author: By GUERNSEY, J.

text:
    WINDSOR et, Plaintiffs-Appellee, v. LANE DEVELOPMENT CO. et, Defendants-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5860.
    Decided December 8, 1958.

      Carlisle O. Dolling, Thomas W. Maxson, for plaintiffs-appellee.
    Saxbe, Boyd & Prine, for defendants-appellant.
    (GRIFFITH, J, of the Seventh District, YOUNGER and GUERNSEY, JJ, of the Third District, sitting by designation in the Tenth District.)
   OPINION

By GUERNSEY, J.

Prior to June 28, 1950, defendant, The Lane Development Company, a corporation and appellant herein, owned the center portion of a fourteen acre tract of land which is bounded on the north by Lane Ave., and in conjunction with the owners of the balance of the tract had developed same as a modern shopping center, complete with store buildings, parking areas, and with drives which provided ingress and egress at several points on Lane Avenue. Prior to said date and prior to April 17, 1924, the fourteen acres were bounded on the west, south and east by the corporate limits of the City of Upper Arlington, but lay outside of the corporation. On April 17, 1924, there was recorded in the office of the Recorder of Franklin County, a duly dedicated and accepted plat of the University Addition to the City of Upper Arlington. Included within the bounds of the plat was a duly dedicated street named Berkshire Road, which, in this area, constitutes the first street south of and parallel to Lane Avenue. On the north side of and abutting Berkshire Road was platted a single row of lots, each of approximately the same frontage and depth, interrupted at a point about half, way from east to west by a tract of land designated “Reserve B” of the same depth as the lots. Reserve B, however, has a frontage on Berkshire Road of fifty feet, whereas the platted lots each have a frontage of at least sixty feet. Reserve B is located so as to constitute a northerly extension of Harford Road, if extended, the said Road, as platted and as existing, being fifty feet in width and perpendicular to, and terminating at its intersection with Berkshire Road. The northerly boundary of five of the lots was common with the corporation line and a portion of the south boundary of the fourteen acre tract. A tract of land designated “Reserve D” was platted between the balance of the south boundary of the fourteen acre tract and the north boundary of fifteen other lots and Reserve B. The only descriptive language on the plat pertaining to the two reserves was that “the ‘reserves’ are for such use as shall be hereafter determined.”

On September 14, 1927, a zoning ordinance was adopted by the then Village of Upper Arlington which, among other things, classified “any and all parts of the said Village, and all lots and lands lying therein,” not otherwise classified, as “Class I or Single House Districts.” It is stipulated that this ordinance, as amended constitutes the zoning ordinance of the City of Upper Arlington effective at the time of this action.

On June 28, 1950, defendant acquired title to the land included in Reserve B together with that portion of the land included in Reserve D lying directly north of and contiguous to the north boundary of Reserve B and south of and contiguous to the south boundary of the fourteen acre tract, Reserve B measuring fifty feet, east and west, by 138.5 feet, north and south, and the portion of Reserve D measuring fifty feet, east and west, by 66.24 feet, north and south. The President of defendant corporation testified (R. 62) that the corporation bought Reserve B and the portion of Reserve D “to provide ingress and egress and a better safety position from a traffic standpoint” “from any place to Lane Shopping Center.”

Although the date is not in evidence, after the shopping center was constructed and its use established, the fourteen acre tract of land, together with other land, was annexed to the City of Upper Arlington, and under the terms of the zoning ordinance became zoned, by virtue of such annexation, as a “Class I of Single Family House District,” and its use for commercial purposes has continued as a non-conforming use.

After annexation, on July 5, 1957, defendant applied for and received from the City Building Inspector a permit to cut the curb, with no length of cut specified, in front of Reserve B along the north edge of the paved constructed portion of Berkshire Road. Defendant then cut the curb and constructed a paved driveway, approximately thirty-seven feet wide, extending from the north edge of the paved portion of Berkshire Road to the paved parking and driveway area of the shopping center located on the fourteen acre tract. Defendant has at no time dedicated said driveway as a public street and has retained ownership and control of same to date. Following completion of the driveway vehicles, in increasing numbers, used the driveway as a means of ingress and egress to and from that part of the fourteen acre tract owned by defendant, and, it is stipulated, at least a portion of said use of the driveway “was for the purpose of conducting business with the merchants located in the Lane Shopping Center.”

Plaintiffs, owners of property neighboring or adjacent to Reserves B and D, filed a suit in the Common Pleas Court to permanently enjoin the defendant from “using Reserve ‘B’ and Reserve ‘D’ as a driveway or street.” It is undisputed in evidence that the continued use of the driveway as a means of ingress to and egress from the Lane Shopping Center will cause plaintiffs damage by reducing the market value of their respective properties, the greatest reduction occurring to those properties adjacent to the driveway and the reduction decreasing as the distance to the affected property increases.

The lower court permanently enjoined the defendant from “using the wide driveway or street on Reserves ‘B’ and ‘D’ of the University Addition of the City of Upper Arlington for purposes of trade, so long as Ordinance 219 as now enacted, remains in full force and effect.” From said judgment an appeal on questions of law and fact was taken to this Court and the cause was heard de novo.

It appears that the zoning ordinance of Upper Arlington, including all amendments thereto, is voluminous but the parties have agreed in the pleadings to part thereof and have stipulated as to other portions. We will not consider any part of the ordinance which does not thus appear in the record.

Defendant makes various contentions for the refusal of injunctive relief, each of which we will consider and dispose of.

1. Defendant first contends that the zoning ordinance violates Sections 1 and 16, Article 1, Ohio Constitution, because “it prohibits all driveways and many other necessary and reasonable uses” and thereby is an unreasonable exercise of the police power having no relation to the public welfare.

To the extent pertinent Sections 4 and 5 of the zoning. ordinance provide:

“Section 4. No building or other structure or premises shall be erected, altered or used in any district for any kind or class of trade, industry, residence or other purpose other than such as are specifically permitted in such district ...”
“Section 5. In Class I Districts single family dwelling houses only (with necessary proper and approved out buildings and fences) shall be permitted ...”

It is readily apparent from a reading of Section 5 that a private garage for a family is permitted to be constructed and used as an out building to a single family dwelling house in a Class I residential district. Its use necessarily encompasses the construction and use of a driveway for access thereto. We are of the opinion therefore that the ordinance does not prohibit the construction and use of a driveway for such purpose nor that it prohibits any other thing customarily incidental or subordinate to single family residential use of said premises.

If for no other reason, by reason of the basic rule that a zoning ordinance must be construed in favor of the free use of property, and in the absence of words specifically limiting or prohibiting the incidental or subordinate use, it follows that by inference, if not by words, a zoning ordinance permits all uses which are customarily incidental and subordinate to the principal use specifically authorized. Sec. 226 (18) c, Municipal Corporations, 62 C. J. S: 492. Defendant’s contention in this respect is therefore without merit.

2. Defendant’s second contention is that the zoning ordinance constitutes an unconstitutional taking of private property without compensation as by the language of Section 5b' Reserve B could not be used even for the construction of a residence.

Section 5b of the ordinance, to the extent pertinent, reads:

“In Class I Districts, no house shall be erected on any lot or parcel of land having less than seventy-five feet of frontage on the abutting street and containing less than nine thousand square feet * * *, provided that one single family dwelling may be erected on any numbered lot in any subdivision heretofore legally platted and now on record in the office of the County Recorder, having a frontage of not less than fifty feet and containing not less than seven thousand square feet. . .” (Emphasis added.)

Defendant claims that this constitutes an absolute prohibition of the construction of a home on Reserve B because it has only a fifty foot frontage, is not a numbered lot, and contains only 6,925 square feet, and that such prohibition, coupled with the fact that other sections of the zoning ordinance permit only residential use, effectively deprives the defendant of all use of Reserve B.

Only part of this ordinance is before this Court. We do not know, except for indefinite statements of counsel, that the ordinance as a whole contains no provision for the relief of cases of hardship. The evidence is that the defendant has. never applied for permission to construct a dwelling house on this parcel of land used by itself or in conjunction with that part of Reserve D owned by defendant, and therefore that defendant has never been denied permission. In the event that defendant were denied permission, and the ordinance had no provision for the relief of hardship, a proper court, if not granting other relief, might conclude that the operation of Section 5b would be unconstitutional under such circumstances. However, it would not necessarily follow that the other sections of the ordinance creating the residential classification would likewise be unconstitutional in their operation.

There being no refusal of a permit to construct a house, and the entire ordinance not being before this Court for its consideration, this Court cannot conclude that the operation of Sections 4, 5 and 5b is unconstitutional in the respect herein claimed by defendant.

3. Defendant next contends that the ordinance violates Section 19, Article I, Ohio Constitution, because it denies the right of ingress to and egress from defendant’s property without defendant receiving compensation therefor.

Most authorities cited by defendant in support of his contention are related to the situation where an abutting property owner was absolutely denied ingress and egress or the limitation on ingress and egress was so substantial as to constitute a taking. These cases, and defendant in its brief, recognize the principle that the legislature may, in the lawful exercise of police power, regulate the right of ingress and egress without compensation, so long as there is no denial of ingress and egress. In a case decided by the Supreme Court, in 1952, Northern Boiler Co. v. David, 157 Oh St 416, Judge Matthias stated in his opinion:

“An abutting owner, subject to municipal regulation, has the right to construct a driveway from his property for a necessary outlet into the traveled portion of the highway provided he does not unreasonably interfere with the public use of the street and provided further the construction is not forbidden by statute or ordinance. And even though a permit is required by statute to construct a driveway into a boulevard this does not mean that there can be an absolute denial to an abutting owner of a right to construct such driveway . . .
“The plaintiff, therefore, being the owner of property abutting on the street in question, has a right of access thereto including a right, if necessary, to cut the curb and construct a driveway to provide ingress and egress, subject to the reasonable and lawful regulations which may be presented by ordinance of the council . . .
* * * * *
“The plaintiff has an incorporeal hereditament consisting of a right of access which can be regulated only by the lawful exercise of the police power of the city. Such regulation must be provided by ordinance in which reasonable standards consistent with the needs of the public are established.” (Emphasis added.)

Although we do not claim that the law of Ohio is such as to permit the absolute denial of access under the police power we note that in the case of Wood v. City of Richmond, 138 S. E., 560, the Supreme Court of Appeals of Virginia in upholding a zoning ordinance, effected the denial to a filling station owner of the use of a driveway which he had constructed pursuant to a permit but in contravention of the zoning ordinance, and in considering the effect of the Constitution of Virginia and of Article 14, Sec. 1, Constitution of the United States said:

“While conceding the correctness of the proposition that an abutter h^s an easement in the public road which amounts to a property right, we are of the opinion that the exercise of this right is subordinate to the right of the municipality, derived by legislative authority, to so control the use of the streets as to promote the safety, comfort, health, and general welfare of the public.” (Emphasis added.)

The zoning ordinance before us does not purport to be an absolute denial of ingress and egress. Its effect is to limit ingress to and egress from property in a Class I residential zone to ingress and egress for single family dwelling purposes only. It is consistent with and promotes the safety, comfort, health and general welfare of the public to limit access to a street from lots zoned for residential use to the type of traffic incident only to such use. Streets in residential neighborhoods are ordinarily neither physically adequate to handle the volume of traffic generated by commercial use nor are they usually equipped with traffic controls sufficient to protect the general public against the hazards of such traffic. A limitation of use of a property cannot and does not prohibit ingress and egress for the purpose for which the property may be used, but of necessity prohibits ingress to and egress from the property for any purpose for which the property may not be used. Such regulation of ingress and egress in any residential neighborhood is a reasonable and lawful regulation no greater nor more serious in its application to property rights than is any zoning ordinance regulating the use of property, and constitutes a constitutional exercise of police power.

Prior to its purchase of Reserve B and part of Reserve D defendant had no right of ingress to and egress from its shopping center to Berkshire Road. Its acquisition of land which abutted Berkshire Road could not, under the circumstances of this ease, enlarge its rights. Defendant was protected in its constitutional right of ingress to and egress from the property so acquired for the purposes for which it was zoned, but did not thus acquire a constitutional, or any other right, of ingress to and egress from land used for a non-conforming commercial purpose over land zoned for a more restrictive use.

Defendant’s contention of uneonstitutionality in this respect is without merit.

4. Defendant contends that the zoning ordinance adopted in 1927 did not impose a residential classification on Reserve B for the reason that the subdividers of the University Addition, by their plat recorded in 1924, showed their intention that Reserve B was to constitute an extension of Harford Road, and thereby established a non-conforming use which excepted such land from the residential classification of the zoning ordinance.

In this contention defendant ignores the fact that Reserve D is so located on the plat as to be entirely inconsistent with use as the extension of any street, and since Reserve D lies between Reserve B and defendant’s shopping center it would serve to bar ingress and egress over Reserve B to and from the shopping center. Moreover, the statement on the plat that “the ‘reserves’ are for such use as shall be hereafter determined,” plainly expresses the intention of the subdividers that determination of use was to be postponed. This is entirely inconsistent with and bars the establishment in 1924 of a non-conforming use merely by the platting of the reserves, and the surveying and legal action taken in connection therewith. Nor did the subdividers or any of their successors in title, so far as appears in the record, ever take any other action between 1924 and 1927 to establish a non-conforming use on Reserve B.

As was determined by the Supreme Court in the case of Smith v. Juillerat, 161 Oh St 424, mere intention or contemplation of use is insufficient to establish a non-conforming use. In this case we have no evidence of any probative value either of intention of use or of actual use, existing or continuing at and after the time of the adoption of the zoning ordinance in 1927, on which defendant can ground his claim of non-conforming use.

Its contention of same is therefore 'without merit. ,

5. Defendant next contends that the mere use of Reserves B and D for ingress to and egress from defendant’s shopping center is not a use for trade, that ingress and egress in itself is not a use having any residential, commercial or industrial character.

On the facts of this case we cannot agree with defendant’s contention. It was stipulated by the parties that at least a portion of the use of the driveway “was for the purpose of conducting business with the merchants located in the Lane Shopping Center,” and the undisputed evidence was that from the time the driveway was opened cars were using the driveway in increasing volume. It can hardly be argued other than that defendant opened the driveway to provide easier and safer ingress to its store buildings and to thereby benefit a commercial use. The patronage of the business places would no doubt also be encouraged by the fact that the customers knew that once they had completed their shopping the reverse was also true, that for them there now existed increased ease and safety of egress.

There is no explicit authority in Ohio on the question of whether the use of driveway in the manner in which this was used would con-, stitute commercial use, but there is substantial sound authority in other states where it has been so held, and where such use was also held violative of restrictive deed covenants or zoning legislation.

An earlier case pertaining to the use of part of a lot, restricted by deed to residential use, is the case of Laughlin v. Wagner, 244 S. W., 475, decided by the Supreme Court of Tennessee in 1922. The Court said in its opinion:

“The decree, being reviewed, enjoins the defendants from making use of the Belvedere side of the lot as a means of ingress to the drug store and other buildings on the other lots, and from making any use whatever other than a means of ingress and egress to buildings used purely for residential purposes.
*****
“We think a fair interpretation of the restrictive clause in question would permit any use of the Belvedere side of the street which would be consistent with its use for residential purposes .only. The clause does not require that a dwelling house shall be erected on the lot, and it is not intended to prohibit all uses thereof unless the house is built. * * * On the other hand, whatever the character or form of the building, it would be permissible to use it for residential purposes, and if there be no building at all, it could be used for. purposes consistent with and incident to its use for residential purposes.
“From this interpretation it follows that the Belvedere side of this lot could not be made use of in such a way as that the manifest purpose would be to serve the business houses adjacent to it. For example, it could not be used as affording an intentional passageway or entrance into the business house. Any structure, whether strictly a house or not, such as a concrete driveway, which devotes the use of the property to the carrying on of a business, would be violative of this clause, but the use of the lot for decorative purposes,, such as flower beds or as a walkway on the lot itself, would not violate the manifest intent and purpose of this clause.
“In other words, any use of this lot which might be reasonably incident to its use for residential purposes is permissible, but it is not permissible to put the lot into service as an incident to the business houses on the adjacent portion of the lot.”

Another involving covenants in a deed restricting the use of a lot to residential use, decided by the Supreme Court of Errors of Connecticut in 1925, is the case of Mellitz v. Sunfield Co., 129 A., 228. The Court said in its opinion:

“. . . Defendant is conducting a store for the sale of automobile accessories on lot 2, and is using lots 2 and 3 for its gasoline station for the sale of gasoline, oil, and grease. Upon lot 1 defendant has constructed a crushed stone driveway which it uses in connection with its business conducted by it on lots 2 and 3 adjoining . . . which furnishes the only means of access from the north on Ellsworth street to its business, and the only means of egress for automobiles entering lot 3 from the south . . . The use defendant makes of Lot 1 makes .of it an integral and valuable part of its business. It was a use for a business, and not a residential purpose. If defendant had erected a store covering lot 2, and had made the approaches to the store across lot 1, and all deliveries to or from the store in its own trucks as well as it's patrons’ conveyances were from lot 1, could it be said that lot 1 was not used for business purposes because no building had been erected thereon? . . . We think the plaintiff was entitled to an injunction restraining the defendant from using lot 1 for any purpose other than that specified in the restriction contained in the conveyance . . .”

In Village of Great Neck Estates v. Bemak & Lehman, 128 Misc. Rep., 441, 218 N. Y. S., 359, and 228 N. Y. S., 917, affd. 162 N. E., 562, it appeared that defendant Schlosser was owner of a public garage situated entirely outside the village, that defendants Bemak were owners of, and occupied for a private residence property within the village zoned for residential use and abutting the rear of Schlosser’s garage, there being located on the residential property a private one car garage with driveway. Prior to the commencement of the action entrance was made in the rear of Schlosser’s garage and permission given him by Bemaks to use their driveway for the convenience -of Schlosser’s customers which driveway they thereafter used as an additional entrance for ingress and egress.

When the village sought to enjoin the use of the drive-way the trial court found for defendants which judgment was reversed by the Appellate Division of the Supreme Court. Upon appeal the Court of Appeals of New York by memorandum opinion affirmed judgment in favor of plaintiff and recited:

“The action was to restrain the defendants from using certain premises situated in a residence “C” district in the village of Great Neck Estates, and owned by the defendants Isaac J. and Josephine K. Bemak, for business purposes, in violation of the zoning ordinance of the village.” (Emphasis added.)

In the case of Town of Brookline v. Co-Ray Realty Co., 93 N. E. 2d. 581, the Supreme Judicial Court of Massachusetts held that the proposed use of land in a single residence district in the Town of Brookline as a rear yard and service entrance for an apartment house under the same ownership located on adjoining land in Boston would be violative of the Brookline zoning by-law, and the incidental presence of a lawn or shrubs, trees and flowers would not transform the rear yard and service entrance into the permitted use of a “park” or “ornamental grounds.”

In the case of City of Yonkers v. Rentways, Inc., 109 N. E. 2d, 597, the Court of Appeals of New York, cited the latter two cases, and allowed an injunction against the use of a lot in a district zoned for residential use as a means of ingress to and egress from the second story of a garage building located on an adjoining lot under the same ownership, stating in its opinion:

“The power to regulate ‘trades and industries’ obviously includes the power to regulate any part or portion of a trade or industry. And it can hardly be denied that the day in, day out moving of vehicles across private land from a public street to the shelter of a garage building is part of the business of garaging vehicles. Of necessity, then, the use of Lot 20 as an integral and essential part of the business conducted on Lot 46 may be enjoined as nonresidential.”
* * * * *
“Nor does the ordinance under consideration confiscate defendant’s property or otherwise offend against constitutional guarantees . . . Completely absent is any showing that the second floor’s present use could not be continued by building a passageway or ramp within or alongside of the structure so as to permit access to that floor from Riverdale Avenue or, if such construction were impossible, that such floor could not be converted to some other profitable use.” It will be noted that in each of these cases the attempted ingress and egress was over property more limited in its permitted use than was the property to which the ingress and egress was to benefit and none of these courts held that the denial of ingress and egress for the purpose in question constituted an unconstitutional prohibition or confiscation of the right of ingress and egress. Of these decisions we- approve.

For these reasons we are of the opinion that the day to day use of the driveway on Reserves B and D for ingress and egress over said reserves to and from defendant’s shopping center by the customers thereof and for their benefit and the benefit of said shopping center constituted a commercial use of said Reserves. (

Defendant’s contention that such use was not a commercial use or use for trade is therefore without merit.

6. Defendant’s last contention is that the wording of Section 2a of the zoning ordinance in question is not effective to include Reserves B and D within the classification of a Class 1 or single house district.

In the amended form in which it existed at the time of the commencement of this action, this section provides that “all lots and lands lying within the corporate limits of said City, as presently existing or as the same may exist in the future by reason of annexation or other changes, not specifically herein described as Class II, Class II-A, Class III or Class IV districts, shall constitute Class I districts.”

This Court is of the opinion that if the Reserves in question are not “lots” they of necessity constitute “lands” and come within the clear provisions of the zoning ordinance restricting their use to Class I residential use.

For the reasons stated herein this Court finds that the driveway constructed by defendant on Reserves B and D may be used for ingress 'and egress to and from said Reserves for residential purposes only, that for said driveway to be used in the manner in which defendant contemplated, and in the manner in which it was used before this action, as a means of ingress and egress over said Reserves to and from defendant’s shopping center would constitute a use of the Reserves for commercial or trade purposes contrary to the limitation to Class I residential use as provided by the zoning ordinance of the City of Upper Arlington, and that the defendant, its successors and assigns, should be permanently enjoined from using said driveway, or any part thereof, except for ingress to and egress from Reserve B and Reserve D for residential purposes only, and should be further permanently enjoined from using said driveway as a means of ingress to and egress from that portion of defendant’s property not originally included in the University Addition so long as the same is not used for Class I residential purposes, or until the said Reserves shall be rezoned to permit commercial or trade use, or until said driveway shall be duly and legally dedicated and accepted as a public street.

GRIFFITH, PJ, concurs.

YOUNGER, J, dissents.

WINDSOR et, Plaintiff-Appellee, v. LANE DEVELOPMENT CO. et, Defendants-Appellant.

TO THE CLERK:

In the above entitled action, enter the following minutes on the trial docket, as of date December 8, 1958, and at once inform all attorneys of record in said action, to-wit:

Upon the issues joined, the Court find that the driveway constructed by defendant on Reserves B and D may be used for ingress and egress to and from said Reserves for residential purposes only, that for said driveway to be used in the manner in which defendant contemplated, and in the manner in which it was used before this action, as a means of ingress and egress over said Reserves to and from defendant’s shopping center would constitute a use of the Reserves for commercial or trade purposes contrary to the limitation to Class I residential use as provided by the zoning ordinance of the City of Upper Arlington, and that the defendant, its successors and assigns, should be permanently enjoined from using said driveway, or any part thereof, except for ingress to and egress from Reserve B and Reserve D for residential purposes only and should be further permanently enjoined from using said driveway as a means of ingress to and egress from that portion of defendant’s property not originally included in the University Addition so long as the same is not used for Class I residential purposes, or until the said Reserves shall be rezoned to permit commercial or trade use, or until said driveway shall be duly and legally dedicated and accepted as a public street.

Permanent injunction ordered accordingly. Costs to Defendant-Appellant. Cause remanded for execution.

Reasonable ground existed for appeal.

Exceptions saved.

YOUNGER, J, dissents.

(The above recitals are the minutes of this Court, and journal entry in conformity therewith must be filed by the successful party, in accordance with the rules of this Court.)


source: Caselaw Access Project

author: By HUNSICKER, PJ.

license: Public Domain

text:
    JOHNSON, Estate of, In re: JOHNSON, Admrx., Appellant, v. JACKSON et, Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24426.
    Decided May 28, 1958.
    Prank C. Lyons, for appellant.
    Austin T. Klein, for appellees (Mabel Jackson, Esau Johnson, Mary Cole).
    (HUNSICKER, PJ, DOYLE and STEVENS, JJ, of the Ninth District, sitting by designation in the Eighth District.)
   OPINION

By HUNSICKER, PJ.

This is an appeal on questions of law from a judgment of the Probate Court of Cuyahoga County, Ohio.

Ludie Johnson died intestate on January 10, 1957, leaving, as his heirs and next of kin, his widow, Lucinda Johnson, a son, Esau Johnson, and two daughters, Mabel Jackson and Mary Cole. The surviving spouse, Lucinda Johnson, is the stepmother of the children above, all of whom are of full age.

Lucinda Johnson was appointed administratrix of the estate of her deceased husband, and in due course, filed the inventory and appraisement of the estate. This inventory and appraisement was approved by the court on March 20, 1957. The journal' entry of approval reads as follows:

“It appearing to the court that all parties having an interest in the estates hereinafter named have been given notice, according to law, of the hearing of the inventory, or inventory and appraisement, filed in the said estates, by publication in a newspaper of general circulation in this county; and it further appearing to the court that no exceptions to said inventory, or inventory and appraisement, have been filed; and the court being satisfied, on examination of said inventories, that they are in all respects correct and true, it is, therefore, by the court ordered that the said inventories be and they are hereby approved and confirmed and ordered to be recorded.”

The transcript of docket and journal entries contains a statement dated August 8, 1957, reading as follows:

“Motion, petition and/or application to diminish year’s allowance of widow filed.”

On December 12, 1957, this matter came on for hearing before the Probate Court, and the following journal entry of judgment was journalized:

“This matter came on for hearing on the 12th day of December, 1957, on the motion to diminish year’s allowance of widow and upon the evidence, and the court being fully appraised of the facts, finds that the amount of the year’s allowance to the widow of the decedent as set upon the inventory and appraisal is excessive and that such year’s allowance should be reduced from $3,600 to $1,800. Wherefore it is ordered, adjudged and decreed that the year’s allowance herein be reduced from $3,600 to $1,800. Exceptions to widow.”

Notice of appeal on questions of iaw and fact, later reduced to an appeal on questions of law, was filed; and it is such appeal from t.hi,g judgment of December 12, 1957, that is now before this court for determination.

Sec. 2115.16 R. C., says, in part:

“Exceptions * * * to the year’s allowance may be filed at any time prior to five days before the date set for the hearing or the date to which such hearing has been continued by any person interested in the-estate or in any of the property included in the inventory, but such time limit for the filing of exceptions shall not apply in case of fraud or concealment of assets. * -* *”

Sec. 2101.04 E. C., says:

“The several judges of the probate court shall make rules regulating the practice and conducting the business of the court, which they shall submit to the supreme court. In order to maintain regularity and uniformity in the proceedings of all the probate courts, the supreme court may alter and amend such rules and make other rules.”

Rule 13 of Rules of Practice adopted by the Probate Court of Cuyahoga County, says:

“Year’s Allowance
“The Court shall not consider a petition to review the allowance made to a widow or children under §2117.22 R. C., unless such petition is filed within the time allowed for filing exceptions to the inventory, provided however, that any interested party who did not have notice of the filing of the inventory may file such petition within four months after the approval of the inventory. In such case, at least five days notice shall be given to the widow, children and fiduciary.”

The Supreme Court of Ohio has determined the force and effect of a rule such as we have herein, when it said, in the case of Brown v. Mossop, Admr., 139 Oh St 24:

“1. Courts possess the inherent power to adopt such reasonable rules as they may deem necessary to govern their proceedings and to facilitate the administration of business, not in conflict with the organic law or a valid statute. (Paragraphs 1 and 2 of the syllabus in the case of Meyer v. Brinsky, 129 Oh St 371, approved and followed.)
“2. Rule 13 of the Uniform Rules of Practice in the Probate Courts of Ohio, adopted pursuant to §10501-13 GC, and prescribing the time within which a petition shall be filed to secure a review of the allowance made to a widow or children under §10509-77 GC, is reasonable and valid.”

The Rule 13 mentioned in that case is identical with the Rule 13 adopted by the Judges of the Probate Court of Cuyahoga County, Ohio.

Thereafter, the Supreme Court said:

“2. The amount of such allowance must be fixed in the first instance by the appraisers of the husband’s estate, subject to be increased or diminished on review by the Probate Court on application therefor by the widow or other interested parties. Such parties as have notice of the filing of the inventory in the husband’s estate must file the application within the time allowed for filing exceptions to the inventory; and when the judgment of the Probate Court becomes final in respect to such allowance, the amount thereof may not thereafter be increased or diminished.” In re Estate of Croke: Clancy, Exrx., v. Cleveland Trust Co., Exr., 155 Oh St 434.

The judgment in the instant case gives no reason why the widow’s allowance should be decreased, except that the amount allowed was excessive.

We find that the order allowing the sum of $3,600 for the support of the widow, Lucinda Johnson, was approved by the Probate Court on March 20, 1957, and that more than four months later the application to diminish this award was filed in that court, in contravention of Rule 13. The Probate Court, under the circumstances found in this case, did not then have the power to diminish the allowance for the support of the widow for the reason assigned in the judgment entry. The time, within which an exception to the award could be taken because of its being excessive, had elapsed by reason of the force of the court’s own rule, adopted as authorized by the statutes of the state of Ohio.

The judgment herein is reversed,, and the cause remanded to the Probate Court, with instructions to reinstate the original allowance made for the surviving spouse, Lucinda Johnson.

Judgment reversed and cause remanded.

DOYLE and STEVENS, JJ, concur.


author: Per CURIAM.

text:
    GOTTLIEB, a Taxpayer, Plaintiff-Appellee, v. KRYZAN, Mayor et, Defendants-Appellants.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3965.
    Decided January 13, 1958.
    Edward L. Williams, W. Glenn Osborne, Youngstown, for plaintiffappellee.
    Felix S. Mika, Director of Law, Frank J. Battisti, Asst. Director of Law, Youngstown, for defendants-appellants.
   OPINION

Per CURIAM.

Defendants, the Mayor of the City of Youngstown, a municipal corporation, its finance director, members of its civil service commission, and the manager of the Youngstown Municipal Airport, appeal on questions of law from a judgment of the court of common pleas entered for plaintiff, a taxpayer, in his action brought against defendants to restrain defendant Scheetz from continuing as manager of Youngstown Municipal Airport on the ground that defendant Scheetz’s appointment by the Mayor violated the Civil Service Laws of Ohio; to restrain the Finance Director from paying further salary to defendant Scheetz; to compel the Civil Service Commission to recertify to the Mayor the names of three candidates as eligible for appointment which were certified originally following an examination held on April 26, 1956; to restrain defendant Mayor from interferring with any candidate certified as eligible; and to restrain defendant Mayor from interferring with the discretion of defendant members of the Civil Service Commission.

Pending an examination by the Civil Service Commission defendant Scheetz was provisionally appointed without examination and certification of the Civil Service Commission by the Mayor on April 1, 1954.

Two candidates passed and defendant Scheetz failed to pass the examination held on December 10, 1954. The mayor refused to appoint either of the two successful candidates on the ground that the list certified to him contained but two names and §143.20 R. C., requires certification of three names, and defendant Scheetz continued in office until a new list was certified as the result of a further examination.

In the examination held on April 26, 1956, defendant Scheetz stood sixth of eight candidates in order of grade. In accordance with the provisions of §143.20 R. C., the Civil Service Commission certified the names of the three candidates having the highest grades as eligible for appointment.

On August 27, 1956, the Mayor requested further certification by the Commission and attached to his letter of request the four “voluntary waivers” of the candidates ranking first, second, fourth and fifth in grade who had waived appointment. Defendant Scheetz name appeared on the new list and the Mayor appointed him manager.

There is evidence sufficient to warrant the trial judge holding that the Mayor used persuasion, political influence, coercion, and inducement to bring about the waivers by the four candidates who withdrew.

The trial judge overruled correctly defendants’ demurrer to plaintiff’s petition filed on the ground that plaintiff has no legal capacity to sue, and that his petition does not state facts which show a cause of action, and correctly heard the case from which this appeal is perfected on its merits.

By assigned grounds of error defendants contend:—

“1. The court erred in finding that Frank X. Kryzan, as Mayor of the City of Youngstown, had no right or authority to request from the Civil Service Commission a second list of candidates eligible for appointment to the position of Manager of the Youngstown Municipal Airport.
“2. The court erred in finding that the appointment of Donald L, Scheetz to the position of Manager of the Youngstown Municipal Airport was illegal.
“3. The court erred in finding that waivers submitted by candidates eligible for appointment to the position of Manager of the Youngstown Municipal Airport were not valid for all purposes of the Civil Service laws.
“4. The court erred in finding that the circumstances attending the execution of waivers by candidates eligible for appointment as Manager of the Youngstown Municipal Airport rendered the waivers presented to the Civil Service Commission invalid and ineffective for the purpose of reducing the first certified list.
“5. The court erred in failing to apply the standard of conduct set forth in §143.45 R. C.
“6. The court erred in basing the judgment on issues not argued at the trial.”

The Mayor did not appoint either of the three persons whose names were certified to him as the result of the examination of April 26, 1956, but on August 27, 1956, requested further certification for appointment. Thus for nearly four months the Mayor failed to follow the mandatory language of §143.20 R. C., that “he shall fill such position by appointment of one of the three persons certified to him,” one of whom, Magrini, did not-waive.

In the examination of April 26, 1956, the Mayor had the opportunity of choosing between three candidates, and as stated by the trial judge in his opinion:—

“* * * Both of the withdrawals were induced by him and he can thus not by his own action reduce the certified list to one name and then take the position that he has no choice between three candidates.
“Having failed to follow the mandatory provision of the statute, the mayor had no right to request a second certified list or to appoint from it. To decide otherwise would not only be contrary to the spirit of the Civil Service laws but contrary to its letter and would give the mayor power by his own conduct to avoid his mandatory duty.”

As the trial judge we conclude:—

“It is not necessary to decide what would have been the situation if the withdrawals from the first list had not been induced by the mayor, or whether Magrini, who did not withdraw, should have been appointed under the circumstances as they were. I simply hold that the mayor was bound to make an appointment from the list first certified to him and that he had neither the right to request nor to appoint from a second list. His appointment of Scheetz was therefore invalid.”

As to relief we concur in the finding and judgment of the trial judge as shown by his opinion on the merits that:—

,<* * * this being a taxpayer’s action, under §733.59 R. C., upon failure of the Law Director to apply for an injunction to restrain the misapplication of public funds of the city under §733.56 R. C., I confine myself to an order of permanent injunction restraining the defendant Bernard as Finance Director of the city, from paying the salary of Scheetz. Costs will be adjudged against the defendants, other than the members of the Civil Service Commission.”

Concluding that no error prejudicial to the defendants intervened in the trial court in the respects urged by them in their assigned grounds of error the judgment of the trial court must be and is affirmed.

NICHOLS, PJ, GRIFFITH and PHILLIPS, JJ, concur.


author: By MILLER, J.

text:
    SPRANG, Plaintiff-Appellant, v. TAYLOR, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5951.
    Decided November 25, 1958.
    Reeves & Herron, Morton Y. Reeves, of Counsel, Columbus, for plaintiff-appellant.
    Dresbach, Crabbe, Newlon, Collopy & Bilger, V/ilbur Jones, of Counsel, Columbus, for defendant-appellee.
   OPINION

By MILLER, J.

This is an action for damages arising out of an automobile collision wherein the plaintiff is seeking to recover for personal injuries to himself; medical expenses for himself and wife, who was also injured, and property damages.

During the course of the trial, the defendant conceded liability, so the case was submitted to the jury upon the question of damages only. A verdict was returned in favor of the plaintiff for the sum of $200, for which a judgment was duly entered and motion for new trial was overruled.

The first assignment of error is directed to the overruling of this motion, urging that the verdict was inadequate, against the manifest weight of the evidence and contrary to -the court’s instructions. Our examination of the Bill of Exceptions leads us to the conclusion that the verdict is insufficient to compensate the plaintiff for his actual damages, having incurred medical and hospital expenses considerably m excess of the amount of the verdict. Then, in addition to these expenses, the evidence reveals that there was property damage, and that the plaintiff suffered a neck injury for which he was entitled to some compensation, the amount being within the sound discretion of the jury.

There was some conflict in the record as to the extent of the plaintiff’s injury, whether it was entirely new or merely aggravated an old one. This was a question for the determination of the jury, but in either event the plaintiff would be entitled to some compensation for the injury. The verdict indicates that nothing was allowed for this when consideration is given to the actual damages the plaintiff has sustained.

It is therefore, our conclusion that the verdict was not in accordance with the instructions of the court and is against the manifest weight of the evidence.

The second assignment of error is based upon the admission into evidence of hospital records relating to the plaintiff for some ten years prior to the alleged personal injury, urging that these were privileged communications. It is to be noted that the witness testifying was not the plaintiff’s physician, but the custodian of the records of the University Health Service.

It appears that during the cross-examination of the plaintiff, he testified as to his previous medical history and treatment, which were not in accord with the hospital records, and they were properly introduced for the purpose of impeaching the witness. We find no merit in this assignment. '

Having found that the first assignment of error was well taken, the judgment will be reversed and the cause ordered remanded for further proceedings according to law.

PETREE, PJ, BRYANT, J, concur.


author: By Woods, Referee in Bankruptcy.

text:
    HOLBROOK, Bankrupt, In re.
    IN THE DISTRICT COURT OP THE UNITED STATES FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION.
    No. 78238.
    Decided December 11, 1958.

      Spieth, Bell & McCurdy, Cleveland, for Household Finance Corporation, Objecting Creditor.
    Henry S. Golland, Cleveland, for bankrupt attorney.
   MEMORANDUM OF REFEREE

By Woods, Referee in Bankruptcy.

James Charles Holbrook of Columbia Station, Lorain County, Ohio, was adjudicated a bankrupt on September 10, 1957, and Marvin L. Gardner, of Cleveland, Ohio, was elected trustee at the First Meeting of Creditors on October 14, 1957.

Specifications of objections to discharge of bankrupt were filed by the Household Finance Corporation,» a creditor, and at the hearing thereon decision on the objection was reserved, and briefs were filed.

The Specifications of objections to the discharge of bankrupt were on the ground that bankrupt had issued a false financial statement in writing as to his financial condition upon which credit was extended by said objector. The relevant statute, Section 14(c) of the Bankruptcy Act provides:

“The Court shall . . . discharge the applicant unless he has ... (3) obtained money or property on credit, or obtained an extension or renewal of credit, by making or publishing, or causing to be made or published, in any manner whatsoever, a materially false statement in writing respecting his financial conditions;”

Bankrupt was a fireman employed by the Pennsylvania Railroad, and the financial statement relied upon was executed by bankrupt on November 14, 1956, in which bankrupt recited that he had debts of $6111.28, including a debt of $891.28 to Household Finance Corporation, objector, which last debt was a result of a former loan on July 11, 1956 to bankrupt.

The financial statement of November 14, 1956 is offered as objector’s Exhibit 1, and on this objector relies in this proceeding, the prior loan of July 11, 1956 being offered as objector’s Exhibit 2. At the hearing and in the brief of counsel for objector, it appears that bankrupt owed some $3869 in addition to the debts enumerated in Exhibit 1, and in each Exhibit is the statement in the handwriting of bankrupt that he had no other debts.

The objections of the Household Finance Corporation are based on the claim of a false financial statement, and the testimony concerns the loan shown in Exhibit 1.

Thus from the evidence at the hearing and Exhibit offered, it appears that the financial statement claim relied upon by objector was not a true financial statement of bankrupt. Also the evidence indicated, as shown by Exhibit 2 that objector had known of bankrupt’s other debts, so in this situation the Finance Company claims it relied upon the faith of the financial statement when the Company had previous business with the bankrupt. As to the reliance of objector on the written statement of bankrupt, it should be noted that at the time of the last loan objector took a chattel mortgage on goods of bankrupt and a note for $1,000.00, and counsel for objector suggests that little importance can be placed on this since it is claimed to be a policy of the Company that they do not foreclose mortgages. So the whole question is again at issue presented in the discharge proceeding as to how much' credence can be given to the claim of the objecting Finance Company, or the testimony of its officers and agents, that they were deceived by bankrupt who misstated his outstanding debts when securing a loan, although the Company had previous .dealings with bankrupt.

The financial statements taken by officers of objector were by different individuals and different witnesses. Bankrupt and his wife both testified that at the signing of each statement they were told it was not necessary to show all debts, and bankrupt was asked to write in each statement, “I have no other debts,” which he did. Officers of objector deny that any such conversation took place, and it is apparent that both bankrupt and wife knew that such written statement was not true.

With such conflicting testimony, what is the Court to do? Two witnesses on each side give conflicting testimony. Whether the bankrupt is guilty of falsification in his testimony is a question of fact. Objector claiming that he failed to show other debts, and falsified as to such other debts in applying for credit. -

The cases hold that to prevent a discharge, a statement must be false and fraudulent and must be a materially false statement, and that is intentionally untrue. It was said in Re: Venturelle Co., 25 Fed. Sup. 332, 39 ABR ns 527 (D. C. Conn. 1938) affirmed 102 Fed. (2) 1022 — that a materially false financial statement, on the ground of which a bankrupt’s discharge may be denied, must be one the falsity of which is known to the bankrupt and must be made in an attempt to deceive.

In the briefs filed, counsel for both parties call attention to the Groscost case decided by this Referee, and reported in 230 Fed (2) 608 where the discharge was granted, and the higher Court confirmed such decision. Suffice to say that, the case at bar is not a clear-cut question as was there presented, for here there are two witnesses for each side of the controversy, each denying facts which are pertinent and should be decisive of the controversy.

In this situation the Referee must follow the rule which has been adopted in the Sixth Circuit in Re: Newman 126 (1942) Fed. (2) 336, where Circuit Judge.Martin said the rule of this Circuit is that the right to a discharge in bankruptcy should be liberally construed, reversing the lower Court, and granting the discharge.

To the same effect is Re: Manufacturers’ Trading Corporation (1945) 149 Fed. (2) 108, which arose from Michigan, discharge was granted by the lower Court, and affirmed by Circuit Judge Simonds. We do not overlook the fact that the provisions for discharge are to be liberally construed. Although not in this Circuit, there is the recent case of Re: Supnick (1958) 160 Fed. 35, where a bankrupt was granted a discharge notwithstanding a false financial statement, and it was not proved that the creditor had relied on that statement.

The finding is that the Specification of Objection to the Discharge of Bankrupt be overruled and dismissed, and discharge granted.


author: By STEWART, Circuit Judge.

text:
    CHAMBERLAIN, Appellant, v. LOWE, Appellee.
    United States Court of Appeals, Sixth Circuit.
    No. 13325.
    Decided February 28, 1958.
    Wilbur C. Jacobs (of Marshall, Melhorn, Bloch & Belt), Toledo, for appellant.
    Ernest C. Schatz (of Doyle, Lewis & Warner), Toledo, for appellee.
    Before MILLER and STEWART, Circuit Judges, and MATHES, District Judge.
   OPINION

By STEWART, Circuit Judge.

On July 3, 1952, the appellant was injured when an automobile in which she was a passenger collided with a vehicle being operated by the appellee. The appellant was a resident of Ohio, where she has continued to live ever since. The appellee’s home was in Detroit, Michigan, and she has remained a resident of that city. The collision occurred in Ohio.

Almost four years later the appellant brought this action against the appellee in the District Court for the Northern District of Ohio, asking damages for her injuries. Service of summons was made upon the appellee through the Secretary of State of Ohio in accordance with the provisions of §2703.20 R. C. On appellee’s motion, the district court dismissed the action because it had not been brought within two years after the cause thereof arose. This appeal followed.

Ohio imposes a two-year limitation period upon actions for personal injuries. Sec. 2305.10 R. C. However, like most states, Ohio has enacted a “saving clause” which operates to toll any statute of limitations while a potential defendant remains outside the state.

It appears that the appellee was a resident of Michigan continually during the time that elapsed between the collision and the filing of the present action. The question here is whether under the Ohio “saving clause” her absence from the state operated to toll the running of the two-year limitation period, despite the fact that the appellant could have brought the action at any time after the collision by virtue of the Ohio statute permitting service upon a nonresident motorist through the Ohio Secretary of State.

Although the district court entered but a bare order of dismissal, it is evident that the court was of the view that the Ohio “saving clause” did not apply to the present case because of the statute permitting substituted service upon the Secretary of State. That view is not without logical justification. It is, moreover, squarely supported by a decision of an Ohio Court of Appeals. Canaday v. Hayden, 1947, 80 Oh Ap 1, 35 O. O. 404, 74 N. E. (2d), 635. It is also consistent with the result reached under similar statutes in other jurisdictions. Coombs v. Darling, 1933, 116 Conn., 643, 166 A., 70; Nelson v. Richardson, 1938, 295 Ill. App., 504, 15 N. E. (2d), 17; Arrowood v. McMinn Cty., 1938, 173 Tenn., 562, 121 S. W. (2d), 566, 119 A. L. R., 855.

Nonetheless, we are convinced that the present law of Ohio is otherwise, and it is to the law of that state that our search must be confined. Guaranty Trust Co. of New York v. York, 1945, 326 U. S., 99, 110, 65 S. Ct., 1464, 89 L. Ed., 2079; Ragan v. Merchants Transfer Co., 1949, 337 U. S., 530, 69 S. Ct., 1233, 93 L. Ed., 1520. The Ohio Supreme Court’s decision in Couts v. Rose, 1952, 152 Oh St 458, 40 O. O. 482, 90 N. E. (2d), 139 is the controlling precedent. The syllabus in that case is unequivocal:

“A person injured in an automobile collision occurring in this state is not obliged to institute his action for his injury against a nonresident defendant and secure service through §6308-1 GC, (§2703.20 B. C.), within the time limitation provided by §11224-1 GC (§2305.10 R. C.), but under favor of the provisions of §11228 GC (§2305.15 R. C.), he may proceed to institute his action through §6208-1 GC (§2703.20 R. C.), at any time before the defendant returns to the state.”

While recognizing the rule that the syllabus of an Ohio Supreme Court decision states the law, the appellee correctly points to the qualification that the syllabus must be read with reference to the facts upon which it was predicated. State of Ohio v. Nickles, 1953, 159 Ohio St 353, 358-359, 50 O. O. 322, 112 N. E. (2d), 531; Williamson Heater Co. v. Radich, 1934, 128 Oh St 124, 190 N. E. 403, Syllabus 1; Baltimore & Ohio Rd. Co. v. Baillie, 1925, 112 Oh St 567, 148 N. E., 233, Syllabus 2; see this court’s discussion of the Ohio syllabus rule in New York Central R. Co. v. Delich, 6 Cir., 1958, 252 F. (2d), 522; Baltimore & Ohio R. v. Henery, 6 Cir., 1956, 235 F. (2d), 770, at page 773; Ford Motor Co. v. Tomlinson, 6 Cir., 1956, 229 F. (2d), 873, at page 879 (Footnote 3). Despite the syllabus in Couts v. Rose, it is suggested by appellee that there, unlike the present case, the defendant resided in Ohio at the time of the automobile collision which gave rise to the accident, and only later moved to another state. The appellee insists that the Ohio Supreme Court has thus not decided the precise question presented here, and that since the Ohio Court of Appeals for Lucas County did decide this precise question in the earlier case of Canaday v. Hayden, 80 Oh Ap 1, 35 O. O. 404, 74 N. E. (2d), 635, supra, that decision should control disposition of the present case.

Although ingeniously presented, the argument is not persuasive. In the first place, the Ohio Supreme Court’s opinion in Couts v. Rose leaves it far from clear whether the defendant there was a non-resident at the time of the automobile collision in Ohio. There is, moreover, no suggestion whatever in the opinion of any distinction arising from the defendant’s place of residence at the time of the collision, such as the appellee would have us draw. Finally, it is significant that the Ohio Supreme Court pointed out that the lower court’s decision which it reversed in Couts v. Rose had been based upon Canaday v. Hayden. See 152 Oh St 458, at page 459, 40 O. O. 482, 90 N. E. (2d), 139, at page 140.

Any possible doubt as to the breadth of the rule of Couts v. Rose seems, in any event, to have been resolved by the Ohio Supreme Court’s later decision in Meekison v. Groschner, 1950, 153 Oh St 301, 41 O. O. 298, 91 N. E. (2d), 680, 17 A. L. R. (2d), 495. That case came to the court upon certification by the lower court that its judgment was in conflict with Canaday v. Hayden. See 153 Oh St 301, 41 O. O. 298, at pages 303-304, 91 N. E. (2d), 680, at pages 681-682. In affirming the judgment the Ohio Supreme Court expressly refused to draw a distinction between a defendant who had never resided in Ohio and one who had left the state only after the cause of action accrued, so far as the applicability of the Ohio “saving clause” is concerned.

The order of dismissal is set aside, and the case is remanded to the district court for further proceedings.

      . This method of service is made applicable to an action in a federal district court sitting in Ohio by Rule 4(d) (1) and (7), Fed. Rules Civ. Proe., 28 U. S. C. A.

      . §2305.15 R. C. Saving clause. (§11228 GC.) “When a cause of action accrues against a person, if he is out of the state, or has absconded, or conceals himself, the period of limitation for the commencement of the action as provided in §§2305.04 to 2305.14, inclusive, and §1307.08 of the Revised Code, does not begin to run until he comes into the state or while he is so absconded or concealed. After the cause of action accrues if he departs from the state, or absconds or conceals himself, the time of his absence or concealment shall not be computed as any part of a period within which the action must be brought.”


author: By TOBIN, Probate Judge.

text:
    MARTIN, Estate of, In re.
    Probate Court, Columbiana County.
    No. 53845.
    Decided January 7, 1959.
   OPINION

By TOBIN, Probate Judge.

This matter came on to be heard on the exceptions filed by Evelyn Martin as an individual and as Executrix of the Estate of Edward T. Martin, deceased, relative to the inheritance tax chargeable on the transfer of the one-half interest in real estate in the amount of $44,225.00 within the two year period prior to death to-wit, on September 19, 1956, decedent having died on October 26, 1957. The State of Ohio, Department of Taxation was represented by the Attorney General’s Office and this matter was tried on the pleadings and evidence.

The only evidence introduced in this case was introduced by the Exceptor, the State of Ohio introduced no evidence of any nature whatsoever. The evidence disclosed the following facts:

That the will of Edward T. Martin was executed on June 29, 1948 and left all his property both real and personal to his wife, Evelyn, the Exceptor in the within case; that the parties had been married 38 years; that they had six children by this marriage, all living; that all the property owned by the decedent at the time of his death and by both parties, had been accumulated after their marriage. The evidence disclosed further that the decedent was a funeral director, doing a very active business in the city of East Liverpool, Ohio; that he had been in good health until July 8, 1956, when he suffered a stroke while visiting in Canada. That he was brought back to his home, and made a complete recovery. The testimony of Dr. Turner, his personal physician was that a month after the stroke, on August 21, 1956, he had examined him and found his condition to be very good except for a slight numbness of his right leg, and that he had made a remarkable recovery; his mental attitude was good and he proceeded to go back into the business as usual.

The evidence further disclosed that Edward T. Martin died of a coronary thrombosis, or heart attack, in Florida on October 26, 1957.

The sole evidence in this case also discloses that he and his wife on or about the 21st day of August, 1956, at the wife’s prompting, discussed the matter of his real estate, and it was discovered that the bulk of his real estate was in his name alone; that their Attorney, Joseph Cooper, was called and Mr. Martin told him he wanted one-half of all his real estate put in the name of his wife. The following is a copy of Mrs. Martin’s testimony: “I have heard him tell his friends, ‘my property is in both my name and my wife’s.’ About that time we were talking of different things, he was home more than usual. He said he thought he had better check up on his real estate. He said he knew there was some of the property just in his name alone and he had better get it in both names. Of course, as you brought out before, Mr. Martin did not have anything before we were married, and it was through my efforts that he went to school. I had to taire my baby and go home to my mother. It was through my pushing Mr. Martin before the time limit would run out. He never completed high school. He had to go to embalming school before the time limit on a high school education.

Q. Did Mr. Martin check up on real estate, to your knowledge:

A. Yes.

Q. Did you assist him:

A. Yes.

Q. Is this deed the result of that conversation?

A. Yes, it was at that time he was supposed to have a list of property in his name. I had never questioned him about anything because I had so many children to take care of, I didn’t have time for business affairs.

Q. Did you call his attention to the fact as to whose name the properties were in?

A. Yes, he seemed surprised there was that much property in his name alone. He said, T think I will call Joe up and have him take care of it.’ ”

That all the real estate that they had acquired after 1941 was in the name of both him and his wife.

There is remarkable little difference in the conditions of the parties as to law in this case, although there is a considerable amount of difference in the application of same in the instant case. The leading cases in Ohio in this question indicate the following rules: Sec. 5731.02-.04 it. C„ reads as follows: "A tax is hereby levied upon the succession to any property passing, in trust or otherwise, to or for the use of a person, institution, or corporation in the following cases: ....

“(c) When the succession is to property from a resident ... by-deed, grant, sale, assignment or gift, made without a valuable consideration substantially equivalent in money or money’s worth to the full value of such property: (1) In contemplation of death of the grantor, vendor, assignor or donor;. . . .”

Sec. 5731.04 R. C., provides: “Any transfer of property from a resident .... if shown to have been made without a valuable consideration substantially equivalent in money or money’s worth to the full value of such property, if so made within two years prior to the death of the transferror is deemed made in contemplation of death within the meaning of §§5731.01 to 5731.56, inclusive, R. C., unless the contrary is shown . . .”

Sec. 5731.01 R. C., Definitions. Sub-Section E provides: “‘ Contemplation of Death’ means that expectation of death which actuates the mind of a person on the execution of his will.”

Under this section of the Code a rebuttable presumption is set up, that the transfer was taxable since the decedent died within the two year period of transfer action there can be no question, but there is rebuttable presumption merely serving to shift the burden of proof to the Exceptor to satisfy the Court by preponderance of evidence that the said transfer was not made to avoid taxes and was not within the meaning of §5731.01 R. C., which defines “ ‘Contemplation of Death’ means that expectation of death which actuates the mind of a person on the execution of his will.”

Applying the facts in the instant case, we find the following:

That while decedent had suffered a stroke approximately six weeks before the execution of the deed in question, he had made a full recovery; that a conversation between him and his wife lead to a review of their real estate holdings and finding that property bought earlier than 1941 was in his name alone, and that all property bought after 1941 was in both names. The sole evidence in the case further indicates that the decedent had made a reasonably full recovery of his illness. A check of the inheritance tax and inventory in the case also shows there were joint and survivorship accounts in the name of both decedent and ex-ceptor and joint and survivorship United States Bonds, totaling $72,614.18. In addition thereto, there was $12,000.00 note owing to the decedent by the Martins, and a $32,000.00 note and mortgage owing to the decedent and Exceptor together, by the Wilsons. All this indicates that with the exception of the funeral business, this note of the Martins and the real estate in question, that all other properties were in the names of both husband and wife, who had been married better than 35 years. With this uncontroverted evidence as quoted above of the conversation between the husband and wife, of conversation between decedent and his attorney, and added to it the fact that he could have easily changed his will and did not, the Court can not help but find that the transfer of this real estate was made for the purposes as stated by the Exceptor, for the expressed intention of straightening out the title in the property of both husband and wife as a gift or reward for being a faithful wife and mother, of a lifetime.

It does not come within the laws as expressed in the cases cited of attempting to make a disposal of the property, as you would in a will, prior to death. It is persuasive to the Court that a great deal of this estate was personalty which could have very easily been transferred to the Exceptor, if the decedent had merely in mind the question of inheritance taxes; that a new will could have meant a great saving in Federal Taxes; that all his property was not transferred to the wife if he were attempting to make a disposition to avoid taxes.

Under all the evidence in the case as above expressed, the Court finds that the deed of transfer made 9/19/56 was made as a gift to his wife so that all of their real estate would be in both their.names, that it was not made in contemplation of death; the Exceptor having met the burden of proof, that the said values of the real estate represented in this said transfer of 9/19/56 is not taxable as a succession.

Exceptions permitted to all parties.

See Journal.


author: By HOOVER, J.

text:
    UNAUTHORIZED PRACTICE OF LAW, In re. SHIELDS, d. b. a. NATIONAL INVENTORS INSTITUTE, In re.
    Common Pleas Court, Cuyahoga County.
    No. 68167.
    Decided September 19, 1958.
    Arthur J. Stern, Albert R. Teare, AJS, Brooks W. Maccracken, AJS, Robert J. Fay, Court’s Committee.
    Austin B. Shields, Respondent.
    McDonald, Hopkins, Hood & Hardy, Respondent’s Counsel.
   OPINION

By HOOVER, J.

This day this cause came on for consideration by the Court upon the issuance of an order to Respondent, Austin B. Shields, to show cause why he should not be restrained from the practice of law, and upon the consent of Respondent to have judgment entered against him on the pleadings.

The Court finds that Respondent Shields has, in fact, rendered legal services for others in the course of his principal occupation as owner and operator of an invention firm known as National Inventors Institute. The Court finds that Respondent has held himself out as being legally qualified to render advice concerning the preparation, the filing and prosecuting of patent applications, amendments to applications and the drafting of contracts, affidavits of assignment and in determining the patentability of inventions. The Court further finds that Respondent has counseled and advised customers on legal matters concerning the preparing and filing of patent applications, amendments to patent applications and has rendered opinions concerning the patentability of invetions. The Court finds that Respondent has given legal advice concerning the requirements necessary in protecting one’s invention from others. The Court finds that Respondent has held himself out as qualified and able to prepare and draft contracts in which Respondent had no direct and primary interest. The Court finds that Respondent Shields has acted or offered to act as an intermediary-intermeddler between customers and attorneys selected by Shields to perform legal services with regard to inventions. The Court finds that by performing such acts, and by holding himself out as qualified and able to perform such acts for others, the Respondent Shields has been engaging in the practice of law.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Austin B. Shields, dba National Inventors Institute, be, and he hereby is, permanently enjoined from performing and rendering for others, either directly or indirectly, for a fee or gratuitously, any of the following services:

In holding himself out as being legally qualified to render opinions, counsel and advice concerning the legal effect and requirements of law concerning the preparation, filing and prosecuting of patent applications, amendments to applications for letters patent, drafting of contracts, affidavits, assignments and determining the, patentability of inventions; counseling or advising customers, or preparing and drafting patent applications, amendments to patent applications, contracts for the sale of inventions, affidavits of assignment; or the legal requirements necessary in protecting inventions from others, or otherwise engaging in the practice of law or rendering of legal services for others.

Provided, however, that nothing in this order shall be construed to enjoin the said Austin B. Shields from the practice of law in Ohio if and when he may be admitted, as an attorney, to such practice of law in Ohio, nor from any proper practice or acts in connection with patent law if and when he may be admitted to practice as a Patent Attorney or Patent Agent, by and before the United States Patent Office.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Respondent Shields shall pay the costs of these hearings. Record waivprf


text:
    KUNZ, Plaintiff-Appellee, v. MILLER, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5629.
    Decided October 7, 1958.
    Leda C. Hartwell, Columbus, for plaintiff-appellee.
    Lane, Huggard & Alton, Jack R. Alton, of Counsel, Columbus, for defendant-appellant.
   OPINION

Per CURIAM.

By agreement this appeal has been dismissed as an appeal on law and fact and retained as a law appeal.

Defendant, appellant herein, sets forth two assignments of error, which are as follows:

“I. The Court erred in overruling the Motions of the Defendant for a directed verdict at the close of the Plaintiff’s evidence, and at the close of all the evidence.
“II. The Court erred in sustaining objections to evidence offered by the Defendant-appellant.” «

Richard E. Kunz, plaintiff, appellee herein, was arrested on September 20, 1953, on a charge of reckless operation in the Village of Whitehall by appellant William Miller, who was authorized to make arrests in the village under certain circumstances.

We find no error in the lower court’s refusal to direct a verdict as claimed in the first assignment of error. The evidence on whether appellant arrested appellee without just cause was properly submitted to the jury since the evidence was conflicting. If appellee was arrested without just cause, the jury had a right to presume legal malice and the want of probable cause. The jury had a right to believe appellee Kunz when he stated that he slowed down to wait for the children to make an opening before he drove through where they were playing in the street and that he then put his car in second gear and proceeded to the point where the officer was standing. While the occurrence appears to have happened within the possible view of appellant, it was admittedly six or seven fifty-foot lots, plus the width of Wright Avenue, from where the officer was standing to where appellee passed the children. We find this assignment of error not well taken.

The second assignment of error, complaining that the court did not admit certain proffered evidence relative to the number of traffic cases in which a no bill was returned by the grand jury, among which was that of Richard E. Kunz, is a rather unusual question. We hold with the trial court that such evidence was not admissible, and there was no error committed by refusing to accept it. 25 O. Jur. 884, under the title of “Malicious Prosecution,” at Section 15, contains the following statement:

“The rule has been sometimes broadly stated, in Ohio, that the defendant in the prosecution, to bring an action for malicious prosecution, must have been fully acquitted on a trial, though, in some cases, it will be found on an examination of the cases that the precise rule thus broadly laid down was not involved. But it is now held that it is not essential that the plaintiff shall have been acquitted of the charge on a trial on the merits of the case. In accordance with the view supported by the weight of authority, to which, however, there is some dissenting authority, the' entry of a nolle prosequi, followed by the plaintiff’s discharge, is held to be sufficient, as is any other form of legal discharge, such as a dismissal for want of prosecution. Certainly, when the statutory period within which a criminal prosecution must be brought has elapsed, after an action instituted within the time allowed has been dismissed, at the request of the prosecuting attorney, and before another proceeding has been commenced, the prosecution is finally ended.”

In the instant case the statutory period within which Kunz could have been prosecuted was until September, 1956. After the grand jury refused to indict,- Miller did not see fit to prosecute before the mayor of Whitehall or any other court having jurisdiction in misdemeanor cases. This action was begun on September 7, 1954, which was within the statutory one-year period within which malicious prosecution cases may be brought in Ohio. In Gaiser v. Hurleman, 74 Oh St 271, at Page 279, the last paragraph, Price, J., quotes, apparently with approval, the following statement:

“In Newell on Malicious Prosecution, 358, the author says: ‘It is a well settled rule of law that when a party is arrested and bound over on a criminal charge, he must show, in order to prove a discharge and a termination of the prosecution, that no bill was found against him by the grand jury.’”

The judgment upon the verdict for the amount of $100 will not be disturbed for the reason that the two errors assigned herein are not well taken.

Judgment affirmed.

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


author: By J. J. P. CORRIGAN, J.:

text:
    DeRIGHTER, Plaintiff, v. J. & J. BUILDING COMPANY, Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 658759.
    Decided October 4, 1957.
    Diehm & Farber, Cleveland, for plaintiff.
    Mihelich, Drobnic & Mihelich, Cleveland, for defendant.
   OPINION

By J. J. P. CORRIGAN, J.:

The defendant, J. & J. Building Company, has made a timely request that the Court state in writing its Conclusions of Pact herein found separately from its Conclusions of Law.

FINDINGS OF FACT

The Court finds by clear and convincing evidence the facts in this action to be as follows:

1. John T. Vitkus and John T. DeRighter had close personal relations for many years. That close relationship had existed between these two men of the same nationality since Dr. Vitkus had come to Cleveland, wherein Dr. Vitkus was the personal physician of the DeRighter family: Mrs. DeRighter had been employed by Dr. Vitkus; they had been associated in the same financial institution of which Dr. Vitkus for some years was the head and Mr. DeRighter was, and still is the managing executive; that they had engaged in real estate and building projects together in the past; and other close relationships.

2. Dr. Vitkus proposed to plaintiff early in 1949 that the two gentlemen should join in a building venture on a 50-50 basis, with the understanding that DeRighter would acquire the corner lot of Second Avenue and East 133rd Street, East Cleveland, Ohio, from the owner; that Vitkus had theretofore purchased the three lots easterly therefrom, fronting on the southerly side of Second Avenue in East Cleveland, at Sheriff’s sale; that on the four lots they would erect two apartments. The further agreement between the parties was that DeRighter should arrange about the changing of the zoning and arrange for the financing, and do all that was necessary as a preliminary to starting the construction of the two apartments; and further conduct all negotiations with P. H. A. authorities and secure financial advances from the lending institution during the erecting of the buildings; and that Vitkus would let the building contracts to a contractor whom he had theretofore used, and would supervise the construction, without interference with his professional practice, and that any additional money not raised by mortgage financing that was necessary to be deposited, or that was necessary to expend, would be advanced by Vitkus with the understanding that he should secure the repayment thereof before the 50-50 division.

3. The plaintiff acquired the corner lot by paying more than Vitkus had paid for the three lots at Sheriff’s Sale and from early 1949 until the occupancy of the buildings at the beginning of 1952, the plaintiff performed all of the services properly, faithfully and successfully required on his part to be done. The buildings were erected and occupied early in 1952.

4. The defendant corporation was formed on account of P. H. A. requirements for the purpose of building these apartments with P. H. A. financing and taking title to the four lots above referred to. Plaintiff deeded his lot to the corporation, arranged for the rezoning of the property to permit the erection of said apartments with the East Cleveland Zoning Commission, and the officials of the City of East Cleveland, and arranged for all of the financing necessary as a Federal loan. The record establishes that this was the first F. H. A., Section 207 loan. In order to acquire that loan it was necessary to form a corporation and give the financial interests loaning the money the preferred stock in said corporation. The plaintiff, who was then connected with the Ohio Secretary of State’s Office, in addition to his other duties, formed the defendant corporation for that purpose and all of the four lots were conveyed to the J. & J. Building Company, defendant herein. The agreement between the individuals further provided that each individual would own approximately 50% of the corporate stock.

5. Subsequently the plaintiff and Vitkus met and agreed without consideration that Vitkus would be the majority stockholder and that the division of the shares would not be 75-75 but 76-74.

6. By substantial testimony from a number of witnesses, the plaintiff has proved by clear and convincing evidence that he performed all of the obligations on his part to be performed under the agreement as alleged.

7. The Court further finds that the defendant through its duly authorized officers agreed that 25 shares were subscribed for by plaintiff originally and were issued but not delivered to him and were to cover the value of his realty on the corner lot, and 49 shares thereof were to be issued to him for his services; that this modification was made without any consideration at the instance of Dr. Vitkus that he might control a majority of said stock.

8. The Court further finds that although plaintiff performed all of the services required on his part to be performed between the early part of 1949 and the occupancy of the buildings at the beginning of 1952, including the formation of the corporation in September, 1950; and although the plaintiff was a director until 1955 and was treasurer of the corporation for several years between 1950 and 1955, the entire control of the corporation, including the handling of the money and the disposing of the money and the entire operation of the two buildings, was handled by Vitkus alone, with the stockholders’ and directors’ meetings of the defendant corporation held at various places within and without the City of Cleveland, including one meeting in Florida, without notice to plaintiff or a waiver of notice executed by or tendered to him.

9. The Court further finds that while Vitkus was present for the execution of papers, and was an interested party on a few occasions at the East Cleveland City Hall, the financial office of Zook & Company and the Central National Bank, the consummation of the transactions at those places was entirely the result of the work of the plaintiff and was not the result of the work or influence of Vitkus.

10. There is testimony in the record that the buildings were built for the amount of the financing and there is also testimony to the effect that it required additional money which Vitkus either advanced or caused to be advanced, in addition to the financing proceeds, but the Court does not determine the matter of financing nor the cost nor the accounting as to rentals nor the profit from the sale of the buildings since the sole issue is whether or not the plaintiff was or was not entitled to specific performance of the agreement to give to plaintiff 74 shares of the common stock of the defendant corporation out of the total issue of 150 shares. The parties in the corporate minutes established the value of each share of stock at Three Hundred ($300.00) Dollars, but the Court has no other knowledge as to its value.

11. The Court does find that the only people interested in the defendant corporation are the plaintiff, and Dr. Vitkus, and the Mrs. Vitkus whom he married in 1954; and that Vitkus and his present wife on behalf of the corporation alone, without notice to the plaintiff, have sold both buildings, one to an outside person and one to Vitkus which, just prior to the instant trial, was sold by Vitkus individually to another outside person.

12. The Court does find that the sales of the apartments and the other financial transactions, including the payment of interest and advancements either to Doctor or Mrs. Vitkus, were without the knowledge and consent of the plaintiff and in the absence of proper corporate action.

13. The Court further finds that the minute book of the defendant corporation indicates that the building project of these two apartments was a profitable one and that the defendant, by its own statements and minute books, indicates and concedes that it has money in its treasury for the use of its stockholders.

14. The Court does find that under the agreement neither the plaintiff nor Vitkus was to receive any money or other consideration for his services, except the distribution of stock, to-wit: 76 shares to Vitkus, or his nominee, and 74 shares to the plantiff; that Vitkus was not entitled to interest upon any money advanced or deposited.

15. The individuals acted solely for the corporation which ratified all individual acts by accepting title to the real estate and all benefits from said real estate.

CONCLUSIONS OF LAW

1. Plaintiff is without an adequate remedy at law and is entitled to specific performance of his agreement as is set forth in the petition and the findings of fact hereinabove stated.

2. The plaintiff is entitled as a matter of law to the delivery of the twenty-five (25) shares of the common stock of the defendant, J. & J. Building Company, free from any lien or expense, whether it be the 25-share certificate originally issued to him and not delivered to him, or a new certificate for twenty-five (25) shares in lieu thereof, and that he is further entitled either to (a) the delivery of forty-nine (49) more shares of the common stock of said defendant corporation, or (b) the value thereof in money, to be determined upon a proper audit and accounting as to their value if the parties cannot agree upon their value.

3. DeRighter and Vitkus were the only real parties interested -in this corporation as stockholders, and the Court concludes as a matter of law that it would be equity to permit the defendant to pay to the plaintiff the value of the forty-nine (49) shares rather than order it to issue the same to plaintiff in whole or in part out of the stock now claimed to be held by Doctor and Mrs. Vitkus, particularly since this Court has made no accounting and it is not required under the issues in the pleadings to determine the value of each of the shares of common stock of said defendant corporation.

4. Since Dr. John T. Vitkus dominated every act of this corporation in connection with its financing and figures, his knowledge as such president and manager was the knowledge of the corporation and the defendant is bound by reason of his acts as such president, manager and complete dominating officer as to all acts done by it.

5. That the corporation having accepted the benefits of plaintiff’s efforts, the entity is responsible for compensating plaintiff therefor.