text:
    Brooks, Admr., Appellant, v. Sentle et al., Appellees.
    (No. 3938
    Decided March 29, 1943.)

      Messrs. Heslip & Gibson and Mr. Artee Fleming. for appellant.

      Messrs. Kirlcbride, Frease <& Cole, for appellees.
   Lloyd, J.

In Ms action commenced in the Court of Common Pleas, the plaintiff, Booker T. Brooks, as administrator, sought to recover damages for the wrongful death of Charles Eugene Brooks, alleged to have been proximatelv caused by the negligence of an employee of defendant Harvey H. Sentle, doing business as Sentle Trucking Company.

On the night of February 13, 1940, the right front wheel of a tractor owned by defendant Sentle and operated by one of his employees, became detached, requiring the stopping of the tractor and the trailer attached thereto, on the right side of route No. 20 some 20 or 25 miles west of Toledo, whereon the tractor with the trailer had been proceeding westerly. The tractor weighed 5,600 pounds and the trailer was loaded with 6,400 pounds of steel.

The decedent, in his Buick automobile, in company with a Mr. Stewart and Mose Robinson, was also traveling westerly on route No. 20. The decedent, Brooks, who lived in Akron, had planned to drive to Chicago, and Stewart, who desired to stop at his home in Gary, Indiana, arranged to go along. Robinson having heard of his intended trip, asked the decedent if he might accompany him as far as Gary where his sister resided. As he stated it: “Well, I heard him say something about it and I wanted to see my sister, so I asked him could I go.”

For this privilege he paid nothing and received no payment of anything from Brooks. Robinson had been, or was, a chauffeur and apparently a capable, if not an exceptionally expert driver. He drove the automobile from Akron to Toledo where Stewart assumed its operation. They stopped at several places in the city, the last of which was a gasoline station where Robinson asked Brooks to let him drive “from there on * * * for the reason” that he “thought it was safer,” and that “I was a better driver than they were and I thought it would be better for me to drive at that particular time.” Brooks was sitting in the front seat with Robinson. Stewart was in the rear seat. At about 10:30 p. m. the Buick of Brooks, being driven by Robinson, crashed into the rear of the Sentle trailer, the collision resulting in the death of both Brooks and Stewart.

Robinson,' who was the only witness on behalf of plaintiff as to the actual happening, testified, in substance, as follows:

The weather was “bad, that it was sleeting and mist-like and had to have the windshield wiper going so we could see.” The front lights on the Buick lighted the roadway “maybe 200 feet” and “I could see far enough to stop if I seen anything. I. guess I could see about 100 feet.” When he first saw the truck, he was “too close to stop * * * I could not miss it.” Before the collision, the Buick had been traveling from 40 to 45 miles an hour. There were no lights on the tractor and trailer and there were no flares or fusees. It was “all dark.”

Several witnesses of defendant Sentle testified that the tractor and trailer were well lighted and that flares and fusees had been placed on the highway to warn traffic of the danger.

At the conclusion of plaintiff’s evidence, and of all of the evidence, Sentle moved the court for a directed verdict in his favor, which in each instance was overruled. A verdict in the sum of $2,820 was returned in favor of the plaintiff. Sentle then filed motions for judgment notwithstanding the verdict and for a new trial, the first of which was granted and judgment rendered accordingly. The second was overruled.

In response to a written interrogatory of the plaintiff as to whether Robinson was acting as the agent of the decedent in driving the latter’s automobile, the jury answered “yes.”

In Sentle’s motion for judgment, it was stated that it was based “upon Sections 11600 and 11601, General Code.”

The entry of the court granting the motion recited that it so decided “upon due consideration of the evidence produced on behalf of plaintiff at the trial and also the special finding of fact that the driver of the decedent’s automobile was the agent of the decedent.”

The plaintiff, appealing from the judgment of the Court of Common Pleas, contends that a judgment notwithstanding the verdict demands consideration of all of the evidence and not that of the plaintiff alone, and that this court, in reviewing the proceedings in the Court of Common Pleas, is confined to the. recitals in the motion and in the entry. Plaintiff is, of course, correct in asserting that the entire record must be examined and considered, but wrong in contending that this court, on review, may not do so merely because the trial court did not — if that is to be concluded as the purport of its entry. Accordingly, this court has examined and considered the entire record and all of the evidence, and finds therein ample support for the action of the trial court.

Robinson was guilty of negligence which, if not the proximate cause of the collision, proximatelv contributed thereto. The tractor and trailer were parked on the right side of the road along which the Buick automobile was proceeding. With the headlights thereon lighting the roadway for 200 feet ahead, there appears in the record no excuse for Robinson not having seen the parked tractor and trailer, and, if as he said, the weather was “bad and it was sleeting.and mist-like,” then all the more cautious should he have been. To proceed, as the facts in evidence disclose that he did, was a clear violation of Section 12603, General Code, 117 Ohio Laws, 398 (now Section 6307-21, General Code), and if not the proximate cause, surely proximately contributed to the death of Brooks and Stewart.

The remaining question is, was Robinson in driving the Buick, the agent of Brooks, the owner? Prom the undisputed evidence, a presumption arose that he was such agent and the record contains no evidence rebutting this presumption. His negligence was therefore imputable to Brooks. Dahnke v. Meggitt, 63 Ohio App., 252, 26 N. E. (2d), 223. The trial judge should have directed a verdict for defendant Sentle, which not having been done, he properly rendered judgment for Sentle notwithstanding the verdict. This he had power to do on his own initiative.

The judgment is affirmed.

Judgment affirmed.

Carpenter and Stuart, JJ., concur.


source: Caselaw Access Project

author: Lloyd, J.

license: Public Domain

text:
    Chambers, a Minor, Appellant, v. Dunmyer Chevrolet Co., Appellee.
    (No. 407
    Decided June 21, 1943.)

      Mr. Clifford F. Broivn, for appellant.

      Mr. W. J. Mead, for appellee.
   Lloyd, J.

The plaintiff, Chambers, then eighteen years of age, purchased on November 21, 1941, of the defendant, Dunmyer Chevrolet Company, doing business in Fremont, Ohio, a Ford coach automobile for the agreed price of $203.85, upon which an allowance of $30 was made for the used car owned by plaintiff, the balance of $173.85 being paid in cash.

The defendant was not informed and made no inquiry as to the age of the plaintiff and it is not alleged or claimed by the defendant that the plaintiff misrepresented his age.

On September 14, 1942, the plaintiff commenced an action against the defendant, in the Court of Common Pleas, alleging in his petition, his minority and the rescission by him of the contract of sale. The prayer therein was for judgment against the defendant in the amount of $203.85, the purchase price of the automobile.

In the amended answer, the defendant admits its incorporation, the purchase of the automobile by the plaintiff for the sum of $203.85, and denies the other allegations of plaintiff’s petition. In an amended cross-petition, the defendant alleged in substance that, at the time of the sale and delivery of the automobile, it was in good operating condition and it became in disrepair because of the negligence and improper operation and use by the plaintiff, by reason whereof the automobile, which was at the time of the commencement of plaintiff’s action and has since remained in the possession of the plaintiff, has depreciated in value. The prayer of the cross-petition is that the petition of the plaintiff be dismissed or “if plaintiff be found to have any cause of action to be considered, that the age of the plaintiff be determined and if it be found that he was a minor at the time of said sale and purchase and so remains, that the damages so caused” be found and determined and the defendant allowed, in abatement or diminution, the amount of the damages so caused. The prayer also asked for compensation for the use of the automobile by the plaintiff.

A jury was waived and the action tried to the court. On February 27, 1943, the court dismissed the petition of the plaintiff and rendered judgment for the defendant for the costs in the cause. A motion for a new trial, filed on the same day, was overruled on March 9th and notice of appeal to this court on questions of law was filed by Chambers on March 25th. The substance of the assignment of errors is that the finding and judgment of the Court of Common Pleas are contrary to law and manifestly against the weight of the evidence.

The plaintiff, whose parents are dead, lives with an uncle and aunt in Sandusky, the aunt having been appointed guardian of his person and estate. When he purchased the automobile on November 21, 1941, and when he commenced his action in the Court of Common Pleas, and at the time of the trial thereof, the plaintiff admittedly was a minor eighteen years of age. The amount of the purchase price, including the expense of sales tax and certificate of title was $203.85, on which was credited $30.00 representing the agreed value of an old car transferred by plaintiff to the defendant. Plaintiff had been in the employ of The Pennsylvania Railroad Company, and, at the time of his purchase of the automobile, was in the employ of the government in what was known as TNT or Plum Brook Ordnance Plant located about six and a half miles from where he lived. Thereafter, in the summer of 1942, he resumed work for the railroad company which was about- three miles from his home. Immediately after the purchase of the car, while on the way home, he noticed “a rod coming loose” and left the car in front of his house and, at the first opportunity, started with it back to Fremont, but when almost there “the noise got bad” and he called defendant and the car was towed to defendant’s garage in Fremont, where the automobile was repaired without expense to the plaintiff. Later it again became in disrepair and, at a garage in San-dusky, where plaintiff took it, it was found that the rod or rods were displaced. Other rods were put in and, defendant refusing to pay for this work, plaintiff paid for it, the price amounting to $59. He later took it back to the Sandusky garage where he was told that “the rods were starting to come out again” and “that the crankshaft had to be ground down.”

The defendant refused to have anything further to do with the car. Plaintiff left it at the Sandusky garage and notified the defendant that it was there, and that he would go to the expense of towing it to Fremont if defendant would refund the purchase price to him. A representative of the defendant testified that plaintiff said, “We should repair the car or come and get the car and give him his money back. * * * I want my money back or Í want you to fix it up or come and get it.”

■Another representative of the defendant who went to Sandusky to see the car said that it was worth no more than $15 or $20, as salvage. The condition of the automobile was such that it could not be taken to Fremont unless it was towed.

The evidence clearly discloses that the defendant regarded the automobile as so much junk and declined the offer of the plaintiff to have it towed from the San-dusky garage to Fremont if the defendant would give him his “money back.” The law does not require the doing by plaintiff of a vain thing.

The defendant sought to prove that the automobile was purchased by the plaintiff for the purpose of going to and from his work and therefore claimed that it was a necessary within the meaning of the law, and, therefore, its purchase price was an obligation from which the minor plaintiff could not renege. The defense that it was a necessary was not pleaded and the admitted testimony, to which the plaintiff objected, for that reason alone was incompetent and prejudicially erroneous. However, had it been pleaded, it would still have been incompetent for the reason that under the evidence the automobile was not a necessary. To have been considered a necessary, the automobile must have been essential to the bodily or mental needs of the plaintiff and not for business purposes. The automobile having been purchased for such use and having been so used by him, contract of purchase thereof was subject to disaffirmance. Schoenung v. Gallet, Admx., 206 Wis., 52, 238 N. W., 852, 78 A. L. R. 387; Wallace v. Leroy, 57 W. Va., 263, 50 S. E., 243, 110 Am. St. Rep., 777.

It is clear from the foregoing that the plaintiff, being' a minor, had the legal right to disaffirm the contract of purchase and to have the amount paid by him for the automobile refunded to him.

The judgment of the Court of Common Pleas is therefore reversed and final judgment rendered for the plaintiff.

Judgment reversed.

Carpenter and Stuart, JJ., concur.


author: Middleton, J.

text:
    Vining, Admr., et al., Appellees, v. Stetler, Appellant.
    (No. 479
    Decided November 20, 1943.)

      Mr. Robert D. TouVelle, Mr. B. A. Myers and Mr. O. J. Myers, for appellees.

      Mr. Jesse F. Beam, Mr. S. 8. Beard and Messrs. Rohe S Wright, for appellant.
   Middleton, J.

E. 0. Stetler commenced an action in the Court of Common Pleas of Van Wert county, Ohio, on June 20, 1935, against a number of defendants among whom was George Graubarger, now deceased, the plaintiff in the instant action being the administrator of his estate.

The action was based on a bond containing an alleged warrant of attorney. Pursuant to such alleged warrant of attorney,'an attorney at law entered an appearance in the action and confessed judgment in favor of E. 0. Stetler and against all defendants, including George Graubarger.

On October 5, 1935, George Graubarger, together with other defendants, filed his motion asking the court to vacate and set aside the judgment and to give the defendant an opportunity to answer.

The grounds stated in the motion, were, first, the several defendants have a valid defense against the bond sued upon herein; second, these defendants are not indebted to the plaintiff in any sum whatever; third, the defendants were never served with summons in the above entitled cause but the judgment was rendered upon an alleged warrant of attorney on the 20th day of June, 1935; and, fourth, such judgment was confessed against these answering defendants without proper legal or adequate authority, power or warrant.

This motion was sustained, the judgment was suspended, and leave was granted to file answer. Thereafter, on November 1, 1935, George Graubarger and other defendants filed an answer setting out six defenses. Later, an amended answer setting out four defenses was filed. A reply was filed to this amended answer, on October 6, 1937. On February 14, 1940, C. L: Vining filed a motion suggesting the death of George Graubarger, stating that he was the duly appointed, qualified and acting administrator of the estate of George Graubarger, and asking to be made a party defendant. This motion was allowed. This ease is now pending in the Court of Common Pleas of Van Wert county, Ohio, on the petition, the amended answer and the reply.

Thereafter, on June 21, 1943, C. L. Vining, as administrator of the estate of George Graubarger, ■ and others filed a petition in the Court of Common Pleas of Mercer county, Ohio, against E. 0. Stetler, setting forth the proceedings in the Court of Common Pleas of Van Wert county, Ohio, and in the prayer asked for injunction against E. 0. Stetler from asserting any rights under and by virtue of the alleged judgment of the Van Wert county court; from causing any writ of execution to issue thereon; and from taking any steps to enforce such judgment.

The defendant E. 0. Stetler filed a motion to quash the service of summons, on the grounds that the court did not have jurisdiction of the parties or the subject matter of the action, by reason of the pendency of the action in the Court of Common Pleas of Van Wert county. This motion was overruled and the defendant given leave to file answer. Defendant filed answer and, among other matters plead in the answer, set forth the defense that the Court of Common Pleas of Van Wert county had jurisdiction of the parties and the subject matter of the action, and that the Court of Common Pleas of Mercer county was therefore without jurisdiction.

The cause was submitted to the court on the pleadings and the evidence, and the court held the judgment of the Court of Common Pleas of Van Wert county void and of no effect, enjoined the defendant from asserting any rights thereunder, and ordered that all liens, certificates of judgments and other proceedings created pursuant to such judgment be cancelled. Motion for new trial was filed and overruled.

This cause is in this court on questions of law and _ fact.

The only question is one of jurisdiction of the Court of Common Pleas of Van Wert county. If the Court of Common Pleas of Van Wert county has jurisdiction of the parties and subject matter, in the action there pending, then the judgment of the Court of Common Pleas of Mercer county must be reversed. On the contrary, if the Court of Common Pleas of Van Wert county does not have such jurisdiction, the judgment of the Court of Common Pleas of Mercer county must be upheld.

“If it were admitted that jurisdiction of the persons of the defendants was not acquired by the appearance of the attorney under the warrant, such jurisdiction was undoubtedly obtained by their voluntary appearance in the case, by filing their motion and petition, under Sections 535 and 536 (now Sections 11634 and 11635, General Code), asking to be let in to defend, etc. By making such application the defendants submitted their .persons to the jurisdiction of the court, and must be bound by any judgment afterward rendered in the action.” Watson v. Paine, 25 Ohio St., 340, at 346, 347.

Plaintiffs’ motion to suspend the judgment of the Court of Common Pleas of Van Wert county was sustained, and leave granted to file answer, and answer was filed.

The defendants are afforded their day in court, the action is pending and undetermined in a court of competent jurisdiction and such court is proceeding to discharge its functions. All defenses raised can now be submitted to a jury.

If tlie court did not have jurisdiction of the persons of the parties defendant at the time the judgment was entered, tlie court obtained jurisdiction by reason of the filing of tlie motion and answer.

It is insisted that the plaintiffs are entitled to the relief asked, by reason of the holding in tlie case of T. O. Hill v. Stephen Buchanan, Trustee, Cause No. 475, decided by this court on December 5, 1941.

The facts, however, in tlie Hill case were different. In that ease the motion to vacate was overruled by the trial court, and the judgment stood. A direct attack was made on the jurisdiction of the court over the person of defendant. In the instant case, the defendants in the Court of Common Pleas of Van Wert county sought the jurisdiction of the court. The judgment was suspended and the defendants filed answer. The case now stands at issue in the Court of Common Pleas of Van Wert county, and the plaintiffs in the case in the Court of Common Pleas of Mercer county are not entitled to the relief asked.

For the above reasons, judgment is rendered for the defendant. Petition is dismissed at plaintiffs’ costs.

Petition dismissed.

Guernsey, P. J., and Jaokson, J., concur.


author: Stuart, J.

text:
    Schmitt, Appellant, v. Doehler Die Casting Co., Appellee.
    (No. 3955
    Decided May 10, 1943.)

      Mr. Hyman S. Topper, Mr. Maurice H„ Shapiro, Mr. Marvin Traxler and Mr. M. B. Landry, for appellant.

      Messrs. Fraser, Effler, Shumaher & Winn, for ap- • pellee.
   Stuart, J.

The plaintiff, appellant herein, appeals from a judgment of the trial court in favor of the defendant, appellee herein, rendered on a directed verdict, in an action brought under favor of Section 1465-90, General Code. The defendant is a self-insurer under the workmen’s compensation law.

The record discloses that the plaintiff’s decedent was employed by the defendant as a night engineer and worked alone in what was called the air-compressor room in the defendant’s place of business; that on the night of October 2, 1938, he told the night watchman, whom he found in the dispensary and who was the only other person about, that he had fallen; that the employees were required to report accidental injuries to the night watchman; and that at that time and hour there was no nurse on duty in the dispensary.

This statement, that he fell, was excluded by the Industrial Commission at the rehearing and by the trial court upon the trial, and an offer to prove the fact was properly made.

This statement is part of the res gestae and is an act corroborative of the record which the employer made in accordance with Section 1465-99, General Code, which provides: “Every employer of the state shall keep a record of all injuries, fatal or otherwise, received by his employees in the course of their employment. * * * ” The statement was made to the only employee of the defendant present and to whom injured employees were required to report, and the fact that it was so made was recognized by the nurse and incorporated in her report set forth below.

The record further shows that on October 7, 1938, a nurse on duty in the dispensary of the defendant, whose duty it was to treat injuries sustained by employees in the course of their employment and to make' records thereof, made and recorded on the decedent’s card the following:

“10-7-38 States that 10-2-38 — 12 a. m. slipped and fell across a pipe which was about 1 ft. off floor. R chest hit pipe. Last night noticed R chest getting sore. Pain when taking deep breath. Pyrasin. See Dr. S. tomorrow. Reported accident -to Steve.”

Steve was the night watchman. The testimony of the nurse as to this report and record and the record itself were received in evidence by the commission. They were, however, excluded by the trial court, to which rulings the plaintiff duly excepted and made proper offers to prove the answers as given before the commission and as shown in the transcript. These rulings by the trial court and the resulting direction of the verdict for the defendant are assigned as errors by the plaintiff.

The Supreme Court of the United States, in Travelers’ Ins. Co. v. Mosley, 75 U. S. (8 Wall.), 397, 408, 19 L. Ed., 437, in holding that a declaration made by a decedent that he had fallen downstairs and almost killed himself, was part of the res gestae, says:

“In the complexity of human affairs, what is done and what is said are often so related that neither can be detached without leaving the residue fragmentary and distorted. There may be fraud and falsehood as to both; but there is no ground of objection to one that does not exist equally as to the other. To reject the verbal fact would not unfrequently have the same effect as to strike out the controlling member from a sentence, or the controlling sentence from its context. The doctrine of res gestae was considered, by this court, in Beaver v. Taylor [1 Wallace, 637]. What was said in that case need not be repeated. Here the principal fact is the bodily injury. The res gestae are the statements of the cause made by the assured almost contemporaneously with its occurrence, and those relating to the consequences made while the latter subsisted .and were in progress. Where sickness or affection is the subject of inquiry, the sickness or affection is the principal fact. The res gestae are the declarations tending to show the reality of its existence, and its extent and character. The tendency of recent adjudications is to extend rather than to narrow, the scope of the doctrine. Rightly guarded in its practical application, there is no principle in the law of evidence more safe in its results. There is none which rests on a more solid basis of reason and authority. We think it was properly applied in the court below. ’ ’ .

To the same effect are Southwestern Surety Ins. Co. v. Owens (Tex. Civ. App.), 198 S. W., 662; Travel ers’ Protective Assn. of America v. West, 102 F., 226.

While the statute, Section 1465-90, General Code, provides that upon the trial on appeal from the action of the commission, “the court may exclude from evidence such portions of the transcript which are not competent, material or relevant evidence and to which objection was made or/and exception taken at such rehearing before the commission and may admit in evidence such competent, material or relevant evidence as was excluded by the commission at such rehearing, over the objection and exception of the party offering the same,” it seems to this court that the compensation act being remedial in character, should be liberally construed and applied.

Section 1465-91, General Code, provides:

“Such commission shall not be bound by the usual common-law or statutory rules of evidence or by any technical or formal rules of procedure, other than as herein provided; but may make the investigation in such manner as in its judgment is best calculated to' ascertain the substantial rights of the parties and to carry out justly the spirit of his [this] act * * *.”

It was held in Industrial Commission v. Collela, 17 Ohio App., 301, at page 306, that “the commission does not sit as an ordinary trial court, and its proceedings are not adversary in their character, and the claimant does not occupy an antagonistic position to the board, but is in the position of a ward — entitled to be looked after and protected by it.”

In this case and in the many instances which must occur in industry where an employee is working alone, no other evidence of an injury may be available than a report made in the manner of the report under consideration here, and which, under favor of Section 12102-23, General Code, providing that “a record of an act, condition or event, shall, in so far as relevant, be competent evidence if the custodian or the person who made such record or under whose supervision such record was made testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission,” may be admissible to prove the event therein recorded. The law required this record to be made.

The oral statement to the watchman and the written dispensary record being essential facts basic to the hypothetical question, they should have been received in evidence and the case submitted to the jury to determine whether such injury, if it was sustained, was the proximate cause of death.

The judgment is reversed and cause remanded for ' new trial in accordance with this opinion.

Judgment reversed and caused remanded.

Lloyd and Carpenter, JJ., concur.


text:
    Zywiczynski, Appellant, v. Zywiczynski, Appellee.

      (No. 3946
    Decided March 1, 1943.)

      Mr. Thadtleus N. Walinslci, for- appellant.

      Messrs. Doyle & Lewis, and Mr. Melvin P. Lewis, for appellee.
   Lloyd, J.

On December 30, 1936, in an action commenced by Henry Zywiczynski, a divorce was granted to Ms wife, Agnes Zywiczynski, on her cross-petition, and in conjunction therewith alimony was awarded to her, consisting of certain chattel property “and the exclusive right of occupancy of the premises in which the parties have heretofore resided, to wit: 224 Pulaski street, Toledo, Ohio, and further described as follows: The south one-half (%) of the north one-half (%) of lots number three hundred and thirty-two (332), three-hundred and thirty-three (333), three hundred and thirty-four (334) in Junction Avenue Addition to the city of Toledo, Lucas county, Ohio, said defendant to enjoy the exclusive use and occupancy of said premises so long as she desires to reside therein.”

The court further ordered and adjudged: “that should said defendant desire to sell her undivided one-half (%) interest in said property, she shall submit to the court a price for the purchase of the entire property and if in the opinion of the court said price is fair and reasonable, he shall order said property to be sold and plaintiff and defendant shall execute a good and sufficient deed for said property and the proceeds of said sale, after payment of the expenses thereof, shall be divided equally between said plaintiff and the defendant, share and share alike.”

The court also ordered that the cause “be continued for further hearing as to alimony.”

Pursuant to this order of continuance, the court on December 15, 1937, ordered and adjudged that in addition to the award of alimony theretofore made, defendant, Agnes Zywiczynski, be awarded $5 per week commencing not later than December 24, 1937. The plaintiff, Henry Zywiczynski, was ordered to pay the costs of the action.

Later, the per-weeldy payment of $5 was increased and thereafter, on September 28, 1940, a lump sum judgment for $709.94 was rendered in favor of the defendant, Agnes Zywiczynski, and was declared to be a first and best lien on the aforesaid described Pulaski street premises.

On October 15, 1942, the defendant filed a motion designated as a “motion to show cause,” asking the court to require the plaintiff, Henry Zywiczynski, to show cause why he should not dismiss cause of action No. 160899, entitled Henry Zywiczynski v. Agnes Zywiczynski, filed in the Court of Common Pleas on September 18, 1942, that being an action for partition of the Pulaski street premises: The court granting this motion ordered and adjudged that the plaintiff therein, Henry Zywiczynski, “ shall forthwith dismiss at his costs said cause No. 160899 entitled Henry Zywiczynski v. Agnes Zywiczynski.” Prom that order and judgment the plaintiff, appellant herein, Henry Zywiczynski, appeals to this court on questions of law, assigning as error that the court “had no power and jurisdiction over the matter to issue the order for dismissal.” This order was an order of the Court of Common Pleas, not of a judge thereof disassociated in the discharge of his official duties from the court as an entity, and was binding upon the plaintiff unless declared by some judicial authority to be a nullity. It was, in effect, an injunction restraining the prosecution by the plaintiff therein of the partition action, an action which the plaintiff, it must be admitted, had a right to commence. Whether, upon trial thereof, he will be successful therein is of no importance here. He may or may not be, but certainly the court may not deny him the trial of the issues presented therein.

This court is of the opinion, therefore, that the order is a final order as defined by the Supreme Court in Johnston v. Deaton, 105 Ohio St., 285, 137 N. E., 10, and appealable. The motion of the defendant (appellee) to dismiss the appeal is therefore denied and the order of the Court of Common Pleas is reversed, vacated and set aside and the cause is remanded to that court for execution and for further proceedings according to law.

Order reversed and cause remanded.

Carpenter and Stuart, JJ., concur.


author: Hildebrant, J.

text:
    Beach et al., Appellees, v. Rowekamp et al., Appellants.
    (No. 157
    Decided October 22, 1943.)

      Messrs. Nichols, Speidel <& Nichols, for appellees.

      Mr. Charles E. Dornette and Mr. Harry Britton, for appellants.
   Hildebrant, J.

This is an appeal on questions of law from the granting of an injunction against the violation of certain building restrictions contained in the recorded plat and the various deeds pertaining to a residential allotment.

On motion to dismiss the appeal, the record reveals the following:

The opinion of the trial court was filed on March 18, 1943.

The judgment entry was filed April 8, 1943.

A motion for new trial was filed on April 10, 1943.

An entry overruling the motion for a new trial was filed on May 25, 1943; the order overruling such motion having been actually made on May 24, 1943.

The notice of appeal was filed June 1, 1943. It is as follows:

“Now come Harry L. Rowekamp and Edna Rowekamp, defendants-appellants and give notice of appeal from the judgment and final order made herein on May 24, 1943.

“Said appeal is on the question of law.”

"The motion to dismiss the appeal will be sustained without extended discussion, since it is apparent the instant appeal is-attempted from the overruling of the motion for a new trial, which is not a final order. A specific entry of specific date being referred to in the notice of appeal, this court will not indulge the presumption that appellants intended to appeal from the last final judgment, which was appealable, the appellants having expressly stated otherwise in the record and in open court; nor does the power of the court, by way of granting leave to amend, extend sufficiently to be available here. Williams v. Braun, 65 Ohio App., 451, 30 N. E. (2d), 363; Mahaffey v. Stine, 28 Ohio Law Abs., 361; Cultice v. DeMaro Realty Co., 29 Ohio Law Abs., 566. See, also, Malone v. Industrial Commission, 66 Ohio App., 505, 36 N. E. (2d), 52.

In view of the above holding, the court will not discuss other questions raised except to say that having-reserved its ruling on the motion and examined the cause on its merits the court feels the judgment of the court below would in any event have to be sustained.

The appeal is dismissed. ■

Appeal dismissed.

Ross, P. J., and Matthews, J., concur.


author: Lloyd,, J.

text:
    Weeks, Appellant, v. Streicher, Admr., Appellee.
    (No. 3996
    Decided December 20, 1943.)

      Mr. Wilson W. Snyder and Messrs. Welles, Kelsey, Cobourn & Harrington, for appellant.

      Mr. August M. Streicher, for appellee.
   Lloyd,, J.

In 1932 the Circuit Court of Wayne county, Michigan, finding’ in an action therein commenced by the plaintiff, appellant herein, against Northern Motor Sales Company and Charles H. Koerber as defendants therein, “that the defendants are guilty in manner and form as the plaintiff hath in his declaration in this cause complained against them,” assessed plaintiff’s damages in the sum of $2,000, for which judgment was rendered against the defendants “together with the costs and charges taxed at $76,” for all of which execution was awarded. In the declaration of plaintiff to which the court referred in its judgment entry it was alleged, in substance, that the defendants “well-knowing that the plaintiff was lawfully possessed as of his own property of certain goods and chattels (describing them) converted and disposed of the same to their own use” and that on the same day, March 4, 1927, “made an assault upon Gertrude E. Weeks, the wife of the said plaintiff * * * and then and there violently kicked, beat, bruised, wounded and ill-treated her,” whereby he “was deprived of the comfort, benefit and assistance of the said Gertrude E. Weeks in his domestic affairs” and incurred an expense of $100 in caring for her during her resulting illness.

Subsequently Koerber filed a petition in bankruptcy in the United States District Court for the Eastern District of Michigan, listing Weeks as one of his creditors because of the aforesaid judgment. Weeks opposed'the granting of a discharge to Koerber, one of his alleged grounds therefore being that his judgment claim was one for damages for wilful and malicious injury to his property. The objection of Weeks was denied for the reason that the issue raised related “to the effect of the discharge and not to the granting of it.” Koerber was granted a discharge in bankruptcy bn January 16,1934. He died testate on July 30, 1941. The Probate Court appointed August M. Streicher administrator with the will annexed of his estate. The judgment claim of Weeks was duly presented to the administrator, by whom it was rejected.

On March 20, 1942, Weeks commenced an action in the Court of Common Pleas, on the Michigan court judgment, against the administrator for $2,000 — the amount thereof, plus interest, together with his costs. Upon trial thereof, on June 2, 1943, the Court of Common Pleas, finding upon the issues joined in favor of the administrator and overruling the motion of AVeeks for a new trial, rendered judgment against him, ordering that he pay the costs of the action.

The record shows that the motion for a new trial was filed on April 27,1943, many days before the court entered its finding, and if the judgment to be rendered herein depended solely upon a consideration of the weight of the evidence, the judgment of the Court of Common Pleas would be affirmed. State, ex rel. Indus. Comm., v. Day, 136 Ohio St., 477, 26 N. E. (2d), 1014.

But, since the record discloses no conflict as to the facts, the appeal was properly taken and presents to this court for consideration the assigned error that the judgment of the Court of Common Pleas is contrary to law.

The Federal Bankruptcy Act excludes from its operation claims for “wilful and malicious injuries to the person or property of another.” Title 11, Section 35, U. S. Code.

Is the judgment claim of AVeeks based on a wilful and malicious injury, and provable as such?

The judgment entry of the Michigan court, as heretofore stated, finds that the “defendants are guilty in manner and form as the plaintiff hath in his declaration in this cause complained against them,” which is to say that the facts alleged in^ the declaration are true. And in the declaration it is alleged that the defendants, well-knowing that the plaintiff was lawfully possessed of the goods and chattels described therein as of his own property, converted and disposed of the same to their own use and that by reason of the unlawful conversion, damage ensued to the plaintiff. Also there is alleged therein, the damage to plaintiff resulting from the assault on Mrs. Weeks hereinbefore mentioned. An assault surely is intentional and malicious, and the conversion of property, knowing it to be unlawful, imports an intentional act without just' cause or excuse.

“Malice, in common acceptation, means ill will against a person, but in its legal sense it means a wrongful act, done intentionally, without just cause or excuse.” Tinker v. Colwell, 193 U. S., 473, 485, 48 L. Ed., 754, 24 S. Ct., 505.

“To deprive another of his property forever by deliberately disposing of it without semblance of authority is certainly an injury thereto within common acceptation of the words.” McIntyre v. Kavanaugh, 242 U. S., 138, 141, 61 L. Ed., 205, 37 S. Ct., 38. See, also, In re Phillips, 298 F., 135, 138.

This court is of the opinion that the discharge of Koerber in the bankruptcy proceedings did not release his liability on the judgment rendered in the Wayne county Circuit Court of Michigan.

The judgment of the Court of Common Pleas is reversed as being contrary to law and final judgment is rendered for the plaintiff:, appellant herein.

Judgment reversed and final judgment for appellant.

Carpenter and Stuart, JJ., concur.


text:
    Howell et al., Appellants, v. French, Appellee.
    (No. 4007
    Decided January 10, 1944.)

      Messrs. Geer, Lane & Downing, for appellant Harold A. King.

      Mrs. Eva Epstein Shaw, for appellant Helen R. Zadra, individually and as executrix.

      Mr. Dan E. McCullough, for appellee.

      Mr. Benjamin E. Fisher, amicus curiae.

   Stuart, J.

This case comes into this court on appeal on questions of law from an order of the Common Pleas Court of Lucas county, vacating its former order confirming a sheriff’s sale.

In the action below, a decree was entered foreclosing a mortgage and judgment lien upon certain real estate. Various orders of sale were issued to the sheriff. Although service of summons had been made upon the defendant, Alberta French, the owner of the real estate who had assumed and agreed to pay the mortgage, she was in default for answer or demurrer to the petition and cross-petition. Other than to apply for relief under the so-called Best Act, she made no appearance on the merits or as to the issues, until June-1, 1943, when she filed the motion here involved to vacate and set aside the confirmation of the sheriff’s sale..

On September 30, 1942, the sheriff made his return of a sale to Helen R. Zadra. On October 14, 1942, a motion to confirm the sale was filed and an order of' the court confirming the sale was entered on the journal of the court on May 25, 1943, a deed and distribution were ordered and a conveyance was made by the-sheriff. On June 1, 1943, Alberta French filed her motion to vacate confirmation of the sale, which was-granted, and it is of this action of the court that appellants King and Zadra complain.

As appears from the record, this sale was in all respects regular and according to law, and upon its confirmation and the delivery of the sheriff’s deed the-rights of the purchaser became fixed and vested, and,, in the absence of fraud or irregularity, such rights-could not thereafter be divested except by the act of the purchaser. ■

A purchaser at a judicial sale has certain rights-which the court is bound to protect equally with the-rights of the parties to the action. Neither disputes nor differences between the parties to the case, nor events occurring subsequent to the sale and confirmation, can affect the rights of the purchaser. The exercise of a sound discretion requires that these rights be-recognized and protected by the courts.

Judgment reversed, and cause remanded..

Lloyu and Carpenter-, JJ.. concur.


author: Washburn, J.

text:
    Goehring, Appellee, v. Dillard, a Minor; Dillard, Admr., Appellant.
    (No. 3649
    Decided May 5, 1944.)

      Messrs. Brouse, McDowell, May & Bierce, for appellee.

      Messrs. Wise, Roetsel & Maxon, for appellant.
   Washburn, J.

A brought a suit against B, a minor, for damages for personal injury suffered by A in a collision of a car be was driving with a car driven by B at intersecting streets.

A guardian ad litem for B was duly appointed, and he filed, not the formal answer of a guardian ad litem, but an answer joining issue generally on the allegations of the petition and pleading contributory negligence.

The case being at issue, A, by deposition and as upon cross-examination, took the evidence of B, and at the same sitting B likewise, upon cross-examination, took the evidence of A; and at the subsequent trial it was evident that the question of liability depended upon the evidence of said two parties and the physical facts concerning the collision.

Thereafter B entered the armed services and was killed, and the cause was regularly revived in the name of B’s administrator. The entry of revivor, which was approved by counsel for both parties, stipulated that the action should proceed “to final determination, on the issues made by the pleadings heretofore filed herein, without amendment, refiling or reverification.”

Such revivor, with the consent of the administrator, was made within the time provided by law for the presentation of claims by creditors. No claim was presented to and disallowed by the administrator.

At the proper time before trial, the deposition of B was duly filed by A, and at the trial A offered said deposition in evidence; and the court, over the objection of B’s administrator, admitted the same and permitted A to testify concerning the facts as to which B had testified in his deposition.

We are of the opinion, and hold, that, under the circumstances, no presentation to, and rejection by, the administrator of the claim was necessary. The revivor of the action rendered unnecessary a presentation of the claim. That has been the settled law of the state for many years, and we do not find that any recent section of the Code changes that rule.

' We are also of the opinion, and hold, that it was not error to permit the plaintiff to introduce the deposition of the deceased defendant, nor to permit the plaintiff to testify as to the specific matters testified to by the defendant.

We know of no case in Ohio in which this exact question has been presented for determination, and we have been unable to find in the eases in other jurisdictions cited by counsel that the precise question has been determined.

In the consideration of the question involved, it should be kept in mind that the deposition in this case was not that of a mere witness, but was of a party to the suit; that at the same time said deposition was taken, the deposition of the other party to the suit (the plaintiff) was taken; that at said time both of the parties were competent to testify to the matters contained in their respective depositions; that at the time of the taking of such depositions the case was at issue; that, owing to war conditions, the taking of such depositions was somewhat in the nature of perpetuation of evidence; that, regardless of which party took the depositions, they were, when filed, available to both parties alike, and thus the plaintiff had a perfect right to introduce the deposition of the defendant; and' that the statute (Section 11495, General Code, paragraph 8) provides that “If a party dies and his deposition be offered in evidence, the opposite party may testify as to all competent matters therein.” It should also be borne in mind that the spirit of the statute of which the foregoing is a part, is to protect a party whose mouth has been closed by death and who is unable to give his version of the controversy to the jury, and should not be construed to protect one who has given his version of the controversy by deposition.

The administrator for the defendant had a perfect right to introduce the defendant’s deposition in evidence, and had that been done, there could be no question about the right of the plaintiff to testify as to the facts testified to by the defendant in said deposition. Under such circumstances, it seems to us that the mere fact that the deposition was introduced by the plaintiff should not defeat his right to testify.

We have also examined the following claims of error:

“In sustaining the demurrer of appellee to the third defense of the supplemental answer of appellant,” “in overruling the motion of appellant for judgment on the pleadings and the opening statement of counsel for appellee,” “in overruling the motion of appellant objecting to the introduction of any evidence on behalf of appellee,” and “in overruling the exceptions of appellant filed to the deposition of Ransie Dillard filed herein by appellee”; also the claims of error in the general charge of the court, and in the refusal of the court to give to the jury before argument a certain written request of appellant (which we find was sufficiently covered by the giving of another request of appellant before argument); and we have also considered the claims that there was error of the court in refusing to direct a verdict for the appellant, in refusing to enter a judgment for defendant notwithstanding the verdict, and in refusing to enter a judgment for appellant on the special findings of fact; and considering all of said claims in connection with the record in the case, we find no prejudicial error in reference thereto.

The appellant submitted certain interrogatories to be answered by the jury, and they were so answered; and we are of the opinion that the findings of the jury are not manifestly against the weight of the evidence, and further that the verdict of the jury is sustained by sufficient evidence and is not contrary to law.

One other error is claimed, and that is that the damages awarded by the jury are excessive and appear to have been given under the influence of passion and prejudice; and on that claim we also find against appellant.

Judgment affirmed.

Stevens, P. J., and Doyle, J., concur.


author: Geiger, J.

text:
    The State, ex rel. Herbert, Atty. Genl., Appellee, v. Brotherhood of Railroad Trainmen Insurance Dept., Appellant.
    (No. 3674
    Decided February 26, 1944.)

      Mr. Thomas J. Herbert, attorney general, Mr. Richard C. Gerken and Mr. Harry R. lllman, for appellee.

      Messrs. Pretsman & Dillon, for appellant.
   Geiger, J.

This matter is before this court upon appeal by the defendant, Brotherhood of Railroad Trainmen Insurance Department, on questions of law from the judgment rendered on the 26th day of July, 1943, wherein the court rendered a judgment in behalf of the plaintiff, appellee herein, and against the defendant. The judgment appealed from was, “It is therefore ordered, adjudged and decreed that plaintiff recover from the defendant the sum of $11,363.65 and costs.”

This matter is of considerable importance to the parties herein, inasmuch as recovery is for a considerable amount, and further for the reason that if the judgment rendered by the court below is correct, a like judgment may be rendered annually for the same or possibly an increased amount unless there is a complete reversal of the defendant’s policy in reference to its insurance department.

In view of this importance we will give considerable space to the discussion of the question.

On November 25, 1941, there was filed in the Court of Common Pleas a petition under the above title, being in that court numbered 163771. Wherever it occurs to the court that any matter should be emphasized, it will be done by appropriate indication. We will delete all matter which is not absolutely essential.

The petition recites that the defendant is a domestic insurance company as defined by Section 5414-8, General Code, and is subject to the franchise tax imposed by Sections 5414-9 to 5414-17, inclusive, General Code, and that there is .due from the defendant the following taxes and penalties:

1940 domestic franchise insurance tax $5,132.16, penalty $513.22. Total $5645.38.

1941 domestic franchise insurance tax $5195.70, penalty $519.27. Total $5715.27.

It is asserted that the above taxes and penalties so sought to be recovered stand charged upon the delinquent duplicate of domestic insurance company franchise taxes in the office of the Treasurer of State, and the same have been unpaid for a period of thirty days after having been placed thereon, and that demand has been made therefor, but no payment made.

Plaintiff prays judgment against the defendant in the sum of $11,363.65.

An answer was filed by the defendant, to the second defense of which a demurrer was filed and sustained, and thereupon an amended answer was filed.

The defendant admits the qualifications of the plaintiff; that the defendant is a domestic insurance company as defined in the petition; and that the taxes stand charged against it on the delinquent duplicate of the Treasurer of State. It denies all other allegations.

For a first defense defendant says that it is a fraternal benefit society, organized under and by virtue of the laws of Ohio as a corporation not for profit and licensed by the Department of Insurance of the state as a fraternal benefit society; that under and by virtue of the laws of Ohio governing and regulating fraternal benefit societies, the contract of insurance issued by any such society and the rules governing the membership consist of articles of incorporation, its constitution and bylaws, the application for insurance and the certificate of insurance issued thereunder; and that the constitution of the defendant at all times mentioned in 'the petition provides for the admission to membership in the Brotherhood of Railroad Trainmen as follows:

“Section 120. ,A candidate for admission to the lodge shall have been employed as a railroad trainman, or bus operator and must be actually employed in train, yard or bus service in the jurisdiction of the lodge and on the road or bus line named in his application, at least one month prior to date of admission. The term ‘railroad trainmen’ shall be held to cover the following occupations: (Then follows a recitation of the services to be rendered “in road service,” “in yard service” and “in train or yard service of interurban electric railways,” or of workers on surface electrical railways who come in contact and work with me» employed on steam railways or bus lines. Then follow the qualifications of the applicant. He must not be less than eighteen and not to exceed sixty-five years of age on the day he is admitted to the lodge. He must be examined as provided. His failure to participate in the insurance department shall not disqualify him from membership in the brotherhood. Certain other disqualifications are enumerated).

Defendant says that such members may be either insured or honorary; that membership in the brotherhood is limited to railroad employees and bus operators who at the time of making application are in the employ-of a railroad or bus company; that any eligible applicant to membership in the brotherhood must be an employee of a person, firm or corporation or employees of a group of such employers engaged in the same or similar lines of business; and that the defendant indemnifies its members for loss in the event of accident, sickness or death.

Defendant says that membership in the defendant brotherhood is confined solely to employees as defined in section 120 of its constitution above quoted, all as provided in the rules of the Brotherhood of Railroad Trainmen Insurance Department, and particularly rule 14 which provides that membership in this department shall continue only during the time that the member remains in good standing in the Brotherhood of Railroad Trainmen, If for any reason he should withdraw from such membership all certificates of insurance shall be determined and paid to him in cash, if he is living.

Defendant says that it also issues “juvenile insurance certificates” on the lives of minor sons and grandsons of members of the Brotherhood of Railroad Trainmen and of deceased members of such brotherhood in good standing at the time of death, all as provided in rule 31% of the rules of the insurance department. Rule 31% is to the effect that the general secretary and treasurer is authorized to issue certificates of insurance with graded benefits not exceeding $1,000 on the lives of minor sons and grandsons of members of the Brotherhood of Railroad Trainmen and of deceased members who were in good standing at the time of their death under such rules and conditions as may be adopted by the board.

Defendant says that the minor sons and grandsons on whose lives juvenile certificates of insurance are issued are not and cannot become members of the defendant brotherhood unless they become of age and can otherwise qualify under section 120; that “application for juvenile insurance certificate” is made by the father or grandfather of said minor; that no certificate can be issued in excess of $1,000; that such certificates are confined to certain forms of policy and the application for “juvenile insurance certificate” is signed by the father or grandfather of the minor; and that application for membership in the Brotherhood of Railroad Trainmen Insurance Department or in the Brotherhood of Railroad Trainmen is made by the prospective member who must be eligible under the provisions of section 120.

Defendant further says that the preamble of the constitution is as therein set out; that the articles of incorporation are in' part as follows:

“Third. The purpose or purposes for which said corporation is formed are: As a fraternal benefit society, without capital stock, organized and carried on solely for the mutual benefits of its members and their beneficiaries, and not for profit, and having a lodge system with ritualistic form of work and representative form of government; to make provision for the payment of death, disability, benevolent and other benefits in accordance with the constitution, rules, regulations and orders of the society and as may now or hereafter be permitted by the insurance laws of the state of Ohio governing fraternal benefit societies.”

Defendant further says that by reason of such eligibility list as provided in its constitution, the defendant is exempt from the payment of any taxes imposed by Sections 5414-9 to "5414-13, both inclusive, General Code, by reason of Section 5414-11, General Code.

The second defense is a plea of res judicata in that the plaintiff had asked judgment in an action, No. 160215, in the Court of Common Pleas, for taxes and penalties for the years 1936,1937,1938 and 1939, which taxes at the time of the institution of the suit stood charged upon the delinquent duplicate of the domestic insurance company franchise taxes in the office of the Treasurer of State; that in such litigation the defendant filed an answer setting forth that it was a fraternal benefit society not for profit and further setting out its qualifications for membership as provided in section 120, setting forth the preamble of such constitution as set forth in the first defense herein, and praying for dismissal of the petition upon the ground that it was specifically exempted from the provision of the domestic franchise tax, Section 5414-11, General Code; that to such answer the state of Ohio filed its demurrer which was overruled, the court finding that this defendant, by its operation, was exempt from domestic franchise tax by virtue of the second paragraph of Section 5414-11, General Code, and the plaintiff not desiring to plead further, final judgment was entered in favor of the defendant and against the plaintiff on the first day of July, 1940; and that prior to the time of the commencement of the action the Superintendent of Insurance knew that the defendant was issuing juvenile certificates as set forth in the first defense by reason of certain actions taken by the Insurance Department, and reports made by the brotherhood. It is asserted that a report of the juvenile business and activities of the defendant were set forth in detail, and particularly that defendant had outstanding 449 juvenile certificates of the face value of $323,500, and that in the annual report for the year 1939, which was filed with the Superintendent of Insurance on the 1st day of March, 1940, the juvenile business was set forth in detail and it was particularly recited that the defendant had outstanding 1391 juvenile certificates of the face value of $1,037,000.

Defendant says that no appeal or proceeding in error from the final judgment so rendered on such date was taken by the state of Ohio, and that the issues therein sought to be raised in this action are res judicata. Defendant prays that the petition be dismissed.

To the amended answer the state filed its reply and demurrer.

The reply to the first defense admits that the defendant is a fraternal benefit society, organized not for profit and licensed by the Department of Insurance of the state as a fraternal benefit society; that the qualifications for membership in the Brotherhood of Railroad Trainmen (not the defendant Brotherhood of Railroad Trainmen Insurance Department) are set forth in the sections of the constitution of the Brotherhood of Railroad Trainmen; and that the defendant issues juvenile insurance certificates on lives of minor sons and grandsons of members of the Brotherhood of Railroad Trainmen and of deceased members in the brotherhood, who were in good standing as provided by rule 31%.

It is further admitted that the preamble of the defendant’s constitution and the purpose clause of its articles are as set forth in defendant’s answer.

Replying further plaintiff denies every allegation set forth in the defendant’s answer which is not an admission of an allegation in the plaintiff’s petition.

It is alleged that by reason of the insurance written on the lives of junior members the defendant does not come within the provisions of Section 5414-11, General Code, and is not exempt from the payment of the taxes imposed by Sections 5414-9 to 5414-13, General Code.

The plaintiff demurred to the second defense as set forth in defendant’s answer for the reason that the same is insufficient in law to constitute a defense to the plaintiff’s petition.

The sections of the statute which are pertinent may be epitomized as follows:

Section 5414-8 defines the term “insurance company” as including-every corporation, association and society engaged in the business of insurance of any character whatsoever.

The term “domestic insurance company” includes every insurance company existing under the laws of the state and every unincorporated association formed for the purpose of engaging in such business in the state and excludes foreign insurance companies.

Section 5414-9 provides for an annual franchise tax on the privilege of being an insurance company and provides the method by which the tax shall be computed.

Section 54.14-11 requires a report of the valuation of certificates filed annually by fraternal benefit societies and provides that except as otherwise provided in this section a fraternal benefit society organized under the laws of this state, which issues insurance certificates (with certain recited exemptions) shall file with the Superintendent of Insurance a report of the valuation of its certificates from which the superintendent shall for the purpose of the chapter determine the admitted and nonadmitted assets and liabilities of such benefit societies on the same basis on which the admitted and nonadmitted assets and liabilities of other benefit societies are determined.

The second paragraph of Section 5414-11 raises the question now at issue, which is whether the particular insurance society is exempt from taxation. The provision of such paragraph is that nothing contained in Sections 5414-9 to 5414-13, both inclusive, shall apply to any other domestic insurance company as defined in the chapter which is not required to file annual reports with the Superintendent of Insurance, “nor to associations or corporations organized not for profit which admit to membership only employees of a person, firm or corporation or employees of a group of such employers engaged in the same or similar lines of business, who seek to provide indemnity among their members for loss from or to provide a benefit in the event of accident,- sickness or death of any of their number,” whether hy means of the exchange of private contracts between themselves and a corporation or association created by them not for profit. (Italics ours.)

■Section 5433 provides for the computation of insurance tax.

The first thing we must determine is whether the demurrer to the second defense is well made, for if that demurrer is overruled, then the matter is terminated hy virtue of the fact that all the questions involved in the present issue are res judicata by virtue of the decision of the court in 1940 in case No. 160215 from which no appeal was prosecuted.

The plaintiff, in support of the demurrer, points to the fact that the instant case is for taxes under the above sections for the years 1940 and 1941, which taxes are in different amounts and for years subsequent to those upon which the action was based in case No. 160215, which plaintiff asserts were not asserted or even .ascertained at the time that action was instituted, and that the former action, therefore, cannot be held to estop the state from bringing the action for the current taxes. Counsel cite many authorities sustaining their position and their contention that a decision concerning taxes of a particular year is not res judicata so as to preclude suit for taxes of another year.- Counsel, in addition to a large number of cases cited, call attention to 26 Ruling Case Law, 448, Section 404, where it is stated:

“Applying the principle of res judicata to litigation involving the validity of taxes upon the same persons or upon the same property for successive years, it is held that a decision affirming or denying the liability of a particular person or a particular piece of property for one year is not necessarily conclusive with respect to the same person or the same piece of property in subsequent years although the parties are the same.”

It is asserted by counsel, and our examination discloses they are correct in the assertion, that all the quoted authorities hold that even where there is no issue which was not adjudicated in the prior case, where taxes for a subsequent year are involved, the prior action is not determinative of the subsequent proceeding between the same parties.

In the case of State, ex rel. Methodist Book Concern, v. Guckenberger, Aud., 133 Ohio St., 27, 10 N. E. (2d), 1001, it is held that under the provisions of Section 5570-1, General Code, the Tax Commission has exclusive authority to declare property exempt, but the county auditor has authority in any year thereafter to strike property from the exempt list and place it upon the taxpayer list.

Counsel for defendant state their position as follows :

‘‘ The question of law for determination of this court is whether or not the previous action involving the franchise taxes for 1936, 1937, 1938 and 1939, is res judicata and a bar to this suit involving taxes computed under the same law and in the same arithmetical manner for the years 1940 and 1941.”

It is pointed out that in the previous action the pleadings did not contain any allegation with reference to the issuance of juvenile certificates. It is the contention of the defendant that the prior action is res judicata and a bar to this present action, for the reason that under the general rule, the doctrine of res judicata applies not only to issues which %uere raised betiveen the same parties, involving the same subject matter, but to all issues which might have been raised, and that inasmuch as the state had knowledge of the fact that the defendant was issuing juvenile certificates, prior to the institution of the first action, it cannot re-litigate this same issue in the present suit. Defendant cites Covington & Cincinnati Bridge Co. v. Sargent, 27 Ohio St., 233; Petersine v. Thomas, 28 Ohio St., 596. The first paragraph of the syllabus of the latter case is:

“When a matter is finally determined in an action between the same parties by a competent tribunal, it is to be considered at an end, not only as to what was determined, but also as to every other question which the parties might have litigated in the case.”

Counsel point to what is stated to be the latest enunciation of the Supreme Court, in Quinn, Aud., v. State, ex rel. Leroy, 118 Ohio St., 48, 160 N. E., 453. The first paragraph of the syllabus in the Quinn case is:

“Material facts or questions which were in issue in a former suit and were there judicially determined by a court of competent jurisdiction are conclusively settled by the judgment therein so far as concerns the parties to that action and persons in privity with them and cannot be again litigated in any future action between the same parties or privies, and this rule also applies not only to what was determined but also to every other question which might properly have been litigated in the case.”

Counsel quote 23 Ohio Jurisprudence, 963, Section 731, as follows:

“The doctrine of res judicata rests upon the ground that the party to be affected, or some other with whom he is in privity, has litigated, or had an opportunity to litigate, the same matter in a former action in a court of competent jurisdiction, and should not be permitted again to harass and vex his opponent in a second action involving the same matter.”

Counsel for the state assert that while they are unable to find any cases directly in point in Ohio, the court in interpreting the Methodist Book Concern case, supra, and State, ex rel. Bartlett, Pros. Atty., v. Thatcher, Aud., 138 Ohio St., 235, 34 N. E. (2d), 440, pointed out that exemptions granted by the Department of Taxation were good only for the year in which the exemption was granted.

Counsel cite the decision in City of Newport v. Commonwealth, 106 Ky., 434, 50 S. W., 845, 45 L. R. A., 518, as being directly in point:

“An adjudication upon a liability for taxes for one year is no bar to an action for taxes for a subsequent year. ’ ’

See, also, Keokuk & Western Rd. Co. v. Missouri, 152 U. S., 301, 314, 38 L. Ed., 450, 14 S. Ct., 592, wherein the LTnited States Supreme Court held:

“A suit for taxes for one year is no bar to a suit for taxes for another year. The two suits are for distinct and separate causes of action.”

Bank v. Memphis, 101 Tenn., 154, 46 S. W., 557, holds that:

“The plea of res adjudícala is limited in its effect, in tax cases, to the taxes actually in litigation, and is not conclusive in respect of other taxes assessed for other and subsequent years.”

State v. Bank of Commerce, 95 Tenn., 221, 31 S. W., 993, holds:

“A judgment adverse to the claim for taxes for one year constitutes no bar to a suit for taxes, of a subsequent year. ’ ’

In Lake Shore & Mich. So. Ry. Co. v. People, 46 Mich., 193, the court held:

“The result of a suit for taxes of a particular year is not res judicata in subsequent suits between the same parties for taxes of other years, and the decisions upon legal questions arising in the first case are important only as precedents.”

In C. B. & Q. Rd. Co. v. Cass County, 72 Neb., 489, 101 N. W., 11, 117 Am. St. Rep., 806, it is held:

“A claim for taxes under the assessment for one year is not the same cause of action as a claim for taxes on the same property under an assessment for a prior year.”

In City of Davenport v. C. R. I. & P. Rd. Co., 38 Iowa, 633, it is held:

“Each year’s taxes constitute a distinct and separate cause of action. They do not, in any just sense, grow out of the same transaction.”

To the same effect see State v. American Sugar Refining Co., 108 La., 603, 32 So., 965.

It is asserted that the subject matter of the first action between these same parties was the liability of the defendant for the payment of franchise taxes under what was then and still is the “Franchise Tax Law,” Sections 5414-8 to 5414-22, General Code, and the fact that the prior action involved the years 1936, 1937, 1938 and 1939, whereas the instant case involves the years 1940 and 1941, is immaterial and unimportant for the taxes for each year are all based upon the same statute and the amount thereof was merely a matter of arithmetical computation under the statute. The subject matter of the prior action and of this action, therefore, is the liability for the payment of the franchise taxes, and particularly whether Section 5414-11 exempts the defendant from such payment.

It is asserted that in the former action the court' found that by virtue of Section 5414-11 this defendant was not liable for the payment of snch franchise taxes; that the only difference between the present action and the prior action is the state’s contention that by reason of the fact that juvenile certificates are issued, the holders of such juvenile certificates are not to be considered as “members” of the defendant so-, ciety; and that, therefore, under Section 5414-11 this defendant does not limit its membership solely to “employees of a person, firm or corporation or employees of a group of such employers engaged in the same or similar lines of business.” It is asserted that this factual.situation existed at the time of the institution of the prior action, and under the authorities above cited, the doctrine of res judicata acts as a bar to this present suit, and - therefore the demurrer should be overruled.

We, therefore, arrive at the conclusion, as all of the lower court judges have heretofore done, that so far as the demurrer to thé second defense of the amended answer is concerned, such demurrer should be sustained, and whatever may have been asserted in that defense, as a defense should be disregarded.

We, therefore, arrive at the conclusion that any claimed error by virtue of the exclusion of such testimony is not prejudicial.

The present assignments of error by the appellant are:

(1) The court erred in sustaining the demurrer ' of the plaintiff to the second defense of the defendant’s amended answer.

This, we overrule.

(2) The court erred in sustaining the objection of the plaintiff to the offer of evidence on the part of the stipulation of facts entered into between the parties contained in the last paragraph on page 4 of the stipulation.

This assignment is overruled for the same reason as the former assignment.

The further assignments- of error must receive our further consideration, and are here enumerated:

(3) The court erred in that the judgment in the above entitled cause is contrary to the manifest weight of the evidence.

(4) The court erred in that the decision of the court is not sustained by sufficient evidence.

(5) The findings and decisions of the court are contrary to law.

Counsel, after reciting their assignments of error, state:

“Assignments of error 1 and 2 have to do with the defense of res judicata, while the assignment of errors 3, 4 and 5 present to this court the question of whether the court below correctly construed the exemption of the statute relied upon by appellant, to wit, 5414-11, as applied to the facts before it.”

Before we examine the questions presented by the assignment of errors we might profitably analyze the decision of the trial court. The decision was rendered on the 14th day of July, 1943, and is very well considered. It is stated by the judge of the Court of Common Pleas:

“It is the conclusion of this court that the exemption clause of Section 5414-11 of the General Code of Ohio clearly establishes an exemption only where the defendant seeks to provide indemnity among their members # * * and that the manner in which the defendant conducts its affairs, as heretofore indicated, takes it outside the field of exemption provided by Section 5414-11.

“Therefore, on the evidence and the law, the court is of the opinion that no right appears in favor of the defendant for exemption of the franchise taxes sought to be collected by plaintiff from the defendant.”

In contrast to the decision in the present case we cite the decision in case No. 160215, by another judge of the same court, which gave rise to the claim of res judicata:

“Considering the whole of Section 5414-11, General Code, particularly the second paragraph thereof, and still more specifically the language therein following the word ‘nor’ (which is the first word following the first comma in said second paragraph) the court is of opinion that defendant falls within the exempted classification therein set forth, and being within said classification that there is nothing in any other part of said statute which removes it therefrom.

“Demurrer to answer overruled.”

This matter naturally has given the court much concern for the reasons heretofore stated and by reason of the fact that the question is clearly a close one. We give consideration to the method in which the defendant does its insurance business. It has issued certificates (not policies) to a large number of minors and in a large amount based upon a provision by which the sons and grandsons of the members of the Brotherhood of Railroad Trainmen (which is an unincorporated association not for profit, differing from the defendant in this case, which is the Brotherhood of Railroad Trainmen Insurance Department, organized under the laws of Ohio) may enjoy the benefits of their insurance certificates during their minority even though they be not members of the Brotherhood of Railroad Trainmen or eligible thereto. It seems to us that the purpose of the exemption is to grant certain privileges to an organization providing for insurance confined to its own membership, and that the moment the organization issues certificates to those who are not actually railroad operators belonging to their parent organization, it forfeits the right to exemption under Section 5414-11, General Code. The latter part of that section is rather obscure, but it appears that nothing in the enumerated section shall apply to an association not for profit which admits to its membership only certain employees engaged in the same or similar lines of business, for the purpose of providing indemnity among its members, or of providing a benefit as therein prescribed and such section confines the benefits of exemption from taxation to such an organization ¿s insures only its own members. If by the provisions of its constitution or rules by which it does business it may insure the sons and grandsons of those in good standing in the organization, whether the parents or grandparents are living or dead, it would follow that this insurance might be extended indefinitely so that ultimately there would be more policies or certificates carried by those who were not members of the organization than by those who were.

The remedy, if any, is clearly with the Legislature.

The judgment of .the court below is affirmed.

Judgment affirmed.

Barnes, P. J., and Hornbeck, J., concur.


author: By the Court.

text:
    Kegler, Admx., Appellee, v. Kempter et al., Appellees; Clark, Appellant.
    (No. 6106
    Decided March 9, 1942.)

      Mr. Albert D. Castellini, for appellee Maria J. Kegler, Admx.

      Messrs. Peek, Shaffer, Williams & Gorman, for appellant.
   By the Court.

The question presented in" this case is’ whether the daughter of the wife of the testator takes, under Section 10504-73, General Code, the estate which her mother would have taken under the will of her husband had she survived him.

It is conceded that the Supreme Court in Schaefer v. Bernhardt, 76 Ohio St., 443, 81 N. E., 640, construed the almost identical provision as that involved in the instant case, found in the code section .referred to above, to include only those related by consanguinity to the testator. As the wife was not so related, the daughter cannot take, and the gift to the wife, must lapse unless this court should give to the section a different construction.

It is urged upon us that the testator considered his wife’s daughter as his daughter and so referred to her; that this fact should be considered in construing the will; and that the statute should be considered as a part of the will.

As we view it, this would be giving the daughter the status of an adopted child, when no adoption proceedings had been taken, and would be permitting a party to change or amend Section 10504-73, General Code, to include relatives by affinity, when the Supreme Court has decided that its benefits are limited to relatives by consanguinity.

The judgment is affirmed.

Judgment affirmed.

Matthews, P. J., Hamilton and Ross, JJ., concur.


text:
    Foulks, Exr., Appellee, v. Talbott, Exr., Appellant.
    (No. 1439
    Decided November 20, 1943.)

      Mr. Carl J. Gugler, for appellee.

      Mr. Dean G. Talbott, for appellant.
   Middleton, J.

This is an appeal on questions of law. The plaintiff filed a petition in the Court of Common Pleas asking the court for a declaratory judgment and setting forth the following facts:

Flora C. Pigman died testate on November 24, 1935. By the terms of her will she gave a life estate in certain real estate in Galion, Ohio, to her brother Charles S. Hetrick, a resident of Goshen, Indiana. Charles S. Hetrick took possession of the real estate and continaed ill possession until Ms death on September 4, 1940. He paid the taxes on such real estate through the instalment of taxes due in June, 1940, being the last half •of the 1939 taxes.

There was no ancillary administration of the Hetrick estate, in the state of Ohio.

The plaintiff, as executor of the Hetrick estate, filed in the Probate Court of Crawford county, Ohio, an authenticated copy of Ms letters of appointment as executor by the Indiana court, pursuant to Section 10511-2, General Code of Ohio. Due publication was made by the Probate Court of Crawford county, and within six months thereafter the defendant presented a claim to the Probate Court against the Hetrick estate for $443.62 being the amount of the taxes, levied against the real estate for the year 1940, in which real estate the plaintiff’s decedent held a life estate.

Thereafter, the plaintiff filed Ms petition in the Court of Common Pleas asking the court for a determination of Ms liability for the payment of the taxes for the year 1940.

The first claim made by the plaintiff is that the claim of the defendant is barred by the provisions of Section 10509-133, General Code, for the reason that no suit was filed on such claim within two months after the claim was disallowed.

The second claim made is that the payment of these taxes by the defendant was voluntary, and for that reason could not be recovered.

The third claim made is that the plaintiff was not liable for the tax for the reason that the deceased died on September 4,1940, and the tax was not due and payable at the time of his decease.

Section 10511-2, General Code, provides as follows:

“When letters of administration or letters testamentary have been granted in any other state, territory or possession of tlie United States, or in any foreign country, as to the estate of a deceased resident thereof, and when no ancillary administration proceedings have been had or are being had in Ohio, it shall be lawful for the person or persons to whom such letters were granted, to file in the Probate Court in any county of this state in which is located real estate of the decedent, an authenticated copy of the letters of appointment, and such court shall thereupon cause notice thereof to be published for three consecutive weeks in some newspaper of general circulation in the county in which such authenticated copy was filed. The claim or claims of any creditor or creditors of such decedent shall be presented to such Probate Court within six months after the date of such filing or be forever barred as a possible lien upon’ the Ohio real estate of such decedent. If at the expiration of such period of six months, any such claims have been filed and remain unpaid after reasonable notice thereof, to the nonresident executor or administrator, ancillary administration proceedings as to such estate may be had forthwith. ’ ’

That section provides for the filing of authenticated copies of letters of appointment, and further provides for the presentation of claims to the Probate Court.

It is admitted that the authenticated copy of appointment of the plaintiff as such executor was filed, and that the claim of the defendant was presented to the court within six months thereafter.

The defendant complied with this section, and his claim is not barred. The judgment of the court on this proposition was correct and is affirmed.

The second claim of the plaintiff is that the payment of the tax by the defendant was voluntary, and for that reason he cannot recover.

The undisputed facts are that defendant, as remainderman, paid the tax to avoid a penalty from being assessed for nonpayment of the tax.

Where it is shown that a payment was for the protection of a person’s own property and he is compelled to pay what another himself ought to have paid, the payment under such circumstances will not be deemed to have been officiously made nor will the former be looked upon as a mere volunteer or intermeddler in matters in which he has no interest or concern. Irvine v. Angus, 93 F., 629, 633.

The court below held that the payment of this ta-x by the defendant was not a voluntary payment. The ruling of the court on this proposition is correct, and is affirmed.

The remaining question presented is whether the taxes for the year 1940 should be paid by the plaintiff as executor of the life tenant, or by the defendant as executor of the estate of Flora 0. Pigman, the remainderman.

It is a well established general principle that it is the duty of a life tenant in possession of real estate to pay the ordinary taxes thereon, in the absence of some contrary intention manifested by the creator of the life tenancy and remainder. 33 American Jurisprudence, 960, Section 435; 16 Ohio Jurisprudence, 444, Section 59.

This general principle was made a part of the statutory law of Ohio.

Section 5680, General Code (56 Ohio Laws, 175), provided as follows:

“Each person shall pay tax for the lands or town lots of which he is seized for life, or in dower, or which he has care of as guardian or executor. He shall also pay tax for the lands or town lots which he has care of as agent or attorney, if he has sufficient funds of the principal in his hands.”

The Legislature, by enactment of the above section, fixed positively the duty of the life tenant to pay the tax on the real estate held by him under the life tenancy.

Section 5671, General Code, provides as follows:

“The lien of the state for taxes levied for all purposes, in each year, shall attach to all real property subject to such taxes on the day preceding the second Monday of April, annually, and continue until such taxes, with any penalties accruing thereon, are paid. All personal property subject to taxation shall be liable to be seized and sold for taxes. The personal property of a deceased person shall be liable, in the hands of an executor or administrator, for any tax due on it from the testator or intestate.

“Taxes charged on any tax duplicate, other than those upon real estate specifically as such, shall be a lien on real property of the person charged therewith from the date of the filing of notice of such lien, as. provided by law.”

Plaintiff’s decedent died on September 4, 1940, and the lien of the state for taxes for the year 1940 attached the April preceding his death.

The amount of the taxes subsequently determined relates back to the date the taxes became a lien. State, ex rel. Donahey, Aud., v. Roose, Aud., 90 Ohio St., 345, 107 N. E., 760.

It is insisted on behalf of plaintiff that the holdings, of the court in the cases of Magnolia Building & Investment Co. v. Sulzman, 57 Ohio App., 431, 14 N. E. (2d), 622, and Hoglen & Houck v. Cohan, 30 Ohio St., 436, support his claim made in the case at bar.

In both of those cases cited, the question presented related to the liability to pay taxes in judicial sales, and the code provision controlling the present case was not construed.

The tax on the real estate in the possession of the plaintiff’s decedent, at the date of his death on September 4, 1940, was a lien on the day preceding the second Monday of April 1940. The liability for the payment of this tax became fixed as of that date, and as between the life tenant and the remainderman it was a debt which should be paid by the life tenant’s estate.

Can this tax be apportioned?

“When the estate for life ends during the year for which an annual tax is assessed, the rule stated in this section requires the owner of such estate for life, or his personal representative, to pay only,that proportion of such tax as the part of the tax year elapsed up to the ending of the estate for life, bears to the whole of such tax year. It is immaterial whether the taxation statute of the state provides for a tax, in terms collected for a named period of time, or provides for a tax collected as of a single date. If the owner of the estate for life has paid the whole of such tax prior to the end of his estate, he, or his personal representative has the power to recover the excess paid from the owner of the interest chargeable therewith. In some states the statute as to taxation makes the tax a personal obligation of the person in possession of the land on the taxing date and a lien on the interest of such person, and on his interest only. Such a statute makes inapplicable the apportionment rule stated in this comment.” 1 Restatement of Property, 414, Section l^g. ....

.... “In some jurisdictions the rule has been established that if a life tenant or beneficiary dies before the expiration of a year for which taxes are levied, the tax is to be apportioned between the life tenant and the remainderman. This view finds strong support in the recent decisions.” 33 American Jurisprudence, 965, Section 439.

“After all, this tax paid by the landowner to the government is rent — really, so much a day — and if there be no statutes to the contrary, it seems to me each person, whether life tenant or remainderman,, should pay his share of this tax for the time of his use and occupancy. Hence, the life tenant or his personal representative will be required to pay up to and including the day of his death; the remainderman for each day thereafter.’-’ In re Sturgis, 8 N. P. (N. S.), 486, 20 O. D., 649.

This court approves the reasoning in the above quotations and would apportion the tax accordingly in the-present case if it were not for the contrary holding in the case of Robinson, Exr., v. Bowler, 18 C. C. (N. S.), 372, 33 C. D., 102, affirmed by the Supreme Court of' Ohio, without opinion, in 88 Ohio St., 614, 106 N. E., 1074.

We reach the conclusion that the judgment of the-Court of Common Pleas was wrong in holding the estate of Flora C. Pigman liable for the taxes for the year 1940.

It is therefore the judgment of this court, first, that, the claim of the defendant is not barred; second, that the -payment of the taxes by the remainderman was not. voluntary; third, that the plaintiff is liable to the defendant for the payment of the taxes for the entire year of 1940.

Judgment accordingly.

Guernsey, P. J., and Jackson, J., concur.


author: Matthews, J.

text:
    Skinner, a Minor, Appellee, v. Brooks, Appellant.
    (No. 6352
    Decided February 21, 1944.)

      Mr. James Conway, for appellee.

      Messrs. Ragland, Dixon & Murphy, for appellant.
   Matthews, J.

In this action the plaintiff recovered a judgment for $350 as damages on account of personal injuries inflicted by an assault and battery by the defendant. The issues of fact were submitted to a jury which returned a verdict for the plaintiff. The court overruled the defendant’s motion for a new trial and entered the judgment on the verdict. It is from that judgment this appeal is taken. The defendant contends that the court erred to his prejudice in its instructions to the jury, and that there was no substantial evidence in support of the verdict.

The defendant Admitted that the plaintiff received some injuries to his mouth, teeth, and lip, in a physical encounter with him, but alleged that such injuries were inflicted by him in performance of his duties as a police officer of the city of Cincinnati in quelling an affray in which the plaintiff and others were engaged, and in arresting the plaintiff for a breach of the peace; that he used no more force than was reasonably necessary for that purpose; and that the -plaintiff’s injuries were caused by his own wilful, malicious and unlawful conduct.

While the reply contained a denial of all the allegations of the answer, the evidence conclusively proved that the defendant was a police officer of the city of Cincinnati, dressed in a regulation policeman’s uniform and engaged in patrolling territory over which he was charged with the duty of preserving the public peace and preventing crime, at the time he came upon the plaintiff engaged in a fight caused, as was later disclosed, by the plaintiff’s aggression. The defendant intervened and endeavored to restore peace and order. There was a lull which ended when one of the other men engaged in the affray refused to shake the plaintiff’s hand. The defendant was close to them, and perhaps between them, when plaintiff made a threatening motion toward either the defendant or the person who had refused to shake his hand. The defendant struck the plaintiff with his stick or club across the face causing the injuries alleged. The defendant testified that his purpose was to strike him across the shoulder, but that the plaintiff made a sudden movement resulting in the blow falling on his face. There was corroborating evidence of his testimony in this respect. 1

At the plaintiff’s request and over the defendant’s objection, the court gave this special charge:

“It is not enough for a defendant, in order to justify an assault and battery, to show that he was acting in self-defense, but he must also show that no more force was used by him than the exigency reasonably demanded. If he (the defendant) was guilty of an unreasonable and disproportionate degree of violence toward the person of another, he is liable for the excess, although he was acting in self-defense. In such cases, the question is ndt merely whether the defendant was the assaulted party, and so had a right to repel force by force; but also as to the degree of the-bearing, and its proportion to the assault of the plaintiff, and you are to decide whether or not the resistance, under the circumstances, was in excess of the-right of self-defense.”

In the general charge, the court said:

“Now, when one assaults a person that person,, whether it is a police officer or an ordinary individual, has the right to repel that assault using, as I said in a special instruction, and which will be with you, no more-force than necessary, and if he uses more force than necessary then he is responsible for the damages inflicted by the more force than was reasonable and proper under the circumstances.”

The court then told the jury that, in addition to the damage, there was but one issue of fact and that was :• Did the defendant unlawfully and maliciously assault, the plaintiff?

The right and duty of the defendant to use force, if necessary, to suppress an affray and make an arrest,, were not mentioned in the instructions.

The entire burden of proof was placed on the plaintiff.

It. is thus seen that the case was submitted as an action for damages on account of an assault and battery, to which a plea of self-defense was entered. The defendant was limited to the use of no more force than was reasonably necessary to resist the plaintiff’s assault. If he had used more, that would have been excessive and would have rendered him liable in damages. At no point in the charge was the defendant’s power and duty to aggressively assert his authority as a peace officer mentioned. According to the charge,. if lie could safely withdraw and leave the disturber of the peace in possession of the field it was his duty to do so. Was such a charge prejudicial to the rights of the defendant? We think so.

• The degree of force that an officer may use to effect an arrest is correctly stated in 3 Ohio Jurisprudence, 171, Section 36, as follows:

“The law not only clothes an officer under duty to make an arrest with power to accomplish his purpose, but it also protects him while in the exercise of his authority. It is an officer’s duty to overcome all resistance, and bring the party to be arrested under physical restraint, and the means he may use are coextensive with the duty, or, as sometimes expressed, commensurate with his purpose, but he must use no more force than is reasonably necessary for the purpose. If an officer uses more force than is necessary to make an arrest and protect himself from injury, he is liable for assault and battery. By the use of excessive force the officer becomes a trespasser, and is no more to be excused than if he had pursued the person for some unlawful purpose.”

In State v. Sells, 30 Ohio Law Abs., 855, the court, quoting from 6 Corpus Juris Secundum, 825, said at pages 357 and 358, that:

“ ‘A peace officer duly empowered is not liable for injuries inflicted by him in the use of reasonably necessary force to preserve the peace and maintain order, or to overcome resistance to his authority. Thus an officer making an arrest is justified in using sufficient force to subdue the prisoner although not acting in self defense.’ ”

In 4 American Jurisprudence, 54, Section 77, we find this statement:

“An officer attempting to make a lawful arrest for a misdemeanor is under no obligation to retreat or retire to avoid the necessity of using extreme measures to prevent receiving great bodily injury. It is his duty to press forward for the accomplishment of his purpose.”

Neither the special charge nor the general charge conformed to these statements of the degree of force permissible to peace officers.

It will be noted that the court placed the burden of proof upon the plaintiff'. Self-defense, which was the subject of the special charge, is an affirmative defense, and the burden of proving it rested upon the defendant. Likewise, any other defense of justification, such as, authority of law in making an arrest, is affirmative, in the proof of which the defendant has the burden. In 4 American Jurisprudence, 194, Section 143, it is said: “Matter in justification of an assault and battery must be pleaded in order to allow the defendant to introduce evidence thereon.” And at 197, Section 148: “* * * if the defendant seeks to justify his acts, the burden is on him to make out such justification.”

We find no other error in the record.

We are of the opinion that the record presents an issue of fact as to whether the'defendant was justified, under the circumstances, in using his mace and whether the manner of using it was within the limits of force reasonabl)7 necessary to restore peace and effect an arrest. The defendant is not, therefore, entitled to final judgment.

For error in the giving by the court of the special charge and the general charge, the judgment is reversed and the cause remanded for a new trial.

Judgment reversed.

Ross, P. J., and Hildebrant, .J., concur.