author: By LEACH, J.

text:
    HARGER, d. b. a. SING SENSATION CLUB, Appellant, v. BOARD OF LIQUOR CONTROL, Appellee.
    Common Pleas Court, Franklin County.
    No. 195251.
    Decided April 9, 1957.
    Simmons, Simmons & Penn, Toledo, for appellant.
    William Saxbe, Atty. Geni., S. Noel Melvin, Asst. Atty. Geni., for appellee.
   OPINION

By LEACH, J.

HEARD ON APPEAL FROM ORDER OF BOARD OF LIQUOR CONTROL-AFFIRMED.

This is an appeal from the order of the Board of Liquor Control of April 25, 1956, revoking appellant’s Class D-l, and D-2 permits for premises located at 1401 Miami Street, Toledo, Ohio.

The permits were revoked upon the basis of a finding of guilty of a violation of Regulation 52 of the Board which prohibits a permit holder from knowingly or willfully allowing in, upon or about his licensed premises improper conduct of any kind, type, or character or any immoral activities.

It appears from the testimony of a police officer of the City of Toledo t-hat op March 4, 1956 he entered the permit premises where h§ found one Loretta Adams tending bar, and Mrs. Eular Harger, the wife of the permit holder, waiting table; that he was solicited by Loretta Adams who offered to obtain for him a girl for the purpose of engaging in an act of prostitution; that Miss Adams then went to the foot of a stairway and called one Lela Davenport who then came and sat beside the police officer at the bar where he bought her a drink; that Miss Adams told the officer at that time if he did not like this girl to let her know and she would get him someone else; that Miss Davenport then told the officer to go outside and she would let him in the outside stairway; that he did so and met Miss Davenport in a room above the permit premises where she stated her price after which she was arrested.

We believe it clear from the testimony that there was an act of solicitation which took place on the premises of the permit holder. The appellant asserts however that Miss Davenport was not his employee, she having come there about the last week in February, 1956 at which time his wife was ill and his wife let her stay to take care of the upstairs rooms at no payment. Appellant also asserts that Miss Adams was not an employee but an “independent contractor,” on the basis that she was a singer and was not hired as a bartender and had only been there about three days when this incident happened.

It appears that the appellant is otherwise employed and while absent from the permit premises testified that such are in charge of his wife.

From a review of the entire record and an appraisal of all of the evidence in accordance with the directive of the Supreme Court in the case of Andrews v. Board of Liquor Control, 164 Oh St 275, we conclude that the order of the Board of Liquor Control clearly is supported by reliable, probative and substantial evidence and is in accordance with law. The law is well established that a permit holder is responsible for the acts of his employees which are in violation of the Liquor Control Act or regulations of the Board of Liquor Control. Wallace v. Board of Liquor Control, 64 Abs 477. It was held in the case of 111 Bar Inc., v. Board of Liquor Control, No. 191,785 (CP 75 Abs 247; OA 75 Abs 407; 165 Oh St 507), that knowledge of solicitation on the part of a waitress, an employee of the permit holder, may be imputed to a waitress, an employee of the permit holder, may be imputed to the permit holder. This case was affirmed by the Court of Appeals in Case No. 5424, and on October 18, 1956, motion to certify was denied by the Supreme Court in Case No. 34866.

We believe that this case is not distinguishable from the basic facts presented in the 111 Bar Inc., case. As a matter of fact we believe that the instant case presents an even stronger case than that presented in the 111 Bar Inc. case.

See also Wittenberg v. Board of Liquor Control, 52 Abs 65 and Myers v. Board of Liquor Control, No. 191667 of the docket of this Court.

We believe it clear that regardless of the status of Lela Davenport, Loretta Adams was an employee of the appellant and that her actions did constitute a violation of regulation 52. There is no proof whatsoever to the effect that she was an “independent contractor” and, regardless of whatever concept the appellant may have had as to her relationship, the undisputed proof is to the effect that on the day in question she was actually tending bar, and doing so in the presence of the appellant's wife, who according to the appellant’s testimony was in charge of the permit premises during his absence.

The order of the Board of Liquor Control therefore is affirmed. Entry may be prepared accordingly.


source: Caselaw Access Project

author: By THE COURT.

license: Public Domain

text:
    HARGER, d. b. a. SING SENSATION CLUB, Appellant, v. BOARD OF LIQUOR CONTROL, Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5694.
    Decided October 28, 1957.
    Robert W. Penn, Simmons, Simmons & Penn, Toledo, for appellant.
    William Saxbe, Atty. Geni., S. Noel Melvin, Asst. Atty. Geni., Columbus, for appellees.
    (HORNBECK, J, of the Second District, sitting by assignment in the Tenth District.)
   OPINION

By THE COURT.

Appellant moves for a rehearing for the reason that in affirming the judgment upon the written opinion of the trial judge and finding that the decisive question was the weight of the evidence, we did not consider the principal error assigned and argued. This, it is said, “was a point of law applied by the lower court as to the imputing of knowledge of an agent to the permit holder.”

It is no longer an open question, in this court, that knowledge of the permit holder of the acts of his employe may, if the circumstances warrant, be imputed to him. The cases from this jurisdiction cited and commented upon by counsel for both parties so hold.

This imputed knowledge is not absolute and must be evaluated in the light of all of the evidence. This was the situation presented to the trial judge on the record. There is little or no dispute of the solicitation on the permit premises of, and for, the prostitute by the employe, Who was acting as bartender of the permittee. This solicitation took piace while the wife of the permittee was in charge of the permit premises and also acting as a bartender. The only dispute of consequence is the knowledge of the permittee of the solicitation. There was tesuimony from which the trial judge could have found that he had no such knowledge. The facts presented required an evaluation of the evidence in connection with the well-recognized principle of law heretofore stated.

There is no showing that the trial judge did not understand or misinterpreted the applicable and controlling principle of law involved. We are of the opinion that our former decision met the one decisive issue raised and urged on the appeal, viz., the weight of the evidence on the comroverted issue of knowledge.

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


author: By SKEEL, PJ.

text:
    MITCHELL, Claimant-Appellee, v. STATE BUREAU OF UNEMPLOYMENT COMPENSATION, Admr. et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24512.
    Decided October 15, 1958.
    Fleck & Fleck, for claimant-appellee.
    William Saxbe, Atty. Geni., John W. Hardwick, Richard F. Patton, for defendants-appellants.
   OPINION

By SKEEL, PJ.

This appeal comes to this court on questions of law from a judgment of the Court of Common Pleas of Cuyahoga County, reversing a decision or order of the Board of Review, Bureau of Unemployment Compensation. denying the claimant benefits under the Unemployment Compensation Act. The court reversed the order of the Board and remanded the proceeding to the Board of Review of the Bureau of Unemployment Compensation with instructions to afford the claimant a rehearing under the provisions of the statute wherein upon such rehearing, a record is made as a prerequisite to an appeal to the court of common pleas.

The record discloses that the claimant was an employee of the Ohio Disposal Company; that he left his employment December 14, 1955, and filed this claim to determine benefit rights under the Unemployment Compensation Act on January 4, 1956. He was thereafter employed by the Cleveland Maintenance Company, Inc., beginning February 7, 1956. He was separated from this employment on August 31, 1956, and filed a “claim.statement” with the administrator on September 4, 1956 without making a new application. The claim was handled from this point on as if an application had been filed naming the Cleveland Maintenance Company, Inc., as his last employer. The referee at the hearing on October 15, 1956, took note of the above facts and then proceeded with the hearing. We will, therefore, give no consideration to the absence of a proper application.

An issue of fact was presented as to whether claimant was wrongfully discharged by the Cleveland Maintenance Company, Inc., it being the claim of the employer that he voluntarily quit for reasons personal to himself. On September 13, 1956, the administrator disallowed the claim. A request for reconsideration was filed September 19, 1956, whereupon on September 20, 1956, on reconsideration, the administrator affirmed his determination of September 13, 1956.

On' September 26, 1956, an appeal to the Board of Review was requested by a proper notice, as provided by law. On October 26, 1956, after hearing held on October 15, 1956, at which the evidence was taken and recorded, the referee, acting on behalf of the Board of Review, affirmed the decision of the administrator, the decision of the referee being filed and notices thereof mailed to the interested parties on that day.

On October 31, 1956, the applicant filed an application for leave to institute a further appeal from the decision of the referee. On January 8, 1957, the Board of Review disallowed the right to further appeal and notices were on that day mailed to all interested parties.

The Bureau of Unemployment Compensation, on January 31, 1957, received a letter dated January 16, 1957, but postmarked January 30, 1957, addressed to Governor Frank J. Lausche and the State of Ohio Bureau of Unemployment Compensation, which was as follows:

“The cause for this letter is that I know that I had just cause for quitting the job that I was working. This is the reason that I quit the Cleveland Maintenee.
“I went to work for the Maintenee Co. as a turck driver at $7.50 a day loaking brick and was rise to ten dollars a day after a time. Then I was but on night driving. I work from Saunday to Friday, Saturday was my day of. But I had to report to the job to get my work list for Sunday. I ask Jack the boss to put my work list in the glove apartment of the turck because I had affair to take care of on my day off. All so I need’et a rest. Jack say thear is rest in rubbish business.
“My working houres was suppose to be 2PM LO pm and I came in a'2pm and it would be 3pm or 4pm before a got stat, et work I wouldn’t get pay for the time I was on the job waiting on my turck to come in.
“I also ask for a rise I was told that he would see about it that went on over 3 week.
“And on my 1st week I was told to work late Thursday & Friday and was out till the job was thought. When I received my check my over time wasn’t on it, I ask Jack about it and Jack say I had to wate till Mr. Welldon return. So I didn’t return to work anymore, I have been reporting to the Claims Office from Sept 4, 1956 to Jan 17, 1957.
S/ John Mitchell
SS. [ XXX-XX-XXXX ]
2330 Unyin Rd.
Cleveland, Ohio.
Postmarked Jan. 30, 1957
Received Jan. 31, 1957.”

On March 14, 1957, the Board made the following entry:

“On January 16, 1957, Claimant appealed.
“However, although directed to the Board of Review, said appeal did not set forth the notice of intention to appeal to court and request for rehearing provided in §4141.28 R. C., as follows:
“ * * Any interested party may, within ten days after notice of the board’s decision or order was mailed to the last known post-office address of such parties, file notice with the board of intention to appeal any such decision or order of the board adversely affecting such party to a court of common pleas and request a rehearing by the board. * * *” (Emphasis by the Board.)
“By failure to set forth the prescribed notice of intention to appeal to court and request for rehearing said appeal must be deemed to be deficient, in that it does not meet specific statutory requirements respecting such ‘notice’ and ‘request.’
“By reason of the foregoing said appeal cannot be accepted as a valid Notice and Request, and it confers upon the Board no jurisdiction to consider any substantive issue (s).
“IT IS THEREFORE ORDERED that the appeal filed by claimant on January 16, 1957 be and the same is hereby dismissed.”

Notice of the foregoing decision of the Board was mailed to all interested parties on March 14, 1957. Thereafter, on April 10, 1957, the claimant filed a notice of appeal with the Clerk of Courts of Cuyahoga County and copy was mailed to all interested parties:

Upon trial on appeal in the Court of Common Pleas, the court, by its journal entry, which was filed with the Clerk March 12, 1958, reversed the decision of the Board of Review of the Bureau of Unemployment Compensation and remanded the cause “to the Board of Review, Bureau of Unemployment Compensation for the purpose of having a rehearing record made and by allowing the within claimant the opportunity to perfect further appeals according to law at appellee’s cost.”

Sec. 4141.28 R. C., provides:

“* * * Any interested party may, within ten days after notice of the board’s decision or order was mailed to the last known post-office address of such parties, file notice with the board of intention to appeal any such decision or order of the board adversely affecting such party to a court of common pleas and request a rehearing by the board. Such notice and requqest for rehearing shall be filed with the board in the manner and in the form and at such place as may be prescribed by the board. When any such notice and request is so filed with the board, the board shall afford all interested parties a fair rehearing. All interested parties shall be notified of the board’s decision on rehearing and the reasons thereof by mail addressed to the last known post-office address of such parties. A complete record shall be kept of each case heard before the board on rehearing. * * *”

It is the contention of the appellant, as shown by the decision of the Board of Review, dated March 14, 1957, that the letter, above quoted, is not a sufficient notice of the intention of the claimant to appeal to the courts or to invoke the jurisdiction of the Board of Review to “consider any substantive issues” on reconsideration necessary to institute an appeal to the court. It does not set forth the necessary statements of fact required by statute.

As quoted above, the statute provides that the interested party adversely affected may, within ten days “* * * file notice with the board of intention to appeal the decision or order of the board * * * to the common pleas court and request a rehearing by the board * * It will be noticed that at least two requirements of the statute are not mentioned in the letter: first, that the claimant intends to appeal to the court, and second, that he requests a rehearing as a prerequisite for that purpose. The sufficiency of a notice filed with an administrative agency, provided for by statute, has been the subject of a number of Supreme Court cases in which the court has held that all requirements of the statute, such as are here being considered, are mandatory and notice, to be sufficient, must reasonably inform the other interested parties of those things which the statute prescribes. Zier v. Bureau of Unemployment Compensation, 151 Oh St 123, 84 N. E. 2d 746. American Restaurant & Lunch Co. v. Glander, Tax Commr., 147 Oh St 147, 70 N. E. 2d 93; Moore v. Foreacher, Recr., 156 Oh St 255, 102 N. E. 2d 8.

It is our conclusion that the letter, above quoted, was not a sufficient notice of the claimant’s intention to appeal to the Court of Common Pleas and that the Bureau correctly refused to proceed with the rehearing for which such letter was claimed to suffice as the notice of claimant’s intention to appeal to the Court of Common Pleas. The court was, therefore, without jurisdiction to direct the Board to afford the claimant ,a rehearing because of such deficiency of the notice.

For the foregoing reasons, the judgment of the Court of Common Pleas is reversed and final judgment entered for the appellant.

HURD and KOVACHY, JJ, concur. .


author: By McNEILL, J.

text:
    GIBBONS et, Plaintiffs, v. SOMMERS et, Defendants.
    Common Pleas Court, Mercer County.
    No. 14671.
    Decided November 29, 1957.
    Short & Dull, Robert D. Touvelle, Celina, for plaintiffs.
    Foust & Harrelson, Troy, for defendants.
    (McNEILL, J., of Van Wert County, sitting by assignment.)
   OPINION

By McNEILL, J.

This is an action to prevent the enforcement of a judgment taken by confession in the court of common pleas of Miami County, Ohio. Plaintiffs, along with defendant Frank Sommers and four other persons were the makers of a note. The payee of said noté, Dr. Otis, was also one of the makers. This was a demand note, and about three years after its execution, it was endorsed without recourse by Dr. Otis to defendant Sommers. Plaintiffs contend that the judgment in Miami County, is void and may be properly attacked in this action.

Generally, a co-maker on making payments on a note, discharges the note and cannot sue his other co-makers on the note. Liverman v. Cahoon, 72 S. E. 327 (N. Car.); Norris v. Barbour, 51 S. E. 2d 334 (Va.); Exum v. Mayfield, 297 S. W. 607 (Texas); Bailes v. Keck, 254 Pac. 573 (Cal.). In Harris v. King, 298 Pac. 100 (Cal.) upon payment of a note by a co-maker, the Court stated:

“Having been paid, it became functus officio, and no action could be maintained upon it.”

To the same effect is Federal Trust v. Wolman, 181 Atl. 815 (Maine), the Court holding:

“On payment of note by surviving co-maker, note became commercially dead.”

And in Hazel v. Sharum, 32 S. W. 2d 315 (Ark.), wherein it was stated:

“Joint makers paying note on which they were primarily liable could not sue other joint makers on note but only for contribution on implied contracts * * *.” This is also the rule in Ohio. In the case of Minks v. Byerly, 60 Oh Ap 240, the Court held:
“Where one of the makers of a negotiable promissory note makes full payment thereupon * * * and takes an assignment of the note from the payee, such assignment is a mere nullity and the assignee cannot sue his comaker in an action of law on the theory of subrogation.”

Also see: Zuellig v. Hemerlie, 60 Oh St 27; Neilson & Churchill v. Fry, 16 Oh St 552.

Thus, it is apparent that no legal right of action existed on the note. In the case of The Lincoln Tavern, Inc. v. Snader, 165 Oh St 61, the court held that where a defect in service appeared upon the face of the record, a court was without jurisdiction and a judgment based on such faulty service is void ab initio, especially if such lack of jurisdiction is apparent on the face of the record. Also see: Hayes v. Kentucky Joint Stock Land Bank, 125 Oh St 359; 181 N. E. 542.

In such cases, the attack may be direct or by an independent action and in those cases it has even been held what would normally be considered a collateral attack is a direct attack. In re: Frinzl, 152 Oh St 164; Lewis v. Reed, 117 Oh St 152; State, ex rel. Hawke v. LeBlond, 108 Oh St 126; Kingsborough v. Tousley, 56 Oh St 450; Salhany v. Van Sickle, 4 Abs 333; Reddinger v. Deiss, 20 Abs 172; Seeds v. Seeds, 116 Oh St 144.

Thus, the question here is whether or not the warrant of attorney was exercised so as to give the court jurisdiction. In the case of Hager v. Schick, 151 Oh St 535, the Court held:

“A warrant of attorney to confess judgment must be strictly construed and the authority thereby conferred cannot be exercised beyond the limits expressed in the instrument.”

The note in this case provided for a confession by any legal holder. Under the foregoing cases, it is the court’s opinion that defendant Frank Sommers is not a legal holder as the note was commercially dead and no right of action existed on it in any fashion. After being paid by a comaker the note became purely evidence in a suit for contribution.

It appears that these decisions do not conflict with the negotiable instrument law. Sec. 1303.41 R. C., provides that a person primarily liable on an instrument is the person by whom, by its own terms, is absolutely required to pay it. Sec. 1303.34 E R. C.,' provides that an instrument is discharged where the principal debtor becomes the holder of the instrument at or after maturity in his own right.

In this case, defendant Sommers, a person primarily liable, when he became the holder of an instrument, became holder of a discharged instrument, and certainly there is no authority to confess judgment on any person on a discharged instrument. These cases are not to be confused with some cases, that are on their face contra under the negotiable instrument act, where the note comes in the possession of one secondarily liable, and such cases are controlled by other sections of the statute. In this case, all seven parties are shown on the face as makers, with the result that they each and every one are primarily liable.

In Gillham v. Troeckler, 26 N. E. 2d 413 (Ill.), the Court held that where judgment by confession was taken by an accommodation maker, who had paid off the note, the note was void. In a very similar case to the one at hand, Perkins v. Hall, 17 S. E. 2d 795 (W. Va.), the court held that a note containing a power of attorney to confess judgment having been paid by the accommodation makers, was discharged. It was further held that the Court had no jurisdiction to enter judgment by confession in favor of the accommodation maker against comakers, without process or appearances by comakers, and in such case, such lack of jurisdiction was apparent upon the face of the record and consequently, full faith and credit would not be given to such a void judgment rendered in Ohio, in an action to enforce such judgment in West Virginia.

Thus, it appears to the court that the record of the judgment taken in Miami County shows on its face that it was taken under a power of attorney in favor of a comaker who had paid the note, against two other comakers. Both under statutory law and case law, the court was without jurisdiction to render such a judgment. Consequently, it is within the power of the court to enjoin the enforcement of the Miami County judgment.

It is true that the gist of the petition is fraud. However, the suit was one to enjoin the enforcement of a judgment. The nature of the action is not changed, as in any event, the judgment in Miami County would have to have been examined. Where a court of equity properly has acquired jurisdiction of the cause for one purpose, any relief, legal or equitable, justified by the pleadings, intending to end litigation by the parties will be granted. This is exactly the situation in the case of Perkins v. Hall, supra.

The Court deciding as it has, it is unnecessary to consider the question of fraud. Judgment for the plaintiffs restraining the defendants from enforcing the Miami County judgment should be entered, with costs of this action to defendants.


author: By BIRRELL, J.

text:
    NATIONWIDE MUTUAL INSURANCE COMPANY, Plaintiff, v. SIMPSON, Defendant.
    Common Pleas Court, Trumbull County.
    No. 64784.
    Decided July 19, 1956.
    Hoppe, Day & Ford, By Day and Hewitt, on behalf of plaintiff.
    Leo A. Keating, Steven Robinson, Clarence Klinger, on behalf of defendant.
   OPINION

By BIRRELL, J.

At the close of Plaintiff’s evidence in this case Defendants John Manley and Warren Zone Cab Company moved for judgment in their favor and likewise demurred to the pleadings and proof, both of which Motions were overruled. In their final Brief they have renewed their “Motion for judgment dismissing the case as to these two Defendants for the reason that no justifiable controversy exists between them and Plaintiff Company.”

This is an action for a Declaratory Judgment wherein Plaintiff prays that the Court finds, among other things, “that the Defendants or any of them have no rights thereunder (Policy 92R-176-050) and no claims against this Plaintiff.” Plaintiff alleges that it had written a policy of accident insurance in favor of Defendant Francis E. Simpson; That Plaintiff had given notice to her of cancellation of such policy to be effective March 18th, 1955: that she had had an accident on March 27th., 1955, in which Defendants John Manley and Warren Zone Cab Company had suffered injury or damage, the former of which had already brought suit against her, and that Defendant, Simpson, had referred “such action to this Plaintiff for defense in her behalf.” The question presented to the Court is what, if any, right or rights do these Defendants have under the contract of insurance.

The pertinent Statutes on the subject of Declaratory Judgment follow:

“Courts of record may declare rights, status and other legal relations whether or not further relief is or could be claimed. No action or proceedings is open to objection on the ground that a declaratory judgment or decre is prayed for.” Sec. 2721.02 R. C.
“Any person interested under a * * * written contract, or other writing constituting a contract, or whose rights, status or other legal relations are affected by a * * * contract * * * may have determined any question of construction or validity arising under such * * * contract * * * and obtain a declaration of rights, status or other legal relations thereunder:” Sec. 2721.03 R. C.
“Secs. 2721.03 to 2721.05, inclusive, R. C., do not limit or restrict the exercise of the general powers conferred in §2721.02 R. C., in any proceedings where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty.” Sec. 2721.06 R. C.
“When declaratory relief is sought all persons shall be made parties who have or claim any interest which would be affected by the declaration. No declaration shall prejudice the rights of persons not parties to the proceedings.” Sec. 2721.12 R. C.

From the foregoing Statutes the Court naturally would be inclined to believe that Defendants Manley and the Cab Company having acquired a right of action against Defendant Francis S. Simpson, are interested in whether or not she carries insurance to cover her liability, if any, for personal or property damage. Should it be found that such insurance had been cancelled and was not in force at the date of the collision, their interest, under §3929.06 R. C., “would be affected by the declaration.” Consequently under the provisions of §2721.12 R. C., above, they “have” an interest which Defendant Manley has already asserted by filing suit against Defendant Simpson, and which Defendant Cab Company may assert within the statutory time.

These two Defendants in support of their Motion rely on the following authorities, to-wit:

Schroeder v. Lewis, 27 Abs 430. No mention is made in this case of Defendants other than the holder of the note and mortgage concerning the status of which the declaration of the Court is prayed. In fact the Court says @ p. 433: “Thus, by this petition you have doubtful legal relations posted, and by permitting the debtors, Plaintiffs herein, to institute this action, seeking a conclusive definition of the terms or conditions of the debt, the purpose of the Uniform Declaratory Judgments Act is fulfilled and brought in action.”

Driskill v. Cincinntai, 34 Abs 55. The Court found that there was no “real controversy between the parties that is justiciable.” @ p. 57. “The petition merely pleads the ownership or possession of certain instruments and devices which ‘could’ be used for gambling and which ‘might’ be kept for such purpose.”

Hammontruee v. Hawley, 40 Abs 483. Prom the evidence the Court found that there was no threat of revocation of license and therefore no ‘actual controversy presenting a justifiable dispute.’

Ohio Farmers v. Heisel, 143 Oh St 519. This case was decided on Demurrer which admitted the construction of the words of the policy and presented a question “merely of the fact as to whether at the time of the collision the automobile was being driven with the permission of the insured.” (P. 522.)

The Ohio Farmers case is referred to in the later case of Travelers Indemnity Co. v. Cochrane, 155 Oh St 305, @ p. 313 as follows:

“This Court in the case of Ohio Farmers Insurance Company v. Heisel * * * held that the declaratory judgment procedure may not be used to determine a mere isolated question of fact which has nothing to do with the ‘construction or validity’ of an insurance policy, but the Court did not hold that facts may not be determined from which legal conclusions may be reached as to the validity of an insurance contract. In the instant case, the question for determination is whether certain alleged acts of Cochrane constituted a breach of the insurance contract, and, if so, whether the contractual relation still exists.”

All members of the Court concurred in the judgment and the Opinion in this later case, as they had in the Ohio Farmers case, and find that from a consideration of all the evidence the Court must determine the status of the parties. It appears that this is what this Court is required to do in our present situation.

Of course the interest of Defendants Manley and the Cab Company depends entirely on the status of Defendant Simpson. Their respective claims, if any, came into being after the alleged date of the claimed cancellation (3/18/55) and depend upon whether the policy was in force on the date of the collision (3/27/55). The Court still believes that -they have an interest which will be affected by the decision in this case; and that their Motion to be dismissed should be overruled.

Respecting the question of cancellation of the Policy on March 18th, the contract (policy) provides at paragraph 21 of its conditions:

“This policy may be cancelled by the Named Insured by mailing to the company written notice stating when thereafter such cancellation shall be effective. This policy may be cancelled by the Company by mailing to the Named Insured at the address shown in this policy, written notice stating when, not less than ten days, thereafter, such cancellation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice and the effective date and hour of cancellation stated in the notice shall become the end of the policy period. Delivery of such written notice either by the Named Insured, or by the Company shall be equivalent to mailing.”
“If the Named Assured cancels, earned premiums shall be computed in accordance with the customary short rate table, and procedure. If the Company cancels, earned premiums shall be computed pro rata. Premium adjustments may be made at the time cancellation is effected and, if not then made, shall be made as soon as practicable after cancellation becomes effective. The Company’s check, or the check of its representative mailed or delivered as aforesaid shall be a sufficient tender of any refund of premium due to the Named Insured.”

In accordance with this provision the Company had, on or about March 4th, 1955 mailed to the Named Insured, Francis E. Simpson, a notice of cancellation of the Insurance to take effect March 18th, 1955, which notice the Named Insured received. Under this provision of the policy, therefore, the insurance ceased on that date.

There is no dispute in the law on this point; Gibbons v. Kelley, 156 Oh St 163; Plotner v. Buckeye Union Casualty Co., 94 Oh Ap 94.

Defendants claim however that the Insurance was still in effect on the date of the collision, for the claimed reason that the Company had waived the cancellation of the policy by accepting the premium thereon after March 18th. This brings the entire background of the issuance of Policy 92R-176-050 into the picture.

Francis E. Simpson’s husband (Charles S. Simpson), had been doing business with the Farm Bureau Company previous to the date of this policy. On April 14th, 1954, he had borrowed $741.95 from the Second National Bank securing the note by mortgage on a Kaiser automobile. In order to protect itself the bank had required him to take out a policy of collision insurance (92R-99-602) with the Farm Bureau for which the Bank paid the sum of $81.50, sufficient to keep the coverage in force until July 19th, 1955, when under the payment plan contained in the note the loan would be repaid. On January 4th, 1955 the Second National Bank returned the policy (a substituted policy as hereinafter explained) for cancellation, advised the Farm Bureau that the car had been surrendered to it, and requested refund of the balance of the premium theretofore paid by it. The Company, thereupon, cancelled the insurance and refunded to the Bank the unused portion of the premium in the amount of $28.30.

On September 25th, at the request of Charles S. Simpson, a new policy (92R-162-955) was issued in place of the above policy which included Property Damage, Bodily Injury and Medical Payment insurance in addition to the original Collision Insurance. Simpson paid the additional premium thereon in the amount of $9.13 which paid that portion of that policy only to October 19th., 1954, the date of the six month expiration of the original policy (92R-99-602), and this policy was forwarded to the Second National Bank, the lien of which, likewise, was shown therein (this is the substituted policy returned for cancellation above stated).

It further appears that through error, and again on request of Charles S. Simpson, this policy (92R-162-955) had been cancelled on the Insurance Company’s records under date of November 12th, 1954 and its then unearned premium on the collision insurance had been used, in paying the premium on a new policy, 92R-176-050, which at that date was issued to Francis E. Simpson for the purchase of both property damage, Bodily Injury and Medical Payment insurance on her Chevrolet Sedan. (Collision insurance for the 1951 Kaiser was not included therein.) No money of any kind was paid on this policy either by Francis E. Simpson or by Charles S. Simpson. The policy was written from November 12th, 1954 to April 19th, 1955 (again the six month expiration date of the original Kaiser Collision policy), and the Company refunded to Francis E. Simpson (not to the Second National Bank), the balance of the unearned collision premium in the amount of $20.17.

When the Farm Bureau received the Insurance Policy (92R-162-955) from the Second National Bank, in January 1955, investigation of their records revealed their mistake in cancelling this policy on November 12th of the previous year and in transferring the remaining value thereof to pay the premium of Francis E. Simpson’s policy (92R-176-050). Realizing their obligation to make refund to the Bank, check was mailed it as above stated. In correcting this mistake it found also that no payment had been received from Francis E. Simpson on her policy. Notice of cancellation was malied her, explaining the company’s mistake and stating “This letter is notice that policy No. 92R-176-050 is cancelled, effectice 12:01 A. M. March 18th., 1955, unless your check or money order has been received by that date.” The letter carefully explained that she had improperly received credit for the unearned premium of the Bank’s collision protection from November 12th, 1954. That the Bank was entitled to have continued to receive such protection until it had asked for cancellation on January 4th, 1955 (costing $7.13), and that the remainder not used in paying premium on Francis E. Simpson’s policy to April 19th (amounting to $20.17) had been inadvertently paid to her instead of to the Bank as above set forth.

Mrs. Simpson failed to pay any portion of her delinquent premium before March 18th thereby allowing the cancellation to take effect according to the notice.

To this point, and at this date, regardless of the various errors of bookkeeping on the part of the Company, their right to cancel this policy, for which no payment had been made, cannot be challenged.

Defendant’s claim of waiver rests upon two payments made to the Company under dates of March 28th, and April 13th as follows:

On the next day after the accident of March 27th., a payment of $7.13 was made at the Company’s office. This payment was not sufficient to pay the entire premium on her policy. At most it was sufficient to pay exactly the balance of the premium for collision coverage due on the Bank’s cancelled policy to January 4th., as had been explained in the letter written Mrs. Simpson March 4th. The receipt for this payment was marked “New Pol.” but no new policy was taken out at that time. By reason of the exactness of amount with that explained in the March 4th notice the Court is inclined to believe that this small payment was in the nature of an attempt by the Simpsons after the accident to reinstate her policy. The amount was totally insufficient for that purpose. No provision of the policy nor custom of the Company was shown which would authorize reinstatement of a cancelled policy without receipt of payment therefor and some agreement with respect thereto. At all events this amount was clearly a past due debt of Francis Simpson to the Insurance Company for insurance from November 12 to January 4th, and a payment to which the Company was entitled without affecting its cancellation of the policy.

Defendants also present receipt for the sum of $24.40 dated April 13, 1955, marked “Policy Number 92R-176-050, date due 4/19/55,” and claim that this money was accepted upon the policy after its cancellation and therefore reinstates it.

The amount required for the delinquent premium was only $20.17. If Mrs. Simpson intended to pay this delinquency why should she have paid $24.40? Likewise the receipt states that the payment was for an amount to be “due 4/19/55.” The delinquent payment was already past due. This due date was the date of expiration of policy No. 92R-176-050, had it not been previously cancelled. Perhaps the writer of the receipt incorrectly stated the number of the policy, but he could hardly have misunderstood the intention of person paying the same as to whether it was for a past due or a future payment.

In explanation of this payment the Company produces an application (92R-201-686) of Francis E. Simpson on April 11th for insurance on her Pontiac Coupe which she had purchaser March 31st 1955 after her accident of March 27th., the cost of which policy was exactly $24.40. That such a policy had been applied for and issued is confirmed by a letter produced by Defendant Simpson dated September 22nd, 1955 written to her by the Company and notifying her that “this policy 92R-201-686 is cancelled, effective 12:01 A. M. October 5th., 1955.” Under ordinary circumstances the Court could scarcely doubt that the $24.40 was paid for the issuance of this new Pontiac policy and not for the purpose of reinstating the old cancelled policy on her Chevrolet.

The doubt in the Court’s mind is raised by the fact that the Company’s letter of September 22nd, contains the statement

“since no advance premium was made at the time the policy was issued to you, and no premium has been received in the meantime, there is no refund of unearned premium.”

Now who is. the Court to believe? The employee who received the $24.40 entered on the receipt that it was a payment ■ due 4/19/55 on Policy Number 92R-176-505: The writer of the September 22nd letter says it was not a payment on the new policy 92R-201-686: Must it have been for reinstatement of the old Chevrolet policy which had been cancelled March 18th?

Some light is thrown on this matter by the testimony of Mrs. Francis E. Simpson who implied that she knew practically nothing about the Pontiac policy, and by her husband Charles S. Simpson who stated that he had made both of the payments of March 28th., and of April 13th., and also stated that he had made the application of April 11th for insurance on his wife’s Pontiac car. The interesting aspect of his testimony was his apparent boast that he had told the pferson who recorded the application for the new insurance “nothing”; that he had merely shown him the Certificate of title for the Pontiac. Nor was he any more communicative with respect to the purpose of the payments of March 27th and of April 13th. Such secretiveness may go far toward explaining the contradictory entries of the agent and clerks with respect to this Pontiac policy.

In the case of Ohio Farmeer’s Insurance Company v. Cochran, 104 Oh St 427, the following charge was given the Jury by the Trial Court:

“If you find from all the evidence* and circumstances surrounding this case that there were such acts and such conduct on the part of the Defendant (insurance Co.) by its officer, or officers, agent or agents so authorized to bind the Company, that would cause a man of ordinary judgment and discretion to believe that the formal proof of loss within sixty days would not be required, and that the same had been waived (and) that Plaintiff so believed and so acted upon such belief, the company knowing it was so leading and causing Plaintiff to so believe (this) would amount to a waiver of such proofs by acts and conduct of the Defendant Company.”

This statement of the law applied to our case requires “such acts or conduct on the part of the Company that would cause a man of ordinary judgment and discretion to believe” that the Company had accepted payment of the unpaid premium for want of which the policy had been cancelled, and that “the (insured) so believed and so acted upon such belief.” The requirement that acceptance of the premium be with knowledge on the part of both insurer and insured is the basis in all cases in which a waiver has been found to exist.

Defendant has cited the following cases in support of this principle, the facts of which generally follow:

Shatter v. National Life & Accident Co., 19 Abs 216. Continuous custom of accepting delinquent payments is shown.

Hoffman v. Aetna Life Insurance Co., 60 Oh Ap 497. Custom of accepting delinquent payments on group policies from employer who deducted amounts from wages, the Court holding “an insurer * * * may waive (non-payment) by a course of acts and conduct which plainly indicates an intention to treat the contract as in force.”

Mutual Life Insurance Co. v. French, 30 Oh St 240. Agent accepted note for one-half of premium which was not paid when due. By failure to give notice of forfeiture upon such failure to pay, the Court held that it became a “question of fact for the Jury” to determine whether the company intended to waive its right of forfeiture.

Fry v. Franklin Insurance Co., 40 Oh St 108. Note for delinquent payment was retained by Company without notice of forfeiture of policy and correspondence on other matters with insured was had. Court held it a question for Jury whether waiver had occurred.

Motz v. Root, 53 Oh Ap 375. Where successive owners had assumed a mortgage, it was held that mortgagee had waived right against earlier of the owners by acquiesing in the transfers and accepting payments from later owners. The Courts’ Opinion concludes (p. 380-1). “The facts constituting, the waiver must be such as are calculated to lead the other party to do or omit to do what he otherwise might not have done or omitted — as to have lulled him into security when otherwise he might have taken precaution for his own protection, or have acted in some manner otherwise than he in fact did.”

Kandor v. Indemnity Company, 10 O. C. C. ns 449. Agent with knowledge of applicant’s health construed a question to not require answer which would have revealed previous illness, and thus disqualified applicant for insurance. Held agent thereby waived this requirement.

Coletta v. Ohio Casualty Ins. Co., 96 Oh Ap 70. Agent agreed to reinstate burglary policy without deduction for loss.

Union Insurance Co. v. Billman, 18 O. C. C. ns 261. Agent though ordered by Company to do so, failed to return to insured the overdue premium .which he had received, “until 6 or 8 months after the fire and long after suit (was) brought.”

West v. Knox Township Farmers Aid Society v. Burkhart, 13 Abs 385. “The acceptance of (an) assessment * * * even after loss suffered * * * and the treating of the insurance as in force and the levying of other assessments amounts to a waiver of the forfeiture.” 1 Syl.

Cases decided by the Supreme Court, citing the case of Ohio Farmers Ins. Co. v. Cochran, supra, hold:

, Shields v. Supreme Council of the Royal Arcanum, 123 Oh St 31. Collector had always mailed notice of payment on which insured relied. On failure to receive notice of November payment, insured paid for November and December after December notice requesting such over-due payment. Later insured died. The Court holds:

3 Syi. “Where the insurer’s conduct has been such as to affirmatively induce the belief that the forfeiture is waived, a waiver exists. * * *”

Hartford Accident & Indemnity Co. v. Randell, 125 Oh St 581, @ p. 587. “The injured party relied on the statement of 1¡he adjuster that he would not defend (the insured) and that the attorney for the injured party need not give the required notice: * * * by that statement the injured party was induced to inaction, thereby altering the position of the injured party to his prejudice, by reason of which the insurance company is estopped from thereafter asserting its right to a compliance with the condition requiring notice to be given.”

Lind v. State Automobile Mutual Ins. Ass’n., 128 Oh St 1, 3 Syl. “The authority of an agent to waive * * * subsequent proofs and notices may be established by showing a course of conduct on his part knowingly permitted by his insurer-principal, through which an agent has the approved power to accomplish those things he undertakes to do, so that an insured dealing with him is given reasonable grounds for believing he possesses such power” (to waive proofs and notices subsequent to loss).

Petersilge v. Farmers Mutual Fire Ins. Co., 130 Oh St 385, 2 Syl: “A company’s mere acceptance of a delinquent assessment from a member subsequent to his known loss does not constitute an implied waiver of (the) suspension clause when the loss occurs during the period of delinquency, and the member is not assessed for losses occurring during that time.”

This case impliedly differentiates between its facts and those of the West and Knox Township Farmers Aid Society v. Burkhardt, supra.

English v. National Casualty Co., 138 Oh St 166. Acceptance and retention of premium after insured reaches age of 65, above which terms of policy state that the insurance will be void, constitutes waiver of this policy provision.

Schwer v. Benefit Ass’n, 153 Oh St 312, 3rd Syl. “* * * to effectuate * * * reinstatement (where policy provides for such procedure) it must be shown that * * * the payment was knowingly accepted * * * for the purpose of reinstatement * * *.”

In his Opinion Judge Hart points out (at pp. 322-3) that a “meeting of the minds,” “for the purpose of reinstating the policy” was necessary which confirms the requirement above referred to that knowledge of parties of the intention .or purpose of the payment is required.

This Court does not find in the facts proven in this case that there was proof in any manner that after the payment of April 13th “the insured so believed (that the policy had been reinstated) and so acted upon such belief.” Neither can the Court find proof of custom of accepting delinquent payments nor of any acts or statements of agents of the insurer which could have given Mrs. Simpson the belief that her policy was reinstated. With respect to the receipt for $24.40 endorsed “Policy Number 92R-176-050” The Court believes this was a mistake of the writer of the receipt, and that this receipt was in payment for policy 92R-201-686 which Charles S. Simpson testifies he had taken out April 11th on Mrs. Simpson’s Pontiac car.

No solution other than that of error satisfactorily explains the notations accompanying the $24.40 payment. Were it assumed that the Company records must be held to be entirely unreliable, the admitted evidence of the Simpsons fails to indicate that they had changed their position in any respect or relied in any manner upon a claim of waiver. Beyond the records is the uncontradicted oral evidence admitting the issuance of the various policies, the purchase of insurance on the Pontiac and the obligation of the Company contracted and existing at the date of payment. Various of the authorities above cited hold that when there is a conflict in the evidence on the facts claimed to constitute a waiver, the matter becomes a Jury question. With no Jury in this type of case this question must rest with the Courts.

As to the statement in the letter of September 22nd, that no payment ón pplicy 92R-201-686 had ever been made, there seems no satisfactory explanation for this statement other than carelessness on the part of the writer of the letter, inefficiency of the office in maintaining their records, or absence of a system or method of reports between the Home and Local offices. It is true that the application of April 11th states that no payment was made with the application, which might have been referred to by the writer with the further careless exaggeration that no payment was ever made. It seems a careful company would not have carried coverage for 5% months without investigating to determine whether payment had been made. Perhaps there is refund due Mrs. Simpson for the 6 days from October 5th to 11th, during which the coverage was cancelled. If so such refund should be made. At least this Court in weighing the evidence with the law as above analyzed cannot find that this error over-balances the lack of proof of any intention on the part of Simpson to reinstate policy 92R-176-050, nor of the company to accept the payment for that purpose.

The conclusion reached is that the preponderance of the evidence is against the claim that any waiver has been shown. A Declaratory Decree may be drawn, therefore, in Plaintiff’s favor and at Plaintiff’s costs.


author: By PHILLIPS, J.

text:
    BUTCH, Plaintiff-Appellant, v. BELL, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3918.
    Decided October 16, 1957.
    Marvin Traxler, Youngstown, for plaintiff-appellant.
    Harrington, Huxley & Smith, Youngstown, for defendant-appellee.
   OPINION

By PHILLIPS, J.

The trial judge overruled plaintiff’s motions for a new trial and for judgment to be entered in his favor notwithstanding the verdict of the jury rendered for defendant and entered judgment for defendant. From that judgment plaintiff appealed to this court on questions of law.

Plaintiff was operating an automobile in an easterly direction on Midlothian Boulevard, and defendant was operating an automobile in a southerly direction on Market Street near the intersection of Market Street and Midlothian Boulevard in Youngstown about midnight on January 19, 1955.

Traffic at that intersection is controlled by an electrically operated traffic light.

The controversy between the parties revolves around the question which of the parties, if either, operated his automobile in violation of law. Thus a jury question was presented.

Each of the parties testified that he operated his respective motor vehicle in accordance with the electrically controlled traffic signal light.

Plaintiff claims that “the trial court committed prejudicial error in its charge to the jury,” “together with special charge particularly the charge on the question of contributory negligence,” which was not pleaded and allegedly not raised by the evidence.

It is the rule in Ohio that a charge upon contributory negligence is prejudicially erroneous in a case wherein -the issue is neither raised by the pleadings nor the evidence. See Cincinnati Traction Company v. Forrest, 73 Oh St 1; Brown, Admr. v. Wells Construction Company, 45 Abs 300; Britton v. City of Lakewood, 89 Oh Ap 150; and Gaskill, Admr. v. Schaeffer, 13 Abs 227.

There is evidence that the defendant pleaded guilty to reckless driving at the time of the collision. It is upon this evidence that plaintiff primarily bottoms his right of recovery against defendant.

There is evidence that each of the parties entered the intersection in violation of law thereby giving rise to the issue of contributory negligence.

We shall not waste many words disposing of the plaintiff’s claims that the “trial court erred in overruling plaintiff’s motions for judgment notwithstanding the verdict and for a new trial” as the experienced trial judge knew the value of those claims and disposed of plaintiff’s motions properly. Nor is it necescsary to detail our reasons for finding no merit in plaintiff’s claims that the “judgment of the trial court is not supported by any evidence,” nor “contrary to the manifest weight of the evidence,” nor that the verdict of the jury is contrary to law.

In a well written dissenting opinion filed in Haley v. Ohio, United State Reports, Volume 332, Page 624, it is stated:—

“Until a better way is found for testing credibility than by the examination of witnesses in open court we must give trial courts and juries that wide discretion in this field to which a living record, as distinguished from a printed record, logically entitles them. In this living record there are many guideposts to the truth which are not in the printed record. Without seeing them ourselves we will do well to give heed to those who have seen them.”

A jury may and could have found from the evidence that defendant was guilty of negligence and that plaintiff was negligent also and that his negligence contributed to his injury.

We do not believe that the trial judge erred to defendant’s prejudice in his charge to the jury.

The judgment of the court of common pleas is affirmed.

NICHOLS, PJ, GRIFFITH, J, concur.


author: By BACON, J.

text:
    CAMPBELL, Plaintiff, v. HOGUE et, Defendants.
    Common Pleas Court, Meigs County.
    No. 12580.
    Decided August 12, 1958.
    L. Dewitt Agler, Columbus, for plaintiff.
    Halliday & Sheets, Gallipolis, for defendant, Mabel Hogue.
   OPINION

By BACON, J.

Action by Thelma Campbell against ■ Mabel Hogue, et al., to quiet title to the following described 3% acre' parcel.

Being in Section 7, Town 6, Range 14 of the Ohio Company’s Purchase, in Rutland Township, Meigs County, Ohio. Beginning at the N. E. corner of said Section 7, thence South to the public road, thence Northwesterly along said public road to the North line of said Section 7, thence East to the place of beginning, containing 3% acres, more or less, and being a part of the property conveyed by Guy F. Larkin and Frances Larkin, his wife, to Earl Hogue, by deed dated June 12, 1930, and recorded in Book 133 at Page 373 of the Deed Records of Meigs County, Ohio.

Said 3% acres is also part of 96.69 acres, described viz:

Being in Section 7, Town 6, Range 14, beginning at the N. E. corner of Section 7: Thence West along the North section line, 153 rods to the N. E. corner of Elmont Stevens; thence South 142 rods; thence East 72 rods and 20 links; thence North 39% degrees East 25 rods and 13 links; thence North 21% degrees East 14 rods 17 links; thence North 32% degrees East 18 rods; thence North 55% degrees East 22 rods 16 links; thence East 30 rods 16 links to the East line of Section 7; thence North on the East section line to the place of beginning, containing 100 acres, except 3-31/100 acres sold to the K & M Railway. Being the farm lying on the West side of the State Road originally owned by Abel Larkins and willed or deeded to Stillman Larkins.

Plaintiff’s chain of title to said 96.69 acres runs back to a mortgage deed executed by Guy F. and Frances Larkin to the Citizens National Bank of Middleport, received for record May 2, 1927, recorded Mortgage Book 46 page 224, Meigs County records.

Defendants’ immediate predecessor in title, Earl Hogue, received a deed from said mortgagors, Guy F. and Frances Larkin, executed December 24, 1930, recorded in Deed Book 133 page 373, for a farm which included a separate description for the 3% acre tract as first above described. Although this 3% acre parcel was included in the metes and bounds description in the prior mortgage Earl Hogue’s grantors had executed to the Citizens National Bank, no partial release was obtained from the bank for this parcel.

In proceedings in this court completed November 10, 1934, following petition filed August 8, 1934, the Citizens National Bank foreclosed its prior mortgage, bid in the property of 96.69 acres as above described and received a sheriff’s deed received for record Nov. 27, 1934, recorded Deed Book 141, page 67. The bank also obtained a deficiency judgment in the sum of $638.87 against Guy F. and Frances Larkin. Earl Hogue was not made a party to the foreclosure action.

Defendants attempt to make much of a paper found among the original court papers in the foreclosure action purporting to be a motion to amend the confirmation of the above sale. However, the Clerk’s docket discloses no motion was ever filed and the paper is devoid of file stamp. Therefore, it is a nullity.

Plaintiff produced twelve reliable, disinterested witnesses that her father or employes under him had taken possession and farmed the 3% acre parcel annually almost without exception since he acquired the 96.69 acres from the Citizens National Bank.

George Prall testified he personally recalled that A. T. Barton farmed the 3% acre tract the first year after the foreclosure, that he was one of the appraisers in the action and the 3% acres was included in his appraisal.

Harrison Bentley recalled that A. T. Barton’s employee, Cliff Williams, better known as “Buckskin,” and Burl Barton worked on the 3% acre parcel in the 1930’s, that he never recalled Earl Hogue working that parcel.

Isaac Taylor said he remembers “Buckskin” working the 3% acres with A. T. Barton’s team, that Earl Hogue never to his knowledge worked that parcel.

Sherman Buskirk testified that he saw “Buckskin” work the ZVz acres with A. T. Barton’s horses. Said Earl Hogue worked both sides of the road one year. (The defendant, Mabel Hogue, later testified her husband, Earl Hogue, had A. T. Barton’s farm rented one year.)

Byron Price said he lived on the A. T. Barton farm in 1945, when “Buckskin” worked the ZVz acre parcel and soy beans harvested therefrom were taken to the Barton barn.

William Lawrence Wilson testified he did farm work for A. T. Barton in 1947 and 1948, farming the ZVz. acres as-well as the land West or South of the road, taking from the ZVz acres corn one year that he later put the ZVz acres in oats. The crops harvested therefrom were stored in Barton’s barn. He further said he recalled seeing Worley Russell working the ZVz acre parcel, that he saw Earl Hogue work above the ZVz acres but never on that parcel.

Arza Bryant testified he saw “Buckskin” and Burl Barton work the ZVz acres over a period of years, saw them culitvate it, haul oats and other crops across the road to Barton’s barn. That he remembered seeing Barton’s wagon on the ZVz acres about 1950., that he never saw Earl Hogue on the ZVz acres but Hogue did have a field right above. That he made his observations over a period of years as the driver of a delivery truck for the Rutland Department Store where he had many years of employment.

Wayne Price said he saw “Buckskin” work the ZVz acre piece, that in 1954 A. T. Barton sent him, Price, on the ZVz acre piece to see if any grass had come up.

Worley Russell said he prepared a seed bed for A. T. Barton on the ZVz acre parcel about 3 or 4 years ago, that Barton paid him $20 for the discing.

Sherman Roberts testified he worked on the ZVz acre piece for Barton, sowed it in soy beans in 1954, sowed it in timothy and clover in 1955 after Worley Russell disked it, that he never saw Earl Hogue work the ZVz acres although Hogue worked the land immediately above (North).

Clifford Rhodes said that he was intimately acquainted with A. T. Barton since 1925, that he recalled when Barton bought the Larkin farm from the bank, that he was a frequent visitor and personally recalls Barton farming the ZVz acre piece from time of possession from the bank until 1939.

Francis Lightfoot testified that two years ago he worked on the Barton farm one season. Worked both sides of the road. Put Barton’s share from the ZVz acre tract in Barton’s barn and took his share to his place, that he cut hay for Barton on the ZVz acre parcel.

Defendant, Mabel Hogue, produced Freda Kennedy and William Smith, who placed Earl Hogue on the ZVz acres in 1943 and 1944. Mabel Hogue’s brother-in-law, Dwight Kennedy, said the only farming he knew of he helped take hay from the ZVz acres one year, that he didn’t remember whether “Buckskin” ever worked the ZVz acres. Robert Barrett said he leased the Hogue farm in 1940, left it in 1942. He didn’t work the ZVz acres at that time, but said he saw Hogue haul soy beans the year he got killed.

Defendant’s witness, Floyd Dunfee, said he was familiar with the ZVz acre tract, had seen Hogue cut hay there around 1936, and thinks around 1944 Hogue had corn on it. Another witness, Charles Carson, said he was familiar with the ZVz acre parcel, saw Earl Hogue farm it in 1954. On cross-examination Carson said he tried to buy the ZVz acre piece, but Earl Hogue told him he couldn’t sell it because there was a little question about it. Hogue told him A. T. Barton was laying claim to it. Carson recalled somebody cutting hay on it some in the last year or so.

Thelma Campbell’s testimony was consistent with that of her witnesses, including her relation of obtaining soy beans at Gallipolis for planting on the ZVz acres by Earl Hogue in 1954, the year Hogue rented the entire Barton farm.

Mabel Hogue confirmed the 1954 rental in her testimony. It appears Mabel Hogue was in the domestic service of the Bartons until her marriage in 1935 when she went with Earl Hogue to the Hogue farm. In the late fall of 1936 the Hogues left the county, going to Roseville and not returning to their farm until in the fall of 1942. She also said she had personally worked on the ZVz acre piece, said she had it in corn in 1943 and 1944 and since that time it laid idle for years. That it wasn’t farmed in 1947 or 1948, nor 1950. She denied that Mr. Lightfoot cut hay from it.

Plaintiff by her witnesses made out the overwhelming case for possession of the ZVz acres, and at this point it should be determined if said ZVz acres was included in the description of the lands in the prior mortgage to the Citizens National Bank by Earl Hogue’s grantors. There is no question that the tract falls within the metes and bounds description of the mortgage. Did the following words contained in the mortgage deed to the bank, the sheriff’s deed, and substantially the same in all conveyances in plaintiff’s chain of title, immediately following the metes and bounds description in each instance, viz: “Being the farm lying on the West side of the State Road originally owned by Abel Larkins and willed or deeded to Stillman Larkins,” except the ZVz acre parcel from the 96.69 acres described by metes and bounds?

It was not established in the evidence the particular lands “originally owned by Abel Larkins and willed or deeded to Stillman Larkins,” so •that the “farm lying on the West side of the State Road” remains vague and undefined. It is not certain that even had such evidence been offered that it would have been helpful in view of the authorities to the effect that a metes and bounds description fully describing certain premises is not modified in any respect by the addition thereto of words which refer to the source of the grantor’s title. Burks v. Louisville Title Ins. Company, 95 Oh Ap 509, 54 O. O. 128, 121 N. E. 2d 94, quoting the rule stated in 16 American Juris., Deeds, Sec. 276, “. . . where the description is full and complete in itself and a reference to another deed is added, the quantity of land conveyed is not restricted by the reference.” Considering that a “farm” consists of divers things gathered into one, as a messuage, land, meadow, pasture, wood, common, not necessarily contiguous, if used as one whole, Black v. Hill, 32 Oh St 313, Ohio Words & Phrases, p. 220, the vague words “Being the farm lying on the West side of the State Road,” cannot affect or restrict the lands described by metes and bounds in the prior mortgage.

Frances Larkin testified for defendants that she and her husband once owned the lands subsequently acquired by A. T. Barton and Earl Hogue, both deceased. That they mortgaged the lands on the South side of the road to the Citizens National Bank and the lands on the North side of the road to George Carter. However, the question is not what Guy F. and Frances Larkin intended to convey to the bank in their mortgage deed, but what they did convey insofar as the Meigs County records are concerned. Under the facts it is clear that Earl Hogue acquired only the equity of redemption in the 3% acre parcel.

And the judicial sale under the foreclosure of the prior mortgage given by Hogue’s grantors to the Citizens National Bank was not void. The sale was valid even though Hogue who had acquired the equity of redemption in the 3% acre parcel was not made a party. His right to redeem his 3% acres remained. Childs v. Childs, 10 Oh St 339.

But the record discloses that he never attempted to exercise that right during his lifetime, date of his death being November 21, 1954. Nor did his successors in title attempt to exercise such right of redemption. On the contrary, according to the testimony of twelve reliable, disinterested witnesses, Earl Hogue suffered A. T. Barton, deceased, and the plaintiff, Thelma Barton Campbell, to occupy and use said 3% acres under color of title. There is no evidence in the record that such possession as was testified to was ever interfered with by Hogue, even though by defendants’ witness, Charles Carson, it was evident Hogue was well aware of Barton’s claim of ownership.

Under the evidence in this case this court has no alternative than to award to plaintiff a decree according to the prayer of her petition. An entry so providing may be prepared, saving exceptions to defendant.


author: By MERRICK, J.

text:
    ADAMS, Admx., Plaintiff, v. FLECK et, Defendants.
    Probate Court, Cuyahoga County.
    No. 561248.
    Decided December 16, 1958.

      Nathan Herstam, Sheldon Portman, Cleveland, for plaintiff.
    Fleck & Fleck, John M. Ferencz, E. A. Pedley, Cleveland, for defendants.
   OPINION

By MERRICK, J.

The facts pertinent to a disposition of the question raised in this case can be found in the testimony of Sidney Fleck, one of the defendants herein. While the trial of this matter resulted in exploratory expeditions, which took the contestants far ofi the perimeter created by the joinder of the issues, the essential facts remain as contended by the defendants. The Court is required to interpret these facts and determine the rights of the parties.

Wherever a page number is indicated herein, it is the one of identity in the transcript furnished by defense counsel.

Adams was a very sick and troubled man. He had been injured in an industrial accident when an elevator fell in the building in which his employer was a tenant. He had asthmatic heart trouble that finally caused his death. He had domestic troubles, the nature or onus of which is unimportant to the issues herein, except that for some time prior to his death, he had been separated from his wife and she had instituted an action for divorce. The children were his, but not by this marriage- He had a desire to cut his wife off of any chance of inheritance in whatever way possible, or to restrict or limit her right of inheritance in any way legally possible.

As his physical condition worsened he consulted the defendant, Sidney Fleck, as one of his lawyers, for advice on the subject of his wife’s position in the event of his death. He received some advice thereon, the details of which are unimportant, except that a plan was projected and carried into effect, substantially as follows: While confined to a hospital by what eventually became his last sickness, he received a check in amount of $6,000.00 payable to himself and drawn on the state fund by the Workmen’s Compensation Division of the Industrial Commission of Ohio.

This check was delivered to Adams in the hospital by an agent of the State of Ohio, who secured a receipt for same and certain written releases in the presence of the defendant, Sidney Fleck, his attorney, who had arranged the meeting for the delivery of the check.

Immediately upon receipt of the check, Adams endorsed the same and handed it to his lawyer with the statement: “Here it is, you know what to do with it.” Thereupon Fleck took the check to his office and handed it over to his father, Charles Fleck, a defendant herein, with the statement: “not to pay any money on it. That Mr. Adams had told me to hold the check, give it to the children if anything happened to him.” (12)

Sidney Fleck testified that this endorsement and delivery of the check to him by Adams was the result of a pre-arranged plan, worked out in an effort to consummate Adams’ wish that his estranged wife should not receive any of the proceeds of the settlement of the industrial claim settlement. To support this conduct, Sidney Fleck testified that Adams stated that he didn’t think he had too long to live, (6) and wanted to know if he distributed the expected settlement money to his children if he could get it back and was advised that he could not get it back if he gave it to one or more of them. (6 & 7) Thereupon he told his lawyer, Sidney Fleck, that he didn’t want to divest himself of it completely and wanted to know if there was anything else he could do in case he would get well. (7)

Adams further stated that he expected to go to the hospital and the way he was feeling he just didn’t expect to get out, but there was always that possibility that maybe they could do something for him. (7) The lawyer suggested that the check, when received, be given to someone whom Adams trusted, to hold it for the children and if he passed away that party would give it to the children; but if he got well and wanted the money he would be able to get the money. (7 and 21 and 29)

Thereupon, Sidney Fleck was designated by Adams as the one he trusted and agreed to deliver the money to him in accordance with the plan outlined above. There were mutual assurances that if Adams recovered sufficiently to leave the hospital that he would regain control of the money, (21) but that if he died, Fleck was to “pay his bills” and divide the balance amongst the children. It is admitted, of course, that at no time during his lifetime had Adams stated what bills he was referring to or that the identity or amounts were known. (11)

The check was delivered to Sidney Fleck after endorsement by Adams and then delivered by Fleck to his father, Charles Fleck, with the instructions previously quoted. Ten days later Adams died and the Flecks were notified. The same day and within 24 hours of Adams’ death, the check was deposited to the personal account of Fleck and Fleck. Almost immediately Charles Fleck started to disburse these funds, first paying himself $2000.00 or one-third as a fee. Thereafter and for a period of approximately a year and a half, Charles Fleck disbursed much of the remainder as he saw fit, to pay what he determined to be Adams’ expenses. He did this on his own responsibility, with little or no consultation with anyone. To justify this conduct he asserts that he was carrying out the wishes of his deceased client, Adams.

At one stage he paid each of the seven children shares of $370.00. At the time of this trial, almost three years after the death of Adams, Charles Fleck is still holding $310.00. The widow received nothing. More than a year after the death, when the widow had learned of the payment of the $6000.00 and had inquired of Charles Fleck about it, he suggested that a share equal to that given to each child would be given to her if all children agreed. She refused to consider this plan.

This state of facts presents a problem situation which could easily have been appraised at the time of Adams’ death by any lawyer with experience in probate matters and estates. The plan was a simple one in a very important aspect, viz: If Adams recovered sufficiently to leave the hospital, he wanted his money back from his lawyer. And the lawyer told him he would get it back in that eventuality. (7) In fact, Sidney Fleck was buoying him up with statements that he would recover. (7)

The law is plain and in a long line of cases determines that under these conditions there is a contingency that renders such funds transferred and held by the donor’s agent attorney to be the asset of the donor’s estate in event of his death. It is not necessary for this Court to apply the rules surrounding the weight of the evidence- in this case. The rule is that the gift or transfer, direct or in trust, must be by clear and convincing evidence. Flanders v. Blandy, 45 Oh St 108; Gano v. Fisk, 43 Oh St 462. In the instant case it is crystal clear. Adams reserved the right to possession and control of the money in the event of his recovery and so instructed at the time of the endorsement and transfer.

While a gift causa mortis does not become effective until the death of the donor, gifts causa mortis as well as gifts inter vivos must be completely delivered during the donor’s lifetime. 26 O. Jur. 2nd 164. The gift can be upheld only when the intention of the donor is definite and certain and such intent is expressed as to a proper matter of such gift. 26 O. Jur. 2nd 149.

Directions alone are not sufficient to create a valid gift causa mortis. The gift will be upheld only when it is executed and completed by delivery and by acceptance by the donee, who must have the rightful possession at the time of the death of the donor. Sutton v. Galbraith, 11 O. C. C. (N. S.) 262; 82 Oh St 421.

A case in which the facts are almost identical to the one at hand is found in Gano v. Fisk, supra. In that case decedent had expressed a desire that his children should have certain notes which were contained in a cabinet in the home. The day before his death he called one child to his bedside and stated that he knew he could not get well and stated “my notes are in a box in the bureau. I want you to take them and divide them equally among you children. Take this key and you will be able to open the box.” The child took the key, tried it in the lock and ascertained that it opened the box. Then she gave the key to her husband for safe keeping for fear she might lose it over night. A few hours later the father died. In that case the Supreme Court held that the notes, at the time of death became an asset of the estate and cited many old cases, indicating that the law is well settled that the children never obtained unrestricted possession and control of the assets involved.

If any consideration is to be given to the interpretation that the Flecks were acting as trustees for the children, the same principles of law as to delivery and control would apply. Bear in mind that at all times Adams held out the contingency imminent or remote, that he might recover and in that event wanted re-delivery of the check. (7 & 21) To make the reservation more emphatic, Sidney Fleck instructed his father to hold the check and not pay any money on it. (12) Did this give the children any control over the fund represented by this check? As a matter of fact, they never had anything to say as to its use, either directly or through the Flecks. Charles Fleck reserved to himself full control after Adams’ death. He used the fund to suit his own interpretation of the facts.

. A completed gift to a trustee is only created when the evidence shows delivery of property by the donor to a third person for the benefit of the donee, under circumstances manifesting an intention to vest immediate title in the donee and relinquishment of all dominion and control over the property; and the third person is thereby constituted a trustee for the donee. Streeper v. Myers, 132 Oh St 323. The test is whether any-interest in the property has been retained by the donor. If the property remains under the control of the donor, although in the keeping of the third person, and the latter is subject to his further direction as to its final disposition, then his relation is that of an agent of the donor. Streeper v. Myers, supra; Tilton v. Mullen, 101 Oh Ap 129, 134. There must be such change of possession as to put it out of the power of the giver to repossess himself of the thing given. Bolles v. Toledo Trust Co., 132 Oh St 21, 30.

It may be interesting to note that in the Bolles case, supra, the Supreme Court held that a certain transaction, frequently called a safety deposit, had been consummated and that the securities involved were not, under the circumstances within the category of a gift, even though the donor had told his wife of the delivery of the securities to the box with the statement, “Everything in that box is yours, just salted down for you, in case!” and frequent statements to others that the contents of the box was his wife’s property. In 1944, eight years after that decision, the Supreme Court again had the Bolles estate before it. In that decision, in Bolles v. Toledo Trust Co., 144 Oh St 195, the Court held:

“The transfer of property to a trustee under an agreement whereby the settlor reserves to himself the income during his life with the right to amend or revoke, is valid by virtue of §8617 GC (now §1335.01 R. C.), but under such a trust agreement settlor does not part absolutely with the dominion of such property and his widow electing to take under the statute of descent and distribution may assert her right to a distributive share of the property in such trust at settlor’s death * * *. Where a purported trust is in fact a mere agency, such agency ceases at the death of the settlor * *

Coming to a summation of these theories as applied to the very simple and undisputed facts surrounding the transfer of this check by Adams to the Flecks, it is the conclusion of this Court that the Negotiable Instruments Law has no place in this case but that the transfer to the Flecks was in the capacity of a bailor to a bailee to await developments and upon the death of Adams became an asset of his estate subject to all the rights afforded to his surviving spouse under the Probate Code.

Before closing this opinion, however, the Court is constrained to direct its attention to the conduct of the Flecks following the death of their client. During his lifetime there is no doubt but what they had a right to advise, instruct and guide him in any legal manner to defeat his wife’s attempt to secure any portion of his property. No fault can be found in that theory. But with his death a situation developed which should have raised a question of propriety in the mind of even the very neophite of lawyers. Having resisted the widow and devised attempted means to deprive her of any interest in her husband’s property; should the Flecks have undertaken any further handling of the family affairs which would lull the widow into a false sense of security in any dealings with them? It should certainly have been apparent that there might be some doubt cast upon the uncontrolled division and distribution of the proceeds of the $6000.00 check.

Charles Fleck has had many years of experience in probate matters and has had an extensive practice in this Court. Would not a prudent lawyer have made a full disclosure to all members of the family before attempting to do what the law pre-empts to the Probate Court? What specific deductions were the Flecks authorized to make after deducting their fee, if there ever was any agreement with Adams specifically fixing their fee? Their very conduct decries their defense that they thought they were carrying out the wish of the decedent.

When a distribution was made to the children, no statement of a receipt and disbursements was prepared and given to each distributee. What right did the Flecks have to pay Mrs. Charles Fleck a past due alleged rental account of $240.00? All these circumstances lead to the main query of what position was being taken by the Flecks in further representing the proposed estate in collection of the claim for pain and suffering and in attempting to make claim to the Industrial Commission on behalf of the widow and children alleging that the death was connected in cause and effect with the industrial accident?

Lawyers are in positions of trust when undertaking any task for a client. The Flecks were undertaking to represent the widow in these claims after the death of her husband. Having undertaken to continue their efforts along these lines, what was their duty to the widow?

Let us assume that the Flecks considered their fidelity and efforts lay in the protection of the children in an effort to carry out the wishes of their deceased father. If so, they should have completely divorced themselves from any activity designed to protect the widow in any phase of the circumstances, whether in prosecution of the claim for personal injury, a compensatory death claim or a preparation for the probate of the estate. This Court feels that the Flecks should have advised the widow that they could not handle any claim for her as they had represented her husband in an adverse capacity to her during his lifetime and were now committed to representing the children in any proper capacity. Had they forgotten that their principal commitment from Adams was that they were to defeat the efforts of his widow to secure any part of his property? Had they done the proper thing under the circumstances, they would have advised her, immediately upon the death of Adams, that they could not represent her. Once they undertook to do anything legal for her, they owed her the duty of a full disclosure as to all facts surrounding their activity and the most important was a disclosure that in the immediate past history of the industrial case was a payment of $6000.00.

The relation between attorney and client is highly fiduciary in its nature and of a confidential character. The very existence of the relationship of attorney and client raises a presumption that relations of trust and confidence exist between the parties, and a presumption of invalidity arises where an undue advantage is obtained by an attorney over his client. These passages are contained in text and case books, down through the centuries. The lawyer’s position is not one that can be used as a cloak for the launching of an undue advantage for himself or some third party. He must be impeccably loyal to his trust to the exclusion of the affairs of others that may create a conflict. If he suspects a conflict he should completely withdraw or fully advise all parties concerned. The termination of litigation, while it ends the power of the attorney to bind the client, does not necessarily end the duty of the attorney in dealing with the client. There are cases which show that the doctrine of uberrima fides (highest fidelity) may outlast the relationship itself, and that the rule should be applied so long as the influence arising from the relationship is proved to exist. 6 Corpus Juris 689. 1 Perry on Trusts (6th ed.) Section 202.

Surely the echoes of the Court decisions in the various avenues of litigation in the estate of Wright must be still ringing in the ears of all Ohio lawyers, especially those in this county practicing in Probate Court. Perhaps it might be not far amiss in this case to quote the language of Judge Stewart in this connection in In re estate of Wright, 165 Oh St 23:

“It is a fundamental principle of law that, where parties having different interests are involved, no lawyer can represent * * * such parties without a full disclosure, to all the parties involved, of his dual representation and the arrangements as to the compensation to be received therefrom. Every lawyer worthy of the name learns this principle ab initio. In fact, it is indicated in the oath of office he takes upon his admission to the bar.”

The Flecks are officers of this Court. When Adams died they should have known that a controversy might arise over the fund in question. They now find themselves in a position of embarrassment which could easily have been avoided by a full disclosure to the Probate Court at the time of Adams’ death. Most lawyers have a well grounded approach to their position as stake holders or bailees in the event of the death of the principal. They usually consult the Probate Court before making any move involving the funds held. Certainly they do not proceed to administer the functions of the Court in estates, which seems to be what was done in this case.

Counsel may prepare a decree finding that the sum of $6000.00 herein involved became an asset of the estate of Adams immediately upon his death and that Charles Fleck and Sidney Fleck are ordered to pay to the plaintiff herein, as administratrix, that sum, with interest at 3% from the 22nd day of December, 1955, with costs of this action.

No order is made as to the defendant Aaron H. Fleck, in accordance with the proof, and the petition is dismissed as to him.

No claim or proof of an agency coupled with an interest has been interposed in this case, and, therefore, any suggestion of a right to or a lien concerning any fee due for the collection of the $6000.00 for Adams by the Flecks cannot be entertained.

The Court will prepare separate findings of fact and conclusions of law and spread the same upon the journal at the time of the entry of the decree herein.


text:
    CUIKSA, Appellant, v. MANSFIELD (City) et, Appellees. HERTZLER, Appellant, v. MANSFIELD (City), Appellees. SMITH, Appellant, v. BUTLER (Village), Appellees.
    United States Court of Appeals, Sixth Circuit.
    Nos. 13219, 13220, 13228.
    Decided December 20, 1957.

      C. F. Brown, Norwalk, for appellants.
    H. M. Rust, Mansfield, on the brief, for appellants Cuiksa and C. D Hertzler.
    Ralph E. Johns, Mansfield, on the brief, for appellant Frank L. Smith.
    Leslie R. Ulrich, Robert E. Lee (of Jamison, Ulrich, Hope, Johnson & Burt), Cleveland, Lydon H. Beam (of Beam & Beam), Robert E. Mabee, Mansfield, on the brief, for appellees.
    Before ALLEN, McALLISTER and MILLER, Circuit Judges.
   OPINION

By SHACKELFORD MILLER, Jr., Circuit Judge.

These three appeals, involving similar factual situations and the same questions of law, were heard together on separate records. They will be discussed jointly in this one opinion.

In each case the plaintiff brought suit in the United States District Court under the Civil Rights Act, Section 1983, Title 42 U. S. C. A.; Section 1343, Title 28 U. S. C. A., claiming substantial damages by reason of alleged deprivation of rights and privileges secured by the Constitution by the defendants acting under color of a statute or ordinance.

In case No. 13,219, appellant was convicted in the Municipal Court of the city of Mansfield, Ohio, after a jury trial of disturbing the peace and good order of the city by drunken behavior, in violation of an ordinance of the city and fined $50.00. The conviction was affirmed by the Ohio Court of Appeals. The appellant thereafter brought this action for $250,000.00 damages against the city, the judge of the Municipal Court, and four police officers. Motions for summary judgment by the city and the judge were granted by the District Court, from which ruling an appeal was- taken. The case is still pending in the lower court as to the four police officers.

■In case No. 13,220, appellant was tried before a jury in the Municipal Court of the city of Mansfield, Ohio, for disorderly conduct and resisting a police officer. The jury found him not guilty on the first charge and guilty on the second. The conviction was reversed by the Common Pleas Court. The reversal was subsequently set aside by the Court of Appeals. This action was brought by the appellant for $250,000.00 damages against the city, the judge of the Municipal Court, four police officers, and the proprietor of a lunchroom. Motions for summary judgment by the city and the judge were granted by the District Court, from which ruling an appeal was taken. The complaint was dismissed as to the lunchroom proprietor, but is still pending in the lower court against the police officers.

In case No. 13,228, the appellant was tried in the Mayor’s Court of the village of Butler, Ohio, for a minor traffic violation of passing on the right. There ,was no village ordinance making that an offense, although the Mayor, as ex-officio judge, thought there was and tried him under that theory. He was found guilty and fined $20.00 and costs, which he paid. After learning that' there was no such ordinance, but that there was an Ohio statute which made such an act an offense, the Mayor vacated the judgment under the ordinance but ordered the appellant to appear and answer a charge of violating the state statute. He ordered a recognizance of $25.00 for his appearance and advised appellant’s counsel that he would consider the fine and costs paid as the recognizance but to inform him if the attorney desired otherwise. No new trial was ever held. The conviction remains set aside. The appellant brought this action for $200,000.00 damages against the village, the Mayor and ex-officio Judge of the Mayor’s Court and the constable who executed the affidavit charging appellant with passing on the right. Motions for summary judgment by the three defendants were granted by the District Judge, from which ruling an appeal was taken.

The respective complaints alleged arbitrary, whimsical, capricious and illegal action on the part of the city or village in which the court was situated and on the part of the judicial officer trying the case. In view of the disposition which we make of the cases, it is unnecessary to go into the details of the respective trials. It is sufficient to say that the complaints charged highly irregular proceedings, which, if true, might well be found to constitute a denial of due process of law. We agree with the appellants that such alleged arbitrary and irregular procedure should not be allowed to exist in any of the courts of this country. However, the allegations weré denied by the defendants and since the cases were disposed of as a matter of law on motions for summary judgment, there was no trial o'r findings on the factual issues on that aspect of the cases. Whether such arbitrary and irregular procedure took place and, if so, how it should be corrected, is not the question before us. We are restricted on these appeals to a consideration of the correctness as a matter of law of the granting of the motions for summary judgment.

The District Judge sustained the motions for summary judgment on the authority of our ruling in Kenney v. Fox, 6 Cir., 232 F. (2d), 288, certiorari denied Kenney v. Killian, 352 U. S., 855, 856, 77 S. Ct., 84, 1 L. Ed. (2d), 66, from which rulings these appeals were separately prosecuted.

In Kenney v. Fox, supra, we held, upon the authority of Bradley v. Fisher, 13 Wall., 335, 20 L. Ed., 646, and' numerous other cases referred to in the opinion, that judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts where jurisdiction exists over the subject-matter and the defendant, even though such acts are in excess of their jurisdiction and are alleged to have been done maliciously or corruptly; that some of the most difficult questions which a judicial officer is called upon to consider and determine relate to his jurisdiction, or that of the court held by him, or the manner in which the jurisdiction shall be exercised; that the manner and extent in which the jurisdiction is exercised are generally as much questions for the determination of the judge as other questions involved in the case, although upon the correctness of his determination in these particulars the validity of the judgment may depend; that against the consequence of their erroneous or irregular action, from whatever motives proceeding, the law has provided for private parties numerous remedies, and to those remedies they must, in such cases, resort; that for malice or corruption in their action whilst exercising their judicial functions within the general scope of their juriisdiction, the judges of these courts can only be reached by public prosecution in the form of impeachment, or in such other form as may be specially prescribed; that such a rule is necessary as a matter of public policy for the protection of judges against disappointed litigants who, in attempting to seek redress through civil action against a judge who has decided a case against them, could always include in their complaint allegations of malicious or corrupt motives.

As shown by the cases referred to in that opinion, this principle of law is of ancient origin and well settled, and was not abrogated or modified by the passage of the Civil Rights Act. In our opinion, this is the necessary conclusion to be drawn from the recent opinion of the Supreme Court in Tenney v. Brandhove, 341 U. S., 367, 71 S. Ct., 783, 95 L. Ed., 1019, which we regard as controlling on this issue. Appellants rely chiefly upon Picking v. Pennsylvania R. Co., 3 Cir., 151 F. (2d), 240, and McShane v. Moldovan, 6 Cir., 172 F. (2d), 1016. It is sufficient to say that these cases were carefully considered by us in Kenney v. Fox, supra, wherein we pointed out that the ruling in the Picking case was prior to the decision of the Supreme Court in Tenney v. Brandhove, supra, was contrary to the great weight of authority and was not being followed by us. We also pointed out that the ruling in the McShane case did not involve the question of judicial immunity and, in any event, must yield to the later ruling of the Supreme Court in Tenney v. Brandhove, supra.

Appellants, however, contend that the ruling in Kenney v. Fox, supra, is not applicable because the alleged deprivation of rights occurred there in a civil proceeding, while in the present case it arises out of a criminal proceeding. No authority is cited for this claimed distinction. Although the point apparently was not expressly raised, in the following cases we applied the ruling in Kenney v. Fox, supra, to cases arising out of criminal proceedings. Watson v. Skillman, 6 Cir., 234 F. (2d), 659; Copley v. Sweet, 6 Cir., 234 F. (2d), 660; Thompson v. Heither, 6 Cir., 235 F. (2d), 176. In addition, we believe the matter was settled for the present purposes by the following statement of the Supreme Court in Bradley v. Fisher, supra, 13 Wall., 335, 352, “But if on the other hand a judge of a criminal court, invested with general criminal jurisdiction over offenses committed within a certain district should hold a particular act to be a public offence, which is not by the law made an offence, and proceed to the arrest and trial of a party charged with such act, or should sentence a party convicted to a greater punishment than that authorized by the law upon its proper construction, no personal liability to civil action for such acts would attach to the judge, although those acts would be in excess of his jurisdiction, or of the jurisdiction of the court held by hinu for these are particulars for his judicial consideration, whenever his general jurisdiction over the subject-matter is invoked.”

It is equally well settled that governmental immunity exists with respect to the municipality, City of Mansfield and Village of Butler in their governmental functions, which has not been abrogated by the Civil Rights Act. Cobb v. City of Malden, 1 Cir., 202 F. (2d), 701, 703; Agnew v. City of Compton, 9 Cir., 239 F. (2d), 226, certiorari denied 353 U. S., 959, 77 S. Ct., 868, 1 L. Ed. (2d), 910; Charlton v. City of Hialeah, 5 Cir., 188 F. (2d), 421; Aldrich v. City of Youngstown, 106 Oh St 342, 140 N. E.; 164, 27 A. L. R., 1497; Tenney v. Brandhove, supra, 341 U. S., 367, 71 S. Ct., 783.

In case No. 13,228, a constable of the village of Butler was also made a defendant. The constable filed an affidavit against the appellant Smith charging him with passing on the right, which initiated the prosecution. Appellant was not placed in custody by the constable or physically restrained. At the trial the constable testified as a witness. We held in Kenney v. Fox, supra, 232 F. (2d), 288, 290, that neither an attorney who prepared the papers initiating the prosecution, nor the prosecuting attorney who prosecuted the case, was liable for damages under the Civil Rights Act. The actions of the constable in initiating the prosecution and in testifying did not deprive the appellant of any constitutional right. Nor is he responsible for the subsequent actions and rulings of the judge. Whittington v. Johnston, 5 Cir., 201 F. (2d), 810, 811-812, certiorari denied 346 U. S., 867, 74 S. Ct., 103, 98 L. Ed., 377, cited by us with approval in Kenney v. Fox, supra, and Barlett v. Weimer, 6 Cir., 244 F. (2d), 955. Appellant Smith had no cause of action under the Civil Rights Act against the constable.

We are not unmindful of the fact that if the allegations of the respective complaints are accepted as true, each of the appellants has been convicted of a criminal offense through judicial proceedings highly irregular and prejudicial in nature for which he seeks redress. Many of the acts and rulings of which they complain constituted proceedings which were subject to review by an appellate court, which, if found to be illegal or prejudicially erroneous, would invalidate the judgment of conviction. Insofar as any individual personal rights have been violated by reason of assault and battery, false imprisonment, slander, or other tort, the present ruling does not dispose of such claims against the individual who may have committed such tort. Agnew v. City of Compton, supra, 9 Cir., 239 F. (2d), 226, 231. What remedies the plaintiffs have, or should have, is not the question presented by these cases. On the records before us, we think it is clear that they are not entitled to the remedy sought by the present actions.

The judgment in each case is affirmed.