author: Montgomery, P. J.

text:
    Van Hoose, Admx., Appellant, v. French et al., Appellees.
    (No. 234
    Decided September 19, 1944.)

      Mr. O. R. Mosier and Mr. Carl R. Valentine, for appellant.

      Mr. Edmond N. Yantes, for appellees Homer C. French, and Bessie Lee French.

      Mr. Theodore D. Stevenson, for appellees Ervin Moore, C. Henry Moore and Harry E. Henry.
   Montgomery, P. J.

On September 3,1929, plaintiff’s decedent obtained a judgment by confession in the Court of Common Pleas of Franklin county, Ohio, against one H. A. Rodebaugh and defendant Homer C. French, under the name of H. C. French. On the same day execution was issued to Fairfield county, and the sheriff of the latter county made levy upon certain described real estate, to wit, tbe undivided one-third of a farm containing 159 acres,' more or less, “and being all the real estate owned by H. C. French in said county.” However, the captions on the foreign execution docket and the index were simply “C. E. Francis, as plaintiff, vs. H. A. Rodebaugh, et al.” The name of French did not appear in either the caption or the index.

On August 30, 1934, an alias execution was issued from the Common Pleas Court of Franklin county, Ohio, to the sheriff of Fairfield county, who upon this writ again made levy upon the same real estate, described it in the same manner, captioned and indexed the docket in the same way as on the first execution.

On March 3, 1938, defendant Homer C. French conveyed to Bessie French his undivided one-third interest in the real estate described, and the same was duly entered of record in Fairfield county.

On July 21,1939, a second alias execution was issued from the Court of Common Pleas of Franklin county to the sheriff of Fairfield county, and upon that writ the sheriff of the latter county made levy upon the same real estate described in the same manner, and in this proceeding indexed his docket “C. E. Francis vs. H. A. Rodebaugh and H. C. French.”

On September 13, 1943, Bessie French, with Homer C. French, her husband, joining, and the owners of the other undivided two-thirds interest in this farm sold and conveyed the same to defendants Moore and Henry.

On November 19, 1943, this action was begun in the Court of Common Pleas of Fairfield county to marshal liens and subject the real estate to sale in payment of plaintiff’s judgment. The petition set up the obtaining of the judgment, the issuing of the writ of execution and the two subsequent alias writs. Defendant Homer O. French filed an answer admitting the judgment, but denied that the same constituted a lien upon the -real estate. Defendants Moore and Henry filed an answer setting forth their ownership of the real estate and denying that there had been any valid levy made upon the real estate described in the petition.

The judgment creditor did not cause written notice to be sent to the sheriff of Fairfield county of the fact that the judgment had been kept alive in Franklin county beyond the period of five years after the rendition of the judgment.

The trial court made a finding on behalf of the defendants and dismissed plaintiff’s petition, and from that judgment appeal on questions of law was perfected to this court.

Section 2837, General Code, is in the following language :

“There shall be kept in the office of the sheriff of each county, a foreign execution docket, to be furnished by the county, in which on the receipt by him of any execution, order of sale, or other process issuing from any court of any county of the state, other than in which he resides, the sheriff shall make an entry of the date of such writ, when received" by him, from what court and county issued and the date and amount of judgment or decree, and shall copy in such book the full description of the property and real estate which he levies upon or offers for sale, the same as is endorsed upon or contained in such writ. He shall also copy into such book his return on such writ when he makes such return, including the bill of costs. For the use of the persons entitled thereto, he shall retain all fees due in such cases to residents of his county, and on demand, pay them to such persons. He shall make a direct and reverse index of each case so entered. Such entries so made shall be notice to subsequent purchasers and creditors of the matters contained therein, but if the lien of any judgment be kept alive in the county of rendition beyond the period of five yejirs, purchasers and creditors in such foreign county shall not be deemed to have notice thereof unless written notice thereof be filed by the judgment creditor with the sheriff of the foreign county who shall certify such fact upon the foreign execution docket and index the same at the place of the original entry.”

As we have hereinbefore indicated, the sheriff did not “make a direct and reverse index” showing the name of French as defendant on either the original or the first alias execution. The correct indexing was done on the writ issued after French had made the deed of the real estate to his wife.

What is, and should be, the rule of construction? As stated in 25 Ohio Jurisprudence, 381, Section 36:

“So, in accordance with the usual rule of statutory construction, statutes creating liens, being in derogation of the common law, are strictly construed, as to the property and persons to whom applicable.”

And, again, it is stated in 37 Ohio Jurisprudence, 728, Section 408:

“The general rule, as usually expressed, is that statutes in derogation of the common law are to be strictly construed.”

Was there constructive notice to the purchasers of the existence of this lien? Counsel for defendants in our judgment are correct in their assertion that an examiner of titles need not examine an execution docket for liens against a judgment debtor except for that period of time during which the same judgment debtor was the owner of the real estate in question. There would be no obligation to examine the title for such liens after such owner had parted with the title.

It has been held generally that the entries on. a foreign execution docket, which the sheriff is required to make, are constructive notice of the lien, binding upon subsequent purchasers and creditors while the lien remains in force. Paragraph five of the syllabus in Coal Co. v. First National Bank, 55 Ohio St., 233, 45 N. E., 630; paragraph eight of the syllabus in Cook et al., Exrs., v. Dinsmore, 5 C. C., 385, 3 C. D., 189.

By the same token it could and should be held that the failure to enter properly the things required by the sheriff would relieve the purchaser of the burden which otherwise would have been cast upon him.

Counsel for defendants with propriety refer to the case of Laundon, Windecker & Co. v. Denman, 18 C. C., 857, 4 C. D., 65, the syllabus of which is, in part:

“Where the name of a party on whose property an execution has been levied, does not appear in such index, and a mortgage on the property is afterwards executed by such party, the mortgagee having no actual knowledge of such lien, is also without constructive notice thereof and his mortgage will be the prior lien as against such levy.”

The only question in the instant case is, of course, whether such a lien was perfected as to give actual or constructive notice to the purchasers. Under-the statute hereinbefore quoted and by what we regard as the proper rule of construction of it, there could be. no question about the proposition that the claimed lien is not good as against bona fide purchasers. The proposition is complicated only by the facts that the 1938 deed was made by French to his wife, and that his wife was the holder of the legal title at the time the one foreign execution, properly indexed, was levied.

The record is silent as to whether there was any consideration for this deed from this husband to his wife. The deed was not directly attacked by pleading. The bill of exceptions shows that the proposition was not even commented upon. We have been furnished with copies of briefs filed in the Court of Common Pleas, as well as the briefs filed in this court, and the only reference made to this question anywhere in the Court of Common Pleas, apparently, was' in the reply brief of the plaintiff in that court, wherein it was casually suggested that “there is no claim that the transfer from French to his wife was for a valuable consideration, or that the wife is for other reasons entitled to be considered as an innocent purchaser.”

What is the presumption? And, if there be a presumption, where is the burden of proof? And is the general rule, if determined, applicable to the case of a conveyance from husband to wife?

41 Corpus Juris Secundum, 626, Section 153, states the following proposition, and sustains it by a substantial list of authorities:

“A gift from husband to wife will be presumed where he transfers funds or property to her either directly or through a third person.”

The syllabus in the case of Van Ingen v. Peterson, 12 C. C. (N. S.), 253, 21 C. D., 506, says, in part:

“The rule that the burden of proof rests upon the plaintiff, and does not shift to the defendant by reason of presumptions in his favor, applies to an action to subject to a husband’s debts property conveyed to his wife. ’ ’

And we note the case of Crooks v. Crooks, 34 Ohio St., 610, which involved a conveyance of land by a husband to his wife intended as suitable provision for her. It was conveyed at a time when the intervention of a trustee was necessary to make a deed valid at law, and the court held that such deed would not be enforced in equity to the prejudice of the rights of creditors or children for whom no provision had been made. However, the third paragraph of the syllabus is:

“Where a child complains against such provision for the wife, the burden of showing that no provision had been made in its favor rests upon the complainant. ’ ’

An interesting discussion of presumptions and the effect of presumption on prima facie cases is found in 20 American Jurisprudence, 136, 161, Sections 133 et seq., and 157. In the latter section the proposition is advanced that the party who has the burden of proof may be aided in establishing his claim or defense by the operation of a presumption. And in section 133, ibid, authorities are cited to the effect that the burden is still upon the plaintiff, although it may be incumbent upon the defendant to offer evidence to meet the prima facie case against him. There seems to be much confusion among the authorities on those propositions, but, regardless of that fact, it seems to us in the instant case that where no direct attack was made upon the deed, and it was not made an issue in the trial court at all, the argument cannot well be stressed in a reviewing court. The deed was not void and, as stated, was not attacked directly.

In view of this situation we do not feel that the plaintiff’s case is improved by the fact that the conveyance was from a husband to his wife, rather than to a third person.

The judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

Sherick and Putnam, JJ., concur.


source: Caselaw Access Project

author: Sherick, J.

license: Public Domain

text:
    The State, ex rel. Holcomb, v. Industrial Commission of Ohio.
    (No. 3751
    Decided October 11, 1944.)

      Mr. W. A. Smith and Mr. O. G. Terry, for relator.

      Mr. Thomas J. Herbert, attorney general, and Mr. Robert E. Hall, for respondent.
   Sherick, J.

Relator’s petition, the averments of which are admitted by respondent’s answer to be true, pleads that on the 5th day of April 1944, the Industrial Commission made the following order respecting his claim No. 1359039:

“This claim coming on for further consideration on the claimant’s application for additional compensation beyond date of last payment, filed herein December 22, 1943, and on the claimant’s verbal request made April 4, 1944, that the commission determine the nature and extent of his disability, make an award for the disability' found, and pay said award in a lump sum, the commission finds from the record that claimant has made a complete recovery from his injury of January 2, 1935, and that he is now being compensated for permanent total disability in claim No. 1309957; it is, therefore, the order of the commission that both the application for additional compensation and the application for lump sum settlement be dismissed.”

Belator further averred that that order denies him the right to further participate in the state insurance fund, although it finds that his present physical condition is not the result of his injury of January 2, 1935; that thereafter, within the prescribed time, he asked for a rehearing as provided by Section 1465-90, General Code, which rehearing the commission denied. Belator asked that a writ of mandamus issue, directing the commission to grant him a rehearing.

The pleading, therefore, presents only one issue and requires the solving of but one query: Does the order of April 5, 1944, deal with the extent of relator’s disability under his claim No. 1359039, or is it in fact a finding that his disability is the result of other outside causes.

The parties agree that if the order determines the extent of relator’s disability, the matter rests solely with the commission. But if it is a denial that relator’s disability is due to the injury, then the order amounts to a finding that it lacks authority to inquire into the extent of the relator’s disability, and is in fact a refusal to exercise jurisdiction, which entitles the relator to a rehearing as provided by Section 1465-90, General Code.

Belator maintains “that it makes no difference that he is being compensated for total disability on another claim. ’ ’ He says that his incapacity is admitted, and that his disability has been found not to be the result of his 1935 injury, from which it must follow that he is entitled to a rehearing and he may appeal to the courts if the commission denies him some compensation.

The commission insists that it has fonncl that relator has made a complete recovery from his 1935 injury; that its order goes only to the extent of disability; and that, “since the record definitely shows that permanent and total compensation is being- paid for the 1933 injury, claimant [relator] is being- paid the highest degree of disability that can be paid under the workmen’s compensation law.”

It is argued that if the writ should issue, a rehearing be had, compensation be not allowed, the order be then appealed from, and a judgment be entered finding relator is entitled to participate in the fund, then the commission in compliance with the rule established in State, ex rel. Moore, v. Industrial Commission, 141 Ohio St., 241, 47 N. E. (2d), 767, must pay some compensation by reason of the judgment. It is pointed out that the result is total disability being paid on one claim, and partial disability on another; and that the exclusive right of the commission to determine the extent of relator’s disability and the amount of compensation to be paid has been encroached upon by the courts and taken from it, all of which is contrary to the spirit of the compensation act.

We think the order of April 5, 1944, clearly states that claimant is found to have made complete recovery from his 1935 injury. This goes only to the extent of his injury. The words “that he is now being compensated for permanent total disability in claim-No. 1309957” are in one sense but surplusage, because the finding would have been complete and sufficient for its purpose without it. On the other hand, the phrase injected served another purpose. It recognized that relator was totally disabled for which he was being-compensated to the greatest extent contemplated by the compensation act. If he were totally disabled by a prior injury, a second injury could not increase his disability.

Upon his application he has been, found totally disabled by his 1933 injury. He now in fact asserts that the extent of that disability was less than that found by the commission. Yet he has accepted that award without objection, and now boldly aslcs for more; that he be paid more than one hundred per cent for his total incapacity; and that the commission be required to pay more for his disability than the act permits.

To direct an issuance of the writ requires a warped reading of the order, so that it may fall within the strict letter of the statute. It might well follow, if a right to participate in the fund was adjudged, that a court will not only enter the field of determining the amount of disability and compensation, but require by its aid the violation of the letter and spirit of the compensation act.

It is true that the act should be liberally construed, but when ill considered construction may cause all this to come to pass it reaches absurdity which liberality ought not approve or countenance.

The relator having failed to establish a clear right to the relief asked, the writ must be denied and the petition dismissed.

Writ denied.

Hornbeck and Geiger, JJ., concur.

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


author: Doyle, J.

text:
    Heinlein et al., Appellants, v. The Elyria Savings & Trust Co., Exr. and Trustee, Appellant; City of Elyria et al., Appellees. (Two cases.)

      (Nos. 1090 and 1091
    Decided February 9, 1945.)

      Messrs. Stevens & Stevens, Mr. Don W. Myers, Messrs. Baker, Hostetler & Patterson and Mr. Frecl T. Saussy, for appellants Gust Heinlein and others.

      Mr. R. II. Rice, Messrs. Resek & Cook, Mr. Anthony Nieding and Mr. Leivis M. Simes, for appellant The Elyria Savings & Trust Company, executor and trustee, and appellee Anthony Nieding.

      Mr. Richard S. Horan, city solicitor, and Mr. R. F. Vandemark, for appellee city of Elyria.

      Mr. R. E. Baird, for appellee Berdie Heinlein.

      Mr. A. II. West, for appellee Salvation Army, Inc.
   Doyle, J.

This is a suit in equity, in which this court, in an appeal for trial de novo, is petitioned for a construction of the will of William Wagner, deceased. The action is brought by three of the five first cousins of the testator, his next of kin. The remaining two, having declined to join as plaintiffs, were made defendants.

The plaintiffs pray that certain trusts sought to be created for the maintenance of a family cemetery lot and for the creation and maintenance of two parks, be declared invalid, and that a resulting trust be declared in favor of the plaintiffs and other heirs at law. The Elyria Savings & Trust Company, executor and trustee under the will, -in its answer asks that the controversial provisions of the will be declared charitable, and that, if the directions of the testator should be found impractical in relation to the charitable purpose, the doctrine of cy pres be applied for the preservation of the trust. The city of Elyria, upon leave of court, in an answer and cross-petition, prays the court to apply in its favor the doctrine of cy pres and to order the residuary estate to be given over to it for the care and maintenance of Cascade Park, an old and established park within the corporate limits.

The estate in question is appraised at approximately $185,000. The will directs a number of specific bequests and then continues with the controversial items 9 and 14, which dispose of the residue through The Elyria Savings & Trust Company, the named trustee.

Item 9 provides:

“I give, devise and bequeath my homestead known as 209 West Bridge street, Elyria, Ohio, together with the contents, furnishings and household furniture therein contained, and all other real estate, together with the residue of my estate remaining after the payment of all my just debts, funeral expenses,-cost of monument as provided for in item 2 above, and the aforementioned bequests, also all costs of administration, to The Elyria Savings & Trust Company of Elyria, Ohio, trustee, for the uses and purposes hereinafter mentioned and subject to the following terms and. conditions:
“My said trustee shall expend not less than six hundred dollars ($600.00) per year out of the net income of said trust estate for the upkeep and beautifying of our family lot in Bidgelawn Cemetery, Elyria, Ohio. It is my wisli that said lot be kept in excellent condition and that the graves therein be decorated with beautiful urns containing beautiful flowers, also fresh flowers and wreaths made with the everlasting flower of Florida called the statice flower.
. “The net remaining after the payment of the foregoing shall-be retained by my trustee in a fund to be known as the ‘Wagner Brothers Park Fund.’ My said trustee is hereby authorized and directed to expend. not to exceed the sum of sixteen thousand dollars ($16,000.00) of said fund to convert the site of my homestead in a public park to be known as ‘Wagner Brothers Park.’ My said trustee is further authorized, empowered and directed to sell or dispose of any buildings on said premises and to beautify said premises with suitable plantings of beautiful flowers and shrubs, good watering system, together with the necessary walks or paths. To install and erect a very beautiful electric illuminated fountain of the very best and latest type, one which will throw water to a good height. There is to be no seats or benches, no drinking fountain and no rest rooms. I want the park to be a beauty spot in the superlative degree, through which the public may walk and enjoy its superb beauty. I desire constructed a stone wall seven (7) feet high by eighteen (18) inches thick along the entire east side of said park and also along the entire north side of said park, wall so constructed that it may be flower covered, I prefer the everlasting statice flower of Florida, I desire this as a beautiful background for the park, there is also to be erected an appropriate tablet or marker designating said park as ‘Wagner Brothers Park,’ I wish the maple tree now growing at the front porch of my home and the maple tree at the rear porch to remain in the park, remove all others. I desire new cement walks on the North street side and West Bridge street side extending out to the curb.
“My trustee is further authorized to employ an experienced caretaker for said park who will be capable of keeping the park beautiful in every respect, caretaker to be paid fifteen dollars ($15.00) per week, to be employed from early spring to late fall.”

Item 14 is:

“In the event the earnings of my said trust fund known as Wagner Brothers Park Fund be more than adequate for the payments of all expenses; such as the upkeep of our family cemetery lot of six hundred dollars ($600.00) per year, cost of caretaker for Wagner Brothers Park, upkeep, repairs and improvements of said park, three hundred dollars ($300.00) per year to my trustee, ten dollars ($10.00) per month to Anthony Nieding, whatever such surplus shall be after all necessary expenses are paid, it is my will that said surplus shall be set aside in a fund to be known as Wagner Brothers Park Fund No. 2. When said fund shall amount to the sum of sixteen thousand dollars ($16,000.00), my trustee is hereby authorized and directed to construct and erect another Wagner Brothers Park, along the same lines as the original park, with the exception there is to be no stone wall background. Said park to be located on my lot on Cleveland street, Elyria, Ohio, my trustee is authorized to employ another experienced caretaker at fifteen dollars ($15.00) per week.
“All surplus earnings from the original Wagner Brothers Park Fund, hereafter; shall be set aside in a fund to be known as Wagner Brothers Reconstruction Park Fund, to be used for repairs, new improvements and modern equipment for the two said parks, in order to keep the two said parks in the most excellent and beautiful condition.”

The solicitor of Elyria and the special counsel for the said city have propounded the following questions for the court’s consideration. The answers to them, we believe, determine the case. They are:

1. Did William Wagner create a charitable trust under his will?

2. If so, is the trust impracticable, impossible or inexpedient of fulfillment?

3. If a charitable trust was created, and the fulfillment of this is impracticable, impossible or inexpedient, does the cy pres doctrine apply?

4. What becomes of the cemetery trust?

The Common Pleas Court in its consideration of the ■issues, applied the doctrine of cy pres to the “park” bequests, and awarded the funds so received to be used ‘ ‘ exclusively to develop and maintain in Cascade Park, in said city of Elyria, a definite area, conforming as nearly as practicable to the ideas of testator as expressed in his will, and to contain, among other things, shrubs and flowers, including the everlasting statice flower of Florida. This area shall be developed and maintained as a beauty spot in the superlative degree, through which the public may walk and enjoy its superb beauty. Said area shall at all times be kept plainly marked as follows: ‘Wagner Brothers Park Fund Maintains This Section of Cascade Park.’ ”

This part of the court’s judgment is noted only as a historical reference. We encounter the action de novo as an appeal on questions of law and fact under the Code of Civil Procedure, in which the entire order and judgment of the Court of Common Pleas is suspended. Union Trust Co. v. Lessovitz, 122 Ohio St., 406, 171 N. E., 849.

We approach our problem fully conscious that “The directive force of logic does not always exert itself * * * along a single and unobstructed path. One principle or precedent, pushed to the limit of its logic, may point to one conclusion; another principle or precedent, followed with like logic, may point with equal certainty to another. In this conflict, we must choose between the two paths, selecting one or other, or per.haps striking upon a third, which will be the resultant of the two forces in combination, or will represent the mean between extremes.” Cardozo, The Nature of the Judicial Process, page 40.

If the instrument in issue does not establish a charitable trust, the residue of the estate must pass to the heirs at law.

If the instrument expresses a charitable trust, and there is no general charitable intent, and it is impossible, impracticable or inexpedient, as opposed to inconvenient or undesirable, to carry out the trust, the estate must pass intestate.

If the instrument expresses a charitable trust and a general charitable intent, and it is, or becomes, impossible, impracticable or inexpedient to carry out its specific terms, then the doctrine of cy pres may be applied as the resultant of the opposing forces, on the principle that equity will make specific a general charitable intent of a settlor, and will, when a specific intent becomes impossible, impracticable ór inexpedient of fulfillment, substitute another plan which is believed to approach the original scheme as closely as possible, on the theory that equity has the power to mould a charitable trust which expresses a general charitable intent, to meet emergencies.

If there is expressed a charitable trust, and the intent of the testator is narrow and exclusive and confined to a specific purpose, the direction of the testator should prevail, although the carrying out of the trust is inconvenient or even undesirable, but not impossible, impracticable or inexpedient. In such situation the doctrine of cy pres has no application.

I now deal with the above rules as provisional hypotheses, ever conscious of a former pronouncement of this court that “A testator has the right to dispose of his own property in such manner, not repugnant to law, as he sees fit, and his intentions ought to be carried out unless they contravene some positive rule of law, or are against public policy.” Moskowitz v. Federman, 72 Ohio App., 149, at page 161, 51 N. E. (2d), 48.

Did William Wagner create a charitable trust under his will?

“A charitable trust is a fiduciary relationship with respect to property arising as a result of a manifestation of an intention to create it, and subjecting the person by whom the property is held to equitable duties to deal with the property for a charitable purpose.” II Restatement of Law of Trusts, Section 348.

Of the text writers, Perry gives a cofnprehensive definition of a charitable trust in these words:

“Charitable trusts include all gifts In trust for religious and educational purposes in their ever-varying diversity; all gifts for the relief and comfort of the poor, the sick, and the afflicted; and all gifts for the public convenience, benefit, utility, or ornament, in whatever manner the. donors desire to have them applied.” II Perry on Trusts (7 Ed.), Section 687.

The will provides for the creation and maintenance of two small parks upon two designated plots of ground within the corporate limits of Elyria. While the word “park” may be criticized, in that it may be said to apply only to a larger area, nevertheless the word may also be used to apply to any small area which may be made adaptable for ornament and recreation, and provoke an appreciation of the beautiful in nature and art. Provision is made for the beautification of each plot in a “superlative degree, through which the public may walk and enjoy its superb beauty.”

It is well settled in the law that a gift for the public use of land, which has beneficial utility to the pub-lie in providing for the mental, moral, spiritual and physical improvement of the people, constitutes a public charity.

We determine that a charitable trust was created, and that the intention to create such trust can be ascertained from the will itself.

The fact that the testator desired to have his name associated with the charity and to perpetuate it therein, does not detract from the charitable character of the bequest. Becker, Exr., v. Fisher, 112 Ohio St., 284, at page 296, 147 N. E., 744. The testator may have founded this trust solely to satisfy his family pride, for self-glorification, or he may have created it solely through altruism; but regardless of the reasons, a court of equity is not interested in the settlor’s motive. We are interested only in the result of the trust upon the community and society in general.

Is the trust impracticable, impossible, or inexpedient?

The size of the available estate considered in relation to the specific provisions of the will, does not show that the execution of the trust is incapable of being performed by the means at hand. Nor would the execution of the trust contravene any rule of law or be against public policy. (As to minor details, discretion is vested in the trustees of a charitable trust to so execute such trust, as not to transgress the law, or to contravene established public policy.)

A charity may be said to be inexpedient if it does not tend to promote a charitable purpose, or does not tend to promote the end desired or does not promise success. Under these rules the trust in question seems to be unassailable. It does tend to promote a charitable purpose and the end desired, and can be successfully carried out. The fact that the members of this court may be of the opinion that the money could have been used to greater advantage in another way, is not a justification for deciding that the will of the man who was disposing of his own property should he frustrated and defeated. The worth of creations which have aesthetic value, and which tend to promote health and happiness, cannot be measured in dollars and cents.

The designated location for the first so-called beauty spot, is in an unattractive locality., It will face a row of -small houses. It may be presumed that children and adults who live in the vicinity will be benefited by the proximity of those things which the testator sought to create. The more sordid a locality, the greater is the contrast of beauty. If the land involved covered many acres, probably no question would be raised as to the validity of the will’s provisions. The size or location alone, cannot defeat the donor’s wish. Such spots as the testator seeks to create are found in many of the cities in this country and in Europe, and, wherever they are found, they give to the local inhabitants, or the passersby, full return for the charity of the donor.

Concluding as we do that the provisions of the will, insofar as they relate to the creation of parks, should not fail, it is unnecessary to discuss why the doctrine of cy pres does not apply.

Suffice it to say, however, that the record before us does not show that the testator, in the giving away of his property, had a general charitable or benevolent intent. A reading of the will exhibits a clear and unqualified expressed intention to restrict his gift, and the use of particular property for a particular, specified purpose. It was no part of his plan, in the event of the failure of the charity, which he so meticulously arranged, that that part’of his estate should be used in any other manner. The' purpose and intent of the testator, we believe, is not left to inference or doubt. His choice of location and improvement was a vital one, and he had no secondary or broader plan.

“* * * There can be no question of cy pres until it is clearly established that the directions of the testator cannot be carried into effect. Therefore, a court of equity is not entitled to substitute a different scheme for the scheme which the donor has prescribed in the instrument which creates the charity, merely because a coldly wise intelligence, impervious to the special predilections which inspired his liberality, and untrammeled by his directions, would have dictated a different use of his money. * * *”10 American Jurisprudence, Charities, Section 124. Compare, 63 A. L. R., annotation, at page 885.

What becomes of the cemetery trust?

Under the common law a trust which provided for the permanent upkeep of the settlor’s grave or his family lot was held to be, in most instances, not charitable and was therefore not valid, because it violated the rule against perpetuities. In Ohio and in many other states of the Union the respective legislatures have permitted the creation of such trusts. Professor Bogert states:

“Evidently the feeling has been that respect for the dead is a sentiment desirable of cultivation in a civilized community, that the living will lead better lives if their ancestors, other relatives, and their friends are decently buried, their resting places marked, and their memories kept green by care and ornamentation of the graves and monuments.” 2 Bogert, Trusts and Trustees, Section 377. ■

There is a distinct benefit to the public at large in the maintaining and care of a cemetery lot. It adds tone and color to the entire cemetery and provides an incentive to other lot owners to assist in making the burial ground a beauty place for all to see.

Section 10110, General Code, provides:

“Every cemetery company or association may take, hold, possess, use, enjoy, and occupy such property of any kind as legally is given, granted, or devised to it, for the purpose of building, repairing, maintaining, adorning and beautifying fences, graves, vaults, mausoleums, monuments, walks, cemetery lots, drives, or avenues in its cemeteries, or for the purpose of building, repairing, maintaining, cleaning, adorning and beautifying therein any particular fence, cemetery lot, grave, vault, mausoleum, monument, walk, drive or avenue, and appropriate such property, or the proceeds thereof, to any of the foregoing purposes according to the terms of the trust for which it was given, granted or devised.”

If the terms of the instrument under consideration had designated the city of Elyria, or its proper officials, as trustee, to carry out its. cemetery provisions, it would seem that the statute (Section 10512-8, General Code) would make such provisions not violative of the rule against perpetuities. The city of Elyria is the proprietor of and is obligated to maintain the burial lots in the designated cemetery, and the cemetery regulations authorize the receipt of a reasonable sum for the perpetual care of graves. Does the designation of a wrong trustee render the provision invalid?

It is a doctrine of universal recognition that a trust, or any of its separate provisions, will not-be permitted to fail for want of a trustee. When there has been no trustee appointed, the court under its general equitable powers will appoint one. When there is a failure of suitable or legal trustees, either from original or supervenient incapacity to act, there is the same power vested in the court.

Compare, Gearhart v. Richardson, 109 Ohio St., 418, 142 N. E., 890.

This court determines that this part of the trust shall not fail because of the failure to designate a proper trustee under the statute. And, in the exer- ’ else of general equitable powers, the executor will be directed to transfer the sum of $5,000 to the proper statutory person (the city of Elyria, director of public service), the income of which shall be used to carryout the wishes of the testator.

The will specifically designates that not less than $600 shall be expended annually for this purpose. The direction to transfer $5,000, which we determine a reasonable sum (at 2\-¿°/o interest it will produce $125 annually), may seem inconsistent with the provisions of the will. In explanation thereof, we determine that if a gift should be excessive for the ornamentation of a grave or lot, it may be reduced by the court (1) on the ground of public policy, and (2) to conform to the spirit of the rules and regulations of the statutory trustee.

Summarizing a part of the preceding discussion, we are of the opinion that in this state it is unnecessary to examine and weigh the conflicting authorities, as to whether a bequest for the perpetual care of a family cemetery lot is a charitable bequest. This state by statute has repudiated the rule of the common law and placed such bequests in the charitable class, and allowed such trusts to be perpetual. And this conclusion is especially true when applied to a public cemetery, as is the case herein.

It is apparent that the amount of money necessary to carry out the specific bequest of the testator of “not less than $600 per year” for expenditure on the cemetery lot, will not be needed for this purpose. ($600 a year capitalized at 2%% interest amounts to $24,-000.)

Should the surplus pass to the heirs at law, or should it be applied to the second object in the residuum?

“Where the owner of property gratuitously transfers it upon trust for a charitable purpose which is fully performed without exhausting the trust estate, the trustee holds the surplus upon a resulting trust for the transferor or his estate, unless
“(a) the doctrine of cy pres is applicable, or
“(b) the transferor properly manifested an intention that no resulting trust of the surplus should arise.
“Comment: * * *
“b. Rebutting the resulting trust. If the settlor properly manifested an intention that if there should be a surplus remaining after the performance of the charitable trust the trustee should hold the surplus upon another charitable trust * * *, no resulting trust, of the surplus arises, but the trustee holds the surplus upon the other charitable * * * trust.’-’ II Restatement of Law of Trusts, Section 432.

The 16 items of the will, whether read individually or collectively, negate any general charitable intent on the part of the testator. He made specific bequests to his relatives and friends; he remembered and gave conditionally to a church and the Salvation Army, he having provided that, if his death should occur “within one year of the signing of this will,” the Salvation Army and the church bequests should “become a part of my residuary estate and be disposed of as such”; he then with extraordinary detail created out of the residuum, which constituted the vast bulk of the estate, the cemetery and park trusts; he then provided with exacting care that any surplus funds should be •set aside in a “Wagner Brothers Reconstruction Park Fund, to be used for repairs, new improvements and modern equipment for the two said parks, in order to keep the two said parks in the most excellent and beautiful condition” (Item 14 of the will, supra).

A reading of the will leaves no doubt of the intention--of the testator. He intended that none of his relatives should receive anything other than the amounts specifically bequeathed to them, and that they should be entirely shorn of their bequests if they should attempt to defeat the provisions of his will. This intention is revealed in item 15, which is:

“All the foregoing legacies are given upon the express condition that no legatee shall directly or indirectly commence, prosecute or aid in the prosecution of any legal proceedings having for its object the de-' feat in whole or in part of any provisions of this will or of any testamentary intention herein declared, and I hereby revoke and annul all gifts made to any legatee who may directly or indirectly commence, prosecute or aid in the prosecution of such proceedings, and direct that all gifts to such legatee or legatees become a part of my residuary estate and be disposed of as such. ’ ’

Our conclusion on this aspect of the case is that the surplus remaining in the specific charitable bequest for the maintenance of the cemetery lot, should be devoted to the carrying out of his next subsequent charitable bequest, because the testator has shown so conclusively that he intended to devote the whole residuary income from his property to specific charitable purposes.

If the revenues or corpus of a charity are more than sufficient for the specified objects of a charity, the surplus will not go to the heirs at law, but will be applied to charitable purposes affixed to a subsequent bequest for which the remainder of the residuum is specifically bequeathed.

The court in the consideration of this case has examined many authorities, some of which, in addition to those already cited, are as follows: Landis et al., Exrs., v. Wooden, 1 Ohio St., 160, 59 Am. Dec., 615; Gerke v. Purcell, 25 Ohio St., 229; Allen, Admr., v. City of Bellefontaine, 47 Ohio App., 359, 191 N. E., 896; Rhode Island Hospital Trust Co. v. Williams, 50 R. I., 385, 148 A., 189, 74 A. L. R., 664; Richardson v. Essex Institute, 208 Mass., 311, 94 N. E., 262, 21 Ann. Cas., 1158; In re Bartlett, 163 Mass., 509, 40 N. E., 899; Noel v. Olds, 138 F. (2d), 581; Jones v. Habersham et al., Exrs., 107 U. S., 174, 27 L. Ed., 401, 2 S. Ct, 336; Noice v. Schnell, 101 N. J. Eq., 252, 137 A., 582, 52 A. L. R., 965; 14 Corpus Juris Secundum, Charities, Section 6; 2 Bestatement of Law of Trusts, Section 368 et seq.; 2 Bogert on Trusts and Trustees, Chapters 19 and 22; 3 Scott on Trusts, Chapter 11; 10 American Jurisprudence, Charities, Section 4 et seq.; 139 A. L. R., annotation III on page 878.

Decree accordingly.

Stevens, P. J., and Boss, J., concur.

Boss, J., of the First Appellate District, sitting by designation in the Ninth Appellate District.


author: Morgan, P. J.

text:
    In re Appropriation of an Easement for Highway Purposes over Lands of Waddups: Boyle, Treas., et al., Appellants, v. The Middleburgh Realty Co., Appellee.

      (No. 19674
    Decided May 29, 1944.)

      Mr. Frank T. Cullitan, prosecuting attorney, M.r, Saul S. Danacea-u and Mr. R. A. Baskin, for appellants.

      Messrs. Locher, Green <& Woods, for appellee.
   Morgan, P. J.

The state highway director brought an action in the Common Pleas Court of Cuyahoga county, to appropriate an easement for a highway over a large number of parcels of land. Three of these parcels are located in the village of Brook Park and are owned by The Middleburgh Realty Company. The state highway director, before trial, reached an agreement with the company to pay $35,000 by way of compensation for the land taken and for damages, to the residue. Later this amount was paid into court and this appeal deals solely with the distribution of the fund as ordered by the trial court.

At the time of the appropriation, the parcels were subject to liens for delinquent general taxes and unpaid special assessments. The trial court in its decree apportioned the liens for taxes and special assessments between the area appropriated for a highway and the westerly residue of the parcels not appropriated.

At the time of the appropriation, the delinquent general taxes with penalties were as follows: Parcel No. 1, $5,774.64; parcel No. 2, $256.47; parcel No. 3, $87.05.

By the decree of the trial court the general taxes and penalties on parcel No. 3 were paid in full. The court ordered delinquent taxes and penalties on parcel No. 1, amounting to $1,938.89 paid to the county treasurer and apportioned the unpaid general taxes and penalties in the amount of $3,835.77 to the residue. An amount of $76.70 of the taxes and penalties due on parcel No. 2 was ordered paid to the county treasurer and taxes and penalties in the amount of $179.77 were apportioned to the residue. Accordingly, $4,015.54 of the delinquent general taxes in all remained unpaid and were apportioned to the westerly residue of the land remaining in the possession of The Middleburgh Realty Company, although there was enough money in the fund to pay such delinquent taxes in full.

The auditor and treasurer of Cuyahoga county maintain that the accrued and unpaid general taxes on the three parcels were a lien on every foot of the land; and that inasmuch as the award was sufficient to pay these taxes in full they should be so paid before any part of the award is paid to The Middleburgh Realty Company.

Section 5671, General Code, provides that “the lien of the state for taxes levied for all purposes, in each year, shall attach to all real property subject to such taxes * * *.”

As early as 1835, the Supreme Court in Monroe v. Doe, 7 Ohio, 262, held (referring to tax liens):

‘ ‘ The state has a lien upon all land not exempt from taxation, which is calculated to be perpetual, and which can not be affected by any sale or transfer * * *. It can be removed in no other way than by the payment of all taxes, penalties, and interést due upon the land.”

In In re Houghton and Olmstead Avenues, 266 N. Y., 26, 193 N. E., 539, the Court of Appeals of New York held:

“The lien of a mortgage or of a tax is upon the entire property. When a portion of it is taken in condemnation proceedings and an award made the lien attaches to the award and the lienor is,entitled to satisfy the entire amount of his lien therefrom.”

This is no doubt true in the case of a lien of a mortgage. In the case of In re East 29th Street in the City of New York, 273 N. Y., 62, 6 N. E. (2d), 98, the Court of Appeals of New York said:

“1. Where a part of mortgaged property is taken in condemnation proceedings the entire award is subject to the lien of the mortgage.
‘ ‘ 2. Where the amount due on the first mortgage * * * exceeded the award, the mortgagee is entitled to the whole thereof with interest, less the benefit assessment * * * j >

The appellee relies on Section 2573, General Code, which provides for the transfer by the county auditor of “any land * * * or part thereof * * * charged with taxes on the tax list from the ñame in which it stands into the name of the owner, when rendered necessary by a conveyance, partition, devise, descent or otherwise.” This section evidently relates primarily, if not exclusively, to general taxes assessed after a separation of the ownership of a tract of land by the conveyance of a part thereof.

Our attention was called in argument to the fact that the auditor of Cuyahoga county, in the case of a conveyance of a part of a tract of land, frequently has apportioned unpaid delinquent taxes between the property conveyed and the residue. Whether the auditor has authority to make such apportionment, we do not decide as the question is not before us.

We do, hold that where the state .acquires by condemnation or agreement a part of a tract on which the taxes have become delinquent, the amount paid by way of compensation for the land so acquired is first to be applied to the payment of all of the delinquent general taxes and there can be no apportionment of any part of such delinquent taxes to the unacquired residue.

The three parcels belonging to The Middleburgh Realty Company were subject, at the time of the appropriation by the state highway director, to the following-special assessments:

1. Parcel No. 1, for the paving of Brook Park road, principal assessment and penalty, $4,738.08 (by agreement of parties, the decree of the trial court ordered this amount to be paid in full); 2. Unpaid special assessments levied by the council of Brook Park village against parcel No. 1 for the construction of a water main in Brook Park road, which assessments were re-spread in 1938, and amounted to $2,510.14 of which $375.64 have accrued; 3. Special assessments levied by the council of Brook Park village against' parcels 1, 2 and 3, for the construction of a main outlet sewer. The unpaid assessments, with penalties, amounted to approximately $21,021.58 of which more than $2,678.12 had accrued.

At the time of the entering of the decree in the Common Pleas Court, the question of the validity of these special assessments for a storm sewer was the subject of litigation. Later these assessments were held valid by this court and- a motion to certify to the Supreme Court has been overruled.

The trial court ordered paid to the treasurer of Brook Park village $1,879.87 on the special assessments for the construction of the water line in Brook Park road and further ordered that “the sum of $14,035.95 of said award shall be retained in the hands of this court, until further order, to provide for that portion of the special assessments, levied by the village of Brook Park on parcels Nos. 1, 2 and 3, for a main outlet storm sewer, now in litigation, hereby allocated to that part of parcels Nos. 1, 2 and 3 included in said highway easement * * L”

After the payment of the amounts ordered by the Common Pleas Court to be paid to the county and village treasurers, there remained $11,943.48 which the court ordered to be paid to The Middleburgh Realty Company.

It is obvious that no distinction can be drawn between the portion of the special assessments which have accrued and are unpaid and delinquent general taxes. The same reasons which cause us to deny apportionment in the case of liens of general taxes, apply with equal force to accrued special assessments. The question then remains whether a court in distributing the fund received in a condemnation proceeding for a portion of a tract of land bearing special assessments may apportion the assessments payable in the future between the land appropriated and the residue.

Section 2595, General Code (which became effective in August 1941), provides as follows:

“Whenever a portion or portions of a tract or parcel of real estate is conveyed to another owner or other owners, and said tract or parcel bears unpaid special assessments, the authority certifying such assessments shall, on request of the county auditor, furnish the auditor with the proportionate amounts of the assessment or assessments to be allocated to the portion or portions of the original tract or parcel so conveyed to another owner or other owners, and the lien of the assessment or assessments as levied against the original tract or parcel, shall extend to the portion or portions so conveyed, only to the extent of the amount or amounts so allocated to the respective portion or portions by the certifying authority. However, nothing in the above shall be construed to change the total amount of the assessment or assessments as originally levied, or the total amount of the balance or balances due. ’ ’

The above section provides a method and, so far as we are aware, the only statutory method for apportioning special assessments when the tract which bears special assessments is divided by conveying a portion to another owner. The Middleburgh Realty Company did not see fit in this case to proceed under Section 2595, General Code.

It is our opinion that the provisions of Section 2595, General Code, which empower “the authority certifying such assessments” (in this case the village council) to make an apportionment of' special assessments at the request of the county auditor “whenever a portion or portions of a tract or parcel of real estate [bearing unpaid special assessments] is conveyed to another owner or other owners” can not be construed so broadly as to authorize the court to make an apportionment of the unpaid special assessment liens in this case.

Likewise, it is our opinion that the court can not base such an authority on its general equity powers. The installments of the special assessments to become due in the future are as truly liens on the benefited property as are delinquent taxes or assessments. Therefore, when a part of the property bearing special assessments is acquired by a public authority, it becomes the duty of the court in distributing money paid into court by way of compensation to pay not only the special-assessment liens already accrued but also to pay, as provided in Section 5677, General Code, or to set aside a sufficient sum to pay, the assessment liens to become due in the future before making any payments from the fund to the landowner. See Scully v. City of Cincinnati, 9 C. C. (N. S.), 63, 19 C. D., 713.

The decree will be drawn in accordance with this opinion.

Decree accordingly.

Siceel and Leighley, JJ., concur.


text:
    Ralston, Appellant, v. Stump, Appellee.
    (No. 455
    Decided October 26, 1944.)

      Mr. Robert L. Qarr, for appellant.

      Mr. L. Tate Cromley, for appellee.
   Montgomery, P. J.

The basis of this lawsuit was a collision in the village of Howard, Knox county, Ohio, between a small truck of plaintiff and a heavy truck and trailer of defendant. The plaintiff by petition, and the defendant by cross-petition, sought damages for injuries sustained in that collision. The verdict and judgment of the lower court were for the defendant on his cross-petition, and awarded him $600. Prom that judgment this appeal was perfected by the plaintiff. Only two assignments of error are urged.

The first assigned error is that the judgment is manifestly against the weight of the evidence, and that the plat introduced in evidence, together with the testimony itself, shows that the accident could not have happened as defendant contends. We have studied this record. It presents an ordinary case of credibility of witnesses and weight of the evidence. We cannot find that the verdict was manifestly against the weight of the evidence.

The whole record before us is singularly free of error until its very last page, the concluding paragraph in the charge of the court to the jury. Apparently as an afterthought to an otherwise proper and adequate charge, the trial judge, after stating: “This being a civil case, nine of your number can agree upon, a verdict, three-fourths or more, which is nine, and those agreeing will sign their names,” added: “And I might say to you that if you do not agree, twelve of your number do not agree and nine do agree, that only the nine agreeing upon the verdict should take any part in the amount- of the verdict. Those that don’t agree upon the verdict should take no part in determining what the verdict should be.”

The record then states: " Thereupon the jury retired. ’ ’

That statement of the trial court constitutes the second and remaining assignment of error, and to it we direct attention.

It might well have confused the jurors. No explanation was given as to what was meant by “ agree upon the verdict.” And this is from the last sentence in the charge and might, with its uncertainty, well have lodged in the minds of the jurors.

What is a verdict?

Webster defines it as “the answer of a jury given to the court concerning any matter of fact in any cause, civil or criminal, committed to their examination and determination. ’ ’

As stated in State v. Williams, 89 N. J. Law, 234, 98 A., 416, “the verdict is the definitive answer given by the jury to the court concerning the matters of fact committed to the jury for their deliberation and determination, a process in which not only must deliberation precede determination, but in which so long as the one continues the other has not been reached.”

And, in the language of the Supreme Court of Errors of Connecticut in Shulman v. Stock, 89 Conn., 237, 93 A., 531, “until the conclusion reached by the jury is accepted by the court it does not become a -verdict at all. ’ ’

In Ohio, this principle is carried into the statute itself. Section 11420-9, G-eneral Code, reads:

“In all civil actions a jury shall render a verdict upon the concurrence of three-fourths or more of their number. The verdict shall be in writing and signed by each of such jurors concurring therein, and they must then be conducted into court, where their names shall be called by the clerk, and the verdict handed to the clerk by the foreman. The clerk must then read the verdict to the jury and make inquiry if it is the verdict of three-fourths or more of their number.”

Until the conclusion of the jury is submitted to and accepted by the court, it is nothing more than a tentative agreement among the jurors, subject to revocation or change at any time before such submission and acceptance. Indeed under the quoted statute when the jury is asked whether it is the verdict of three-fourths or more of their number, a denial by a signing juror would vitiate the tentative agreement, the court would not accept it, and there would be no verdict.

Until such submission and acceptance, each juror is entitled to assert himself and has the privilege and the right to bring to his view, if possible, his fellow jurors.

And the fact that a juror votes against the fixing of liability upon a litigant does not preclude such juror from urging a reduction in the amount of the award. He may well believe that there is no liability, but that, if nine or more be against him, he may be serving the interest of justice and fulfilling the duty imposed by his oath, in attempting to reduce the extent of that liability.

A litigant whose cause has been submitted to a jury is entitled to have his cause -considered and discussed by all the jurors, and is entitled.to have all of them participate in the decision of every question presented to them.

The statement in the charge of the court was erroneous and it cannot be asserted or assumed that it was not prejudicial, for the amount of the verdict might have been substantially different had -the statement not been made.

The judgment is reversed and cause remanded.

Judgment reversed and cause remanded.

Sherick and Putnam, JJ., concur.


author: Stuart, J.

text:
    The State, ex rel. Copland, Appellant, v. City of Toledo et al., Appellees. The State, ex rel. The Rugby Realty Co., Appellant, v. City of Toledo et al., Appellees.

      (Nos. 4050 and 4051
    Decided December 18, 1944.)

      Mr. Gerald P. Openlander and Messrs. Geer, Lane & Doioning, for appellants.

      Mr. Joseph Nathans on, director of law, and Mr. Slater Gibson, for appellees.
   Stuart, J.

By stipulation of the parties and with the consent of the court these two cases, involving similar facts and presenting the same questions of law, were argued and submitted together. They are actions in mandamus here on appeal on questions of law from the judgment of the Court of Common Pleas denying the writs and dismissing relators’ petitions.

The relators are each the owner of a tract of land in the city of Toledo adjoining and abutting upon a strip of land which is about ten miles in length and approximately 135 feet wide extending from Erie street in the city of Toledo to the village of Maumee in Lucas county, Ohio, and in which the state of Ohio many years ago had acquired the fee simple title and upon which it had constructed, maintained and operated the Miami and Erie Canal.

In the year 1923 the tract of land of the relator, The Rugby Realty Company, was platted into building lots and is designated and known as “Hiett’s Beverly Boulevard Addition,” and in the year 1928 the tract of land of the relator, Howard Copland, was platted into building lots and is designated and known as “Copland Woods.” A series of lots in the southeast part of each plat abuts upon the northwest line of the Miami and Erie Canal property, which is shown and designated on each plat as “The Concourse,” but as to which canal property relators had no title.

In each petition one of the lots in said series, respectively, is described by number and it is as to such lot that each of the relators respectively prays “that the action of the council of the city of Toledo in passing the ordinances or resolutions providing that no curb cuts should be granted or allowed into the Canal Boulevard may be declared to be discriminatory, arbitrary, confiscatory and invalid, and that the defendants may be required to issue to the plaintiff permission to construct a curb cut in front of said lot * * * and for all other and further relief to which the plaintiff may be entitled in the premises.”

On January 22, 1920, the G-eneral Assembly of the state of Ohio passed an act abandoning that portion of the Miami and Erie Canal in Lucas county, Ohio, and providing for the lease and sale of the property to the city of Toledo.

July 24, 1922, the council of the city of Toledo enacted an ordinance for the issuance of bonds “for the purpose of purchasing for a park and boulevard” the abandoned portion of the canal, and on October 23, 1922, enacted an ordinance appropriating a part of the proceeds of the bonds for the purpose of purchasing such canal property from the state of Ohio.

On December 29, 1922, the state of Ohio, by a proper deed, sold and conveyed the Miami and Erie Canal property to the city , of Toledo and provided therein that the property was to be used for park and boulevard purposes.

On October 23, 1933, an ordinance was passed by the council of the city of Toledo “dedicating for boulevard purposes that portion of the abandoned bed of the Miami and Erie Canal” here involved, and by subsequent legislation prohibited the cutting of the curb therein without permission. An ordinance of the city prohibits driving over a curb.

In 1939 the city constructed therein two parallel lanes of pavement, each 36 feet wide, separated by a strip of land 40 feet wide, the northwesterly lane being separated from the southeasterly line of relators’ lands by a strip of land exceeding 16 feet in width. No special assessment for this improvement was levied upon abutting real estate, the cost thereof being defrayed by assessment upon the general tax duplicate of Lucas county. Relators’ lots are not contiguous to and do not abut upon the pavement and to have access to the nearest lane of pavement from the designated lots, it would be necessary to cross this intervening strip of land. Merely cutting the curb would not afford the relators access to the pavement.

Streets, highways and similar public ways are established for the use of the general public and for the benefit of adjoining and abutting land owners who, by virtue of such ownership have the legal right to ingress and egress thereto and therefrom.

There is a distinction between a “boulevard” and the usual and ordinary street, road or highway. Webster defines a “boulevard” as:

“2. A broad avenue in or around a city, esp. one 'decoratively laid out with trees, belts of turf, etc.
“3. An improved avenue or thoroughfare, esp. in cities for pleasure vehicles, sometimes exclusive; often one which is a through way.”
“The term ‘boulevard’, anciently used to designate the flat top of a bulwark or rampart around a city, now means a street constructed with parklike.features, a wide street, or a street encircling a town, one with sides or center for shade trees, flowers, seats, etc., and not used for heavy teaming.” See 5 Words and Phrases, 724, where many similar judicial definitions are quoted.

The character of this public land must be determined from the intention and plans of the governing authority and the use to which it has been put.

The city, by its legislation and its acts, has designated and dealt with this canal property as a “boulevard” in contradistinction to the usual street and highway.

It is obvious that the city cannot maintain ornamental spaces adjoining the pavement as it has the legal right to do in character with its declared intention to dedicate and use this canal property as a “boulevard,” if public or private ways across such spaces may be established other than as designated by it to effectuate its plan.

Under the facts, the relators have no greater right in these public lands than that enjoyed by the general public. The city is not required to construct a way across the intervening strip, nor can it be compelled to permit the relators to do so.

The judgments of the tria' court are therefore aflirmed.

Judgments affirmed.

Lloyd and Carpenter, JJ., concur.


author: Geiger, J. By the Court. Hornbeck, J. Sherick, J.,

text:
    O’Flaherty, Appellee, v. Industrial Commission of Ohio, Appellant.
    (No. 3734
    October 31, 1944.)

      Mr. John A. Connor and Mr. John D. Connor, for appellee.

      Mr. Thomas. J. Herbert, attorney general, Mr. Robert K. Hall and Mr. Albertus B. Conn, for appellant.
   Geiger, J.

This ease is before the court on an ap-

peal by the Industrial Commission from a judgment of the court below based upon the verdict of a jury that the plaintiff’s decedent was entitled to participate in the fund of the Industrial Commission.

Briefly, the facts as shown by the pleadings are that plaintiff is the widow of the decedent, and that on the 6th day of November 1940, decedent was an employee of The Union Fork & Hoe Company under contract.

It is asserted that on the 6th day of November 1940, the decedent received an injury while in the course of his employment, which injury resulted in his death on the 28th day of November 1940; that thereafter, on the 24th of April 1941, plaintiff filed notice and preliminary application with the Industrial Commission, which claim was heard on the 14th day of June 1943, and disallowed, the commission denying her the right to participate in the fund upon the ground that the death of the decedent was not the result of an injury sustained in the course of and arising out of his employment.

It is alleged in the amended petition that on the 6th of November 1940, and for some time previous thereto the decedent was an employee of The Union Fork & Hoe Company, and was then engaged with another employee in loading a freight car with merchandise, among which were shovels; that, at the time, the plaintiff was taking bundles of shovels from a truck and lifting them into the hands of fellow employees for piling in a freight car; and that the bundles of merchandise then being loaded weighed between fifteen and forty-five pounds per package, but that there were two packages of what was known as “never-break” shovels that weighed approximately 118 and 145 pounds which the decedent was required to lift a distance of three and a half feet vertically. It is asserted that the decedent, for an unknown period of time previous to the 6th day of November 1940, was afflicted with cardiovascular-renal disease and that as he lifted the last of the heavier packages he slipped, and this, combined with the weight of the shovels, caused him to have a heart attack which resulted in his death on the 28th day of November.

The commission, for answer to the amended petition, admitted the employment of the decedent and denied the other allegations.

The case was heard before a jury which found that the plaintiff was entitled to participate in the fund. The verdict of the jury was unanimous.

The plaintiff requested that the court give to the jury certain special charges which were given.

The evidence presents a borderline case.

Only one fellow workman testified as to the incidents of the alleged injury and that witness stated that nothing unusual occurred or was apparent in relation to the decedent, and that the decedent left the place where the work was being carried on, without any complaint. Another fellow worker, however, testified that shortly after the decedent returned he showed evidence of suffering pain and disclosed a pallid flush and vomited. The decedent then went to his home where he was attended by a physician who testified as to the symptoms shown and his wife testified as to the care she bestowed upon him in giving him hot applications and administering sedatives. By the 11th day of November he was so restored to a normal condition that he returned to his work and continued in the service of the company until the 27th day of November when he left the factory, returned to his home and died that night, seated upright in a chair. His wife found him dead at six o’clock on the morning of the 28th.

A number of doctors testified in the trial.

Dr. Mahanna, for the commission, testified at length.

The net result of this doctor’s examination, which was long and technical, was that in his opinion the man had for some time been afflicted with arteriosclerosis and that he ultimately died in the natural progress of this condition from coronary thrombosis which was not caused or accelerated by tbe lifting of tbe packages that were being stored in tbe box car.

K. H. Armen was the doctor who attended 0 ’Flaherty when he reached his home after the incident in the box car. He testified at length as to the condition in which he found O’Flaherty and the treatment he prescribed. He stated that O’Flaherty was suffering excruciating pain. This doctor did not claim that he was competent to testify as to whether the supposed accident would accelerate cardiovascular-renal disease from which he was suffering. The final question was propounded: “Doctor, if O’Flaherty died of cardiovascular-renal disease, as it is your opinion he did, would an unusual effort exercised on his part contribute to or accelerate his death?” The question was objected to and the doctor did not further testify in answer to that interrogatory.

Dr. E. E. Smith was asked whether he had sufficient experience to determine whether the exercise of a strenuous effort occasioned by the lifting of a weight of 140 pounds would have any effect upon contributing to or accelerating the death of one afflicted with heart disease. On an affirmative answer he was asked: “Would the effort necessary to lift 140 pound weights have any effect upon one who is troubled with cardiovascular disease?” to which, after the ruling of the court he answered: “Yes, sir, I think an effort to raise 140 pounds would have an effect upon a person suffering from a cardiovascular disease.”

And further: “Any effort placed upon-the heart is apt to cause it to act differently than it was normally. Several things might happen.”

The final question was: “The question is, would you say, doctor, the greater the effort the more certain it is that effort would contribute to or accelerate the death? A. Yes.”

See Drakulich v. Industrial Commission, 137 Ohio St., 82, 27 N. E. (2d), 932, where it is held: :

“3. Testimony that a person ’s death from cancer of the liver coulcl have resulted from a previous injury to ¡his back is insufficient to prove causal connection between such injury and death. The proof in such case must establish a probability, not a mere possibility of -such causal connection.”

We are confronted with determining whether the testimony of the physicians was sufficient to establish a probability of the acceleration of the cardiac •condition existing on the 6th of November. The only •doctor testifying positively on this matter was Dr. Mahanna. This doctor testified that the exertion incident to the lifting of the packages being stored in the box car would not promote or accelerate the cardiac condition from which he may have been suffering at that time. We do not feel that the testimony of the other physicians, one of whom, Dr. Smith, testified that the effort necessary to lift 140 pounds weight would have an effect upon one troubled with cardiovascular-renal disease, and that the greater the effort "the more certain it is that it would contribute to the -acceleration and death, would meet the requirements laid down in Drakulich v. Industrial Commission, supra.

Before the case was submitted to the jury, six re•quests were submitted by the plaintiff as special charges, five of which were given and the sixth refused. 'The court in giving the special charges followed closely the statement of the law as found in Malone v. Industrial Commission, 140 Ohio St., 292, 43 N. E. (2d), 266.

It is asserted by the defendant that there was' no •competent evidence upon which the jury could properly predicate a verdict in that the record contains no •competent evidence whatsoever tending to prove that plaintiff’s decedent suffered a pre-existing cardiovascular-renal disease contrary to the holding in the case of Ackerman v. Industrial Commission, 131 Ohio St., 371, 3 N. E. (2d), 44.

We arrive at the conclusion that while there may have been sufficient evidence to establish the fact that the decedent had for some period before the 6th of November suffered from cardiovascular-renal disease, yet there is in this case no evidence, first, establishing the fact by competent testimony that the decedent suffered an accident in the loading of the freight car; and, second, there is no sufficient evidence to establish the fact that if he did suffer such accident that the same accelerated the death of the decedent due to the prior existence of his disease.

We are of the view that the decedent died not on account of the acceleration of the prior physical condition by reason of an accident, but on account of the natural progress of the disease from which he-.was suffering and had been suffering for a considerable period.

The judgment of the Court of Common Pleas is reversed and it is ordered that final judgment be entered for the commission because of the complete failure to establish an injury in the course of his employment and failure to establish the fact that such injury, if suffered, accelerated the disease so as to cause an earlier death than he otherwise would have suffered.

Judgment reversed.

Sherick, J., concurs.

Hornbeck, J., concurs in the judgment.

(Decided December 20, 1944.)

On Motion for rehearing.

By the Court.

The application for rehearing is based largely upon the fact that this court in its original opinion did not comment upon the evidence of Dr. Robert L. Barnes, but confined its comments chiefly to the testimony of the physicians produced by the commission.

Since the matter was called to our attention we have read and re-read the entire testimony of this physician and are anxious to give it all the weight to which it is entitled. The testimony is too long to permit us to examine it in detail, but we will assume that counsel have selected that portion of Dr. Barnes’ testimony which will most strongly support the application for rehearing.

Counsel especially call our attention to pages 108, 109, 112 and 131 of the bill of exceptions.

After making inquiry as to a patient afflicted with cardiovascular-renal disease, the doctor was asked to state briefly what was meant by this medical term, and replied that “it is a combination of heart, kidneys— heart and kidney disease, associated with disorders of the vascular and nervous system.” The doctor was inquired: “Does unusual exertion have any effect in this disease, doctor?” And he replied: “In my opinion, yes.” He was asked whether the fact that a patient afflicted with this disease died within six weeks following a history of unusual strain would be of any significance, to which the doctor replied in the affirmative, and being asked what significance it would have, he recited certain facts that “a man fifty-nine years of age — and doing anything unusual in the way of physical or mental exertion might rush into some of the complications of vascular disease known here-as cardiovascular-renal disease.”

A hypothetical question was then propounded to the-doctor and he was asked whether assuming the facts-stated to be true would he have an opinion, to which he replied, “I would.” And being asked “What is that opinion, doctor?,” he again recited the prominent facts in the history of the case ■ and stated that it was his opinion that “the initial lesion was-some form of intra-cardiac accident, which is one of the most common complications of hypertension or cardiovascular-renal disease. * * * And this may have been further complicated by certain kidney condition. The doctor further stated: “* * * it is my opinion this man started with — had that when he went to work this time, some signs of cardiovascular-renal disease-—that part was established; he had unusual physical effort. He had many of these cardinal symptoms of intra-cardiac complication, and the symptoms and the-fact that he died afterwards, are quite convincing that, the unusual effort — the fact that he had cardiac disease or hypertension had a great deal to do with his-death. ’ ’

The doctor was asked whether he was able to give an opinion whether the patient probably would have died, if the assumption of exertion were disregarded, to-which he replied: “All I can say about exertion, you have a man with a diseased structure — a physical, unusual physical or mental disturbance is going to increase the liability of complication to that syndrome."

Dr. Barnes testified, ‘ The exertion of the lifting of the 145 pound package,” followed by the symptoms-enumerated “that were continuous until his death, and the cause of his death.” This statement of the-doctor’s in the bill of exceptions is not quite clear.

We examine the doctor’s testimony under the rules-laid down in Drakulich v. Industrial Commission, 137 Ohio St., 82, 27 N. E. (2d), 932, in the second and third paragraphs of the syllahns, which are to the effect that causal connection between an injury to a person and his subsequent death involves a scientific inquiry, such causal connection must be established by the testimony of medical witnesses competent to testify on this subject, and that testimony that a person’s death from cancer of the liver could have resulted from previous injury to his back is insufficient to prove causal connection between such injury and death. “The proof in such case must establish a probability, not a mere possibility.”

See Drew v. Industrial Commission, 136 Ohio St., 499, 501, 26 N. E. (2d), 793; Kuhn v. Banker, 133 Ohio St., 304, 312, 13 N. E. (2d), 242, 115 A. L. R., 292; Industrial Commission v. Lathrop, 52 Ohio App., 55, 2 N. E. (2d), 828.

The doctor stated that a man 59 years of age and doing anything unusual in the way of physical or mental •exertion “might rush into some of the complications of vascular disease.”

The doctor also stated “the fact that he had cardiac ■disease or hypertension had a great deal to do with his •death. ’ ’

We are of the opinion that this doctor’s testimony falls short of the requirements of the Drakulich case ■and we are'still of the opinion as stated by us in our original decision:

“* * * there is in this case no evidence., first, establishing the fact by competent testimony that the decedent suffered an accident in the loading of the freight car; and, second, there is no sufficient evidence to esfablish the fact that if he did suffer such accident that the same accelerated the death of the decedent due to the prior existence of his disease.”

Application for rehearing is denied.

Rehearing denied.

Hornbeck, G-eiger and “Sherick, JJ., concur.

Hornbeck, J.

I concurred in the original decision because of lack of proof that plaintiff’s decedent suffered an accidental injury, and therefore concur in the decision denying the application for rehearing.

Sherick, J.,

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


author: By the Court.

text:
    Barlow; Daulton, Admx., Appellant, v. The Winters National Bank & Trust Co., Trustee, et al., Appellees.
    (No. 1794
    Decided December 8, 1944.)

      Mr. Joseph L. Lair, for appellant.

      Messrs. Estabrooh, Finn & McKee, for appellee, Lillian M. Barlow.
   By the Court.

This matter is submitted on motion of appellant to certify the record in this cause to the Supreme Court for review on the ground of conflict of its decision with that of-anotner Court of Appeals in the state of Ohio.

It is claimed that our judgment is in conflict with the decision in Shearn v. Shearn, 60 Ohio App., 317, 21 N. E. (2d), 133, Court of Appeals for Coshocton county, and with the decision in Fee v. Linthicum, 26 Ohio Law Abs., 590, rendered by the Common Pleas Court of Wood county, and affirmed without opinion by the Sixth Appellate District Court of Appeals.

Although the question decided in the instant case differs from that which was adjudicated in the above cited cases, the principle on which our judgment rests is in conflict with the judgments pronounced in those cases. If there is a different theory upon which our judgment may be supported, we did not pursue it in our decision.

The construction placed on Section 10504-55, General Code, controlled the judgments in all three cases. This section has been amended since the decisions in Shearn v. Shearn and Fee v. Linthicum, supra, but not materially as to the questions involved in this case. The courts deciding the former cases did not, however, have the benefit of Section 10503-5, General Code, effective August 22, 1941, upon which we placed much reliance for the judgment reached in the instant appeal.

We, therefore, sustain the motion to certify our judgment as in conflict with the judgment of the Courts of Appeals in the cited cases.

Motion sustained.

Hornbeck, P. J., and Geiger, J., concur.


text:
    In re Union Hospital Service Assn.
    (No. 3777
    Decided January 30, 1945.)

      Mr. Thomas J. Herbert, attorney general, and Mr. Perry L. Graham, for appellant superintendent of insurance.

      Mr. Carrington T. Marshall and Mr. Leland 8. Dougan, for appellee Union Hospital Service Association.
   Sherick, J.

On July 19, 1943, the Superintendent of Insurance found that appellee was not entitled to the issuance of a license to do business in this state, and accordingly denied its application therefor.

The superintendent in his “finding and order” of that date, did find that applicant-appellee had filed and complied with the first seven requirements prescribed in Section 669-2, General Code. His rejection is predicated upon the applicant’s failure to comply promptly with the requirements of Section 669-1, General Code, that appellee’s directors had not as yet become members of an advisory committee of the. hospital with whom it had contracted for service. The superintendent further based his refusal on a finding that appellee’s nonprofit hospital service plan was not bona fide; that he was not satisfied that appellee’s proposed contract between it and its subscribers was fair and reasonable; and that from the evidence submitted; he could not determine that its plan was established on a sound financial and actuarial basis.

Under and by virtue of Section 669-11, General Code, the applicant appealed from this “finding and order” to the Court of Common Pleas, and in accordance therewith filed a petition therein. Applicant’s pleading proceeds at considerable length, and as a part thereof avers its compliance with the requirements of Section 669-2, General Code, and recites the happenings before the Superintendent of Insurance. The superintendent’s answer, after reciting that he in no way consents to the exercising of jurisdiction over him by the Common Pleas Court, admits that applicant had complied with the first-seven requirement's of Section 669-2, General Code; avers that he had notified other like corporations who had qualified to do business in this state; that the hearing before him was had and attended by certain named hospital service corporations; and denies all other averments. By way of affirmative defenses the four reasons for denial of the application are set forth; and that the Court of Common Pléas has no jurisdiction of the subject matter of this action, inasmuch as no appeal was perfected within thirty days' from the ‘•‘finding and order” appealed from.

The matter was tried before the court upon the record made before the superintendent, supplemented by oral testimony and certain exhibits, to wit, a resolution adopted by the board of trustees of the applicant’s contracting hospital, appointing applicant’s trustees, to the advisory committee of the hospital; and a schedule of proposed rates for service by the applicant to those who sought its benefits. All such documents are contained in the record presented to this court. The Court of Common Pleas held that the applicant had fully complied with all requirements for the issuance of a license and that the superintendent had erred in withholding it, and remanded the cause to the superintendent with instruction to issue the license requested. It is from this judgment that the superintendent now appeals to this court on questions of law.

As this court sees it, three questions are presented, the first of which is a matter of jurisdiction of the Common Pleas Court over the subject matter; the second concerns what statute directs the manner of .appeal herein; the third involves the power of the Common Pleas Court to make the order it did make. All three are so closely joined together that they are hardly separable without needless repetition. We shall make little effort to do so.

Appellee asserts that its appeal from the superintendent’s finding and order is under favor of Section 669-11, General Code (118 Ohio Laws, 157), as it existed prior to September 3, 1943, which read in part, that:

“ * * * The action of the superintendent of insurance in * * * refusing to grant * * * such certificate of authority or license shall be subject to review by appeal to the Court of Common Pleas of Franklin county, Ohio, provided such appeal shall be filed by an interested party within thirty days after such action by the superintendent * * *. Said cause shall proceed as a new civil action, with the right of either party to submit evidence and to prosecute error and to appeal # # & 5 >

This section as it now reads, 120 Ohio Laws, 371 (effective September 3, 1943), recites that the superintendent’s finding shall.be in writing and state the facts upon which it is based; that a copy thereof shall be immediately mailed to the applicant; and that his action in refusing to grant a certificate “shall be subject to review in accordance with the provisions of the administrative procedure act”; and Section 154-73, General Code (effective date September 3, 1943), insofar as it affects this action, provides that the forum for any such appeal shall be the Common Pleas Court of the county of the place of business or residence of the applicant. It requires that notice of appeal, containing grounds thereof, shall be filed within fifteen days after notice of the agency’s order, with both the agency and the court; and that the applicant shall provide security for costs satisfactory to the court. It further provides that the court shall conduct a hearing, which “shall proceed as in the trial of a civil action, and the court shall determine the rights of. the parties in accordance with the statutes applicable to such action. At such hearing counsel may be heard on oral argument, briefs may be submitted, and evidence introduced if the court has granted a request for the presentation of additional evidence.”

It is first noted'that the superintendent’s order bears date of July 19, 1943. The petition herein was filed on August 12, 1943. That is within twenty-three days after the order complained of.- The statute then in force accorded thirty days. No place within the newly amended statute do we find that it- was made applicable to pending matters. Section 26, General Code, is controlling in such a case; and it ought not again be necessary to cite authority in support of the accepted rule of procedure that appeals are governed by such statutes as were in force at the time of entry of the order appealed from. Appellee herein -now states that it made no attempt to follow the steps now prescribed by the recent amendment in perfecting its appeal. It was not required to do so. The real complaint of appellant seems to be with the then liberality of the Legislature as expressed in Section 669-11, General Code, and in effect as to pending actions on July 19, 1943. It accorded a rejected applicant an appeal which was in fact a trial ele novo. ~

Was the Common Pleas Court’s judgment contrary to law, or unsupported by any evidence or against the weight thereof? It was pleaded, proved and admitted that the requirements of Section 669-2, General Code, had been complied with by the applicant. This section clearly sets forth all the requirements that may be properly denominated conditions precedent to the granting of a license. Appellant would have it that the applicant should fail in its quest because its contractee, hospital, had not as yet designated the applicant’s officers as members of its advisory committee. So reads Section 669-1, General Code. Ought this to be clone before a license shall issue? Clearly this was not the intent. Why should a eontractee, hospital, place upon its advisory committee, certain named applicant agents, when the agents ’ principal might eventually fail to procure a. license to do business in this state? It ought to be evident that this provision of Section 669-1, General Code, sets up a requirement that must be complied with before a licensee may exercise the rights and privileges conferred upon it by the license which it has first acquired. But even if this is a primary prerequisite, as appellant claimed, the hospital’s resolution, complying therewith, is now found within the evidence considered by the Common Pleas Court, as is also the schedule of proposed rates for service by the applicant to those who sought its benefits.

Appellant found and now defends upon the theory that appellee’s nonprofit hospital service plan was not bona fide, and that its proposed contract, between it and its subscribers was not fair and reasonable. Yet, neither is there not one bit of evidence offered by the superintendent indicative of the truth thereof, nor a single comment contained within appellant’s brief pointing out wherein such is the fact. Mere averment is not proof of a fact, nor justification for withholding a right from one who otherwise is justly entitled thereto.

The appellant’s fourth affirmative defense deserves even briefer comment in view of the specific requirement found in Section 669-2, General Code, which has been complied with, and which the superintendent would enlarge and amend for administrative expediency.

The repetition found throughout appellant’s brief, that the applicant’s eontractee, hospital, is but a small institution, is deserving of but a single comment in that our institutions are designed to secure and protect the rights of the weak, as well as the strong.

Appellant’s principal claim of error is to the effect that the Common Pleas Court was without authority in law to enter judgment contrary to his “finding and order,” unless it be first found that he, as Superintendent of Insurance, had committed a gross abuse of discretion or acted illegally in refusing to issue the license. The trial court found, under the facts before it, that the appellee was entitled to a license. We find no error therein.

As we have hereinbefore determined, Section 669-11, General Code, as originally enacted (118 Ohio Laws, 157) was then in force, and was the applicable statute governing applicant’s appeal. It provided that “said cause shall proceed as a new civil action, with the right of either party to submit evidence.” It was equivalent to the right of an appeal on law and fact as we now know it. It granted a trial de novo, wherein the trial court might otherwise find contra to the judgment of the Superintendent of Insurance. Had present Sections 669-11 (120 Ohio Laws, 371) and 154-73 (120 Ohio Laws, 366), General Code, been applicable, a different situation might confront this court, which we are not now called upon, to answer.

The judgment is affirmed.

Jtidgment affirmed.

Hornbeck and Geiger, JJ., concur.

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