source: Caselaw Access Project

author: Hued, J. Skeel, P. J.,

license: Public Domain

text:
    Hamilton, Appellee, v. City of Cleveland, Appellant.
    (No. 22303
    Decided February 18, 1952.)
   Hued, J.

This is an action in tort instituted by plaintiff to recover damages for injuries claimed to have been proximately caused by defendant’s negligence while plaintiff was a passenger on one of defendant’s motor coaches.

A novel factual situation is presented, involving important principles of law governing common carrier-passenger relationships. Plaintiff alleges in her second amended petition, in substance, that on or about April 12, 1949, at about five o’clock p. m. she became a passenger on a Cedar avenue bus operating in a generally easterly direction in the city of Cleveland, boarding said bus at the intersection of Ash-land road and Cedar avenue; that she seated herself in the front part of the bus; that subsequently another passenger boarded the bus and, while standing at the side of the operator, proceeded to engage the operator in extended conversation; that the operator likewise engaged in conversation with the passenger while operating the bus; that while so engaged in conversation, the passenger removed a loaded revolver from his pocket, showing the same to the operator; that the operator carelessly and negligently permitted the passenger to expose and handle the revolver; that without warning to plaintiff, the revolver was suddenly and violently discharged; and that the explosion caused a concussion of the brain, injuries to the structure thereof, a rupture of plaintiff’s eardrum, and other injuries described at length in the petition.

The petition contains five specifications of negligence. Summarizing and paraphrasing these specifications, it is alleged in substance that the defendant was negligent in failing to exercise the highest degree of care consistent with the normal operation of the railway, in that the operator of the motor coach, in disregard of the safety of other passengers, negligently carried on a running conversation with a passenger who, during the course of the conversation, was exhibiting and handling a loaded gun in such a manner that it was discharged, injuring the plaintiff, when the operator knew, or should have known, that in all reasonable probability danger to fellow passengers, including the plaintiff, was thereby created and existed or was reasonably to be apprehended and that by the use of proper care on his part the injury could have been prevented.

The answer of defendant, while denying generally the allegations of the petition, admits that plaintiff was a passenger and that another passenger discharged a revolver.

Upon trial, the testimony of plaintiff supported the general allegations of the petition. In particular, she testified that she seated herself opposite the operator of the bus when it reached East 62nd street; that at East 79th street a policeman friend of the bus driver boarded the bus and immediately engaged in conversation with the driver, exhibiting to him a black object, which the evidence developed was a 32 caliber Colt automatic revolver. The plaintiff testified that the policeman passenger was showing this revolver to the bus driver for a period of four or five minutes when the revolver was discharged so that there was “a terrific explosion, a terrific blast,”, by reason of which she suffered the injuries of which she complains. Plaintiff testified further that the operator of the coach, during the conversation with the passenger, was watching “whatever this man had in his hand” and was giving such close attention to the conversation that he almost ran into a car coming from the opposite direction.

The evidence shows also that at the time plaintiff was injured by the concussion resulting from the discharge of the gun, the bus driver was shot in the leg, and was immediately removed from the bus to a hospital.

Upon the conclusion of all the evidence, the court, upon request of the defendant and over objection of the plaintiff, submitted in writing two interrogatories for answer by the jury, to be returned with the general verdict. The jury returned a general verdict for plaintiff in the sum of $9,000. The interrogatories and the answers returned thereto were:

“1. Do you find from the evidence in this case that the motor coach driver was guilty of any negligence? A. Yes.

“2. State in what respect that negligence consisted. A. Violation of company rule. Negligence in driver having unnecessary conversation with passenger and paying attention to conversation of passenger.”

A motion for judgment non obstante veredicto, a motion for judgment on the interrogatories, and a motion for new trial, having been overruled, the case is now before this court, having been appealed on questions of law.

No question is seriously raised as to the nature and extent of plaintiff’s injuries or the amount of the jury’s verdict, but an issue of sufficiency is raised as to the questions of negligence and proximate cause* the defendant’s first and second assignments of error being:

“1. That the court erred in overruling the motion of defendant for a directed verdict made at the conclusion of plaintiff’s case and renewed at the close of all the evidence.

“2. In overruling motion for judgment non obstante veredicto.”

Other assignments of error are:

“3. In overruling motion of defendant for judgment on finding of fact submitted by defendant, and answer thereto.

“4. Error in the admission of evidence.

“5. Error in charging the jury respecting rule T, the rule against conversation by the operator.”

Considering first, assignments of error Nos. 1 and 2, the record sets forth a pertinent comment made by the trial judge when passing upon a motion for a directed verdict, which we quote in part as follows:

“Evidence in this case discloses the plaintiff was a passenger, having boarded a bus of the defendant Cleveland Transit System, a bus or a trackless trolley, on Cedar avenue in the vicinity of Ashland road, and as a consequence it became the duty of the defendant, the duty which is owed to plaintiff, to exercise the highest degree of care for the safety and protection of the plaintiff as a passenger commensurate with the normal management and operation of the defendant’s business * * *.

“The nature of the negligence claimed in this case as set forth in the plaintiff’s petition is to be distinguished from the nature of.the cases almost universally found in the authorities cited by counsel for the defendant as its reasons for the motion which was made. Practically all of those authorities are based upon the theory that the plaintiffs were suing the carriers for negligence in preventing a wilful act or wilful tort by a third person.

“Plaintiff’s evidence in this case is that after she boarded the trolley bus, soon thereafter a third person boarded the bus and almost immediately engaged the operator in a conversation and during the course of the conversation he extracted from his pocket an object, which later turned out to be a pistol, and in the course of this conversation with the defendant’s employee, lasting four or five minutes as the plaintiff’s evidence indicates, that this pistol was exploded and that as a consequence of this explosion of the pistol the plaintiff in this case suffered -a punctured eardrum and the injury which she told of on the witness stand.

“The evidence in this case indicates, and giving it most favorable interpretation, that for a matter of four or five minutes the motor operator knew, saw and probably engaged in conversation with the passenger holding the pistol; that he did nothing to warn this passenger of the danger of exhibiting and fondling a gun in the loaded bus.

‘ ‘ There is nothing in the record to indicate that the operator ordered the passenger to put the pistol in his pocket, but on the contrary, the evidence supports the plaintiff’s theory that the bus driver engaged in a conversation with this passenger about the gun, independently of the evidence of the so-called rule governing the employee, the rule of the Cleveland Transit System which presumably proscribes any lengthy conversations with passengers, independently of that rule, it is the court’s view that there is a sufficient amount of evidence to go to the jury as to whether or not this motor operator or this trolley bus operator was guilty of negligence in permitting this passenger to be fondling this pistol in this loaded bus * * *. It is the view of the court that these questions are jury questions, the question of .negligence and the question of proximate cause of such negligence are jury questions, questions which must be submitted to the jury in the face of the evidence that we have before us.”

If this statement made by the court for the record is correct, the issue of sufficiency raised by assignments of error Nos. 1 and 2 is well met.

Counsel are in agreement as to the applicable law, to the extent that both rely upon the rule stated in 13 Corpus Juris Secundum, 1295, Section 695, wherein the author states:

“It follows that the liability of the carrier arises nqt alone from the fact that the passenger has been injured, but from the failure of its agents or servants to afford him proper protection, and hence unless such agents or servants know or ought to know that danger from fellow passengers exists or is reasonably to be apprehended, and can, by the use of proper care, prevent the injury, the carrier is not liable. Thus the carrier is not liable where the injury is caused by acts of a fellow passenger, which its agents or employees had no reason to apprehend, and which they could not, by the exercise of proper care, prevent. It has been stated broadly that a carrier is required to interfere with the voluntary acts of passengers only where such acts constitute a breach of the peace or are such as to suggest a reasonable probability that injury will result to others.”

To the same effect see 10 American Jurisprudence, 268, 269, “Carriers,” Sections 1454 and 1455. See, also, the annotation in 140 A. L. R., 1194, where the author comments:

“The general rule is that a carrier will not be held liable for injuries to passengers caused by the negligent or meddlesome conduct of other passengers, unless the carrier has notice of such conduct and reason to anticipate that injury may result therefrom.”

At page 1195, ibid., the author continues:

“Conversely, where a carrier permits conduct on the part of its passengers which may reasonably be foreseen to result in injury to other passengers, and such injury follows, the carrier will be liable.”

Many cases from many jurisdictions are cited in support of this annotation, which annotation discusses liability of a carrier for an injury to a passenger caused by the negligent or meddlesome conduct of a fellow passenger, but which excludes liability for an assault by one passenger on another, a subject with which we are not here concerned.

The prime test applicable to all carriers in cases of this type is the presence or absence of evidence of notice or knowledge on the part of the employee of the carrier. This means evidence showing that the employee knew or in the exercise of dne care should have known from all the facts and circumstances that danger of injury to the passenger was created or existed or was reasonably to be apprehended in time to take some reasonable action or precaution looking to the prevention thereof.

In the absence of such notice or knowledge, there is no liability, but in the presence of evidence of such notice or knowledge it becomes a question of fact for the jury whether a railway employee, a conductor or operator, exercised that degree of care required of him by law. If the evidence of such knowledge is present, it follows that the question of proximate cause likewise becomes a question of fact for the jury.

In the instant case the evidence shows that the bus operator and the policeman passenger were on friendly terms, the policeman, who was oft duty at the time, having formerly been a bus driver himself, and a fellow employee of the bus driver of the transit system. The evidence shows also they were both interested in guns, and it is admitted by both that the conversation was about the gun.

There is evidence tending to show, although in dispute, that the running conversation between the bus driver and his policeman friend was carried on from the time the latter boarded the bus until the time the gun exploded; that meanwhile the bus driver was continuing to operate the crowded bus, stopping to take on and discharge passengers, all of which was taking-place on a busy street during a heavy rush hour of traffic. There is evidence, although in dispute, tending to show that the gun was exhibited during the entire period of the conversation.

The policeman passenger admitted on cross-examination that he made a written report to his superior in the police department that at the time in question he was “showing” the gun to the transit bus driver when it exploded.

Under these circumstances, it is quite probable that a few words of warning to put the gun away would have been sufficient, there being ample time to give such warning if the jury believed the testimony of plaintiff, which by its general verdict and its answers to the interrogatories it evidently did. There is no evidence of such warning or admonition of any kind, but, on the contrary, an apparent acquiescence or participation in the course of conduct which led to the explosion and resulting injuries.

Upon consideration of the entire record, we cannot say that evidence was lacking to support the material allegations of the petition. Applying the settled principles of law to the evidence, we conclude that the trial court did not err in submitting the case to the jury and in overruling the motion for judgment non obstante veredicto.

Considering now the error claimed in admission in evidence of the company rule T (3) and the claimed error on the part of the court in charging the jury respecting this rule, we find that the record shows that the court admitted over objection of defendant a company rule reading as follows:

“T. Passengers in coach:

6 t # # *

“ (3) Operators should answer all questions politely and accurately but should never carry on a conversation with a passenger beyond the point of necessity.”

We think this assignment of error must be overruled, since the Supreme Court has established the law on this subject in the case of Cincinnati Street Ry. Co. v. Altemeier, Admr., 60 Ohio St., 10, 53 N. E., 300. In that case, which apparently has not been overruled or modified, the court held: .

“Rules adopted by a street railway company for the government of its employees in operating such railway are competent evidence, when relevant, in the trial of a cause for damages for personal injury caused by the negligence of the servants of such company.”

There can be no doubt under the facts of the instant case that the rule in question was adopted by the defendant for the government of the coach operators and was relevant to a determination of the issue of negligence on the part of the carrier, because undoubtedly the failure of its observance had a direct bearing upon the event which was responsible for the injury. If the employee of the carrier had recognized this rule and had complied with it, it is quite probable, if no.t certain, that the injury complained of would not have occurred. By its special verdict, the jury determined that the conversation had been carried on beyond the point of necessity. The evidence is clear that there was no necessity for the conversation, with its concurrent circumstances, and if it had not occurred it is probable, if not certain, that the policeman friend of the bus driver would not have exhibited the gun and that there would have been no accidental explosion thereof and no resulting injury either to the bus driver himself or to his passenger. We think that in view of the issues made by the pleadings and evidence, the company rule was relevant and its admission in evidence did not constitute prejudicial error.

Considering next the error claimed in charging the jury in respect of the company rule, the record shows that the jury was instructed as follows:

“Evidence has been offered with respect to a rule of conduct promulgated by defendant for the government of its operators in their relation to passengers with respect to the subject of conversation with said passengers. You are instructed that a violation of such rule, if the jury finds such to have been the fact, is not negligence as a matter of law, but such a regulation is admissible in evidence as bearing on the question of the want of ordinary care. It is for the jury to determine, if the jury finds that a violation of such rule has been proven by the greater weight of the evidence, whether or not such violation constitutes negligence. ’ ’

It should be noted that the court did not charge the jury that violation of the rule, if they found it was violated, would be negligence per se; but instead instructed that such regulation was admitted in evidence only as bearing on the question of want of ordinary care, and that it was a question of fact for the jury’s determination whether violation of such rule .constituted negligence.

We conclude that the rule having been properly admitted in evidence for the purpose indicated, the court did not commit prejudicial error in the charge thereon. Therefore, assignments of error Nos. 3 and 4 are overruled.

This leaves for our final consideration the claimed error relating to the interrogatories and the action of the trial court in overruling the motion of defendant for judgment on findings of fact returned in answer to the interrogatories notwithstanding the general verdict.

It is contended by counsel for defendant that the answers to the interrogatories are not findings which would justify the imposition of liability on defendant on the ground that the special findings are in conflict with the general verdict and irreconcilable therewith. No issue was raised, nor could there be, in respect to the answer to the first interrogatory where the jury answered in the affirmative as to the negligence of the defendant, because this harmonizes perfectly with the general verdict.

Section 11420-17, General Code, provides:

“When either party requests it, the court shall instruct the jurors, if they render a general verdict, specially to find upon particular questions of fact, to be stated in writing, and shall direct a written finding thereon. The verdict and finding must be entered on the journal and filed with the clerk.”

Section 11420-18, General Code, provides:

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

Our first question in considering this assignment of error is whether the answer to interrogatory No. 2 is inconsistent with the general verdict within the meaning of Sections 11420-17 and 11420-18, General Code, as above quoted.

It has been held that special findings cannot override the general verdict unless they are in irreconcilable conflict with it. Prendergast v. Ginsburg, 119 Ohio St., 360, 164 N. E., 345; Davis v. Turner, 69 Ohio St., 101, 68 N. E., 819; Chris Holl Hardware Co. v. Logan Brick Supply Co., 84 Ohio St., 455, 95 N. E., 1144. The conflict between the general verdict and special findings must be clear and irreconcilable to warrant setting aside the general verdict. Ohio Fuel Gas Co. v. Ringler, 126 Ohio St., 409, 185 N. E., 553.

In determining whether irreconcilable conflict exists between the general verdict and special findings, the court does not weigh the evidence but considers only the pleadings, issues and special and general findings. Board of Commrs. of Mercer County v. Deitsch, 94 Ohio St., 1, 113 N. E., 745; Fox v. Conway et al., Rcrs., 133 Ohio St., 273, 13 N. E. (2d), 124.

The Supreme Court in two comparatively recent cases, has reaffirmed the principles of law enunciated in the earlier cases and has marked clearly and unmistakably the path to be followed when considering’ special findings of fact of a jury in relation to its general verdict.

In the case of Klever v. Reid Bros. Express, Inc., 151 Ohio St., 467, 86 N. E. (2d), 608, it was held, as disclosed by the first paragraph of the syllabus:

“It is the duty of a court to harmonize, if possible, a special finding of a jury with its general verdict. ’ ’

In the case of McNees v. Cincinnati Street Ry. Co., 152 Ohio St., 269, 89 N. E. (2d), 138, it was held, as disclosed by the first paragraph of the syllabus:

“The answers of a jury to special interrogatories will not authorize a judgment different from that authorized by a general verdict, where such answers can be reconciled with the general verdict. (Davis v. Turner, 69 Ohio St., 101, and Ohio Fuel Gas Co. v. Ringler, 126 Ohio St., 409, approved and followed.) ”

With these principles in view, we proceed to analyze the relationship between the general verdict and the finding of fact in answer to special interrogatorv No. 2.

It is first to be considered that the general verdict in favor of the plaintiff was a finding for her on the issues raised by the pleadings and the evidence. We have hereinbefore summarized the allegations of the petition making it unnecessary to detail the same at length here. Suffice it to say that the specifications of negligence include and emphasize the claim that the exhibition of the revolver and its discharge occurred during a running conversation with the bus operator. The charge of negligence on the part of the operator as employee of defendant, under the doctrines of respon deat superior, in engaging in an unnecessary conversation with a passenger, is clearly raised by specifications of negligence two and four as follows:

“2. In permitting, suffering and allowing a passenger in a public motor vehicle to display, handle and demonstrate a firearm to the bus operator, when defendant knew, or in the exercise of the highest degree of care should have foreseen that in all probability a firearm would be discharged to the injury of other passengers, and the plaintiff'in particular.”

“4. Defendant was negligent in continuing to operate said bus at a time when a gun was being exhibited to him for plaintiff avers that said gun thereby was discharged due to a combination of the uneven movement of the bus and the manner in which the passenger was grasping the gun. ’ ’

The denial in the answer of defendant created the issues on this subject. The jury answered in part: “Violation of company rule.”

We find no reference to “company rule” in the pleadings, and this sentence standing alone would have little or no meaning when considered in relation to the pleadings alone. On the other hand, it is not in anyway inconsistent with the general verdict. However, more light is thrown upon the subject when we consider the second sentence of the answer to the interrogatory, viz., “ Negligence in driver having unnecessary conversation with passenger and paying attention to conversation of passenger.” (Emphasis added.)

This answer certainly points up the issues raised in the petition generally, and specifications two and four particularly, where it is alleged that the bus operator was negligent in “permitting, suffering and allowing a passenger * * * to display, handle and demonstrate a firearm to him” and was negligent “in carrying on a running conversation with a gun-toting passenger, thereby wholly failing and neglecting # * 9 9

While it is not within the province of this court to consider and weigh the evidence in determining whether there is irreconcilable conflict between the general verdict and the special findings, we may eonsider that an issue was raised by the evidence as well as by the pleadings where the trial court admitted into evidence the company rule and charged on that subject.

Following the principles of law laid down by the Supreme Court that if it is' reasonably possible to do so, special findings of a jury must be harmonized with the general verdict, we have no difficulty in reaching the rather obvious conclusion that there is no irreconcilable conflict, but on the contrary, complete harmony between the general verdict and special findings Nos. 1 and 2. Undoubtedly, special finding No. 2 leaves something to be desired in the way of completeness, because it failed to include all the elements of fact raised by the pleadings and the issues. The question presented practically called for a summation of all the elements of negligence contained in the issues the jury was called upon to determine. In the main, these issues were decided by their general verdict. It is naturally difficult for a jury of laymen to answer a question with a nice discriminating sense of logic requiring a certain degree of legal acumen when they are obliged to compress a finding of fact within the narrow limits of a question such as was here presented. Apropos of this phase of the subject, the comment in 39 Ohio Jurisprudence, 1089, Section 363, may be considered pertinent:

“Juries are usually composed of men who are not learned in the forms of law or exact in their use of language, and all reasonable intendments should be made in order to sustain their verdicts, when the validity of such verdicts is challenged on merely technical grounds.”

As stated in the beginning, the facts of this case are novel, so much so that counsel have looked in vain for a completely similar factual situation, but this should not make it too difficult to apply settled principles of law.

For the reasons generally stated, we find no errors prejudicial to the rights of defendant. The judgment of the Common Pleas Court is, therefore, affirmed.

Judgment affirmed.

Thompson, J., concurs.

Skeel, P. J.,

dissenting. The facts have been fully stated in the majority opinion and need not here be repeated. The only basis upon which the plaintiff would have a legal right to recover against the defendant must be founded upon her claims that the defendant was negligent in failing to protect her against the unlawful discharging of a firearm by a fellow passenger. The allegations of negligence are:

1. The defendant failed to furnish plaintiff with safe passage on its public conveyance by allowing and permitting a passenger to handle and exhibit a gun in such a manner as to be discharged.

2. In permitting a passenger to display, handle and demonstrate a gun to the operator and should have foreseen in all probability it would be discharged injuring plaintiff.

3. In failing to immediately prevent by word or action the display of a firearm in said bus when the operator should have known and anticipated that revolvers are likely to go off at any time to the hurt of passengers in the vicinity.

4. In negligently carrying on a running conversation with a gun-toting passenger thereby failing and neglecting to consider and have an awareness of the danger to the plaintiff.

5. In negligently continuing to operate said bus at a time when a gun was being exhibited to him (the operator) it being averred that the gun was discharged due to a combination of the uneven movement of the bus and the manner in which the passenger was grasping the gun.

There is no dispute in the evidence that a passenger (a city policeman) did have in his possession a 32 caliber Colt automatic revolver and that as he was showing it to the bus operator it was discharged. The element of time as to when the passenger got on the bus and whether or not the gun was exhibited and discharged before the operator in the exercise of the highest degree of care consistent with the operation of the trolley bus could do anything to prevent the passenger from continuing in conduct that might result in injury to other passengers, is in considerable dispute.

• No consideration is given, nor was the attention of the jury called to an equally important question. The passenger who had the pistol was a police officer experienced in the care and use of firearms. His possession of a firearm was entirely within the law. His personal conduct, other than attempting to display the automatic pistol to the operator, is not drawn into question by the pleadings or the evidence. To what extent, therefore, under the admitted facts there existed a hazard against which the operator should have acted or had a right to act was not given any consideration, although it presented an important jury question. A judgment for the plaintiff which gave no consideration to this question or which was very weak on the time element was, therefore, not supported by sufficient evidence. The amount of the verdict was also excessive. The plaintiff’s evidence shows conclusively that she did not lose a single day from her work because of the alleged injury said to have been occasioned by the accidental discharge of the pistol.

Coming now to the question of the consistency of the general verdict with the answer to the second interrogatory. Before setting forth the interrogatory it should be noted that objection was interposed to the introduction of the company rule, which objection should have been sustained by the court, and the overruling of such objection constituted prejudicial error.

Proceeding upon the record, however, as it now stands the interrogatories were as follows:

“1. Do you find from the evidence in the case that the coach driver was guilty of any negligence?”

To which interrogatory the jury answered: “Yes.”

“2. If your answer to Interrogatory No. 1 is in the affirmative, then answer No. 2. State in which respect that negligence consisted?”

To which interrogatory the jury answered: “Violations of company rule. Negligence in driver having unnecessary conversation with passenger and paying attention to conversation of a passenger.”

Prom the foregoing answers the jury to be consistent should have found against the plaintiff for the reason that the violation of a rule prohibiting unnecessary conversation with a passenger could not be the proximate cause of the plaintiff’s injuries sustained because of the failure to prevent a passenger from discharging a firearm. The verdict is, therefore, inconsistent with the answers to the interrogatories, and under the provisions of Section 11420-18, G-eneral Code, if the general verdict is inconsistent with the special findings, the court is bound by the special findings. The violation of the company rule not being or claimed to be a proximate cause of plaintiff’s injuries, the judgment of the court should have been for the defendant.


author: Per Curiam.

text:
    Meineke et al., Appellants, v. Schwepe et al., Appellees.
    (No. 215
    Decided April 24, 1952.)

      Mr. David H. Stevenson, for appellants.

      Messrs. Maple é Maple, for appellees William H. Schwepe and Bailey-Murphy Company.

      Mr. Roland Carey, for appellee Earl Wiederhold.

      Mr. Charles M. Leslie, for The Second National Bank.

      Messrs. Graydon, Head & Ritchey, for Fifth-Third Union Trust Company.
   Per Curiam.

This is an appeal on questions of law and fact from an action for specific performance of a contract, in which action defendant Schwepe seeks damages for breach of the same contract.

The defendant Schwepe owned a farm in Harlan township, Warren county, Ohio. This farm was encumbered by certain mortgages and was in the possession of the defendant Wiederhold under an agreement with Schwepe, whereby they divided the net income from its operation. The duration of the tenancy is somewhat in dispute, but, for the reason hereinafter noted, we are of the opinion that as against the plaintiffs, Wiederhold is estopped to assert a right of tenancy after March 1, 1949.

Schwepe employed The Bailey-Murphy Company as auctioneers and real estate agents to conduct a public sale of bis farm with certain growing crops thereon. This public auction took place on December 14, 1948, and the plaintiffs’ bid of $19,712, being the highest and best bid, the auctioneers declared them to be the purchasers. Both Schwepe and Wiederhold were present at the auction which took place on the farm that was being sold. Both before and at the time of the auction it was announced that possession would be given on March 1,1949. The defendant Wiederhold made no denial, but, in fact, before the sale, on more occasions than one, expressly agreed that his right terminated on March 1, 1949. We are clearly of the opinion that his conduct estopped him from asserting any greater right as against the plaintiffs, who relied on his statements and conduct.

Immediately after the auction the parties repaired to the farmhouse, where the contract was reduced to writing and signed by the parties. A printed form was used. This contract is as follows:

“Confirmation of Sale

“This memorandum of sale and agreement, made and entered into at Morrow, Ohio, this 14 day of December, 1948, by and between W. H. Schwepe, hereinafter called the seller, and Anthony C. and Margaret E. Meineke, hereinafter called the buyer, Pleasant Plain, Ohio.

“Witnesseth: That whereas, the seller has offered for sale and sold at public auction through The Bailey-Murphy Company the following described premises:

“Known as the W. H. Schwepe farm of 224 acres, more or less, located 3 miles northwest of Blanchester, near Black Hawk on state route 123 in Harlan township, Warren county, Ohio, together with all appurtenances and hereditaments thereunto belonging, but subject to all legal highways and existing easements, and

“Whereas, the buyer has this day bid in at public auction and has purchased all of said property for the sum of $19,712. (224 A. at 88.00 per A.)

“Now therefore, it is agreed as follows:

“1. That buyer agrees to pay the sum of $5,000 upon execution of this agreement, the receipt of which is hereby acknowledged by the seller, and $14,712 on delivery of deed. The balance of the purchase price in the sum of $......shall be paid as follows:

“2. The buyer agrees to execute notes for said deferred balance, and mortgage to secure the same giving-seller a first lien on said property, said notes bearing interest at ____ °/o per annum from ...... payable semi-annually on......and......of each year.

“3. The seller agrees to pay taxes and assessments due and payable to and including......the first half 1948 taxes and assessments.

“4. The seller agrees to maintain fire and windstorm insurance covering buildings on said premises until delivery of deed.

“5. The seller agrees to furnish satisfactory evidence, showing good and merchantable title to said premises.

“6. The seller agrees to execute and deliver a good and sufficient warranty deed with release of dower on or before March 1st, 1949.

“7. The seller agrees to give possession of said property on or about March 1st, 1949. Purchaser is to receive one-half interest in 33 acres of growing wheat and 10 acres of growing rye.

“In witness whereof, the parties have hereunto set their hands this 14 day of Dec. 1948.

“Emmet H. Bailey W. H. Schwepe

Anthony C. Meineke

Margaret E. Meineke.”

At the time this contract was prepared and signed, a discussion took place as to the payment of the $5,000 before the title to the farm was cleared. This discussion was resolved by placing the amount in the hands of the auctioneer to hold. Accordingly, the auctioneer prepared a check and it was signed by Meineke. It is dated December 14, 1948, and it was honored the following day by the bank upon which it was drawn. Subsequently, the auctioneer paid the amount to the clerk of the Common Pleas Court, to abide the result of this litigation.

A reading of the testimony in this record forces the conclusion that the plaintiffs were at all times ready, willing, able, and anxious to perform their obligation, and that the defendant soon disclosed a reluctance to perform. He finally used his own breach, in that, as he claimed, he was unable to deliver possession as an excuse for repudiating the contract. Even if Wiederhold had a right to possession after March 1, 1949, as against Schwepe, which is doubtful, he was estopped as against the plaintiffs to assert such right. Furthermore, if the existence of this lease constituted a defect in Schwepe’s title, which precluded him from performing his contract to give a clear title, it could be equalized by a reduction of the purchase price.

Later, other reasons were also assigned. One of the reasons advanced for the refusal of relief is that the plaintiffs did not make a legal tender of the balance of the purchase price by March 1, 1949. They had already paid $5,000 on the purchase price to defendant Schwepe’s agent and had made various efforts to get Schwepe to meet them so that the balance could be paid upon delivery of the deed, but Schwepe evaded. As late as March 8, 1949, Schwepe, through his attorney, offered an excuse that the premises were quarantined, stating that it would be several weeks before anything could be done, and intimated that he would'be unable to deliver possession. It was not, however, until March 17, 1949, that he tentatively repudiated the contract in a letter in which he construed his letter of March 8th as a notice of repudiation.

This action was filed on May 21, 1949, which certainly cannot serve as a predicate for a defense of laches.

In 49 American Jurisprudence, 55, Section 42, it is stated:

“It is a well-established general principle in equity that time is not ordinarily regarded as of the essence of contracts unless it is so stipulated by the express terms thereof or it is necessarily to be so implied from the character of the obligations assumed, and this is especially true as regards executory contracts for the sale of land which are considered in equity as vesting the equitable title in the purchaser subject to the claim of the vendor for the purchase money. Therefore, in the ordinary cases of sales of estates, the general object being to make a sale for an agreed sum, the time of payment is regarded in equity as formal, and as meaning only that the purchase shall be completed within a reasonable time, and substantially according to the contract, regard being had to all the circumstances. * * *”

“* * ® The purchaser does not ordinarily by a failure to make payment at the stipulated time lose his right to compel the vendor to convey, for compensation for the delay may be easily adjusted by allowing interest * * *

Of course, time may be made the essence of a contract by express stipulation, or by clear implication from the circumstance. We find neither in this case.

Another objection urged by defendant Schwepe is that the contract is too indefinite to be specifically performed in that the description does not sufficiently identify the real estate. This is urged notwithstanding his cross-petition in which he seeks damages for having been fraudulently induced to enter into the contract.

That the description meets the requirements of the law is clear. Schwepe testified that he owned no other real estate in Harlan township, Warren county, Ohio. Under such circumstances, the location and identity of the subject matter could be easily ascertained by the description in the contract alone. On this subject, see 49 American Jurisprudence, 134, Section 115.

On the whole case, we find that the plaintiffs are clearly entitled to specific performance as against Schwepe, with an abatement of the purchase price because of his defaults, and are entitled to a decree as against both Schwepe and Wiederhold, awarding possession of the premises to them.

Upon the subject of abatement and adjustment of equities, we find as follows:

The plaintiffs are entitled to (1) on account of one-half interest in the growing crops, $700; (2) reasonable rental value of the farm from March 1, 1949, at $2,000 per annum to date of delivery of possession, the amount to March 1, 1952, being $6,000 — total $6,700.

The plaintiffs should be charged with the unpaid balance of the purchase price, $12,712, and with interest at the prevailing rate in the community, and each party should be credited for any taxes paid on the one hand on any income from the unpaid balance of the purchase price, and, on the other hand, taxes proven to have been paid on the farm.

A decree may be prepared in accordance with this opinion.

Decree accordingly.

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


author: Savord, J.

text:
    Gladieux et al., Appellees, v. Parney et al., Appellants.
    (No. 4558
    Decided November 19, 1951.)

      Messrs. Winchester & Winchester, for appellee Ada Gladieux.

      Messrs. Ohlinger', Koles, Wolf <$> Flues, for appellee William H. Hasselbach.

      Mr. George 8. Bradley and Mr. Charles E. Ide, Jr., for appellants.
   Savord, J.

This is an appeal on questions of law from a judgment of the Probate Court of Lucas County, Ohio.

On February 23, 1950, the appellees, acting in their representative capacity, filed their petition for the construction of the will and codicil of Cyril Gladieux, deceased, seeking instructions of the court with respect to certain questions presented as a result of claimed ambiguities in the will and codicil. The answer of appellants was expressive of the construction which they considered should be accorded the will,and codicil. Counsel for all parties succeeded in attaining agreement as to answers to eight of the submitted questions, and the conclusions thus reached were approved by the Probate Court and expressed in its judgment.

The remaining questions have their origin in the fact that at the time of the death of Cyril Gladieux there was on deposit with the United Savings & Loan Association the sum of $3,423.84, the account being designated, “Cyril Gladieux or Ada Gladieux, survivorship account”; with the First Federal Savings & Loan Association the sum of $7,080.07, the account being designated, ‘ Cyril and/or Ada Gladieux, ’ ’ and in a safe deposit box there were 15 series E bonds, with a maturity value of $100 each, all made payable to Cyril Gladieux or Ada Gladieux.

The petition sought answers to the following questions :

(a) Does the codicil affect the legal title to such deposits and bonds which would otherwise vest in the survivor, Ada Gladieux, in the absence of such codicil?

(b) If the legal title to such bonds and deposits passes to the survivor Ada Gladieux, does the codicil affect the equitable title thereto and require Ada Gladieux to hold the same in trust under the terms and provisions of the trust provided in Items IV and V of such last will and testament?

(c) Should said bonds and deposits be included by the executor as a part of the inventory in the estate of Cyril Gladieux?

(d) Is Ada Gladieux the absolute owner of said property and the codicil without effect?

The cause was submitted to the Probate Court upon a stipulation substantially constituting an agreed statement of facts, and such stipulation is the sole matter comprehended within the bill of exceptions in this case. The pleadings admit that, save for its formal parts, the codicil to the will of Cyril Gladieux reads as follows:

“My savings deposits and my United States bonds are in my name and that of my wife. That is money on deposit that belongs entirely to me, and the bonds also represent my own money. I am sure my wife would not want any of this nor would I want any of her funds and I direct the said deposits and the proceeds from the said bonds be placed in the body or residue of my estate and be divided as specified in said Item V of my said will.”

The Probate Court concluded, and rendered judgment accordingly, that the codicil did not affect the legal title to the accounts and bonds; that Ada Gladieux did not hold same as trustee; that the accounts and bonds belonged to Ada Gladieux absolutely; and that the accounts and bonds should not be included in the inventory of the estate of Cyril Gladieux.

No citation of authority is required in support of the conclusion of the Probate Court with respect to the effect of the codicil. It finds its foundation in sound principle and logic. At best, the codicil is but a self-serving declaration and can not be accepted as in any wise tending to establish the actual ownership or title to the accounts and bonds.

It is apparent from the record that Cyril and Ada Gladieux were married on November 12, 1928; that at that time Ada Gladieux was unemployed and, other than performing the ordinary household duties, she continued so during the entire period of the marriage; that at the time of her marriage Ada Gladieux owned property of a value between $5,000 and $9,000; that from the proceeds of the sale of certain real estate belonging to her mother, she received approximately $1,500, which remained in her possession at the time of the stipulation; that as of July 1950, Ada Gladieux was the owner of accounts in various institutions and of certain certificates of the approximate value of $17,000, and in addition thereto undivided one-half interests in certain real estate mortgages; that she had made numerous deposits in and withdrawals from such individual bank accounts; and that from time to time Ada Gladieux made certain contributions toward defraying the cost of household furnishings and expenses.

The record discloses further that the funds deposited in the accounts and employed in the purchase of the bonds represented monies received by Cyril Gladieux by way of income from investments, rents or employment; that none of such money accrued from any gifts or bequests received by Ada Gladieux; that Ada Gladieux never made any deposits in the particular accounts; that while she had authority to do so, she made but one withdrawal; and that, at the time of his death, Cyril Gladieux owned real and personal property of an approximate value of $45,000.

With a situation thus created and existing at the time of the death of Cyril Gladieux, we are confronted with the question whether Ada Gladieux has proven by sufficient evidence her absolute right to the deposits and bonds in their entirety. We are convinced that she has with respect to the deposit with the United Savings & Loan Association, and to that extent the judgment of the Probate Court was correct and should be sustained.

Directing consideration to the deposit in the First Federal Savings & Loan Association and the bonds, we recognize that though the evidence may be sufficient to establish joint ownership of this particular account, and the bonds, it does not follow that it is sufficient to establish a survivorship right in Ada Gladieux.

The right of survivorship has its foundation in the contractual relationship of the parties. Foraker, Exr., v. Kocks, Admx., 41 Ohio App., 210, 180 N. E., 743, is expressive of the principles which correctly apply to the instant case. That case recognizes that joint tenancy with incidental right of survivorship does not exist in Ohio; ‘ ‘ that nevertheless parties may contract for joint ownership”; and that even though joint tenancy exists, survivorship is not presumed. It, therefore, follows that before a deposit or other property can be accepted as possessing the survivorship aspects, such survivorship right must be the product of definite contract. The intention to create the survivorship right must be made manifest either by the method employed in designating the account or by appropriate notation or declarations, comprehensive enough in character to make clear the intention of the parties.

In Cleveland Trust Co. v. Scobie, Admr., 114 Ohio St., 241, 151 N. E., 373, 48 A. L. R., 182, and all the later cases wherein the law as stated in the Scobie case has been followed, it is to be observed that the word, “survivor,” has been used or a contract or declaration has existed with respect to the deposit or other asset involved. Therein we find the difference between the instant case and such other authorities.

The most liberal application of the doctrine of judicial notice is not of sufficient force to require a court to take notice of the vast number of federal and state regulations, infinite in variety and subject to frequent amendment. Therefore, in the absence of proof as to the regulations, indicating the conditions of issuance, transfer and payment of the bonds of this particular series, the foregoing conclusions apply with equal force to the 15 series E bonds. Upon proof that such regulations provide for the creation of a contract of survivorship between the owners of such bonds and that the owners acquired the bonds with knowledge of and intent to create as between themselves a survivor-ship agreement pursuant to such regulations, the right of the survivor to the proceeds of the bonds would be sufficiently established. In the absence of such proof, the right of survivorship does not exist. This for the reason that a contract of survivorship is not, as a matter of law, presumed. Foraker, Exr., v. Kocks, Admx., supra.

The record fails to present sufficient evidence to warrant the conclusion that a contract of survivorship existed between Cyril Gladieux and Ada Gladieux with respect to the First Federal Savings & Loan Association account and the series E bonds, and we are therefore compelled to conclude that the judgment of the Probate Court with respect to the First Federal Savings & Loan Association account and the series E bonds is manifestly against the weight of the evidence and in these particulars must be reversed. The judgment of the Probate Court with respect to the United Savings & Loan Company account is affirmed.

Judgment accordingly.

Fess and Conn, JJ., concur.


author:
Hildebrant, P. J.
      Boss, J.,

text:
    In re Estate of Daniel: Department of Taxation, Appellee, v. The Fifth-Third Union Trust Co., et al., Exrs., et al., Appellants.
    (No. 7536
    Decided March 17, 1952.)

      Mr. C. William O’Neill, attorney general, and Mr. J. M. Burtch, Jr., for appellee.

      Mr. Walter K. Sibbald, for appellants.
   Hildebrant, P. J.

This appeal on questions of law is from a final order of the Probate Court, holding that payment by the trustee of the proceeds of the profit sharing and pension trust of The Early & Daniel Company, credited to the account of the decedent, made to his widow and designated beneficiary, constituted a taxable succession under Section 5332 3 (b), General Code, as a transfer intended to take effect in possession or enjoyment at or after death.

The pertinent part of Section 5332, General Code, reads:

“A tax is hereby levied upon the succession to any property passing * * * to or for the use of a person * * * in the following cases:

( * * *

“3. When the succession is to property from a resident * * * by deed, grant, sale, assignment or gift, made without a valuable consideration substantially equivalent in money or money’s worth to the full value of such property:

(* * *

“(b) Intended to take effect in possession or enjoyment at or after such death.”

The broad, general purpose of the trust is expressed in the modification agreement of May 28, 1947, as being to provide certain financial protection to employees after age* 65, their dependents and the objects of their bounty.

Division II provides for yearly contribution to the fund, solely by the company, and for participating compensation by each of the employee participants by individual accounts in the aggregate fund. Paragraph 5 provides:

“5. Company to have no interest in trust funds. Upon payment to the trustee by the company of any sums to be paid by the company hereunder, all rights or claims of the company of any nature or description thereto shall terminate, and the company shall have no rights, claims or demands whatsoever upon said trust fund or any cash or property contributed thereto except the right to a proper application thereof to and for the sole and exclusive benefit of the participating employees by the trustee under the provisions hereof.”

Division III, in providing for modification, provides:

“ * * * and provided further, that the vested' rights of any participating employee shall not be affected thereby.”

Division V specifically requires the trustee to keep a separate account of the respective shares of each participant allocated to him.

Division VI, paragraph 5, provides for distribution on death and designation of beneficiaries as follows:

“Each participating employee shall have the right to designate, on forms furnished for that purpose by the advisory committee or the trustee and filed with the trustee, a beneficiary or .beneficiaries to receive any amounts due to him hereunder in the event of his death. Such beneficiary designations, in order to be binding and operative, must be accepted or acknowledged in writing by the trustee, and they shall in no event include any general creditor of the employee.

“Subject to the foregoing limitation, the designated beneficiary or beneficiaries may be changed at will, in the same manner and under the same procedure as the initial beneficiary designation is made. In the event of the death of any participating employee, the trustee shall pay to his named beneficiary, upon proper proof of death, his share of the trust assets, including any policies or contracts on his life as shown by the balance in his individual account. Should the participating employee fail to designate a beneficiary, or should the beneficiary predecease the employee, the aforementionéd payments are to be made to the executor or administrator of the estate of the deceased employe.”

It has been suggested that since profit sharing and pension trusts are a comparatively new development, the question of the application of the inheritance tax laws thereto is new and novel in character with a dearth of authority in Ohio and elsewhere thereon. Conceding such trusts to be a recent development, we call attention to the fact that the inheritance tax laws have been applied to numerous transfers intended to take effect in possession or enjoyment at or after death, passing otherwise than by will or the statutes of descent and distribution.

Appellant’s contention is based upon a conception that decedent had no ownership in the fund at or prior to his death, so that the designation by him of a beneficiary did not amount to a “succession” within the meaning of the statute.

Appellant claims thjs lack of ownership is shown by Division VI, paragraph 7 of the trust agreement, which is as follows:

“Benefits Inalienable. No participating employee shall have any right in any manner to sell, assign, alienate, anticipate, encumber or pledge, either by voluntary or involuntary act of such employees or by operation of law, his beneficial interest in the trust prior to actual payment or delivery thereof to him. Likewise, such benefits shall not be subject to attachment, execution or garnishment under legal process prior to such actual payment or delivery.”

This court views the above quoted provisions simply as a spendthrift provision designed to protect the purpose of the trust and not inconsistent with ownership by the participant, called the beneficiary in the language of the trust, and effective merely to postpone participants’ right to assume all the incidents of ownership which would accrue at age 65, including possession and control of the accumulated proceeds or an absolute right thereto, subject to the payment terms of the trust agreement.

Appellee cited below and in this court the case of Dorsey Estate, 366 Pa., 557, 79 A. (2d), 259, affirming the case as reported in 69 Pa. D. & C., 327, wherein it is stated in the syllabus:

“Where it appeared that a pension fund was composed of contributions from the wages of employees and contributions from the profits of the employer and that an employee’s share of the entire fund belonged to him during his lifetime and could be withdrawn by him under specific conditions, or disposed of by him at his death, it was held that the portion of the deceased employee’s share of the fund which represented the employer’s contributions was subject to transfer inheritance tax under the Act of June 20, 1919, P. L. 521, as amended. ”

Appellant would distinguish Dorsey’s Estate from the case at bar on the ground that the Pennsylvania decedent had the right during his lifetime to withdraw the funds and property credited to him. However, both Pennsylvania Courts in both the syllabus and opinion in each report refer not alone to the right of withdrawal, but, in the alternative, to the right to dispose of the fund at death, as the basis for the decision. It is stated in the Pennsylvania Supreme Court report, at page 559:

“It is the contention of appellant that in designating her as beneficiary decedent was merely exercising a power of appointment over that portion of the share of the fund credited to him which represented contributions by the company. Such a contention would be valid only if the company’s contributions continued to be owned by the company and not by decedent, because obviously a power of appointment can exist only with reference to another’s property and not one’s own.”

The contention is made here that decedent had no ownership in or right to alienate the amount credited to him in the fund, and did not, by designating a beneficiary, bring about a succession to property by “deed, grant, sale, assignment or gift.”

We point out that here the company had specifically relinquished all ownership in the fund. The trustee held bare legal title for the purpose of the trust and it seems to the court that the participating employees holding the only beneficial interest in the fund have to be the owners thereof at all times, as surely they will be on the happening of the stipulated events, inevitable with the running of time, which destroy the stipulation on postponement of exercise of dominion over and all the incidents of ownership in accordance with the terms of the trust.

Under the facts here, designation of a beneficiary by the participating employee to receive his interest in the fund maturing on his death is ambulatory in character. The participant may change the designation, or revoke it entirely, and, on death, without a designated beneficiary, by the terms of the trust, the participant’s share becomes a part of his estate, subject to disposition by will or the laws of descent and distribution. We, therefore, consider that the participating employees have at all times had a vested interest in the accumulating fund, postponed only as to enjoyment and use by the terms of the trust, and that on death, the postponed rights of a participant become fixed, the prior designation of beneficiary loses its ambulatory character, and it becomes effective to require transfer and payment by the trustee of participant’s accumulated interest in the fund to the designated beneficiary who succeeds thereto.

In 38 Ohio Jurisprudence, 1244, Section 428, with reference to the nature of the Ohio Inheritance Tax, it is stated:

“The inheritance or succession tax, formerly known as the collateral inheritance tax, is not a tax upon the estate or upon the right to transmit, but is one upon the succession or right and privilege to receive; in other words, the Ohio inheritance tax is a succession tax on the beneficial interest of each heir, legatee, devisee, or other beneficiary of a decedent’s estate.”

In Tax Commission, ex rel. Price, Atty. Genl., v. Lamprecht, Admr., 107 Ohio St., 535, 140 N. E., 333, 31 A. L. R., 985, it is stated in the syllabus:

“The Ohio state inheritance tax is a succession tax on the beneficial interest of each heir, legatee, devisee, or other beneficiary of a decedent’s estate, and in determining the value of the succession of any such beneficiary the amount of the federal estate tax should first be deducted, like other debts and expenses of administration.”

Definitions contained in Section 5331, General Code, are:

“1. The words ‘estate’ and ‘property’ include everything capable of ownership, or any interest therein or income therefrom, whether tangible or intangible, and, except as to real estate, whether within or without this state, which passes to any one person, institution or corporation, from any one person whether by a single succession or not.

“2. ‘Succession’ means the passing of property in possession or enjoyment, present or future.”

Under the broad definitions and all-inclusive lan-' guage of the inheritance tax statutes as construed by the Supreme Court, it seems clear that appellant should be classed as any other beneficiary of decedent’s estate within the intent of the Legislature in enacting the statutes here under consideration, and that payment to her of a participant’s interest in the fund as designated beneficiary is a taxable succession.

The judgment is affirmed.

Judgment affirmed.

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

Boss, J.,

dissenting. I have little quarrel with the law announced in the opinion of the majority of the court, but I do dissent from the application of that law to the facts presented in the record.

The majority opinion is predicated, not upon the facts as they existed at the time of the death of the decedent, but upon contingencies, possibilities, and alternatives, which could have existed but did not.

In the first place (and this must be constantly borne in mind in considering such facts as existed at the death of the decedent), legislative action constituting the imposition of a tax is to be strictly construed and closely limited to the area specifically covered by such legislation.

In Akron Transportation Co. v. Glander, Tax Commr., 155 Ohio St., 471, 99 N. E. (2d), 493, at page 476 of the opinion, it is stated:

‘‘ The decision of this question by the court is limited to an interpretation of the statutes involved. The court may not so construe the statutes, which are in effect taxing statutes, as to bring within the classifications established taxpayers not covered by the language thereof. The rule is well established that statutes imposing a tax will be construed strictly against the state and liberally toward the taxpayer and in no such instance will the language employed be extended by implication beyond its clear import.”

What was the situation at the death of decedent when the “succession” is supposed to have occurred upon which the tax is levied?

Until decedent reached the age of 65, he had no right in the trust fund other than to name some person who should receive a fixed interest in such fund, created by the company and vested in the trustee. The whole situation resulted in a contractual status between the company and the trustee, with contingent provisions for the benefit of the decedent, which never occurred.

It is not to be denied that decedent could have taken action which would have resulted in the application of the succession tax, or, on the other hand, by discharge from his employment for cause, lost all connection with such fund.

He could not name a creditor as the person to receive a part of the fund, nor could he name any person without the consent of the trustee. He had contributed not one cent to the fund. He was not a party to the contract. He was definitely an outsider.

Other contingencies could have occurred which would have brought the taxing statute into operation. The person designated might have predeceased the decedent. The decedent might have failed to designate. In each of those cases payment would be made to his estate.

However, when all these contingencies, which never occurred, are eliminated, we find the decedent died without the slightest interest of any kind in the trust fund, for when he died the only thing he did possess, the right to name a person to receive his interest in what the company had given the trustee, manifestly died with him.

No property, even within the loose definitions of the statute, passed to anyone at his death.

When the decedent named the person who should be paid a sum out of the trust fund, and the trustee agreed to such designation, that person became the equitable owner of that amount, which increased as time went on under terms of the contract. From then on, the contractual relationship was between the company, the trustee, and the named recipient of an interest in the fund, except the right to receive the interest therein upon the employee’s reaching age 65. The death of the decedent was merely the time when the trustee should give the named person that which belonged to such person.

If the power of revocation, which was the sole vestige of any right left in the decedent, can be considered property, then truly the statutes involved are most liberally construed.

If succession is to be predicated upon the right of the named person to receive the fund dependent upon the death of decedent, this ignores the language of the statute — succession is to property from a resident. Nothing passed from the decedent to the named person at decedent’s death. This fact appears so obvious that it seems little more should be said. An interest in a fund, created by the company, title to which fund was transferred to a trustee, became the property of the named person upon designation by decedent, and upon the death of decedent passed from the trustee to such named person.

The factual situation existing in the Pennsylvania case, regardless of what was said by the court deciding it, is easily distinguished from that here considered. In the Pennsylvania case, the decedent, up to the time of death, had a constant right to receive at his option a part of the fund. And more important, the trust fund in the Pennsylvania case was composed not only of contributions by the company, but of deductions from the wages of the decedent. In any event, the court is not bound by such decision.

The Legislature has seen fit to exclude insurance proceeds payable to designated beneficiaries from the operation of the succession tax. Although the instant fund may not be classed as insurance, still the policy of the state is apparent in freeing such successions from the application of the tax. There would be more reason for including insurance proceeds in the succession tax than there is for construing the statutes here involved as applicable to the instant profit sharing and trust fund, for insurance is in many eases created and continuously augmented by the, person who names a beneficiary thereof.

My conclusion, therefore, is that not only do the statutes relied upon fail to justify the tax, but that, observing the policy of the Legislature in the matter of insurance, it was not intended that the instant situation should be included within the purview of the statutes here considered. Hence, I think judgment should be rendered in favor of appellant.


author: Thompson, J.

text:
    Castrovinci, Appellant, v. Castrovinci, Appellee.

      (No. 22501
    Decided October 13, 1952.)

      Mr. Paul Mancino, for appellant.

      Mr. Austin T. Klein, for appellee.
   Thompson, J.

This is an appeal to this court on questions of law from a judgment of the Municipal Court of Cleveland, sustaining a demurrer by defendant to the first cause of action of a petition filed by plaintiff, a tenant of defendant, to recover certain alleged overcharges of rent for the period from October 1, 1946, to June 1950. By a second cause of action it was sought to recover treble damages for alleged overcharges from July 1, 1950, to May 31, 1951. The suit was commenced on July 3, 1951, under the terms of the Federal Rent Control Act of 1947.

Defendant’s, demurrer to the first cause of action was based on the provisions of that act, particularly Section 205 thereof, prescribing a one-vear limitation for the bringing of certain suits under the act. The trial court having sustained defendant’s demurrer and plaintiff desiring to plead no further with respect thereto, the court rendered judgment for defendant on the. first cause of action. The suit is still pending in the Municipal Court on the second cause of action, the appeal on questions of law to this court being with reference to the action of the trial court in rendering judgment in favor of the defendant on the demurrer.

We turn to the provisions of the Federal Rent Control Act of 1947 and amendments to the extent that they affect plaintiff’s first cause of action.

No Ohio court to date appears to have passed on the question here involved. Counsel have presented us with excellent "briefs and we gladly set forth our views, as requested, for the benefit of the trial court.

"We find that the question we are here concerned with was considered in the case of Meyercheck v. Givens (C. C. A. 7), 180 F. (2d), 221, a decision of the United States Circuit Court of Appeals under date of February 8, 1950. The reasoning of the court commends itself to our judgment. It is there held that under Section 205 of the Housing and Rent Act of 1947 (61 Stats. at L., 199, Title 50, Section 1895, Appendix, U. S. Code), a tenant may not recover damages for overcharges of rent received by his landlord prior to one year before commencement of the action. This conclusion is based upon the language of Section 205 of the act, which provides, in part, as follows:

“Any person who demands, accepts, or receives any payment of rent in excess of the maximum rent prescribed under section 204 shall be liable to the person from whom he demands, accepts, or receives such payment, for reasonable attorney’s fees and costs as determined by the court, plus liquidated damages in the amount of (1) $50, or (2) three times the amount by which the payment or payments demanded, accepted, or received exceed the maximum rent which could lawfully be demanded, accepted, or received, whichever in either case may be the greater amount; Provided, that the amount of such liquidated damages shall be the amount of the overcharge or overcharges if the defendant proves that the violation was neither wilful nor the result of failure to take practicable precautions against the occurrence of the violation. Suit to recover such amount may be brought in any federal, state, or territorial court of competent jurisdiction within one year after the date of such violation * *

Argument was made in this court that the overpayments on the part of the tenant having been accepted by the landlord, the tenant has a claim for money had •and received either under Ohio or general law to the extent of the unlawful payments, and that the one-year statute of limitation provided in Section 205 does not bar an action of such character by the tenant for restitution of overpayments. As against this argument, we must recognize that were it not for the rent control act there would be no such right of action, under any circumstances, as one for overpayment of rent, because the only applicable law would be the law of contracts. While the Federal Rent Control Act of 1947 restricted the rights of parties to contract fully with respect to rent on the grounds of national emergency, it must be conceded that without the act there would be no restriction and no cause of action. It follows that the only cause of action for recovery of excess rent payments referred to in the act is that granted thereunder.

The federal ease of Meyercheck v. Givens, supra, was followed in the state court case of Thomsen v. Mill (March 1952), 248 S. W. (2d), 6, a decision by the Kansas City (Missouri) Court of Appeals. In the latter case, plaintiffs brought suit to recover certain alleged excess rental payments, stating that for the year November 1, 1949, to November 1, 1950, rent was paid in advance by plaintiffs to defendants in the sum of $1,800, that the maximum rent was $60 per month, that plaintiffs did not at the time of the payments know the amount of rental that could lawfully be charged, that plaintiffs relied on representations of defendants that the rent charge was lawful, and that by reason of fraudulent representations plaintiffs had been damaged in the sum of $1,080 actual damages, and were entitled additionally to punitive damages of $3,000.

Defendants moved to dismiss the petition on the ground that the statutes of the United States upon which plaintiffs relied for their cause of action provided that such action must be brought within one year from the date of the overcharge complained of and that the petition was not filed until January 31, 1951. The trial court sustained defendants’ motion to dismiss plaintiffs’ petition on the ground that the cause of action was barred by statutory limitations. The court pointed out that the allegations of fraud as a basis for recovery of damages did not alter the fundamental character of the cause of action for excess rent payments, and that the action was barred by the statutory limitation set forth in Section 205. In its opinion, the court declared:

“The plaintiffs in their petition specifically assert that the maximum rental rate was determinable under the National Housing Act, and upon such determination they calculate and state their alleged liquidated actual damages. The fact is that if they have any cause of action at all for the recovery of payments in excess of the maximum so established by that act, plus any multiple thereof, such cause of action must necessarily be founded on the landlord’s liability created by that act.. Without such emergency law of Congress the rental agreement pleaded would have been absolutely valid and binding on all parties, there would have been no maximum rental ceiling, no excess rentals paid by the plaintiffs, no violation of plaintiffs’ rights, no liability on the' defendants’ part, and no basis for penalty or punitive damages under the facts pleaded. The basic substantive rights on which the petition is based are those only which are created under the federal law referred to in the petition. The further pleading of malice and fraud as a basis for recovery of the da,mages, actual or punitive, does not alter the funda mental character of the cause of action stated. ’ ’ (Emphasis added.)

The court also quoted with approval the statement in 53 Corpus Juris Secundum, 975, Limitations of Actions, Section 30, that where by statute a right of action is given which did not exist by the common law, and the statute giving the right fixes the time within which the right may be enforced, the time so fixed becomes a limitation or condition on such right, and will control, no matter in what forum the action is brought, and such rule does not make the general provisions of the statute of limitations existing in the jurisdiction where the liability was created operate extraterritorially. We believe that this sound principle of law is the answer to the contention of the appellant that the present case comes within the provisions of the statute of limitations in Ohio permitting recovery of money unlawfully had and received, i. e., the six-year period provided by Section 11222, General Code.

For the reasons stated, we believe that the one-year statute of limitation set forth in Section 205 of the Federal Rent Control Act of 1947 is applicable to a suit by a tenant who has paid more than the ceiling rent and that any action for excess payments on his part during the effective date of that act is barred unless brought within one year after such payments were made.

The judgment of the trial court dismissing plaintiff’s first cause of action is affirmed.

Judgment affirmed.

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