author: By MILLER, J.:

text:
    XENIA (City), Plaintiff-Appellee, v. BURTON, Defendant-Appellant.
    Ohio Appeals, Second District, Greene County.
    No. 528.
    Decided April 8, 1953.
    W. A. Miller, City Soliciter of Xenia, for plaintiff-appellee.
    J. H. Patricoff, Dayton, for defendant-appellant.
   OPINION

By MILLER, J.:

This is a law appeal from the judgment of the Municipal Court of Xenia, Ohio, finding the defendant guilty of the offense of loitering.

The record reveals that on December 26, 1952, an affidavit was filed charging that the defendant unlawfully did “loiter in a public place being unable to give a reasonable account of himself, contrary to Section 3, 1927 Code, pp. 161-166”; that a trial was had on January 22, 1953, at which the defendant was found guilty and ordered to pay a fine of $35.00 and costs.

The errors assigned may be epitomized as follows:

1. The judgment is contrary to law and against the manifest weight of the evidence.

2. The Court erred in overruling defendant’s motion to dismiss at the close of the plaintiff’s case, and again at the close of all the evidence.

3. The Court erred in overruling defendant’s motion for a jury trial.

4. The Court erred in refusing to admit certain evidence offered on behalf of the defendant.

The facts pertinent to the issues presented reveal that at or about 11:30 P.M. on the date set forth in the affidavit it was reported to the Police Headquarters of the City of Xenia that a person had been seen on the premises of the complainant looking into his window; that upon an alarm being sounded the person ran into an alley in the rear after jumping a fence; that a police cruiser appeared shortly thereafter on the scene, finding the defendant running in an alley about four or five houses beyond that of the complainant; that the description given the police was that the person was wearing a light-colored overcoat and that this defendant was also wearing a coat of the same description; that the defendant was thereupon arrested and taken to the City Prison without being identified by the complainant; that he was only asked what he was doing there, to which he replied that he was going to the bus station, which was approximately five blocks away, but in the general direction in which he was proceeding.

The evidence reveals further that the defendant had been attending a party in the vicinity at which there had been some drinking of highballs; that he had been taken to the party by one of the guests, in his automobile, having been picked up at his home some eight miles distant; that sometime between 11:00 and 11:30 P.M. he left the party without announcing his intention to any one.

At the trial the defendant testified that he left because he was not feeling well; that he was going to the bus station in order to take a bus to his home, although he was not familiar with the bus schedule, or even if one ran to his home located at Fairborn, Ohio.

It is to be noted that the affidavit charges defendant with “loitering” while all of the evidence offered by the prosecution is to the effect that the defendant was running, which has a meaning just opposite to that charged in the affidavit. We think the word “loiter” is properly defined in Words and Phrases, Volume 25, p. 589, as follows:

“To loiter means to be dilatory, to stand idly around, to spend time idly.” Clearly, the evidence does not support the charge contained in the affidavit in this respect. Hence, the Court should have sustained the defendant’s motion at the close of the prosecution’s case.

It is urged by the appellee, however, that ordinance No. 830, upon which the action was alleged to have been based, is in two parts and that the conviction could be sustained under Section 2, but the defendant was not charged with violating this section. The affidavit charges the defendant with violating Section 3, 1927 Code, pp. 161-166. This section was repealed when ordinance No. 830 was enacted, the whole of which reads as follows:

“Section 1. Any person found strolling or loitering, in or upon or about any street, alley or public place in this City, after night, and who cannot give a reasonable account of himself or herself, or of the honesty of his or her intentions, shall be deemed guilty of an offense and upon conviction thereof, shall be fined in any sum not more than Fifty ($50.00) Dollars.
Section 2. Any person found running or prowling about or upon the premises of any citizen, within this City, after night, without permission of the owner, and who cannot give a reasonable account of himself or herself, or of the honesty of his or her intentions, shall be deemed guilty of an offense, and upon conviction thereof, shall be fined in any sum not more than Fifty ($50.00) Dollars.
Section 3. That Section 3 of an ordinance defining and punishing certain offenses enacted July 15, 1898, as published in the 1927 Code at Page 161, be and it is hereby repealed.
Section 4. That this ordinance shall take effect and be in force from and after the earliest period allowed by law.
Adopted this 13th day of February, 1947.”

It therefore appears that the affidavit did not even charge an offense, as the ordinance referred to in the affidavit had been repealed. The Court did not err in overruling the appellant’s motion for a jury trial for the reason that the maximum penalty did not exceed the sum of $50.00. Sec. 13443 GC; Xenia v. Smith, 34 Abs 620.

The Court should have admitted the evidence proffered by the defendant showing the physical encounter with the arresting officer, as this might have reflected on the credibility of the witness and the weight to be given to his testimony by showing bias and prejudice.

The judgment will be reversed and this Court will render a judgment in favor of the defendant.

WISEMAN, PJ, and HORNBECK, J, concur.


source: Caselaw Access Project

author: By HUNSICKER J:

license: Public Domain

text:
    Marku, Appellant, v. Union & League of Romanian Societies of America, Inc., et, Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23212.
    Decided August 17, 1954.

      Novak N. Marku and John R. Vintilla, Cleveland, for plaintiff-appellant.
    Richard H. Woods, Cleveland, for defendant-appellees.
    (DOYLE, PJ, STEVENS, J, HUNSICKER J, of the Ninth District sitting by designation in the Eighth Appellate District.)
   OPINION

By HUNSICKER J:

This is an appeal on questions of law and fact from the Court of Common Pleas of Cuyahoga County, Ohio.

Novak N. Marku filed an amended petition in the trial court against the Union & League of Romanian Societies of America, Inc., and its president, its secretary, and its attorney, in which amended petition he alleged in substance that: he is the president of one of the constituent member societies of the corporate defendant herein; he is the holder of a death, sick and accident benefit certificate in such corporate defendant: he is president of a branch society of the corporate defendant; he signed for the year 1952 a loyalty affidavit and sent it to the corporate defendant, as required by the bylaws of the Union & League of Romanian Societies of America, Inc.; he, at the request of the corporate defendant, attended an executive committee meeting on March 8, 1952, as a delegate and representative of the branch member society Traian Si Iuliu Maniu Society of Canton, Ohio, to answer certain charges made against his branch society by the officers of the corporate defendant; he was not allowed to be heard or defend as a delegate of his society; the executive committee suspended until the next convention his society and placed him (Novak N. Marku) under “accusation” until the forthcoming convention of the corporate defendant, to be held at Lorain, Ohio, in September 1952; he was duly elected a delegate to this convention by his branch society, but that “the individual defendants Joseph J. Cracium and George Dobrea, as president and secretary, respectively, of the corporate defendant, refused to approve the plaintiff, Novak N. Marku,” as a delegate; he was denied a seat as a delegate, was tried by a grievance committee without having been notified personally or in writing of any charges, and “without being given notice and an opportunity to appear, be heard and defend against any charges before the committee of the convention body”; the convention body, upon recommendation of the grievance committee, expelled him from the branch society and the corporate defendant organization; the actions of the officers of the corporate defendant in denying the member society “Traian & Iuliu Maniu” of its rightful representation in the convention and the refusal to seat the plaintiff (Marku) as the representative of the member society “were in wreckless (sic) disregard of the material and fundamental rights of 192 members of said society * * *”; he “has exhausted all the remedies available to him within the defendant-corporate organization and has no adequate remedy at law.”

For a second cause of action, Marku says; he made demand in writing on the corporate defendant on July 15, 1952, for an inspection of the books and records of the corporate defendant, which demand was refused; he was told he could examine the books and records at the convention to be held in Lorain, Ohio, in September, 1952; he presented himself at the convention as a delegate of his member society, and again asked to see the books, records and financial reports of the corporate defendant, which request was again refused; the corporate defendant is wilfully withholding from the plaintiff. Marku, information in which this plaintiff has an interest.

The prayer of this petition asks that the corporate defendant and the individual defendant officers be enjoined from “denying and/or depriving the plaintiff of any or all of his rights, interest and privileges as a member of the society, ‘Traian & Iuliu Maniu’ and the corporate defendant ‘The Union & League R. S. A., Inc.,' directly or indirectly or in any manner whatsoever”; that plaintiff, Marku, be restored to all of his rights as a member in such societies; and that a mandatory injunction issue, requiring the corporate defendant and the appropriate officers thereof “to permit the plaintiff and his attorney and agents to inspect all of the books, records and accounts of the defendant corporation, Union & League R. S. A., Inc.,” etc.

A joint answer to this amended petition has been filed by the defendants, in which they say that: plaintiff, Novak N. Marku, “is not a member of the defendant corporation, the Union & League of R. S. A., Inc., having been excluded by the convention held September 5, 1952”; this convention refused to accept plaintiff, Marku, as a delegate or membr of the convention; the plaintiff, Marku, did not, as an officer of his branch society, file a proper loyalty affidavit, but did mislead his branch society “Traian & Iuliu Maniu” by forwarding to the corporate defendant an improper loyalty affidavit, in violation of the constitution, bylaws and regulations of the Union & League of R. S. A., Inc., and of “Traian luliu Maniu Society.”

The defendants, by way of further answer, say that they “have no knowledge of any inquiry from this plaintiff as to any information he desired from the defendant corporation. They further allege that the fraternal insurance laws of Ohio provide the “manner in which plaintiff may procure information which he desires if it has been refused by the defendant corporation, and, therefore, plaintiff has an adequate remedy at law if: $ ‡ i>

As a second defense, the defendants say that: “* * * the plaintiff has not been denied his rights and has not complied with the constitution and bylaws, rules and regulations of the parent organization, the defendant corporation the Union & League of R. S. A., Inc., and those of the subordinate society in which plaintiff was a member, and that the plaintiff has not exhausted all of his remedies within the organization as to his rights and that he has an adequate remedy at law.”

Thereafter, the within action was heard in the trial court on the issues made by these pleadings, immediately following two companion actions. The testimony and evidence received in the companion cases (Nos. 643,431 and 643,463 in the Common Pleas Court, which were thereafter appealed and became No. 23,211 in the Court of Appeals, and have also this same day been decided by the Court of Appeals), so far as applicable herein, has been adopted as a part of the evidence in this case, and, together with additional testimony and evidence, compromises the record before this court.

The record is long, involved, and replete with extraneous matters. Reduced to a single proposition the question in this case revolves around the validity of a loyalty affidavit sent by the corporate defendant herein to the branch society and their officers in 1951, for the purpose of having such loyalty affidavit executed by the officers elected to manage the affairs of the branch or member societies for the year 1952.

At the convention of the Union & League R. S. A., Inc., held at Youngstown, Ohio, in September, 1948, a resolution was adopted, providing that all officers of this corporate defendant and of its member societies should sign a loyalty affidavit. This resolution, adopted in the Romanian language, is (translated to English) substantially as follows:

“The officers of the Union and League and officers of the societies which compose the Union & League shall be obligated to sign a declaration through which they state that they are not Communists; that they do not belong to any subversive organization which works against the Constitution and Laws of the United States of America.”

A form of affidavit was later prepared by the officers of the corporate defendant, pursuant to authority granted by their constitution and bylaws; and, pursuant to a specific resolution of the convention, such affidavit was printed by the corporate defendant. This form of affidavit was executed by the proper persons without question or objection.

In 1951, for the officers elected to act in the year 1952, a new form of loyalty affidavit was prepared and forwarded to the member societies and their newly elected officers. This new form of affidavit was prepared after an executive meeting in March, 1951, at which a resolution was adopted directed to those members who believe in subversive activities, whether Racist, Nazi. Communist, or other un-American. This meeting decided that no such member could be an officer of the corporate defendant or of a branch society.

The plaintiff herein, Novak N. Marku, did not execute such new loyalty affidavit, although he did sign a loyalty form under protest, after a number of requests by the officers of the corporate defendant to execute the loyalty affidavit, directed to him and the branch society of which he was a member.

Upon receipt of the signed but unexecuted loyalty form, sent to the Union & League R. S. A., Inc., by Marku, the officers of that body, the corporate defendant herein, requested that a delegate be sent by “Traian & Iuliu Maniu,” the branch society, to a meeting of the executive committee to be held in Cleveland, Ohio, in March of 1952. The plaintiff, Marku, appeared at this executive committee meeting but was not accepted as a proper delegate of his society.

All of the proceedings of the several conventions and of the several executive committee meetings were reported in the official publication of the Union & League R. S. A., Inc. At the executive committee meeting in March, 1952, “Traian & Iuliu Maniu,” and the plaintiff, Marku, were placed under “accusation” until the convention of 1952. It was after this action of the executive committee that Marku sought to examine the books, records and financial reports of the corporate defendant herein.

There is no need in this opinion to set out all of the various powers and duties of the corporate defendant, its officers, executive committee, member societies, and individual members. This court has read and examined carefully the constitution and bylaws of the parent body, copies of which are made a part of the record. We do wish, however, to point out that, according to Article IV, Section 6, of the bylaws, a member “under indictment or accusation by any forum of the member societies or of the central organization” was not eligible to be elected to office. In conjunction with this article and section, Article II, Section 13. of the bylaws, said:

“The member societies shall elect their officers by secret ballot in the month of December of each year who shall be installed in office at the following January meeting. They shall report the names of their newly elected officers immediately after every election, to the central office for the approval of their qualifications. In case any newly elected officers shall not be qualified in conformity with the bylaws of the U. & L. R. S. A., Inc., the president or secretary shall notify the member society to that effect and a new election for that office shall be held at the following meeting. Any appeals by the member society as to the qualification of a newly elected officer must be made to the executive committee which shall have full power to make the final decision. In such cases the members or member societies are strictly forbidden to appeal to the civil courts.”

If the officers had the authority to present to the member society and its newly elected officers the new form of loyalty affidavit, which this plaintiff, Novak N. Marku, did not execute, then all action thereafter taken by the officers and executive committees of the corporate defendant in refusing to accept Marku as a delegate was proper under the constitution and bylaws of the voluntary association of which he, Marku, was a member, until such matter could be presented to the convention to be held in Lorain, Ohio, in September, 1952. At that convention, if the prior action taken by the officers and executive committee was lawful under the constitution and bylaws of the corporate defendant, Marku could not be a delegate or represent, on the floor of the convention, his branch society. The action taken by the convention in voting his expulsion as a delegate, hence, was proper.

Under what authority and by what right could the new loyalty affidavit be required of Marku and the officers of “Traian & Iuliu Maniu”? This question must be answered in favor of the authority of the corporate defendant, for the following reasons:

First, by the authority of the resolution of the convention of September, 1948, it was directed that a loyalty affidavit of some form be presented to each newly elected officer of the corporate defendant and the newly elected officers of the member societies.

Second, the power, duty and authority to prepare a form of loyalty affidavit rested with the officers of the corporate defendant.

Third, loyalty not alone to the Unted States was in contemplation of the convention, but loyalty also to the corporate defendant and its member societies; hence, the officers and executive committee merely followed the form of eligibility for office set out in the bylaws (Article VI, Section 6), which were as follows:

“The active members of the member societies who fulfill all the requirements of the constitution and bylaws, shall have the right to be elected to any office of the member society or to the central organization, excepting when the constitution and bylaws otherwise provide.
“The following are not eligible to be elected to office:
“(a) Those sentenced to prison for major crimes.
“(b) Those who are found guilty of moral turpitude, and who have caused the member societies or the central organization any moral and material losses.
“(c) Those under indictment or accusation by any forum of the member societies or of the central organization.”

We have, above, discussed the power and authority of the executive committee and the convention of September, 1952, to reject Novak N. Marku as an officer and a delegate of his branch society, “Traian & Iuliu Maniu.” Did that convention have the right to expel Marku as a member of his society and cancel his benefit certificate or policy? (He was tendered the cash surrender value of his policy'but refused to accept it.)

It is one of the declared purposes of the organization herein (Union & League R. S. A.. Inc.,), as provided by its constitution, Article III (a), “to compensate its members by means of benefits in case of injury and accident, and their beneficiaries in case of death.” Only “active” or “passive” members may contract for benefits (insurance).

It is also provided in Article IV, Section I, of the bylaws that “Every member is obliged to observe the constitution and bylaws of the U. & L. R. S. A., Inc.,” In accord with Article IX, Section 2, of the bylaws, “any changes, additions or amendments to said articles of incorporation, constitution and bylaws and rules and regulations of the central organization, duly made or enacted subsequently to the issuance of said benefit certificate, shall be binding upon the member * * *.” It is also further provided in Article VII. Section 3, of the bylaws, that the regular convention of the D. & L. R. S. A.. Inc., which is the highest governing body of this organization, may “punish by penalty, fine, passivity or expulsion, those found guilty of violating the constitution, bylaws or insurance laws; and it shall have the power to do and perform any and all other acts and things which it deemed essential to the welfare and perpetuity of the organization.”

In the light of the broad powers of the convention of U. & L. R. S. A., Inc., and the action taken thereunder at the meeting held in Lorain, Ohio, in September, 1952, the appellant, Marku, was lawfully expelled, and his benefit certificate or policy properly cancelled.

Does Marku have a right to inspect the books, records and financial reports of the corporate defendant, as requested by him in July, 1952?

There is no specific'provision in the constitution or bylaws which permits a member of a branch society to examine the books and records of the corporate defendant. Provision is made, however, by Article II, Section II, of the bylaws for a member society to “request any information from the central office. The office shall promptly give written replies to all requests.”

The statutes of Ohio with regard to fraternal insurance, in effect when Marku made his request to inspect the books, were §9426 et seq., GC.; and §9406 thereof gave to the superintendent of insurance power to examine into the affairs of the corporate defendant.

It should be remembered that the petition which seeks to compel such examination, was filed by Marku after he ceased to be a member of the society; and since we have determined that his expulsion and the subsequent cancellation of his benefit certificate were proper, this court cannot order an examination of the records, even though we assumed that a member of a fraternal benefit society has such a right.

For the reasons above set out, the appellant, Marku, is not entitled to the relief he seeks in this court.

The amended petition is dismissed, at the costs of appellant.

DOYLE, PJ, and STEVENS, J, concur.


text:
    FINNERTY, Plaintiff-Appellant, v. BAKER, Defendant-Appellee.
    Ohio Appeals, Second District, Miami County.
    No. 491.
    Decided November 18, 1954.

      Curtner, Brent & O’Hara, by Clifford R. Curtner, of Counsel, Dayton, for plaintiff-appellant.
    Shipman & Shipman, by F. L. Shipman, of Counsel, Troy, for defendant-appellee.
   OPINION

By MILLER, J.:

This is a law appeal from a judgment of the Common Pleas Court sustaining the motion of the defendant for an instructed verdict made at the close of the plaintiff’s case. The action was one for damages arising out of a collision between two automobiles in the village of West Milton. Ohio, on the morning of June 17, 1950, at approximately 2:15 A. M. The answer was a general denial. An examination of the evidence discloses the plaintiff testified that at about said time he was driving his automobile in a northerly direction on State Route No. 48; that there had been an electrical storm and the street lights in the village were out; that as he entered the southern aspect of said village he observed a car coming towards him with exceedingly bright lights and its left wheels over on the east or wrong side of the highway; that it did not change its course and a collision resulted, although the plaintiff testified that he pulled his car to the right to avoid the same and in so doing struck another car parked at the curb. He testified further that the left front end of the southbound car struck his left front end, causing the damages complain of. The evidence clearly establishes negligence on the part of the approaching automobile, but the question presented is whether sufficient facts were established from which the inference could be drawn that the southbound car was being operated by the defendant. The evidence produced on this point reveals that an unidentified officer in West Milton immediately after the accident informed the plaintiff that he had obtained a description of the car and that he would report the same to the Dayton police, Dayton being to the south on said Highway No. 48. The following report was admitted in evidence as Mutual Exhibit No. 1:

“Radio log, City of Dayton Police Department, received 2:32 a. m. 6/17/50, West Milton Police, suspected hit-skip, Car 26, call No. 2 local, attempt to pick up a dark new Chevrolet car, bearing license number unknown PE or PW letters on plate, headed toward Dayton from West Milton.”

The record discloses further that at 2:55 on said morning the defendant was apprehended driving a new model dark green Chevrolet south on Main Street in the city of Dayton; that the left front end of said car had been damaged. A deposition of the defendant was offered in evidence as upon cross-examination by the plaintiff. In it he stated that he had driven through West Milton that evening but that he had had no accident there; that the damage to the front end of his car had been received earlier in the night when his car slid into a ditch -because of the slippery condition of the highway. In answer to Question No. 63 in the deposition the defendant admitted that he was stopped by the Dayton police upon his arrival in that city. We think from this evidence the inference is permissible that the defendant’s car was the one involved in the collision. It should be noted that the collision occurred at approximately 2:15 A. M., and that the defendant was apprehended at 2:55 A. M. in Dayton, some 16 miles south of the scene of the accident, the court taking judicial notice of the geographical location. In order for a car to cover the said 16 miles in 40 minutes it would be necessary to drive at the rate of 24 miles per hour, which is a very probable rate of speed under the conditions of the highway then existing. Under this state of facts we do not think that reasonable minds could come only to the conclusion that the defendant’s automobile was not involved in the alleged collision. The evidence was therefore sufficient to establish a prima facie case which required that the defendant come forth with his defense.

A trial judge in ruling upon a motion to direct a verdict on the evidence introduced must not only assume the truth of the evidence in behalf of the party against whom the motion is directed, but must construe the evidence most strongly in favor of that party. The trial judge should give the party against whom the motion is made the benefit of all reasonable inferences that can be drawn from the evidence offered and consider as proved such reasonable inferences favorable to him as the facts warrant without carrying the inferences to an illogical conclusion. In other words, the evidence must be construed favorably to the submission of the case to the jury and the trial judge should indulge in every possible consideration in favor of such submission. Under the present ruling if, after giving the evidence such favorable consideration, reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion is made, the judge should direct a verdict against him. Hamden Lodge v. Ohio Fuel Gas Co., 127 Oh St 469. See, also, 39 O. Jur. 802, et seq.

We think that under the facts presented reasonable minds could reasonably have come to different conclusions and therefore the court erred in sustaining the motion.

The judgment will be reversed and cause ordered remanded for further proceedings according to law.

WISEMAN, PJ, HORNBECK, J, concur.


author: By EMMONS, J.

text:
    HARTLINE, Plaintiff, v. HARTLINE, Defendant.
    Common Pleas Court, Summit County.
    No. 177177.
    Decided January 25, 1955.
    William R. McClenathen, Akron, for. plaintiff.
    Bernard J. Roetzel, Akron, for defendant.
   OPINION

By EMMONS, J.

This matter is before the Court on a motion for contempt by the plaintiff for failing to pay support money as agreed upon by the plaintiff and ordered by the Court, as well as a motion to reduce the unpaid monthly support moneys to a lump sum judgment, and also a motion for modification of the agreement entered into by and between the plaintiff and defendant, which agreement was made a part of the divorce decree and provided for the support of Ronnie Lloyd Hartline in the sum of $50 per month.

The facts of the case are as follows: The plaintiff and defendant were married in 1942, and some four years later the parties not being able to have children, the defendant went to Texas and procured a baby boy by having the mother of said child register in the hospital under the defendant’s name and giving the name of the plaintiff as being that of the child’s father. The defendant then returned from Texas with the child and lived with the plaintiff for some three and one-half years during which time the plaintiff supported said child who bore the name of Ronnie Lloyd Hartline and treated him as though he were his own son.

Later the defendant took the child to Texas and shortly thereafter the plaintiff sued'the defendant for divorce on the grounds of gross neglect of duty and extreme cruelty, alleging in the petition, which he signed under oath, that the child Ronnie Loyd Hartline was the living issue of said marriage. Upon learning of this divorce case filed against her, the defendant contacted the plaintiff and the two entered into an agreement for alimony and for the support of said child.

At no time during the divorce proceedings before this Court, which was an uncontested one, did the plaintiff make known the fact that the child was not the issue of said marriage.

For some time after the divorce the plaintiff continued to pay the defendant $50 per month for the support of the child. Thereafter he failed to comply with the terms of the agreement and now is in arrears in those payments in the sum of approximately $900, for which amount the defendant prays for a lump sum judgment.

There was no proof by the plaintiff that there was a substantial change in the condition of the parties, Pellegrino v. Pellegrino, Oh Ap, 36 N. E. 2d 3, so the questions for the Court’s determination are these:

First, — Did the Court have authority to order the plaintiff to support a child, not his own and for which he had no legal obligation to support.

3 A. L. R. 535: “1. General rule. The party at whose instance a judgment is rendered is not entitled, in a collateral proceeding, to contend that the judgment is invalid. Neither want of jurisdiction, defect of procedure, or any other ground of invalidity can be availed of collaterally, by the party who is responsible for the existence of the judgment.”

Julier v. Julier, 62 Oh St 90, Syl. 4, 56 N. E. 661: “While a decree so rendered in conformity with such agreement remains in force, the parties are estopped to allege or prove that the agreement was void' as against public policy.”

Justice Williams made the following observation in his finding in the case, supra: “An objection is made to the operation of the decree in question as a bar to the right of dower claimed, on the ground that the agreement on which the decree is founded is an unlawful one; the stipulation looking to an immediate divorce being, it is said, against public policy, and rendering the whole contract void. This objection is not available. The alleged infirmity does not appear in the decree, nor in the record of that case. The agreement, whatever its terms, was merged in the judgment, which, being regular on its face, and, as has been seen, rendered by a court of competent jurisdiction, is supported by the conclusive presumption that every fact necessary to sustain it was properly brought before the court. The judgment cannot be impeached except by a direct proceeding to reverse or annul it. And even in a proceeding of that character the party asserting the illegality of the agreement as a ground of relief would find serious obstacles in the way of obtaining any assistance from the courts. Certainly as long as the decree remains in force the parties to it are estopped from alleging or proving that the agreement was illegal, or disputing its validity.”

3 A. L. R. 536, par. 2 of the second column: “The reason or principle on which these decisions rest is not technically the doctrine of estoppel in the ordinary signification and acceptation of that term, but the principle that a person, having invoked the jurisdiction of a court, and submitted himself thereto, cannot be heard thereafter to question, in a collateral proceeding, the jurisdiction of that court, and claim a nullity of the judgment or decree, the rendition of which he asked.”

Bledsoe v. Seaman, 77 Kan. 679, 95 P. 576, 579. The Court said: “People who invoke the action of a court, and, through negligence or falsehood, mislead the court as to the existence of the facts upon which its jurisdiction depends, and obtain a judgment for relief, will not afterwards be heard to deny the validity of such judgment.”

Sedam v. Sedam, Oh Ap, 78 N. E. 2d 914, Syllabus 2: “Where under provision of agreement incorporated in divorce decree husband agreed to pay for support of parties’ adult mentally incompetent daughter in care of wife, husband was bound by its provisions although husband would not have been liable under the law to support daughter, where court rendering decree was one of general jurisdiction with full power to adjudicate rights of the parties.”

The Court is not passing on the question of the validity of the custody order but only that of support. It makes no difference whether the agreement entered into by and between the plaintiff and the defendant was a separation agreement or not — as long as it was a contract, mutually agreed upon and supported by a good and sufficient consideration, and later made a part of the Court’s decree it was binding upon the parties, whether there was a legal responsibility upon the plaintiff to support the child or not.

Was there consideration to support the contract? In answering this question the Court is cognizant of the fact that the plaintiff, in securing his uncontested divorce, represented both in his petition and in his uncontested trial that the boy was the living issue of himself and the defendant, and that the Court made the order of support only upon insistence of the plaintiff that the agreement be made a part of the decree, and that in the agreement and the decree, which was prepared by the plaintiff’s attorney, the boy was again referred to as the son of the parties and the Court was wholly unaware of the truth of the situation, which was concealed by the plaintiff.

Who knows what the agreement would have provided in the way of greater demands by the defendant upon the plaintiff, had it not been for the plaintiff’s promise to pay $50 per month for the support of the child, and I believe the Court can accept as a fact the conclusion that a larger alimony settlement would have been demanded. It would also be plausible to assume that the defendant would not have permitted the plaintiff to secure an uncontested divorce but for the promise of support of the child. This is not a contract based on an illegal consideration, nor is it one against public policy, nor one induced by fraud on the part of the defendant or by mistake. The plaintiff knew the facts and he and not the defendant presented them falsely to the Court, he having full and complete knowledge of the true situation. In this instance the plaintiff attempted to lull the defendant into a false sense of security by promising her support of the child and paying this support for some time until the status of both parties had changed (both since remarrying) and then disclaiming any legal responsibility by saying that there was no consideration to support the contract. The Court is of a contrary opinion, that there was sufficient forbearance on the part of the defendant to cause this contract to be an enforceable one.

To allow the plaintiff relief in this case would be in fact condoning the fraud of the plaintiff and permitting him to obtain a divorce through deceit and then assist him in furthering that fraud by freeing him from his honest obligations. He saw fit to make this situation and he should in good conscience abide by it and if he elects to evade the responsibility, this Court will not extend to him a helping hand.

By reason of the foregoing, the Court is definitely of the opinion that the plaintiff cannot collaterally attack the judgment of the Court, which was given at plaintiff’s request; that the contract made a part of the Court’s decree was an enforceable one; that there was no proof of fraud on the defendant’s part, mistake or substantial change in the parties’ conditions, financial or otherwise, and that while the Court is of the opinion that the plaintiff in this action is not guilty of contempt of court, yet the unpaid support money should be reduced to a lump sum judgment, and the motion to modify dismissed.

Journal entry to be prepared to conform to the Court’s finding, saving exceptions to both parties.


author: By HUNSICKER, J:

text:
    COLUMBUS PIPE & EQUIPMENT CO., Plaintiff-Appellant, v. RILEY, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23107.
    Decided July 16, 1954.
    McConnell, Blackmore, Cory & Burke, Cleveland, for plaintiff-appellant.
    Sam H. Griff, Cleveland, for defendant-appellee.
    (DOYLE, PJ, STEVENS, J, HUNSICKER, J, of the Ninth District sitting by designation in the Eighth District.)
   OPINION

By HUNSICKER, J:

This is an appeal on questions of law, although the briefs of the parties state the appeal to be on questions of law and fact.

The Columbus Pipe and Equipment Company filed an action in the Court of Common Pleas of Cuyahoga County to perpetuate the testimony of certain witnesses to an accident, involving a motor vehicle operated in their behalf by their agent, and a motor vehicle owned and operated by Woodrow Riley, the defendant below and appellee herein.

Woodrow Riley filed an answer and cross-petition in the actions, and the case proceeded to trial as though Woodrow Riley was the plaintiff and Columbus Pipe and Equipment Company was the defendant.

After a lengthy trial to a jury, a verdict and judgment thereon were rendered for Columbus Pipe and Equipment Company. Thereafter the trial court, upon motion, granted Woodrow Riley a new trial, stating the reason to the effect that the court erred in its charge to the jury to the prejudice of Riley.

The Columbus Pipe and Equipment Company then filed a motion for judgment, which the trial court overruled.

The appeal by the Columbus Pipe and Equipment Company is before this court on the following assignment of error:

“The trial court erred in overruling the defendant’s motion for directed verdict and its motion for judgment, after the new trial, was overruled, for reasonable minds could only conclude that plaintiff was negligent and that his negligence proximately contributed to cause the collision.”

The accident occurred about 2 o’clock P.M. on October 1, 1952, on Ohio State Route 14 (a 20 foot-wide paved highway) approximately 2% miles southeast of Ravenna, Ohio. Riley, with a passenger named Oatts, was driving-toward Pittsburgh when, upon making a sharp right-hand turn up a steep grade, his automobile and the truck of Columbus Pipe and Equipment Company, sideswiped each other, causing severe injuries to Riley.

There was no motor vehicle immediately ahead of either Riley or the Pipe Company truck. The day was dry and clear and visibility was excellent. The truck driver and the occupant of an automobile following the truck were able to see and did see Riley before he started to make the curve and drive up the hill. These parties, of course, were looking down on the road from an elevation. Riley testified that he never saw the truck until the moment of the collision. His passenger said he first saw it when it was about 50 feet away. Many photographs of the highway at and near the scene of the accident were admitted in evidence and Riley and the witnesses marked these photographs to show where the collision occurred.

From the evidence in this case, is it possible that reasonable minds could come to any conclusion but that Riley was, as a matter of law, guilty of negligence which directly and proximately contributed to cause his own injuries? Is the appellant, Columbus Pipe and Equipment Company entitled by law to judgment in its favor? Should the trial court have granted the motion for judgment on the evidence, following the granting of Riley’s motion for a new trial?

The Ohio Supreme Court, in the recent case of Gray v. Youngstown Municipal Railway Company, 160 Oh St 511, said:

“2. Where during a trial of an action a party moves for directed verdict at appropriate stages, which motions are overruled, and secures a verdict and judgment in his favor and the court thereafter grants a new trial, such party may then under Sec. 11681 GC, forthwith move for judgment in his favor ‘upon the evidence received upon the trial.’ such motion will in effect renew the motions for a directed verdict and the overruling of such motion will constitute a final appealable order.”

In a consideration of the problem which confronts us, this court must give to Riley the benefit of the most favorable inferences to be drawn from the evidence, and if such evidence reasonably warrants different and conflicting inferences, then the Columbus Pipe and Equipment Company is not entitled to a judgment herein.

Wilkinson, Admr., v. Erskine & Son Inc., 145 Oh St 218; Purdy, Admr., v. Kerentoff, 152 Oh St 391.

When we examine the evidence — the oral testimony as well as the photographs — we find a considerable conflict; for if both active parties (Riley and Waters, the driver for the appellant) are believed, they came into the curve on State Route 14, each driver on his right side of the highway at least one foot to the right of the center line.

Riley never saw the truck except at the time of the impact. He said he was driving naturally, looking ahead, although he may have been talking to his passenger. This testimony by Riley, standing alone, might indicate that Riley was not exercising due care in the operation of his automobile. Oatts, his passenger, did see the truck coming around the curve, although for a distance of only 50 feet, and he judged the speed in his oral testimony at 50 to 60 miles per hour.

In a statement given to an investigator for the appellant, Pipe Company, the investigator stated that Oatts said,

“I saw a tractor-trailer outfit coming down hill out of the curve at a rather fast speed. I cannot estimate the speed because I wasn’t paying that much attention to it.”

Riley said on cross-examination, it came just like lightning, but in direct examination he estimated the speed from 65 to 70 miles an hour. Riley, although admitting that there was no vehicle in front of him, insisted that the curve blocked his view of the truck, which admittedly was coming down hill and around a curve.

Speed, failure to see the truck, width of highway, and the view from the top of the hill, were not the basic controlling factors in this case. The only reason there was an accident is because one or the other of the active parties (Riley or Waters) was over the center line of the highway. Riley insisted he was bn his right side of the highway and that, as the truck swung into the curve, it tilted over the center line, thereby causing a rear-view mirror attached to the side of the tractor to brush an open window vent on Riley’s car, thus forcing him to the left and hence to scrape along the side of the trailer. Oatts the passenger in Riley’s car, lent some substantiation to this theory.

Waters, the driver of the tractor-trailer outfit, and two other witnesses riding in an automobile directly behind Waters, denied that Waters moved to the left over the center line of the highway; these persons all insisted that Riley was the one to move to his left across the dividing line, and hence into the side of the trailer.

It is thus shown that the basic facts are in great conflict, although in many of the circumstances the great weight of the testimony supports the view that Riley never did know exactly what happened. We, however, are not called upon to weigh the evidence.

When we give to the appellee. Riley, the benefit of the most favorable inferences reasonably to be drawn from the evidence, we must conciude that the Trial Judge did not commit error prejudicial to the rights of the appellant, Columbus Pipe and Equipment Company, when he overruled the motion for judgment made after a motion for a new trial was sustained. The judgment is affirmed.

DOYLE, PJ, STEVENS, J, concur.


author: By WISEMAN, PJ.

text:
    CENTRAL OHIO EMULSION CORPORATION, Plaintiff-Appellant, v. WILLIAM WHITMAN CO. et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 5094.
    Decided September 16, 1954.
    Robert Dow Hamilton, Columbus, for plaintiff-appellant.
    Eagleson & Laylin, Columbus, Jones, Day, Cockley & Reavis, Cleveland, for defendants-appellees.
   OPINION

By WISEMAN, PJ.

This is an appeal on questions of law from the judgment of the Common Pleas Court of Franklin County quashing the service of summons and dismissing the action.

The principal issue in the case involves the validity of a service of summons on the statutory agent of one of the defendants, The National Refining Company, an Ohio corporation. The principal office of the corporation is in Cuyahoga County, where the statutory agent resides. The corporation conducts no business in Franklin County; it has no office or agent in Franklin County, and none of the chief officers reside or are located in said county.

On September 15th, 1952 the statutory agent, while in Columbus on business unrelated to the National Refining Company, was personally served with summons in Franklin County. Is personal service on a statutory agent valid when service is made in a county other than a county where such agent resides? Sec. 8623-129 GC, in part provides:

“1. Every corporation shall have and maintain an agent, who shall be a natural person and a resident of the county in which the principal office of the corporation is located, upon whom process, * * * may be served.”
“8. Process in any suit, action or proceeding against any corporation * * * may be served upon such corporation by delivering a copy thereof to its designated agent or by leaving a copy thereof at his address as the same appears upon the record in the office of the secretary of state.”

The provisions of the above cited section are in pari materia with- the provisions of §11272 GC, which in part provides:

“An action other than one of those mentioned in the next four preceding sections, against a corporation created under the laws of this state, may be brought in the county in which such corporation is situated, or has or had its principal office or place of business, or in which such corporation has an office or agent, or in any county in which a summons may be served upon the president, chairman or president of the board of directors or trustees or other chief officer.”

The four preceding sections have no application here. Sec. 11272 GC, provides where the action may be brought; it is a venue statute. Sec. 8623-129 GC, provides how service shall be made on a statutory agent when the action is properly instituted. In this case the action is not properly instituted in Franklin County. Process statutes do not control venue statutes. 9 Fletcher, Encyclopedia of Private Corporations, Permanent Edition, Section 4353.

The statutory agent is not a “chief officer” of a corporation within the meaning of §11272 GC.

All motions to quash the service of summons were properly sustained. In passing on the motions first filed the court in its written opinion found venue to be in Cuyahoga County, but this finding was not carried into the final entry. Under facts in this case the order sustaining the motion to quash, without more, was not a final order. Towne v. The National Refinery Co., 10 Oh Ap 265; Carr v. Marion Masonic Temple Co., 67 Oh Ap 521. The validity of the service on a statutory agent remains the principal issue in the case. On this issue the court sustained the motion and dismissed the action, giving rise to an appealable order.

Finding no error in the record prejudicial to the rights of the appellant, the judgment is affirmed.

MILLER and HORNBECK, JJ, concur.


author: By DOYLE, J:

text:
    MASCHUK d. b. a. MASCHUK REALTY CO., Plaintiff-Appellee, v. MAXAM et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23224.
    Decided January 12, 1955.
    H. C. Wedren, Cleveland, for plaintiff-appellee.
    Howell, Roberts & Stapleton, Cleveland, for defendant-appellants.
    (DOYLE, PJ, HUNSICKER, J, of Ninth District: GRIFFITH, J, of Seventh District sitting by designation.)
   OPINION

By DOYLE, J:

Maschuk, a real estate broker, sued the Maxams, husband and wife, for a broker’s commission, growing out of the sale of the Maxam home to the Peterses husband and wife. Trial was to the court without a jury and judgment was rendered for the broker-claimant. The defendants have appealed to this court on questions of law.

Several assignments of error have been filed, which are claimed to be prejudicial to the rights of the defendants. We are of the opinion, however, that but one serious question is before us. It is: Did the trial court err in finding, as it surely must have, that the plaintiff, Maschuk, was the procuring cause of the sale of the property? To this question we now direct our attention.

The material facts are not in controversy.

The Maxams owned a residence property, in which they lived. They decided to sell it for an amount which would net them $14,000 indicating thereby that any broker’s commission must come out of any amount received for the property from a buyer over and beyond $14,000.00. The property was listed on this understanding with several real estate brokers (i. e., on “open listing”). One was Maschuk, the plaintiff, and another was Harry Kaplysh, who consummated the sale.

Kaplysh placed a “for sale” sign on the property with his local address as broker. The Peterses saw this sign, and called Kaplysh on the telephone in respect to it. No agreement was made at this time. Shortly thereafter, the plaintiff, Maschuk, through his agent, escorted the Peterses on an inspection of the house and premises. During this inspection, the agent stated to the Peterses that the price of the property was $14,750.00. It was not accepted by the Peterses and nothing was said to the owners in respect to a purchase. The Peterses, however, were interested in purchasing the property, subject to future financing, if it could be had for $14,500.00. As indicated above, this amount was not acceptable to the agent, and nothing was said to the owners in respect thereof.

At a later time, broker Kaplysh telephoned the Peterses, and in the course of this conversation the Peterses told Kaplysh that they had inspected the property and liked it. Kaplysh then told the Peterses that he could get the property for them for $14,500.00. A purchase agreement was thereupon executed by the sellers and the purchasers and financing was arranged through the agency of Kaplysh.

From the above statement of facts, we have in reality a controversy between two brokers, with the owners holding a stake in the controversy because they will not realize $14,000 net for their property if the court was not in' error in finding that the plaintiff was the procuring cause of the sale.

The law is clear that, when brokers are involved, the one who negotiated the sale and whose services constituted the procuring cause thereof, is entitled to the commission, even though another broker had formerly submitted the property to the buyer. In the case before us, the plaintiff, Maschuk, although he secured a physical inspection of the property by the purchasers and interested them greatly in a desire to own it, at no time induced them to buy at the price of $14,750.00 demanded by him. He at no time produced a purchaser who was ready, willing and able to buy on the terms which he, as agent, demanded, so that he could secure $14,000 net to the owners and a commission of $750.00 for himself. He failed to find or produce upon the terms prescribed in his employment, out of which he could secure a commission satisfactory to himself.

It is our conclusion that the facts of this case require us to say that, as a matter of law, the plaintiff was not the procuring cause of this sale, and, as a consequence thereof, a judgment in his favor was erroneous.

The judgment will be reversed and final judgment will be entered for the appellant.

HUNSICKER and GRIFFITH, JJ, concur.


text:
    BARKER FURNACE CO., Plaintiff-Appellee, v. LAMBERT, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2263.
    Decided December 2, 1953.
    Curtner, Brenton & O’Hara, Dayton, By Mr. Lloyd H. O’Hara, Of Counsel, for plaintiff-appellee.
    A. W. Schulman, Dayton, for defendant-appellant.
   OPINION

By MILLER, J.:

This case comes into this Court upon an appeal on questions of law from the judgment of the Municipal Court of the City of Dayton, Ohio. The parties will be referred to as they appeared in the trial court.

The record reveals that the action was one for balance due upon the purchase price of a furnace installed in the home of the defendant. The defendant filed an answer admitting the amount alleged in the petition was due but also filed a counterclaim for damages resulting to his home alleging negligence on the part of plaintiff, that while cleaning the furnace pipes in accordance with the contract the work was performed so unskillfully and so negligently as to cause soot and dirt to collect on the walls, floors, draperies, etc., to such a degree that the defendant was forced to repaint the interior of the house and have the draperies and rugs cleaned, all to the defendant’s damage in the sum of $319.00.

The case was tried to the court which found for the plaintiff on the petition for the amount alleged to be due and against the defendant on the counterclaim for damages. A separate finding of law and fact was requested and in response thereto the court made the following finding:

“The Court finds that at the defendant’s request the plaintiff did install a new furnace and clean the air pipes and ducts at the agreed price of $469.60.
“On the counter-claim the Court finds that the plaintiff cleaned the air pipes and ducts according to methods customarily used in the trade and also that defendant failed to establish any negligence in the performance of the contract.”

It is first urged that the judgment is against the manifest weight of the evidence with reference to the defendant’s counterclaim for damages. We have carefully examined the bill of exceptions and find that there was a conflict in the testimony on all of the factual issues presented; hence we cannot say that the court erred as alleged in this assignment.

It is next urged that the Court erred in its finding of fact, to-wit, that that the defendant failed to establish any negligence by the plaintiff in the performance of the contract. It is urged that damages were proven and under the doctrine of res ipsa loquitur negligence was established which required proof on the part of the plaintiff showing that due care was exercised in the performance of the work; that the court erred as a matter of law by employing the wrong method to determine the liability of the plaintiff on the cross-petition. The record discloses that some dirt, dust and soot were deposited throughout the house as a result of the blowing out of the air ducts leading to the furnace. Hence, there was some damage, and since the instrumentality causing the same was under the sole control of the plaintiff it may well be argued that the doctrine of res ipsa loquitur has application. The plaintiff denies the instrumentality causing dirt was under its exclusive control, but we think the record does not support it on this proposition. The question therefore presented is whether the proof of facts calling for the application of the doctrine is prima facie proof of negligence. Some of the earlier cases decided by our Supreme Court support this conclusion but the more recent ones hold that it only warrants an inference of negligence. In 29 O. Jur. 636, Section 156, the author says:

“Res ipsa loquitur means that the facts of the occurrence warrant an inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence, where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, and not by the court. All that the rule of res ipsa loquitur means is that the circumstances involved in or connected with an accident may be of such unusual character as to justify, in the absence of any other evidence bearing upon the subject, the inference that the accident was due to the negligence of the one having possession or control of the article or thing which caused the injury, because, in the absence of explanation, this is the only fair and reasonable conclusion.”

The rule is also clearly stated in Weller v. Worstall, 129 Oh St 596, at page 600, wherein Zimmerman, J, says:

“That doctrine is a rule of evidence peculiar to the law of negligence, and amounts to a qualification of the general rule that negligence is never presumed but must be affirmatively proved. Briefly stated, the doctrine is that where the instrumentality or thing which caused the injury complained of is shown to be under the management and control of a defendant, and the accident is such as in the ordinary course of events does not happen if proper management and control is exercised, it affords reasonable evidence, in the absence of explanation by such defendant, that the accident arose from want of care, and permits the inference of negligence. 29 O. Jur. 631, Sec. 153 et seq., citing Ohio cases; 20 Ruling Case Law. 185, Section 156; 45 Corpus Juris, 1193, Section 768, et seq. It is founded on an absence of specific proof of acts or omissions constituting negligence.
“The Supreme Court of the United States said in Sweeney v. Erving, 228 U. S. 233, 240, 33 S. Ct., 416, 418, 57 L. Ed., 815, 819, Ann. Cas., 1914D, 905, 907: ‘In our opinion, res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal; not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Res ipsa loquitur, where it applies, does not convert the defendant’s general issue into an affirmative defense. When all the evidence is in, the question for the jury is, whether the preponderance is with the plaintiff.’ And see the definition contained in Graham v. Badger, 164 Mass., 42, 41 N. E„ 61.
While the doctrine does not require that negligence must be inferred from the mere occurrence of an accident, if the accident and the circumstances under which it took place give ground for a reasonable inference that if due care had been exercised the thing that happened amiss would not have happened, the law says ‘res ipsa loquitur’. Wardman v. Hanlon, 280 F., 988, 52 App. Cas. (D.C.), 14, 26 A.L.R. 1249.”

See also, the following most recent cases supporting the rule: Collins v. McClure, 143 Oh St 569; Fink v. New York Central Rd. Co., 144 Oh St 1; Renneckar v. Canton Terminal Restaurant, 148 Oh St 119; Kaltenbach v. Cleveland, C. & C. Highway, 82 Oh Ap 10.

It is, therefore, our conclusion that upon proof of facts calling for the application of the doctrine the court did not err in finding the plaintiff not guilty of neglgence as a matter of law.

We find no error in the record, and the judgment will be affirmed.

WISEMAN, PJ, and HORNBECK, J, concur.


author: By STEVENS, J:

text:
    MACEY, Admr., Plaintiff-Appellee, v. DUDAS, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County
    No. 23121.
    Decided June 2, 1954.
    Sanford W. Likover, Cleveland, for plaintiff-appellee.
    Gail M. Halley, Cleveland, for defendant-appellant.
    (DOYLE, PJ, STEVENS, J, HUNSICKER, J, of the Ninth District sitting by designation in the Eighth Appellate District.
   OPINION

By STEVENS, J:

John A. Macey was, on February 19, 1953, duly appointed administrator of the estate of John Mezei, deceased, by the Probate Court of Cuyahoga County.

As such administrator, he filed an action for a declaratory judgment against Vincent Dudas, wherein he requested that Dudas be required “to state his claim, if any, in this court,” to certain personal property stored at the National Terminals Co. warehouse at 1200 West Ninth Street, Cleveland, Ohio.

Dudas filed an answer wherein he disclaimed any ownership in the property, but alleged that the rightful owner of the property was not the decedent; and a cross-petition, wherein he alleged that the administrator had taken control of said property, although knowing the identity of the rightful owner, and now claimed the property as property of the estate.

Upon hearing on May 26, 1953, the Probate Court found that Dudas had no interest in said personal property, and barred him of any rights therein.

A demurrer was interposed to his cross-petition which was sustained by the Probate Court, the cross-petition was dismissed and the administrator was ordered to proceed with the inventory and appraisement of said estate according to law.

Thereafter, certain applications were filed by Anna Varga, which are of no importance in the matter now being considered.

Sometime between August and October 17, 1953, Dudas went to the warehouse where the personal property was stored under lock placed thereon by the administrator; removed the lock, placed thereon another lock to which he had the key, and posted a scurrilous notice on the door leading to the leased space.

On October 17,1953, the attorney for the administrator visited the leased space, found the notice and the new lock, removed both and placed the administrator’s lock thereon.

He then filed a motion to show cause in contempt against Dudas.

After hearing, the Probate Court found Dudas guilty of contempt.

It is from that finding that this appeal on questions of law has been prosecuted to this court.

There are four assignments of error presented by appellant Dudas, all being based upon appellant’s assertion that appellee, being the administrator of a decedent’s estate is not an officer of the Probate Court, and hence that any interference with the administrator does not constitute a contempt of court.

It is conceded that appellant had personal knowledge that appellee was the administrator of the estate of decedent, appointed by the Probate Court of Cuyahoga County, and that he likewise knew of the court’s order in the declaratory judgment action, wherein it was determined that he had no interest in the personal property in question, and the administrator was ordered to proceed with the administration according to law.

It is further conceded that Dudas removed the administrator’s lock from the door of the room where the property was located, and substituted therefor another, and that he posted the notice on the door. This, however, is claimed to have been done as agent for the true owner of said personal property.

We are unable to agree with appellant’s contention that the duly appointed administrator of a decedent’s estate is not an officer of the Probate Court which appointed him. On the contrary we hold that he is an officer of the Probate Court, and that his possession of a decedent’s personal property is the possession of the court.

18 O Jur, Executors and Administrators, Sec 2, P 38.

Byers Admr. v. McAuley, et al 149 U. S. 608 37 L. Ed. 867 paragraph 2 of syllabus.

Barriellee v. Bettman 199 Fed. 838 at page 842.

Beacon Mutual Indemnity Co. v. Stalder, Admr., case No. 4438 Summit County, Court of Appeals, decided on April 21, 1954. 95 Oh Ap 441.

One who knowingly takes possession of personal property while it is in possession of an administrator, and who actually or constructively deprives the administrator of possession thereof, knowing that the administrator has been ordered by the Probate Court to inventory and appraise the property according to law, is guilty of a contempt of the Probate Court, under the provisions of Sec. 2705.02 R. C.

We have considered the several assignments of error and find no prejudicial error shown by this record.

The judgment will be affirmed. Exceptions. Order see journal.

DOYLE, PJ, HUNSICKER, J, concur.


author: By STEVENS, J;

text:
    UNION & LEAGUE OF ROMANIAN SOCIETIES OF AMERICA, INC., et, Appellees, v. COTOFAN et, Appellants. UNITED ROMANIAN SOCIETY CARPATINA, Appellant, v. UNION & LEAGUE OF ROMANIAN SOCIETIES OF AMERICA, INC. et, Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23211.
    Decided August 17, 1954.

      Richard H. Woods, Cleveland, S. S. Fekett, George Dobrea and Joseph J. Craciun, Warren, for appellees.
    Lockwood Thompson, Cleveland, and John R. Vintilla, Cleveland, for appellants.
    DOYLE, PJ, STEVENS, J, HUNSICKER, J, of the Ninth District sitting by designation in the Eighth Appellate District.
   OPINION

By STEVENS, J;

This is an appeal on questions of law and fact from a judgment of the Court of Common Pleas of Cuyahoga County, in favor of The Union & League of Romanian Societies of America, Inc., et al.

The two cases above captioned were consolidated below, and are here presented as one appeal.

The first action captioned above seeks an accounting and restitution of the funds and property of United Romanian Society Carpatina, alleged to be in the possession of appellants, and that such appellants be restrained from holding themselves out, or acting, as duly constituted officers of the Society; that the duly elected officers of the Society be declared to be such, and allowed to have possession of the Society premises for the purpose of holding the Society’s regular annual election.

The second above captioned action seeks the reinstatement of the excluded and passive officers of the Society to full membership in the Union, and a declaratory judgment as to the validity of the loyalty affidavit hereinafter mentioned.

Appellee Union & League of Romanian Societies of America, Inc., is a fraternal benefit association, chartered under the laws of Ohio as also is its subordinate society, United Romanian Society Carpatina.

At the Union Convention held at Youngstown, Ohio, in September, 1948, a resolution authorizing the use of a loyalty affidavit was unanimously approved and adopted — which, translated, is substantially as follows:

“The officers of the Union & League and officers of the societies which compose the Union & League shall be obligated to sign a declaration through which they state that they are not Communists; that they do not belong to any subversive organization which works against the Constitution and Laws of the United States of America.”

It was then by unanimous vote resolved that the Union & League should print the forms of the declaration.

Article VII of the 1939 bylaws of the Union & League R. S. A., Inc., provided:

“Section 3. The regular convention shall be the legislative and governing body of the U. <5z L. R. S. A., Inc., and is vested with full power and authority to make, alter, repeal or amend the Constitution, Bylaws, and all laws, rules and regulations for the government, management, discipline and control of the Organization, or of any member society. When in session it shall possess jurisdiction over all member societies and shall have power to enforce the laws, rules and regulations enacted by the said convention or any regulation or order made by the Executive Committee; it shall decide upon and punish by penalty, fine, passivity or expulsion, those found guilty of violating the constitution, bylaws or insurance laws; and it shall have the power to do and perform any and all other acts and things by it deemed essential to the welfare and perpetuity of the Organization. When the convention is not in session said supreme authority shall be vested in and exercised by the Executive Committee except where otherwise provided in this Constitution and Bylaws.”

Article VI provided;

“Section 1. The Executive Committee shall consist of the President, First Vice-President, Second Vice-President, Secretary, two Auditors and seven Trustees, elected by the regular convention. The Executive Committee is the forum which supervises the affairs and the regular proceedings of the organization from one term to another of the regular conventions.”
“Section 3. The Executive Committee shall have the following duties: # * *
“(d) Receive and consider all the appeals and claims of the members and of the member societies and resolve them in conformity with the provisions specified in the constitution and bylaws.”

Article IV provided:

“Section 6. The active members of the member societies who fulfill all the requirements of the constitution and bylaws, shall have the right to be elected to any office of the member society or to the central organization, excepting where the constitution and bylaws otherwise provide.
“The following are not eligible to be elected to office:
“(a) Those sentenced to prison for major crimes.
“(b) Those who are found guilty of moral turpitude, and who have caused the member societies or the central organization any moral and material losses.
“ (c) Those under indictment or accusation by any forum of the Member Societies or of the Central Organization.”

We are not here concerned with the form of the loyalty affidavit prior to the modification of 1951, nor are the first three sections of the 1951 affidavit, prepared and promulgated by the executive committee, under attack: it is the last three paragraphs of the 1951 affidavit which give rise to controversy under consideration. Those sections follow:

“4. I have not been sentenced to prison for a crime nor have I been found guilty of moral turpitude nor have I caused the member societies or the central organization any moral and material loss.
“5. I have not ever been found guilty of mishandling or misappropriating public funds of any social, fraternal or religious organization.
“6. I am not now a suspended or passive (inactive) member of the Union and League of Romanian Societies of America.”

The officers of the Society Carpatina did not sign the new affidavit but instead executed the old form of affidavit, and sent it to the Union & League R. S. A. The Union in turn, by letter advised Carpatina that it could not approve the local officers of Carpatina, and requested Carpatina to send one or two delegates to a meeting of the executive committee of the Union to be held on March 8, 1952.

As a result of that executive committee meeting, the executive committee refused to approve the officers of Carpatina who had been elected in December, 1951, and suspended Carpatina until the national convention to be held at Lorain, Ohio, in September, 1952.

At the national convention in Lorain, the convention set up a grievance committee, to which was submitted charges, drawn up by the national president of the Union against the twenty-five officers of the Society Car-patina, involving their failure and refusal to sign the amended loyalty affidavit.

In the absence of the officers of Carpatina, who, because of their society’s suspension, were permitted no voice in the convention the grievance committee recommended suspension or expulsion of all of them. The national convention approved the recommendation of the grievance committee, arid placed “in passivity” twenty-four officers of Carpatina, and expelled one.

That is the order which gives rise to both of these actions.

We hold, under the provisions of the constitution and bylaws of the Union above set forth, as follows:

1. That the executive committee had ample authority to prepare, promulgate, and require to be signed, the loyalty affidavit of 1951.

2. That the failure of the officers of Carpatina to sign and forward the affidavit in question, as required, justified the suspension imposed on Car-patina by the executive committee.

3. That the action of the convention in creating, and submitting to a grievance committee, the charges preferred against the officers of Carpatina, was entirely within the constitutional authority of the convention.

4. That because of the suspension of Carpatina, its officers were not permitted to participate in the convention at Lorain, which was as provided in the constitution and bylaws of the Union.

5. That the action of the convention in placing twenty-four of said officers “in passivity” and expelling one, was within the constitutional authority of the convention, and the punishment within the limits fixed by the constitution.

As a result of the foregoing conclusions, we hold that plaintiff, Union & League, etc., is entitled to the relief which it seeks; that United Society Carpatina and its officers are not entitled to the relief which they seek, and that their petition should be dismissed.

A decree may be prepared carrying into effect the foregoing orders. Appellants shall pay the costs of these proceedings.

DOYLE, PJ, and HUNSICKER, J, concur.


author: By HORNBECK, J.:

text:
    THOMAS, Plaintiff-Appellee, v. McDANIEL et, Defendants-Appellants.
    Ohio Appeals, Second District, Fayette County.
    No. 273.
    Decided October 30, 1954.

      Reed M. Winegardner, Washington, C. H., and Oliver H. Roth, Columbus, for plaintiff-appellee.
    Omar A. Schwart, Washington C. H„ for defendants-appellants.
   OPINION

By HORNBECK, J.:

Defendants appeal from a judgment against them and in favor of plaintiff in the sum of $675.00 with costs, for balance found to be due on a contract wherein defendants agreed to pay plaintiff as a real estate broker a 5% commission of the purchase price of certain real estate which they had agreed to buy and to close the transaction in not more than 40 days from the signing of the contract if their offer was accepted. The contract was dated April 3, 1951.

On May 13, 1951 defendants wrote to plaintiff stating their inability to complete the contract and consenting to the retention of $500.00 by the plaintiff which had been deposited with him by them. The second paragraph of this letter read:

“It was fully understood by you and the seller that we could not fulfill this contract until we sold our home.”

The petition set out the contract, performance by the plaintiff and breach by defendants. Defendants answered admitting that they had entered into a written contract with plaintiff whereby they agreed to purchase, through her as agent, the property described in the petition for a consideration of $23,500.00 and denied generally all of the other averments of the petition.

The cause was tried to a judge without a jury.

Plaintiff introduced her license to engage in real estate business, the contract sued upon its acceptance by the sellers the letter above mentioned, and testified to its receipt, made some computation of the total amount which was due under the contract on the total purchase price, the credit of the $500.00 deposit and rested.

On cross-examination plaintiff was asked if the following statement was not true:

“It was fully understood by you and the seller that we could not fufill this contract until we sold our home.”

Plaintiff’s objection to the question was sustained and exception to the ruling noted. This action of the Court is the subject of the first error assigned.

At the conclusion of plaintiff’s case defendants elected to offer no evidence on their behalf. Plaintiff moved for judgment as did defendants. Judgment was entered for plaintiff. This action of the Court is the subject of the second error assigned.

The Court in a written decision finding for the plaintiff sustaining the objection to the question heretofore stated, put to the plaintiff said that the defendants were attempting to prove an affirmative defense on cross-examination which could not be done. The case of Pomfrey v. Prudential Insurance Company, 16 Oh Ap 75, is cited which supports the proposition that an affirmative defense or a defense by way of avoidance cannot be introduced by defendant on cross-examination of plaintiff’s witness.

Upon the answer there was no affirmative defense asserted. It was a general denial of the controlling paragraphs of the written agreement between the parties. So that, the ruling of the Court was to all intents and purposes a refusal to accept the testimony because, to be consistent, it could not have been received if offered by the defendants had they later profferec it in their behalf. It was probative only of an affirmative defense which was not pleaded. The defendants did not choose to further pursue their right to the testimony.

We believe the Court did not err in its ruling for another reason. The evidence sought to be offered was a violation of the parol evidence rule. It was completely at variance with that provision of the contract that defendants. if a purchaser was secured at the price fixed, would not later than 40 days after the signing of the contract perform their part of the contract. The contract contained no other qualifications or conditions and the testimony offered would have added a qualification and a condition relieving defendants from their agreed obligation.

“The parol evidence rule operated to exclude evidence offered to show what the parties to a written contract understood or intended by it, at least when such understanding or intention clearly contradicts the terms of the contract 17 O. Jur. 517, citing Barton v. Morris, 15 Ohio 408; Johnson v. Pierce, 16 Oh St 472, and many other cases.
“Parol evidence cannot be admitted to show the intention of the parties to a lease which is unambiguous and unequivocal.”

Appellants cite Martin v. Elden; 32 Oh St 282, Wilson v. Wagar, 26 Mich. 452; Hanoff v. State, 37 Oh St 178 and 42 O. Jur., 342, Sec. 338, all of which are authority that cross-examination should be permitted as to any subject which could properly have been pursued in chief. The citations are not applicable to the situation here. The letter which plaintiff introduced was to show an admission of defendants against interest, viz, that they would not perform their part of the contract. The part sought to be introduced by defendants was self serving and in contravention of the parol evidence rule.

Appellant cites 17 O. Jur. 500, to the effect that conditions precedent may be shown which prevent a contract coming into existence. This is true but no issue was brought into this case, as in Martin, Trustee v. Steinke, 22 Oh Ap 146, also cited by appellant. Appellant admitted the execution of the contract.

Upon the admissible evidence and the pleadings the trial judge committed no error in' finding for plaintiff and entering judgment accordingly.

The judgment will be affirmed.

WISEMAN and MILLER, JJ, concur.


author: By THE COURT.

text:
    SPITLER, Plaintiff-Appellee, v. MONTGOMERY WARD & COMPANY, INC., Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5071.
    Decided May 24, 1954.
    Donald S. McNamara and Keith McNamara, Columbus, for plaintiff-appellee.
    Vorys, Sater, Seymour & Pease, James O. Seymour, of Counsel, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This is a law appeal from the judgment of the Common Pleas Court rendered in favor of the plaintiff-appellee upon the verdict of a jury. The action was one for damages for personal injuries received by the plaintiff as the result of her slipping and falling on the waxed floor maintained by the defendant.

The fourth amended petition charges the defendant with the following acts of negligence:

1. Defendant so waxed or polished its floor so as to allow it to become slippery in spots and not uniform in its entirety.

2. Defendant negligently selected and applied a substance on its floor that prevented the floor from having a uniform surface.

The defendant’s answer admitted that the plaintiff fell as alleged in the petition, but denied all other allegations.

The first and second errors assigned urge that the Court should have sustained the defendant’s motion for a directed verdict at the close of all the evidence and also its motion for a judgment notwithstanding the verdict. This'Court has previously determined that the petition stated a good cause of action. See Spitler v. Montgomery Ward, 60 Abs 508, and the cases therein cited. The question now presented is whether the evidence is sufficient to support the same.

We have examined the entire record and are of the opinion that the evidence offered on behalf of the plaintiff, when viewed in its most favorable light, was sufficient to establish a prima facie case. This evidence was to the effect that the surface of the floor was not uniform and it was spotty and that in some places it was rough and in others it was glossy and waxy. The plaintiff testified that where she fell there was a skid mark from her foot “where the wax had rolled up and there was some of it on my shoe, on my heel”. In answer to certain interrogatories the defendant stated that Myco-Gloss had been applied to the floor twenty-two days before the plaintiff’s alleged injury; that after the same had been applied it was gone over with a buffer. After testifying that on the day in question she was a customer in the defendant’s store and had taken the elevator to the third floor and after taking four or five steps when she slipped and fell, the plaintiff testified further concerning the condition of the floor:

“Q. In other words, you pitched forward? A. Yes.
Q. Could you feel the floor? A. Yes, I could feel the floor and I could then feel that it wasn’t level, that wherever the high spots, it wasn’t near polished as the other parts.
Q. In other words you could feel a difference with your hands. A. Yes, I could.
Q. What happened to you after you fell, did you get up or just what happened? A. No, I had two of the men from the furniture department help me into this glider,
Q. That is the glider right close to where you fell. A. That’s right, on the east side of that wall or that archway and one of them handed me my purse.
Q. Did you sit in the glider then a few minutes? A. Yes.
Q. From the glider could you see the area from which you fell, where you had been walking? A. Yes, there were dull spots and light spots, from where I sat.
Q. You could see spots that looked dull and spots that looked what? A. It looked more glossy, the other was dark spots and the other seemed lighter.
Q. And about how long were you there? A. Oh, I imagine about ten minutes.
Q. From where you fell, could you see any mark to where you fell? A. Yes, there was a skidmark from my foot where the wax had rolled up and there was also some of it on my shoe, on my heel.
Q. Do you know about now long a mark that would have been, I mean could you just indicate? A. About 18 or 20 inches (indicating) would that be about right?
Q. Commenting on the heel, will you describe what kind of heel you were wearing or heels? A. I never wear anything but a Cuban, this type of heel, I would say an inch and a half or an inch and three-quarters.
Q. Now, yesterday you made a statement in answer to a question that when your hands were on the floor you felt a difference, now, you explain what you meant by that. A. Well, I felt that there were rough spots in places and glossier in the others, and as I. after I got up and they sat me in the glider, I looked around and I also noticed that there were dull spots and waxy spots in other places.
Q. Now, when you speak of glossy spots could you see or feel as to what made it glossy? A. Yes, it was waxy, that is, you could feel when you wax your floors between where there is wax and there isn’t any wax.
Q. Now do you recall whether or not there was any difference in the actual composition of the floor, by that I mean— A. It didn’t seem level, it seemed like where it was waxier, it was higher, as I put my hand down, my right hand down.
Q. I meant as far as composition was concerned, was it primarily all of the floor covering of the same substance? A. Material, yes.”

We think that this evidence tends to establish that the floor in the defendant’s store was not uniform as to its surface in that an entirely different condition existed at the place where the plaintiff slipped and fell. In other words, that at this place there was a waxy spot and from the evidence an inference may be drawn that the wax on the floor at this particular spot had not been rubbed down or polished, thus presenting a condition or changed condition from that which existed on the other parts of the floor where the plaintiff had been walking.

We therefore conclude that the Court did not err in overruling the two motions for a judgment for the defendant.

It is next urged that the Court erred in refusing to permit the defendant to offer testimony to the effect that Myco-Gloss was used generally by store owners in the treatment and care of asphalt tile floors similar to the one involved in this case. This evidence, although not conclusive or controlling, should have been admitted. In Witherspoon v. Haft, 157 Oh St 474, the rule applicable to such a situation is set forth in the first syllabus as follows:

“Customary conduct or methods do not always furnish a test which is conclusive or controlling on the question of negligence or fix a standard by which negligence is to be gauged, but conformity thereto is a circumstance to be weighed and considered with other circumstances in determining whether or not ordinary care has been exercised.”

The rejected evidence was particularly material for the reason that the petition alleged that the defendant was negligent in the selection of the substance used on the floor. The plaintiff claims that the rejected testimony was merely repetitious because the same witness had previously testified that “this material is used in a wide variety of stores * * We cannot agree with the appellee on the conclusion that such statement precluded the offering of further testimony on this question. The testimony rejected was admissable and the Court committed error in refusing to allow the same.

It is next urged that the Court erred in giving the following written 'instruction to the jury before argument:

“The Court instructs you, members of the jury, that the plaintiff may recover damages for the injuries, if any, that she sustained from slipping and falling in the defendant’s store, if you find that these injuries were caused by the negligence of the defendant in permitting its floor to be in an unusual and dangerous condition by reason ol the fact that it was not uniform as to its surface, in that it was slippery in spots only.”

The appellant is contending that the instruction was erroneous for the reason that it assumed the existence of certain facts which were in issue and did not require the jury to pass on the same. Our interpretation of the instruction is in accord with that of the appellant. We think that it assumed that the defendant was negligent; that the defendant permitted its floor to be in an unusual and dangerous condition, and that the same was not uniform in its surface and that it was slippery in spots only. Our attention is called to the case of Plotkin v. Meeks, 131 Oh St 493, wherein the following charge was held to be improper:

“If you find from the evidence that the negligence of the plaintiff either directly caused or directly contributed in the slightest degree to cause the injuries of which she complains, your verdict must be for the defendr ant.”

The conclusion of the Court is found on page 497 wherein it said:

“We are of the opinion, however, that the trial court rightly refused to specially charge as requested, and that the Court of Appeals, speaking through Hamilton, J., correctly held the charge improper on the ground that it ‘does not leave to the jury the right to determine whether or not the plaintiff was guilty of contributory negligence, but assumes that, and on the assumption charges that if the jury found the negligence of the plaintiff directly caused or contributed to cause the injuries, the verdict should be for the defendant.’ In other words, the requested charge is based on the assumption that plaintiff was guilty of negligence and takes the determination of that fact from the jury, submitting to it only the question of proximate cause.”

In the case at bar the charge appears to be even more damaging than in the cited case, for it not only assumes the negligence of the defendant, but also assumes that the floors were in “an unusual and dangerous condition”: that it was “not uniform as to its surface” and that “it was slippery in spots only”. The appellee urges that the words “if you find” mean that before the jury can award damages to the plaintiff they must And that the plaintiff was injured as a result of the negligence of the defendant in the particulars charged; in other words, that the jury has three things to determine:

(1) Whether the defendant was negligent in the particulars charged; (2) whether such negligence was the proximate cause of the plaintiff’s injuries, if any; and (3) the extent of plaintiff’s damages. We are unable to place such an interpretation on the instruction. The fact that another special charge was given which instructed the jury that a verdict could be returned for the plaintiff only if it found that the defendant failed to exercise ordinary care to maintain its premises in a reasonably safe condition, does not detract from the wrong in giving the improper charge as contended by the appellee. We are of the opinion that the instruction was erroneous and highly prejudicial. See, also, Monsey v. Cincinnati St. Ry. Co. 86 Oh Ap 61. The appellee cites the case of Rodenfels v. Great Eastern Stages, Inc., 30 Abs 43, which we think is distinguishable on the facts from the case at bar.

The two issue rule urged by the plaintiff cannot be applied for the reason that, as we view it, there was only one issue in the case, to wit: was the floor of the defendant in a dangerous and unsafe condition? The manner in which it became in such condition is merely evidence But even conceding for the sake of argument that there were two issues, there was error as to both. The error in giving instruction No. 1 goes to the first specification of negligence, and the error in refusing to permit testimony showing the general use of Myco-Gloss would relate to the second specification of negligence set forth in the petition.

The judgment will be reversed and cause remanded.

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