author: Phillips, J.

text:
    Moskell, Appellee, v. Industrial Commission of Ohio, Appellant.
    (No. 873
    Decided May 17, 1951.)

      Mr. Thomas F. Joseph, for appellee.

      Mr. C. William O’Neill, attorney general, Mr. Chal-mers P. Wylie and Mr. Leander P. Zwiclc, Jr., for appellant.
   Phillips, J.

In this opinion the parties will be called plaintiff and defendant.

Defendant,- the Industrial Commission of Ohio, appealed to this court on questions of law from a judgment of tlje Court of Common Pleas entered upon a finding of a judge of that court (to whom the cause •was submitted by agreement of counsel) in favor of plaintiff, on plaintiff’s appeal to that court from defendant’s order denying plaintiff the right, on rehearing of his claim, to participate in the workmen’s compensation fund of Ohio on the ground that “proof of record fails to show that claimant’s disability is the result of an injury sustained in the course of and arising out of employment. ’ ’

By assignments of error, defendant contends that “the Court of Common Pleas erred in,overruling the motion of defendant for a judgment in its favor; erred in overruling the motion of the defendant for a new trial”; that “the finding of the court and the judgment entered thereon are contrary to the weight of the evidence” and “contrary to law”; and that there are “other errors apparent on the face of the record.”

On October 21, 1947, plaintiff, since 1942 an employee of the Y & 0 Coal Company, a corporation amenable and contributing to the workmen’s compensation, fund of Ohio, was laying track in the north entry of the coal company’s Dorothy mine, where he was employed and had worked for some five years under conditions similar to those under which he worked that day. On that day plaintiff worked in cold water deep enough in places to run into and fill his rubber boots, necessitating emptying them several times.

Plaintiff alleged, and introduced medical testimony and other evidence to prove that as the direct and proximate result of working under such conditions the blood vessels of his legs were injured and swelled suddenly, which swelling was accompanied by acute pain; that he suffered from arthritis and injury to his heart and aggravation of an existing arthritic and heart condition, which disabled him permanently; and that his attendant physical injuries were causally related to his exposure on October 21, 1947.

Plaintiff’s medical witness testified:

“It is my opinion that that exposure and the exposure to cold injured the blood vessels in his legs, causing the impaired circulation through the extremities, accentuating, precipitating or aggravating the arthritis in his knees. * * *

“At the time I examined Mr. Moskell, I found that he had a definite endarteritis disease involving particularly the left leg.

“It is my opinion that this was caused by the injury to the blood vessels sustained by the exposure to cold. That injury to his blood vessels also affected adversely or caused or precipitated or aggravated arthritis in his knees, causing swelling in those knees and by the general effect upon Mr. Moskell’s bodily economy, it caused damage to or accentuated what damage he may have had to the heart and blood vessels throughout his body and caused the symptoms of arthritis throughout his body, as I found at the time of my examination. ’ ’

Upon cross-examination plaintiff’s physician testified as follows:

“Q. Doctor, you feel that this exposure on this one day then ivas the straw that broke the camel’s back? Is that correct? A. From the facts given to me in the hypothetical question, I must express that opinion.”

Plaintiff testified, inter alia, as follows:

“Q. Was there any difference in the water in this entry on that day, than water other days? I mean, on this particular day, was the water any different? A. No.

“Q. Was the water cold all the time? A. All the time cold. * * #

“Q. You say, Mr. Moskell, that there is usually water in these different entries, is that right ? A. Yes.

“Q. How long a period had there been water in there that you worked there? How long had that continued? A. All the time.

“Q. That is before October, too? A. Before October, yes.

“Q. Before October of 1947? A. 1947. * * *

“Q. Did you work in those places then when the water was anywhere from two to three inches to three feet deep? A. Yes, 1 working, sure.

“Q. At the time you were working — before you were working in those places, before October in 1947, did you get water in your boots then, too? A. Sure.

“Q. Was the water cold? A. Yes.

“Q. How deep was the water ? A. About two, three feet deep. * * *

‘ ‘ Q. Had that happened before, this water, and had you worked in it? A. Yes. * * *

‘ ‘ Q. Was the water cold, Mr. Moskell, all the time when you were working in it? A. Cold all the time, get cold, wind, cold water, cold everything. * * *

“Q. Did you work eight hours regularly, before October of 1947, Mr. Moskell? A. Yes. * * *

“Q. Yes, go ahead. A. See, that time, that one time, my knees swell, and jag me like needle, one time.

“Q. On that day, were the conditions — that is, was the water any different from what it had been in the past, or was it about the same? A. Water one place, got deeper water one place, about foot, two foot. * * *

“Q. Was the water cold, Mr. Moskell, all the time you were working in it? A. Cold all the time, got cold, wind, cold water, cold everything.” (Emphasis added.)

By brief defendant contends:

“The sole issue in this case is whether or not there is competent and sufficient evidence adduced in the record to show that claimant sustained an injury in the course of and arising out of- his employment within the meaning of the Workmen’s Compensation Law of Ohio.”

In support, of its contention that plaintiff’s injury was not sustained in the course of and did not arise out of his employment within the meaning of the Workmen’s Compensation Act, defendant discussed the origin and constitutionality of that act, defined a compensable injury, quoted portions of the Ohio Constitution, and reviewed the following cases, with all of which of course, like the Supreme Court and counsel for the respective parties", we are thoroughly familiar and have reconsidered in arriving at our conclusions. The cases cited are: Industrial Commission v. Franken, 126 Ohio St., 299, 185 N. E., 199; Industrial Commission v. Lambert, 126 Ohio St., 501, 186 N. E., 89; Goodman v. Industrial Commission, 135 Ohio St., 81, 19 N. E. (2d), 508; Gwaltney, a Minor, v. General Motors Corp., 137 Ohio St., 354, 30 N. E. (2d), 342; Vogt v. Industrial Commission, 138 Ohio St., 233, 34 N. E. (2d), 197; Cordray v. Industrial Commission, 139 Ohio St., 173, 38 N. E. (2d), 1017; Matczak v. Goodyear Tire & Rubber Co., 139 Ohio St., 181, 38 N. E. (2d), 1021; Malone v. Industrial Commission, 140 Ohio St., 292, 43 N. E. (2d), 266; Maynard v. B. F. Goodrich Co., 144 Ohio St., 22, 56 N. E. (2d), 195; Reynolds v. Industrial Commission, 145 Ohio St., 389, 61 N. E. (2d), 784; Nelson v. Industrial Commission, 150 Ohio St., 1, 80 N. E. (2d), 430; and Gerich v. Republic Steel Corp., 153 Ohio St., 463, 92 N. E. (2d), 393, in which latter case the judgment of this court was reversed.

To support his position that plaintiff was entitled to participate in the workmen’s compensation fund, and that the judgment of the Court of Common Pleas should be affirmed, plaintiff cited the following cases, some of which dealt with the question of hazard, with all of which we, like the Supreme Court and counsel for the respective parties, are also familiar. Industrial Commission v. Polcen, 121 Ohio St., 377, 169 N. E., 305; Industrial Commission v. Franken, supra; Spicer Manufacturing Co. v. Tucker, 127 Ohio St., 421, 188 N. E., 870; Industrial Commissions. Carden, 129 Ohio St., 344, 195 N. E., 551; Goodman v. Industrial Commission, supra; Kaiser v. Industrial Commission, 136 Ohio St., 440, 26 N. E. (2d), 449; Cordray v. Industrial Commission, supra; Metczak v. Goodyear Tire & Rubber Co., supra; Maynard v. B. F. Goodrich Co., supra; Reynolds v. Industrial Commission, supra; Sebek v. Cleveland Graphite Bronze Co., 148 Ohio St., 693, 76 N. E. (2d), 892; Nelson v. Industrial Commission, supra; Jones v. Industrial Commission, 60 Ohio App., 465, 21 N. E. (2d), 1014; and Board v. Industrial Commission (unreported), No. 673, Court of Appeals for Columbiana county.

The trial judge bottomed Ms decision that plaintiff was entitled to participate in the workmen’s compensation fund in part upon the case of Jones v. Industrial Commission, supra, in the second paragraph of the syllabus of which it is said:

“An employee, who [as in the case we review], while, performing work for his employer, is exposed to a special or peculiar danger from the elements which is greater than that to which other persons in the community are exposed, and from which an unexpected and unforeseen disablement results which is causally connected with the conditions of emplbyment, is accidentally injured within the purview of the Workmen’s Compensation Law.”

Paragraphs two, three and four of the syllabus in the case of Malone v. Industrial Commission, supra, are as follows:

“When, in connection with an intentional act on the part of a workman which precedes an injury to Mm, something unforeseen, unexpected, and unusual occurs which produces the injury or from which the injury results, it is accidental in character and result.

“When an employee, by reason of the activities, conditions and requirements of his employment, is subjected to a greater hazard than are the members of the general public, and he is accidentally injured thereby, a causal connection between the employment and his injury is established.

“Heat exhaustion, suddenly and unexpectedly suffered by an employee as a result of the circumstances and requirements of his employment subjecting him to a greater hazard than that to which members of the general public are subjected,-in this case by reason of working in a superheated foundry resulting in his death within twelve hours after the attack, constitutes an accidental traumatic injury under the Workmen’s Compensation Act of this state.”

In the opinion in the case of Nelson v. Industrial Commission, supra, on page 12, Stewart, J., speaking for the court, said:

“The second paragraph of the syllabus in the Sebek case is as follows [Sebek v. Cleveland Graphite Bronze Co., 148 Ohio St., 693]:

“ ‘An injury occurs in the course of and arises out of employment within the contemplation of the Ohio Workmen’s Compensation Act, if the injury followed as a natural incident of the work' and as a result of exposure occasioned by the nature, conditions or surroundings of the employment.’

“On page 696 of the opinion, Judge Zimmerman quoted with approval the definition of injury contained in the first paragraph of the syllabus in the Malone case and said:

“ ‘This court has held in a number of cases that bodily harm, which occurs to a workman by the sudden, unexpected and unforeseen inhalation of noxious or poisonous gases or fumes, or by contact with a a poisonous substance, constitutes a compensable injury within the meaning of the provisions of the Workmen’s Compensation Act of Ohio. In such a situation, compensation is awarded on the basis of the injury and not for the '■ disability or disease which may be attributable thereto.’ ”

We are particularly impressed with the clarity and soundness of the- reasoning found in the opinions written in those three cases. Applying the law announced therein to “the peculiar facts of the individual case” we review, which as Turner, J., said in the case of Cordray v. Industrial Commission, supra, in quoting from Goodman v. Industrial Commission, supra, “are largely controlling,” we conclude that the law announced in those cases controls in the instant case, and that the trial judge did not err to defendant’s prejudice in any of the respects urged by defendant.

Defendant’s counsel have neither called our attention to “other errors apparent on the face of the record, ’ ’ alleged as a ground of error, nor complied in respect thereto with the provisions of Rule VII of this court that his briefs ‘ ‘ shall contain a statement of the questions presented and a succinct statement of so much of the cause, referring to the pages of the record, as is necessary to show how the questions arose, together with a statement of the authorities relied upon.” Accordingly we will not pass upon this assigned ground of error.

Griepith, J., concurs.

Nichols, P. J., concurs in judgment.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    Moran et al., d. b. a. Moran Bros. Drilling Co., Appellees, v. Johnson et al., Appellants.
    (No. 2008
    Decided January 16, 1952.)

      Mr. Walter Dunwoody, for appellees.

      Messrs. Sheppard é Agnew, for appellants.
   Montgomery, J.

The appeal to this court is from an order of the Court of Common Pleas directing the foreclosure of a mechanic’s lien and a' sale of the property involved.

The defendants Charles and Mary Johnson were the owners of the real estate upon which a lease had been executed for gas and oil purposes, and under which lease two wells have been drilled. The so-called number one well is a completed and producing well. The so-called number two well is a nonproducing well. The plaintiifs-appellees had drilled on the leasehold estate the number two well, and the agreed statement of facts upon which the case was tried in -the court below shows that there is due them and unpaid the amount of $4,848.20.

Two curious things are to be noted about the record in this case.

There are presented to us two motions, one by the plaintiffs and one by the defendants, to dismiss this proceeding. We find no merit in either of these motions and both of them are overruled.

There is nothing in the pleadings or in the agreed statement of facts, which is incorporated in the, bill of exceptions, to show any connection on the part of the defendant Burton with this lease or indebtedness. However, he defended the action by filing an answer, to which we will direct attention hereinafter, and in the brief filed by his counsel it is stated that he acquired the interest of the original lessees on July 1, 1951. He has waived any technicality that might otherwise have been raised.

By his answer Burton admits all the allegations of the petition, but says “in avoidance thereof” that the labor and material furnished by the plaintiffs were for the construction and drilling solely of the number two well, which is a nonproducing well, and that all royalties and payments received have come from the number one wfell, which had been paid for in full, and from which funds were being derived. He takes the position in his answer and in brief that the lien of the plaintiffs must be confined solely to the number two well and the equipment therein or thereon. The sole issue presented to us is whether this contention is correct, or whether the lien properly applies to the leasehold estate as such, which would include number one well and the proceeds thereof.

Defendants rely upon the old case of Devine & Thomas v. Taylor, 4 C. D., 248, 12 C. C., 723, a decision rendered in 1894. The statute authorizing mechanics’ liens on oil and gas wells has been amended since that date, but even under the wording of 'the section of the Revised Statutes then in force, we think the court which rendered that decision was in error. That decision is not binding upon us, and, as it was an old Circuit Court decision rendered prior to the establishment of the Courts of Appeals of Ohio, the so-called conflict rule in decisions does not hold.

Consider Section 8310,f General Code, which provides for the obtaining of mechanics’ liens. It authorizes, among other things, a lien “for digging, drilling, boring, operating, completing, or repairing of any gas well, oil well, or other well * * It further provides that one furnishing labor or material shall have a lien upon “such gas well, oil well, or other well” and “upon the interest, leasehold, or otherwise, of the owner, part owner, or lessee, in the lot or land upon which they may stand * *

The language of this statute, it seems to us, is such as to make it clear that the Court of Common Pleas was correct in ordering the sale of this leasehold estate, including well number one and its proceeds.

The theory back of mechanics’ liens is that the one who furnishes labor or material in the improvement or development of an estate, whether freehold or leasehold, or in an attempt to improve or develop it, is in a different class from an ordinary creditor, because his contribution is made directly to the specific property and for its benefit, and upon that property he should have a specific lien.

The labor and material furnished by the plaintiffs were furnished in an endeavor to improve and increase the value of this leasehold estate which Burton admits he owns, and to improve it by the drilling of an additional well, which happened to prove an unfortunate venture. In other words, the contribution of labor and material by plaintiffs was for the presumed benefit and advantage of the existing leasehold estate. It was not for the benefit and advantage of well number two because at the time of the contract well number two was not in existence. .

The judgment is affirmed.

Judgment affirmed.

McClintock, P. J., and Putnam, J., concur.


author: Carpenter, J.

text:
    Lawrence, Appellee, v. Moore, Appellant.
    (No. 594
    Decided October 9, 1950.)

      Messrs. Freeman & Freeman, for appellee.

      Messrs. Miller & Miller, for appellant.
   Carpenter, J.

This appeal on questions of law is from an order granting a motion to vacate and ■ set aside a judgment for the defendant and ordering a new trial. The motion contained ten grounds. The' order, which was entered March 22,1950, did not specify the ground or grounds on which it was granted. On March 24, 1950, the defendant filed a motion asking the court to state in its order the ground or grounds upon which it vacated the judgment and ordered, a new trial. The court did not act on that motion, and on April 5, 1950, defendant filed his notice of appeal.

Section 12223-2, General Code, as amended, effective September 30, 1947, makes such action by the court mandatory and it is especially important in this case, not only that there may be an orderly consideration of the review, but because one of the grounds of the motion for a new trial was that the verdict and judgment were against the weight of the evidence. If that were the ground on which the motion was granted, and there should be another trial, proper application of Section 11577, G-eneral Code, which forbids the granting of more than one new trial on that ground, could not be made unless the order is made clear in this respect.

In two cases, this court has dealt with similar records. Merriam v. Bonded Oil Co., 81 Ohio App., 309, 79 N. E. (2d), 381, and Macias v. Danford (unreported), decided May 23, 1949, by the Court of Appeals of the Sixth Appellate District.

Following the procedure applied in those cases, the order vacating the judgment herein will be reversed and the cause remanded with directions to the court to redetermine the motion to vacate, and, if granted, to comply with the request to specify the ground or grounds of its action in so doing.

Judgment reversed.

Conn and Fess, JJ., concur.


author: Thompson, J.

text:
    Davis, Admr., Appellant, v. Lanesky et al., Appellees.
    (No. 22243
    Decided November 19, 1951.)

      Messrs. McAfee, Grossman, Taplin, Hanning, Newcomer & Hadett, for appellant.

      Mr. J ohn T. Laslco, for appellees Mike Lanesky and George J. Ritz.

      Messrs. Schaefer & Schaefer, for.appellee Karl L. Debes.
   Thompson, J.

This cause is in this court on appeal on a question of law from a final order of the Common Pleas Court. The sole question is one involving joinder of parties defendant.

Plaintiff, administrator of the estate of Grace Cora Davis, deceased, filed a petition setting forth a cause of action for wrongful death, joining as defendants one Karl L. Debes, a dealer in refrigerator parts and equipment, with Lanesky and Ritz, who were in the business of repairing electric refrigerators. It is alleged that the defendant Debes sold an unmerchantable and defective rotary seal assembly for a refrigerator to defendants Lanesky and Ritz who installed such defective assembly in plaintiff’s decedent’s refrigerator in an improper and negligent manner. The petition charges that the decedent died as a result of asphyxiation from sulphur fumes which escaped shortly after the installation, as a proximate result of the separate negligence of the seller of the alleged defective equipment and the defendants who did the repair work.

The trial court sustained a demurrer filed by the defendant Debes on the ground of misjoinder of parties defendant, and, plaintiff not desiring to plead further, the court dismissed the petition as to defendant Debes and entered judgment for him against plaintiff. The latter has appealed to this court.

Counsel for the parties have conceded that the question involved is one of apparent first impression in this state. Briefs of both counsel cite the recent cases of Kniess v. Armour & Co., 134 Ohio St., 432, 17 N. E. (2d), 734, 119 A. L. R., 1348, and Wery v. Seff, 136 Ohio St., 307, 25 N. E. (2d), 692. Neither case appears precisely in point as to the present question, but from them and other earlier Ohio cases we deduce three principles, apparently uncontradicted in this state: (1) Joint tort-feasors may be joined as defendants; (2) there is no right of contribution as between joint tort-feasors; (3) where, with respect to the injured party, the individuals responsible as between themselves possess primary and secondary liability, that is, where a right of contribution from the defendant secondarily liable is indicated, the relationship of joint tort-feasor does not exist.

In addition to these principles, we should also keep in mind, in approaching any question involving join-der of defendants, Section 11255, General Code. This section, originally enacted as Section 35 of the Code of Civil Procedure (51 Ohio Laws, 62, effective July 1, 1853), provides as follows:

“Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of a question involved therein. ’ ’

It has been said that the General Assembly, in enacting the foregoing provision,' adopted the chancery rule. 30 Ohio Jurisprudence, 759, “Parties” Section 42.

Examination of the Ohio cases on the subject of joinder of parties defendant discloses a lack of uniformity in the decisions, arising not so much out of disagreement on general principles as in application of them by the courts. It appears likewise that the Ohio courts, particularly in the earlier cases, occasionally used language both general and ambiguous in expressing the reasons for their conclusions. In attempting to rationalize the decisions and to obtain some guiding principle, we have found three cases most helpful, i. e., Wery v. Seff, supra; Meyer v. Cincinnati Street Ry. Co., 89 Ohio App., 169, 100 N. E. (2d), 437 (affirmed, Meyer v. C. S. Ry. Co., 157 Ohio St., 38); Tishler v. Taxicabs of Cincinnati, 11 Ohio Opinions, 17, 4 Ohio Supp., 188. The cases since Wery v. Seff, in which the Ohio Supreme Court has discussed the circumstances allowing joinder of defendants, include Losito v. Kruse, Jr., 136 Ohio St., 183, 24 N. E. (2d), 705, 126 A. L. R., 1194; Larson v. Cleveland Ry. Co., 142 Ohio St., 20, 50 N. E. (2d), 163; Massachusetts Bonding & Ins. Co. v. Dingle-Clark Co., 142 Ohio St., 346, 52 N. E. (2d), 340; Maryland Casualty Co. v. Frederick Co., 142 Ohio St., 605, 53 N. E. (2d), 795; Albers, Admr., v. Great Central Transport Corp., 145 Ohio St., 129, 60 N. E. (2d), 669; O'Neill v. City of Cleveland, 145 Ohio St., 563, 62 N. E. (2d), 353; Garbe v. Halloran, 150 Ohio St., 476, 83 N. E. (2d), 217; Hillyer v. City of East Cleveland, 155 Ohio St., 552, 99 N. E. (2d), 772.

The case of Kniess v. Armour & Co., supra, dealt with a wholesaler and retailer as does the instant case, but there the similarity ends. In the Kniess case the subject handled was food, while the subject of the present controversy is a defective part. Although a special statute applicable to sale of deleterious food (Section 12760, General Code) was involved in the Kniess case, that factor does not appear to have been decisive with the court. The important differentiation between the Kniess case and the instant case is that negligent installation of the defective part is charged with respect to the retailer. This active- negligence supplied by the retailer, if established as alleged, would appear to prevent the latter from having any right of contribution from the wholesaler, since in any action by-the retailer the wholesaler could plead negligence of the retailer to bar recovery.

In Wery v. Seff, supra, Judge Zimmerman announced a test for determining the right of joinder as defendants of tort-feasors as follows:

“In Ohio, the test often applied to determine the propriety of joining two tort-feasors in one action for an injury due to their acts is whether there is primary and secondary liability to the injured person. Primary liability to the extent of full compensation rests on him who actually commits the wrong, while secondary liability to the same extent rests upon him who, solely by reason of his relationship to the wrongdoer, is likewise answerable.”

The fifth paragraph of the syllabus in the case declares as follows:

“When two or more persons, under circumstances creating primary accountability, directly produce a single, indivisible injury by their concurrent negligence, they are jointly and severally liable, even though there is no common duty, common design or- concerted action. ’ ’

We also call attention to the language of Judge Hart in the case of Garbe v. Halloran, supra, in which concurrent negligence is defined as consisting “of the negligence of two or more persons concurring, not necessarily in point of time, but in point of consequence, in producing a single indivisible injury.”

Taking the allegations of the petition as they stand, it seems to us that a cause of action is stated against both defendants in that, even though neither common duty, common design, nor concerted action may be shown, a case is made out of concurrent negligence in producing a single indivisible injury within the language of Wery v. Seff, supra, and Garbe v. Hallar-an, supra. We recognize that absence of primary and secondary liability is not a necessary indication of joint and several liability merely because presence of primary and secondary liability prevents parties from being deemed joint tort-feasors. Nonetheless, it is at least significant that the present situation appears to meet one of the tests for joint tort-feasors laid down in the fifth paragraph of the syllabus in Wery v. Seff.

From another aspect, we believe joinder should be permitted in the present case. The wholesome trend of the decisions in jurisdictions which have adopted a modern code of civil procedure is to permit joinder of defendants where such action will allow a complete settlement in a single suit of the various questions growing out of one transaction and discourage a multiplicity of actions. In the present case, the wrongful death of plaintiff’s decedent allegedly involves the wrongful acts of two defendants acting independently who have concurred in producing a single injury. Since Ohio no longer insists on the test of ‘ ‘ concert of action” laid down in Stark County Agricultural Society v. Brenner, an Infant, 122 Ohio St., 560, 172 N. E., 659, and has modified that earlier requirement, as seen in Wery v. Seff, supra, at page 312, we believe the trial court improperly sustained the demurrer.

The judgment of the trial court is, therefore, reversed and the cause is remanded for further proceedings according to law.

Judgment reversed.

Skeel, P. J., concurs.

Metcalf, J., dissents.

Metcalf, J., of the Fourth Appellate District, sitting by designation in the Eighth Appellate District.


author: Metcalp, J.

text:
    Counts et al., Trustees, Appellees, v. The Chesapeake & Ohio Rd. Co. et al., Appellants.

      (No. 402
    Decided January 27, 1950.)

      Mr. J. F. Outright, for appellees.

      Mr. John 8,. Phillips, for appellants.
   Metcalp, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Ross County, a jury having been waived, in favor of plaintiffs in the sum of $900 and against the defendant The Baltimore & Ohio Southwestern Railroad Company. . The material facts are not in dispute. Plaintiffs are the owners of farm land on both sides of a railroad- used jointly by the defendant railroad companies, but- by stipulation it is agreed that The Baltimore & Ohio Southwestern Railroad Company was the operator of the train herein involved, and for that reason any reference hereinafter to the defendant railroad company applies only, to that particular defendant. •

The railroad right of way is fenced on both sides, there being a private crossing over the railroad at the point in question with gates on each side opening into plaintiff’s fields. For the purpose of this opinion the railroad at this particular crossing will be indicated as running in a general easterly and westerly direction. On October 3, 1946, plaintiffs were pasturing fifteen cows and two heifers, together with their calves, in a field north of the right of way. On that day the owners removed from this herd twelve calves which were old enough to wean and transported them from the immediate vicinity. The cows and approximately five younger calves were left in this northern field. Immediately adjacent to this northern field is another field on the north thereof separated by a fence and at the time in question connected therewith by an open gate, .permitting the cows to have the run of both fields north of the track. The calves were removed about three o’clock in the afternoon and around six o’clock in the evening plaintiffs’ farm hand, on his way home from work, noticed that the gate on the north side of the right of way leading into the field where the cows were pasturing did not have sufficient lap on the post opposite the hinged end. The farm hand thereupon procured a piece, of baling wire and wired the gate somewhere between its fastening and the bottom. The record discloses that later the same evening, at approximately nine o’clock, these cows came down to the gate on the north Side of the .right of way, and, as a result of pushing against it, shoved the gate past the tie post causing it to open and permitting the cows to get out upon the right of way where three of them were killed by a passing locomotive of the defendant railroad. Certain facts are not in dispute, such as the average weight of the cows being .fourteen or fifteen hundred pounds, their value being approximately $300 each and more specifically it is not in dispute that the value of the three that were killed aggregates $900, for which amount judgment was awarded.

Plaintiffs’ action is predicated upon Section 8913, General Code, the pertinent part of which reads:

“A company or person having control or management of a railroad shall construct and maintain in good repair on each side of such road, along the line of the lands of the company owning or operating it, a fence sufficient to turn stock. * * *”

Defendant concedes that gates come within the above statutory provision under judicial interpretation in Ohio.

While originally defendant set forth several grounds of error, all are abandoned in it's brief save and except number two, which defendant claims, and this court agrees, is so closely related to the others that it is all inclusive.

It reads as follows:

“The judgment of the court in finding for the plaintiff-appellee is not sustained by the weight and sufficiency of the evidence and is contrary to the manifest weight of the evidence, and is contrary to law.”

It should be stated that defendant’s brief sets forth some complaint as to the petition alleging that the gate in question was on the south side of the track whereas the evidence all went to the fact that it was the gate on the north side that came open. This is explained by reason of the right of way through the lands of plaintiffs not having any direct and continuous direction and, therefore, both witnesses and counsel throughout the record refer to northerly, easterly and other directions but the evidence all pertains to the one gate. Defendant’s representatives knew from the time the cows were killed which gate was involved, and there is no element of surprise or variance in that regard; in fact none is seriously claimed.

Keeping in mind that there is no dispute as to how the cows got upon the railroad track and, further, that the defense offered no testimony but chose to rest at the completion of the testimony offered by plaintiffs and rely upon its motion “to dismiss this cause because the plaintiffs have failed to show any liability on the part of the railroad in this loss,” a brief analysis of the testimony offered relative to the sufficiency of this gate and its mode of fastening is proper in order to determine whether it was negligently maintained.

The testimony offered by plaintiffs discloses that the gate had only four boards on it and was not high enough for ordinary stock; that the space between the top boards was large enough for a cow to put her head through and push; that there was no stop on the open end of the gate; that the end did not lap over the fence post enough to keep the gate from swinging through and if given a tight push the gate would go through; that it was fastened with a number nine wire and an ordinary staple; that by reason of the gate not having a lap on the fastening post it was necessary for the farm hand of plaintiffs to place additional wire thereon; that the gate did not hit the post to which it was to be' fastened and was easily pushed on through with ordinary pressure; and that the gate was made out of three-eighths inch dressed lumber with only four boards whereas the cústomary gate, under such circumstances,. should be built of one-inch lumber with five or sis boards thereon.

The section foreman of the defendant railroad company, who testified that it.was his duty to see that fences and gates were “kept up,” and who was one of two employees of the defendant called to the scene of the accident within a few moments thereafter, stated in his testimony that the gate had been pushed through and was half way open toward .the track; that there was no other way for the cows to get through; that the gate was pushed half way in, in the center; and that the gate was made to open the other way but it was bent and opened toward the track.

Thus it will be seen that there is sufficient and ample evidence to establish the insufficiency of the construction and maintenance of this gate, not only as to its mode of fastening but as to the construction and material used.

The provision that railroad companies shall construct and maintain in good repair fences on each side of its road is a general rather than a specific requirement, and negligence is the basis of liability thereunder. In the second paragraph of the syllabus in the case of Baltimore & Ohio Rd. Co. v. Schultz, 43 Ohio St., 270, 1 N. E., 324, 54 Am. Rep., 805, the Supreme Court of Ohio held that the basis of liability on the part of the railroad is negligence. See, also, 18 Ohio Jurisprudence, 1124, Section 37.

It is strongly urged by defendant that the restiveness on the part of the cows created by the removal of their calves was a contributing factor in causing •them to push upon this gate and, therefore, that plaintiffs cannot recover under the theory of contributory negligence.

There is evidence establishing the fact that these cows were restive due to the weaning and taking away of their calves. This, however, is a natural consequence flowing from ordinary agricultural and farming pursuits and certainly one that is to be contemplated by the defendant company in the construction and maintenance of fences and gates. Section 8913, General Code, refers to a fence sufficient to turn stock regardless of any circumstances brought on by the natural and ordinary procedure of removing young from the mother.

In fact, the only case that has been cited to this court involving anywhere near the exact issue presented in this regard holds that evidence that calves of the cows killed were in a pasture on the side of the right of way. opposite the gate in question is admissible for tbe purpose of showing that the gate was opened by the pressure of the cows and not left-open by someone in charge of the farm. In that case the railroad company- contended that evidence concerning the restiveness of the cows due to separation from their calves was inadmissible. The Supreme Court of Iowa held otherwise, thereby indicating that the gate should be of sufficient strength to resist such restiveness. See Payne v. Kansas City, St. J. & C. B. Ry. Co., 72 Iowa, 214, 33 N. W., 633.

We are forced to conclude that the gate was insufficient to turn the stock contained within the field along the right of way of the defendant railroad company, and that any restiveness caused by the weaning of the calves was incidental to the purposes for which the statutory provision was enacted and does not in any way excuse this defendant from its failure to construct and maintain a proper gate. There is sufficient evidence to establish the negligence of the defendant railroad company in this .respect.

None of the assignments of error being well taken, it follows that the judgment must be affirmed.

Judgment affirmed.

McCurdy, P. J., and Gillen, J., concur.


author: Fess, J.

text:
    Laskey, Appellant, v. Hilty et al., Appellees.

      (No. 4546
    Decided May 14, 1951.)

      Messrs. Chittenden é Rosenberger, for appellant.

      Mr. Joel 8: Rhinefort, prosecuting attorney, for appellees.
   Fess, J.

This cause is here on appeal on questions of law and fact from a judgment entered upon a finding in favor of defendants by the court at the conclusion of plaintiff’s evidence.

In her petition, plaintiff alleges that on February 3, 1950, the defendant county commissioners adopted a resolution of necessity for the construction and maintenance of a water line along Alexis road and Davida drive in Washington township of Lucas county; that the commissioners caused the county sanitary engineer to prepare the plans showing the location, route, and termini of the improvement, together with a tentative assessment of the costs thereof; that on March 15, 1950, the board determined to proceed with the construction of the improvément, and approved the plans, character and termini thereof, the boundaries of the'assessment district and the tentative assessment as prepared by the sanitary engineer; that plaintiff owns certain lands abutting on the improvement and has been assessed upon a front-footage basis of 708 feet the sum of $2,413.92 for the construction, and the sum of $42.92 for maintenance; and that her said lands consist only of acreage and are used solely for farming. These allegations are admitted by the answer.

Plaintiff alleges further that the water line is of no benefit to the lands so assessed or to the use thereof; that the assessment is entirely in excess of any benefit to the lands and to plaintiff; that the assessments are void and the enforcement thereof constitutes an unlawful taking of property for public use in violation of Section 19, Article I of the Constitution of Ohio and the 14th Amendment to the Constitution of the United States.

Plaintiff prays for an order finding the assessment unlawful and void, for an order enjoining the collection of the same, and for all fúrther relief.

. For answer, defendants allege that all proceedings required by law were taken; that plaintiff was present at the preliminary hearing on March 8, 1950; that she had knowledge of the amount of the assessment and consented to an amendment providing for the payment in five-year instalments instead of three years as originally contemplated; “that she would make no objection to the amount of said assessments against said property or to the construction of said water line”; and that the board spread the assessments by proper resolution over a period of five years. Defendants deny each and every allegation contained in the petition.

In her reply, plaintiff admits she was present at the hearing on March 8, 1950, but specifically denies that she consented to pay the assessment at any time or under any condition or on any extended time of payment. She denies further that she agreed to make no objection to the amount of the assessment or to the construction of the water line.

This cause comes on for hearing upon the pleadings and the transcript of the evidence received on behalf of the plaintiff in the Common Pleas Court. Since judgment was entered below oh motion of the defendants, no evidence introduced on their behalf is before us. On the state of this record, the question for determination herein is the motion of the defendants for a directed verdict. The motion is reported in the transcript as follows:

“Mr. Rhinefort: Well, now, I move for a directed verdict. All the evidence discloses here that she had knowledge of all the proceedings had, and made no objection thereto. She has also testified as to the value of the property, and that she never raised a protest until about two or three months, and that was in this litigation.”

Plaintiff testified that if a water line were laid in front of her 43-acre farm “it would be of no value to it whatsoever, ’ ’ that her property is simply farm land and that there are no buildings on her land. This testimony was corroborated by one of her neighbors. On cross-examination, -plaintiff admitted she was satisfied by the extension of the time for payment from three to five years until after she attended the hearing. She said:

“When I went home and got thinking about the amount of tax that was going to be placed on me and the others, I thought, 'why should I have to carry that when it is going to be of no value to my farm land?’ And that is when I got busy and I had my attorney. ’ ’

The evidence before us is quite scant and there appears to be a misconception of the issues raised by the pleadings on both sides of the controversy. Apparently plaintiff proceeds upon the theory that the improvement is of no value whatsoever to her property as presently used and that the assessment is wholly void. Defendant proceeds on the theory that plaintiff by her conduct is estopped to attack the assessment. As we view the case, the principal, if not the only, issue presented is whether the assessment substantially exceeds the benefits conferred upon plaintiff’s property by the improvement. This ordinarily, if not necessarily, would require evidence of the present value of the property assessed, and what its value would be with the improvement. As we construe the resolution, the assessment is levied only upon that portion of plaintiff’s property lying 200 feet north of the center line of Alexis road, rather than upon the whole of her 43-acre farm.

It does appear, however, that the proposed assessment area comprises a strip of land 480 feet south and 200 feet north of the center line of Alexis road for a distance of approximately 1,040 feet, and then to the north, surrounding a platted subdivision known as Davida Park consisting of a double tier of lots in a rectangular tract 1,580 feet long and 354 feet wide. It also appears that the assessment was made on a front-footage basis at $3.04949 per foot for local assessment, and $.0606 for maintenance. Other than the recitation in the resolution that the entire cost shall be specially assessed against the benefited property therein described, there is no evidence that the assessment was made upon the basis of ascertaining the-several amounts of benefits except upon a front-footage basis without regard to the value or use of such parcels. In the pleadings it is admitted that the tentative assessment was prepared by the sanitary engineer.

The evidence discloses that immediately west of plaintiff’s property is the allotment known as Davida Park, but to the east is farm land. South of her land, three or four buildings have recently been built, but the rest of the property to the south is farm land. The engineer testified that the property north of Alexis road (including plaintiff’s property) was taxed only to a depth of 150 feet, which would comprise -2% acres of plaintiff’s property instead of the 43 acres of her entire farm, and that the 150-foot strip would be the only portion of the land estimated to be benefited by the improvement. Again it is apparent that the assessment was made upon a front-footage basis.

The evidence fails to show that the plaintiff, in consideration of the extension of the period from three to five years, agreed not to protest the assessment.

Sections 6602-17 to 6602-33c, General Code, relate to 'county water supply systems and empower the boards of county commissioners by resolution to acquire, construct, maintain, and operate any public water supply or waterworks system for any established sewer district.

Section 6602-24, General Code, provides that the cost of the construction of a main or branch line may be assessed against the immediately abutting property for local service, and the balance may be assessed as a district assessment, upon all the property, including the abutting property, within the assessment district found to be benefited in accordance with the special benefits conferred, less such costs as shall be paid by the county at large.

This section also provides:

“In the construction of a local pipe line the entire cost and expense of construction and maintenance may be assessed, upon the benefited property abutting thereon, according to special benefits conferred * *

Under Section 12075, General Code, Common Pleas Courts may enjoin the illegal levy or collection of taxes and assessments. Section 6602-35, General Code, provides that any owner of property to be assessed or taxed for a water-line improvement may appeal to the Probate Court from the action of the board in determining to proceed with the improvement in regard to (1) the necessity of'the improvement, including the question whether the cost will exceed the benefits resulting therefrom, (2) boundaries of the assessment district, and (3) the tentative apportionment of the assessment.

Section 6602-3g, General Code, implements Sections 12075 and 6602-3& and in some respects defines the procedure. It provides, in part, that any court in which action-is brought (a) to enjoin, reverse, or declare void the proceedings by which any improvement has been made or ordered to be made under Section 6602-1 to 6602-14 (sewer systems) or Sections 6602-17 to 6602-33 (water supply systems), or (b) to enjoin a collection of a tax or assessment levied for such purpose, or (c) to which an appeal is taken under Section 6602-3&, if there is manifest error in such proceedings affecting the right of the plaintiff in such action, may set such proceedings aside as to him, without affecting the rights or liabilities of the other parties, in interest.

Section 6602-3g, General Code, further provides:

“The court shall allow parol testimony, that said improvement will be conducive to the public health, convenience and welfare and that any steps required by law for an improvement have been substantially complied with, notwithstanding any errors or defects in any record required to be kept by any board or officer, and without finding error, the court may correct any gross injustice in the assessment made by the commissioners. The court, on the final hearing, shall make such order in the premises as it may deem just and equitable, and order any tax or assessment levied against the plaintiff to remain on the duplicate for collection, or order it to be levied in whole or in part, or perpetually enjoin it or any part thereof, or if it has been paid under protest, order the whole or such part thereof as it may deem proper to be refunded. The cost of such action shall be apportioned among the parties, or paid out of the county treasury as the court may direct. ’ ’

It will be noted that this section recognizes that in addition to an appeal to the Probate Court a taxpayer may bring an independent action (inferentially under Section 12075, G-eneral Code) to enjoin, reverse, or declare void the proceeding by which any improvement has been ordered to be made. If there is manifest error in the proceeding affecting the right of the plaintiff, the court may set such proceeding aside as to him without affecting other parties in interest.

The plaintiff herein had due notice of the proceedings and knowledge of the amount of her assessment and that of the others, attended the preliminary hearing, made no protest, and failed to appeal to the Probate Court under Sections 6602-3&. and 6602-3c. Defendants assert that plaintiff is thereby estopped to bring her independent action. Since the evidence fails to show that the plaintiff agreed to the assessment in consideration of the extension of the time of payment and that the defendants were prejudiced by her silence, this contention must be overruled. In any event, she is not estopped to contest an assessment in excess of the benefits conferred. Birdseye v. Village of Clyde, 61 Ohio St., 27; Haughton v. Southard, Treas., 43 Ohio App., 25, 182 N. E., 652.

In her petition, plaintiff alleges that the assessment is in excess of any benefit to her lands, and that the enforcement thereof is in violation of her constitutional rights. She is, therefore, not precluded from bringing her action by reason of her failure to protest or appeal to the Probate Court. Conn et al., Trustees, v. Jones, Treas., 115 Ohio St., 186, 152 N. E., 897; Baxter v. Van Houter, Aud., 115 Ohio St., 288, 153 N. E., 266; Welsh v. City of Cincinnati, 64 Ohio App., 200, 28 N. E. (2d), 643; and Domito v. Village of Maumee, 140 Ohio St., 229, 42 N. E. (2d), 984.

Special assessments differ from general taxes since they are not taxes in a strictly constitutional sense. Assessments, as distinguished from other kinds of taxation, are special and local impositions upon property in the immediate vicinity of governmental improvement, which are necessary to pay for the improvement, and are laid with reference to the special benefit which the property is supposed to derive therefrom.

The foundation of the power to lay a special assessment for an improvement is the benefit which the object of the assessment confers on the owner of the abutting property, or the owners in the district, which is different from the general benefit which the owners enjoy in common with the others within the county. The benefits conferred are -at least full compensation for the expense imposed upon the owner, and he suffers no pecuniary loss. The doctrine is based on enhancement of value — that the improvements for which the assessments are levied afford a remuneration in the way of benefits. A special assessment, therefore, is lawful or constitutional only when founded upon special benefits accruing from the improvement for which the assessment is laid. The test is that the assessment may not exceed the special benefit to the property. Cf. 14 McQuillen’s Law of Municipal Corporations, Sections 38.01 and 38.02.

In Norwood v. Baker (1898), 172 U. S., 269, 278, 43 L. Ed., 443, 19 S. Ct., 187, the Supreme Court said:

“* * * the principle underlying special assessments to meet the cost of public improvements is that the property upon which they are imposed is peculiarly benefited, and therefore the owners do not, in fact, pay anything in excess of what they receive by reason of such improvement.

“* * * the exaction from the owner of private property of the cost of a public improvement in substantial excess of the special benefits accruing to him is, to the the extent of such excess, a taking, under the guise of taxation, of private property for public use without compensation. We say ‘substantial excess,’ because exact equality of taxation is not always attainable, and for that reason the excess of cost over special benefits, unless it be of a material character, ought not to be regarded by a court of equity when its aid is invoked to restrain the enforcement of a special assessment. ’ ’

Apparently Norwood v. Baker opened up a Pandora’s box. It was soon followed by a number of decisions limiting its application to its special facts. French v. Barber Asphalt Paving Co. (1901), 181 U. S., 324, 334-370, 45 L. Ed., 879, 21 S. Ct., 625; Wight v. Davidson (1901), 181 U. S., 371, 383-388, 45 L. Ed., 900, 21 S. Ct., 616; Tonawanda v. Lyon (1901), 181 U. S., 389, 45 L. Ed., 908, 21 S. Ct., 609; Webster v. Fargo (1901), 181 U. S., 394, 45 L. Ed., 912, 21 S. Ct., 623; Cass Farm Co. v. Detroit (1901), 181 U. S., 396, 45 L. Ed., 914, 21 S. Ct., 644; Detroit v. Parker (1901), 181 U. S., 399, 45 L. Ed., 917, 21 S. Ct., 624; Shumate v. Heman (1901), 181 U. S., 402, 45 L. Ed., 922, 21 S. Ct., 645. See, also, Schroeder v. Overman, Clerk (1899), 61 Ohio St., 1, 55 N. E., 158, 47 L. R. A., 156.

Those decisions sustain the principle that under .the 14th Amendment the question of determining the property or area benefited is one for the legislative department.

The principles decided in 1901 were:

1. The apportionment of the entire cost of a street improvement upon the abutting lots according to their frontage, without any judicial inquiry as to their value or the benefits they receive, may be authorized by the Legislature and will not constitute a taking of property without due process of law. Tonawanda v. Lyon, supra; Cass Farm Co. v. Detroit, supra.

2. The legislative act need not provide for a hearing, allowing the property owner to show that his property was not benefited to .the amount of the assessment. French v. Barber Asphalt Paving Co., supra; Detroit v. Parker, supra; Shumate v. Heman, supra.

3. It is within the power of the Legislature to create special taxing districts and to charge the cost of a local improvement, in whole or in part, upon the property in such district, according to either valuation or superficial area or frontage. Webster v. Fargo, supra.

Since the act pursuant to which the assessments herein attacked provides for assessment according to benefits, no violation of the 14th Amendment is presented.

Under the decisions of the Supreme Court of the United States, the Legislature of Ohio could provide that the cost of a local improvement might be charged upon property according to either value or superficial area or frontage without violating the 14th Amendment.

With respect to municipal assessments, the Legislature has provided that an assessment may be made (a) upon a percentage of the tax value, (b) in proportion to benefits which may result from the improvement, or (c) by the front foot of the abutting property. Section 3812, General Code. Where the assessment does not clearly exceed the benefits, the validity of assessments apportioned according to frontage has been upheld. Schroder v. Overman, Clerk, supra; Walsh v. Barron, Treas., 61 Ohio St., 15, 55 N. E., 164, 76 Am. St. Rep., 354; Walsh v. Sims, Treas., 65 Ohio St., 211, 62 N. E., 120; Shoemaker v. City of Cincinnati, 68 Ohio St., 603, 68 N. E., 1.

But with respect to county water lines, the Legislature has provided that the cost may be assessed upon the benefited property abutting thereon according to the special benefits conferred.

Under laws requiring assessments to be made according to special benefits, assessments arbitrarily made on the frontage by the square foot measure have been held invalid. Bradley v. Ashbury Park (N. J.), 93 A., 712; Jones v. City of Dotham, 230 Ala., 103, 159 So., 689; Thacker v. Paving Improvement Dist., 182 Ark., 368, 31 S. W. (2d), 758; In re Appeals of Johnson, 148 Wash., 140, 268 P., 164; Keith v. City of Philadelphia, 126 Pa., 575, 17 A., 883; Seely v. City of Pittsburgh, 82 P., 360, 22 Am. Rep., 760.

On the other hand, the general rule is that the front-footage method may be made the basis of apportionment without constituting a taking of property without due process of law. According to the weight of authority, where the Legislature does not prescribe any rule for estimating the cost of making an improvement or apportioning it but leaves both to the discretion of the local authorities, an assessment by the front foot may be valid. 48 American Jurisprudence, 623, 624, Section 67. If the principle of benefit is disregarded or ignored, the assessment is invalid; and if there is a marked disproportion between the burden imposed and any possible benefit, so that it is manifest that the principle of equality has been ignored and gross injustice done, the owner should be granted relief. And while full effect must be given in ordinary cases to the determination that an assessment by front foot, where the conditions are similar, is as nearly proportional and equal as is reasonably practicable, nonetheless, if it appears that the assessment so made will impose upon the property a liability substantially in excess of the special benefits conferred, such assessment should be set aside. Assessments made upon property according to frontage, without considering the actual benefits accruing to each parcel, are invalid where the law requires the lots to be assessed “in proportion to the benefits secured thereto.” 48 American Jurisprudence, 625, citing Hayes v. Douglas County, 92 Wis., 429, 65 N. W., 482, 31 L. R. A., 213; City of Barre v. Barre & Chelsea Rd. Co., 97 Vt., 398, 123 A., 427, 37 A. L. R., 207; Violett v. City Council of Alexandria, 92 Va., 561, 23 S. E., 909, 31 L. R. A., 382.

It has been held that if the land in front of which water pipes are laid is farm land, it can not be assessed according to the front-foot rule. See annotation in 3 L. R. A. (N. S.), 819. Compare Seely v. City of Pittsburgh, supra, which makes a distinction between applying the front-foot rule upon compact city lots, where the properties do not materially differ in value, and applying the rule to rural or suburban districts.

So much for general principles and authorities from other states. In Ohio, the matter of special assessments has been the subject of a number of .varying and conflicting decisions. The conflict has related primarily as to whether Section 19 of Article I limits Section 6 of Article XIII, of the Constitution. However, the decisions uniformly hold that the basis for special assessments is the recovery of the cost of special benefits. The opinion in Rogers v. Johnson, Treas., 21 Ohio App., 292, 153 N. E., 167, decided in 1926, contains an admirable review of the decisions of the Supreme Court, but unfortunately there was reached an erroneous conclusion that if the evidence discloses that the property' is somewhat benefited by the improvement, the court will not substitute its judgment as to the amount of the benefits for that of the commissioners acting pursuant to a statute providing a fair and reasonable method of assessments. The eighth paragraph of the syllabus recites:

“If assessing powers are governed by fair and reasonable rule of apportionment of assessments for benefit to property and rule is fairly followed, assessment against particular property will not be disturbed by court even though it appear that benefit did not equal assessment.”

That case was followed by Falor v. Mong, Aud. (1934), 47 Ohio App., 442, 191 N. E., 445, holding that, if the property was not benefited at all, the assessment could be enjoined, and Gaylord v. Village of Hudson (1938), 61 Ohio App., 180, 22 N. E. (2d), 552, holding that if the assessment did not equal or exceed the value of the property after the improvement was made, and if the property was benefited to some extent, the injunction should be denied.

Those decisions misconstrued the decisions of the Supreme Court in State, ex rel. Shafer, v. Otter, County Surveyor (1922), 106 Ohio St., 415, 140 N. E., 399, and in Baxter v. Van Houter, Aud. (1926), supra. The syllabus in the Baxter case holds that a taxpayer whose property is assessed in excess of its value as improved may have an injunction without first exhausting his statutory remedies. The appellate decisions overlook in the Baxter case that as to two lots, where the finding showed the assessment to be less than the fair market valúe of the lots after the improvement, the cause was remanded to the Court of Appeals for further proceeding. The remand could only have been for the purpose of determining whether the assessments exceeded the benefits.

In In re Appeal in Joint County Ditch No. 1 (1930), 122 Ohio St., 226, 171 N. E., 103, it appears that the trial court held upon authority of a decision of the Court of Appeals for Athens county, presumably Rogers v. Johnson, Treas., supra, that if any benefit is conferred upon the land owner by the improvement, the court should not disturb the finding of the commissioners.

In reversing the judgments of the Court of Appeals and Common Pleas Court, the Supreme Court held:

“Where an assessment levied by the board of county commissioners as provided by Section 6455, General Code, is appealed to the Court of Common Pleas as provided by Section 6467, General Code, one of the issues which may be tried on such appeal is whether such assessment is levied according to benefits. The court is required to determine whether the whole amount of the assessments to pay for the improvement is apportioned among the several lots and parcels of land specially benefited in the proportion that the special benefit to each lot or parcel bears to the whole special benefits conferred by the improvement.”

In its opinion, the court said:

“Section 19, Article I, of the Ohio Constitution, guarantees full compensation in money for any property taken for public use. In Chamberlain v. City of Cleveland, 34 Ohio St., 551, it was stated in the syllabus :

“ ‘2. The whole amount of the assessment must be apportioned amongst the several lots and parcels of land specially benefited, in the proportion that the special benefit to each lot or parcel bears to the whole special benefits conferred by the improvement.

“ ‘3. Where -the proceedings in an appropriation assessment, on the principle of special benefits, merely show upon their face, that the aggregate amount of the assessment is placed on “benefited property,” it will not be conclusively presumed that the assessment is limited to the special benefits conferred, or that it has been properly apportioned amongst the several lots or lands assessed.’

“In Walsh v. Barron, Treas., 61 Ohio St., 15, 55 N. E., 164, 76 Am. St. Rep., 354, in the first syllabus, we find: ‘But it can in no case exceed the benefits without impairing the inviolability of private property.’ In Cincinnati, L. & N. Ry. Co. v. City of Cincinnati, 62 Ohio St., 465, on page 474 of the opinion, 57 N. E., 229, 49 L. R. A., 566, there is further discussion of the same tenor, reaching the same conclusion. In Alma Coal Co. v. Cozad, Treas., 79 Ohio St., 348, 87 N. E., 172, 20 L. R. A. (N. S.), 1092, it is stated in the first syllabus: ‘The provisions of the Constitution forbid, not only the taking of the private property of one, but as well the laying of an imposition upon it, for the sole benefit of another.’

“These decisions are only declaratory of the plain provisions of Sections 6455 and 6463.

“We are of the opinion that the Court of Common Pleas, after hearing all the evidence, determined that each property was somewhat benefited by the improvement, and, acting upon the pronouncements of certain Courts of Appeals, did not inquire into the extent of such benefits. Neither did it determine that each particular appellant was benefited to the amount of the assessment levied.”

It is. interesting to note that in the Chamberlain case, supra, Hammett v. Philadelphia, 65 Pa., 146, is cited. That case was the forerunner of Seely v. Pittsburgh, 82 Pa., 360, 22 Am. Rep., 760, in which the court vigorously castigates the effort of urbanites to require rural property to bear expense of improvements regardless of benefits.

The syllabus of Domito v. Village of Maumee (1942), 140 Ohio St., 229, 42 N. E. (2d), 984, holds that an assessment substantially equal or greater than the value of the property after the improvement is made constitutes a taking without compensation. As in the Baxter case, supra, the assessment was in excess of the value of the property, which supports the syllabus, but in its opinion the court said:

‘ ‘ The fundamental principle underlying the imposition of special assessments on property for a public improvement is that the property is specially benefited and should bear its proportionate cost thereof corresponding to such benefit. Walsh v. Barron, Treas., 61 Ohio St., 15, 55 N. E., 164, 76 Am. St. Rep., 354.

“Consequently, when a special assessment is materially in excess of the benefits conferred or is substantially equal to or greater than the value of the property, no advantage accrues to the owner and the special assessment loses its justification. It thereupon invades the inviolability of private property and contravenes the provisions of Section 19, Article I of the Constitution. State, ex rel. Shafer, v. Otter, County Surveyor, 106 Ohio St., 415, 140 N. E., 399; Baxter v. Van Houter, Aud., 115 Ohio St., 288, 153 N. E., 266.” The first paragraph of the syllabus of Pickering Hardware Co. v. City of Cincinnati (1948), 149 Ohio St., 275, 78 N. E. (2d), 563, reads as follows:

“Section 19, Article I of the Constitution of Ohio does not limit or curtail the operation of Section 6, Article XIII of the Constitution, and municipalities are authorized to assess property benefited by the widening of a street for the value of the special benefits accruing to such property from such widening, even though included in such assessment is the cost of other property taken from the owner of property assessed for the purpose of the widening of the street. (City of Cleveland v. Wick, 18 Ohio St., 303, and paragraph five of the syllabus in State, ex rel. Shafer, v. Otter, County Surveyor, 106 Ohio St., 415, approved and followed.) ’ ’

It will be noted that the syllabus refers to assessment of property benefited for the value of the special benefits accruing to such property. In the opinion, the court said:

“Thus, under the law of Ohio, according to this court’s last declaration and, as we view it, the sounder reasoning, where an owner has been paid the full value of property taken from him by condemnation and his remaining land is specially benefited in the same way as adjoining lands by the improvement made, the municipality has the power to make an assessment for such special benefits even though such assessment covers a part of the cost of the land taken, provided the assessment is not greater than the value of the special benefit.” (Italics supplied.)

In Struble v. City of Cincinnati (1948), 83 Ohio App., 304, 82 N. E. (2d), 127, the Court of Appeals for Hamilton county conceded upon authority of Damar Realty Co. v. City of Cleveland, 143 Ohio St., 469, 55 N. E. (2d), 805; Domito v. Village of Maumee, supra, and Walsh v. Barron, Treas., supra, that special assessments have no legal justification except in special benefits, and that an assessment beyond special benefits has no legal justification. But a majority of the court held, Judge Ross dissenting, that a mere finding by the trial court that the assessment exceeded the special benefits did not justify a reversal of the trial court’s refusal to enjoin the collection of the assessment, in whole or part, in the absence of a bill of. exceptions. The majority apparently treated the finding of the trial court as a conclusion of law which, in the face of the prima facie presumption that the council had determined that the assessment did not exceed the benefits conferred, would justify the denial of the injunction.

Notwithstanding the decisions of the Courts of Appeals to the contrary, it would appear that under the foregoing decisions of the Supreme Court, when a special assessment is materially in excess of the benefits conferred by an improvement, no advantage accrues to the owner and the assessment loses its justification and contravenes Section 19, Article I of the Constitution. In such case, the owner has the same right to seek relief in equity as he has in case of no benefit or where the assessment exceeds the value of his property.

It is, therefore, concluded that the application of the front-foot rule to lots abutting on a proposed rural or suburban water line is not, ipso 'facto, lawful or unlawful, and if it appears from the evidence that the application of the rule results in substantial or at least a rough approximation of apportionment according to special benefit, or constitutes as close an approximation thereto as could be attained by any other method of apportionment, it should be sustained. But if the application of the rule results in an assessment materially in excess of the benefits conferred, it is invalid.

Plaintiff having rested, the motion of the defendants for a directed verdict will be regarded as a motion for judgment in their favor. The motion raises the'question as to whether the defendants are entitled to judgment as a matter of law. In passing upon such motion, the plaintiff is entitled to have the evidence construed most strongly in his favor, and if upon every essential issue the evidence is such that reasonable minds may reach different conclusions, the motion should be overruled. Hamden Lodge v. Ohio Fuel Gas Co., 127 Ohio St., 469, 189 N. E., 246.

' Upon the evidence of the plaintiff, which at this stage of tbe proceeding is uncontradicted, we find:

1. That the tentative assessment was made according to the front-foot rule without consideration or determination of the actual benefit conferred upon plaintiff’s property by the proposed improvement.

2. That the proposed improvement will be of no substantial benefit to plaintiff’s property.

• The motion of defendants is therefore overruled and the cause continued for the purpose of taking testimony on behalf of the defendants under Rule XIII, if desired.

Motion overruled.

Carpenter and Conn, JJ., concur.


author: Phillips, P. J.

text:
    The State of Ohio, Appellee, v. Whitehead, Appellant.

      (No. 191
    Decided March 6, 1951.)

      Mr. Seabury H. Ford, prosecuting attorney, for appellee.

      Messrs. Amer, Cunningham & Sohnur, for appellant.
   Phillips, P. J.

The grand jury of Portage county indicted defendant-appellant, called defendant in this opinion, for forgery and in a separate indictment for “unlawfully, by false pretense and with intent to defraud one G. C. D’Amico, obtain [ing] something of value from said G. C. D’Amico, by selling, bartering a cheek purporting to be from one Earl W. Dowling to C. H. Whitehead, said Whitehead knowing the signature of the maker thereof to be false, and obtaining from said G. C. D’Amico something of value, to wit: $100 in U. S. currency, contrary to Section 13104 of the General Code of Ohio.”

The trial judge sustained defendant’s motion to quash the indictment for forgery and dismissed that indictment on the ground that the venue for the forgery charge lay in Summit county, overruled his motion to quash the indictment for false pretense, ordered the prosecuting attorney to file’ a bill of particulars, and overruled defendant’s demurrer to the indictment.

The jury found defendant guilty “of obtaining money under false pretense in the manner and form as he stands charged in the indictment.”

The trial judge overruled defendant’s motions in arrest of judgment and for dismissal and entered judgment of conviction upon the verdict of the jury.

Defendant appealed on questions of law from the judgment of the trial court, and by assignments of error contends that the trial judge “erred in overruling appellant’s motion to quash the indictment,” which it is argued “is insufficient and defective and our demurrer thereto should have been sustained.”

It is urged further by such assignments of error that the trial judge erred to defendant’s prejudice “in the admission of 'evidence, ’ ’ in his general charge to the jury, and “in giving.further charge to the jury after the case has been submitted to them.” Defendant contends further that “the state failed to offer a scintilla of evidence that the signature of the maker of the check had been obtained or secured by false pretense,” and that “the verdict of the jury was not sustained by the evidence and is contrary to law.”

Defendant testified that he requested complainant, G. C. D ’Amico, a tavern operator, to advance him $10 or $20 on a check for $100, signed by Earl W. Dowling and drawn on the Firestone Park Trust & Savings Bank of Akron, Ohio, which bank on January 19, 1944, changed its name to the Firestone Bank, and which, on the same date, destroyed all stationery, deposit slips, checks and other printed matter bearing its name and remaining in its possession; that he accepted such cheek as a deposit on rental of a house for Dowling, which he did not rent finally; that he suggested to D’Amico that he verify the authenticity of the check and if. satisfactory he could give him the balance of the amount later; that D ’Amico stated he had sufficient money to cash the check, which he did; that upon being advised by D’Amico ten days later that the check had been returned marked “unable to locate account,” he told D’Amico that he would take it up “the first of the week”; that subsequently D’Amico refused to talk with'him; and that he endeavored to get the check as he had promised he would and was told it was at the office of the justice of the peace, who' advised him he did not have it.

Defendant testified further that Earl W. Dowling lived in Dormont, Pennsylvania, and was employed by the Aetna Foundry & Machine Company, in care of which he had addressed a letter to Dowling, which letter was returned marked “not sufficient address,” and whom he had not seen after May 11,1949; and that as the result of a transaction between him and Dow-ling he had accepted the check, purportedly signed by Dowling, in exchange for a check Dowling had previously given him drawn on the Union Trust Company of Pittsburgh, Pennsylvania, concerning which transaction he had written the letter to Dowling, referred to above.

D’Amico testified that defendant was one of his customers; that defendant asked for an advance of ten or twenty dollars on such check, and that he advised defendant that “if it is a good check” he would cash it, which he did upon defendant’s statement that the cheek was good; and that defendant did not make the check good on the following Monday, as he had promised he would, and on the following Tuesday he consulted with and gave the check to the prosecuting attorney of Portage county.

An official of the Firestone Bank testified that neither that bank nor its predecessor, the Firestone Park Trust & Savings Bank, ever had an account with “Earl W. Dowling”; and that the check dated May 11, 1949, which forms the basis of the charge against defendant, was scrutinized more closely than most checks because it was drawn on a blank check of the Firestone Park Trust & Savings Bank, which had been out of existence since January 14, 1944.

Neither the state nor defendant called “Earl W. Dowling” as a witness, and he did not appear or testify.

“Whoever, by false pretense and with intent to defraud, obtains anything of value or procures the signature of another as maker, indorser or guarantor to a bond, bill, receipt, promissory note, draft, check or other evidence of indebtedness or whoever sells, barters or disposes of a bond, bill, receipt, promissory note, draft or check or offers so to do, knowing the signature of the maker, indorser or guarantor thereof, to have been obtained by false pretense, if the value of the property or instrument so procured, sold, bartered or disposed of * * * is thirty-five dollars or more, shall be imprisoned in the penitentiary not less than one year nor more than three years, or, if less than that sum, shall be fined not less than ten dollars nor more than one hundred dollars or imprisoned not less than ten days nor more than sixty days, or both.” Section 13104, General Code.

That section of the General Code defines three types of crimes, first, obtaining anything of value by false pretense, second, procuring by false pretense the signature of another as maker, endorser, or guarantor to a bill, bond, receipt, promissory note, draft, check, or other evidence of indebtedness, and, third, selling, bartering, and disposing of the foregoing paper writings knowing the signature of the maker, endorser or guarantor thereof to have been obtained by false pretenses.

Defendant contends that the indictment upon which he was convicted was faulty and deficient because while stating, “knowing the signature of the maker [Earl W. Dowling] to be false,” it did not allege that “any of the signatures to the cheek had been obtained by false pretense”; and, accordingly, that the trial, judge erred to defendant’s prejudice in overruling his demurrer to the indictment.

The state claims that the indictment was drawn in accordance with and clearly followed the language of Section 13104, General Code, and “comes under the1 law applicable to obtaining money by false pretense, as defined in” that section of the Code. ■

By the words, “unlawfully, by false pretense and with intent to defraud one G. C. D’Amico, obtain something of value from said G. C. D’Amico * 41 * to wit: $100 in U. S. currency,” the indictment averred all the material fact's which it was necessary to prove in order to procure defendant’s conviction of obtaining something of value from D’Amico by false pretense, the first type of crime charged in Sectioli 13104, General Code, and with such reasonable certainty as to advise defendant what he might be expected to meet at the trial.

We find no defect in the indictment warranting the trial judge sustaining defendant’s motion to quash it or defendant’s demurrer thereto, and, in our opinion, in overruling them, the trial judge did not commit error prejudicial to defendant.

Defendant contends that the trial judge erred to his prejudice in the general and additional charge to the jury.

After deliberating for some time the jury sent a note to the trial judge as the result of which, after the jury was returned to the court room, the following colloquy between the court and the foreman of the jury ensued:

Court: “As I understand it, you have not yet agreed, and you have requested the court for further instructions, is that correct?”

The foreman: “Yes, sir.”

Court: “The court has received from the jury the following: ‘We feel the determining factor is the validity of the check.’ ‘Is it the duty of the jury to determine whether or not the check is a forgery.

‘ Signed E L Miller. ’ ’ ’

Court: “The answer to your question is, no. The ■jury does have the right to inspect the check and to consider anything concerning it about which there has been testimony in the case, and bearing upon the question of whether or not there was or was not fraud or whether there was present any of the elements that I explained to.you in my general charge.”

The foreman: “For the satisfaction of the jury, the question comes up as to the law governing the thing where criminal intent comes in or doesn’t come in. In other words, I don’t know whether I am talking out of turn, if I am* stop me. What we are trying to determine is whether if a man merely cashes a check given to him by somebody according to law there is no criminal intent, if he writes a check and endorses it, on a bank that has no account and forges the signature, that is criminal.”

Court: “I think I can go this far in instructing you. I say to you that it is the law that even if he did not himself draw the check, but if he endorsed the check, and by his endorsement received money by reason of the check, and his endorsement was made with the intent and with the other elements that I have mentioned, it would be a violation of law, and it would be within the indictment charged in this case. Does that get it clear to you?”

The foreman: “Yes, I think so.”

Court: “You may now retire.

“The defendant excepts to the additional instructions to the jury.”

We have studied carefully the general charge of the trial judge and the foregoing colloquy, and, as a result, conclude that the trial judge did not err to defendant's prejudice with respect to them.

Arguing that since there was not ‘ ‘ a scintilla of evidence” introduced upon trial that the signature on the check, which furnished the basis of the indictment, was obtained-under false pretense, defendant urges that the-trial judge erred to his prejudice in receiving such check in evidence.

We cannot reach the conclusion at which we are asked to arrive that the trial judge erred to defendant’s prejudice in that respect.

Finally, defendant contends that the verdict of the jury is not sustained by the evidence and is contrary to law.

Based upon a careful reading of the bill of exceptions, it is our opinion that the verdict of the jury is based upon sufficient evidence and is not contrary to law, and we believe that substantial justice has been done.

The judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

Grippith, J., concurs.

Hildebrant, J.,.concurs in the judgment.

Hildebrant, J., of the First Appellate District, sitting by designation in the Seventh Appellate District.


author: Hoknbeck, J.

text:
    The State of Ohio, Appellant, v. Columbus Green Cabs, Inc., Appellee.
    (No. 4430
    Decided October 18, 1950.)

      Mr. Herbert S. Huffy, attorney general, and Mr. John A. Bobenalt, for appellant.

      Messrs. Schwarts & Gurevits, for appellee.
   Hoknbeck, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin County in. favor of the defendant.

The plaintiff, by its petition setting forth five causes of action, sought a money judgment against the defendant for the amounts of the findings of the Administrator of the Bureau of Unemployment Compensation against the defendant for the years 1937, 1938, 1939, 1940 and 1941.

The giving of notice to the defendant of the findings and defendant’s refusal to pay the amount thereof are alleged. Defendant, by answer, admits that during the times set out in the petition it was an employer subject to the provisions of the Unemployment Compensation Act; that the findings were made and notice thereof given by the bureau; and that it failed to pay. Answering further, defendant avers that the findings were based upon gratuities (tips) allegedly received by the taxicab drivers employed by.the defendant, the amounts of which were not taken into account by defendant in determining its total payroll as reported to the Bureau of Unemployment Compensation for the period involved. Defendant alleges further that it had no control over such gratuities; that it never required its drivers to account for any gratuities; that such gratuities were not considered when fixing the wages of its drivers; and that the rule prescribed by the bureau for determining the amount of the alleged gratuities received by the defendant’s drivers is arbitrary and unfair. The defendant denies generally all allegations of the petition not specifically admitted. No reply was filed by the plaintiff and the canse was submitted to a judge without a jury upon a stipulation of. facts by the parties.

The stipulation provides that the bureau in its findings computed contributions due based upon an estimate of the amount of'gratuities received by the employees of defendant as ten per cent of their regular wages and “that the figure of 10 per cent was not based upon any actual knowledge within the possession of the commission nor upon the basis of actual-figures reflecting tips received by the drivers.”

Under the provision of Section 1345-28, General Code, the Administrator of the Bureau of Unemployment Compensation was under the duty of making a determination of the amount of contribution which the defendant should pay, and, a certified copy of the administrator’s finding having been attached to the petition' filed herein, such certified copy constituted prima facie evidence of the truth of the facts therein contained.

The finding, signed by the administrator, contains a statement to the effect that Columbus Green Cabs, Inc., is indebted to the state of Ohio for certain unemployment compensation contributions, and, thereafter, sets forth the contribution period covered; the amount of contribution due for such period; the amount thereof remaining unpaid; that the employer has failed to comply with the provisions of Section 1345-28, General Code; and that the employer is delinquent.

As we interpret the controlling section, these findings, standing alone, are sufficient to support the regularity and validity of the determination of the administrator that the contribution is in the amount therein set but and that such amount is due and payable, and the judgment prayed for.

Section 1345-4(b), General Code, provides for the determination of contribution rates based upon percentage of wages (or remuneration) subject to contribution. Section 1345-1 f, General Code, provides that remuneration shall include “gratuities customarily received by an individual in the course of his employment from persons other than his employer.” This latter' provision clearly indicates a purpose to include gratuities received by employees as a part of remuneration or wages paid to them, and upon which, in part, the amount of the contribution should be com-' puted. Section 1345-13 (a) 4, General Code,’ requires employers to furnish information as to the amount of wages paid and other necessary information.

The bureau is authorized to promulgate reasonable rules affecting its procedure. Buie 2 requires, as a part of the necessary information to be provided, that “the employer shall include as remuneration payable the amount of gratuities or tips actually received by each worker or the reasonable estimate thereof.” (Emphasis ours.)

Manifestly, under the stipulation here, the defendant failed to comply with this rule by including as remuneration the amount of gratuities actually received by each worker, or a reasonable estimate thereof.

Upon the presentation of exhibit A, the certificate of the bureau, the burden was cast upon the defendant to go forward with the evidence and meet the prima facie case made by the certificate. The defendant, having made in open court the stipulation heretofore set out, was satisfied to rely thereon.

Counsel for the state freely admitted in his oral argument and brief that the sole basis of the estimate of the remuneration of defendant’§ employees, upon which contribution could be fixed, was an opinion that employees of defendant customarily received as tips an amount equal to ten per cent of their wages. No other factual consideration whatever entered into the estimate. The determination not only assumed that the employees received tips but, also, assumed the amount thereof. "We believe that the first of these assumptions might be justified, but with no basis whatever for the second except some opinion of the amount of tips commonly given, the bureau arrived at the ten 'per cent figure. The stipulation, in our judgment, completely met the effect of the prima facie case ma.de by the presentation of the certificate of the- bureau. Rule 2 of the bureau provides that the employer, in making report, shall include as remuneration the amount of tips actually received by each worker or the reasonable estimate thereof. This rule is much like the present section of the Code. The estimate contemplated is one relative to tips actually received. In our judgment, the method adopted by the bureau did not result in a reasonable estimate of the tips actually received by defendant’s employees.

We are cited to a number of cases where estimates of unemployment compensation bureaus were supported, but in all such instances we find some basis in fact for the computation made, and, since that element is lacking here, the judgment is affirmed.

Judgment affirmed.

Miller, P. J., and Wiseman, J., concur.