author:
Wiseman, J.
      Per Curiam.

text:
    Massie, Appellee, v. Massie, Appellant, et al., Appellees.
    (No. 518
    Decided March 13, 1951.)

      Mr. Robert H. Wead, for appellee. .

      Mr. Gus W. Byttner and Mr. Melvin L. Robins, for appellant.

      Mr. Phillip Aultman, for trustee in bankruptcy.
   Wiseman, J.

This is an appeal on questions of law from an order of distribution made by tbe Common Pleas Court of Greene County in an action for partition.

An order of sale in partition was issued on April 6, 1950, and returned by tbe sheriff of Greene county on April 20, 1950. The sale was confirmed and a partial distribution of the proceeds ordered on April 22, 1950. In making partial distribution the court ordered the taxes, court costs, counsel fees and the mortgage lien to be paid, and the balance to be paid in equal shares to the plaintiff and the defendant Charles W. Massie. On the same date, in a separate entry, the court ordered the sheriff to hold in his possession the distributive share of plaintiff and defendant Massie until further order of the court. In a later entry the court distributed the share due the plaintiff.

On motion of a judgment creditor to determine the priority of liens respecting the share of the proceeds due the defendant Massie, a hearing was had, at which time it developed that on April 13, 1950, Lilly Smith filed a suit against the defendant Massie and others in the Common Pleas Court of Greene County on a note, praying that an order of attachment be issued against the funds of the defendant Massie in the possession of the sheriff of Greene county. Residential service was had on the defendant Massie on April 14, 1950, and an undertaking for attachment was filed by Lilly Smith with the clerk of courts on April 22, 1950. On May 15, 1950, the defendant Massie not having interposed a defense to the action, a judgment for attachment was rendered • and on the same day an order of attachment was issued by the clerk of courts of Greene county to the sheriff of Greene county. Judgment was taken on the note on July 17, 1950.

The record shows further that prior to taking judgment on attachment on May 15, 1950, and prior to the issuance of an order of attachment by the clerk of courts, the defendant Massie, on May 4, 1950, assigned to Gus W. Byttner all his right, title, claim or interest to the moneys in the possession of the sheriff, which represented his share of the proceeds derived from the sale of the property in the partition action. The written assignment was filed with the sheriff on May 13, 1950, two days before the order of attachment was issued to the sheriff.

At the hearing the court raised the question as to the consideration for the assignment. Counsel for Byttner stated that the assignment was for a valuable consideration but that he was not acquainted with the dealings between Massie and Byttner. No evidence was introduced with respect to consideration. No further question was raised by the court and no question at any time was raised by opposing counsel with respect to the consideration for the assignment. The assignment itself recites that it was “for, value received. ’ ’

It appears that counsel and the court at the hearing-accepted the validity of the assignment and proceeded to determine the right of priority between the parties on the basis of the valdity of the attachment proceeding.

The trial court determined the order of priority and made an order of distribution on August 18, 1950, in which three prior judgment lienholders were ordered paid and further ordered $772.11 to be paid to Lilly Smith in satisfaction of her judgment, and the balance, in the sum of $695.27, to be paid to G-u-s W. Bytt-ner on his assignment.

The defendant Massie, appellant herein, contends that the order of the trial court giving priority to the claim of Lilly Smith over the claim of Gas W. Bytt-ner was contrary to the evidence and contrary to law.

From the bill of exceptions it appears that the trial court had proceeded on the assumption that proper service had been made on the sheriff of the order of attachment prior to the assignment, or that the mere institution of the suit by Lilly Smith was sufficient to deprive the defendant Massie of the right to make a valid assignment of his interest in the fund.

No attempt was made to comply with Section 2835, General Code, which provides that when the sheriff is a party, or is interested, process shall be directed to the- coroner. In any event, the assignment antedated the order of attachment. The mere institution of the action did not deprive the defendant Massie of his right to assign- his interest in the fund. On May 4, 1950, he held an interest in the fund in the possession of the sheriff which was assignable. Comer v. Dodson, 22 Ohio St., 615; Shafer v. Buckeye State building & Loan Co., 37 Ohio Law Abs., 62, 45 N. E. (2d), 421; Shively v. Shively, 88 Ohio App;, 7, 95 N. E. (2d), 276. The assignee on that date became the owner of the fund to the extent of the interest of the assignor. The interest of the assignor, and consequently the assignee, was subject to the claims of judgment lienholders which the evidence shows became vested prior to the assignment. Any attempt on the part of Lilly Smith to perfect her lien subsequent to the assignment would not affect the right of the assignee. Priority in time establishes priority in right.

The appellee Lilly Smith contends that no consideration was shown for the assignment. While it is true that no evidence was presented by either party at the hearing with respect to consideration, except the statement of counsel for the assignee that the assignment was given for valuable consideration, no question was raised by the parties in interest at the hearing respecting the consideration supporting the assignment. The assignment itself imports a valuable consideration. In the absence of evidence to the contrary, the trial court had a right to conclude that the assignment was given for a valuable consideration. In 4 American Jurisprudence, 331, Section 128, it is stated that the assignee “may be assisted by certain presumptions, for example, an assignment in writing may be presumed to be supported by a sufficient consideration.” In 6 Corpus Juris Secundum, 1200, Section 140, subparagraph 3, it is stated that in some jurisdictions an assignment in writing is presumed to be upon a sufficient consideration. It is stated in the text that “where an assignment is absolute it will, until the contrary is shown, be présumed to be upon a sufficient consideration.” The case of Driscoll v. Driscoll, 143 Cal., 528, 77 P., 471, is cited in support of this proposition, and also Walker v. Johnson, 108 Mont., 398, 91 P. (2d), 406, 124 A. L. R., 937. Also it is stated that “where the assignment states that it is for a valuable consideration, there is a presumption to that effect, created by the assignor’s admission. ’ ’ The case of Roberts v. Friedman, 96 Pa. Sup., 530, is cited for this proposition, as is In re Estate of Schweitzer, 49 Dauph. Co. Rep., 288.

In Walker v. Johnson, the court in its opinion, said:

“The validity of the mortgage and assignment was not attacked by any proof by the respondent, and was only assailed by respondent’s counsel in his motion for a directed verdict. It was then argued that the appellant failed to prove consideration for the mortgage and assignment. This court has held that a mortgage itself prima facie imports consideration: * * * As to the assignment of the mortgage, we must apply the rule that ‘where an assignment is absolute it will, until the contrary is shown, be presumed to be upon a sufficient consideration.’ (5 C. J., 1016; 6 C. J. S., Assignments, See. 140, p. 1200.)”

In Roberts v. Friedman, supra, the court, in its opinion, held:

“The lower court’s conclusion was that ‘this assignment is not an enforceable contract because it lacks consideration. For this reason the rule for judgment must now be made absolute.’ The assignment of the chose states that it was for a ‘valuable consideration. ’ Whether it was for forbearance in instituting an action or some other valuable consideration, we are not informed, and it is not important. It is difficult to get stronger evidence that there was a valuable consideration than that of an expressed acknowledgment over the assignor’s signature.

c 6 # * #

“A legal presumption was created by the assignor’s admission that there was a valuable consideration and as there was no proof to the contrary, the lower court was in error in making the rule absolute on the ground that the assignment was without consideration.”

The note in 5' Corpus Juris, 1016, Section 252, is as follows:

“Where an assignment is absolute it will, until the contrary is shown, be presumed to be upon a sufficient consideration. So, in an action by an assignee of a chose in action assigned to him by the surviving partner of a firm, the assignment will be presumed to have been made on a valid consideration in the course of winding up the partnership affairs.” (Cases cited in the footnote, including Driscoll v. Driscoll, supra.)

In the instant case the trial court recognized the validity of the assignment in the order of distribution, by ordering the share of the fund paid to G-us W. Byttner on his assignment.

The doctrine of Us pendens has application to a partition proceeding. Comer v. Dodson, supra; Shafer v. Buckeye State Building & Loan Co., supra; Shively v. Shively, supra; 25 Ohio Jurisprudence, 655, 681, 685, Sections 2, 17, 19. But in the instant case it is not controlling with respect to the question for determination. Section 11300, General Code, has no application. That section has no application to the suit on the note, and if applied to the suit in partition it means merely that during the pendency of the action third persons are charged with notice of its pendency or that.no interest can be acquired by third persons in the subject of the action against the interest of parties thereto. In other words, the assignee took the assignment subject to the rights of the parties which had been fixed at the time of the assignment. Consequently the interest of the assignee was subject to the court’s decree respecting the right of priority of the several parties in interest, but we find the claim of the assignee to be prior in time and prior in right to the claim of Lilly Smith.

The defendant-appellant Massie could proceed to prosecute the appeal even though he had made an assignment. Section 11261, General Code.

After this appeal had been perfected and a super-sedeas bond given by the appellant on September 7, 1950, the trial court, on February 26, 1951, on the application of the trustee in bankruptcy for the defendant Massie for leave to intervene, made the trustee a party defendant, with leave to plead. Furthermore, when this matter was argued, counsel seemed to be in agreement that the entire fund subject to distribution under the order from which this appeal was taken was ordered paid by the sheriff to the trustee in bankruptcy.' We fail to find any jurisdictional ground for that order. We are required to proceed on the assumption that the money is still in the possession of the sheriff. The sheriff should promptly seek the assistance of the trial court in recovering the fund.

Also, an application to intervene was • filed by the trustee in this court on February 13, 1951, stating that he was appointed trustee, in bankruptcy on November 17,1950, and that he was a necessary party to this proceeding. This court, not being advised as to the nature of this proceeding and the type of appeal, on representation that it was an appeal on questions of law7 and fact, ‘ granted the application. It now appears that the order should not have been granted. An order will be drawn vacating the former order making the trustee a party.

On the principal question at issue, we find that the judgment of the trial court was prejudicially erroneous. Coming now to make the order which the trial court should have made, the court finds that Gus W. Byttner is entitled to be paid the entire balance of the fund after the payment of the three prior judgment lienholders whose claims are not in dispute.

Judgment accordingly.

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

(Decided April 2, 1951.)

On Application for rehearing.

Per Curiam.

The case is here considered on application of appellee for rehearing. While our rules do not provide for the filing of an application for rehearing this court has nevertheless considered the application and finds no new question raised.

Exception is taken to the statement in the opinion that the trial court recognized the validity of the assignment in the order of distribution. The record shows without question that the trial court in the order of distribution recognized the assignment as between the parties thereto. As against other parties the question of consideration could have been put in issue. The trial court very properly held that no evidence was presented on the matter of consideration for the assignment. Apparently it was assumed that since the assignee offered no testimony on the question of consideration the assignment was not valid against other creditors of the assignor. It is at this point where this court, differs from the trial court. This court, in its opinion, applied the principle of law that where the assignment is absolute and states that it is for a valuable consideration,, until the contrary is shown, it will be presumed to be upon a sufficient consideration. This principle of law was not applied by the trial court, but should have been and is controlling in the determination of the issue presented.

Application denied.

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


source: Caselaw Access Project

author: Hurd, J.

license: Public Domain

text:
    Sutfin, Admr., Appellee, v. Burton, Appellant.

      (No. 22041
    Decided August 6, 1951.)

      Messrs. Spieth, Spring S Bell, for appellee.

      Messrs. Bulhley, Butler $ Rini, for appellant.
   Hurd, J.

The parties herein will be designated as plaintiff and defendant as they appeared in the trial court.

This action in tort for wrongful death originated in the Common Pleas Court' of Cuyahoga County and is here on áppeal on questions of law from a verdict and judgment for the plaintiff in the sum of $35,500.

The plaintiff is the duly appointed and qualified administrator of the estate of his wife, Margaret D. Sutfin, late of the village of Gates Mills, Ohio, who died on January 19, 1948, leaving surviving her the plaintiff and three adult children in whose behalf the action is brought.

The defendant is the owner of a country, estate located on Foxboro road in the village of Gates Mills in the vicinity of the polo field and Old Mill road, the residence on his property being a distance of about one-half mile from Berkshire road in said village.

On the night of January 18, 1948, plaintiff, with his wife seated beside him, was traveling in his Plymouth sedan in a. northerly direction on Berkshire road in Gates Mills village when he encountered three horses funning loose on the highway. When he first observed the horses they were approaching his car in single file in a southerly direction along the easterly edge of the pavement. He operated his car past the first two horses safely, but a draft horse, the third in the line, reared up on its hind legs and brought its fore legs down on the top' of the car with such force and violence that the right front top of the car was caved in and the windshield and supports shattered. Mrs. Sutfin, who was seated at the point of impact, was so seriously injured that she died the following day.

The events preceding the fatal accident are clearly shown by the evidence, particularly in the admissions of the defendant. The defendant testified in substance that on the night of January 18, 1948, he had been at his residence in Gates Mills and that about 6:45 p. m. he left by automobile to put some straw in the “duck pen” located at an extreme corner of his property. It was a very cold night, the temperature being about zero, and it was getting dark as he left his residence. In order to reach the duck pen he dr'ove his car down a lane which runs through a narrow opening between the stable and shed. The shed is in the corral or pasture designated as “pasture A.” Defendant opened the gates of the pasture and drove his car through, leaving the gates open, although he knew there were three horses in pasture A at the time, a pony, a riding horse, and a draft horse, all owned by him. When he returned from the duck pen he again drove through the pasture gates which he then closed. It was shortly after this that he noticed the three horses had escaped through the open gates while he was at the duck pen. When he first saw them they were cantering or galloping on a path which led up a hill, the three horses being, at the time the defendant first noticed them, about 50 to 70 feet from the bottom of the hill. Defendant stood and watched the horses until they had reached a point about three-quarters of the way up the hill, but he did not pursue them. The defendant testified that the best judgment he could use at that time was to leave them alone, go down to his house, check in,- and then endeavor to go up on the far flank on the outside and see if in some way he could maneuver them home. Instead of pursuing this plan, however, he told the police chief, who was visting at his home at the time, to go out and look for them. As events disclose, the police chief rode around in his car but never saw the horses until after he was notified of the accident by the police of a neighboring township. At about 7 p. m. defendant went to the Chagrin Valley Hunt Club for dinner. At 8:20 p. m., according to his testimony, he was notified by telephone at the hunt club of the accident which ied to the death of plaintiff’s decedent.

Another fact to be noted is that adjoining defendant’s property are two other properties known respectively as the Ammon and Grinn estates, both of which are large properties with driveways leading into Berkshire road.

. Defendant, on cross-examination, testified that he knew that the horses, if up on the high land of the Ammon property, could then stray out onto the highway into Berkshire road and then go up the highway onto the Grinn property. The evidence shows that there are gates located on the driveway entrances to both of these properties. Defendant testified that he knew of these gates but did not telephone either the Ginn or the Ammon residence to notify them' of the escaped horses with a request to close the gates.

Other evidence in the record shows that the horses had wandered from the Ammon property on to the adjoining Ginn property; that they had been around the Ginn barn where the Ginn horses were secured; and that finally they found their way out of the Ginn estate service driveway onto Berkshire road and galloped or trotted from 100 to 150 feet to the point where the accident occurred.

Plaintiff claims that his wife’s death was due to the negligence of defendant in two respects: (1) In permitting the animals to escape from the pasture in which they were confined, especially the draft horse which caused the accident, when he opened the gates of the corral or pasture and (2) in failing, after the escape of the horses, to take the reasonable steps which would be proper to retake and reconfine them and thereby prevent them from straying onto the public highway.

The eight grounds of error assigned by defendant, for purposes of discussion, can readily be condensed and considered as follows:

1. The verdict is manifestly against the weight of the evidence.

2. Misconduct of a juror.

3. Error in the charge of the court, both before and after argument.

4. The verdict is grossly excessive, appearing to have been rendered under the influence of passion and prejudice.

We shall first consider the claim that the verdict was manifestly against the weight of the evidence.

Negligence is never presumed, but is a question of fact for the determination of the. jury under proper instructions of the trial court.

In the instant case, on the admissions of defendant himself, he opened the gates of the paddock where the horses were pastured, permitting them to escape; in addition to this, he saw the horses after they had escaped. There were means readily available to prevent the horses from entering upon the highway but no effectual steps were taken to prevent the animals from straying onto the public highway. The defendant testified that he was familiar with the habits of horses and had been riding horses since he was two years of age. In addition, he testified that he was master of the hunt of the Chagrin Valley Hunt Club and engaged in fox hunting through this territory and, therefore, was familiar with the terrain of the surrounding countryside. In view of these and other facts and circumstances, we must conclude that there was ample evidence to justify the jury in finding defendant negligent upon either one or both of the specifications charged. Therefore, we conclude that the verdict of the jury was not manifestly against the weight of the evidence and the assignment in that respect must be overruled.

The claim of error in respect of- misconduct of a juror is predicated on the claim that juror Nellie A. Hoover withheld information regarding a claim she filed in the United States District Court at Cleveland, Ohio, on March 4, 1950, arising out of the steamship “Noronie” disaster on September 17, 1949. The specific question asked by counsel was as follows:

“I would like to ask you all, have any of you got any kind of litigation of any sort pending in any court either where you have brought suit or where somebody else has sued you?”

When the question of misconduct was raised, after the trial, an affidavit was filed by Nellie A. Hoover, which in substance shows that on September 17, 1949, she was a passenger on the steamship “Noronic” (occupying stateroom 8, deck D), which steamer was destroyed by fire on that date while docked at Toronto, Ontario, Canada. Affiant’s son was also a passenger and came to her stateroom and aroused her, he having heard people getting up and noting some confusion. Affiant hurriedly dressed and went to the gangplank which was near her stateroom where a ship’s mate told her and her son to go ashore, which they did. Af-fiant, at that time, did not know the ship was on fire. Affiant said that neither she nor her son was injured and that she did not regard the occurrence on the “Noronic” as being an accident as far as she was concerned. Her baggage was destroyed, and subsequently she received a form letter from the Canada Steamship Lines Ltd., the owners of the “Noronic,” requesting her to file a claim of loss with one Ralph Vince, Williamson Building, Cleveland, Ohio. Affiant stated that she did not consider the matter of sufficient importance to'consult a lawyer. At that time she was residing temporarily with her son in Arlington, Virginia, and she simply went before a notary public on March 4, 1950, one Margaret D. Pute, who prepared the affidavit showing her claim of loss for baggage destroyed by fire in the amount of $354.55. She then mailed the affidavit from Arlington, Virginia, to Ralph Vince in Cleveland, Ohio, and did not know that her affidavit was filed by Ralph Vince in the United States District Court at Cleveland and did not consider the filing of her affidavit as constituting any kind of litigation in court or that she was a party to any suit or litigation. She stated further that she has-not brought any suit against any one or has any one sued her in any form. She stated further in her affidavit that while she was a juror in the instant case she did not feel that any question directed either to the jury generally or to her required her to mention the “Noronic” incident; that she did not intend to conceal the fact that she was a passenger on the “Noronic,” and would have been perfectly willing to mention that fact if any of the questions had required it. She concluded her affidavit by saying that the “Noronic” incident did not affect or influence her judgment in any respect whatever in rendering the verdict in the case at bar.

The trial court overruled the motion of defendant for a new trial on the ground of misconduct of a juror. We are of the opinion that the principles enunciated by the Supreme Court in the case of Pearson v. Gardner Cartage Co., Inc., 148 Ohio St., 425, 76 N. E. (2d), 67, have application here.

Under the holding in that case, where a prospective juror on voir dire examination in a personal injury case remains silent on the subject of accident or claim, whether a party is prejudiced by the fact that such juror sat in the trial without disclosure, is a question to be determined according to the sound discretion of the trial court. Whether a trial court has abused its discretion is to be determined by a reviewing court in accordance with the terms of Section 11364, General Code. We are of the opinion that the claimed error did not affect the substantial rights of defendant, and that the trial court was not guilty of an abuse of discretion in overruling the motion for new. trial. Conceding that the “Noronic” fire was a terrible disaster, we think that the insignificant claim for loss of baggage was not such as to affect the judgment of the juror in this case.

Coming now to consider the errors assigned in respect to the instructions of the court both before and after argument, defendant complains of three special requests to charge before argument and certain parts of the general charge. The substance of the instructions given before argument, briefly summarized, is to the effect (1) that if domestic animals injure any person or property while wrongfully in a place where the injury is done, the owner may be liable without notice that the animal was accustomed to do mischief, (2) that defendant, Burton, knowing that his three horses had strayed from their enclosure through the open gates, was obliged to take reasonable steps to pursue them, or to capture them, or to prevent them from straying onto the public highway, and (3) that defendant, Burton, as the owner of the horse which struck the Sutfin automobile, is responsible for negligence in its keeping whereby damage was proximately occasioned.

That part of the general charge in respect to which error is claimed, is as follows:

“As has been said to you briefly in the special requests the owner of livestock is chargeable with knowledge of the propensities of that livestock. Any person who owns an animal is chargeable with knowledge of what that animal is likely to do.

“In this case, this defendant, Mr. Burton, might be, if you find that to be the fact, chargeable with knowledge that many animals, including horses, take fright at the glare of lights that are carried by automobiles when driven in the night season, and may be chargeable with knowledge that when horses which are loose are thus frightened, they are as apt, by reason of their fright, to run directly into the front of the automobile or immediately across in front of it, as they are to make any other kind of move. ’ ’

We have examined these instructions and have compared them with the case of Drew v. Gross (1925), 112 Ohio St., 485, 147 N. E., 757, from which the instrue-tions were taken. In our opinion, the instant case is a stronger case on the facts than Drew v. Gross, but the same principles of law apply. •

In that case the Supreme Court held, in an opinion by Allen, J., concurred in by a unanimous court, that the owner of a domestic animal is responsible for negligence in its keeping whereby damage is occasioned to another in his person or property. The Supreme Court held also that it is a question of fact for the jury, whether an owner of horses who turned them loose, unattended, in a field adjacent to a much traveled highway, in the night time, the fence of which field was in such defective condition that the horses might easily stray out into the highway, could have anticipated that one of the horses would stray onto the highway and collide with an automobile thereon.

In the case of Pflugfelder v. Convent of Good Shepard (1936), 55 Ohio App., 158, 9 N. E. (2d), 4, the syllabus provides:

“1. The owner of a bull which has found its way out of a defective enclosure and has gone onto a highway where it is struck by a motor vehicle, resulting in injury to the driver thereof, may be held liable in an action in tort regardless of whether or not the animal had vicious propensities, or the owner’s knowledge thereof. The negligence of the owner in such case is a jury question.

“2. Where a bull suddenly leaps out of a ditch onto a public highway and is struck by a heavy motor truck, the assured clear distance statute is not applicable as a rule of negligence per se, but the issue of contributory negligence of the motor truck driver becomes a question of due care.”

In the instant ease, we do not have the fact of a defective fence but rather the positive act of the owner in opening the gates to a pasture where the horses were kept, permitting them to escape to a place where they could and did stray onto the public highway. In the instant case, also, there is the additional fact of the immediate knowledge of the escape of the animals, and knowledge of their propensities. In addition, defendant was familiar with the terrain and knew the paths leading to the open highway. Also, there were means at hand, if not to recapture, at least to prevent the animals from straying onto the highway. Under these circumstances, it became a question of fact for the jury to determine whether defendant could or could not reasonably have anticipated the occurrence which resulted in the accidental injury and ensuing death of plaintiff’s decedent. In other . words, the principal test is one of reasonable foreseeability under all the facts and circumstances, and this is for the determination of the jury under proper instructions by the trial court. The law on this subject is so well stated, and is so pertinent, that we deem it well to quote in part from Drew v. Gross, supra, commencing at page 489, as follows :

“But this is not an action based upon the fence law, but an action in tort, arising, as claimed, out of the negligence of the owner of live stock in permitting the same to run loose and unattended in the nighttime in a field, practically unenclosed, abutting upon a public-highway. * * * There is no question hut that it would have been evidence of negligence to show that the owner had turned his horses directly onto a much-travelled highway, unattended, in the night season. Ruling Case Law, vol. 1, p. 1094; Ingham on Animals, p. 338.

“The owner of a domestic animal is responsible for negligence in its keeping whereby damag’e is occasioned. The principal test as to whether the owner is or is not negligent, is ivhether he could or could not reasonably have anticipated the occurrence which resulted in the injury. It is a question of fact for the jury whether an owner of horses who turns them loose unattended into a field adjacent to a much-traveled highway in the nighttime, the fence of which field is in such defective condition that the horses may easily stray out onto the highway, could have anticipated that one of the horses would stray out onto the highway and collide with an automobile thereon.

“The owner of livestock is chargeable with knowledge of the propensities of his livestock and is bound to know that horses or cattle when placed in an inclosure where the fence is so defective that they may easily pass out of the inclosure and onto the adjacent property will probably do so.

“It is common knowledge that many animals, including horses, easily take fright at the glare of the lights that are carried by automobiles when driven in the night season, and it is also common knowledge that when horses which are loose a,re thus frightened they are as apt, by reason of their fright, to run directly into the front of the automobile, or immediately across in front of it, as they are to make any other kind of movement.

“If it be a negligent act to turn horses in the nighttime loose and unattended out into a highway much used for travel by motor vehicles that may be lawfully driven thereon at a speed two or three times greater than horse-drawn vehicles which travel the same highway, then it is some evidence of negligence to turn horses into a field adjacent to the highway in the night time, if the fence be in such defective condition that the animals may easily stray out onto the highway.

“If domestic animals injure any person or property while wrongfully in the place where the injury was done, the owner is liable, without notice that the animal was accustomed to do wrong or mischief. Thus a person who allows his horses to be at large upon a city sidewalk is liable for damages occasioned by them, if he could reasonably have foreseen that they would cause such damage. Gary, a minor, v. Arnold, Admx., 175 Ill. App., 365; Hardiman v. Wholley, 172 Mass., 411, 52 N. E., 518, 70 Am. St. Rep., 292; Healey v. Ballantine, 66 N. J. Law, 339, 49 A., 511.” (Emphasis added.)

While authority in other jurisdictions is not necessary to support the decision of Drew v. Gross, supra, it is very interesting and persuasive to note that the rule laid down in Drew v. Gross is in complete harmony with decisions of other states, particularly in the northern section of the United States. The Supreme Court of Pennsylvania, in a unanimous decision under date of March 23, 1942, in the case of Bender v. Welsh, 344 Pa., 392, 25 A. (2d), 182, after first calling attention to the common-law rule to the effect that an owner of domestic animals was under no legal obligation to restrain them from going upon the highway unattended, unless he had knowledge of their vicious propensities, went on to say:

“ * * * The reason for the rule was that at the time of its origin there was little likelihood of danger from stray domestic' animals on the highway. The widespread use of the motor vehicle has changed the situation, however, and the rule adapted to present-day conditions is that stated in the Restatement of Torts, Section 518 (1): * * one who possesses or harbors a domestic animal, which he does not have reason to know to be abnormally dangerous but which is likely to do harm unless controlled, is subject to liability for harm done by such animal if, but only if, (a) he fails to exercise reasonable care to confine or otherwise control it, and (b) the harm is of a sort which it is normal for animals of its class to do. ’

“In determining whether the instant case comes within the rule of the Restatement, we can safely say without discussion that the second requisite has been satisfied: an unattended horse on the highway at night is in obvious danger of becoming involved in a collision with an automobile which is being carefully driven. The point of contention is in the first requisite. The question is whether plaintiffs have presented sufficient evidence to justify the jury in finding that defendants were negligent, the burden of proof being on plaintiffs. Negligence is not to be presumed from the mere happening of an accident: Rennie v. Schepps, 297 Pa., 39, 41. But if the thing which causes the injury is shown to be under the management of defendant, and the accident is such as in the ordinary course of events would not happen if defendant who has the management, uses proper care, the burden is then placed on defendant, not to explain the accident, but to show that he used due care: Maltz v. Carter, 311 Pa., 550; Knox v. Simmerman, 301 Pa., 1; Folk v. Schaeffer, 186 Pa., 253; Devereaux v. Caldin, 127 Pa. Superior Ct., 595; Young v. Yellow Cab Co., 118 Pa. Superior Ct., 495; Hammil v. Phila. R. T. Co., 98 Pa. Superior Ct., 242; Latella v. Breyer Co., 87 Pa. Superior Ct., 325; Helfrich v. Gurnari, 78 Pa. Superior Ct., 449. If he does not show this to the jury’s satisfaction, it may infer that he was negligent. Thus, in Folk v. Schaeffer, supra, where plaintiff was injured through the slipping of a knot tied by defendant, it was held that the bare fact that the knot slipped permitted the jury, to infer want of care by defendant in making it, because ordinarily a knot properly made does not slip. Likewise, horses which are properly confined ordinarily do not escape. Hence the presence of an unattended horse on the highway is sufficient evidence to allow the jury to infer negligence on the part of those whose duty it was to restrain him, and this has been held in a number of cases, including Tassom v. LeBoutillier, 130 Pa. Superior Ct., 303; Felsch v. Schlue, 194 Iowa, 1200, 191 N. W., 63; Dickson v. McCoy, 39 N. Y., 400; Doherty v. Sweetzer, 82 Hun., 556, 31 N. Y. S., 649; Kenney v. Antonetti, 211 Cal., 336, 295 Pac., 341; and Anderson v. 1. M. Jameson Corporation, 7 Cal. (2d), 60, 59 P. (2d), 962. The reason justifying the rule is aptly stated in Kenney v. Antonetti, supra (211 Cal. at p. 340, 295 Pac. at p. 342): ‘ Under any but exceptional circumstances, the exercise of ordinary care will serve to keep unattended animals in their proper inclosures. In these days of rapid automobile transportation, the extreme hazard to drivers and passengers of animals straying unattended on roads at night cannot be over-estimated. The driver is placed in a ioell-nigh helpless position because of the tendency of an animal to spring out of the darkness %n front of a car when blinded or hypnotized by its headlights. Against this contingency drivers should be protected by having our roads clear of such obstructions and every owner of livestock should make an earnest endeavor to so control their movements with due care that the lives of others may not be thereby endanger edd ” (Emphasis added.)

In the case of Smith, Jr., v. Whitlock, 124 W. Va., 224, 19 S. E. (2d), 617, 140 A. L. R., 737, the court, in the second paragraph of the syllabus, said:

“Independent of any statute, the owner of a horse, negligently permitted by him to run at large on a public highway, is liable for injury done by such horse to a traveler thereon, if, from the character of the highway, the volume and speed of the traffic thereon, the time of the day, or other attendant circumstances, the owner should reasonably have anticipated that injury to persons on the highway would result from the presence of the horse thereon.”

See, also, the annotation following Smith v. Whitlock in 140 A. L. R., 742, entitled “Liability for damage to vehicle or injury to person riding therein by animal at large in street or highway,” which annotation, at page 751, refers to both the California and Pennsylvania cases.

Referring now to that part of the general charge in respect to which error is claimed by defendant, where the court charged in effect that the defendant Burton, might be, if they (the jury) find that to be a fact, chargeable with knowledge that many animals including horses, take fright at the glare of headlights carried by automobiles when driven at night, and may be chargeable with knowledge that when horses are thus frightened they are as apt, by reason of their fright, to run directly in front of an automobile as they are to make any other kind of move. We think the claimed error in this respect cannot be sustained.

While there was no specific charge of negligence contained in the petition, to this effect, nevertheless it was an issue developed by the evidence, on which the court could properly charge. The instructions as given follow the dictum in Drew v. Gross, supra, almost verbatim as found at page 490, hereinbefore quoted.

We conclude, therefore, that the special charges as given before argument and the general charge taken in its entirety are in harmony with the law on the subject and applicable to the facts of the case.

We conclude that there was no prejudicial error affecting substantia] rights of defendant in respect to the charges given before and after argument, and for this reason the errors assigned on this ground will be overruled.

Finally, we come tó consider the error assigned that the verdict is grossly excessive, appearing to have been rendered under the influence of passion and prejudice.

We .have given considerable attention to this issue raised on this appeal. Section 10509-167, General Code, provides in part that:

“The jury may give such damages as it may think proportioned to the pecuniary injury resulting from such death, to the persons, respectively, for whose benefit the action was brought.”

The general rule in respect to the measure of damages recoverable for wrongful death may be gleaned from 16 American Jurisprudence, 127, 160, “Death,” Sections 190 to 242, the gist of which is that in determining the amount of damages recoverable for wrongful death, it is proper to take into consideration such factors, varying in individual cases, as the victim’s life expectancy, character, health, habits, talents, prospects, prior earnings, probable future earnings, needs of and contributions to defendant and current returns on investments.

It is clearly within the province of the jury to determine the amount of damages to be allowed in any particular action for wrongful death. In the recent case of Detoskey, Admx., v. Ruan Transport Corp., 241 Iowa, 45, 40 N. W. (2d), 4, 17 A. L. R. (2d), 826, at page 49, it was held that in determining the possible value of a decedent’s estate, if he had lived out his life expectancy, the' jury can and should consider the reduced purchasing power of a dollar as affected by changing economic conditions and the possible return on prime investments. Citing Dedman v. McKinley, 238 Iowa, 886, 892, 29 N. W. (2d), 337.

Concerning the purchasing power of the dollar, the court states at page 49:

“A recent apparently authoritative source states that the relative purchasing power of a consumer’s dollar based on a $1 unit in 1914 has changed as follows: 1920 — $.50; 1926 — $.57; 1933 — $.78; 1939 — $.72; and in 1949 — $.43. If these figures are approximately correct it merely goes to show the futility of endeavoring to determine the excessiveness of a verdict from a mathematical or comparative basis.”

The evidence in the instant case shows that the decedent wife of plaintiff-administrator acted in a dual capacity in that she performed the usual domestic services for her husband and gave assistance to him in his business. The husband and one son are engaged in the plumbing business. There is evidence in the record showing that the decedent helped in her husband’s business in that she answered the telephone and routed the men on the' jobs; she kept the books; she took care of invoices for supplies and materials and checked them; she assisted her husband in making out invoices for jobs done and after he had priced them she made out the invoices and sent them out; and in general, she assisted in the business other than the actual doing of plumbing work. She was 55 years of age and at the time of her death, under standard mortality tables, would have a life expectancy of about seventeen years.

We are of the opinion that under all the facts and circumstances developed in the evidence, the plaintiff is entitled to substantial damages. However, the members of the court are of the opinion that the verdict of the jury is excessive, but not induced by passion and prejudice. It might be that such verdict came about by virtue of lack of clarity of the court’s charge on the subject of earnings.

Therefore, a remittitur will be granted in the sum of $10,000, thus reducing the judgment to $25,500. If the remittitur is accepted by plaintiff within 10 days from the date of the judgment entry, the judgment of the Common Pleas Court will be affirmed; otherwise, the judgment will be reversed for the reason that the damages awarded are excessive, and the cause will be remanded for further proceedings according to law.

Judgment accordingly,

Skeel, P. J., and Thompson, J., concur.


author: Middleton, J.

text:
    McDaniel, Appellee, v. McDaniel, Appellant.
    (No. 234
    Decided May 12, 1950.)

      Messrs. Sanders & Grigsby, for appellee.

      Messrs. Williams, Reynolds, Murray é Deeg, for appellant.
   Middleton, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Union County, entered upon a verdict in favor of the plaintiff and against the defendant, the appellant herein.

The action is for damages for injuries to plaintiff’s eye, claimed to have been received by the plaintiff while in the employ of his father, the defendant.

In substance, the petition sets forth that plaintiff was employed by the defendant to do some repair work on defendant’s farm; that defendant instructed plaintiff to assist him in jacking up a timber in a barn and in nailing a 2 by 6 support under the timber; that the room where they were working was not properly lighted; that defendant failed to furnish a ladder for plaintiff to use while nailing the timber; that defendant instructed plaintiff to stand on a timber nailed to the wall of the room and to maintain himself thereon by holding with his left, hand while driving a spike into the support with his right hand; and that, while carrying out the orders of the defendant, plaintiff attempted to drive the nail but, due to the darkness of the room and his precarious position, struck the spike a glancing blow which caused the nail to fly into his left eye.

The petition then sets forth that plaintiff’s injury and damage were caused wholly and solely by reason of the negligence, carelessness, and unlawful conduct of the defendant in the following respects:

1. Defendant negligently and unlawfully failed to furnish a safe place of employment.

2. Defendant negligently and carelessly neglected to warn the plaintiff of the danger of the employment.

3. Defendant negligently and carelessly and without proper regard for the welfare of plaintiff instructed him to stand on a timber and attempt to drive said spike.

4. Defendant carelessly and negligently required and instructed plaintiff to work in a room winch was not properly lighted.

The answer admits that plaintiff was working for the defendant at the time set forth in the petition and that the plaintiff, while so working for defendant, did receive some injury to his eye. For want of knowledge, the answer denies that the injury was of the character and extent set forth in the petition and that it was received as set forth in the petition. Then follows a general denial of all averments of the petition not admitted to be true.

.Upon this claimed state of facts the case was submitted to a jury which returned a verdict for plaintiff, upon which judgment was entered. From that judgment the defendant appeals.

Defendant’s first assignment of error is as follows:

The trial court erred in overruling the motion of the defendant, made at the conclusion of the plaintiff ’s case, that the court withdraw the case from the consideration of the jury and direct the jury to render a verdict in favor of the defendant.

One of plaintiff’s specifications of negligence against the defendant is that defendant failed to furnish the plaintiff with a safe place to work in that the room where plaintiff was required to work was not properly lighted.

As shown by the bill of exceptions, the plaintiff testified as follows:

“A. I believe in a joking manner he said, ‘if I could see it I believe I could hit it,’ and I said, ‘well, I think I can see it but I am not sure that I am skilled enough to drive it. ’

“Q. Then what did he say? A. ‘You see if you can drive the spike.’ ”

As shown by the bill of exceptions, the plaintiff testified as follows:

“Q. Now, Giles, on the morning of this accident did you ask your father before commencing work for additional light in the barn? A. No.”

Again, the plaintiff testified, in a deposition taken by the defendant, as follows:

“Q. At the time that you started to work in the barn on the morning of your injury did you consider the barn toó dark to do the type of work that you were doing? A. No.”

The plaintiff testified further that he did not ask the defendant to furnish him with a ladder; that defendant did not offer a ladder; and that he, plaintiff, did not think one was necessary.

Thus the plaintiff, by his own testimony, refutes the averment in his petition that the barn was not properly lighted, or that a ladder was necessary, or that the defendant was negligent in failing to furnish a ladder for the use of the plaintiff in the performance of the work he was instructed to do.

A careful reading of the record fails to show any evidence that the position taken by the plaintiff in attempting to drive the spike was precarious or that he was instructed by the defendant to stand on the timber and maintain himself thereon by holding with his left hand while driving the spike with his right hand. The position the plaintiff at the time of the injury, as shown by the record, was taken voluntarily and of his own selection.

It appears further from the record that the injury was caused by striking the spike a glancing blow and was not the result of failure or negligence of defendant as averred in the petition.

The record discloses further that the plaintiff was engaged in the simple work of driving a nail, certainly not such work that required any degree of skill, and there was nothing dangerous in the employment which required any instructions or warning by the defendant. If there was any danger in the work he was instructed to do or in the place in which the work was to be performed, it was as apparent to the plaintiff as to the defendant, and being apparent to the plaintiff as well as. to the defendant, the plaintiff assumed any risk in the employment and the defendant therefore is not liable for any injury resulting. McGill v. Cleveland & South-Western Traction Co., 79 Ohio St., 203, 86 N. E., 989, 128 Am. St. Rep., 705, 19 L. R. A. (N. S.),793; Nussbaum v. Lake Shore & Michigan Southern Ry., 21 C. C. (N. S.), 65, 25 C. D., 121; Doyle v. Toledo Furnace Co., 17 C. C. (N. S.), 231, 25 C. D., 299; 26 Ohio Jurisprudence, 430, 431, 432, Sections 348, 349, 350, 351.

There is a complete failure of evidence to show the defendant guilty of any of the specifications of negligence set out in the petition. When construed in the light most favorable to plaintiff and giving him the benefit . of all reasonable inferences, there remains nothing in his evidence to support his claim of negligence and, therefore, nothing for the court to submit to the jury.

There was error, therefore, in the court’s order overruling the defendant’s motion, made at the conclusion of plaintiff’s case, to withdraw the case from the consideration of the jury and to render a judgment for the defendant.

The court further finds error as set forth in appellant’s assignments of error Nos. 2, 3, 4, 5 and 6.

Assignments of error Nos. 7, 8, 9 and 10 were not argued orally or by brief and are,, therefore, disregarded.

The judgment of the Common Pleas Court is, therefore, reversed and this court, rendering the judgment the Common Pleas Court should have rendered, sustains the motion of the defendant to direct a verdict in favor of defendant, and enters final judgment in favor of the defendant.

Judgment reversed.

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


author: Hunsicker, P. J.

text:
    Douglas, Appellant, v. Hubbard, Appellee.
    (No. 4219
    Decided December 5, 1951.)

      Mr. Rufus L. Thompson and Mr. Joseph D. Roulhac, for appellant.

      Messrs. Holub & Holub, for appellee.
   Hunsicker, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Summit County, Ohio. The trial court rendered judgment for the defendant, Hubbard, upon the petition and opening statement of counsel for plaintiff, Douglas. In so far as this appeal is concerned, we must ae-cept as established, the allegations of such petition and the opening statement of appellant, Douglas.

The operative facts are that: Douglas and Hubbard entered into an oral agreement, whereby Douglas was to purchase a motor vehicle (in this case a truck) and operate it under a contract which Hubbard had with a third party; the oral agreement provided that the legal title (certificate of title) was to be taken in the name of Hubbard; the purchase price for the truck was paid by Douglas, who, in the course of its use, paid all the expense of upkeep and operation; Hubbard received from Douglas a monthly payment for the right to carry merchandise under the contract which Hubbard had with the third party; the truck was damaged in a collision; and Hubbard then took possession of the truck and denied to Douglas the right to have or operate it.

Douglas, claiming to be the owner in equity of the truck upon the theory of a purchase money resulting trust, sought to have the legal title transferred to him from his trustee, Hubbard, and an accounting for 'the earnings of said truck during the time Hubbard had operated it as his own property.

At the outset of our discussion, we are met with the requirements of the certificate of title law, Section 6290-2 et seq., General Code, and especially Section '6290-4, General Code, which is as follows:

“No person acquiring a motor vehicle from the owner thereof, whether such owner be a manufacturer, importer, dealer or otherwise, hereafter shall acquire any right, title, claim, or interest in or to said motor vehicle until he shall have had issued to him a certificate of title to said motor vehicle, or delivered to him a manufacturer’s or importer’s certificate for the same; nor shall any waiver or estoppel operate in favor of such person against a person having possession of such certificate of title or manufacturer’s or importer’s certificate for said motor vehicle for a valuable consideration. No court in any case at law or in equity shall recognize the right, title, claim, or interest of any person in or to any motor vehicle, hereafter sold or disposed of, or mortgaged or encumbered, unless evidenced by a certificate of title of manufacturer’s or importer’s certificate duly issued, in accordance with the provisions of this chapter.”

The Ohio certificate of title law was enacted “to prevent the importation of stolen motor vehicles and thefts and frauds in the transfer of title to motor vehicles * * 117 Ohio Laws, 373.

Many cases have been presented to the courts of Ohio involving the force and effect of Section 6290-4, G-eneral Code. The pattern of many of these cases is an attempt, by one, not the holder of a certificate of title, to gain possession of a motor vehicle from a party who purchased such motor vehicle in good faith from the then holder of a certificate of title, such purchaser receiving from the vendor a certificate of title valid on its face. This situation prevailed in the latest pronouncement of the Supreme Court of Ohio in the case of the Kelley Kar Co. v. Finkler, 155 Ohio St., 541, 99 N E. (2d), 665.

In the case of Automobile Finance Co. v. Munday, 137 Ohio St., 504, 30 N. E. (2d), 1002, a certificate of title fraudulently procured and relied upon was used to assert title against an innocent purchaser for value, to whom possession of the motor vehicle was given by a participant in the fraud. The court denied to the plaintiff finance company, the holder of such certificate of title so fraudulently obtained, the right to possession of such motor vehicle.

In the case of Mielke v. Leeberson, 150 Ohio St., 528, 83 N. E. (2d), 209, 7 A. L. R. (2d), 1342, the plaintiff sued to recover for property damage to an automobile which he claimed to own. At the trial, the plaintiff testified that he owned the automobile, but he did not offer in evidence a certificate of title in his name. The court said,' at page 534 of the opinion: “His [plaintiff’s] own testimony as to his ownership, coupled with his possession of the automobile, was some such evidence. It was not sufficient under Section 6290-4, General Code, and, therefore, the verdict, in the absence of evidence of certificate of title, was not sustained by sufficient evidence * *

In all of the cases we have been able to find, the courts have discussed the subject of legal title and the evidence of ownership of sufficient weight to sustain a verdict or judgment, where such legal title has been in issue.

In the instant case, we do not have the question of a certificate of title to a motor vehicle secured by fraud, or of a third party who purchased a motor vehicle in good faith relying on the indicia of title contained in a valid certificate of title. We do have an action by one claiming to be the purchaser of a motor vehicle, who, through agreement at the time of such purchase, placed the legal title in a person from whom he now seeks to secure a transfer of such legal title; such purchaser claiming that the beneficial interest in the motor vehicle remained with him, the purchaser, while the legal title was in another.

We come, then, to the controlling question in this appeal, which may be stated as follows: Do the terms of Section .6290-4, General Code, prevent the creation of a trust, the corpus of such trust being a motor vehicle ?

Was it the intention of the Legislature, when it enacted the certificate of title law, to remove from the law of trusts that species of personal property known as motor vehicles, so that under no circumstances could the legal title, as evidenced by a certificate of title, be in one person and the beneficial interest remain in another? We do not believe that any such thought was in the legislative mind when it enacted the statute in question.

Under the claims of the plaintiff (appellant), Douglas, we have alleged a typical case of a resulting trust, which is: A is the owner of a motor vehicle. B buys, from A, the motor vehicle, and asks that the certificate of title be executed in the name of C, his friend. There is no expressed intention on the part of B that a trust in such property be created, there is nothing to show that a gift was intended, and it must be assumed that B did not intend to give away his property without getting something in return. Courts of equity, where the evidence is sufficient in such cases, have held that B is entitled to the beneficial interest in the property so purchased. In all of such cases, the courts of equity have compelled a transfer of the legal title to the owner of the beneficial interest upon his request therefor.

A resulting trust arises in favor of the person who transfers property or causes it to be transferred, under circumstances raising an inference that he intended to transfer to the other a bare legal title and not to give to such other the beneficial interest in such property. Ohio has always recognized the propriety of one who is the owner of property, to create a trust, which is a right enforceable in equity, to the beneficial enjoyment of such property, while the legal title is in another. The Legislature, in the enactment of the certificate of title law, was concerned with legal title and not beneficial interests^ By- this legislation, the legislators sought to prevent fraud in the sale of motor vehicles and the sale of stolen motor vehicles. It was not intended to change the substantive law and place motor vehicles outside of the operation of the law of trusts.

Douglas, the plaintiff, by this action, brought against his trustee, Hubbard, sought, under the principles of the law of trusts, to compel a transfer of the legal title from Hubbard to himself. The trial court, by the judgment entered herein, denied to the plaintiff the right to establish a purchase money resulting trust. As we have above explained, the title with which the statute (Section 6290-4, General Code) is concerned is legal title, and such statute does not preclude the plaintiff (Douglas) from showing that such a trust was created.

The judgment is reversed, and the cause remanded for further proceedings.

Judgment reversed.

Doyle and Stevens, JJ., concur.


author: Wiseman, J.

text:
    The Fayette County Agricultural Society, Appellee, v. Wohlhetter et al., Appellants.

      (No. 266
    Decided November 6, 1951.)

      Messrs. Hill & Hill, for appellee.

      Mr. Carrington T. Marshall, for appellants.
   Wiseman, J.

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

Plaintiff-appellee, The Fayette County Agricultural Society, organized under' Section 9880 et seq., General Code, instituted a proceeding to appropriate property for public use. Thereafter the plaintiff voluntarily dismissed the proceeding. The defendants-appellants filed a motion to tax costs, including compensation to the attornejr for defendants for defending the action and in prosecuting the injunction suit, against the plaintiff. This motion was overruled.

The defendants cite Section 11060, General Code, in support of their contention, which section, in part, provides: •

“The corporation may. abandon any case or proceeding after paying into court the amount of the defendant’s costs, expenses, and attorney fees, as found by the court.”

Plaintiff cites Section 11091, General Code, which, in part, provides:

“The provisions of this chapter shall not apply to proceedings by state, county, township, district, or municipal authorities, to appropriate private property for public uses, or for roads or ditches.”

Other sections of the Code must be considered in determining the question presented.

Section 9885-1, General Code, provides for the procedure to be followed in appropriation of property by an agricultural society. This section, in part, provides :

“Thereupon the same proceedings of appropriations shall be had which are provided for the appropriation of private property by municipal corporations in Sections 3681 to 3697, both inclusive, of the General Code.”

This provision, in legal effect, requires that the statutory provisions governing appropriation proceedings by municipal corporations be applied to such proceedings where instituted by an agricultural society.

While it is true that an agricultural society falls in the category of a private corporation (Dunn v. Agricultural Society, 46 Ohio St., 93, 18 N. E., 496, 15 Am. St. Rep., 556, 1 L. R. A., 754), the Legislature may provide that statutes applicable to appropriation proceedings by municipal corporations shall be applicable to appropriation proceedings instituted by an agricultural society. It is observed that Section 9885-1, General Code, expressly provides that Section 3697, General Code, shall apply to a proceeding instituted by an agricultural society. But upon-examining the provisions of Section 3697, General Code, we find that this section does not authorize inclusion in the costs of any amount for attorneys’ fees or expenses of the defendant when the suit is dismissed prior to trial. See City of Euchd v. Vogelin, 152 Ohio St., 538, 90 N. E. (2d), 593. This appropriation proceeding was .not instituted under Title III, Chapter 14, of the Code, in which Section 11060, General Code, is found, and that section has no application. This action was instituted under Sections 3681 to 3697, General Code. We find no section authorizing the taxing as costs of attorneys’ fees in this matter.

The trial court properly overruled the motion of defendants. We find no assignment of error well made.

Judgment affirmed.

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


author: Matthews, J.

text:
    Renner, Treas., Appellee, v. Gordon, d. b. a. Gordon Furniture Co., Appellant.

      (No. 7470
    Decided November 19, 1951.)

      Mr. C. Watson Hover, prosecuting attorney, Mr. William J; Schmid and Mr. Francis X. Schwegmann, for appellee.

      Mr. Cedric Vogel, for appellant.
   Matthews, J.

The defendant-appellant failed to make a personal property tax return for the years 1944, 1945, 1946, and 1947, and, having ignored citations to make returns, the Tax Commissioner, acting under Section '5376, General Code, authorizing him to make a return and assessment, proceeded to make such return for the taxpayer and placed an assessment of $1,503.26 against her upon the duplicate. The defendant not having paid any part of this assessment or taken an appeal to the Board of Tax Appeals under Section 5394, General Code, this action to recover the amount of the assessment was instituted on February 18, 1949. The defendant answered, admitting that an unspecified part but not all the amount was due, and praying that the plaintiff be required to furnish strict proof of the amount due. The trial court rendered judgment for the full amount of the assessment. This appeal is from that judgment.

The action was heard in the Common Pleas Court on an agreed statement of facts and the testimony of two witnesses, an examiner from the Department of Taxation and the defendant’s son.

The defendant now admits she is liable-for $1,032.22, but disputes liability for the residue. The disputed part consists of three items.

The first item relates to money received from certain insurance companies. These items were listed and taxed as productive investments. It is claimed that this income was nontaxable under Section 5323, General Code, which excepts from taxation “contracts of insurance and dividends paid or applied thereunder.” These insurance policies were upon the life of Nathan Gordon,' the husband of the defendant. After his death, she left the proceeds of the policies with the insurance companies under an agreement by them to pay interest, and it was this interest that was taxed. This interest was .derived from the proceeds of matured policies, but was no part of such proceeds. That fact distinguishes this case from the case of Bronson v. Glander, Tax Commr., 149 Ohio St., 57, 77 N. E. (2d), 471.

According to the testimony of defendant’s son, the beneficiary in one of the poliei¿s on the father’s life was his daughter, and the daughter, upon receipt of annual payments, gave this amount to her mother, the defendant. It does not, appear whether these payments were interest or installments in liquidation of the principal amount due on the policy. The policy is not in the record. There is nothing in the record to show upon what basis the Tax Commissioner acted in listing this item. There is no evidence that the daughter listed these items for taxation. We assume there is an inference that the Tax Commissioner had discovered evidence justifying the listing of this item as a taxable item against the defendant. It may be that in all this the daughter was acting at all times as the defendant’s agent or trustee.

The next item is one of $200 listed as interest received from one Goodman. The defendant’s son testified that.this item was not interest at all, bnt was a profit or capital gain from the sale of real estate. Of course, if that was the fact, it would not be taxable under the intangible tax law. The difficulty in giving effect to this conclusion (assuming the fact) is that we do not have before us the data upon which the Tax Commissioner acted.

The defendant’s dilemma results from the fact that she failed to pursue her administrative remedies. By Section 5610 et seq., General Code, a remedy is provided for appeal to the Board of Tax Appeals, which board has full jurisdiction to correct any mistakes made by the Tax Commissioner. And, by Section 5611-2, General Code, provision is made for appeal from the Board of Tax Appeals to the Supreme Court of Ohio. That was the course pursued in the case of Bronson v. Glander, Tax Commr., supra, relied on by the defendant. At no place is an appeal to the Common Pleas Court authorized. It is true that by Section 12075, General Code, provision is made for enjoining the assessment or collection of an illegal tax or assessment, but as a prerequisite to obtaining any such relief the administrative remedies must be exhausted, which was not done in this case. In City of Cuyahoga Falls v. Beck, 110 Ohio St., 82, at 101, 143 N. E., 661, it is said:

“We do not here hold that a plaintiff cannot apply to a court of equity to enjoin an illegal assessment. We simply hold that the taxpayer first has to take the steps required by statute to secure relief, and that, until he has taken those steps, a court of equity cannot assume jurisdiction on the ground that a remedy has been denied him. After , the preliminary steps have been taken and the plaintiff has exhausted his statutory remedy, he has full right to apply to a court of equity under Section 12075, and, if he is entitled to relief, equity will grant it. ’ ’

See, also, 51 American Jurisprudence, 698, Section 769 and City of Cincinnati v. Board of Edn. of School Dist. of City of Cincinnati, 63 Ohio App., 549, 27 N. E. (2d), 413.

The unchallenged duplicate became an incontestable liability.

When the Tax Commissioner listed this property for taxation, he added 50 per cent for failure of the owner to list it voluntarily. No complaint is made against the imposition of this penalty, which, perhaps, was authorized by the General Assembly, in a measure, as compensation for the labor required to uncover the delinquency. Complaint is made, however, against the imposition of a 10 per cent penalty under Section 2657, General Code, for failure to pay, perhaps authorized to cover the expense of enforcing payment. As these two penalties are imposed for two distinct defaults, we find no valid objection to either.

For these reasons, the judgment is affirmed.

Judgment affirmed.

Hildebra'nbt,' P. J., Matthews aiid Boss, JJ., concur in the syllabus, opinion and judgment.


author: Per Curiam.

text:
    Robertson, Appellant, v. Lynch et al., a Partnership, Appellees.
    (No. 4515
    Decided September 18, 1951.)

      Mr. Matthew L. Bigger, for appellant.

      Messrs. Porter, Stanley, Treffinger £ Platt and Mr. William 0. Randall, for appellee.
   Per Curiam.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin County. A jury having been waived, the case was tried to the court which rendered separate findings of fact and conclusions of law which we find to be supported by the record.

The defendants were engaged in the brokerage business and more particularly in the business of buying and selling grain listed on the Chicago Board of Trade for a commission paid by the customer at the time of the transaction. Plaintiff, who had been a customer of the defendants, sued to recover losses suffered in two transactions with the defendants.

The trial court’s findings, supported by the evidence, are that the defendants acted as brokers and agents for the plaintiff and caused such transactions to be executed on the Chicago Board of Trade; that defendants conducted their business according to the rules and regulations of the Chicago Board of Trade and the plaintiff agreed to be bound thereby; that the sale or purchase of commodities for future delivery may be conducted upon the Chicago Board of Trade in accordance with the rules and regulations of that board; that the two transactions in question fell within the proviso of Section 5966, General Code; and that the contracts covering the two transactions were not void as “gaming” or “wagering” contracts under the “bucket shop” laws.

The plaintiff contends that there was not to be a, delivery of the commodities but only a payment of differences by the plaintiff, based upon the rise or fall of the market. See Section 13070, General Code. On this issue the plaintiff carried the burden of proof. The plaintiff testified he intended only to speculate on the rise or fall of the market. The evidence fails to show by the proper degree of proof that defendants intended to so speculate. Before the transactions can be held to be void as wagering contracts it must be shown that both parties intended them to be so. See Hawke v. Roberts & Hall, 13 Ohio App., 198, 200; Worthington, Bellows & Co. v. Whitman, 15 Ohio App., 161; Dayton Bread Co. v. Montana Flour Mills Co., 126 F. (2d), 257.

We find no assignment of error well made. There being no error in the record prejudicial to the rights of the appellant, the judgment is affirmed.

Judgment affirmed.

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