is now being held by the respondent.

On this claim, the relator was charged in the usual form of violating Section 926 of the ordinances of the City of Dayton, Ohio in that he unlawfully loitered at the place named, in the City of Dayton. Then followed this further subject matter,

“The said Paul Hamilton, having been three times convicted, sentenced and imprisoned in the workhouse of the City of Dayton, Ohio, for offenses committed in the State of Ohio, to wit: November 11, 1944, Case No. 20276, loitering; September 2, 1945, Case No. 30266, loitering; December 12, 1943, Case No. 4313, loitering, contrary to §4131 GC, etc.”

The judgment entry on this charge recites that “the cause came on to be heard upon the issue joined and the evidence * * * and the court * * * does find the defendant guilty of loitering in violation of the Habitual Offender Act as he stands charged in the affidavit filed herein.” The commitment recites the trial and conviction of relator of unlawfully loitering, as charged in the affidavit with the addenda as carried therein, and the further recital that he had been sentenced to be imprisoned in the Workhouse in the City of Dayton for a term of three years from January 9, 1946.

Several errors are assigned. First, that §4131 GC, defining an habitual offender, does not constitute a crime. Second, that the plaintiff did not waive a trial by jury in writing. Third, that §4131 GC violates the constitution of the State of Ohio in that it provides for cruel and inhuman punishment.

Upon the second and third assignments we find against the claim of appellant. We discuss the first as we consider the general proposition whether or not upon the proceedings appearing, the trial court erred in refusing to hold that the relator was illegally restrained of his liberty. Sec. 4131 GC, insofar as pertinent, provides:

“Every person, who, after having been three times convicted, sentenced and imprisoned in any Workhouse * * * for offenses committed in this state, whether in violation of law or ordinance, shall be convicted of a fourth misdemeanor, whether committed in violation of an ordinance of a municipality or law of the state, punishable by imprisonment in any Workhouse within this state, shall, upon conviction for such offense be held and deemed to be an habitual offender and shall be imprisoned in a Workhouse for a period of not less than one year nor more than three years * *

We are cited to Moreno, ex parte, In Re., Lunce, ex parte, In Re, 52 Abs 58, October 9, 1948, page 58, First District, the third headnote of which reads:

“Sec. 4131 GC does not create a separate, distinct crime, for which one may be sentenced to the Workhouse, but, on the contrary, merely attaches an additional penalty to the commission of a misdeameanor, where the perpetrator thereof has been three times previously convicted of misdemeanors and sentenced to the'Workhouse.”

The decisive question in this case did not especially relate to the proposition of law set out in the third headnote. We agree that the section must be considered in conjunction with the other offenses therein set out, and may not be given application unless and until it is charged and proven that a defendant has been three times convicted and imprisoned in a workhouse, and further, charged and proved that a fourth misdemeanor has been committed carrying the same penalty. Testing the affidavit in this respect, we are of opinion that it conforms in substantial averments to the law. It is true that the affidavit is concluded with the charge contrary to §4131 GC, but that part of the affidavit which goes before is sufficient, in that it charges a fourth offense under an ordinance punishable by imprisonment in a workhouse and also that the defendant has been three times convicted, sentenced and imprisoned in the workhouse of the City of Dayton and details the dates, the numbers of the cases and the charges. The affidavit incorporates all of the essentials requisite, if proven, to give the court authority to impose sentence, as provided in §4131 GC,

The order reciting the trial and conviction of the defendant is inadequate in particulars. First, it adjudges that the defendant is found guilty of loitering in violation of the habitual offender act as he stands charged in the affidavit. There is no such charge, nor can it be said that because of the finding alone that the defendant is guilty of loitering, there has been a violation of the habitual offender act. It is material and essential to the judgment order that it recite .a finding of guilt of the charge of loitering, and a further finding, that the defendant had three times theretofore been convicted, sentenced and imprisoned in the workhouse of the City of Dayton, Ohio, setting out the specific offenses as charged. There is another infirmity in the record of the proceedings as made up in the bill in that it does not carry any sentence of the court which is an essential to any commitment. That there must be such a pronouncement, and that it must be carried into a proper written order of the court, is manifest.

Sec. 1345-13 GC. To be a valid sentence it must in and of itself be so definite and certain as to advise the prisoner and officer charged with the execution of the sentence of the time of its commencement and termination. The commencement and termination thereof must be definitely fixed in the judgment. 12 O. Jur. 699 and cases cited.

It may be that there is a judgment order and sentence which succeeded the order finding the defendant guilty as charged. Such an entry would be appropriate following the finding of guilt, either in the same or another entry, but if there is such an order it is not carried into the bill of exceptions and we can not assume that it was entered as a part of the proceedings in the cause.

In fairness to the trial judge, it should be said that, in probability, our final reason for the granting of the writ of habeas corpus, and the infirmity in the proceedings committing the relator, was not urged and probably not presented in argument at the original hearing. Inasmuch, however, as the invalidity of the proceedings upon which the commitment was issued is so material, it would be an injustice to the relator upon this record to refuse him the relief prayed.

The writ of habeas corpus should have been granted as prayed and the judgment of the Common Pleas Court denying its issuance was erroneous and prejudicial to the rights of the appellant. Judgment will be reversed, writ as prayed may issue and cause will be remanded.

WISEMAN, PJ, and MILLER, J, concur.

ON APPLICATION FOR REHEARING

No. 2012. Decided January 13, 1949.

By THE COURT:

Submitted on application of appellee for rehearing, based upon the claim that certain records in the Police Court of the City of Dayton, which were not before this court, would require a different judgment. The statement in the memorandum attached to the motion clearly discloses that the evidence upon which appellee relies was not before this court nor before the trial court. The trial court in the first instance, .and this court upon review on questions of law, was restricted in its consideration of the facts to the evidence developed by testimony taken or presented by stipulation at the trial. We know of no procedure by which the evidence suggested could be brought upon the record at this late date.

The application will be denied.

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


author: By DOYLE, J.

text:
    CLAMPITT, Plaintiff-Appellee, v. CLEVELAND (City), Defendant-Appellant.
    Ohio Appeals, Eighth District. Cuyahoga County.
    No. 21229.
    Decided March 14, 1949.

      Harrison, Thomas, Spangenberg & Hull, Cleveland, for plaintiff-appellee.
    Robert J. Shoup, E. Sheldon Wirts, Cleveland, for defendant-appellant.
    (DOYLE, J., of the Ninth Appellate District, sitting by designation in place of MORGAN, J.)
   OPINION

By DOYLE, J.

This is an action of tort for personal injuries occasioned to the plaintiff by the claimed negligent operation of an electric streetcar operating on tracks which struck from the rear the automobile being driven by the complainant. The appeal is by the City of Cleveland from a judgment entered upon a verdict of a jury in favor of the injured person against the said city as the owner and operator of the traction lines.

There is evidence which tends to show that the complainant drove his automobile from a private driveway into a through highway (East 105th Street) and turned north; that soon thereafter he was struck from the rear by the streetcar proceeding in the same direction.

1. The evidence and the reasonable inferences to be drawn therefrom were such as to require the court to apply the “right of way” provision of §6307-2 GC as well as §6307-43 GC. These provisions are in the following terms:

Sec. 6307-2 GC: * * * “Right of Way”

“The right of a vehicle, streetcar, trackless trolley or pedestrian to proceed uninterruptedly in a lawful manner in the direction in which it or he is moving in preference to another vehicle, streetcar, trackless trolley or pedestrian approaching from a different direction into its or his path.”
Sec. 6307-43 GC: “The operator of a vehicle, streetcar or trackless trolley about to enter or cross a highway from a private road, driveway, alley or building shall stop and yield the right-of-way to all traffic approaching on said highway.”

The court was requested by the defendant to give the following written charge to the jury before the argument in the case:

“Ladies and gentlemen of the jury, 1 charge you as a matter of law that the phrase ‘right of way’ meqns the right of the streetcar to proceed uninterruptedly in a lawful manner in the direction in which it is moving in preference to a vehicle approaching from a different direction into its path. The operator of a vehicle about to enter or cross a highway from a private road, driveway, alley or building shall stop and yield the right of way to all traffic approaching on said highway.”

It is the opinion of the members of the court that under the facts of this case the requested charge was.proper and should have been given and that the court’s refusal constituted error prejudicial to the rights of the city of Cleveland. Washington Fidelity National Insurance Co. v. Herbert 125 Oh St 591, Morris v. Bloomgren, 127 Oh St 147.

2. Damages were asked both for personal injuries and injury to the automobile. A general verdict was returned in one lump sum. It is reasonable to assume that the jury included in the verdict some amount for the property damage. In proving ownership of the automobile, it was necessary to place in evidence the certificate of title showing the vehicle in the name of the complainant. (Sec. 6290-4 GC.) This was not done. The evidence of ownership which was introduced was not of sufficient weight to sustain a verdict or judgment for any damage to property. It was therefore error to submit to the jury the question of property damage. Mielke, et al v. Leeberson, 150 Oh St 528.

3. It is further claimed that the court erred in the admission in evidence of an x-ray picture of what was described as a normal knee, for the purposes of comparison with the x-ray picture of the knee of the plaintiff made after an injury to it in the accident in question. The expert who identified the x-ray picture in controversy was unable to state whether it was a picture of a man or woman or that of a young or old person. It was claimed that as a result of the injury there was a diminished density of the plaintiff’s patella. An expert witness compared the density of the plaintiff’s patella as shown in an x-ray of his knee after the accident, with the density of the patella of the unknown person. It is obvious that the comparison was not fair for the evidence shows that the plaintiff was a man in advanced' years, and under the circumstances of this case the x-ray picture of the sesamoid bone of the unknown man or woman, boy or girl X was not competent evidence and therefore error was committed in its introduction.

We have examined the other claimed errors and find none of a prejudicial character.

For the errors noted above which we determine prejudicial, the judgment is reversed and the cause remanded.

Judgment reversed. Exc. Order See Journal.

SKEEL, PJ, (acting) HURD, J, concur.