author: Guernsey, J.

text:
    Trees et al., Appellees, v. The Pennsylvania Rd. Co., Appellant.

      (No. 239
    Decided April 24, 1951.)

      Mr. William L. Coleman, for appellees.

      Messrs. Hoopes <& Eoopes, for appellant.
   Guernsey, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Union County, Ohio, in an action wherein Wyllie Trees and C. M. Trees, appellees, were plaintiffs, and the appellant, The Pennsylvania Railroad Company, was defendant.

The action is one for damages for injuries to livestock alleged to have been sustained through the negligence of the defendant in delaying the delivery of the same to point of destination, which was Woodstock, Ohio.

The cause was tried to a jury which returned a verdict in favor of the plaintiffs, upon which the judgment appealed from was rendered.

The defendant-appellant assigns error in a number of particulars, including claimed error of the court in overruling motion of defendant for a directed verdict in its favor at the close of all the evidence.

The liability of the defendant-appellant, The Pennsylvania Railroad Company, is necessarily dependent upon whether it had contracted with plaintiffs for the carriage of the livestock in question.

While it is not alleged in the petition, the evidence introduced in the cause shows conclusively that the' plaintiff C. M. Trees, through his agent, one Ed. Schmidt, entered into such a contract,. designated as Uniform Livestock Contract, with the Great Northern Railroad Company at Hutchinson, Minnesota, under date of May 13, 1947, for the carriage of the carload of livestock in question from Hutchinson, Minnesota, to Woodstock, Ohio, consigned to the plaintiff C. M. Trees, routed over The Great Northern Railway to Minneapolis, The C. B. & Q. Railroad to Chicago, Illinois, and The Pennsylvania Railroad Company to Woodstock, Ohio.

Among other things it was provided in said contract :

“It is mutually agreed, as to each carrier of all or any of said livestock over all or any portion of said route to destination, and as to each party at any time interested in all or any of said livestock, that every service to be performed and every liability incurred in connection with said shipment shall be subject to all the conditions, whether printed or written, herein contained, including the conditions on back hereof, and which are agreed to by the shipper and accepted for himself and his assigns. ’ ’

“Except in the case of its negligence proximately contributing thereto, no carrier or party in possession of all or any of the livestock herein described shall be liable for any loss thereof or damage thereto or delay caused by the act 'of G-od, the public enemy, quarantine, the authority of law, the inherent vice, weakness or natural propensity of the animal, or the act or default of the shipper or owner, or the agent of either, or by riots, strikes, stoppage of labor or threatened violence. ’ ’

“Unless caused by the negligence of the carrier or its employees, no carrier shall be liable for or on account of any injury or death sustained by said livestock occasioned by any of the following causes; overloading, crowding one upon another, escaping from cars, pens, or vessels, kicking or goring or otherwise ■injuring themselves or each other, suffocation, fright, or fire caused by the shipper or the shipper’s agent, heat or cold, changes in weather or delay caused by stress of weather or damage to or obstruction of track or other causes beyond the carrier’s control.”

“No carrier is bound to transport said livestock by any particular train or vessel or in time for any particular market, or otherwise than with reasonable dispatch. ’ ’

As the shipment was from one state to another, it was subject to and governed by the federal laws relating to interstate commerce.

These laws provide, among other things, for uniform freight rates, and the filing with the Interstate Commerce Commission, by the railroads engaged in interstate commerce, of schedules of freight trains operated by them, and the freight rates charged by them, and the keeping of copies of such schedules and rates for public inspection, and further provide that shipments of freight are to be made subject to such schedules and rates.

The following rules of law are held by the Supreme Court of Ohio, applicable to interstate shipments of the character mentioned.

1. The rights and liabilities of parties to an interstate carriage of goods by common carriers under and through bill of lading are governed by federal statutes and decisions and should be determined in state courts according to the pronouncement of federal tribunals. Toledo & Ohio Central Ry. Co. v. S. J. Kibler & Brothers Co., 97 Ohio St., 262, 119 N. E., 733.

2. In an action brought by an owner of livestock against a terminal carrier to recover damages sustained during shipment, the owner makes out a prima facie case when he introduces evidence that the livestock was unaccompanied by himself or his caretaker, was received for shipment by the initial carrier in good condition and delivered at the destination by the terminal carrier in an injured or damaged condition. Wilson v. Pennsylvania Rd. Co., 135 Ohio St., 560, 21 N. E. (2d), 865. Approved and followed, Grosjean v. Pennsylvania Rd. Co., 146 Ohio St., 643, 67 N. E. (2d), 623.

3. At common law a common carrier is an insurer of freight against all losses except those arising from an act of God, a public enemy, the inherent nature of the goods shipped, the conduct of the shipper, or certain other causes in some jurisdictions. Accordingly, in the case of a shipment of livestock a common carrier is not an insurer but is liable only in case of negligence; the exception is due to the inherent nature of the shipment, or as it is sometimes said to the peculiar nature and propensities of the animals. Wilson v. Pennsylvania Rd. Co., supra, at page 562;

If the livestock shipped is in charge of the owner or his caretaker, the owner must allege and prove negligence of the carrier as an essential element of his right to recover for injury and damage to the shipment; the reason is the owner has full cognizance of the surrounding facts. On the other hand, if the livestock is unaccompanied by the owner or his caretaker, proof of negligence in the first instance is not essential. That is to say, the rule as to a prima facie case is the same whether the gist of the action is negligence in the carriage of livestock unaccompanied by the owner or his caretaker or the mere breach of duty to carry safely as in.case of inanimate freight under ordinary conditions. In either event a prima facie case is made out by proof tha't the goods or livestock was received by the carrier in good condition and delivered by the carrier at the destination in bad condition. The underlying reason is that the facts as to the injury or damage are peculiarly within the knowledge of the carrier. Of course the parties may fix their rights and obligations by special contract subject to the established principle that the common carrier may not exempt itself from liability for negligence.

The federal rule as to an interstate livestock carrier is the same. Wilson v. Pennsylvania Rd. Co., supra, at pages 562-563.

4. The Carmack Amendment to the Interstate Commerce Act (June 29, 1906, Section 20 [11], Title 49, U. S. Code, Chapter 3591, 34 Statutes at Large, 5S4-595) does not change the common-law rule above set forth. Wilson v. Pennsylvania Rd. Co., supra, at pages 563-564.

5. The liability of the terminal carrier for damages to livestock shipped and transported in interstate commerce over the lines of connecting carriers is not essentially different. Wilson v. Pennsylvania Rd. Co., supra, page 564.

6. To rebut such prima facie case it is incumbent on the terminal carrier to produce evidence that the injury or damage was not the result of negligence or a breach of contractual duty in connection with the carriage, or that such injury or damage was due to the inherent vice, weakness or natural propensities of the livestock or to some other recognized cause which would exempt the carrier from liability.

7. Such prima facie case is overcome where the evidence introduced in rebuttal counterbalances the evidence by which the prima facie case was made.

8. The burden rests upon the plaintiff to establish his case by a preponderance of all the evidence, and that burden does not shift.

9. Where all the evidence on the subject is to the effect that there was no negligence, fault or breach of contractual duty on the part of the carrier in transporting a shipment of livestock, the bare fact that the livestock were afflicted with a disease upon arrival at their destination is insufficient to fix responsibility therefor, on the carrier. Grosjean v. Pennsylvania Rd. Co., supra.

It will be noted that the quoted provisions of the Uniform Livestock Contract, above mentioned, are in conformity with the foregoing rules of law and do not change the liability imposed upon carriers of livestock at common law.

The livestock in the instant case was not accompanied by the owner or his caretaker, so that all the foregoing rules are applicable to the facts of the instant case.

The evidence further conclusively establishes:

The livestock was loaded by the shipper, at Hutchinson, Minnesota, in livestock car GN58678 at 2:30 p. m., on May 3, 1947, and the livestock was inspected after loading and found to be in good condition. The car was taken from Hutchinson on an eastbound Great Northern freight train between 2:30 and 3 p. m., on May 3,1947.

The car was delivered to The Pennsylvania Railroad Company at Dolton, Illinois, on May 6, 1947, at 10:30 a. m., and at the time of the delivery thereof said livestock was in good condition.

The car was attached to the first Pennsylvania freight train leaving thereafter. This was a through freight train scheduled to leave Dolton, Illinois, at 6:40 p. m., on May 6, 1947, but which did not leave until 9:30 p. m. It was scheduled as a through freight train from Dolton, Illinois, to Columbus, Ohio, and was not scheduled to stop for the delivery of freight at wayside stations.

■ The through freight train to which the car was attached proceeded through Woodstock, the destination of the car of livestock, to Columbus, Ohio, without stopping at Woodstock. It was scheduled to arrive in Columbus at 4:20 a. m., May 7th, but did not actually- arrive until 9:35 a. m., May 7th.

The first local freight train scheduled to leave’ Columbus for Woodstock on May 7th was scheduled to leave at 8 o’clock a. m., the train being designated as CL7, and being the one on which said car of livestock was transported back to Woodstock and there unloaded, but the train did not leave Columbus until 12:20 p. m. on said date and did not arrive at Woodstock until 6:30 p. m.

The first station west of Woodstock where the carload of livestock could have been attached to a local . freight train, was Bradford, Ohio, but in order to have been attached to a local freight train at Bradford the car would have left Dolton on freight train NW88 to Logansport, and there it would have been reclassified and placed on freight train LD8 for Bradford.

This train would have arrived at Bradford at 6:30 p. m., on May 7th, and would have left Bradford for Woodstock at 8 o’clock a. m., in train CL8 on May 8th and would have arrived in Woodstock at 12:10 p. m., on May 8th. Thus, if the car of livestock had been routed by way of Bradford it would not have arrived in Woodstock until over seventeen hours later than the time it actually arrived.

When the livestock was unloaded at Woodstock, its destination, it was discovered that two of the cows contained in the shipment had calved and that one of the newborn calves had died, all the livestock had lost weight and were in an unhealthy condition-due to their natural propensities, aggravated by the long period of time- enroute, and the moving and jarring of the car in which they were confined, necessarily incidental to their transportation.

There is no evidence that the carload of livestock was subjected to any unusual stress, strain or jarring during the period of its transportation by the defendant, or by any of the connecting carriers.

As the carload of livestock was not accompanied by the owner or his caretaker, the evidence that the livestock was delivered to the terminal carrier in good condition, and delivered by it at its destination in an injured or damaged condition, under the rules above mentioned, made a prima facie case for recovery by the plaintiff C. M. Trees.

The question then arises as to whether, under the rules mentioned, such prima facie case is overcome by the evidence showing that the injuries to the livestock were due to its natural propensities.

Under the rules mentioned, it is clear that a common carrier is not liable for injuries to livestock in the course of transportation, caused by the natural propensities of the animals if the delivery by the carrier to the consignee is made in conformity with its contract for transporting the same and such injuries are not caused or contributed to by the negligence of the carrier.

The only respect in which the plaintiffs contend the defendant carrier was negligent, is in the failure of the defendant carrier to cause its through train from Dolton, Illinois, to Columbus, Ohio, to stop at Woodstock on its way to Columbus and deliver the livestock.

The defendant carrier, both under the terms of its above quoted contract of carriage, and under the common law, was not required to transport said livestock by any particular train or otherwise than with reasonable dispatch, and under the common law and the federal statutes relating to interstate commerce was only required to transport the livestock in accordance with its schedules.

As the freight train from Dolton, Illinois, to Columbus, Ohio, was, as shown by its schedules on file with the Interstate Commerce Commission, and also on file for public inspection, a through freight train, the defendant carrier did not owe any duty to stop the train and make delivery of the livestock on its way through Woodstock to Columbus, and the defendant carrier is therefore not chargeable with negligence in its failure to do so. *

It is a general rule of law that an interstate carrier can neither guarantee nor promise the time of arrival or delivery of a shipment unless such action is authorized and provided for in the duly published tariffs applicable to all shippers alike on equal terms. Kirchner v. New York Central System, 87 Ohio App., 165, 94 N. E. (2d), 283.

There is no evidence that such action was authorized.

As shown by the evidence, the defendant carrier transported the livestock with reasonable dispatch, in accordance with its tariffs and schedules, free from negligence.

As the injuries to the animals were caused by their natural propensities and were not contributed to in any manner by the negligence of the defendant carrier, the defendant carrier was not liable in damages for such injuries.

The court therefore erred in overruling the motion of defendant railroad company for a directed verdict in its favor at the close of all the evidence, and for this error the judgment of the Common Pleas Court will be reversed, and this court, rendering the judgment the Common Pleas Court should, have rendered, will sustain said motion and render final judgment in favor of the defendant railroad company and against the plaintiffs, át the costs of plaintiffs, including the costs of this appeal.

Judgment reversed.

Middleton, P. J., and Jackson, J., concur.


source: Caselaw Access Project

author: Conn, J.

license: Public Domain

text:
    Squire, Appellant, v. The Wheeling & Lake Erie Ry. Co., Appellee.
    (No. 4411
    Decided January 16, 1950.)

      Mr. Gerald P. Openlander and Mr. Walter N. Murray, for appellant.

      Mr. Frank M. Eackett, for appellee.
   Conn, J.

This action was begun in the Common Pleas Court to recover damages for alleged personal injuries received by plaintiff while in the employ of the defendant in interstate commerce as a switchman and yard conductor. It is alleged that the injuries' were proximately caused by the failure of defendant to exercise ordinary care to furnish plaintiff with in-strumentalities which were reasonably safe and a reasonably safe place to work.

It is admitted in the pleadings or the evidence tends to show that, on October 9, 1945, in the nighttime, plaintiff was engaged in his work as a switchman and while moving along the running board on top of a boxcar his foot caught on a screw projecting above the surface of the running board, causing him to trip and fall or be thrown off the car; that he landed on his feet, breaking a bone in his left foot; that plaintiff was hospitalized and under the care of a physician employed by the defendant; that on or about December 27, 1945, on the suggestion of the claim agent of defendant, plaintiff went to the office of the attending physician, walking the entire distance of two miles or more; that he was examined and told by the physician that his injuries were healed and that he had no permanent injury and was able to go to work; and that he thereupon walked to the claim agent’s office, a distance of a half mile or more, settled his claim in consideration of $750, and at that time executed a release in full settlement, releasing and discharging defendant from any and all liability by reason of the injuries he had sustained.

Plaintiff testified that he went to work the next day and tried to do his work but on account of swelling and pain in Ms left ankle he. was forced to quit; that ■thereafter he received further medical treatment from the attending physician and other doctors for a period of three or four months; and that thereafter he worked as regularly as he could, accepting easier “runs” with some loss of earnings.

Plaintiff also introduced medical testimony tending to show that at the time of the trial (March 1949) plaintiff had loss of motion in his left foot and had difficulty in walking, particularly over rough and uneven surfaces; that this difficulty would continue, and this condition was permanent; that it would take from three to six months for a fracture such as plaintiff sustained in his left foot to heal; and that the present condition of plaintiff’s foot will remain and his dis-aMlity be permanent.

Plaintiff in his amended reply tendered to defendant the money paid to him, with interest to date of acceptance, and the record shows that a tender was made by plaintiff in ■ open court and refused by defendant.

At the close of plaintiff’s evidence, defendant moved for a directed verdict and also moved the court to find, as a matter of law, that the release executed by plaintiff was valid and a bar to this action. This motion was granted and, by direction, a verdict for defendant was returned by the jury.

The judgment entry does not recite the ground upon which the directed verdict rests, but the trial court stated to the jury that plaintiff had not sustained by proper evidence that “the release'was induced by misrepresentation, mistake or fraud.” Motion for new trial was overruled and judgment for defendant was entered on the verdict, from which plaintiff appeals on questions of law.

Plaintiff’s assignments of error, briefly stated, are:

1. Error in directing a verdict for defendant.

2. Error in refusing to admit certain testimony offered by plaintiff.

This action was brought under favor of the Federal Employers’ Liability Act, as amended, Title 45, Section 51 et seq., U. S. Code. No question is raised in this case as to the applicability of the act.

Under the act, the state courts are given concurrent jurisdiction with the federal courts but “where the statute appears to govern any question as to substantive law, practice or procedure, the state law is superseded and the federal act alone controls.” Brown v. Western Ry. of Alabama, 338 U. S., 294, 94 L. Ed., 100, 70 S. Ct., 105; New York, Chicago & St. Louis Rd. Co. v. Biermacher, 110 Ohio St., 173, 143 N. E., 570; Beven v. New York, Chicago & St. Louis Rd. Co., 132 Ohio St., 245, 6 N. E. (2d), 982, certiorari denied, 301 U. S., 695, 81 L. Ed., 1351, 57 S. Ct., 924; 35 American Jurisprudence, 874, Section 457.

The motion of defendant in general terms for a directed verdict was followed by a motion for directed verdict on the specific ground that the release was a bar to the action, as has been already indicated. No claim is made that there is a complete absence of credible evidence and from which the jury may not infer that the defendant failed to exercise ordinary care in providing plaintiff with instrumentalities which were reasonably safe and a reasonably safe place to work.

We have then for consideration the legal consequences of the settlement and release, that is to say, whether under the evidence a jury question was presented in the trial court.

• The form of the release leaves no room to question its general and comprehensive character. In express terms it releases defendant “from any and all liability, damages, claims, demands and suits whatsoever” resulting from the injuries received by plaintiff.

It is the contention of plaintiff that the claim agent of defendant and the attending physician employed by it falsely represented to him that he had fully recovered and was able to resume his work as a switch-man; and that believing these representations were true,' a settlement was made and -release executed under a mutual mistake of fact.

As already pointed out, plaintiff testified that on the day before the release was executed the claim agent told him he had been advised by the attending physician that his injury was healed and that he would be all right to go to work. Thereupon, plaintiff walked a great distance to the office of the physician and following an examination the physician made a similar representation to him and also told him that there was no permanent injury. Upon receiving the advice of the physician, plaintiff walked to the office of the claim agent where settlement was made. -

This evidence and the evidence introduced in relation to the events, that followed in point of time the execution of the release, that is to say, evidence tending to establish plaintiff’s inability to perform his accustomed labor, a series of medical treatments by the attending physician and others over a period of months, pain, suffering, and the permanence of plaintiff’s injury, raise an inference that the settlement was made and release executed under a mistake of fact.

The contention of defendant that the release relied on in this case is a bar unless plaintiff offers clear and convincing evidence that its execution was induced by false and fraudulent representations of the attending physician is not conclusive.

We do not have before us at this time the weight of the'evidence or the issue of false representations made in bad faith by the agents of the defendant. The issue of fact raised by the answer and amended reply is that the condition of plaintiff’s left foot was falsely represented to him and that he relied on this erroneous and incorrect representation as a statement of fact and accepted it as being true when he executed the release. It is not material whether the statements made by the physician and repeated by the claim agent are regarded as constructively fraudulent or a mistake of fact, as the evidence in the instant case tends to show that plaintiff acted in good faith in relying on the superior knowledge of .the physician.

Similar issues within the Federal Employers’ Liability Act have been before the courts in a number of instances and it uniformly appears that where there is substantial evidence that a settlement was made and a release executed in good faith under a mutual mistake of fact a jury question is presented. Callen v. Pennsylvania Rd. Co., 332 U. S., 625, 92 L. Ed., 242, 68 S. Ct., 296; Thompson v. Camp (C. C. A. 6, 1947), 163 F. (2d), 396; Southern Ry. Co. v. Clark (C. C. A. 6, 1916), 233 F., 900; 45 American Jurisprudence, 685, Section 20.

In the case of Callen v. Pennsylvania Rd. Co., supra, plaintiff made a settlement- and executed a release of his claim under the mistaken belief that his injuries were not permanent, and the court held that it was error for the trial court to withdraw from the jury the question of the validity of the release. We quote the first paragraph of the syllabus as follows:

“Where plaintiff in a suit under the Federal Employers’ Liability Act contended that a release relied upon by defendant was invalid because neither party knew at the time it was given that plaintiff’s injury was permanent, and the permanence of the injury was disputed by defendant, defendant was entitled to have the issue as to the permanence of the injury passed upon by the jury; and it was error for the trial court to withdraw from the jury the question of the validity of the release.”

Defendant claims also that the judgment should be affirmed as no tender was made by plaintiff of the consideration received for the release until the case was called for trial and for this reason defendant was entitled to judgment on the pleadings. It is conceded that plaintiff made no tender prior to the commencement of his action. It was not until defendant filed its answer that plaintiff was advised that defendant would rely on the release as a -bar to his claim. Thereupon, he made formal tender in his reply of the amount he received, together with interest, and thereafter in open court renewed the tender.

In the instant' case, the issue of actual fraud in obtaining the release was not raised on the pleadings or the evidence. Under these circumstances the release is voidable and not void. The rule is generally recognized that a party who wishes to rescind a release that is voidable only must repay or at least tender the consideration received. Picklesimer v. Baltimore & Ohio Rd. Co., 151 Ohio St., 1, 84 N. E. (2d), 214; Perry v. M. O’Neil & Co., 78 Ohio St., 200, 85 N. E., 41; 35 Ohio Jurisprudence, 288, Section 50. See, also, Flynn v. Sharon Steel Corp., 142 Ohio St., 145, 50 N. E., (2d), 319.

As the validity of the release in this case is governed by federal law and the liberal provisions of the Federal Employers ’ Liability Act, it is our opinion that the tender made is sufficient to put in issue the validity of the release, even if under the state law a tender were considered to be a condition precedent to the commencement of the action.

We do not find any case directly in point, and none has been cited. The following cases illustrate the liberal rule of the federal courts on the question of the validity of a release. Lumley v. Wabash Rd. Co. (C. C. A. 6, 1896), 76 F., 66; Southern Ry. Co. v. Clark, supra; Chicago, Missouri & St. Paul Rd. Co. v. Busby (1930), 41 F. (2d), 617; Irish v. Central Vermont Ry., Inc. (1947), 164 F. (2d), 837.

We come to the conclusion that a jury question was presented on the issue of the validity of the release executed by plaintiff and that the trial court erred in directing a verdict for defendant.

Plaintiff offered medical testimony tending to show that at the time the release was signed it was not possible to predict the outcome of plaintiff’s injuries, how long he would be incapacitated, or whether he would ever be able to perform his normal duties as a switchman. This evidence appears to be relevant and material on the issue of misrepresentation and mistake, and in our opinion it was prejudicial error to exclude it.

The judgment is reversed and the cause is remanded for a new trial.

Judgment reversed.

Carpenter and Fess, JJ., concur.


author: Ross, J.

text:
    The State, ex rel. Wynne et al., Appellants, v. Urban et al., Appellees.

      (No. 7564
    Decided March 3, 1952.)

      Mr. G. JR. Beirne, for appellants.

      Mr. Henry M. Bruestle, city solicitor, and Mr. James W. Farrell, Jr., for appellees.
   Ross, J.

The Court of Common Pleas refused a writ of mandamus. This is an appeal upon questions of law from the judgment entered to such effect.

The purpose of the action was to compel the Civil Service Commission of the City of Cincinnati to permit certain lieutenants in the fire department of such city, having less than two years service as lieutenants, to take an examination for the position of captain in such fire department.

The respondents, members of such commission, defend their position upon the ground that the commission announced a rule applying to such special examination, requiring such prior service, and that it had authority in law to take such action.

This position is vigorously assailed by the relators, who assert that although the commission may have power to establish measures applicable to procedure in the taking of such examinations, it has no right to usurp the function of the General Assembly and enact legislation appropriate only to the power of that body, and in conflict with rules adopted by the Legislature applicable to promotion of lieutenants in the fire departments of municipalities. The provisions of Section 486-15a, General Code, upon which appellants rely, are:

“No position above the grade or rank of patrolman or regular fireman in the police or fire department shall be filled by original appointment. Vacancies in positions above the rank or grade of patrolman or regular fireman in a police or fire department shall be filled by promotion from among persons holding positions in a grade or rank lower than the position to be filled. Appointments to such vacancies shall be limited to members of the respective departments. No position above the grade or rank of patrolman or regular fireman in a police or fire department shall be filled by any person unless he shall have first passed a competitive promotional examination. Promotion shall be by successive grades or ranks so far as practicable and no person in a police or fire department shall be promoted to a position in a higher grade or rank who has not served at least twelve months in the next lower grade or rank.”

The law governing the operation of both the state and municipal civil service commissions is found in Section 486-1 et seq., General Code. An examination of those sections discloses special legislation applicable to the promotion of persons employed in municipal police and fire departments.

In Section 486-15, General Code, it is provided:

“Vacancies in positions in the classified service shall be filled in so far as practicable by promotions. The commission shall provide in its rules for keeping a record of efficiency for each employee in the classified service, and for making promotions in the classified service on the basis of merit, to be ascertained as far as practicable by promotional examinations, by conduct and capacity in office, and by seniority in service ; and shall provide that vacancies shall be filled by promotion in all cases where, in the judgment of the commission, it shall be for the best interest of the service so to fill such vacancies. All examinations for promotions shall be competitive. In promotional examinations efficiency and seniority in service shall form a part of the maximum mark attainable in such examination. In all cases where vacancies are to be filled by promotion, the commission shall certify to the appointing authority only the name of the person having the highest rating. The method of examination for promotions, the manner of giving notice thereof, and the rules governing the same shall be in general the same as those provided for original examinations, except as otherwise provided herein.”

In Section 486-10, General Code, it is provided:

“All applicants for positions and places in the classified service shall be subject to examination which shall be public, and open to all, within certain limitations to be determined by the commission, as to citizenship, residence, age, sex,' experience, health, habit and moral character * * V’

It is apparent that the Legislature considered some service in the lower grade necessary as a requirement-precedent to promotion. It is to be noted, however, that such requirement is applicable to promotions and not permission to take an examination. Has the Legislature pre-empted the legislative area applicable to the matter here involved? No lieutenant can be promoted under the state law until one year service as such elapsed before promotion, but there is nothing in the state law forbidding an examination of such lieutenant at any time. On the other hand, it is obvious that under the municipal rule if a lieutenant can not take an examination until two years service has elapsed, he certainly cannot be promoted until after such two years service. The municipal rulé goes much further than the state law, although it is stated that its application has been waived where the two years prior service lacks only a short time of completion. Still, it is obvious that some injustice and even discrimination could occur in view of the fact that the lists of successful applicants having been made up, some considerable periods elapse before other examinations may be held.

In Section 486-19, General Code, it is provided:

‘ ‘ Said municipal commission shall have and exercise all other powers and perform all other duties with respect to the civil service of such city, city school district and city health district, as herein prescribed and conferred upon the state civil service commission with respect to the civil service of the state; and all authority granted to the state commission with respect to the service under its jurisdiction shall, except as otherwise provided in this act, be held to grant the same authority to the municipal commission with respect, to the service under its jurisdiction.”

It seems obvious then that, unless the provisions of Section 486-15a, General Code, are in conflict with the local rule of the Civil Service Commission of the City of Cincinnati, such commission had full power to establish the rule in question.

Great reliance is placed upon the case of Neil House Hotel Co. v. City of Columbus, 144 Ohio St., 248, 58 N. E. (2d), 665. The effect of the rule laid down in that case is found in the statement of Zimmerman, Judge, at page 252:

“From a perusal of the pertinent statutes and regulation No. 30, it is difficult to escape the conclusion that plaintiff, under state authorization, may lawfully sell beer and intoxicants to its customers after the hour of midnight and that a municipal ordinance fixing midnight as the time when the sale of such beverages must cease, is invalid. See Village of Struthers v. Sokol, 108 Ohio St., 263, 140 N. E., 519. See, also, Noey v. City of Saginaw, 271 Mich., 595, 261 N. W., 88.

“When the statutes and a valid regulation of the Board of Liquor Control say that the sale of intoxicants may not be made after a designated hour, it is equivalent to saying that sales up to that time are lawful, and an ordinance which attempts to restrict sales beyond an earlier hour is in conflict therewith and must yield. Schneiderman, an Infant, v. Sesanstein, 121 Ohio St., 80, 86, 167 N. E., 158, 160, 64 A. L. R., 981.

“In principle at least this case is controlled by the decision in City of Akron v. Scalera, 135 Ohio St., 65, 19 N. E. (2d), 279, the implications of which are that if a municipal ordinance of the type here involved is in collision with, a general law upon the same subject, the ordinance is ineffective.”

It must be admitted that upon a casual reading of this case and the provisions of Section 486-15a, General Code, that a seeming analogy exists, but upon cióse scrutiny a vital difference appears between the situation presented in the Neil House Hotel Co. case and that now considered by this court. If nothing else were present the use of the words, ‘ ‘ at least, ’ ’ in Section 486-15&, General Code, would, in the opinion of the court, be sufficient to distinguish the two situations. In the rule considered in the Neil House Hotel Co. case a specific time was fixed after which beer and intoxicating liquors could not be sold, that is, after 2:30 a. m. and before 5:30 a. m. The Columbus ordinance sought to cut down the implied privilege of sale up to 2:30 a. m., and thus increase the period of nonsale.

In the situation here presented, the state merely requires at least one year (twelve months) service— and impliedly leaves it open to either state or municipal commissions to provide by rule for a longer period. Had the state regulation provided that ‘ ‘ at least ’ ’ a period of nonsale should exist between 2:30 a. m. and 5:30 a. m. it may be seriously doubted whether the pronouncement in the Neil House Hotel Co. case would have been the same as under the facts therein stated.

Courts are always reluctant to pronounce a conflict in legislative action and will not do so unless clear evidence of conflict exists. 28 Ohio Jurisprudence, 442, “Municipal Corporations,” Section 277.

It must be concluded that the Civil Service Commission of the City of Cincinnati was completely within its jurisdiction in establishing the rule here in question, there being no conflict with state authority clearly apparent in its rule. Although it might be better to have a permanent rule applicable to examinations, the fact that the rule here considered is promulgated at the time of each examination does not seem of sufficient importance to warrant this court in holding such rule invalid, especially as the record shows that in all respects the commission has complied with the provisions of Section 486-9, General Code, in which it is provided, in part:

“Due notice of the contents of such rules and of all changes therein shall be given to appointing officers affected thereby, and such rules shall also be printed for public distribution: provided, however, that until such rules are adopted and in force, the rules existing when this law takes effect shall continue in force. ’ ’

Therefore, the judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

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


author: Wiseman, J.

text:
    Robinson-Lloyds, Ltd., Appellee, v. Department of Liquor Control of the State of Ohio, Appellant.

      (No. 4608
    Decided January 24, 1952.)

      Mr. Albert Spievack and Mr. Sol Goodman, for appellee.

      Mr. G. William O’Neill, attorney general, Mr. Thomas R. Lloyd and Mr. Brown W. Pettit, for appellant.
   Wiseman, J.

This is an appeal on questions of law from the Common Pleas Court of Franklin County, which court rendered judgment in favor of plaintiff in an action to recover money withheld by defendant to cover breakage on liquor purchased, which was shipped and delivered to defendant’s warehouse.

The two errors assigned are that the court improperly excluded evidence offered by defendant.

Business records of the Department of Liquor Control compiled by an accountant at the department office in Columbus from information furnished by agents in the different liquor stores throughout the state covering a period of years, which purported to state the extent of damage to shipments of liquor when received at the state warehouse and which show only date and amount claimed, where the witness does not have personal knowledge of the facts, are not admissible under Section 12102-23, General Code, unless, “in the opinion of the court, the sources of information, method and time of preparation were snch as to justify” their admission. Such record's were properly excluded under Section 12102-23, General Code, as construed in Schmitt v. Doehler Die Casting Co., 143 Ohio St., 421, 55 N. E. (2d), 644; Weiss v. Weiss, 147 Ohio St., 416, 72 N. E. (2d), 245, 169 A. L. R., 668; Green v. City of Cleveland, 150 Ohio St., 441, 83 N. E. (2d), 63; Zeigler Milling Co. v. Denman, 79 Ohio App., 250, 72 N. E. (2d), 686; Eikenberry v. McFall, 33 Ohio Law Abs., 525, 36 N. E. (2d), 27.

Carbon copies of letters sent by defendant to plaintiff which contain self-serving declarations are inadmissible. Zeigler Milling Co. v. Denman, supra; Dickson, an Infant, v. Gastl, 64 Ohio App., 346, 28 N. E. (2d), 688; 17 Ohio Jurisprudence, 304, Section 237.

Judgment affirmed.

Hornbeck, P. J., and Miller, J., concur.


author: Per Curiam.

text:
    Schneller et al., Appellants, v. Board of County Commrs. of Hamilton County, Appellee.
    (No. 7585
    Decided May 12, 1952.)

      Mr. Nicholas Bauer, for appellants.

      Mr. C. Watson Hover, prosecuting attorney, Mr. William J. Schmid, and Mr. Carl B. Rubin, for ap-pellee.
   Per Curiam.

This cause now comes before the court upon the alternative motion for judgment on the pleadings.

The appeal draws in question a resolution of the Board of County Commissioners of Hamilton County amending its zoning regulations applicable to Sycamore township, Hamilton county, on the ground that the amendment is “unreasonable, unlawful, arbitrary, unwarranted and confiscatory.”

This amendment was adopted by the county commissioners on March 21, 1951. The petition challenging its validity was filed in the Common Pleas Court on April 18, 1951. It is thus seen that it was filed 28 days after the adoption of the amendment resolution.

It was argued at the bar that Section 3180-11, General Code, provides an exclusive remedy by appeal and that this action is not an appeal to the Common Pleas Court, but an original action in that court invoking the original jurisdiction thereof. On the other hand, it is asserted that the remedy provided by Section 3180-11, General • Code, is not exclusive, and that a party adversely affected has the right of recourse to the ordinary remedies appropriate to the situation.

We do not feel required to decide between these conflicting claims. Nor do we consider that we are required to pass upon whether this action could be regarded as an “appeal” within the meaning of that term as used in Section 3180-11, General Code.

No matter how we construe the word, “appeal,” we are of the opinion that it constitutes a review by or appeal from the action of the board of county commissioners to the Court of Common Pleas and is governed by Section 12223-7, General. Code, limiting the time within which such an appeal or review could be taken to 10 days from the date of the order drawn in question.

Hildebrant, P. J., and Matthews, J., concur.


text:
    Dwyer, Appellee, v. The Wiley Hotel Co., Inc., Appellant.
    (No. 698
    Decided March 27, 1952.)

      Messrs. Spidel, Staley & Hole, for appellee.

      Mr. T. A. Billingsley, for appellant.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Darke County.

Plaintiff sued for damages for breach of contract. In her petition plaintiff alleged that on March 9, 1949, defendant sold to the plaintiff the restaurant equipment known as the Coffee Shop which occupied space in the defendant’s hotel together with supplies and merchandise inventoried at $533.84. Plaintiff alleged further that on the same date, the defendant entered into a written agreement for the lease to the plaintiff of the space used by the Coffee Shop and granted plaintiff exclusive right to serve food in the basement. The lease was for a period of one year with the privilege of renewal for an additional five-year period.

Plaintiff alleged further that on May 9, 1949, the defendant, through its agent, locked the doors to such business room; refused to permit plaintiff to continue to operate the business; took possession of the supplies, equipment and merchandise over plaintiff’s objection and without her consent; and refused to pay plaintiff the value thereof. Plaintiff claims damage in the amount of $3,800.

The defendant set up'two defenses. First, a general denial, and, second, that plaintiff and her associates indulged in profane and obscene language and conducted themselves in a highly disreputable manner to the annoyance of the guests of the hotel, and that by reason thereof the Coffee Shop was closed. Defendant denied further that plaintiff was operating the Coffee Shop at a profit. A reply was filed denying new matter alleged in the answer.

The case was tried to a jury which returned a verdict for $3,800, on which judgment was entered. Qn motion for new trial, the court ordered a remittitur in the amount of $1,300, which plaintiff accepted, and reduced the judgment to $2,500. From that order the defendant appeals.

Although the defendant has assigned fourteen separate errors, in its brief it is stated that two principal questions are presented. First, whether Cleo Bea-secker should have been made a party to the action, and, second, whether, plaintiff can claim damages for loss of profits. The first question was seasonably raised by motion. The defendant contends the evidence shows that Beasecker was a partner of the plaintiff in the purchase and conduct of the business; that the suit should have been brought in the name of the partnership; and that the court should have ordered that Beasecker be made a party. Sections 11254 and 11255, General Code. There is evidence to the effect that Beasecker furnished the money to the plaintiff to purchase the inventory; that plaintiff gave Bea-secker a note for a part of the money advanced; and that Beasecker was present at the taking of the inventory and at the time the lease was executed. There is some evidence indicating that Beasecker was to share in the profits of the business in the beginning, but the essential element of general agency is wholly lacking. Harvey v. Childs and Potter, 28 Ohio St., 319, 22 Am. Rep., 387; Southern Ohio Public Service Co. v. Public Utilities Commission, 115 Ohio St., 405, 154 N. E., 365; Hadden v. Rowe, 130 Ohio St., 10, 14, 196 N. E., 667. Conceding that Beasecker was a partner, the evidence shows that he was a dormant or silent partner. All business was transacted in the name of the plaintiff; all bills were charged to the plaintiff; the bank account was in the plaintiff’s name; and the vendor’s license was in her name. It is not necessary that a dormant or silent partner be joined in the action. In 40 American Jurisprudence, 432, Section 433, it is stated:

“While, as a general rule, all the members of a partnership must be joined as parties plaintiff in actions by partnerships, there are certain well-recognized exceptions which are not subject to such requirement. The most important of these governs the case of dormant or special partners, for it is now well established that it is not necessary that a dormant partner or a nominal partner be joined as a plaintiff, if his nonjoinder does not in any way injure the defendant. The other partners have the option of joining the dormant partners as plaintiffs with them in a suit on behalf of the partnership. Where a contract is made and the work executed by a person in his own name, the fact that he is a member of a partnership, even if the other partners share in the profi-its, does not make it necessary to join them as parties. ’ ’

In our opinion the trial court properly held that Beasecker’s interest in the business was that of a creditor, and that he was not a necessary party to the suit.

There ivas evidence presented as to the income, expenses and profits made during the conduct of the business. Profits are recoverable as damages if profits were in the contemplation of the parties at the time the contract was made and there is a reasonable certainty that profits were in fact lost as a result of the breach. 13 Ohio Jurisprudence, 155, 161, Sections 73, 78. See, also, LoSchiavo v. Northern Ohio Traction & Light Co., 106 Ohio St., 61, 67, 138 N. E., 372, 27 A. L. R., 424; Cleveland Punch & Shear Works Co. v. Consumers Carbon Co., 75 Ohio St., 153, 78 N. E., 1009; Jaynes v. Vetel, 51 Ohio Law Abs., 202, 80 N. E. (2d), 621. In our opinion the evidence meets this test.

We find no error assigned well made.

Judgment affirmed.

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


author: Stevens, J.

text:
    Johnson, Appellee, v. Gernon, Jr., Appellant.
    (No. 3882
    Decided December 29, 1947.)

      Mr. W. A. Rodgers, for appellee.

      Messrs. Smoyer & Smoyer, for appellant.
   Stevens, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court, entered upon a verdict for plaintiff in the amount of $1,500.

The action was one to recover for personal injuries sustained by plaintiff while riding as a guest passenger in a ear owned and operated by defendant.

At the conclusion of plaintiff’s case, and at the conclusion of all the evidence, motions to direct a verdict for him were made by defendant and overruled by the trial court.

Special findings were submitted by defendant, and were answered by the jury, and after the return of its general verdict for plaintiff, motion for judgment notwithstanding the verdict was made by defendant and overruled by the court.

Two assignments of error are presented by defendant (appellant in this court):

“1. The trial court erred in overruling the motion of the defendant for judgment upon the special finding returned by the jury in the answer made by it to the interrogatories which the trial court submitted, and in entering judgment against the defendant upon the general verdict.

“2.. The trial court erred in overruling the motion of the defendant for judgment, notwithstanding the general verdict returned by the jury.”

This being an action which comes under the provisions of Section 6308-6, General Code (the “guest” statute), no recovery could be had by plaintiff except upon a showing of wilful or wanton misconduct of defendant, and, in this case, no claim of wilful misconduct of defendant is urged.

The rules governing wanton misconduct have been enunciated by the Supreme Court of Ohio in the following cases: Universal Concrete Pipe Co. v. Bassett, 130 Ohio St., 567, 200 N. E., 843, 119 A. L. R., 646; Vecchio v. Vecchio, 131 Ohio St., 59, 1 N. E. (2d), 624; Morrow v. Hume, Admx., 131 Ohio St., 319, 3 N. E. (2d), 39; Akers v. Stirn, 136 Ohio St., 245, 25 N. E. (2d), 286; Jenkins v. Sharp, 140 Ohio St., 80, 42 N. E. (2d), 755.

There was stated by Ross, J., in Schulz v. Fible, 71 Ohio App., 353, at p. 358, 48 N. E. (2d), 899, the following:

“From these cases, however, certain outstanding-guides for a determination of the character of the conduct of the defendant here involved are presented.

“1. The inquiry of the trier of facts must be directed to a determination of the ‘mental state’ of the defendant at the time the injuries were received.

“2. There must be substantial evidence supporting the conclusion that such ‘mental state’ constituted a ‘disposition to perversity.’

“3. Neither mere speed, absence of ordinary care, bad judgment, nor violation of safety statutes, alone, is sufficient.

“4. There must be an absolute indifference to consequences of the defendant’s acts.

‘ ‘ 5. Conscious and timely knowledge of approach to unusual danger with a known probability of injury to others, if coupled with indifference to such consequences and an absence of all care, presents evidence of wilful and wanton misconduct.

“6. There must be a reckless indifference to the interests of others.”

One of the necessary elements of wanton misconduct must be “conscious and timely knowledge of an approach to an unusual danger and of common probability of injury to others.” Jenkins v. Sharp, supra, at p. 83. *

The record in this case shows, without dispute, that the defendant did not see or know of the presence of the ear with which his automobile collided. He therefore could'not have had conscious and timely knowledge of his approach to that car, if its presence could be said to have constituted an unusual danger, nor could he have known of the probability of injury to plaintiff by reason of the presence, at the curb, of the car with which his automobile came into collision.

The evidence does show that defendant was very nearsighted, and that by reason thereof he wore thiek-lensed glasses; that plaintiff in some manner, immediately prior to the collision, brushed defendant’s glasses from his nose; and that at the time of the collision he was trying to return his glasses to their proper position on his nose.

It is urged that, under these circumstances, it was the duty of the defendant to immediately stop his ear when he could not see, and his failure to do so constituted wanton misconduct.

We are unable to see wherein that situation presents a legal problem differing. materially from that presented in Fischer v. Faflik, 52 Ohio App., 69, 3 N. E. (2d), 62, or Schulz v. Fible, supra. In each of those cases, the defendant drove into a cloud of vapor or fog which disenabled him to see, but the courts held that, while such conduct might have constituted negligence, the absence of the element of the presence of known danger precluded a conclusion of wanton misconduct.

Here the driving of defendant’s car when he was unable to see, might have been negligence, but, because defendant did not know of the presence of a specific danger (i. e., the parked car), his conduct could not properly be said to constitute wanton misconduct.

The absence of a showing of knowledge* by plaintiff of the approach to unsual danger and of the probability of injury to plaintiff, constituted such a failure of proof on the part of plaintiff as required the trial court to direct a verdict for defendant at the close of all the evidence.

Having failed to do that, the trial court should have rendered judgment for defendant on his motion for judgment non obstante veredicto, because there was no evidentiary basis for a valid verdict in favor of plaintiff.

Likewise, a judgment for defendant should have been entered on the special findings, because the answer to the third special finding was inconsistent with the answer to the second, and with the general verdict.

The answer to the second special finding indicated that the jury believed defendant to have been guilty of wanton misconduct.

The third special finding required the jury to state of what that wanton misconduct consisted, and its answer, “Not having his car under control,” was at most a finding of negligence of the defendant. It embraced. none of the elements of conscious knowledge of a dangerous situation, of an entire absence of care, and a reckless disregard of consequences, by defendant, which are necessary to a conclusion of wanton misconduct, although these elements were adequately charged by the court.

Section 11420-18, General Code, provides:

“When a special finding of facts is inconsistent with the general verdict, the former shall control the latter, and the court may give judgment accordingly. ’ ’

Masters v. New York Central Rd. Co., 147 Ohio St., 293, 70 N. E. (2d), 898, states:

“2. An interrogatory requiring the jury in a personal injury action, in the event the jury finds the defendant guilty of negligence, to specify the act or acts of negligence is a proper inquiry; and the failure or inability of the jury to find the existence of a claimed act of negligence, in answer to interrogatories so submitted, is equivalent to a finding on such claim of negligence against the party having the burden to establish it.”

So here, to paraphrase, an interrogatory requiring the jury, in the event it found the defendant guilty of wanton misconduct, to state of what acts or omissions of the defendant such misconduct consisted, is a proper inquiry; and the failure or inability of the jury to find the existence of conscious knowledge by defendant of approach to unusual danger, absence of all care, and an indifference to consequences, in answer to the interrogatories submitted, is equivalent to 'a finding, on such claim of wanton misconduct, against the party having the burden to establish it.

It is our opinion that the trial court prejudicially erred when it failed to sustain defendant’s motion to direct a verdict at the conclusion of all the evidence; that it further erred in refusing to enter judgment for defendant on the special findings; and also that a judgment for defendant notwithstanding the verdict should have been entered by the trial court on defendant’s motion therefor.

The judgment is reversed as being contrary to law, and this court will render the judgment which the trial court should have entered, by entering final judgment for defendant, at plaintiff’s costs.

Judgment reversed, and final judgment

for defendant.

Doyle, P. J., and Hunsicker, J., concur.


author: Hunsicker, P. J.

text:
    Shaffer, Appellant, v. The Akron Products Co., Appellee.
    (No. 4225
    Decided March 5, 1952.)

      Mr. Stanley Denlinger and Mr. Don Isham, for appellant.

      Mr. John A. Weber, Mr. Harold L. Williams and Messrs. Brouse, McDowell, May, Bierce & Wortman, for appellee.
   Hunsicker, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Summit County, Ohio, which judgment such court directed for the defendant, The Akron Products Company (herein called “Company”), at the conclusion of all of the evidence and after both parties had rested their respective cases.

Paul Shaffer, the appellant (herein called “Shaffer”), seeks to recover on a promissory note, dated September 6, 1947, which note, in the amount of $5,554.55, was given to Shaffer in payment for a portion of his salary as an officer and employee of the Company. The note represented the difference between his regular salary and an increase in salary which the Company agreed to pay him. A copy of such note is as follows:

“$5,554.55. Akron, Ohio, September 6, 1947.

“Fifteen months after date for value received ----promise to pay to the order of . Paul Shaffer, Fifty-five hundred fifty-four and 55/100 dollars, with interest at the rate of 5% per centum per annum at Akron, Ohio, and we hereby authorize any attorney at law to appear in any Court of Record .in the United States, after the above obligation becomes due, and waive the issuing and service of process and confess a judgment against......in favor of the holder hereof, for the amount then appearing due, together with costs of suit, and thereupon to release all errors and waive all right of appeal.

“The Akron Products Company.

“Pres. T. J. Seibert.

“Sec’y C. J. Griegel.”

At the same time that tMs note was given by the Company to Shaffer, a note for $5,600- was given by the Company to Thomas J. Seibert, an officer, director and stockholder, for his unpaid salary, and a note' for $5,600 to L. A. McQueen, also an officer, director and stockholder, for unpaid salary due him. Shaffer was also a stockholder of, and vice-president in charge of sales in, the Company.

After such notes were given to Shaffer, Seibert and McQueen, the Company, being in need of additional worldng capital, sought to sell additional common stock to various friends 'of the officers. Seibert and McQueen then discussed with Shaffer an arrangement to release the Company from any liability on the notes which each held against the Company for the unpaid salary claims, apparently for the purpose of creating a better financial condition of the Company.

Thereafter, Seibert, McQueen, and C. J. Giegel, the secretary of the Company, went to the home of Shaffer, and there Seibert and McQueen signed a typewritten instrument designated “Release.” Shaffer, also signed a similar typewritten instrument. Such instruments are as follows: .

“Release

“I, Paul Shaffer, holding a note of Five Thousand, Five Hundred Fifty-four and 55/100 ($5,554.55) dated September 6, 1947, signed by the Akron Products Company, do hereby by agreement destroy such evidence of liability of the Akron Products Company, and further agree that no liability or claim shall ever be made against said company by me.

“C. J. Giegel,

Paul Shaffer.

“Witness.

“Dated at Akron, Ohio, this 22nd day of December, 1947.”

11 Release

“We, L. A. McQueen and T. J. Seibert, each holding a note of Five Thousand Six Hundred Dollars ($5,600.00) dated September 6, 1947, signed by the Akron Products Company, do hereby by agreement destroy such evidence of liability of the Akron Products Company, and further agree that no liability or claim shall ever be made against said company by the above parties.

“Witnesses:

“C. J. Giegel.

L. A. McQueen.

“-

T. J. Seibert.

“Dated at Akron, Ohio, this 23rd day of December, 1947.”

Immediately after these instruments were signed by the parties, McQueen and Seibert each handed to Mr. Giegel their respective notes, and Mr. Giegel tore up the notes and placed them in an ash tray in front of Shaffer. Shaffer stated that his note was in a lock box at his bank, and, because of ill health, he was not able to procure it, but that he would get it in a few days and give it to Mr. Giegel, so that it too could be destroyed.

Shaffer did not surrender his note, and, when his services with the Company were later terminated, brought suit on such note for the full amount with interest.

The trial court rendered judgment for the Company, and it is from such judgment that an appeal on questions of law is before this court.

The question which is determinative of this appeal is: Did Shaffer, by executing the “Release” set out above, renounce his rights against the Company within the terms of Section 8227, General Code?

Section 8227, General Code, reads as follows:

“The holder may expressly renounce his rights against any party to the instrument, before, at or after its maturity. An absolute and unconditional renunciation of his rights against the principal debtor made at or after the maturity of the instrument discharges the instrument. But a renunciation does not affect the rights of a holder in due course -without notice. A renunciation must be in writing, unless the instrument is delivered up to the person primarily liable thereon.”

The Shaffer note was dated September 6, 1947, and was due and payable fifteen months after that date. The “Release” which Shaffer signed was executed by him on December 22,1947; and hence, if a renunciation by Shaffer (the holder of such note) did take place, such renunciation occurred before the maturity of the note and while Shaffer was still the holder of snch note.

We find no eases in point in Ohio, but do find a collation of authorities that discusses Section 122 of the Uniform Negotiable Instruments Act (identical in terms with Section 8227 of the Ohio General Code), in .69 A. L. R., 846; 86 A. L. R., 334; 121 A. L. R., 1353; and Brannan’s Negotiable Instraments Law (Sixth Ed.), Section 122.

When we examine Section 8227, General Code, we find that we are not dealing with the subjects of novation, accord and satisfaction, or a discharge of the note under the terms of Section 8224, General Code (Section 119 of the Negotiable Instruments Law). The problem we have before us is one of. “reunciation,” and such section is independent of Section 8224, General Code, relating to the discharge of a negotiable instrument. By “renunciation” is meant the gratuitous abandonment or giving up of a right; an express waiver without consideration. English v. Evans, 157 S. W. (2d), 793; McGlynn v. Granstrom, 169 Minn., 164, 210 N. W., 892.

See, also, 25 Michigan Law Review, 782; 9 University of Cincinnati Law Review, 90; 12 University of Cincinnati Law Review, 430.

“Undoubtedly the word ‘renunciation,’ as used in the section quoted, appropriately describes the act of surrendering a right or claim without recompense, but it can be applied with equal propriety to the relinquishment of a demand upon an agreement supported by a consideration.” Whitcomb v. National Exchange Bank of Baltimore, 123 Md., 612, at p. 615, 91 A., 689.

Although many of the cases cited in Brannan’s Negotiable Instruments Law, supra, differ in their interpretation of Section 119 of the Uniform Negotiable Instruments Law (Section 8224, General Code of Ohio), and the requirement that such section be interpreted in conjunction with Section 122 (Section 8227, General Code of Ohio), all of the authorities agree that, where there is an express renunciation in writing of a claim evidenced by a note by the holder thereof, such instrument is discharged.

The transaction in the instant case upon which all of the parties agree is that Shaffer did execute the paper writing called a “Release.” By the terms of such “Release,” Shaffer agreed to destroy the note, and further agreed “that no liability or claim shall ever be made against said company by me.”

This written release by Shaffer, an officer, employee and stockholder of the Company, was executed at the same time that similar releases were executed by two other principal stockholders and officers of the Company. Both of the releases were then given to the secretary of the Company, who was present at the signing of the releases and witnessed each signature.

We, therefore, find that Shaffer, by executing the written instrument dated December 22, 1947, and designated “Release,” did make an absolute and unconditional renunciation of his rights against the Company, which renunciation thereby discharged the note given to Shaffer on September 6, 1947, and no claim can now be made by Shaffer on such note.

We have examined all other claimed errors, and find none prejudicial to the substantial rights of the appellant.

Judgment affirmed.

Doyle and Steven's, JJ., concur.


author: Thompson, J.

text:
    The State of Ohio, Appellee, v. Webster, Appellant.
    (No. 22071
    Decided May 21, 1951.)

      Mr. B. J. Conway, prosecuting attorney, and Mr. Vatro J. Grill, for appellee.

      Messrs. Martin & Martin, for appellant.
   Thompson, J.

This case comes into this court on an appeal on questions of law by the defendant, appellant, from the judgment of the Municipal Court of Cleveland, sentencing him to pay a fine of $500 and costs, pursuant to a jury verdict finding him guilty of practice of medicine without a license.

Warrant was issued against the defendant in this case, based upon an affidavit filed by an inspector for the State Medical Board, charging the following violation of law:

“* * * that on or about the 6th day of April, A. D. 1950, at the city of Cleveland in said county of Cuya-hoga, one Franklin D. Webster, alias Franklyn D. Webster, did unlawfully practice medicine and surgery at 5005 Euclid avenue, before the said Franklin D. Webster, alias Franklyn D. Webster, had obtained a certificate to practice medicine and surgery or any of its branches from the State Medical Board of Ohio, in the manner required by law, except a certificate to practice chiropractic and mechano-therapv which does not permit the use of drugs, in this, to wit: The said Frank D. Webster, alias Franklyn D. Webster, did then and there prescribe, advise, recommend and dispense, for a fee, to wit, the sum of $25, certain drugs, the nature of which are pills, powders and fluids and labeled as follows: No. 52 estrogen, No. 5 vegetable tablets, No. 40 vitamin B-l-Oxbile extract, No. 42 ortho-phos-phoric acid, No. B81, vegetable tablets, No. 41 glycerine solution, No. 91 and sulphur fumes for the bodily infirmities and diseases of Mrs. Carl Kaufman, to wit, arthritis, excessive systemic content of aluminum, arsenic and strychnine, improper functioning of kidney and further deponent says not; contrary to the form of the statute in such cases made and provided and against the peace and 'dignity of the state of Ohio. ’ ’

Defendant pleaded not guilty and subsequently, after demurrer was filed and overruled, and after motion for bill of particulars was denied, trial to the jury was had.

The evidence at the trial showed that defendant has possessed a license to practice chiropractic and mechano-therapy since 1916 and that his license is on file with the Probate Court of Cuyahoga County, but no license to practice medicine was ever granted to him. The testimony shows further that one Mrs. Kaufman, having an arthritic condition lasting for 18 years and being referred to defendant, consulted him at his office on March 28, 1950, where X-rays were taken, a diagnostic machine employed and instrument readings taken. The patient returned two days later to receive the defendant’s analysis of her condition. She came back a third time with a representative of the Better Business Bureau whom she introduced as her husband. This representative asked the defendant to go through his previous examination and demonstrate the diagnostic machine. At this third consultation, the patient received from defendant (state’s exhibits 4 through 10) consisting of seven bottles of pills and written instructions as to when and how many she was to take. The patient some days later received by mail a bill for $25 from the defendant, which she failed to pay.

A chemist in the food and drug division of the city of Cleveland identified the contents of the bottles as follows:

Glycerine solution of iodine and vegetable extractions (state’s exhibit 4); mixture of thiamine hydrochloride or vitamin B-l, or oxbile (state’s exhibit 5); estrogen preparation (state’s exhibit 6); phosphoric acid, corn starch, acacia and possibily phytin (state’s exhibit 7); nonspecific volatile oils, tannin, gallic and malic acids, resins and mucilages (state’s exhibit 8); complex pulverized mixture of vegetable substances, specifically identified as starch granules of arrow root or variety and a mucilaginous gum identical to that found in psyllium seed (state’s exhibit 9); complex pulverized mixture of vegetable substances (state’s exhibit 10).

The defendant took the stand and testified to Mrs. Kaufman’s visits to his office and admitted delivery of the bottles to Mrs. Kaufman but he insisted the contents were “food supplements” given for the purpose of building up nutritional deficiencies and to ready her for subsequent body treatments.

State’s exhibit 6, one of the bottles marked “45 tablets estrogen seroyal brands,” has a label declaring “Directions: - To be dispensed only by or on the prescription of a physician. ’ ’ After the finding of guilty by the jury and entry of judgment against defendant, the defendant filed thirteen assignments of error in this court, but his brief concerns itself primarily with three principal claims:

1. That the affidavit was fatally defective and failed to state an offense.

2. That the state failed to prove the charge.

3. That Section 12694, General Code, is inapplicable to one holding a license for the practice of limited branches of medicine or surgery.

With reference to the first claim we call attention to the statutes involved in this case. These include Section 12694, Sections 1274-1 through 1274-7, and Section 1286, General Code.

The pertinent provisions of Section 12694, General Code, are as follows:

“Whoever practices medicine or surgery, or any of its branches before obtaining. a certificate from the State Medical Board in the manner required by law, # * shall, for the first offense be fined not less than twenty-five dollars nor more than five hundred dollars # * #

By Section 1274-1, General Code, the State Medical Board shall “ examine and register persons desiring to practice any limited branch or branches of medicine or surgery, and shall establish rules and regulations governing such limited practice. Such limited branches of medicine or surgery shall include chiropractic * * * mechano-therapy * * *.”

Section 1274-3, General Code, describes the method of conducting examinations for particular limited branches of medicine and surgery and then declares:

“If the applicant passes such examination and has paid the fee of twenty-five dollars as required by law, the State Medical Board shall issue its certificate to that effect. Such certificate shall authorize the holder thereof to practice such limited branch or branches of medicine or surgery as may be specified therein, but shall not permit him to practice any other branch or branches of medicine or surgery nor shall permit him to treat infections, contagious or venereal diseases, nor to prescribe or administer drugs, or to perform major surgery, except that the State Medical Board may adopt rules and regulations permitting in the practice of chiropody the use of such drugs as are necessary to such practice.”

Section 1286, General Code, is important as defining what constitutes the practice of medicine apd surgery. This section declares:

“A person shall be regarded as practicing medicine, surgery or midwifery, 'within the meaning of this chapter, who uses the words or letters, ‘Dr.,’ ‘Doctor,’ ‘Professor,’ ‘M. D.,’ ‘M. B.,’ or any other title in connection with his name which in any way represents him as engaged in the practice of medicine, surgery or midwifery, in any of its branches, or who examines or diagnoses for a fee or compensation of any kind, or prescribes, advises, recommends, administers or dispenses for a fee or compensation of any kind, direct or indirect,' a drug or medicine, appliance, application, operation or treatment of whatever nature for the cure or relief of a wound, fracture or bodily injury, infirmity or disease # * *.

“The use of any such words, letters or titles in such connection or under such circumstances as to induce the belief that the person who uses them is engaged in the practice of medicine, surgery or midwifery, shall be prima facie evidence of the intent of such person to represent himself as engaged in the practice of medicine, surgery or midwifery. ’ ’

Having these sections in mind, and also the provisions of Sections 13437-1 through 13437-34, General Code, pertaining to the sufficiency of indictments and informations, we may note the language of the affidavit in this case directly charging the offense, i. e., that defendant “did then and there prescribe, advise, recommend and dispense, for a fee, to wit, the sum of $25, certain drugs * # * for the bodily infirmities and diseases of Mrs. Carl Kaufman.”

The defendant, in originally demurring to the affidavit and in charging error on the part of the trial court, has urged in effect that Section 1286, General Code, requires the intent to be alleged that any drug or medicine was prescribed' or dispensed “for the cure or relief of a wound, fracture or bodily injury, infirmity or disease” in view of employment of these precise words in the section in question. Apparently having in mind Section 13437-34, General Code, defendant cites Section 13439-9, General Code, providing that a defendant may demur “when the intent is not alleged and proof thereof is necessary to make out .the offense charged.” We recognize that whenever a particular intent constitutes an element of a crime, such intent must be substantially averred in the indictment. 21 Ohio Jurisprudence, 772, “Indictment and Information,” Section 80. That is the purport of the cases cited by defendant and all that is involved by Section 13439-9, General Code. We find in tbe instant case that even though the precise words of tbe statute were not used in their entirety, tbe affidavit was sufficient. See: State v. Henning, 83 Ohio App., 445, 78 N. E. (2d), 588 (Second District, 1948).

It is to be borne in mind that the General Assembly of Obio has in many respects relieved criminal charges of tbe exactness of averment formerly necessary. 21 Obio Jurisprudence, 707, “Indictment and Information,” Section 27. Suffice it to say that we find tbe affidavit in this case sufficient under Sections 13437-4, 13437-5 and 13437-7, General Code, and sufficient to apprise tbe defendant of tbe charges he was called upon to meet. Giving the defendant tbe benefit of tbe presumptions to which be is entitled in a criminal case, we are constrained to keep in mind tbe admonition that while a trial must be fair to tbe defendant in a criminal case, it must also be fair to tbe people of the state, whose welfare is similarly involved. State v. Schaeffer, 96 Ohio St., 215, 219, 117 N. E., 220, L. R. A. 1918B, 945.

Tbe second claim of error strenuously urged by counsel for defendant is that there is failure of proof. We have read carefully tbe bill of exceptions and we find no such failure of proof as is urged upon us. Counsel for defendant refer to tbe uncontradicted testimony of defendant that tbe articles delivered to Mrs. Kaufman were nutritional supplements and nothing more. That was the defendant’s defense and his testimony was uncontradicted by himself, but it was not tbe testimony of others, and tbe jury disbelieved him. Nor do we incline to tbe interpretation of tbe statute suggested by able counsel for defendant that the services were not performed for a fee, an essential element of the crime under Section 1286, General Code, for the mere reason that the bill for $25 sent by defendant to the patient was never paid.

The third claim of error appears more substantial, namely, that Section 12694, General Code, does not apply to a chiropractor or mechano-therapist, holding a limited certificate under Section 1274-3, General Code, and that either the sole method or at least the first method required in proceeding against such individual improperly practicing medicine is that outlined in Section 1274-6, General Code, authorizing the State Medical Board to revoke or suspend a limited certificate “upon proof of violation of the rules and regulations established by the board governing such practice.” Unfortunate for this contention, however,- is the provision of the next following section of the General Code, Section 1274-7, which expressly declares that “nothing in Section[s] 1274-1 to 1274-6, both inclusive, of the General Code, shall be so construed as in any way amending Sections 1286, 1287 °and 12694 of the General Code, or as in any way limiting the application of said sections or any other provisions of the laws of the state to practitioners of such limited branches of medicine or surgery save as hereinbefore specifically provided. ’ ’ In other words, the very sections of the General Code providing for the licensing of individuals engaged in the limited branch of chiropractic and mechano-therapy expressly recognize -the applicability to this group of limited practitioners of other sections of the Code prohibiting general practice of medicine by those who have failed to procure a license so to do.

The judgment of the trial court is, therefore, affirmed.

Judgment affirmed.

Skeel, P. J., and Hurd, J., concur.


author: Matthews, J.

text:
    O'Brien, Treas., Appellant, v. Givens et al., Appellees.
    (No. 7516
    Decided February 11, 1952.)

      Mr. C. Watson Hover, Mr. William J. Schmid and Mr. Francis X. Schwegmann, for appellant.

      Mr. Cedric Vogel,, tor appellee Clifford E. Givens.
   Matthews, J.

This is an action in which the treasurer of Hamilton county seeks to subject the rents and other income from certain real estate to the payment of delinquent taxes assessed against such real estate. The action was filed under favor of Section 5703, General Code, which provides that a county treasurer may institute an action to have himself ex officio appointed receiver to collect and apply the rents, issues, and income to the payment of the delinquent taxes on such real estate. The trial court found in favor of the defendants and this appeal is from that judgment.

The judgment of the trial court was based on a finding that the tax levy was invalid and that is the only question presented oil this appeal.

The assessments involved were levied for the years 1927 to 1950, both inclusive, and aggregate $12,715.26.

At the time of her death in 1921, this real estate was owned in fee simple by Marian C. Reed. By her will, she devised this real estate to the defendant Clifford E. Givens for his life and after his death to the Treasurer of the United States to be by him added to the fund for the extinguishment of the debt created by the first World War. There has been no change in the title since the death of Marian C. Reed. At the time of her death, the property was listed in her name on the tax duplicate, and still is.

The United States government is not a party to this action, and, of course, would not, in any event, be prejudiced by any action of the court in subjecting the income of the life tenant to the payment of this tax charge. However, the sovereign rights of the United States are involved in the defense relied upon by Clifford E. Givens. That defense is that it is beyond the constitutional power of the state of Ohio to impose a tax upon this real estate, of which the United States is the owner in fee, subject to defendant Givens’ life estate; that to subject the rents, issues, and income through a receivership would force him to pay a tax which the state of Ohio had no power to levy, and could not enforce against the United States; and that to require him to pay a tax based on a valuation of the entire fee would be taking his property without regard to the due process and equal protection provisions of the Constitution.

That property of the United States is exempt by the Constitution of the United States from taxation under the authority of a state is clear. Land owned by the United States, although within the territorial limits of a state, is in the national domain and cannot be reached by the state taxing power. Van Brocklin v. State of Tennessee, 117 U. S., 151, 29 L. Ed., 845, 6 S. Ct., 670. There is a host of decisions to the same effect. The principle is settled beyond cavil. The only difficulty arises when the title of the United States in the same subject matter becomes commingled with that of private persons. That difficulty is not in deciding that the title- of the United States is exempt, but in determining to what extent the presence of the title of the United States affects the undoubted power of the state to tax the privately owned property within its borders. Failure of the state administrative officers to collect a tax may and has resulted from the inadequacy of the state legislation under which they are acting to separate the privately owned taxable title from the nontaxable title of the United States. This was the basis of the decision in Pacific Spruce Corporation v. Lincoln County, 21 F. (2d), 586. In that case, the taxing authority of the state of Oregon attempted to make a levy under a statute defining land as. the subject of taxation as “the terms land, real estate and real property, as used in this act, shall be construed to include the land itself; * * * also any estate, right, title or interest whatever in land or real property, less than the fee simple.” Another section from taxation. It was held that this section limited expressly exempted all property of the United States the power to tax to the legal title alone, and, therefore, a tax purporting to be levied upon the equitable title to land of which the legal title rested in the United States as security for the unpaid balance of the purchase price was unenforceable. It is apparent that the tax failed, not because the private interest in the land was beyond the power of the state, but because the state had not exercised the power.

So, in S. R. A., Inc., v. Minnesota, 327 U. S., 558, 90 L. Ed., 851, 66 S. Ct., 749, in which the state of Minnesota carefully guarded the title of the United States in the land, the court sustained the power of the state to tax the privately owned equitable title, notwithstanding the United States held the legal title as security for the unpaid balance of the purchase price. As stated in the first paragraph of the syllabus, the court held that “under the state law, as construed by the Supreme Court of the state, the equitable interest alone could be sold for taxes, leaving the fee of the United States in its position of priority over any interests which might.be transferred by the tax sale. ’ ’

At page 561, the court said:

“The supremacy of the Federal Government in our Union forbids the acknowledgement of the power of any state to tax property of the United States against its will. Under an implied Constitutional immunity, its property and operations must be exempt from state control in tax, as in other matters.”

And, at page 570, the court said:

“The only other contention of petitioner which we need mention is that the state has included the interest of the United States in the valuation of the land, and has therefore subjected that interest to taxation. But no deduction need be made for the interest of the government since that interest is for security purposes only and is not beneficial in nature. The whole equitable ownership is in the petitioner and the value of that ownership may be ascertained on the basis of the full value of the land. ”

It should be noted here that the defendant Givens has not and never had the whole title — equitable or legal — or both. All he ever had was a life estate in the legal title. The United States owned and owns the remainder in fee. The equitable title was never at any time separated from the legal title.

In his concurring opinion in the S. R. A., Inc., case, Justice Frankfurter said at page 571:

“The decisive question before us is whether the interest [the legal title] thus retained by the United States bars Minnesota, under a general nondiscriminatory law, from taxing the vendee’s interest in the property.” He proceeded to answer the question in the negative.

There has been no conflict between Ohio and federal rulings on this precise question. While Section 5351, General Code, recognizes the exemption of property of the United States from state taxes, the Ohio cases also recognize that this exemption is limited to protecting the United States from burdens attempted to be imposed upon it by the state, and does not preclude a levy upon the interest of a privately owned title in the same property. United States v. Board of Tax Appeals, 145 Ohio St., 257, 61 N. E. (2d), 481; Dunn, Aud., v. Board of Tax Appeals, 154 Ohio St., 42, 93 N. E. (2d), 278.

It is thus seen that the mere fact that the privately owned title is related to a title owned by the United States is not sufficient in and of itself to withdraw it from the taxing power of the state under the federal Constitution. If it leaves the title of the United States undisturbed, casts no burden upon it, and does not interfere with its declared policy, the state action cannot be successfully assailed as an invasion of the national domain.

We conclude, therefore, that the state of Ohio had the constitutional power to tax the life estate of the defendant Givens, but had no power to tax the fee simple remainder owned by the United States. Of course, in exercising the power to tax the life estate, Ohio must conform to the .constitutional provisions of due process and equal protection. We look then to the Ohio statutes to determine whether they impose a tax upon this life estate.

Prior to the amendment of Section 2658, General Code, in 1931, it had long been questioned whether a personal judgment against the owner of real estate was authorized by the statutes of Ohio. With the possible exception of a short period from April 16, 1874, to April 8, 1876, it is probable that the law did not authorize a personal judgment. Certainly, no clear pronouncement necessary to a decision was made to that effect by the Supreme Court. The statutes clearly authorized a personal judgment against the owner for taxes on personal property which he had returned for taxation, or taxes shown by a force return. Some of these statutes were so worded as to raise some question as to whether they applied to both personal and real property taxes, but by the amendment to Section 2658 and other sections of the General Code, in 1931, it was made clear that the provisions for the enforcement of the payment of personal property taxes by personal judgment were not available to enforce the payment of a tax levy upon real estate. 6 University of Cincinnati Law Review, 251; Newman v. Newman Mfg. Co., 31 N. P. (N. S.), 273; and In Re Estate of Kastilic, 19 Ohio Law Abs., 109, 2 Ohio Supp., 297.

The difficulty with which the plaintiff in this case is confronted is not the lack of power to tax the defendant Givens ’ life estate, but the failure of the state to exercise its undoubted power to do so. It has taxed the “land” or “real property” which by statutory definition (Section 5322, General Code) are synonymous, and include not only the physical thing but also all rights and privileges appertaining thereto. The levy is against the entire bundle of privileges or rights regardless of the owner. There is no attempt to'disentangle the title and make separate levies based on ownership thus disclosed. While Section 5680, General Code, makes i£ the duty of a life tenant, as between him and the remainderman, to pay the tax, it does not impose a duty upon him as to the state. We have been cited to no case and have found none in which the Supreme Court in an action by the state has held that a life tenant was obliged to the state to pay the taxes assessed against the land in which the life estate existed. Crockett v. Crockett, 2 Ohio St., 181, in which it was held that a life tenant could cut timber to obtain money with which to pay taxes without being charged with committing waste, was an action between the owner of the fee and the life tenant. Whether the life tenant could recover the amount of the taxes was not raised.

Nor have we been cited to a statute or decision authorizing a separate listing and valuation of a life estate or other partial title by the taxing authorities. On first impression, Cincinnati College v. Yeatman, And., 30 Ohio St., 276, would appear to be such decision. When analyzed, the impression is dispelled. The facts were unusual. The Mercantile Library Association owned a perpetual leasehold (which for most purposes including taxation was and is equivalent to a fee simple in Ohio) on the second story of the Cincinnati College Building. The Cincinnati College owned the rest of the building. All the court actually-held was that these were separate pieces of real property and should be listed and taxed separately.

It was said in the first paragraph of the syllabus:

“There may be several and distinct tenements in the same building, under the same roof, as well where one is over the other, as where one is beside the other.”

So we conclude that in Ohio land taxes are levied against the land itself, without taking into account the ownership thereof other than to determine its taxability, and that no personal obligation to pay to the state is imposed upon any one because of such ownership. The mere imposition of the tax creates no personal obligation.

In this case there has been no attempt to separately list and value the defendant Givens’ life estate. Indeed, during all these years this land has been listed in' the name of Marian C. Reed, the former owner, for its entire tax value.

To so construe and apply Section 5703, General Code, as to authorize the appropriation of the rents and profits of this real estate to the payment of these taxes would be to authorize the doing by indirection that which has not been authorized by direct action. It would authorize the appropriation of the defendant Givens’ property, the rents, etc., to the payment of the taxes, when no authority to do so had been conferred. It would require the defendant Givens to pay taxes upon property he did not own, and without recourse for reimbursement, which certainly would lack due process of law. It would also be a tax upon the property of the United States, which, as already observed, is entirely exempt from state taxation.

A case bearing resemblance to the case at bar is that of Mehne, Treas., v. Dillon, 203 Ind., 346, 165 N. E., 908. Under statutes very similar to ours, Indiana attempted to compel a life tenant to pay a tax upon the entire value of land, the ownership of the fee being in a charitable institution which was exempt from taxation. The court held, as stated in the second paragraph of the syllabus, that “Though a tenant for life owes it to the remainderman to keep down the taxes, that alone does not require the life tenant to pay taxes on the fee of the land when such fee is exempt from taxation because the net profits from the real estate have been bequeathed to a church for educational and charitable purposes, as the life tenant’s obligation to pay taxes is to the remainderman and to no other person or entity.” ■

For these reasons, the judgment of the. Court of . Common Pleas is affirmed.

Judgment affirmed.

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