author: Hildebrant, P. J.

text:
    The State, ex rel. Bradford, Appellee, v. Board of Education of Reading City School Dist. et al., Appellants.
    (No. 6476
    Decided February 19, 1945.)

      Mr. J. W. Brown, for appellee.

      Mr. Chester 8. Burr, for appellants.
   Hildebrant, P. J.

A writ of mandamus, together with a mandatory injunction, was awnrded by the trial court. The notice of appeal recites that the appeal is taken on questions of law and fact.

Examination of the petition reveals the primary relief prayed for to be by way of mandamus, heretofore held in State, ex rel. Carson, v. Board of Education of Stock Township, Harrison County, 115 Ohio St., 55, 152 N. E., 646, not to constitute a chancery case within the purview of Section 6, Article IV of the Ohio Constitution. State, ex rel. Curran, v. Brookes, 142 Ohio St., 107, 50 N. E. (2d), 995. The Supreme Court of Ohio has heretofore held that plaintiff’s primary demand set out in the pleadings governs the character of the appeal, its most recent pronouncement being the case of Borton v. Earhart, 144 Ohio St., 334, 59 N. E. (2d), 37, which contains citations of earlier decisions.’

This appeal is, therefore, reduced to an appeal on questions of law and considered as such.

In his petition, relator prays that a writ of mandamus issue commanding respondents to enter into a contract employing him as a teacher for the school year 1944-1945, at the same salary received during the previous school year, plus any increment provided by the salary schedule of respondent board.

A further prayer for mandatory injunction requiring respondents to correct records of their proceedings at meetings, alleged to have been held on March 19, 1944, and on June 5, 1944, is included in the petition.

The pertinent events, in chronological order, are: Relator, a former teacher in the Lima, Ohio, schools, was first employed on a one year limited contract by respondents for the school year 1943-1944. As early as December 1943, he made severe general criticisms of the school and its conduct by those responsible for it, to different members of the board. At the regular meeting on February 7, 1944, the board resolved not to employ relator for the coming school year 1944-1945, and instructed the secretary to notify him of such action prior to March 31, 1944, the last date fixed by law on which such notice of intention not to employ shall be given. Accordingly, the secretary sent such notice to relator, who admits having received it on or before March 15, 1944. At the beginning of the fourth period on the morning of March 16, 1944, all but one of relator’s mathematics class of eight or nine pupils left the class room, and the pupils of the upper six grades, with the exception of fifteen or twenty, left their class rooms and congregated outside the building, calling out, “We want Bradford.” Relator spoke to' the rebellious students ostensibly to urge them to return to their class rooms, but states that he actually told them to go to their homes and have their parents come to the school in an effort to settle the problem. A group of parents assembled at the school that afternoon and again that night. As-a result of those gatherings, two of their number were delegated to request the use of the school property for a mass meeting of parents, pupils, and persons interested for Sunday afternoon, March 19, 1944, and to request the members of the school board to attend such meeting. Accordingly, on Saturday afternoon, March 18, 1944, the committee of two called at the home of the board president, who granted the request for use of the school for such meeting, accepted the invitation to attend for himself and extended the invitation to all other board members. Some five or six hundred persons assembled at the school, Sunday afternoon, March 19, 1944, including all members of the board and the superintendent of schools, who sat in a group on the stage of the meeting room. Respondent clerk of the board did not attend. The committee members who had requested the meeting were seated around a table in the center of the auditorium where, from time to time during the afternoon, others including relator joined them. On inquiry, the president of the board indicated that the members were ready to hear what was to be offered from those in charge, and a committeeman assumed to call the meeting to order and to preside. Three objectives in the form of demands contained in a signed petition were set forth as representing the desires of those represented by the committee. They were: (1) Dismissal of the superintendent; (2) employment of Bradford for the ensuing 1944-1945 school' year; and (3) the return of the rebellious pupils to the school without discipline or .penalty. The meeting was disorderly to say the least and'was attended with cat calls, booing, unrestrained babel of voices, all sounding at once, and a certain milling about of those present.

In response to the request for an expression from the members of the board on their attitude on the second demand — to employ Bradford for the school year 1944-1945 — the witness, Schriever, called by relator, testified that the president of the board expressed the sentiment of himself and the members in these words: “We will take action to this extent: If the children go back to school, we will reinstate Mr. Bradford.” On request, all members of the board indicated their concurrence in that sentiment by rising from their seats to be counted; all board members state they agreed to take official action, reemploying Bradford if the pupils returned to school Monday morning, March 20, 1944; the pupils did not return to school until Wecinesday morning, March 22, 1944. Thereafter, the board treated the matter in the light of its condition not having been complied with, and the notice to Bradford not being rescinded, no further notice was necessary, and none.was given.

At the regular meeting of the board on June. 5,1944, the superintendent, as required by law, submitted a list of names for employment as teachers under the type contract to which they were entitled. Relator’s name was not on that list. The names were read by the board president, and a motion duly made and passed to employ the persons recommended by the superintendent. Relator, at this meeting, contended that he was entitled to a continuing contract, and his evidence submitted was filed with the school officials. His credentials, however, revealed on their face that his contention was in error.

Relator’s position is grounded on a contention that certain of the events set forth above did not take place and his own construction and interpretation of other admitted happenings.

He contends that the board at its meeting on February 7, 1944, did not have presented to it the motion directing notice of intention not to reemploy, but that discussion, if any, of that subject, was confined to the informal meeting in private, usually held before the regular public meeting and to the minutes later made to show the action as taken at the regular official meeting, and that those minutes were not read at the next regular meeting in March, 1944; he further contends that the action of the board members in attending the meeting of parents, pupils, and others interested on Sunday, March 19,1944, admittedly called, as set forth above, and in standing to give public assent to their willingness to reemploy relator, amounted to official, binding action so to do. He denies that the existence of the condition, as to the return of the pupils to the school on Monday, was involved, or that the necessity of future action to rescind the notice not to reemploy was necessary. He produced witnesses who testified to attending the meeting on February 7, 1944, and that they did not hear the motion and vote to give notice to relator that he was not to be reemployed, nor did they hear such action included in the minutes road at the subsequent March meeting. Witnesses testified that the board president read the name Bradford in reading the superintendent’s- list at the June 5th meeting, and that the board voted to rescind the notice and to rehire relator on the occasion of the assembly on March 19, 1944.

It will be seen that decision of this case turns largely on questions of fact.

The extraordinary remedy of mandamus is provided by Section 12283 of the General Code, and is defined as follows:

“Mandamus is a writ issued, in the name of the state, to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.”

It is elementary, requiring no citation, that the discretion of public boards and officers, while they may be compelled to act, cannot be controlled by mandamus.

There was no duty resting on the board here to reemploy relator, or any other first year, limited contract teacher, but it was solely and peculiarly within its discretion so to do or not to do.

Relator received the notice of intention not to reemploy within the time fixed by Section 4842-8, General Code, and an examination of the events on March 19, 1944, fails to reveal any substantial evidence that such notice was ever rescinded. It is clear that the board was not assembled in regular or special meeting and none of the requisite formalities of such meeting or of official action were present. No convening of the board took place. No motions, votes, or record of board proceedings were had, and respondents all testified none was intended. While, as individuals, the members assented to take future action on the happening of a certain condition, when that condition was not met, they all testify and the record of the board shows no action was ever taken or intended to be taken. Relator, not having a legal right to a continuing contract, in addition, had notice that the board, in its lawful discretion, had decided not to'tender another contract of any kind. Mandamus will not lie to control that discretion, so exercised. 25 Ohio Jurisprudence, 1003, Section 28; State, ex rel. Masters, v. Beamer, 109 Ohio St., 133, 141 N. E., 851.

In view of the above, extended discussion of other contentions is unnecessary. The character of relator’s evidence with reference to the meeting on February 7th, that the witness did not hear something, and again with reference to the June 5th meeting, that they heard relator’s name read, is insufficient, in the face of the record of the proceedings and the positive testimony of all respondents as to their acts and intentions, and the fact as shown by the record that relator’s name is not on the list, and the motion being directed to the list supplied by the superintendent and not to any list of names read at the meeting, to outweigh respondents’ evidence.

The judgment will be reversed and final judgment entered in this court for respondents.

Judgment reversed..

Hildebrant, P. J., Matthews and Ross, JJ., concur in the syllabus and opinion.


source: Caselaw Access Project

author: Matthews, J.

license: Public Domain

text:
    Schaefer, Appellant, v. The Cincinnati Street Ry. Co., Appellee.
    (No. 6483
    Decided February 19, 1945.)

      Mr. John W. Cowell, for appellant.

      Mr. Leo J. Brwmleve, for appellee.
   Matthews, J.

The trial court, at the close of plaintiff’s evidence, instructed the jury to return a verdict for the defendant and entered judgment on that verdict. This appeal is from that judgment.

At about four o’clock in the morning of January 26, 1942, a collision took place between an automobile operated by the plaintiff and a trolley bus owned and operated by the defendant. The plaintiff was proceeding northwardly on Kirby road and the defendant’s bus was proceeding westwardly on Chase avenue, in the city of Cincinnati. The collision took place in the northeast quarter of the intersection of those 'streets, when the front of plaintiff’s automobile was on a line with the north curb projected. The streets were from 35 to 40 feet wide, from curb to curb.

Traffic at that intersection was controlled by traffic lights, but at that hour in the morning the red and green lights were not operating. The amber light was flashing on and off as a warning to he careful.

The defendant approaching the intersection from the right, in a lawful manner, had the right of way.

The plaintiff testified that she had attended a social gathering until about three o’clock in the morning. She took a companion to her home and was proceeding to take another to her home when this accident occurred. She testified that she stopped just before entering the intersection and looked in both directions oil Chase avenue for approaching traffic and saw the defendant’s trolley bus about a square or 400 feet away. There was no other traffic approaching and her vision was not obstructed in any way. She proceeded into the intersection at from 10 to 20 miles per hour without looking to the right and did not see the trolley bus again until she was in its path, and it was almost, if not actually, against her automobile. In fact, she did not know whether she saw it- just before the collision or whether she became aware of its presence by feeling the impact.

The plaintiff’s companion, sitting to her right, corroborated her in all material respects. She testified that she watched the trolley bus approach, but said nothing to the plaintiff to warn her, thinking that they would get across before the bus reached them. She estimated the speed of the bus at 40 -to 45 miles per hour, and stated that that speed was maintained from the time she saw it as they entered the intersection until the collision.'

Section 6307-40, General Code, gives the right of way to vehicles approaching from the right over vehicles approaching from a different direction into their path. This gave traffic approaching this intersection on the right on Chase avenue the right to “proceed uninterruptedly in a lawful manner in the direction in which it” was moving in preference to traffic approaching on Kirby road. This required those approaching on Kirby road to use their faculties to ascertain whether anyone was approaching on the right on Chase avenue in such proximity to the intersection as to indicate the likelihood of a collision unless one or the other yielded — and in case of doubt, the rule required that those on Kirby road should control their vehicles-until the doubt was removed and the situation justified them in proceeding notwithstanding the preferential right of those approaching on Chase avenue.

Conceding the plaintiff’s conclusion that the defendant’s bus was so far away from the intersection of the path she intended to travel that, both traveling in a lawful manner, there would be no collision, that conclusion did not give her any absolute right of way across the intersection. Or, if the defendant’s bus lost its right of way by approaching the intersection at an unlawful speed, that did not shift the absolute right to the plaintiff. The maximum effect would be to make inapplicable the statute to the situation and thereupon “the relative obligations of the drivers of the converging vehicles are governed by the rules of the common law.” Morris v. Bloomgren, 127 Ohio St., 147, 187 N. E., 2. Both were required to exercise reasonable care and if both were negligent and the collision was the direct cause of the joint negligence, neither could recover.

Now, what does the record show as to the plaintiff’s conduct? It shows that she stopped and looked just before she .entered the intersection and saw defendant’s bus 400 feet away approaching this intersection. She did not know how fast it was moving. She did know that no matter what its speed, its progress would take it eventually into the path that she intended to travel. Nevertheless, she failed to use either her sight or hearing during the more than 35 feet that she traveled before the collision. The record does not present a case of the exercise of her fáculties to some extent while she was in the intersection, which might present a case for the trier of the facts. Had she looked while crossing, she would have seen the bus approaching before she entered its path. Had she listened, she would have heard it. She testified that she did not look and it is clear she did not listen. Had she done so, her false sense of security would have been dispelled. No excuse is offered for the failure to look or listen. The necessity for an explanation of the plaintiff’s failure to look or listen for vehicles approaching her path from the right .is clear, when the surrounding circumstances are considered. The plaintiff’s testimony that she saw defendant’s bus 400 feet away, when she was 40 feet away from the point of collision and that, she traveled at the rate of from 10 to 20 miles per hour to the point of collision would require the bus to travel at an incredible speed to reach the point of collision at the same time as the plaintiff. At plaintiff’s highest estimate of her own speed, it would have required the bus to travel at almost 100 miles per hour to have collided with her car, and at her lowest estimate it would have required it to travel at twice that speed. That is incredible. We are not required to believe it. Black v. City of Berea, 137 Ohio St., 611, at 627, 32 N. E. (2d), 1, 132 A. L. R., 1391. Under such circumstances, our conclusion is that the record shows as a matter of law either that the plaintiff was negligent and that her negligence directly contributed to the collision, or that the evidence furnished no reasonable basis as to the probable cause of this collision.

Plaintiff’s counsel relies upon Nunn v. Davidson, 55 Ohio App., 297, 9 N. E. (2d), 732, for the proposition that the plaintiff was under no legal duty to look for the approaching vehicles on reaching the middle of the street but is only required to exercise reasonable care under the circumstances. The opinion referred to disposed of two cases — one, by the operator of the automobile, and the other, by the administrator of a guest riding in the automobile who was killed in the collision. Of course, the issue of contributory negligence was different in the two cases. As to the driver, the statute imposed an absolute duty to yield the right of way to the automobile approaching her path in a lawful manner — and that imposed . an absolute duty to determine in advance of entering the intersecting path that there would be no conflict. As to the driver, it is not the law that there is no duty to look to the right in the middle of the street. Even though the driver had looked before entering the intersection, the absence of vehicles then was no absolute assurance that vehicles would not lawfully approach and enter the intersecting path from the right before the servient vehicle had crossed it. Such a vehicle could have entered the street from abutting private property. The place where looking would be effective, is just before-the paths intersect, as was pointed out by this court in the case of Coshun v. Mauseau, 62 Ohio App., 249, 23 N. E. (2d), 656, in which we said at page 251:

“It is the duty of one who is required to regulate his progress in a certain direction to, so far as is reasonably possible, ascertain the presence of what he is required to observe from a position where this can be done effectively. * * *
“It is also apparent that one who is proceeding across an intersection under such circumstances that he may be required to stop and concede a right of way must proceed at a speed sufficiently slow to permit him to stop the vehicle which he is operating promptly and thus not cross the path of the vehicle, having thé right of way, proceeding across his path.”

That case was quoted from with approval in the case of Kellar v. Miller, 67 Ohio App., 361, 36 N. E. (2d), 890.

To the extent that Nunn v. Davidson, supra, holds that the servient vehicle driver is under no duty to look before entering the path of the dominant vehicle, it is overruled.

But plaintiff’s counsel urges that in Coshun v. Mauseau, supra, this court reversed the judgment and remanded the cause for a new trial, and he says that is what he is asking the court to do in this case. In making this contention, he overlooks the fact that in that case the reversal of the judgment was in favor of the driver of the vehicle having the right of way, against whom there was no substantial evidence of negligence, whereas, in this case, he is asking a reversal of a judgment rendered in favor of the operator having the right of way and against whom the plaintiff failed to produce evidence furnishing a reasonable basis for the conclusion that it had forfeited its right of way and negligently caused the collision, while the plaintiff was in the exercise of due care.

While there are differences in the facts, we are of the opinion that this case falls within the class with Williams v. Judd, 23 Ohio Law Abs., 450, 34 N. E. (2d), 799, in which we held that there was no substantial evidence of liability to submit to the jury.

For these reasons, the judgment is affirmed.

Judgment affirmed.

Hildebrant, P. J., Matthews and Ross, JJ., concur in the syllabus and the opinion.


author: Hildebrant, J.

text:
    In re Estate of Black.
    (No. 6432
    Decided December 11, 1944.)

      Miss Eleanor A. Bidiman and Mr. B. T. Dickerson, for appellee.

      Messrs. Barboti'r & Kimpel, for appellant.
   Hildebrant, J.

The guardian of an incompetent, by reason of improvidence, brought a special proceeding in the Probate Court of Hamilton county under favor of Section 10506-67 et seq., General Code, charging defendant with having in her possession and concealing certain property of the ward.

The court, without the intervention of a jury, found defendant guilty of having concealed and in her possession monies and chattels belonging to the estate of the ward of the value of $1,998.56, and rendered judgment for that amount together with a 10% penalty and costs.

The appeal is upon questions of law.

At the conclusion of all the evidence, the defendant’s motion to dismiss the complaint was overruled, and this ruling, the court finds, constitutes error.

In late 1939 or early 1940, defendant, a registered nurse, took care of the ward who was a victim of infantile paralysis and a patient in the Reading Institute. In the early part of 1940 the ward returned to her home-and that of her parents on Stettinius avenue in Hyde Park and employed defendant at $40 per week to nurse her mother who was ill at the time. Both parents became ill during this time, in what turned out to be their last illness. The ward and her parents had certain monies, at one time approximating $18,000 in joint accounts in various building associations and banks, which monies were all placed ,in the ward’s name about this time.

In the late summer of 1940, the ward and defendant went to Florida, where defendant rented premises and set up what was called the Miami Beach Convalescent Home, where she took care of the ward at an agreed figure of $50 per week; there being other patients in the home. Later, that fall, the ward’s parents went to Florida and were cared for in the convalescent home at the same figure each. In October 1941, the father died, and after his interment in Cincinnati, the mother never returned to Florida. After two winters and one summer in Florida, the ward and defendant returned to Cincinnati, where the ward remained for approximately three months in the home of defendant’s daughter before being taken to General Hospital, and thence to the chronic disease hospital of the county home.

It will be seen that a contractual relationship of employment for nursing care and services for herself and her parents existed between the parties. Charged with conducting the financial affairs and payment of the considerable expenses involved, the modus operandi of the ward was to withdraw substantial sums in advancement on account of defendant, as, for example, $3,500 advance payment of rent on the Florida nursing home, or directly to her account with nursing services, care, and additional "expenses, such as special nursing, doctors, drugs, etc., to be credited against such advances. Monthly accountings and credits were made in Florida with the ward examining and approving the computations. The personal relationship between the parties progressed until defendant served not only in her professional capacity, but practically as a business agent, as well as attending to payment of current expenses and similar details generally. The evidence discloses that during this time, at least a part of the withdrawal of building association funds was under the surveillance of the officers thereof and the ward’s attorney. Title to an automobile was acquired jointly by the parties hereto, the ward advancing all the funds, and later putting title in defendant alone, who has proferred to restore the same in this proceeding.

The relationship of the parties progressed until with the depletion of the cash resources the ward deeded the Stettinius avenue property to defendant and made a will in her favor in return for an agreement to care for her during life. With the termination of the actual care of the ward and on request, defendant deeded the real estate back to the ward.

The evidence is in conflict as to the actual amount of the funds to start with, whether nearer $18,000 or $12,000, and as to whether there is any balance in the hands of defendant due the ward. The ward not only testifies with defendant that no balance in her favor remains, but that actually there is due defendant approximately $1,000 for services as yet unpaid for.

The few chattels involved, mostly silver and dishes, stored in barrels at the home of defendant’s daughter are, from the evidence, available to the guardian on call.

The vital question at once presented by the record is whether the special summary quasi-oxmáasl proceeding invoked under Section 10506-67 et seq., General Code, is appropriate to the factual situation here present.

It appears that the rights of the parties grow out of a contractual arrangement under which monies were paid and services returned and in addition disburse-’ ments to third parties made, so that if there be a balance one way or the other, the remedy sounds in assumpsit or accounting, with a money judgment the objective. This situation requires a civil action with appropriate pleadings to define the issues, and no 10% penalty would be included with the judgment.

The burden is on complainant to prove a possession and concealment contemplated by Section 10506-67 et seq., General Code, and the evidence reveals another and different situation.

The law is stated in Goodrich, Admr., v. Anderson, 136 Ohio St., 509, 26 N. E. (2d), 1016. The syllabus in that case is:

“1. The purpose of Sections 10506-67 to 10506-77, inclusive, General Code, relating to proceedings to discover concealed or embezzled assets of an estate, is not to furnish a substitute for a civil action to recover judgment for money owing to an administrator or executor, but rather to provide a speedy and effective method for discovering assets belonging to the estate and to secure possession of them for the purpose of administration.
“2. Where, in such proceeding, the defendant is found not guilty of concealing or embezzling assets of the estate of the decedent, the court may not proceed to determine other issues, but has no alternative except to dismiss the complaint.”

The following cases cited in defendant’s (appellant’s) brief all seem pertinent to the problems arising in the instant case: In re Estate of Raymond, 66 Ohio App., 428, 34 N. E. (2d), 821; McMahan v. Jones, 17 Ohio Law Abs., 488; Skehan v. Larkin, 41 Ohio App., 85, 179 N. E., 425; In re Estate of Ledig, 9 N. P. (N. S.), 169, 21 O. D., 713; Leonard v. State, ex rel. Scott, 3 Ohio App., 313.

Entertaining the views set forth above, the judgment will be reversed, and this court coming now to enter the judgment the court below should have entered, the cause is hereby dismissed at guardian’s cost.

Judgment reversed.

Ross, P. J., Hildebrant and Matthews, JJ., concur in the syllabus and opinion.


text:
    Taylor, Appellant, v. Continental Casualty Co., Appellee.
    (No. 6437
    Decided January 22, 1945.)

      Mr. Joseph Lemkuhl, for appellant.

      Mr. Bert H. Long and Mr. Milton-M. Bloom, for appellee.
   Matthews, J.

This is an action to recover damages on account of personal injuries caused by negligence in the maintenance and operation of. a defective elevator, which caused it to drop from the second floor of a building of The Red Top Brewing Company by which company the plaintiff was employed at the time.

The relation of the defendant to the incident is described in this language:

“Plaintiff says that said freight elevator was insured by defendant, and that by reason thereof, under Section 1038-6 of the General Code of Ohio, the defendant could. designate persons to inspect elevators covered by such company’s policies; that in pursuance thereof, said defendant prior to the date of said accident, did designate certain of their employees to act as special inspectors of elevators insured by defendant, and said employees of defendant were thereupon appointed by the division of factory and building inspection, special inspectors of elevators in the state of Ohio for Continental Casualty Company, the defendant herein.”

This is followed by allegations that “* * * defendant’s agents and employees, acting as such special inspectors of elevators insured by defendant, in violation of Section 1038-13, General Code of Ohio, negligently and carelessly failed to report to the division of factory and building inspection, as required of them, the exact condition of the freight elevator.”

The pleader then set forth with particularity the respects in which the special inspectors failed to report; that they failed “to shut down said elevator, as required of them, when it could not be operated according to law”; that they failed to supply the division of factory and building inspection with copies of their inspections “as required of them”; that they failed to inspect the elevator once every six months “as required of them,” in violation of Section 1038-12, General Code of Ohio; and that they permitted the elevator to be used.in violation of law “in order that defendant’s insurance on said elevator could be continued. ’ ’

The defendant moved to strike all of these allegations from the petition, on the ground that they were immaterial and irrelevant, and also because of the form in which they were pleaded. The court sustained the motion, and the plaintiff, not desiring to plead further, the action was dismissed at his costs.

If the allegations are bad in form, the order striking them was proper regardless of whether they are ■relevant or material, but we pass that question, because we have reached the conclusion that, construing all the averments of the petition most favorably to the plaintiff, it still fails to state a cause of action.

It will be noticed at once that there is no allegation that the defendant owned, was in possession of, or in control of the elevator. Reliance, therefore, cannot be based upon a duty arising out of possession or control. There is no allegation that the defendant owedi any contractual duty to the plaintiff. It is clear then that no duty to the plaintiff was neglected, unless such fact may be inferred from the allegations that the defendant had “insured the elevator”; that it had, under the provisions of Section 1038-6, of the General Code of Ohio, designated persons who were appointed special inspectors and paid their salaries; and that these special inspectors had failed in their duty to properly inspect and report to the division of factory and building inspection of the state of Ohio, of which they were a component part.

As between the plaintiff and his employer, The Red Top Brewing Company, the duty of complying with the applicable laws and exercising reasonable care to provide a safe place for the plaintiff to work rested upon the employer, and any liability to respond to a civil action for damages by its failure rested solely upon it.

We do not doubt that another could assume this duty of the employer, and that in a situation, such as here, where the danger resulting from failure to perform the duty was clearly apparent, a duty would arise on the part of the person assuming such duty not to neglect to perform it. That is the application of a general rule to a specific situation. 2 Restatement of Agency, 776. We have applied the general rule to other situations. See Gibson v. Johnson, 69 Ohio App., 19, 42 N. E. (2d), 689; Bryant, Admr., v. Schrage, Admr., ante, 62.

The question before us is whether the allegations show that the defendant actually assumed this duty of the employer. Certainly, the mere allegation that defendant had “insured the elevator” contains no such implication — much less a direct assertion. The plaintiff, therefore, is forced to rely on the allegations that the defendant designated and paid the salaries of the persons who as special inspectors of the state of Ohio failed to perform their public duty. Although it is alleged that their motive in so failing was to enable the defendant to continue its insurance, there is no allegation that any one authorized them to promote the defendant’s business by neglecting their public duty.

We have been cited to but one case in which it was sought to hold the employer of a special inspector for neglect of duty by the latter, and that is the case of Sheridan v. Aetna Casualty & Surety Co., 3 Wash. (2d), 423, 100 P. (2d), 1024, in which the defendant was held liable. However, it was provided in that policy that the insurer would inspect the elevator and suggest such changes as would operate to reduce the frequency and. severity of injuries. The insurer actually assumed the duty of the employer in that regard, and it was upon that ground that the insurer was held liable. In the case at bar, no provision of the policy was pleaded. It cannot be inferred, therefore, that the special inspectors were performing a contractual duty owed by the defendant, when they inspected the elevator and reported to the state, or that their failure in that regard was a failure of a duty owed by the defendant to the plaintiff. To so conclude would be begging the question presented by the record.

Although we have found no other case presenting the question of the liability of the employer for the. acts of special inspectors appointed under statutes similar to Section 1038-6 et seq., General Code, there: are many cases involving the liability of the employer of special police officers — and we regard those cases as presenting similar legal problems.

In New York, Chicago & St. Louis Rd. Co. v. Fieback, 87 Ohio St., 254, 100 N. E., 889, the court held as stated in the syllabus:

“1. A policeman who is appointed and commissioned by the Governor, under Sections 3427 and 3428, Revised Statutes (General Code, Sections 9150 and 9151), although his appointment was upon the application of a railroad company and his salary is paid by such company, is a public officer, deriving his authority directly from the state; and his acts will be presumed to have been performed in his capacity as such officer, until such presumption is overcome by sufficient evidence.
“2. A railroad company is not liable for the wrongful acts of such officer while acting by virtue of his office, unless such wrongful acts occurred in the performance of an act which was outside of the pub-' lie duties of a policeman, and which was authorized or ratified by such company.”

See, also, Erie Rd. Co. v. Johnson, 106 F. (2d), 550.

In Pennsylvania Rd. Co. v. Deal, 116 Ohio St., 408, 156 N. E., 502, the court held that under the facts of that case it was a question for the jury to determine whether the special police officer had departed from his public duty in causing an arrest and was acting-in his private capacity for his employer. The facts showed that he co-operated with other employees in making the arrest. The court quoted with approval the syllabus in the Fieback case, supra.

The cases on this subject are collected in the annotation, to Bushardt v. United Investment Co., 121 S. C., 324, 113 S. E., 637, in 35 A. L. R., 637, where it is said:

“The general rule is that, in the absence of statute, a private person or corporation is not responsible for the acts of a special police officer, appointed by public authority, but employed and paid by the private person or corporation, when the acts complained of .are performed in carrying out his duty as a public officer. ’ ’

A long list of cases from many jurisdictions in support will be found following the statement.

As already noted, there is no allegation that defendant had assumed the duty of the employer in relation to this elevator. The special inspectors could not, for that reason, have been engaged in the performance of a duty owing by the defendant. The state of Ohio in the exercise of its governmental or police power had legislated in the interest of the public safety and had created the office of special inspector to execute such legislation. The failure of the inspectors constituted misfeasance or nonfeasance in office, and a violation of the duty they owed do the state and not a private duty they owed to the defendant.

For these reasons, the judgment is affirmed.

Judgment affirmed.

Ross, P. J., Hildebrant and Matthews, JJ., concur in the syllabus and opinion.


author: Sherick, J.

text:
    Mock, Appellant, v. Kaffits, Chief of Police, et al., Appellees.
    (No. 3730
    Decided September 20, 1944.)

      Messrs. Power & Barton, for appellant.

      Messrs. Hale & Kincaid, for appellees.
   Sherick, J.

This is an appeal by plaintiff on questions of law from a judgment of the Municipal Court of Columbus. The action is one in replevin of an automobile. The contest is between plaintiff and the true defendant, Pennsylvania Manufacturers’ Association Casualty Insurance Company, which by leave of court filed an intervening petition and was found to be the owner of the automobile in the court of origin. The matter was heard and determined by the court upon an agreed statement of facts. A. recitation thereof discloses the source of title and the right to possession upon which the two contestants rely. We quote those agreed facts:

“It is hereby stipulated and agreed between the parties hereto, by their respective attorneys, that on or about the 23d day of November, 1942, a 1941 Mercury sedan automobile, motor number 99A343016 was stolen from Pittsburgh, Pennsylvania. It is further agreed that R. G. Kaveny held a Pennsylvania certificate of title to the above-described automobile and was the owner of said automobile.
“Ten days prior to the theft the local ration board No. 2-36 in Pittsburgh had recorded the tires and these tires were on the car at the time of its recovery. The tire inspection record shows that the serial numbers of the mounted tires, including the spare, were as follows: 17A-800660, P16-5006D, 5A5-7206D, 26U-2906D, 9H6-5906D. The date of this inspection was November 13, 1944.
“The Pennsylvania Manufacturers’ Association Casualty Insurance Company had coverage on the automobile and paid R. G. Kaveny in accordance with the terms of its contract of insurance and accepted in return a certificate of title to the Mercury sedan coupe. The certificate of title was issued to the insurance company above named.
“It is further stipulated that due-registration slips, number 94859, dated January 8, 1942, and purportedly issued by the Commissioner of Motor Vehicles of New York, were presented to the clerk of courts for Licking-county, Ohio, requesting the issuance of an Ohio certificate of title. Thereupon, an Ohio certificate of title was issued in the name of E. J. Randall, certifying title in him to a 1941 Mercury five-passenger coupe automobile, motor number 430684.
“It'is further stipulated that for valuable consideration, this Ohio certificate of title was assigned to The Bobb Chevrolet Company in Columbus, Ohio, and that thereafter the automobile was sold to Earl Mock for valuable consideration and The Bobb Chevrolet Company assigned the certificate to Earl Mock and an Ohio certificate was issued to Earl Mock showing title in him to one 1941 Mercury five-passenger coupe automobile, motor number 430684.
“It is further stipulated that the motor number of the automobile subject to this litigation appears both on the cowl and clutch housing as 430684. It is further agreed that a secret number under the body shows the motor number to be 99A343016.
“The automobile subject to this litigation is the automobile which The Bobb Chevrolet Company purchased and sold to Earl Mock and is the automobile stolen from E. G. Kaveny of Pittsburgh.”

Upon this state of facts the trial court found that the Ohio certificates of title, issued to E. J. Eandall, the Bobb company, and to plaintiff, were void ab initio, for the reason that they had been issued through misrepresentation and a fraudulent certificate of title of the state of New York; that the Pennsylvania certificates of title issued to Kaveny and the insurance company were valid; and that the latter had title and right of possession to the automobile.

Plaintiff maintains that that judgment is contrary to law and ought to be reversed.

It is the judgment of this court that the trial court’s judgment must be and it is affirmed, for two reasons, which we shall now proceed to demonstrate.

If the chattel in question were other than a motor vehicle, which did not involve the Ohio certificate of title law (Sections 6290-2 to 6295-2, inclusive, General Code), the problem would be promptly solved by application of the rule that stolen property is recoverable from an innocent purchaser so long as it is susceptible to identification. Plaintiff recognizes this ancient rule but counters with the claim that the Certificate of Title Act changes all this. He says that he is the -only Ohio certificate of title holder, and that lie being an innocent purchaser for value, the title which he holds constitutes conclusive evidence of his ownership and right to possession. He advances that portion of Section 6290-4, General Code, which prescribes that:

“No court in any.case at law or in equity shall recognize the right, title, claim, or interest of any person in or to any motor vehicle, hereafter sold or disposed of, or mortgaged or encumbered, unless evidenced by a certificate of title or manufacturer’s or importer’s certificate duly issued, in accordance with the provisions of this chapter.”

Plaintiff therefrom maintains that the Certificate of Title Act conclusively determines which of two innocent parties is to be protected and which must suffer. He admits that the coupe was stolen; that the thief, or another subsequently possessing the car through misrepresentation and fraud, procured or fabricated New York evidence of title, which one E. J. Randall caused to be presented to the clerk of courts of Licking county as New York proof of ownership and by means thereof caused an Ohio certificate of title to be issued in that name by an agent of the state registrar of automobiles. It is therefore clear that theft, misrepresentation and fraud surrounded the conception of plaintiff’s source of title. And this is true even though he is an innocent purchaser for value. The direct opposite is true of Kaveny’s and the insurance company’s source of title.

Just what is the purpose of the Certificate of Title Act? The answer is found in Automobile Finance Co. v. Munday, 137 Ohio St., 504, 521, 30 N. E. (2d), 1002, wherein Judge Turner stated that “the very purpose of the law is to protect ownership against fraud.” If plaintiff’s theory be adopted, it must be perceived that the avowed purpose of the act would be frustrated. It would become a shield to the thief’s criminal act and would stamp with the law’s approval the source of title which flows from him. It would surely follow that Ohio might be made the dumping ground for stolen cars.

Section 6290-5, General Code, provides in part that a clerk of the courts may issue a certificate of title upon proof of title and ownership of a motor vehicle coming from without the state and not previously reg: istered in this state. Such proof shall be presented to and filed with the application for the title certificate. That officer is charged with exercising reasonable diligence.

Section 6290-8 confers express power upon the registrar of motor vehicles “to cancel certificates of title improperly issued for stolen or converted motor vehicles, and by appropriate action one entitled to a certificate of title may procure it.” We quote from the concurring opinion of Judge Matthias in the Munday case, at page 523.

It becomes apparent from the excerpts of the act noted, that it was not intended to clothe an Ohio title holder with immunity from attack in every instance. If the certificate was improperly issued upon false representations, it is void ab initio as was said in the Mun-day case at page 521. There can be no question that Randall presented falsely procured New York evidence of title to the clerk of courts of Licking county, and this is the source of plaintiff’s Ohio evidence of title. If plaintiff is to prevail he must do so on the strength of his own title. If evidence of title has been procured through fraud and deception, the title of a subsequent innocent holder for value, which arose therefrom, can have no greater solemnity than the source from which it sprang.

Our second reason for affirmance of the judgment is a simple one. The stipulated fact is that plaintiff holds a certificate of title to a 1941 Mercury five-passenger coupe automobile, motor number 430684. It may be that such car exists. It is stipulated that the insurance company’s Pennsylvania certificate of title covers a like car numbered 99A343016, and that this motor number properly designates and describes the car in question. It follows that the insurance company has the only certificate of title upon the motor vehicle in question. The fact that the thief has defaced the correct motor number in two places and substituted a fictitious motor number in its place cannot change the car’s true motor number, any more than a heart becomes a spade just because it is so denominated.

Judgment affirmed.

Hornbeck and Geiger, JJ., concur.

Sherick, J., of the Fifth Appellate District, sitting by designation in the Second Appellate District.


author: Ross, J.

text:
    Lumpkin, Appellant, v. Metropolitan Life Ins. Co., Appellee.

      (No. 6485
    Decided February 19, 1945.)

      Messrs. Falk é Paul, for appellant.

      Mr. Harry E. Marble, for appellee.
   Ross, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Hamilton county, in favor of the defendant. Trial was to the court without a jury.

The plaintiff is the beneficiary in a policy of insurance upon her daughter who died on May 28, 1943. The policy was issued on October 12, 1942. The cause of the death of the insured, according to the proof of death, was myocarditis. The policy contains the following clause:

“When policy is incontestable and when voidable. This policy shall be incontestable after it has been in force during the lifetime of the insured for a period of one year from its date of issue, except for nonpayment of premiums.
“Subject to the foregoing provision, if within two years prior to the date of issue of this policy, the insured has received institutional, hospital, medical, or surgical treatment or attention, and the insured or any claimant under the policy fails to show that the condition occasioning such treatment or attention was not of a serious nature or was not material to the risk, this policy shall be voidable by the company either before or after any claim, unless reference to such institutional, hospital, medical, or surgical treatment or attention is endorsed on this policy by the company; provided, however, that this policy shall not be voidable because of absence of endorsement referring to any information which was disclosed in a written application .for this policy.”

The defendant for defense set out the quoted provision in the policy, and alleged that within two years prior to the date of the issue of the policy the insured had received hospital and medical treatment and attention, and that it had not been shown that the condition occasioning such treatment or attention was not of a serious nature or was not material to the risk.

It appears from the entries in a report of the general hospital in Cincinnati, a public hospital, that the insured had been in such hospital many times during the two years preceding the date when the policy was issued. It also appears that she was suffering from and was treated in such hospital for acute diabetes. There is no evidence that such disease “was not of a serious nature.” There was evidence that “it may be mild and it may be severe.”

The stipulation upon which the defendant relies is in the policy. The defendant does not rely upon a fraudulent answer to an interrogatory in the application, and Section 9391, General Code (Section 3625, Revised Statutes), lias no application. Metropolitan Life Ins. Co. v. Howle, 62 Ohio St., 204, 56 N. E., 908; Aetna Life Ins. Co. v. Dorney, 68 Ohio St., 151, 158, 67 N. E., 254; 29 A. L. R., 658.

Complaint is made that the provisions of Section 11494, General Code, were violated in that the hospital record was admitted in evidence and hospital physicians permitted to testify as to treatment of the insured.

Such record is admissible under the provisions of Section 12102-23, General Code. In Dickson, an Infant, v. Gastl, 64 Ohio App., 346, 28 N. E. (2d), 688, this court held the statute inapplicable as to á hospital record “because it is limited by its terms to such entries as the custodian testifies were made ‘at or near the time of the act, condition or event.’ ” The situation in the Dickson case does not apply in the instant case. The entries here were on the whole' applicable to the condition of the insured at the date of the entry in the record. The entries in the instant case were not mere self-serving declarations, made to a hospital attendant as was the situation in the Dickson case. The records were properly admitted in evidence and it is presumed the court excluded such portions thereof in its consideration of the case as were incompetent and irrelevant.

In Kellogg v. Industrial Commission, 60 Ohio App., 22, 27, 19 N. E. (2d), 511, this court sustained -the competency of such a hospital record. That case was decided on June 6, 1938. Section 12102-23, General Code, became effective on September 6, 1939, and was, of course, not considered by this court in the Kellogg case.

In Schmitt v. Doehler Die Casting Co., 143 Ohio St., 421, 55 N. E. (2d), 644, this statute was construed and limited in its application to exclude entries in such records which amount to no more than self-serving declarations. The evidence in the instant case has no such fault.

The case of Eikenberry v. McFall, 33 Ohio Law Abs., 525, 36 N. E. (2d), 27, holding contrary to the rule here pronounced, is noted and will require certification of this case to the Supreme Court.

Complaint is also made that a hospital physician was permitted to testify as to the physical condition of insured and her treatment. Even if such testimony could be considered as including confidential communications,^ it was admissible for the reason that^such physician was an employee of a public hospital and did not bear the relation of a private physician personally employed by the insured. Her contractual relation was with the hospital and not with its physician. This distinction has been noted in Dewert v. Cincinnati Milling Machine Co., 38 O. L. R., 318, 15 Ohio Law Abs., 268. See, also, Wills, Sr., Admr., v. National Life & Accident Ins. Co., 28 Ohio App., 497, 162 N. E., 822; Nelson v. Western & Southern Indemnity Co., 23 Ohio Law Abs., 117, 118.

In Bowers v. Industrial Commission, 30 Ohio Law Abs., 353, the court stated a preference for the opinion of this court in Wills, Sr., Admr., v. National Life & Accident Ins. Co., supra, as against the contrary conclusion in Lamarand v. National Life & Accident Ins. Co., 58 Ohio App., 415, 16 N. E. (2d), 701. In the opinion in the Bowers case it is stated:

“We recognize the principle announced in the case of Lamarand v. National Life & Accident Insurance Company, decided December 13, 1937, in the Court of Appeals, Lucas County, Ohio, and reported in Vol. 58 Oh Ap 415. In principle this case in effect announces the physician-patient privilege applies to the relationship between a physician and patient in a public hospital.
“A contrary opinion was announced by the Court of Appeals of Cuyahoga County in the case of Wills, Sr., Admr., v. National Life & Accident Insurance Company, 28 Ohio App., 497.
“In a proper case we would be inclined to follow the later decision which we find to be in line with the great weight of authority in other jurisdictions.”

There seems to be no logical reason for departing from the previously expressed opinion of this court, nor for distinguishing the admissible record of the hospital containing the physician’s diagnosis and treatment from his testimony upon the same matters, especially, as is the case here, where the memory of the physician is refreshed from the admissible record. Again, there being a conflict with the judgment of another Court of Appeals, certification is necessary.

Complaint is also made that the application was admitted in evidence. No prejudice to the plaintiff appears from such admission. The application’s relevancy to the issues presented, however, does not appear. The defendant did not rely upon the application, hut upon the policy. Upon the entire record, it conclusively appears that the insured had been in a public hospital many times within the two years immediately preceding her receipt of the policy; that she failed to divulge such information to the insurer; and that her beneficiary has failed to show that the diseases for which she received treatment were not of a serious character. Such being the case, the terms of the policy contract definitely apply and prohibit any recovery, other than the tendered premiums paid.

The judgment is affirmed.

In view of the conflict with the cases of Eikenberry v. McFall and Lamarand v. National Life & Accident Ins. Co., supra, the case is certified to the Supreme Court.

Judgment affirmed.

Hildebrant, P. J., Matthews and- Ross, JJ., concur in the syllabus and opinion.


text:
    Stange, Admr., Appellant, v. Campbell, Admr., Appellee.
    (No. 6454
    Decided January 8, 1945.)

      Messrs. Fecit, Shaffer & Williams, for appellant.

      Mr. August A. Rendigs, Jr., and Mr. Elmer E. Strasser, for appellee.
   Hildebrant, J.

The Common. Pleas Court entered judgment on the pleadings for defendant, which action is claimed here to be an error of law.

The suit is for wrongful death between the administrators of the estates of two decedents, the plaintiff’s decedent being a guest in, and the defendant’s decedent being the operator of, an automobile which collided with a street car, causing the deaths.

The second defense of the amended answer alleges that plaintiff failed to present to defendant’s administrator any claim within the four months prescribed by Section 10509-112, General Code, and further avers such failure to be a bar to this proceeding.

In the amended reply, plaintiff alleges his appointment as administrator on March 23, 1942, and admits that defendant was appointed administrator on November 13, 1941. Plaintiff then denies each and every other allegation of the amended answer, including the allegations of the second defense set forth above.

Defendant’s motion for judgment on the pleadings was granted by the trial court and plaintiff, appellant herein, claims that action to be in error, for the reason that while the’ pleadings show on their face that defendant administrator was appointed more than four months prior to plaintiff’s appointment, and, hence, it was impossible for plaintiff administrator in his capacity as administrator of plaintiff’s estate to have complied with Section 10509-112, General Code, nevertheless, the allegation of noncompliancje with Section 10509-112, General Code, contained in the second defense stands denied by the pleadings and, therefore, an issuable fact was disclosed by the pleadings and the motion for judgment on the pleadings was erroneously granted.

Obviously, the claim could not have been presented within four months, in compliance with Section 10509-112, General Code, by the plaintiff administrator in the capacity of administrator, as he admits the date of his appointment to be March 23, 1942, more than four months after November 13, 1941 — the date of the defendant administrator’s appointment. The denial of failure to present, therefore, could have no substantive effect in the face of the admissions of plaintiff administrator, as administrator, as to the date of his appointment, more than four months after the date of the appointment of defendant administrator, and, unless the statute, Section 10509-112, General Code, could be so construed in conjunction with the wrongful death statutes, that presentation of the tort claim made by one of the statutory beneficiaries might be considered compliance therewith, the motion for judgment on the pleadings was properly granted. If such were the case, the denial in the pleading as to failure to present would raise an issuable fact and a motion, for judgment on the pleadings would be not well taken.

Section 10509-112, General Code, provides:

“All claimants shall present their claims to the executor or administrator in writing, including claims arising out of contract, out of tort, on cognovit notes or on judgments, whether due or not due, secured or unsecured, liquidated or unliquidated. All claims shall be presented within four months after the date of the appointment of the executor or administrator. Every claim presented hereunder shall set forth the claimant’s address. In the absence of any prior demand for allowance, the executor or administrator shall allow or reject all claims within thirty days after their presentation; provided that failure of the executor or administrator to allow or reject within said time shall not prevent him from doing so thereafter nor shall it prejudice the rights of any claimant. Upon the allowance of a claim, the executor or the administrator, on demand of the creditor, shall furnish the creditor with a written statement or memorandum of the fact and date of such allowance. Any person whose claim has been presented and allowed (and not thereafter rejected) shall be deemed a creditor as said term is used in this chapter. Claims which are contingent need not be presented except as otherwise provided in this chapter.”

The characteristics of such a motion and judgment are set out in Mayfield v. Kovac, Jr., 41 Ohio App., 310, 311, 181 N. E., 28, as follows:

“In determining whether or not it was error for the court to render such judgment, we must keep in mind the fact that a motion for a judgment on the pleadings is similar to a demurrer, for it raises only questions of law, and involves the substance rather than the form of the pleadings; and a court in passing upon such motion is required to liberally construe the pleadings in favor of -the party against whom said motion is made and give to the party against whom the motion is made every reasonable inference deducible from the pleadings, and the court is not permitted to consider anything not shown by the pleadings. We must also keep in mind that a judgment rendered on the pleadings is a judgment on the merits, and, when sustained in favor of the one who makes the motion, results in a final judgment in his behalf. Rhoades v. McDowell, Recr., 24 Ohio App., 94, 156 N. E., 526.”

The section of the Code above quoted (Section 10509-112, G-eneral Code) has been held to be a statute of limitation or nonclaim statute, which bars claims not presented to an administrator or executor within four months after the date of appointment. Beach v. Mizner, 131 Ohio St., 481, 3 N. E. (2d), 417. It is further held that the statutory requirements are mandatory and may not be waived by the personal representative. Prudential Ins. Co. of America v. Joyce Building Realty Co., and The Prudential Ins. Co. of America v. Huntington National Bank of Columbus, Trustee, 143 Ohio St., 564, 56 N. E. (2d), 168.

The claim in this case to be presented is the cause of action which exists by virtue of the wrongful death statutes and which may be asserted only in the name of the personal representative of the deceased, even •though for the benefit of the surviving spouse, children, or other next of kin.

Would not demand by one who qualified as beneficiary under Section 10509-167, General Code, be a vain thing, for the reason that disallowance of the individual demand could not be followed under the law by individual action?

Again, how would payment to one individual beneficiary protect the administrator from claims of further beneficiaries and, thus, multiple liability?

The law as it stands reserves to the court the function of determining who the proper beneficiaries are and of effecting a proper distribution among them, thus enabling the administrators to safely pay and achieve the over-all object of the statutes involved, which is to effect a speedy settlement and distribution and closing of decedents’ estates. The courts have said in the casé of a minor that the disability had nothing to do with the statutes on presentment of claims and even where a minor was beneficiary, the action was to the administrator and the claim had to be presented within four months. In Breen, Admx., v. Conn, 64 Ohio App., 325, at pages 327, 328, 28 N. E. (2d), 684, it is said:

“ Section 10509-112, General Code, is what is known as a nonclaim statute (Beach v. Mizner, supra) — that is, one which required an act to be done as a prerequisite to the accrual of a cause of action; and the general rule as to such statutes is that all persons, whether under disability or not, are bound thereby unless excepted from their operation by a saving clause. ’ ’

We, therefore, conclude that, although giving to the general denial of the failure to present the claim the most generous inference of referring to presentment by a proper beneficiary, such presentment could not remotely satisfy the statute requiring the thing to be done before suit, to be done by an administrator or executor before the cause of action could arise.

Since the pleadings admit the plaintiff’s appointment was not made until more than four months after the date of the appointment of defendant administrator, compliance with Section 10509-112, General Code, is shown to be impossible. A failure to comply is a bar to the action and being thus shown by.the pleadings, the motion for judgment thereon was rightfully sustained.

Judgment affirmed.

Ross, P. J., Hildebrant and Matthews, JJ., concur in the syllabus and opinion.


author: Ross, P. J.

text:
    Royalty, Appellee, v. Southeastern Greyhound Lines, Inc., Appellant.
    (No. 6453
    Decided January 22, 1945.)

      Mr.'Edward G. Benson, for appellee.

      Mr. Thomas L. Talleniire and Mr. Leonard Garner, Jr., for appellant.
   Ross, P. J.

This is an appeal on questions of law from a judgment of the Municipal Court of Cincinnati in favor of the plaintiff. Trial was had to the court without a jury. By the action, plaintiff sought to recover from the defendant the value of certain luggage which she had checked with it in connection with her carriage as a passenger from Cincinnati, Ohio, to Macon, Georgia, and which the defendant failed to deliver upon her presenting a baggage check in Macon.

The defendant is an interstate common carrier of passengers by motor vehicle and subject to the provisions of the acts of Congress applicable to such carriers. Those acts govern the liability of the defendant in this action.

In Title 49, U. S. Code, Section 20 (11) of the Interstate Commerce Act, it is provided in part as follows :

“Provided, however, that the provisions hereof respecting liability for full actual loss, damage, or injury, notwithstanding any limitation of liability or recovery or representation or agreement or release as to value, and declaring any such limitation to be unlawful and void, shall not apply, first, to baggage carried on passenger trains or boats, or trains or boats carrying passengers * * *.”

Section 319 of such act provides:

“Section 319. Application of section 20 (11) and (12) of this title to common carriers by motor vehicle.
“The provisions of section 20 (11) and (12) of this title, together with such other provisions of chapter 1 of this title (including penalties) as may be necessary for the enforcement of such provisions, shall apply'with respect to common carriers by motor vehicle with like force and effect as in the case of those persons to which such provisions are specifically applicable.”

The defendant has on file in the office of the Interstate Commerce Commission a copy of its published “Rules and Regulations Tariff, No. 50-B,” in which is the following rule affecting the carrying of baggage of passengers upon the various lines engaged in interstate commerce:

“Baggage. Baggage not exceeding 150 pounds in weight or $25 in value will be transported free for a passenger upon presentation of one adult passage ticket, and baggage not exceeding 75 pounds in weight or $12.50 in value will be transported free for a child traveling on a half fare ticket, subject to the following conditions:
“Baggage weighing in excess or valued above the free allowance will be charged for in accordance with published tariffs. No single piece of baggage weighing more than 150 pounds or valued at more than $225 will be transported.
“Unless a greater sum be declared by the shipper and excess valuation charges be paid therefor according to tariff regulations, the value of baggage weighing 150 pounds or less checked for an adult is agreed not to exceed $25 in value and the value of baggage weighing 75 pounds or less checked for a child traveling on a half fare ticket is agreed not to exceed $12.50.
“No single piece of baggage will be handled that in its greatest dimensions exceeds twenty-four (24) inches in height, and twenty-four (24) inches in width or breadth, or over forty-five (45) inches in length.
“Passengers paying charges for excess weight, or valuation will'receive an excess baggage check, which must be surrendered to agent with other checks, if any, when baggage is claimed.
“All baggage and other property transported shall carry on the outside and in the inside, the name, and full address of the owner.
“The issuing carriers do not obligate themselves to forward baggage and other property on any specified schedule, but reserve the right to give passengers precedence over baggage and other property and to transport same when the necessary space is available,
“No responsibility or liability will be assumed for unchecked baggage, articles or other property left in stations or buses.”

The baggage check in evidence issued by defendant to plaintiff contains upon the reverse side the following language:

“Prom Cincinnati, Ohio (Cheeked at)
“Notice to Passenger:
“By accepting this baggage check the acceptor agrees that:
“(1) Except as otherwise provided by state regulations and subject to all other conditions of lawfully published tariffs, the issuing company is NOT liable for a greater amount than $25 to any one passenger in the event of loss or damage to property covered by this and/or other baggage cheeks issued to the same passenger; unless greater amount is declared in writing at the time of checking. In which case charges for excess value will be collected, and an excess baggage check will be issued.
“(2) The issuing company will NOT be liable for loss or damage after baggage has been delivered to connecting carrier.
“(3) Passengers are instructed to claim baggage promptly at destination indicated on baggage check to avoid payment of storage charges.
“This check must be surrendered in order to obtain baggage.”

Prom the evidence it appears that plaintiff entered the Cincinnati bus terminal of the defendant’s lines and gave two suitcases to a “red cap” porter who took the luggage to a baggage window, checked it, received the baggage check and gave it to the plaintiff who then took passage to Macon, Georgia, upon a bus operated by defendant. Upon her arrival, she sought to secure her luggage upon presenting the baggage cheek, but the luggage could not be found and has never been found. The defendant tendered plaintiff $25 as the limit of its liability under the terms printed upon the baggage check, in its published tariff rules, and under the acts of Congress noted. The plaintiff claimed the full value of the suitcases and their contents, which she estimated to be $160. The defendant tendered the $25 in open court and the same was again refused.

The trial court refused to consider the limitation upon liability, and entered judgment in favor of plaintiff for the full amount claimed.

In this, the court committed error. The limitation claimed by the defendant was authorized under the law noted. It was the duty of the plaintiff to declare the value of her luggage if she expected to recover any amount in excess of $25, in the event of its loss by defendant. Her failure so to do limits the defendant’s liability to $25.

In the opinion of Doyle, J., in Patton v. Pennsylvania Greyhound Lines, ante, 100, almost identical facts were considered. The conclusion of that court is entirely consistent with the conclusions reached by this court in this appeal. See, also, Hartzberg v. New York Central Rd. Co., 41 N. Y. Supp. (2d), 345.

The judgment of the trial court is modified, and the judgment which the trial court should have rendered, to wit, for $25, in favor of the plaintiff, is now rendered by this court.

Judgment accordingly.

Ross, P. J., Hildebrant and Matthews, JJ., concur in the syllabus and opinion.


author: Carpenter, J.

text:
    Friedly, Appellant, v. Schmidlin, Appellee.
    (No. 4024
    Decided February 14, 1944.)

      Mr. Thomas N. Bierly and Mr. U. G. Denman, for appellant.

      Mr. Thomas J. Mattimoe, for appellee.
   Carpenter, J.

On August ‘20, 1943, plaintiff filed, under Section 11334, General Code, a petition in the short form in which he alleged by copy a promissory note made to him by defendant on January 1,1921, due on or before January 1, 1924, for $380, with interest. It is also alleged that “there is one endorsement on said note as follows: ‘Apr. 25, 1934, paid $20,’ ” and that “there is now due and owing on said note, from defendant to plaintiff” $840, for which plaintiff prayed judgment.

Defendant filed a demurrer to the petition, on the ground that the action was barred by the statute of limitations. The demurrer was sustained and the petition dismissed. Plaintiff appeals on questions of law.

The question is: Was there a sufficient allegation of payment by the defendant of the $20? If not, the action not having been begun within fifteen years from the due date, was barred. Section 11221, General Code. If there was, the petition was good on demurrer. Section 11223, General Code.

Section 11334, General Code, in part provides:

“In an action '* * * upon an instrument for the unconditional payment of money only, it shall be sufficient for a party to set forth a copy of the * * * instrument, with all credits and the indorsements thereon, and to state that there is due to him, on such * * * instrument, from the adverse party, a specified sum which he claims, with interest.”

The petition here is a substantial compliance with that section, and it is fair to infer that plaintiff charged that the twenty-dollar payment was made by the defendant. If such payment is denied, the burden will be upon the plaintiff to prove that it was so made. Such was the construction given that statute in paragraph one of the syllabus in Dykeman v. Johnson, 83 Ohio St., 126, 93 N. E., 626. On page 133 in the opinion in that case, it is said:

“By the enactment of this statute the Legislature obviously intended that the statements therein prescribed, when adopted by the pleader, should be held the equivalent of, and should imply and- import all that it would otherwise be necessary to specifically allege in the statement of a sufficient cause of action.”

The decisions in the promissory note cases cited and relied upon by the defendant relate to the proof of payment required and not to the sufficiency of the allegation of payment in the petition.

The demurrer should have been overruled. The judgment is reversed and the cause remanded with directions to do this, and for further proceedings.

Judgment reversed and cause remanded.

Lloyd and Stuart, JJ., concur.


author: Carter, J.

text:
    The State of Ohio, Appellee, v. Brewer, Appellant.
    (No. 3019
    Decided October 15, 1944.)

      Mr. C. G. L. Yearick, for appellee.

      Mr. W. P. Barnum, for appellant.
   Carter, J.

On or about June 29,1943, a special grand jury of Mahoning county returned an indictment against Blaine Brewer, defendant, appellant herein, which indictment contained two counts charging violation of Section 13062, General Code; the first count charging keeping a record of wagers on horse races, and the second count with keeping a room with books and papers for recording wagers on such races.

On October 6, 1943, defendant was arraigned and pleaded not guilty. Later, on October 18, 1943, he withdrew his plea of not guilty and entered a plea of guilty. Thereupon the court fined him $250 on each count, together with costs, and further sentenced him to the county jail for thirty days on each count. The jail sentence was suspended on payment of fine and costs and during future good behavior.

On May 23, 1944, which was approximately seven months subsequent to the sentencing and suspension of execution, Brewer was arrested by the police of the city of Youngstown for possessing paraphernalia used in gambling, to which charge he later pleaded guilty and was fined $500 and costs. On June 15, 1944, he was cited to appear before the common pleas judge who had imposed the sentence hereinbefore referred to,- and on motion of the assistant attorney general the court, on June 19, 1944, revoked the order of suspension and ordered that he be committed to the county jail, in accordance with the original sentence, for breach of the suspension terms. On hearing before the court to set aside and vacate the stay of execution Brewer objected to the jurisdiction of the court and to the introduction of evidence. After the court had ordered the order of suspension of sentence vacated and held for naught and had committed Brewer to the county jail, a motion for new trial was filed, which motion was overruled by the court and exceptions were noted.

Appeal is prosecuted to this court, it being urged that, at the time of the revoking of the order of suspension and ordering into effect the original jail sentence, the court was without jurisdiction to order such imprisonment; that the imposition of the jail sentence is contrary to law; and that the imposition of the jail sentence as ordered by the court is in violation of defendant’s rights as guaranteed to him by the Constitution of the state of Ohio and the Constitution of the 'United States.

The court made the following entry at the time of the plea of guilty by defendant: That defendant pay a fine of $250 on each count of the indictment and the costs of prosecution, and stand committed to the jail of Mahoning county until such fine and costs are paid or until otherwise discharged by due process of law; that defendant be confined and imprisoned in the county jail of Mahoning county, Ohio, for a period of 30 days on each count of the indictment; that for good cause shown the execution of the sentence of imprisonment is suspended upon the future good behavior of the defendant, and upon condition that defendant pay such fine and costs of prosecution herein; and that defendant is allowed until November 15, 1943, to pay the fine and costs.

. The record discloses no objection or exception was taken at the time of the original sentence, or to the terms of the suspension of execution. There were exceptions stated in the journal entry wherein the revocation of the suspension of execution was granted and the jail sentence was put into effect.

In 24 Corpus Juris Secundum, 183, the author states:

“In granting a suspension of sentence or probation the court may impose such reasonable conditions as it may deem fit, and if accused accepts such conditions he is bound to comply therewith.
“Among the conditions that have been held legal and proper, are that the one who has been granted a suspended sentence or probation, shall leave the state or country, maintain good behavior, violate no law, pay the cost of trial, make restitution to the government, or make payments to the person who has suffered loss, damage, or injury as a direct consequence of the crime.”

Further it is stated on page, 185:

“Duration of the suspension or probation period is generally controlled by statute, and within the statutory limits is largely within the discretion of the court."

Suspension of sentence or, more properly stated, staying of execution in criminal cases such as in the instant case, is purely statutory in Ohio. We need not, therefore, concern ourselves as to what the common law provided as to the inherent power of courts to suspend execution of sentence. Our Supreme Court has settled the question in the case of Municipal Court of Toledo v. State, ex rel. Platter, 126 Ohio St., 103, 184 N. E., 1, the third paragraph of the syllabus reading as follows:

“The trial courts of this state do not have the inherent power to suspend execution of a sentence in a criminal case and may order such suspension only as authorized by statute.”

. In the case of Madjorous v. State, 113 Ohio St., 427, 149 N. E., 393, the court says:

“The Ohio Legislature having dealt with the subject, and having made certain provisions and certain exceptions thereto, it will be presumed that the Legislature has exhausted the legislative intent, and that it has not intended the practice to be extended further than the plain import of the statutes already enacted. ’ ’

We are, therefore, forced to the conclusion that the trial courts of this state have no inherent power to suspend execution of sentence in criminal cases, and that such courts may do so only when authorized by statute.

In 1933 and shortly after the decision of the Supreme Court of this state in the case of Municipal Court of Toledo v. State, ex rel. Platter, supra, the Legislature enacted Section 13451-85, General Code (115 Ohio Laws, 543). This section provides:

“Any court sentencing a person for misdemeanor forbidden by statute or ordinance, may at the time of sentence remit the same or suspend such sentence in whole or in part, upon such terms as he may impose.”

This section applies to misdemeanor sentences only. It will be observed that the statute provides that the court in such cases may suspend such sentences in whole or in part upon such terms as he may impose. What were the terms the court imposed as a condition to the suspension of the execution of the jail sentence?It was upon the future good behavior of the defendant and the payment of fine and costs. The fine and costs have been paid. There is no claim made that this enactment is unconstitutional. If that were urged and such would be held to be the ease it would afford Brewer no comfort. We are therefore assuming this section to be a valid enactment, and therefore what action the court took basing that action under this statute was proper. This statute vests a discretion in the trial court in fixing suspension terms. There was no definite period of time fixed by the court during which the suspension was to continue; it was during future good behavior. Under the statute it was not necessary that the court fix any definite period of time.

In the case of State, ex rel. Clum, Dir. of Law, v. Municipal Court of Cleveland, 132 Ohio St., 147, 5 N. E. (2d), 489, the second paragraph of the syllabus in part provides:

“Such section, while it authorizes the trial court to suspend execution of sentence at the. time of its imposition, does not require the court to specify the exact time or duration of such suspension.”

The real question raised, and which has given us some concern, is how long a period, under this section', must elapse from the time of imposition of sentence and stay of execution thereof before such suspension of execution may be revoked for breach of the terms of suspension and the original sentence imposed? A perusal of authorities throughout the United States indicates a divergence of opinion on this question. ¡Some courts hold that, a definite period not having been fixed, a stay is tantamount to holding a sentence in terrorem over the head of a prisoner to secure future good behavior, and that such stays involve theexercise of the power to pardon, to commute penalties, and to relieve from the sentences imposed as punishment for crime, which power has not been given to the courts but confided exclusively in the executive branch of government. On the other hand it has been held that since the great end of punishment is not the expiation or atonement of the offense committed, but the prevention of future offenses of the same kind, courts ought to possess the power within certain limits to suspend the execution of a sentence during good behavior, and it is accordingly held that a court has power to stay the execution of a sentence during good behavior or under other similar conditions. 15 American Jurisprudence, 145, 146, Section 494. See, also, 15 American Jurisprudence, 138, Section 483, under the subject of suspension of execution of sentence during good behavior.

A perusal of the numerous cases examined indicates that many cases are so determined due to local statutes, that others deal with the inherent power of courts to suspend execution of sentence, and that others construe the common law rule as to the power of courts to suspend the execution of sentence. As hereinbefore indicated the right of trial courts to suspend the execution of sentence in misdemeanor eases is statutory in Ohio. We have searched the authorities in an attempt to locate a situation such as presented in the instant case, and have found some authorities bearing on this question. In the case of Weber v. State, 58 Ohio St., 616, 51 N. E., 116, which decision was rendered prior to the enactment of the above cited statute, the court held:

“In a criminal case the court has the power to suspend the execution of the sentence, in whole or in part, unless otherwise provided by statute; and has power to set aside such, suspension at any time during the term of court at which sentence was passed. Whether such suspension can be set aside at a subsequent term is not decided.”

However, the court in the course of its opinion stated:

“The suspension being in favor of the prisoner, is for his benefit, and is valid whether consented to by him or not. When the suspension is upon conditions expressed in the judgment, the prisoner has the right to rely upon such conditions, and so long as he complies therewith the suspension will stand.
“But when the suspension is without express conditions, as in this case, it is within the power of the court to set aside the suspension at any time during the same term, on its own motion, and to order the sentence to be executed.”

In the case of Matter of Hart, 29 N. D., 38, 149 N. W., 568, L. R. A. 1915C, 1169, decided by the Supreme Court of North Dakota in 1914, that court held:

“The exclusive power to grant commutations and pardons is vested by article 3 of the amendments to the Constitution of North Dakota in the board of pardons.
“Where the court suspends a jail sentence for an indefinite period, under the provisions of chapter 136 of the Laws of 1913, such suspension may be revoked and the defendant imprisoned even after the period of the sentence has expired.”

This was a case in which the jail sentence was suspended. The court in passing upon the issues involved states the issues thus:

“The question to be resolved in this case is whether, after an order suspending a jail sentence on which no commitment has been issued, and six months after the period of that sentence has expired, the court which imposed the sentence and suspended the same may revoke the order, and order the commitment of the defendant, and require her to serve out the original jail sentence. The statute under which the sentence was suspended * * * reads as follows:
: * * ‘where it appears that the public welfare does not demand or require that the defendant shall -suffer the penalty imposed by the law, said court or magistrate may suspend the execution of the sentence or may modify or alter the sentence imposed in such manner as to the court or magistrate, in view of all the circumstances, seems just and right..’ ”

There is a lengthy discussion to be found in this case relating to suspension and revocation of stays of execution in criminal cases. In the closing paragraph of' the case the court stated:

“If the defendant has neglected to take advantage of the opportunity offered, she has herself only to blame, and cannot complain if the order is afterwards revoked.”

In the case of Ex parte Lucero, 23 N. M., 433, 168 P., 713, L. R. A. 1918C, 549, decided by the Supreme Court of New Mexico in 1917, the court followed the holding-in a former case that the fact the time covered by the sentence had expired was immaterial, and that the sentence might be enforced at any time thereafter upon breach of the conditions upon which it was suspended.

In the case of State, ex rel. Tingstad, v. Starwich, 119 Wash., 561, 206 P., 29, decided by the Supreme Court of Washington in 1922, the court held that on violation by a convicted person of the terms upon which a sentence of imprisonment was suspended, under Laws 1921, p. 204, he may be required to serve it, although the period of the original sentence has expired.

In that case the defendant pleaded guilty to the charge of vagrancy, and was sentenced to serve a term of six months in the jail of that county, but the sentence was suspended during good behavior and until further order of the court. More than six months after the entry of judgment the court was petitioned to set aside and vacate so much of the judgment as was suspended. The court in that case observed:

“The courts are in irreconcilable conflict on the question whether the trial court, in a criminal case, has power to suspend the execution of a sentence where there is no statute authorizing such action. Some courts hold that, in the absence of a statute, any action of the court suspending the execution of a sentence is void and of no effect, while other courts hold that the court passing the sentence has an inherent right to suspend it for an indefinite time.”

The court then observed that it was not necessary to discuss this question because of a statute in that state which among other things provides:

* * the court may in its discretion, at the time of imposing sentence upon such person, direct that such sentence be stayed and suspended until otherwise ordered by such court, and that the sentenced person be placed under the charge of a parol or peace officer.”

The court, later in the opinion, stated:

“ * * * .The appellant argnes that, in any event, he cannot be committed after the expiration of the period of the original sentence, because to so hold would authorize the court at any and all times to enforce its sentence, thus hanging it over him all the days of his life. This, however, is no valid argument in support of his position. He cannot wipe out the sentence lawfully imposed upon him without paying the penalty. If he does not wish to have the sentence hang over him he has a perfect right to refuse the clemency of ' the court and serve his time. The very purpose of permitting the court to suspend the operation of the sentence is to give the defendant an opportunity thereafter to comport, himself with good behavior. If he does not do so, he cannot complain if he is required to serve the sentence. It is true there are a few cases which seem to hold to the contrary, but in the light of the purpose of our statute authorizing the court to suspend sentence, we cannot follow those cases.”

In the case of State v. Zolantakis, 70 Utah, 296, 259 P., 1044, 54 A. L. R., 1463, decided by the Supreme Court of Utah in 1927, the court held:

“One whose sentence is suspended during good behavior, without reservations, has vested right to rely thereon, so long as such condition is complied with; purpose of Laws 1923, c. 74, permitting suspension of sentence, being reformatory.”

The statute in that state provides :

“Upon conviction of any crime or offense if it appears compatible with the public interest the court having jurisdiction may suspend the imposition or the execution of sentence and may place the defendant on probation for such period of time as the court shall determine.”

The court in that case cited 16 Corpus Juris, 1335, Section 3141, wherein the author states:

“A court having power to make an order suspending the execution of its judgment in criminal cases, necessarily, upon violation of such order, has the power to revoke the same and to enforce the original judgment by commitment; and such right is not impaired or limited by the passing of the term in which such suspension is made. Where, however, the suspension is upon conditions expressed in the judgment, the prisoner has the right to rely upon such conditions, and so long as he complies therewith the suspension will stand.”

The court cites as authority Weber v. State, supra. In the course of the opinion the court stated:

“It must be assumed that when the trial court stated the sentence should be suspended during good behavior it meant just what was said, when, as in the instant case, nothing in the sentence indicates otherwise.”

We think the reasoning as expressed in the case of State, ex rel. Caldwell, v. Skinner, 59 S. D., 68, 238 N. W., 149, is sound, and no doubt our Legislature had such theory in mind in the enactment of Section 13451-8b, General Code. The court in that case stated:

“The fundamental theories of criminology and the administration of criminal law have appreciably changed since the days of which Sir James Stephen could say with a considerable degree of truth that the then criminal law of England was ‘mainly a system of licensed revenge.’ Laws permitting probation, parole, indeterminate sentence, suspension of sentence, etc., are manifestations of a comparatively modern shift in criminological theory; the trend being away from the rule of so-called ‘strict law’ which demanded a fixed and positive penalty for every crime and the infliction thereof in every case to which it might be applicable, and toward the theory that some degree of discretion should be vested in a judge, probation officer, or other board or body, permitting an adjustment of the penalty to the character of the particular criminal and the circumstances of his individual case. This latter method has come to be known to criminologists as ‘individualization of punishment,’ and its real foundation lies, not in the desire to deal kindly or charitably with an individual defendant, not in humanitarianism or sympathy, but primarily in the belief that the welfare of the state and of organized society will be better served by adjusting the treatment of the criminal to his character and the circumstances of his crime rather than to the mere nature and classification of the crime itself. Benefit to the individual criminal is incidental. It is a mere means to an end. The chief end is the welfare of society. It is conceived that in many cases, particularly with first offenders, by such measures the incipient development of a criminal character.may be aborted and society thereby relieved; that his reformation may be accomplished and he may become a useful member of society rather than a perpetual menace, burden, and expense to society as a chronic criminal offender.”

We are inclined to the latter view, that the Legislature which is the sole source of authority to authorize suspension of execution of sentences may provide that the court may suspend the execution of a sentence on such terms as such court may impose. In other words, the Legislature of this state has authorized the trial judge to exercise certain discretionary powers relative to the suspension of sentences at time of imposition. Now under such a suspension of execution as in the instant case, when may the suspension be revoked and the sentence pronounced be carried into effect? By the weight of authority a statute is not unconstitutional because it confers on a court the power to suspend a sentence indefinitely in the discretion of the court. A minority hold otherwise. 15 American Jurisprudence, 149, Section 499. It appears to us that if courts are granted the power to suspend indefinitely or during- good behavior the court has the right to revoke such suspension on breach of such terms as imposed and carry the original sentence into execution as long as no time limit is provided by statute or in the terms imposed.

It is claimed by counsel for defendant that the revocation must be within a reasonable time following the imposition and suspension of execution, and if not done within a reasonable time the jurisdiction to enforce the sentence is lost. Looking- to the statute we find no period of time fixed as the duration of the suspension of execution, and we are of the view that inasmuch as no time is fixed the court may at any time on breach of the terms imposed order the sentence into execution. However, if we are in error in so holding and the court after an unreasonable time loses jurisdiction to carry the sentence into effect, we are of the view and hold that a lapse of seven months since the time of pronouncing sentence and stay of execution is not unreasonable and that the court did not abuse its discretion nor had the court lost jurisdiction due to an unreasonable lapse of time. Surely if the Legislature has power to fix penalties for criminal acts it has the undoubted right to make provisions for suspension of execution of same. This our Legislature has done, and if a limited period should be provided after which revocation of suspension should not be permitted appeal should be had to the Legislature and not to the judicial branch of government.

Judgment affirmed.

Phillips, P. J., and Nichols, J., concur.