author: Guernsey, J. Guernsey, J. Middleton, P. J.,

text:
    In the Matter of the Appeal in Joint County Ditch No. 1108-2, Henry-Fulton County, Ohio, Petitioned for by Clay Davis, et al.

      (No. 353
    Decided May 24, 1952.)

      Mr. James Williamson and Messrs. Newcomer, Newcomer & Shafer, for appellants.

      Mr. George A. Meekison, Mr. David Mebkison, Mr. Otto W. Hess and Mr. Marlow Witt, for appellees.
   Guernsey, J.

This cause is submitted to this court on the motion of Clay Davis, John M. Gramling and Edwin Gearig, appellees herein, to dismiss the appeal taken in this action from the judgment and decree of the Court of Common Pleas.

In their motion, the movants rely upon the following stated reasons for dismissing the appeal, to wit:

1. That the time and method for perfecting the appeal is governed by Sections 6477 and 6468, General Code, and not by Section 12223-3, General Code, and related sections.

2. That the Board of County Commissioners of Fulton county does not have legal capacity to appeal, and in the event the appeal is dismissed as to said board of county commissioners, the appeal will not survive as to Carl Mohr for the reason that he has neither given bond nor signed any notice of appeal nor has any notice of appeal been signed in his behalf.

The notice of appeal prescribes that the appeal is on questions of law and is given by the Board of County Commissioners of Fulton County,' Ohio, on behalf of such county and also on behalf of the owners of land in such county who are to be assessed for the construction of said improvement, and by Carl Mohr, for himself and others, and is signed as follows:

“The Board of County Commissioners of Fulton County, Ohio, et al., appellants.

By (s) Davis B. Johnson,

prosecuting attorney for Fulton county, Ohio, and

(s) C. L. Newcomer & Davis B. Johnson, their Attorneys.”

Said C. L. Newcomer appears as counsel of record for Carl Mohr.

From the record it appears that the journal entry of the judgment from which the appeal is taken was made on July 9, 1951; that a motion for new trial was filed on July 11, 1951, which was overruled by journal entry of August 8, 1951; and that the notice of appeal was filed herein on August 13, 1951. Thus a period of 35 days elapsed between the date of the final order from which this appeal is taken and the date of the giving of the notice of appeal, and a period of five days elapsed between the date of the journal entry overruling the motion for a new trial and the date of the giving of the notice of appeal.

The pertinent provisions of Sections 6477 and 6468, General Code, which the appellees contend govern the appeal, are as follows:

Section 6477. “The time for filing bills of exceptions and for perfecting appeals shall begin to run from the time of the entering of any final judgment, order, or decree against any of the appellants upon any of the issues that may be brought to the Court of Common Pleas on appeal * * * ”

Section 6468. “To perfect an appeal as provided in this chapter [G. C. Secs. 6442 to 6508], the owner of land, within twenty-one days from the date of the order appealed from shall file with the auditor an appeal bond * * #. The owner shall also file with such bond a statement of the decision or order appealed from and of the claims of the owner in ordinary and concise language. * * *”

The pertinent statutory provisions which the appellants contend govern the appeal are incorporated in the following sections of the General Code, to wit:

Section 12223-3. “Every final order, judgment or decree of a court * * * may be reviewed as hereinafter provided, unless otherwise provided by law * *

Section 12223-7. “ [Time for perfecting appeal.]

After the journal entry of the final order, judgment or decree, has been approved by the court in writing and filed with the clerk for journalization, or after the entry of other matter for review, the period of time within which the appeal shall be perfected, unless otherwise provided by law, is as follows:

“1. In appeals to the Supreme Court, to Courts of Appeals or from Municipal Courts and from Probate Courts to Courts of Common Pleas, within twenty (20) days.

“Provided, that, when a motion for a new trial is filed by either party within ten days after a journal entry of a final order, judgment or decree has been approved by the court in writing and filed with the clerk for journalization, then the time of perfecting the appeal shall not begin to run until the entry of the order overruling or sustaining the motion for new trial.

A careful reading of Chapters 1 and 2 of Title III of the General Code, of Chapter 1 of which Sections 6477 and 6468 are a part, clearly discloses that the provisions of Section 6468 apply exclusively to appeals to the Common Pleas Court from the final order entered upon the journal of the board of county commissioners, and do not in any way apply to appeals to the Court of Appeals, taken from final orders made by the Common Pleas Court upon appeal from final orders made by the board of county commissioners, and that the provisions of Section 6477, General Code, apply exclusively to appeals to the Court of Appeals from the final orders made by Common Pleas Courts.

Section 6477, above mentioned, is in pari materia with Section 12223-7, General Code, and such sections must, therefore, be read and construed together.

Thus read and construed, it is clear that the provisions of Section 12223-7, General Code, providing for the extension of time for filing notice of appeal in cases where motions for new trials are filed, apply to appeals from the final orders prescribed in Section 6477, General Code.

In the instant ease the notice of appeal was given within five days of the date of the journal entry overruling the motion for a new trial and within the period prescribed by statute. The notice of appeal prescribed an appeal upon questions of law only and no bond was required to be given to perfect the appeal to the Court of Appeals from the Common Pleas Court.

The form of the notice of appeal was such as to constitute Carl Mohr one of the appellants.

As Carl Mohr was fully qualified as an appellant, the appeal would stand irrespective of the legal capacity of the Board of County Commissioners of Pulton County as appellant.

However, the Board of County Commissioners of Pulton County acted in an administrative rather than a judicial capacity in the proceedings had before the joint board of county commissioners and by reason thereof are not precluded from becoming appellants from the judgment of the Common Pleas Court. Furthermore, they are, for the purposes of this appeal, owners of land within said county affected by said proceedings, and fully qualified as appellants in this cause and have properly effected their appeal herein.

For the reasons mentioned, the motion of the appellees to dismiss the appeal will be overruled, at their costs.

Motion overruled.

Middleton, P. J., and Ahl, J., concur.

(Decided May 24, 1952.)

On Appeal.

Guernsey, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Henry County, made in a joint county ditch proceeding appealed to that court from a final order made by the Joint Board of County Commissioners of Henry and Fulton Counties, dismissing the petition of Clay Davis and others for the deepening, widening and straightening of a part of Bad creek and two lateral open ditches located in Fulton and Henry counties.

In its final order, the Common Pleas Court found:

1. That the construction of the improvement is necessary.

2. That it will be conducive to the public welfare.

3. That the cost of the construction of the improvement is less than the benefits to be derived by the construction of the improvement.

4. That the route, termini and mode of construction are the best to accomplish the purposes of the improvement.

5. That the assessments, as amended and filed with the joint board of county commissioners on the 2nd day of May 1949, were levied according to the benefits.

The court, among other things, further adjudged and decreed that the Joint Board of County Commissioners of Henry and Fulton Counties should proceed with the improvement.

This is the final order from which this appeal is taken by the Board of County Commissioners of Fulton County, and Carl Mohr.

The appellants, Board of County Commissioners of Fulton County and Carl Mohr, assign error in the following particulars:

1. No petition and no bond were filed in this ditch proceeding as provided by law.

2. The Court of Common Pleas erred in admitting evidence offered by the petitioners for the ditch, and in refusing to admit evidence offered by those opposed to the granting of the petition for the ditch.

3. The Court of Common Pleas erred in finding that the construction of the improvement is necessary and will be conducive to the public welfare; that the cost of the construction of the proposed improvement is less than the benefit to be derived by the construction of the improvement; that the route, termini and mode of construction are the best to accomplish the purposes of the improvement; in approving the maps, profiles, schedules and reports as prepared by the deputy county engineer of Henry county, Ohio, for the construction of said improvement; in finding that the assessments as amended and filed with the joint board of county commissioners on May 2, 1949, were levied according to the benefits, and in approving and confirming the assessments; in approving and levying the assessments on the owners of land without a hearing on the matter of assessments and without giving any notice to the owners of land of the amount of the proposed assessments and of the time and place of hearing; in ordering the joint board of county commissioners to proceed with said improvement according to the maps, profiles, schedules and reports as prepared by the county engineer of Henry county, Ohio; in ordering the letting of a contract for the construction of said improvement; in ordering the levying and collection of the assessments as reported in the schedules of the engineer; in ordering the auditor of Henry county, Ohio, to place the assessments as stated in the schedule on land in Henry county, Ohio; and in ordering the auditor of Henry county, Ohio, to certify to the auditor of Fulton county, Ohio, a schedule of the assessments levied on the land in Fulton county, Ohio.

4. The assessments as set forth in the schedule of assessments and approved by the court, are not made according to benefits and are contrary to law. Said assessments are attempted to be levied in zones without reference to whether the proposed improvement ydll accelerate the drainage of the land in the zones as designated by the engineer. The proposed improvement, if constructed, will not accelerate the flow of water from any land in Fulton county that lies one mile north of the Henry county line, and will not accelerate the flow of the water at the lower part of the proposed improvement, and will not benefit said land.

5. The Court of Common Pleas erred in overruling the motion for a new trial for each of the reasons stated in said motion.

These assignments of error will be considered in the order mentioned.

1. An inspection of the record discloses that a petition for the ditch improvement in conformity to all statutory requirements was duly filed herein. The record discloses also that the petitioners filed with their petition a bond in proper form in the sum of $600. Under the provisions of Section 6446, G-eneral Code, this bond is sufficient for a ditch improvement eight miles in length. While the creek improvement with the laterals, on actual measurement, exceeded eight miles, the governing statute required only that the bond be in an amount sufficient to cover the mileage “as estimated by the petitioner.” The good faith of the petitioner in estimating the mileage is not questioned, and the bond as given constitutes a substantial compliance with the statutory requirements, so that this first assignment of error is without merit.

2. The second assignment of error is neither specified nor argued in the appellants’ brief and for this reason the court, under its statutory prerogative, will not consider it.

3. The Supreme Court of Ohio, in the case of Blue v. Wentz, 54 Ohio St., 247, 43 N. E., 493, and in the case of Mason v. Commrs. of Fulton County, 80 Ohio St., 151, 88 N. E., 401, 131 Am. St. Rep., 689, 24 L. R. A. (N. S.), 903, laid down the following rules of law applicable to drainage into natural watercourses such as Bad creek, the natural watercourse involved in this proceeding, to wit:

‘ ‘ 1. Where the lands of an owner, by reason of their situation, are provided with sufficient natural drainage, they are not liable for the costs and expense of a ditch necessary for the drainage of other lands, simply for the reason that the surface water of his lands naturally drain therefrom to and upon the lands requiring artificial drainage.

“2. A lower tenement is under a natural servitude to a higher one to receive from it all the surface water, accumulating from falling rains and melting snows, or from natural springs, that naturally flow from it to and upon the lower one. This advantage of the higher tenement is a part of the property of the owner in it, and he is not indebted to the lower tenement therefor.

“3. In making an assessment on lands, benefited by artificial drainage, the extent of their water shed is not the proper rule, but the amount of surface water for which artificial drainage is required to make them cultivable, and the benefits that will accrue to the lands from such drainage. However much water may fall on them or arise from natural springs, if, by reason of their situation, they have adequate natural drainage therefor, they are not liable for the cost of artificial drainage to other lands.” Blue v. Wentz, supra.

The rules of law above mentioned are based upon the fact, in evidence in the Blue case, that the industry of man had not created the servitude (pages 254 and 255, case above cited). In other words, the servitude of the lower tenements to carry waters from the higher lands had been created by nature and had not been changed or added to by the industry of man.

“A landowner may, in the reasonable use of his land, drain the surface water from it into its natural outlet, a watercourse, upon his own land, and thus increase the volume and accelerate the flow of water without incurring liability for damages to owners of lower lands; and his land is not subject to assessment for the cost of a ditch, or an improvement, that will not benefit its drainage but is constructed to prevent overflow from the watercourse or to benefit the drainage of servient lands.” Mason v. Commrs. of Fulton County, supra.

The decision in the last above cited case is expressly predicated upon the decision in the first above cited case and the form of the statute then in effect (Section 4448, Revised Statutes), relating to assessments for ditch improvements. Said statute, then in effect, had been amended in April 1900 by adding thereto, the following:

“The words 'according to the benefits’ used in this-chapter in directing boards of county commissioners to assess lands for ditches and in directing engineers to report assessments for the same shall not be held to authorize any assessments for benefits conferred upon lands by nature nor the right of easement of the owners of superincumbent lands to pass the water therefrom through natural watercourses.”

The statute now in effect relating to assessments for ditch improvements of the character involved in this case is Section 6455, General Code, reading as follows:

Section 6455. “ [Assessments according to benefits.] The surveyor, in making his estimate of the amount to be assessed each tract of land, and the commissioners, in amending, correcting, confirming, and approving the assessments, shall levy the assessments according to benefits; and all land affected by said improvement shall be assessed in proportion as it is specially benefited by the improvement, and not otherwise.”

It will be noted that the statutory provision upon which the decision in the case of Mason v. Commrs. of Fulton County, supra, is partly predicated, is no longer a part of the statute relating to assessments for ditch improvements.

Consequently, the rules of law laid down in the case of Mason v. Commrs. of Fulton County, supra, are effective only to the extent they are not based upon the statutory provisions mentioned.

The evidence in the instant case shows that the uplands assessed for this ditch improvement are cleared of their timber and are under cultivation in such a manner that large quantities of silt are drained from them into the natural watercourse and that such silt is carried down stream toward the mouth thereof and deposited along the lower part thereof so as to interrupt the free and natural flow of water in said natural watercourse and at times, to cause the lands adjacent to and in the vicinity of the lower part thereof to become flooded to such an extent as to interfere with or prevent the growing of crops thereon. The evidence shows further that the sewage from many toilets located on the higher lands along the natural watercourse is drained into the watercourse and thereby carried and deposited on and along the lower part of said stream, constituting a nuisance therein and thereon.

The state of facts in the instant case, therefore, differs from the state of facts in the two cases .above mentioned in that the instant case involves the drainage of silt and sewage from lands having the status of dominant tenements, such lands not being in their natural state by reason of the manner in which they are cultivated and the draining of sewage from said lands not being incident to the natural drainage of said lands, upon lands having the status of servient tenements whereby such silt and sewage is deposited in that part .of the natural watercourse flowing through the servient tenements.

The cases mentioned involve only the acceleration of the flow of waters through the construction of ditches and drains from lands having the status of dominant tenements, said lands being in approximately their natural state and said drainage not including the drainage of sewage, into a natural watercourse flowing through lands having the status of servient tenements.

For this reason, the rules of law laid down in the two cases above mentioned are not applicable to the ditch improvement contemplated in the instant case.

In the instant case the dominant tenement lands will be specially benefited by the improvement through the removal of silt and sewage from the natural watercourse deposited therein from said lands and by restoring said stream to its natural condition, and by the elimination of a condition constituting a hazard to the health of the occupants of the dominant tenement lands as well as to the occupants of the servient tenement lands.

As shown by the record, the construction of the improvement is necessary and will be conducive to the public welfare; the costs thereof will be less than the benefits; the route, termini, and the mode of construction are the best to accomplish the purpose of the improvement; and the assessments are levied according to the benefits.

It is shown also by the record that the Court of Common Pleas did not err in approving the maps, profiles, schedules and reports as prepared by the county engineer of Henry county, or in approving and confirming the assessments; nor did it err in ordering the joint board of county commissioners to proceed with the improvement and to let the contract for its construction, or in ordering the auditor of Henry county to place the assessments, as stated in the schedules, on land in Henry county and to certify to the auditor of Fulton county a schedule of the assessments levied on the land in Fulton county.

Section 6472, General Code, prescribes, in part, as follows:

‘ ‘ The Court of Common Pleas, on appeal, shall hear the matters appealed to, de novo; the proceedings shall be had under the rules of law and procedure for civil cases. * * *”

Section 6467, General Code, reads as follows:

“Section 6467 [Appeal from final order]. Any owner interested may appeal to the Court of Common Pleas from a final order made by the commissioners, as provided in this chapter [G. C. Secs. 6442 to 6508], and may appeal any one or more of the following questions:

“(1) Is the improvement necessary?

“(2) Will the improvement be conducive to the public welfare?

“(3) Is the cost of the improvement greater than the benefits conferred?

“ (4) Is the route, termini, or the mode of construction the best to accomplish the purpose of the improvement?

“ (5) Are the assessments levied according to benefits?

“(6) Is the award for compensation or damages just?

‘ ‘ Such appeal may be taken from any order affecting any part of the improvement, as well as from any order affecting the entire improvement.”

The appellants contend that under these sections the Common Pleas Court is required to conduct its proceedings on appeal in the same manner as the statutes prescribe that the joint board of county commissioners shall conduct their proceedings on the petition for the ditch improvement filed with them.

It will be noted that under the provisions of Section 6472, General Code, the proceedings in the Court of Common Pleas, on appeal “shall be had under the rules of law and procedure for civil cases,” and that Section 6467, General Code, prescribes the questions upon which an appeal may be taken.

Under the sections mentioned, the questions upon which an appeal may be taken are the issues upon which the appeal is tried in the Common Pleas Court. The appeal is tried de novo by the Common Pleas Court when the evidence on the questions mentioned is submitted to and heard by the court in the same manner as in other civil cases.

The provision of Section 6472, General Code, that “the Court of Common Pleas, on appeal, shall hear the matters appealed to, de novo,” simply means that the Common Pleas Court shall hear the evidence, upon the questions upon which the case is appealed in the same manner that courts hear the evidence in civil eases and render its decision on the evidence adduced.

The above sections, neither considered separately nor together, require the court to proceed in the same manner as the joint board of county commissioners is required to proceed on a ditch improvement proceeding.

The procedure had by the Common Pleas Court in the instant case was in full accord with the legal requirements. The Common Pleas Court, therefore, did not err, as contended by appellants “in approving and levying the assessments on the owners of land without a hearing on the matter of assessments and without giving any notice to the owners of land, of the amount, of the proposed assessments and of the time and place of hearing,”

For the reasons mentioned, the third assignment of error is without merit.

4. The assessments, as shown in our discussion of assignment of error No. 3, are according to the benefits. Assessments are not required to be based on the acceleration of the flow of water, but upon the special benefits to the lands assessed. This assignment of error is therefore without merit.

5. This assignment of error is not specified or argued in appellants ’ brief and for this reason the court, in the exercise of its statutory prerogative, will not consider it.

In their oral argument of this appeal, appellants contended that the trial court erred in not fixing the route and termini of the proposed improvement, but such claimed error is not specified in the motion for a new trial filed in the Common Pleas Court or in appellants ’ assignments of error and is not argued in appellants’ brief. Section 12223-21 of the General Code, among other things, prescribes that “errors not argued by brief may be disregarded * * The court in the exercise of its prerogative conferred by said statutory provision will not consider such error. However, an inspection of the record in the case discloses that the Common Pleas Court in its judgment specifically approved the route and termini of the improvement and also specifically approved “the maps, profiles, schedules and reports as prepared by the county engineer of Henry county, Ohio, for the construction of said improvement,” that such maps, profiles, schedules and reports were received in evidence and are exhibits in the record of the cause, and that the route and termini of the proposed improvement are fully set forth therein.

Finding no error in any of the particulars specified and argued in appellants’ brief, the judgment of the Common Pleas Court is affirmed at the costs of appellants, and the cause is remanded for execution.

Judgment affirmed.

Ahl, J., concurs.

Middleton, P. J.,

dissenting. I dissent from the opinion of the majority of this court.

In my opinion, the Common Pleas Court erred in finding that the assessments, as amended and filed with the joint board of county commissioners, were levied according to benefits, and in approving and confirming the assessments.

It is conceded that Bad creek, at the place of origin, is about 800 feet above sea level, and its terminal at the Maumee river is about 639 feet above sea level. There is therefore a fall of about 161 feet, and most of this fall is in Fulton county where the runoff of water is very swift. This land is assessed for the improvement.

The evidence shows that practically all land assessed for this proposed improvement lying north of a line one and one-half miles north of the Henry county line now has sufficient drainage, and that the proposed improvement will not accelerate the flow or cause the water to get away any faster from this land in Fulton county than it now gets away. The drainage of this high land will not be increased by this improvement nor the land benefited in any way by the proposed improvement.

The established law of this state, applied to the facts in this case, forbids the assessment of such upper lands. As these lands are not specially benefited they can not be assessed.

However, the trial court held, and my associate judges, in their opinion, hold that there exist special circumstances in the case at bar which remove it from the application of the well established rule defining benefited lands and the law relating to the assessment of such lands to pay for a drainage improvement.

The theory is advanced that the high lands of Fulton county, which are assessed, will be specially benefited by the removal of silt deposited at the lower end of the improvement, which silt was in part drained into Bad creek from such assessed lands.

It is the reasoning of the majority opinion that the dominant tenement was, at some time in the distant past, a wilderness, andsthat as a result of the subsequent removal of trees and the normal cultivation of fields that the amount of silt drained therefrom into Bad creek was increased, and that this fact destroyed the natural servitude of the lower tenement to receive the water flowing from the higher tenement. It follows from this reasoning that in order to preserve its advantageous position the dominant tenement must forever remain in its natural state; trees must not be removed; fields must not be cultivated; and lands must not be developed or used in any way which would increase the amount of silt carried into a stream passing through the lower tenement. With this reasoning I do not agree.

There is in the record evidence that sewage is discharged into Bad creek by the village of Delta and by homes lying along the upper reaches of the stream and that this creates a nuisance and a health hazard. It is urged that the discharge of %is sewage into Bad creek is not an incident of natural drainage and makes inapplicable the drainage laws as they apply to dominant and servient tenements.

If sewage and other objectionable matter is being discharged into this stream, which is polluting the stream and creating a health hazard, the injured parties have adequate remedies to prevent the continuance of such a condition and to recover damages therefor where injury is shown. Certainly the drainage laws can not be resorted to to remedy such a condition, and property not requiring drainage assessed for the cost thereof under the guise that the lands assessed are specially benefited by the abatement of a health hazard.

The record in this case fails to show any benefit to the upper lands in Fulton county which will result from the proposed improvement or justify levying upon said lands any part of the cost thereof.

For the reasons here set out, I am of the opinion that the judgment of the Common Pleas Court should be reversed.


source: Caselaw Access Project

author:
      Per Curiam.
     Wiseman, J.

license: Public Domain

text:
    The State, ex rel. Hepperla, v. Glander, Tax Commr., et al.

      (No. 4097
    Decided January 6, 1949.)

      Mr. Meyer A. Cook, Messrs. Davis & Young, Mr. Isadore Topper and Mr. Leonard Stern, for relator.

      Mr. Hugh S. Jenkins and Mr. C. William O’Neill, attorneys general, and Mr. J. B,alston Werum, for respondents Tax Commissioner and Board of Tax Appeals.

      Mr. Frank T. Cullitan, prosecuting attorney, and Mr. A. M. Braun, for respondent Zangerle, auditor.

      Mr. Lee C. Howley and Mr. Joseph H. Crowley, directors of law, and Mr. Bobert M. Morgan, for respondent city of Cleveland.
   Per Curiam.

This matter is submitted on motion of respondent John A. Zangerle, auditor of Cuyahoga county, to quash service of summons for the reason that respondent Zangerle is a resident and officer of Cuyahoga county, Ohio, and that this action is not properly brought against him in Franklin county.

Two grounds are assigned to support the motion, namely, that the action against the moving respondent must be brought against him in the county in which he resides and not in Franklin county, by reason of Section 11271, General Code; and, that the petition does not aver and the law does not require such joint duties and obligations on the part of the respondents in listing, levying and assessing taxes on the property described as will permit their joinder as parties respondent.

The respondent city of Cleveland has, by counsel, entered its appearance, so that the sole question raised by the motion relates to the validity of the joinder of respondent Zangerie, as auditor, with the other respondents.

We are of opinion that the motion must be sustained on both grounds asserted. The averments of the petition constitute a charge that the respondent auditor has failed and neglected to perform his official duties in levying and assessing taxes on real estate owned by respondent city and located in the county of Cuyahoga. This subject matter makes applicable the provision of Section 11271, General Code, which reads:

“Actions for the following causes must be brought in the county where the cause of action or part thereof arose:

i i # # *

“ (2) Against a public officer, for an act done by him in virtue or under color of his office, or for neglect of his official duty.”

If the relator is entitled to the relief prayed for in the second amended petition, it may be granted by a several order on the respondent Zangerie, as auditor of Cuyahoga county, and on the other respondents, either severally or jointly.

The official obligation of respondent Zangerie can be related only to real estate owned by the respondent city of Cleveland, which is not included in that real estate which, though ascertained and assessed by the respondent Tax Commission under Section 5423, General Code, is not used by the city of Cleveland in the operation of a public utility or as incidental to its operation. Section 5548, General Code. The auditor’s. official duty is therefore specific and does not require the joint action of any of the other respondents. Likewise, the ascertainment and assessment of the other assets of the city of Cleveland set out in the amended petition, if taxable, are incumbent upon the respondents other than Zangerle, auditor. Sections 5423,1464-2, 1464-3, 5376, 5377, 5378 and 5570-1, General Code; State, ex rel. Methodist Booh Concern, v. Guchenberger, Auditor, 133 Ohio St., 27, 10 N. E. (2d), 1001.

The motion is sustained.

Motion sustained.

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

(Decided October 24, 1952.)

In Mandamus.

Wiseman, J.

In 1946, relator, Carlton H. Hepperla, instituted in this court his action for a writ of mandamus. After several amendments, relator filed his second amended petition in 1948, alleging that he is a citizen and a resident and taxpayer of the state of Ohio. Those named as defendants were C. Emory Glander, the then Tax Commissioner of Ohio; the city of Cleveland; the members of the Board of Tax Appeals; and the auditor of Cuyahoga county.

In his second amended petition, relator prayed that a writ of mandamus be issued commanding the respondents to assess and levy taxes on all the real property described in the first cause of action, to wit, the Highland Park Golf Course, the Seneca Golf Course, the Cleveland Municipal Stadium, the Cleveland Municipal Airport, the Public Auditorium, the Public Markets, the Cleveland Municipal Water Works, and the Cleveland Municipal Light Plant; and to assess and levy taxes on all the personal property owned and operated by the city of Cleveland and used in conjunction with the operation and functions of the above-named businesses.

In 1949, a motion to quash the service of summons on the auditor of Cuyahoga county was sustained on the ground that in such action the auditor of Cuyahoga county could not be required to answer 'in an action instituted in Franklin county, and that the petition did not allege facts showing a failure to perform a duty resting on the auditor and the other respondents jointly. The remaining respondents filed answers, and a reply was filed by relator. The facts have been stipulated.

Since the institution of this action, the auditor of Cuyahoga county has placed on the 1948 tax duplicate certain property owned by the city of Cleveland, including the Cleveland Municipal Stadium and parking areas. A complaint was filed with the Board of Tax Appeals, to test the taxability of this property. The board held certain property to be exempt, but restored to the tax duplicate the Cleveland Municipal Stadium, the ground upon which it stands, and certain lands used for parking purposes. Exemption of those parcels was denied on the ground that they were not ‘ ‘ public property used exclusively for any public purpose.” An appeal was taken to the Supreme Court where the decision of the Board of Tax Appeals was affirmed. City of Cleveland v. Board of Tax Appeals (1950), 153 Ohio St., 97, 91 N. E. (2d), 480. Thus, the question relative to the Cleveland Municipal Stadium has been decided and we consider that question withdrawn from this case.

The basic problem presented is whether the property involved as used in the operations named is properly exempt from taxation under Section 2, Article XII of the Ohio Constitution, and the statutes enacted thereunder. The question presented here is similar to the question presented to the Supreme Court in City of Cleveland v. Board of Tax Appeals, supra. However, in that case the statutory procedural steps were taken to determine whether the Cleveland Municipal Stadium and other property owned by the city of Cleveland should be placed on the tax duplicate or whether such property was exempt. In the instant case, these statutory procedural steps have not been taken. This is an action in- mandamus against the Tax Commissioner, the Board of Tax Appeals, and the city of Cleveland, in which relator prays that a writ issue against respondents Tax Commissioner and Board of Tax Appeals requiring them to assess and levy taxes on all real property involved, and against the city of Cleveland requiring it to list and return, for purpose of taxation, all the personal property owned and used by the city of Cleveland in the conduct of the operations named.

Immediately we are confronted with a jurisdictional question. The Tax Commissioner and the Board of Tax Appeals contend that the court is without jurisdiction because (a) the relator has an adequate remedy at law, and (b) the facts in this case do not disclose a clear duty enjoined by law, the performance of which is sought in this action. The Attorney General presents the discussion on this question under two headings, first, in regard to real property, and, second, in regard to personal property.

The statute expressly provides that mandamus will not lie except to command the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station. Section 12283, General Code.

By Section 1464, General Code, all powers and duties formerly performed by the Tax Commission are imposed on the Tax Commissioner and Board of Tax Appeals, and are assigned to them by the act creating the Department of Taxation. See Zangerle, Auditor, v. Evatt, Tax Commr., 139 Ohio St., 563, 571, 41 N. E. (2d), 369. Under Section 5579, General Code, as amended effective October 25, 1949 (123 Ohio Laws, 779), all powers and duties with respect to real property are imposed on the Board of Tax Appeals. Sections 1464-1 and 1464-2, General Code, enumerate the powers and duties of the Board of Tax Appeals. Under Section 1464-3, General Code, all other powers and duties, other than those mentioned in Sections 1464-1 and 1464-2, General Code, are assigned to the Tax Commissioner. The Tax Commissioner and the Board of Tax Appeals are assigned separate duties neither one of which is concerned with the duties or responsibilities of the other, with the exception that the Board of Tax Appeals is given power to review the orders of the Tax Commissioner. Subdivision 5 of Section 1464-1 and Section 1464-4, General Code; Zangerle, Auditor, v. Evatt, Tax Commr., supra, page 571. The duties of the county auditor in listing property, both real and personal, for taxation, are set forth in Sections 2583 and 2587-1, General Code. The county auditor acts under the direction of the Board of Tax Appeals with respect to real property and under the Tax Commissioner with respect to personal property in the performance of certain duties. The Tax Commissioner has no duties or responsibilities with respect to real property, and particularly with, respect to the exemption of real property, the question involved in this case.

With respect to the authority of the Board of Tax Appeals, the respondents contend that relator has an adequate remedy at law. Under Section 5616, General Code, any person who is authorized to file complaint before the County Board of Revision may complain to the Tax Commission, the receipt of which complaint and hearing thereon is now a function of the Board of Tax Appeals. The complaint is heard and the finding is certified to the county auditor. A complaint may be filed by any taxpayer as to the valuation of his own or another’s real property. Section 5609, General Code. Under this procedure the authority, of the Board of Tax Appeals is exclusive. State, ex rel. Toledo Trust Co., v. Fox et al., County Bd. of Revision, 39 Ohio App., 465, 177 N. E., 652; Section 5616, General Code. Where there is an adequate remedy at law, mandamus will not lie. Section 12287, General Code. See State, ex rel. Hile, a Taxpayer, v. Zangerle, Auditor, 132 Ohio St., 523, 9 N. E. (2d), 292; State, ex rel. Methodist Book Concern, v. Guckenberger, Auditor, 133 Ohio St., 373, 14 N. E. (2d), 9.

Mandamus does not lie against the Tax Commissioner with respect to real property for the reason that he has no legal responsibility in regard thereto, and mandamus does not lie against the Board of Tax Appeals for the reason that relator has an adequate remedy at law.

With respect to personal property, the Board of Tax Appeals has no responsibility whatsoever, except to review the orders of the Tax Commissioner. Section 5611, General Code. There is no duty enjoined by law upon the Board of Tax Appeals with respect to personal property under the facts in this case and, therefore, mandamus does not lie against the board.

There are duties resting on the Tax Commissioner with respect to personal property, but it is contended by the respondents that the relator has an adequate remedy at law. Under Section 5616, General Code, complaint could be filed with the Tax Commission, this function now being performed by the Tax Commissioner, with respect to exemption of personal property. However, under similar facts, the Supreme Court in State, ex rel. Hile, a Taxpayer, v. Zangerle, Auditor, supra, held that the taxpayer had an adequate remedy at law under Section 5616, General Code, and related sections. This relator could have filed a complaint with the Tax Commissioner with respect to the personal property. The decision of the Tax Commissioner could be reviewed by the Board of Tax Appeals. Section 5611, General Code. From the decision of the Board of Tax Appeals an appeal could be taken to the Supreme Court. This, the relator did not do. The relator had an adequate remedy at law and mandamus does not lie against the Tax Commissioner with respect to the personal property involved.

In our opinion, in this class of cases, the failure of relator to make demand on the respondents would not deprive him of his right to maintain an action. “Where the duty sought to be enforced is one owing to the public generally,” demand is not a necessary prerequisite to the institution of a mandamus action. 25 Ohio Jurisprudence, 1001, 1002, Section 27. In this class of cases the law itself stands in lieu of such demand. 58 A. L. R., 123.

The action will be dismissed as against the Tax Commissioner and the Board of Tax Appeals.

The action against the city of Cleveland involves only personal property. No objection has been raised by the city of Cleveland to being sued in Franklin county rather than in Cuyahoga county. To the second amended petition of relator, the city of Cleveland has filed an answer.

In the second amended petition, relator alleged that ’ the city of Cleveland “owns personal property in the form of machinery, equipment, transmission facilities and other personal property used in the operation of the following proprietary functions: The Cleveland Municipal Airport, The Highland Park Golf Course, The Seneca Golf Course, The Public Markets, The Municipal Water Works, The Municipal Light Plant, The Public Auditorium, and The Municipal Stadium; that the said city of Cleveland has refused and does refuse, through its officers and officials, to list and return to the Tax Commissioner of the State of Ohio, for purpose of taxation, all the personal property owned or operated by the said city of Cleveland and used in the operation of the above mentioned proprietary functions. ”

In its answer, the city of Cleveland alleges that with respect to the real property, all such real property, except part of the airport lands, had been listed as exempt by the county auditor and reported as exempt to the state taxing authorities; that at no time has the city made any return, nor has any taxing official requested a return by it of any personal property of the city used in the operation of the aforesaid properties.

Counsel have filed voluminous briefs in which they have discussed the issues presented, including the question as to whether the operations of the city of Cleveland herein involved fall within the category of governmental or proprietary functions of the city, and also the question as to whether or not such operations involve public property used exclusively for public purposes. We deem it necessary to refer to only a few of the numerous authorities cited by counsel in their briefs, which bear upon the questions presented.

The pertinent part of Section 2, Article XII of the Ohio Constitution, provides:

“Land and improvements thereon shall be taxed by uniform rule according to value * * * and without limiting the general power, subject to the provisions of Article I of this Constitution, to determine the subjects and methods of taxation or exemptions therefrom, general laws may be passed to exempt burying grounds, public school houses, houses used exclusively for public worship, institutions used exclusively for charitable purposes, and public property used exclusively for any public purpose * *' (Emphasis ours.)

At the time this action was instituted Section 5351, General Code (120 Ohio Laws, 407), in part provided:

“Real or personal property belonging exclusively to the state or United States, and public property used for a public purpose, shall be exempt from taxation (Emphasis ours.)

An amendment to this section became effective September 7, 1951 (124 Ohio Laws, 379), and it now provides:

“Real or personal property belonging to the state or United States used exclusively for a public purpose and public property used exclusively for a public purpose, shall be exempt from taxation(Emphasis ours.)

At the time this action was instituted, Section 5356, General Code (108 Ohio Laws, pt. 2, 1285 [an amendment effective October 6, 1949, 123 Ohio Laws, 455, is not pertinent]), provided:

“Market houses, public squares, or other public grounds of a city, village or township, houses or halls used exclusively for public purposes or erected by taxation for such purposes, notwithstanding that parts thereof may be lawfully leased * * * shall be exempt from taxation.”

Section 5357, General Code, provides:

“Works, machinery, pipe-lines and fixtures belonging to a city or village and used exclusively for conveying water to it, or for heating or lighting it, shall be exempt from taxation.”

It has been held that the provisions of these sections can be no broader than the constitutional provisions under which they were enacted. Hence, Section 5351, General Code, as it existed at the time this suit was filed must be interpreted to exempt public property only when it is used exclusively for a public purpose. City of Cleveland v. Board of Tax Appeals, supra; Zangerle, Auditor, v. City of Cleveland, 145 Ohio St., 347, 61 N. E. (2d), 720; City of Toledo v. Jenkins et al., Board of Tax Appeals, 143 Ohio St., 141, 54 N. E. (2d), 656; Columbus Metropolitan Housing Authority v. Thatcher, Auditor, 140 Ohio St., 38, 42 N. E. (2d), 437.

In Toledo v. Jenkins, supra, on page 151, the court said:

“Section 5351, General Code (110 Ohio Laws, 78), provided, inter alia, that ‘public property used for a public purpose shall be exempt from taxation. ’

“Section 5351 controls but its language must be read in the light of the language of the Constitution. The test, then, is whether the realty was public property used during the year involved exclusively for a public purpose.

“Underlying that test are three essential prerequisites. (1) The realty must be public property; (2) the use must be for a public purpose; and (3) the use must be exclusively for that purpose. ’ ’

In the application of this test, the court in that case exempted from taxation the Toledo Airport. The fourth, fifth and sixth paragraphs of the syllabus are as follows:

“4. In general the real property of a municipal corporation, constituting part of its wholly owned and operated public airport, is public property within the meaning of the Constitution and statute.

“5. All the real estate necessary and incidental to the operation of such an airport and used therein is devoted to a public use.

“6. The fact that revenue is incidentally derived from public property does not in and of itself alter the public character of the use.” (Emphasis ours.)

In Zangerle, Auditor, v. City of Cleveland, supra, the court held that a municipal corporation is engaged in a proprietary function in owning and operating a transportation system and that the city of Cleveland was not entitled to hold such property exempt from taxation. The fourth, fifth and seventh paragraphs of the syllabus are as follows:

“4. The General Assembly has constitutional authority to exempt from taxation municipally owned real property used in the performance of a public or governmental function; but lacks constitutional authority to exempt from taxation municipally owned real property used in carrying on a private or proprietary function primarily for profit.

“5. A municipal corporation, by entering a field of private competitive business for profit, divests itself of its sovereignty pro tanto, takes on the character of a private corporation and thereby forfeits its immunity from taxation.

“7. Personal property used in carrying on a municipally owned private competitive business for profit is not exempt from taxation under the provisions of Sections 5351 or 5356, General Code.” (Emphasis ours.)

In City of Cleveland v. Board of Tax Appeals, supra, the court held that the Cleveland Municipal Stadium was taxable. The third, fourth, fifth and sixth paragraphs of the syllabus are as follows:

“3. A use of public property for any public purpose, to warrant exemption from taxation, must be an exclusive use by the public, open to all the people on a basis of equality to such extent as the capacity of the property admits, or an exclusive use by some public or quasi-public agency on behalf of the public.

“4. The phrase, ‘public property used exclusively for any public purpose,’ does not mean used merely for a public benefit, and a showing that some public purpose may be served by the use of the premises is not sufficient to constitute an exclusive public use.

“5. The provisions of Section 2, Article XII of the state Constitution, do not authorize the General Assembly to exempt from taxation municipally owned real property used in carrying on a private or proprietary function in competition with others engaged privately in similar enterprises.

“6. Municipally owned property is not ‘used exclusively for any public purpose, ’ within the limitation of Section 2 of Article XII of the state Constitution, where the municipality constructs a stadium designed to accommodate large crowds at athletic and other exhibitions and acquires in connection therewith large areas of vacant land which it devotes to automobile parking, and rents such publicly oioned facilities to private persons for their use and profit, receiving therefor substantial sums of money and a stipulated share of the profits from sales by concessionaires.” (Emphasis ours.)

In the latter case, the fact that a profit was made was an important factor. The test to be applied in determining whether a given operation is exclusively for a public purpose is not too well established. In-every ease we must consider the factual situation. In the instant case, we find the profit motive absent; neither are any of the other factors present on which the court usually relies in holding public property taxable. In the case at bar, all the operations are for the public benefit and conducted in furtherance of a public purpose. On the basis of the facts presented and applying the tests which have been established and the principles of law announced in the cases above cited, we find that the property involved in this suit was used exclusively for a public purpose and, therefore, was exempt from taxation.

On the issue joined between the relator and the city of Cleveland we find for the respondent.

Judgment accordingly.

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


author: Matthews, J.

text:
    Fessel, Admr., Appellee, v. Schwartz, a Minor, Appellant.
    (No. 7629
    Decided November 24, 1952.)

      Mr. Wm. H. Reddens and Messrs. Rendigs, Fry S Kiely; for appellee.

      Messrs. Pogue, Ilelmhols, Culbertson S French, for appellant.
   Matthews, J.

This is an appeal on questions of law in an action for wrongfully causing the death of Shirley Fessel, who was 15 years of age at the time of her death.

There was a' trial to a jury during which, at the close of the plaintiff’s evidence and at the close of all the evidence, the defendant moved for an instructed verdict and for judgment, both of which motions were overruled. The issues of fact were submitted to the jury, resulting in a verdict for the defendant.

The plaintiff moved for a new trial, which was granted.

The notice of appeal designates the orders overruling the motions for an instructed verdict and, also, the motion granting a new trial, as the orders appealed from.

To give to the order granting a new trial the quality of finality essential as a predicate for an appeal, the conclusion must be reached by the reviewing court that the trial court abused its discretion. In this case the court specified four grounds for granting the new trial, one of which was misconduct of counsel in final argument to the jury. The bill of exceptions does not set forth that argument. On that state of the record it is impossible for this court to pass upon the claim of abuse of discretion. As the jurisdiction of the court is dependent upon a finding of an abuse of discretion in granting the motion for a new trial, we abstain from any ruling upon the attempted appeal from the order granting a new trial because of lack of jurisdiction.

The jurisdiction of the court is properly invoked to review the orders overruling the defendant’s motion? for an instructed verdict and for judgment. We shall address ourselves to that branch of the appeal only.

The sole defendant in this action at the time of its inception was James Schwartz, a minor 17 years of age. After the trial, his father, James Schwartz, was made a party defendant, and an amended petition was filed incorporating allegations that would impose liability upon him under Section 6296-10, General Code, as the signer of James Schwartz’ application for an operator’s license.

The events leading up to the tragedy, as portrayed by the evidence, started at a meeting of young people on the night of June 4,1950, at the home of Joan Madlener, on Hegry Circle, a street that runs westwardly from Ferguson road, both being public streets in the city of Cincinnati. The meeting was at night and was attended by from 10 to 15 boys and girls, all about the same age as James Schwartz. James Schwartz had come to the meeting in his father’s automobile. Another boy by the name of Blume came to the meeting-in another automobile. The meeting was of a social nature and there was no misconduct or disorder of any description by any one. About 11 p. m. the young-people concluded to go to Delhi, a neighboring village, for lunch and soft drinks. They used the two automobiles to make the journey.

For some reason eight passengers, including- Shirley Fessel, entered the Schwartz automobile, and five or six entered the Blume automobile. Schwartz and Blume operated their respective automobiles and proceeded to Delhi without any misadventure. They obtained their lunch and soft drinks and at about 11:30 p. m. left the restaurant. Those who had come in the Schwartz automobile entered it and those who had come in the Blume automobile entered it, the intent being to take the girls to their respective homes. The automobiles left the parking place at the restaurant at the same time, the Blume automobile being in the lead. It is not clear how far Delhi is from the Madlener home, but on the way back to the neighborhood where the girls lived, they proceeded along Greenwall street, Pedretti street, Eighth street, Overlook avenue and Ferguson road to Queen City avenue, where the accident occurred out of which this action arose. They are all public streets, and in traversing them the automobiles crossed intersecting streets, controlled by stop signs or traffic lights. Schwartz stopped his automobile at Greenwall and Pedretti streets. There was no stop sign at Pedretti and Eighth streets. He stopped at Overlook avenue and Eighth street and at Overlook and Glenway avenues before they reached Ferguson road and Glenway avenue, where there was a traffic light at which traffic was permitted to turn to the right without stopping, and that was the way the Schwartz automobile proceeded. Whether it stopped before turning does not appear. The evidence shows that the automobiles had proceeded to this- point fairly close together, and that perhaps they changed position once or twice before reaching Ferguson road, the Blume automobile being in the lead when they entered Ferguson road. Ferguson road is a straight four-lane highway, and while the two automobiles were proceeding along it, the Schwartz automobile passed the Blume car and in doing so reached a speed variously described by the occupants of the automobile as “too fast,” “so fast that we became afraid,” “40 or 45 miles, ” “ between 45 and 50, ’ ’ miles per hour. Several asked Schwartz to “slow down or let them out.” Whether he slowed down is in dispute, but at least one witness said he did not. It is uncontradicted that when they reached the intersection of Ferguson road and Queen City avenue, Schwartz brought his automobile to a complete stop before proceeding into Queen City avenue. They turned left or westwardly on Queen City avenue and proceeded some distance, undetermined by the evidence, to the intersection with Boudinot avenue, where there was a stop sign. The Blume automobile was just ahead of the Schwartz automobile in reaching Boudinot avenue. Blume reduced the speed of his automobile, shifted into second or low gear, and proceeded across the intersection without coming to a complete stop. Schwartz, following Blume, did the same.

They proceeded westwardly for some distance from Boudinot avenue on Queen City in the same relative position, both being on the right side of Queen City avenue. Queen City avenue is a four-lane street at that point and five or sis hundred feet west of Boudinot avenue curves to the north. The record contains no data from which to determine the extent of this curve. While Schwartz knew of the curve, there is no evidence that he knew the extent of the curve. Just before reaching this curve, Schwartz traveled from the right lane behind Blume’s automobile to the left and astride the middle line of the street and was entering the curve when the automobile skidded, on sand or gravel, toward the south side of the street. Schwartz lost control of the car and it continued toward the sloping curb, traveled along it for several feet, then along the space between the curb and sidewalk, struck a small tree standing in that space and proceeded about 15 feet, where the left side of the automobile struck and broke a wooden pole. The automobile continued on for about 50 feet, turned over, and finally was on its side when it stopped. After it hit the pole, the automobile turned over once or twice. It was badly damaged.

The rate of speed as they entered the curve was estimated as low as 30 miles per hour and as high as 50 miles per hour. Some occupants of the Blume automobile saw the accident as it was happening. Blume immediately applied his brakes and made a U-turn without stopping and immediately returned to the scene.

There was no other traffic on Queen City avenue in that section at the time.

There is no evidence of the visible distance ahead on Queen City avenue at that point. There is no basis for any claim that the assured-clear-distance statute was violated. There is no evidence that Schwartz knew the extent of the curve or bend.

While a part of Schwartz’ automobile was on the left side of the street when he lost control, we know of no statute that was violated thereby. Indeed, Section 6307-25, General Code, specifically excepts vehicles passing other vehicles going in the same direction from the requirement that automobiles should be driven on the right side of the street.

Much evidence was introduced as to the operation of these automobiles from the time they started from the restaurant to the time of the accident. This evidence shows that Schwartz observed all traffic signs at intersections. He stopped several times in obedience to signals. He did travel at a high speed on Ferguson road, but came to a complete stop thereafter at Ferguson road and Queen City avenue. That fact, it seems to us, breaks any possible chain of causation between Schwartz’ conduct prior to that time and the accident that occurred thereafter on Queen City avenue.

We are also of the opinion that the fact Schwartz slowed down and shifted gears instead of coming to a complete stop at Boudinot avenue cannot be regarded as a cause of this accident. Had a collision occurred in that intersection, his failure to come to a complete stop would or might have been a cause thereof. However, it could have no possible relation to an accident occurring 600 feet beyond, resulting from an automobile leaving the traveled portion of the street and colliding with objects between the curb and sidewalk.

This accident was caused by the curve, the condition of the surface of the street, and the speed of the automobile. The latter factor — the speed — was contributed by Schwartz, and without doubt a trier of the facts would be justified in finding that his negligence in proceeding at that speed was the cause without which he would not have lost control of his automobile. That, however, is not sufficient to impose liability upon him in favor of a guest in his automobile.

Section 6308-6, General Code, limits liability of the person responsible for the operation of an automobile to a guest, resulting from its operation, to injuries or death caused by his “wilful or wanton misconduct.”

We fail to find that the decedent’s death was “caused'” by any wilful or wanton misconduct on the part of the defendant James Schwartz.

Section 6308-6, General Code, has been applied many times and to diverse circumstances. The abstract rule announced by the Supreme Court in Universal Concrete Pipe Co. v. Bassett, 130 Ohio St., 567, 200 N. E., 843, 119 A. L. R., 646, has been reaffirmed and applied many times. The second paragraph of the syllabus to that case is as follows:

“Wanton misconduct is such conduct as manifests a disposition to perversity, and it must be under such surrounding circumstances and existing conditions that the party doing the act or failing to act must be conscious, from his knowledge of such surrounding circumstances and existing conditions, that his conduct will in all common probability result in injury. # * * J 5

In the first paragraph of the syllabus, the court points out that mere negligence cannot be converted into wanton misconduct by the use of the word, “wanton,” in connection with the specifications of negligence.

Appellee’s counsel rely on several cases, but we think they are clearly distinguishable.

In Jenkins v. Sharp, 140 Ohio St., 80, 42 N. E. (2d), 755, the defendant on the evidence could have been found to have deliberately disregarded several traffic warnings to stop, to have crossed a much traveled thoroughfare, notwithstanding his view to the right was obstructed, and to have collided in the intersection with an automobile coming from his right.

If this accident had occurred in the intersection of Queen City avenue and Boudinot avenue, Jenkins v. Sharp, supra, would have some application. It can hardly be said to apply to the facts of this case.

Another case relied on is that of Kennard v. Palmer, 143 Ohio St., 1, 53 N. E. (2d), 908. We quote the first paragraph of the syllabus to show the perversity of the defendant’s conduct and that it continued up to and caused the collision:

“Under a petition charging the defendant with ‘ wanton and wilful misconduct ’ in the operation of his automobile, the question whether he was guilty of such misconduct was properly left to the jury where the evidence offered by plaintiff tended to prove that, at and some time before a collision, the defendant was driving his automobile equipped with defective tires at a speed of between 60 and 70 miles per hour over a road having a number of curves and being rough in places; that before the collision he had driven back and forth across the road, to the discomfort of his passengers and against their protests; that he passed one or more vehicles in a reckless manner; and that in descending a hill he increased his speed, struck another vehicle and collided with a post at the edge of the roadway, causing personal injuries to the plaintiff, a guest-passenger.”

Next, Tighe, a Minor, v. Diamond, 149 Ohio St., 520, 80 N. E. (2d), 122, is cited as supporting appellee’s position. In that ease the operator of the automobile was a minor, as in this case, and his father, who had signed his application for a driver’s license, as in this case, was joined as a defendant. Notwithstanding the difference in wording of the statute (Section 6296-10, General Code) imposing liability on the father and the language of the guest statute imposing liability upon the minor operator, the case was tried and the Supreme Court treated it as a case governed by the guest statute as to both defendants. The minor defendant invited two girls to take a ride with him in his father’s automobile. There was a road that had been crossed by an interurban electric railroad line. When the railroad was abandoned it left a hump four or five feet above the general level of the highway where the railroad had crossed. The minor defendant, having crossed over this hump a few days before and admittedly knowing of its existence, and for the purpose of giving the girls a thrill, deliberately drove his automobile over this hump at a speed of 60 miles per hour, thereby throwing the automobile upward and hurling the girls against the top, rendering them unconscious and wrecking the automobile. We think a statement of the facts sufficiently shows the inapplicability of that case.

Appellee’s counsel also cite Ulrich v. Massie, 89 Ohio App., 362, 102 N. E. (2d), 274, as “in the same vein” as Jenkins v. Sharp, supra. It is true that the same general principles are announced in those cases, but the similarity ends there. The facts in Ulrich v. Massie are set forth in great detail showing excessive speed and failure to keep a lookout, but not showing perversity, the court saying at page 369, “the perversity of conduct of the operator of the car ceased prior to the collision and was not a proximate cause thereof. ’ ’ As a result of its conclusion that the evidence failed to show any wilful or wanton misconduct, the court reversed the judgment for the plaintiff and entered final judgment for the defendant. A reading of that case will disclose its inapplicability to the case at bar and certainly that it furnishes no support for the plaintiff.

Likewise, the facts in Helleren, Admx., v. Dixon, 152 Ohio St., 40, 86 N. E. (2d), 777, are so dissimilar as to destroy the case as a guide to a correct conclusion in the case at bar. However, it should be said that in the presence of aggravated negligence and deliberate taking ‘ ‘ a chance ’ ’ that nothing would happen, the Supreme Court reversed the judgment for the plaintiff and entered final judgment for the defendant.

We are of the opinion that the trial court erred in overruling the defendant’s motions for an instructed verdict and for judgment.

For these reasons, the orders of the court in that respect are reversed, and final judgment is entered for defendants.

Judgment reversed.

Hildebrant, P. J., concurs.


author: Guernsey, J.

text:
    Gibson et al., Appellees, v. The John Hancock Mutual Life Ins. Co., Appellant.
    (No. 416
    Decided November 8, 1952.)

      Messrs. Kaylor & Kaylor, for appellees.

      Messrs. Vorys, Safer, Seymour & Pease, for appellant.
   Guernsey, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Hardin County, Ohio, in an action wherein the appellees, Margaret Gibson and Charles Gibson, were plaintiffs, and the appellant, The John Hancock Mutual Life Insurance Company, was defendant.

The plaintiffs, claiming as beneficiaries of an alleged contract of life insurance entered into between one John H. Paul, now deceased, and the defendant, The John Hancock Mutual Life Insurance Company, whereby it insured the life of said John H. Paul in the sum of $4,000 and agreed to pay double that amount, that is, double indemnity benefits, upon the maturity of the policy in case of accidental death of the insured, brought this action to recover the sum of $4,000 as indemnity for the death of said John H. Paul during the time the alleged contract of insurance was in effect and to recover a further sum of $4,000 as the additional indemnity provided in said contract in the event that said John H. Paul died as the result of an accident, the plaintiffs alleging further that the death of said John H. Paul did result from such an accident.

The cause was tried to a court and jury. During the course of the trial, the court found and determined as a matter of law that a contract of insurance was entered into between the said John H. Paul and the defendant insurance company, as claimed by plaintiffs, and that said contract of insurance was in full force and effect at the time of the death of said John H. Paul, which occurred on December 13, 1946, and that under such contract, the plaintiffs were entitled to recover the indemnity of $4,000, therein prescribed for the death of said John H. Paul, and in the event said death resulted from an accident the further sum of $4,000, as therein prescribed. The court having made this finding and determination, submitted to the jury the sole question as to whether the death of said John H. Paul was accidental. The jury returned a verdict that said death was accidental and upon said finding and determination of the court and said verdict of the jury judgment was rendered by the court in favor of the plaintiffs and against the defendant for the amount of $8,000, with interest at 6 per cent per annum from December 13, 1946. That is the judgment from which this appeal is taken.

The defendant, appellant, assigns error in the following particulars:

1. The trial court erred in overruling the motion of the defendant for a directed verdict in favor of the defendant at the close of all the evidence.

2. The trial court erred in finding as a matter of law that John H. Paul was insured by the defendant and in rendering a judgment in favor of plaintiffs upon the finding by the jury of the sole fact that the death of John H. Paul was accidental.

3. The trial court erred in overruling the motion of the defendant for a judgment in favor of the defendant notwithstanding the verdict.

As these assignments involve essentially the same question they will be considered together.

Neither in the assignments of error nor in defendant’s brief is there any contention that the verdict of the jury that the death of John H. Paul was accidental is not warranted by the pleadings and the evidence.

For a complete understanding of the questions raised by these assignments of error, it is necessary to consider the allegations in the pleadings of the parties and the evidence introduced upon the trial of said cause, hereinafter mentioned, other than the allegations and the evidence relating to the accidental death of said Paul.

Plaintiffs’ amended petition and the answer thereto and the reply to such answer, upon which the cause was submitted, omitting formal parts and omitting the second cause of action which relates solely to plaintiffs’ claim for double indemnity because of the accidental death of said John H. Paul, are in the words and figures following, to ydt:

“That defendant is a corporation organized and existing by virtue of the laws of the state of Massachusetts for the purpose of selling‘life insurance; that it was transacting such business in the state of Ohio on the 20th day of November, 1946, and on the 10th and 11th days of December, 1946, under a license issued by the state of Ohio.

“That on the 20th day of November, 1946, one John H. Paul, now deceased, made an application for a policy of life insurance on his life with the agent of defendant at Kenton, Ohio, for the amount of $4,000 preferred risk-whole life on a form provided by defendant and said application consisted of two parts, namely, part ‘A’ and part ‘B,’ and he, decedent, answered all questions contained on part ‘A’ asked of him by defendant’s agent in accordance with the rules of such company and immediately thereafter on the 21st day of November, 1946, he was given a physical examination by a physician employed by defendant, and said physician completed part ‘B’ of such application and found the decedent, John H. Paul, insurable; the agent of defendant sent the application as completed above by him and the decedent, John H. Paul, to defendant company at its home office in Boston, Massachusetts, and said company found that decedent, John H. Paul, was insurable in accordance with the company rules for the amount and on the plan applied for without modification, and apprised the decedent that he was an insurable risk and that his application had been accepted, through their agent, on the 10th day of December, 1946. Said agent informed John H. Paul that his application for preferred risk-whole life insurance had been accepted by defendant and said insuranee would be effective immediately upon Ms payment of the premium in the amount of $80.32, as provided in said application. That decedent, J ohn H. Paul paid to the agent of said company the amount of $80.32 and said agent remitted said money to defendant; that defendant accepted said money as the premium for the insurance applied for and the insurance became effective.

“Plaintiffs further state that they were named as beneficiaries in the application for the insurance above described and the insured, John H. Paul, died on the 13th day of December, 1946, as a result of injuries received in an accident in Logan county, Ohio and said insurance matured on said date and the amount due thereunder became due and payable. Plaintiffs further state that said company was notified of the date and cause of death of tMs insured and refuses to pay the amount due under said contract of insurance and there is due them from defendant the sum of $4,000 with interest from the 13th day of December, 1946.

“Wherefore, plaintiffs pray that they may have judgment against defendant for the amount of $8,000 with interest from the 13th day of December, 1946, and their costs herein expended.”

The answer of defendant to plaintiffs’ amended petition, omitting formal parts, the allegations of the defense to plaintiffs’ second cause of action and the' exhibits to said answer, is as follows, to wit:

“Now comes defendant, John Hancock Mutual Life Insurance Company, and for answer to plaintiffs’ amended petition, admits that it is a corporation organized and existing under the laws of the state of Massachusetts as a life insurance company; that defendant was admitted to and qualified to transact the business of life insurance in the state of Ohio at the times mentioned in plaintiffs’ amended petition.

“Defendant admits and avers that on the 20th day of November, 1946, John H. Paul, now deceased, signed and delivered to a soliciting agent of defendant part A of an application to defendant for insurance on his life, a true copy of which application is attached hereto marked exhibit A and made a part hereof as if fully written herein.

“Defendant admits and avers that thereafter, on the 21st day of November, 1946, said John H. Paul was examined by a physician and John H. Paul signed part B of said application. A true copy of part B of said application is attached hereto marked exhibit B and is made a part hereof as if fully written herein. Part A and part B of said application were forwarded to the home office of the defendant in Boston, Massachusetts. Defendant says that John H. Paul did not make any payment of the premium on the policy applied for when the application, part A, was signed by John H. Paul on November 20, 1946, or when the application, part B, was signed by John H. Paul on November 21, 1946. Defendant admits that on December 10, 1946, John H. Paul drew a check payable to the order of John Hancock Mutual Life Insurance Company on the Kenton National Bank of Kenton, Ohio, in the amount of $200.80 and delivered said check to said soliciting agent. Said check was deposited by the agent of defendant in the account of defendant in Columbus, Ohio. Said check was not paid by the Kenton National Bank of Kenton, Ohio, but was returned to the Columbus agent of defendant marked ‘maker deceased. ’ Defendant denies that defendant ever issued any policy pursuant to the application aforesaid made to it by John H. Paul. Defendant admits that John H. Paul died on December 13, 1946.

“Further answering, defendant denies each and every allegation contained in plaintiffs’ amended petition which is not hereinbefore expressly admitted to be true.”

The reply of the plaintiffs to the answer of defendant, omitting formal parts, is as follows, to wit:

“Come now the plaintiffs,' Margaret Gibson, and Charles Gibson, a minor, by his next friend, Margaret Gibson, and for their reply admit all allegations and averments in the answer which are admissions of allegations and averments of the petition, and further replying, say that the checking account maintained by John H. Paul with the Kenton National Bank, Kenton, Ohio, on the 10th day of December 1946, had an unincumbered balance of an amount in excess of the cheek of $200.80 drawn by him on the 10th day of December, 1946, payable to the order of The John Hancock Mutual Life Insurance Company which said check is mentioned in its answer and further replying, say that the administrator of the estate of John H. Paul and the administrator, de bonis non, of the estate of J ohn H. Paul, had, at all times, an amount sufficient to pay said check and said fiduciaries would have allowed said check as a claim against the estate if defendant had presented it and further replying, say that when the estate of John H. Paul was closed a distribution was made to his heirs at law.

“Plaintiffs further replying say that on or about the 10th day of December, 1946 the soliciting agent of defendant informed the decedent, John H. Paul, that his application for insurance was accepted and a policy therefor was issued and upon this information the decedent executed and delivered the check of $200.80 in full payment of the premium for the insurance described in the petition and the said soliciting agent accepted said money in full payment thereof and issued a receipt therefor.

“And further replying, plaintiffs deny each and every, all and singular, those allegations and averments which are not admissions of the averments of the petition.”

It will be noted that the plaintiffs in their pleadings make no claim that a policy of insurance was issued, and base their right of recovery, if any, upon the written application for insurance executed by said John H. Paul under date of November 20, 1946, and completed by written report of medical examination on November 21, 1946, and, thereafter, sent by the soliciting agent of defendant insurance company, William Resch of Kenton, Ohio, through its general agent in Columbus, Ohio, Ralph W. Hoyer, to its home office in Boston, Massachusetts; the alleged finding of the defendant company that John H. Paul “was insurable in accordance with the company rules for the amount and on the plan applied for without modification ’ ’; the alleged apprisal of the said Paul on December 10,1946, through defendant’s agent that he was insurable, that his application had been accepted and that said insurance would be effective immediately upon his payment of the premium of $80.32 “as provided in said application ’ ’; the alleged payment by Paul of the premium to defendant; the alleged acceptance of such money as the premium for the insurance applied for; and the legal conclusion that the insurance thereby became effective.

On part A of the written application for insurance, the following questions with the answers of said Paul thereto appear, to wit:

‘ ‘ 10. Plan of policy as designated in rate book with amount.
Preferred-risk whole life $4000.”
“11. Supplementary Provision Election:
(Check provision, if desired)
Disability Benefit ( )
Double Indemnity (x)
Family Income ( )
........years
(Insert 10,15 or 20).”
“12. Insurance effective:
(check date desired)
Date of part B ( )
Date of issue of policy (x)
“13. Premiums to be paid:
(check method desired)
Annually ( )
Semi-annually (x)
Quarterly ( )
Total premium $80.32”
“14. Have you paid the premium?
(yes or no) no
Amount paid “ $ c. o. d.”

Also in part A of said application and above the signature of applicant thereto appear certain conditions, among others, as follows, to wit:

“It is understood and agreed that: A. The foregoing statements and answers, each of which I have made and read, are complete, true and correctly recorded, and with part B of this application shall form the basis for and shall be a part of the contract of insurance. B. If the first premium or instalment thereof above stated was paid when this application was signed, and if the company is satisfied that on the date of the completion of part B of this application I was insurable in accordance with the company’s rules for the amount and on the plan applied for without modification, and if this application, including said part B, is, prior to my death, approved by the company at its home office, the insurance applied for shall be in force as of the date of completion of said part B, but, if this application so provides, such insurance shall be in force as of the date of issue of the policy. If payment of the said premium was not made when this application was signed, any such policy will take effect as of its date of issue, and only if I have not consulted or been treated by a physician or other practitioner since the date of the completion of said part B, and only if the policy is delivered to and received by me and the first premium or instalment thereof is actually paid while I am alive and in sound health, and in any case, such delivery and payment shall constitute an acceptance of the policy and of all its conditions. ’ ’

The beneficiaries named in said application, being the application on which this cause is based, are Charles and Margaret Gibson.

Part B of said application entitled, “Statements to Medical Examiner,” was executed by Paul on November 21, 1946, and witnessed by “Chas. H. Thompson M. D.”

Another application for life insurance, identical with the aforementioned application, except that one Marion M. Paul is named as sole beneficiary thereof, was executed by the said John H. Paul at the same time the above mentioned application was executed, and was sent, together with said application, by the soliciting agent of defendant insurance company through its general agency in Columbus, Ohio, to its home office in Boston, Massachusetts. Said applications were received at the home office of said company on November 25, 1946. The home office, following receipt of said applications, mailed a letter of the date and in the words and figures following to wit:

“Air Mail December 4, 1946.

In re: J ohn H. Paul

Born: 11/1/1899

Agent Resch

Mr. Ralph E. Hoyer

General Agent

Columbus, Ohio

Dear Sir:

We have ordered from this office a retail credit report which should have been ordered by the agency in view of the plan, preferred risk.

The applicant has requested two policies on that plan in the amount of $4,000 each. The minimum issued in one policy on the preferred risk basis is $5,000.

Please advise if we should consider for one policy in the amount of $8,000 with the following beneficiary, Marion M. Paul, one half of the amount payable, Charles Gibson, one fourth of the amount payable, one fourth of the amount payable Margaret Gibson. Yours truly,

Prank J. Keefe, Manager”

Upon receipt of this letter, the Ralph W. Hoyer Agency at Columbus, Ohio, advised William Resch, the soliciting agent at Kenton, Ohio, by telephone on or about December 7, 1946, “that the home office couldn’t issue two four thousand dollar policies and wanted to know whether or not Mr. Paul would consider an eight or two five’s and at that time, I [Resch] told Bill [Hoyer] to ask for one policy of eight thousand,” and on said date Hoyer sent a letter to the home office of defendant insurance company, which letter is in the words and figures following, to wit:

“John Hancock Mutual Life Insurance Company

(Por intra-company communications.)

Date December 7, 1946 Ans. letter

Subject: John H. Paul Prom: The Ralph W. Hoyer Agency Columbus, Ohio.

To: Mr. Prank J. Keefe, Manager Underwriting Department

Dear Mr. Keefe: H. A. N.

Dec 9 1946

In regard to the case of Mr. John H. Paul it is desired that one policy in the amount of $8000 be issued with the following beneficiary: Marion M. Paul, one-half the amount payable, the other half payable to Charles Gibson and Margaret Gibson, equally.

Sincerely,

The Ralph W. Hoyer Agency WBH :rfl By: William B. Hoyer. ’ ’

Thereafter, Mr. Resch contacted John H. Paul by telephone and on December 10, 1946, John H. Paul came to Resch’s office, at which time Resch informed him of the request of the home office. Following this interview and on December 10, 1946, Resch sent a letter to the Hoyer Agency informing the agency of what had transpired. This letter, received by the company on December 11, 1946, is in the words and figures following, to wit:

“John Hancock Mutual Life Insurance Company (For intra-company communications.)

Date: December 10th, 1946

Ans. letter

Subject: John H. Paul

' From: Wm. F. Resch

To: Ralph W. Hoyer

Dear Ralph:

Bill Hoyer called me last Saturday in regards to the John H. Paul applications. 1 submitted this case on two applications of $4,000 each, on the preferred risk plan. The home office wanted to know whether they should issue two $5,000 or one eight thousand dollar policy. I told Bill to ask for one policy of $8,000. Mr. Paul was in tonite [sic] to pay the premium so 1 explained the home office request to him and he decided to take two $5,000 policies instead of the one $8,000. Attached please find Mr. Paul’s check in the amount of $200.8Q representing 6 months premium on the two $5,000. Would you please wire the home office to issue two $5,000 policies instead of the one $8,000.

Thanks,

Bill Resch Received

Columbus Office

Dec 11 1946”

Before the contents of this letter were reported to the home office by the Hoyer Agency, Resch communicated by telephone with the agency and informed it that Paul had asked for $3,000 of insurance in addition to that mentioned in Resch’s letter of December 10, 1946, and confirmed this telephone conversation by letter to the Hoyer Agency under date of December 11, 1946, received by the agency on December 12, 1946, which letter is in the words and figures following, to wit: '

“John Hancock Mutual Life Insurance Company (For intra-company communications.)

Date December 11th, 1946

Ans. letter

Subject: John H. Paul

From: William F. Resch

To: Ralph W. Hoyer

Dear Ralph:

Concerning our telephone conversation of this morning regarding the J ohn H. Paul application. I am attaching Mr. Paul’s check in the amount of $60.24 which is the sis months premium on the additional $3,000 of insurance. Mr. Paul plans to be away for a week or two beginning around the 18th of December. We would appreciate these policies being here for delivery-before the 18 th.

Yours very truly, Received

Bill Columbus Office

Dec 12 1946”

Checks drawn payable to order of defendant company were inclosed with each of said letters as indicated therein. Said checks were deposited by the Hoyer Agency in an account standing in the name of defendant company in the City National Bank and Trust Company, Columbus, Ohio. This account was designated by Mr. William B. Hoyer as a “suspense account,” being described by him as “an account in the bank where money is held pending the approval of a policy and the issuance of a policy by our company. When a policy is issued, then the money is withdrawn from the suspense account and goes into the regular bookkeeping channels to route that money from Columbus to Boston.”

Also, on December 11, 1946, Hoyer sent a telegram to defendant at its home office, in the words and figures following, to wit:

“WUAD15 14 SER Columbus Ohio Dec 11 1021A Prank J Keefe, Manager Underwriting Dept The John Hancock Mutual Life Insurance Co Issue additional $5,000 preferred risk John H. Paul Application beneficiary Marion M. Paul brother Ralph W. Hoyer $5,000.1041A.”

On receipt of Hoyer’s letter of December 7, 1946, and Hoyer’s telegram of December 11, 1946, above-mentioned, defendant insurance company entered the following pencilled notations on the reverse side of part B of the applications in the space provided for home 'office decisions.

“13,000 preferred risk

2 policies

Subject to signature.”

In conformity with the practice and custom of defendant’ insurance company this notation indicated that the applications, as received from the prospective insured, did not specify the amount or type of insurance which would ultimately be issued to the applicant, that such notations did not constitute a final approval of the insurance applied for or to be issued, and that as a result of such notations new application forms would be prepared by the company conforming with the amount and type of insurance to be issued, which would be delivered by the company to the soliciting agent together with the policies which they represented, and with instructions to the soliciting agent that such policies should not be delivered to the applicant until and unless the new applications were executed by the applicant.

It does not appear from the evidence that any of the things mentioned in the preceding paragraph, as customarily following such notation, either happened or were accomplished prior to the death of John H. Paul. Paul died on December 13, 1946, as a result of being hit by a Greyhound bus on that date. The verdict of the jury that his death was accidental was warranted by the evidence.

The checks executed by said Paul were forwarded through banking channels by the City National Bank & Trust Company, Columbus, Ohio, to the bank upon which they were drawn at Kenton, Ohio, but did not reach their destination until after December 17, 1946, after the death of said Paul. Said checks were returned by the drawee bank through banking channels to the depositor, marked “maker deceased,” and were not paid. The depositor thereafter sent them to Kaylor & Kaylor, attorneys for the plaintiffs. No- proof or proofs of claim were filed against Paul’s estate on account of said checks.

During the lifetime of Paul there was at all times sufficient money in the bank upon which said checks were drawn to the credit of Paul to pay the same, and after the death of said Paul there were at all times sufficient funds in his estate over and above all the costs of administration and indebtedness of. said estate to pay the same.

The retail credit report, which the rules of defendant company required should accompany an application for “preferred risk” insurance and be approved by the company before policies of such type were issued, and which was ordered by the company, as noted in the letter to the Hoyer Agency under date of December 4, 1946, was not received by the defendant company until after the death of Paul.

Plaintiffs’ claim, and the judgment rendered by the trial court from which this appeal was taken, are based upon the foregoing state of facts.

Prom this state of facts it will be noted that none of the premium checks given by Paul were in an amount equivalent to the premiums that would be required for preferred risk policies of $4,000, and it clearly appears that Paul, in effect, abandoned his separate applications for such policies in such amounts and substituted therefor his informal applications for two policies in the sum of $5,000 each, and later substituted therefor his informal application for two policies in the sum of $5,000 and $8,000, respectively.

It also clearly appears that the defendant company definitely refused to accept the applications for policies of less than $5,000 of the “preferred risk” type and that said Paul acquiesced in such refusal. Therefore, the plaintiffs in any event would not be entitled to maintain an action on said application for $4,000.

In fact there is nothing in the evidence tending to prove that the minds of said Paul and the defendant insurance company ever met in such a manner as to constitute a contract of insurance by tbe company on the life of Paul for any amount whatsoever.

Furthermore, the hereinbefore quoted conditions of the applications for insurance are clear and unequivocal, are not against public policy, and are determinative of the rights of the parties.

Under those conditions, the policy of insurance which might be issued pursuant to the application was to be effective upon the date of the issue thereof, provided that the policy should be delivered to and received by said Paul and the first premium or instalment thereof should be actually paid during the lifetime of said Paul.

From the statement of facts it appears that the conditions which the applications provided should attend the taking effect of the policies of insurance therein applied for were never complied with and neither of the policies of insurance or insurance contracts prescribed in said applications became effective.

The execution and delivery of the checks for premiums by said Paul to the defendant company did not have the effect in any way of modifying the quoted conditions in the application as to the taking effect of the policies or contracts of insurance. In the absence of the acceptance of the applications by the defendant company and the issuance of insurance policies by it in the manner prescribed in said applications, such checks did not constitute payments of premiums on said policies or insurance contracts and did not, with said applications, constitute constructive policies or contracts of insurance and did not have the effect of making the insurance therein applied for effective without compliance with each and all of the quoted conditions of the applications.

The defendant company, by accepting said checks in the manner they were accepted, was not in any way estopped from asserting or relying upon the quoted conditions of the applications relating to the time the insurance applied for should become effective, and pleading the same as a defense to this action.

For the reasons mentioned, each of the assignments of error is well taken, the pleadings and evidence in the cause being such that the plaintiffs have no right to recover from the defendant insurance company. Each of the assignments of error is of such a character as to require the reversal of the judgment of the trial court, and the judgment is reversed for the error of the trial court in overruling the motion of defendant for a judgment in favor of defendant notwithstanding the verdict, and this court, rendering the judgment the Common Pleas Court should have rendered,'sustains said motion and renders final judgment in favor of defendant, dismissing plaintiffs’ petition at plaintiffs’ costs, and adjudges that the plaintiffs pay the costs of this appeal.

Judgment reversed.

Middleton, P. J., and Ahl, JJ., concur.