text:
    Grippin, Admx., Appellee, v. General Accident Fire & Life Assurance Co. et al., Appellants.
    (No. 4678
    Decided February 5, 1953.)

      Mr. Thomas S. Bretherion, for appellee.

      Messrs. DeMuth S Schneider, for appellants.
   Fess, J.

This is an appeal on questions of law from a finding and judgment for plaintiff.

On July 31, 1948, plaintiff’s decedent purchased an insurance policy from the defendants covering personal and property damage liability, medical payments, and insuring decedent’s automobile for loss or damage by collision. The combination policy contained the following statements:

“Item 1. Name of insured George M. Griffin address Navarre Hotel, Toledo, Lucas county, Ohio The automobile will be principally garaged in the above town or city, county and state, unless otherwise stated herein. No exceptions.

The named insured is (x) individual ( ) corporation ( ) partnership occupation of the named insured is clerk — cigar store, 1615 Adams st., Toledo”

“Item 2. Policy period: from July 31, 1948, 12:01 a. m. to July 31, 1949, 12:01 a. m. standard time, at the address of the named insured as stated herein.”

With regard to cancellation, the policy contains the following provision:

‘ ‘ This policy may be cancelled by the named insured by mailing to the company written notice stating when thereafter such cancellation shall be effective. This policy may be cancelled by the company by mailing to the named insured at the address shown in this policy written notice stating when not less than five days thereafter such cancellation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice and the effective date and hour of cancellation stated in the notice shall become the end of the policy period. Delivery of such written notice either by the named insured or by the company shall be equivalent to mailing.”

On November 19, 1948, the agent mailed notices on behalf of each of the defendants in envelopes addressed to George M. Griffin, Navarre Hotel, Toledo, Ohio, advising the insured that his policy of insurance was can-celled, effective November 26,1948, at 12:01 a. m. Each of the letters was returned to the insurer’s agent on November 24,1948, stamped “returned to sender” and the pencil notation, “not at.” On January 10,1949, the insured was injured as a result of a collision, from which he died the following day. His automobile was damaged.

Upon denial of liability on the part of the defendants, the present action was brought. Defendants deny that the contract of insurance was in full force and effect on January 10, 1949, and allege that on November 26, 1948, defendants cancelled the insurance and that notice thereof was given according to the terms of the policy.

The court below found in part as follows:

‘ ‘ 8. Two addresses of the named insured are shown in said policy, both addresses having been placed therein by the defendants. One address so shown is George M. Griffin, Navarre Hotel, Toledo, Lucas county, Ohio. Plaintiff’s decedent, the said George M. Griffin, was residing at said address when said policy was issued, but was not residing there when notices of cancellation were mailed to that address by the defendants. The other address shown in said policy is 1615 Adams street, Toledo, Ohio, where the defendants indicated in said policy that plaintiff’s decedent was employed as a clerk in a cigar store. Plaintiff’s decedent was employed at said address, and was regularly present at that address during business hours, both at the time the policy was issued and at the time defendants attempted to cancel said policy. These facts were within the knowledge of the defendants.

“9. On November 19, 1948, each defendant through its local agent sent a written notice of cancellation to plaintiff’s decedent at the Navarre Hotel, said notices reciting that the policy was cancelled as of November 26, 1948. These notices were returned by the United States post office, to the senders marked ‘not at.’

“10. Defendants made no other effort to notify plaintiff’s decedent of the attempted cancellation, except as described above, and no effort was made to return the unearned premium by mail or otherwise, although the address of his place of employment at 1615 Adams street, appears on the face of the policy; and defendants, through their agents, had actual knowledge that plaintiff’s decedent was regularly employed at said address and was present there during working hours. Plaintiff’s decedent never received notice of cancellation of said policy. ’ ’

Upon the findings, judgment was entered for the plaintiff in the sum of $875.50 against The Potomac Insurance Company and in the sum of $515 against The General Accident, Fire & Life Assurance Company.

The principal question raised upon the appeal is whether, upon the findings, the insurance was effectively cancelled. There is a distinct conflict of authority on the question whether a notice of cancellation sent by the insurer by mail must be received by the insured before it becomes effective. Although the conflict arises primarily out of the variations of the terminology of the policies, by the weight of authority the receipt of the notice of cancellation mailed by the insurer is held to be necessary. The mailing of notice which is not received by the insured has been held insufficient under the facts in cases involving provisions that notice mailed or deposited in the mail should be sufficient. 123 A. L. R., 1008, 1011 to 1013.

The policy involved in Trinity Universal Insurance Co. v. Willrich, 13 Wash. (2d), 263, 124 P. (2d), 950, 142 A. L. R., 1, contains exactly the same cancellation clause as the policy in the instant case. That court held that the mailing of notice of cancellation was sufficient, even though the notice was not actually received by the insured. In that case there was no dispute as to the fact that the notice was mailed, but the insured testified and the court found that the insured did.not actually receive the notice.

It has been held also that a notice sent by mail to an insured at his address as designated in the policy, pursuant to a policy provision for such notice, is sufficient notwithstanding the insured may have moved from such address, where the insurer has no notice or knowledge of his change of address. 149 A. L. R., 1317. But in a number of cases it has been held that where notice of the insured’s change of address has been sent the insurer, or knowledge thereof has been acquired by its agents, a notice to the insured at the address originally given in the policy is not effective in the absence of actual receipt of suchTnotice or effective knowledge thereof. 149 A. L. R., 1319. In Gendron v. Calvert Fire Ins. Co., 47 N. M., 348, 143 P. (2d), 462, 149 A. L. R., 1310, the cancellation clause provided that “proof of such mailing shall be sufficient evidence of such notice.” In each of the cited cases, the insured, incident to the filing of two previous claims, had filed proofs of claims giving his permanent address in another state, to which he had moved. The court found also that the insured at all times continued to receive mail from his former California address and that there was no endorsement on the policy showing a change of address. The cancellation notice had been mailed to the insured at the address stated in the policy but for some reason was never received by the plaintiff. The court held that actual receipt of an insurer’s notice of cancellation is not necessary to effect a cancellation where the policy provides for cancellation by mailing notice to the insured’s address stated in the policy and that proof of mailing shall be sufficient evidence of such notice. With respect to the knowledge of the change of address by the insurer’s agent who had adjusted two prior losses, the court said that there was no evidence that the insurer ever had notice thereof and applied the waiver clause as indicating that the address stated in the policy to which notices were to be sent could not be changed except by endorsement on the policy.

The editors of American Jurisprudence, as a result of the Gendron case, supra, and the annotation thereof reported in 149 A. L. R., 1316, have added new text in the supplement to 29 American Jurisprudence, as Section 285.1, which reads as follows :

• “It has been held that a notice of cancellation sent by mail to an insured at his address designated in the policy, pursuant to a policy provision for such notice, is sufficient notwithstanding that the insured may have moved from such address, where the insurer has no notice or knowledge of his change of address. However, a different conclusion has been reached where the notice was sent by registered mail with a request that it be returned to the insurer within five days, apparently on the ground that the request for return made it impossible for the insured to receive the notice in view of the fact that he had changed his residence. It has been held that where notice of insured’s change of address has been sent to the insurer, or knowledge thereof has been acquired by its agents, a notice of cancellation to insured at the address originally stated in the policy is not effective to bind him as to the consequences thereof, at least in the absence of actual receipt of such notice or effective knowledge thereof. However, it has also been held that the fact that an agent of the insurance company had knowledge of insured’s change of address did not, under the circumstances involved, make a notice to the insured at the address specified in the policy ineffective for the purpose intended.”

In the instant case, the agent of the insurer had knowledge that the notices had not been delivered and also was put upon notice of the place where the insured worked and could have been found. The policy contains a standard clause similar to the one approved in Fay, Admr., v. Swicker, 154 Ohio St., 341, 348, 96 N. E. (2d), 196 (certiorari denied, 342 U. S., 812, 96 L. Ed., 614, 72 S. Ct., 24), which clause is as follows:

“Notice to any agent or knowledge possessed by any agent or by any other person shall not effect a waiver or a change in any part of this policy or estop the company from asserting any right under the terms of this policy; nor shall the term of this policy be waived or changed, except by endorsement issued to form a part of this policy, signed by the United States Manager and attorney for the General Accident Fire & Life Assurance Corporation, Limited, or the president for The Potomac Insurance Company of the District of Columbia. ’ ’

Under the provisions of this clause, no knowledge possessed by an agent could constitute a waiver or change of the terms of the policy. But the agent was directed by the insurer to cancel the policy and any knowledge or notice of the agent incident to the performance of this delegated duty would constitute notice as well as knowledge to the insurer.

As said by the Supreme Court in Fay v. Swicker, supra, with respect to the waiver clause, we see no reason why the insurer and the insured may not make such an agreement as is incorporated in the cancellation clause. But in analyzing its provisions, it is to be construed in the light of what the insurer intended by the use of the phraseology employed, and we must apply the rule of liberal construction in favor of the insured and the rule of strict construction against the insurer seeking to avoid the policy.

“Accordingly, a provision for forfeiture must be construed fairly but strictly against the insurer so as to prevent a declaration of forfeiture by construction, when the strict terms of the condition do not require it. Furthermore, courts are liberal in construing transactions in favor of the avoidance of a forfeiture; there are no presumptions in favor of a right by forfeiture, for forfeitures are abhorred in equity and are never favored in law. On the other hand, if conditions invalidating policies are unambiguous and are such as affect the risk of the insurer without violating the law, they should be enforced. ’ ’ 22 Ohio Jurisprudence, 338, Section 183.

Ordinarily, the deposit of a notice of cancellation in the mail would be delivered to the insured at the address stated in the policy, and it has been held that proof of the mailing of a letter properly stamped and addressed affords prima facie evidence of its receipt by the addressee. The principle applies notwithstanding the address of the addressee may have been lately changed because the well-known accuracy, knowledge and facilities and practice of the postal service in such matters raise a presumption of delivery, but this is a rebuttable presumption and may be met by evidence of equal weight to overcome the presumption of delivery. Judge v. Masonic Mutual Benefit Association, 10 C. C. (N. S.), 473, 20 C. D., 133.

As we view it, the provision that mailing of the notice shall be sufficient proof of notice was adopted to spell out the presumption of delivery upon proof of mailing and meet a claim on the part of the insured or those claiming through him that notice was not actually received. Mailing may be sufficient proof of notice, but it is not conclusive proof thereof. Under the evidence before the trier of the facts in the instant case, the prima facie showing of delivery was not only met but was overcome. In the face of the finding that the letters were returned by the postal service marked “not at,” and that the whereabouts of the insured was known, in effecting a cancellation or forfeiture of the insured’s rights under the policy, the insurer should not be permitted to rely solely upon the deposit of the notices in the mail, particularly where, under a further provision of the cancellation clause, delivery other than by mail could have readily been had.

It is, therefore, concluded that where the insurer through its agent authorized and directed to cancel a policy is apprised that the insured has not received the notice thereof by mail and has knowledge of the place where delivery may be made, and in the absence of evidence that reasonably diligent efforts were made to find the insured and deliver such notice, mere proof of the depositing of the notice in the mail addressed to the insured at the address stated in the policy is sufficient, but not conclusive, proof of notice, and may be overcome by evidence that such notice was not actually received by the insured, and is ineffective to support a finding as a matter of law that the policy was duly cancelled.

Judgment affirmed.

Conn and Savord, JJ., concur.


source: Caselaw Access Project

author: Hornbeck, P. J.

license: Public Domain

text:
    Jones, Appellant, v. Board of County Commrs. of Franklin County et al., Appellees.

      (No. 4706
    Decided February 20, 1952.)

      Mr. William Harvey Jones, for appellant.

      Mr. Ralph J. Bartlett, prosecuting attorney, Mr. Robert P. Barnhart and Mr. Howard F. Wehr, for appellees.
   Hornbeck, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court dismissing plaintiff’s petition for an injunction restraining defendants from proceeding to make collection of an assessment against the lands of plaintiff by reason of a ditch improvement.

Upon issues joined by the pleadings and the findings of fact by the trial judge, there is presented a question of law only. As a conclusion of law the court held that the statutory requirement of Section 6447, General Code, for notice to owners of land affected by. the construction of the proposed improvement was not jurisdictional and the failure to serve plaintiff with such notice did not prevent the board of county commissioners from levying an assessment against the lands of plaintiff, and that the notice to the plaintiff of final hearing on the improvement before the. commissioners, on the report of the county surveyor, including the amount of the assessment, “was sufficient to give the board jurisdiction over the plaintiff and his property.”

Three errors are assigned:

1. In holding that the notice provided by Section 6447, General Code, “is directory and not mandatory” and not a jurisdictional requirement.

2. In holding that plaintiff is estopped or has waived his right to question the jurisdiction of the board of commissioners by his appearance before the board and the filing of a remonstrance against and a claim for damages by reason of the improvement.

3. In approving the assuming of jurisdiction by the commissioners over the property of plaintiff to make changes in the course and the termini of the ditch and constructing laterals on- the lands of plaintiff not included in the petition filed with the auditor.

Without restating in detail the rather extended facts out of which the controversy arises and quoting from the lengthy sections of the drainage title of the Code which have some relation to the issue, we come immediately to the applicable provisions of the few sections of the Code which we believe are controlling and determinative of all the errors assigned. Inasmuch as the rights of the parties are defined by the plain provisions of statute, it will be necessary to discuss only one of the many authorities cited by counsel in their extensive briefs.

Plaintiff rests his case for an injunction to restrain the collection of the assessment against his lands by reason of the ditch improvement eventually ordered by the defendant commissioners upon the proposition that, although his lands were affected by the ditch originally proposed, he had no notice of the filing of the petition for the improvement as provided by the mandatory language of Section 6447, General Code.

Section 6447, General Code, in part, provides:

‘ ‘ As soon as the dates for the view and first hearing-have been fixed by the commissioners, the auditor shall prepare and deliver to the petitioner a written notice, directed to the owners of land affected by the proposed improvement, which notice shall set forth the pendency, substance, and prayer of the petition. * * * At least fifteen days before the date set for the view, one copy of said notice shall be served upon each owner of land * * (Emphasis ours.)

The landowners mentioned in the italicized part of Section 6447 are those whose names are set forth in the petition for the improvement as landowners who will be benefited or damaged by the construction of the proposed improvement. Obviously, no others could be contemplated because at that juncture of the proceedings neither the commissioners nor the auditor will have had any source of information other than the petition.

The case of Zimmerman v. Canfield, 42 Ohio St., 463, although not necessary, is helpful to a determination of the instant cause. The section of the Code relating to county ditches (Section 4452, Revised Statutes), under consideration in the cited case, made no provision for notice of the first view of the proposed ditch to land owners along the line of the improvement. The court there held that Section 4452, Revised Statutes, invested the commissioners with political and not judicial powers and that notice to the landowners was not essential to the validity of the proceedings thereunder. Section 6447, General Code, like Section 4452, Revised Statutes, • in the cited case, makes no provision for notice to plaintiff, because his name was not listed in the petition as a landowner affected by the proposed improvement, but notice and due process of law are provided by subsequent sections.

We cannot agree that the notice defined in Section 6447, General Code, is the source or basis of the jurisdiction of the board of county commissioners to levy the assessment against the lands herein involved.

A part of finding of fact two, dispositive of our question, is that plaintiff’s name was not listed on the petition as a landowner affected by the proposed ditch improvement. Had he been so named we would have another and different question.

Section 6444, General Code, prescribing the requisites of the petition for a ditch improvement, does not require that every landowner whose lands will be benefited or damaged by the improvement, as proposed, shall be set forth in the petition but only “a list of the names and addresses, where known, of all the owners of the land which the petitioner claims will be benefited or damaged by the construction of the proposed improvement.” (Emphasis ours.) The petitioner may not know every owner whose lands will be affected by the improvement as he proposes it. It is conceivable that some would be omitted whom he believes will be affected by the improvement and, of course, he cannot anticipate what the route of the ditch eventually to be ordered by the commissioners will be and, therefore, cannot list names of all owners benefited or damaged by reason of the improvement.

It is inferable that the first time it appeared of record that plaintiff’s lands would be benefited by the improvement was after the surveyor had made his survey of the ditch and filed his reports, schedules and proposed assessments by reason of the improvement. Sections 6454 and 6455, General Code. Succeeding the receipt of this information by the commissioners, plaintiff was given his first and only notice. This procedure is specifically authorized by Section 6456, General Code, which provides that upon the filing with the auditor of the reports and schedules by the surveyor, the commissioners shall fix a date for the hearing on the reports, and that “if the schedule of assessments filed by the surveyor contains the names of landowners other than those mentioned in the petition, notices shall also be mailed to such landowners.”

This notice, by reason of Section 6456, General Code, gave the board of county commissioners jurisdiction of the lands of plaintiff and jurisdiction to determine whether to proceed with the improvement and, if allowed, to take all steps requisite to its construction, as then proposed, including the confirming of the assessment to be levied upon the lands of plaintiff. Section 6463, General Code.

Succeeding the notice given pursuant to Section 6456, General Code, plaintiff was assured full opportunity to be heard upon the necessity for and the benefits of the improvement and damages, if any, to his lands by reason thereof (Sections 6457, 6462 and 6463), and, in part, at least, availed himself of that opportunity.

As we read the Drainage Act, plaintiff was accorded every substantial right respecting the ditch improvement, as proposed in the surveyor’s report, as was given to those owners of land whose names were listed in the petition. This report was before the commissioners and available to plaintiff by reason of his notice prior to the final hearing of the commissioners on the report. Note the comprehensive and material facts which the commissioners are to consider and evaluate at the final hearing. They are directed in mandatory terms to “review and reconsider the former order made by them finding in favor of said improvement. ’ ’ No order respecting the improvement is conclusive until the commissioners have acted pursuant to Section 6462, General Code, including the right to dismiss the petition. The commissioners have the benefit of expert advice as to the best means of accomplishing the drainage to be afforded lands mentioned in the petition and other lands in the vicinity in the interest of the public health, welfare or convenience. It would indeed be a restrictive act which would deny the commissioners the right to determine after the first hearing that there were landowners affected by the improvement other than those named in the petition.

In onr judgment, the failure to give notice to plaintiff of the filing of the petition and the date of the first hearing on the proposed ditch improvement in no wise affected the jurisdiction of the board of county commissioners over his lands in said proceedings. The jurisdiction to act was vested in the board of county commissioners by reason of the notice served upon plaintiff as provided by Section 6456, General Code.

Plaintiff’s relief, if any is required, is by an appeal (Section 6467 et seq., General Code), and not by a separate suit for injunctive relief.

No error assigned is well made.

The judgment will be affirmed.

Judgment affirmed.

Wiseman and Miller, JJ., concur.


author: Matthews, J.

text:
    The G. Andrews Espy Realty Co., Appellee, v. Burton-Rodgers, Inc., Appellant.
    (No. 7640
    Decided November 17, 1952.)

      Messrs. Graydon, Head <£ Ritchey, for appellee.

      Messrs. Gorman, Silversteen & Davis, for appellant.
   Matthews, J.

This is an action to recover the amount paid by the plaintiff to the city of Cincinnati as a condition to the issuance of a permit to tap into and use a sewer in connection with its real estate on Reading road, conveyed to the plaintiff by the defendant by a deed containing the usual covenants of general warranty. The basis of the claimed right of recovery is that the warranty against encumbrance was violated by the existence of a lien to pay a portion of the cost of a sewer assessment at the time of the purchase, and that the money was paid to remove the lien, the existence of which constituted the violation of the covenant against encumbrances.

The trial court found that the warranty had been violated and entered judgment for plaintiff for the amount paid to discharge the lien together with interest. This appeal is from that judgment.

It is admitted that the proceedings taken by the council of the city of Cincinnati in providing for the construction of this sewer and the levying of the assessment to pay for its cost according to benefits were regular in every respect and in compliance with the law. The dispute relates to the power' of council to incorporate into the assessing ordinance a provision that the assessment should be due upon the issuance of a permit to tap the sewer, and that the lien should attach from the date of the levy.

It appears that in 1931, as one improvement, the city of Cincinnati constructed a sewer in a section of Reading road and a sewer at right angles thereto through the premises against which the assessment was levied and the lien imposed. The assessing ordinance opened with a recital of the proceedings theretofore taken, stated that the notices required by law were given, that no objection had been filed to the report of the estimating board, and then proceeded: “That there be and hereby is levied and assessed on the lots and lands described in said report and in this ordinance the amounts as set forth, to wit: Provided, nevertheless, that said assessment is to be paid only at such time as application shall be made in the future for permission to tap into said sewer for which assessments are levied by this ordinance. ’ ’

In 1938, a predecessor in title of the plaintiff constructed a building with water closets and lavatories on the premises against which the levy was made and connected these toilet facilities with that portion of the sewer which ran at right angles to Reading road. No permit to make this tap was issued by the city of Cincinnati, and apparently it knew nothing about it then or thereafter until 1949 when the plaintiff, who had acquired title in the meantime, applied to the city of Cincinnati for a permit to connect to the sewer a building which it had erected. The plaintiff was then told that there was an unpaid sewer assessment of $746 against the property which must be paid before a permit would be issued. Because of this refusal and in order to obtain the permit, the plaintiff paid the amount of the assessment to the city of Cincinnati and brought this action to recover that amount from its immediate predecessor in title upon the warranty against encumbrances.

There is evidence that at the time this sewer was constructed there already existed a sewer across the rear of these premises, parallel to Reading road, and also a sewer at right angle to Reading road, which the new cross-sewer replaced. There is no evidence of the adequacy of these sewers. There is some evidence that they were in poor condition and that the new sewer was laid at a lower level.

In view of the uncontested finding of the estimating board and its approval by the city council and the state of tbe record before us, we must take as incontestable that the sewer facilities available to this property were inadequate for its needs and that it was benefited to the extent of the assessment by the construction of the new sewer.

Defendants do not dispute, as a general proposition, the power of a municipality to levy an assessment for the special benefits resulting from the construction of a sewer and to make it a charge upon the benefited real estate. Their objection is to this specific assessment on several grounds.

(1) It is urged that the provision postponing the payment of the assessment until an application to tap the sewer is made exceeded the power of the municipality.

By Section 3 of Article XVIII of the Constitution of Ohio, municipalities are authorized to exercise “ail powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”

This broad grant of power certainly includes the authority to do anything necessary or appropriate to carry such powers into effect, including the levy of taxes and assessments to pay the cost.

The existence of this power in a municipality is assumed in Section 6, Article XIII, whereby the General Assembly is given authority to restrict the power of municipalities to levy taxes and assessments.

We have been cited to no law placing any restriction upon the power of the municipality to fix the due date of an assessment levied by it. We know of no such law.

Indeed, by Section 3897, General Code, it is expressly provided that “Special assessments shall be payable * * * by the time stipulated in the ordinance * # * and shall be a lien from the date of the assessment. ’ ’

(2) Counsel urge that the device of making the payment conditioned upon application to tap the sewer was resorted to in order to avoid that provision of Section 3819, General Code, limiting assessments within a period of five years to thirty-three and one-third per cent of the actual value of the real estate and providing that an assessment for a main sewer should not exceed the cost of an ordinary street sewer of sufficient capacity to drain or sewer the lot assessed, and that where lots do not need local drainage, or are already provided therewith, no assessment shall be levied.

We find nothing in the record to make relevant any provision of this section. There is no evidence that the assessments against this property exceeded thirty-three and one-third per cent of its value. Nor is there any evidence that the assessment exceeded the cost of an ordinary street sewer adequate for the purposes of the lot or that it did not need or was adequately served with sewer facilities.

And in view of the express findings of the estimating board and the approval of its report by the city council, it must be presumed that none of these invalidating conditions existed. The burden of proving otherwise rested upon the defendant.

(3) Finally, it is urged that until the property owner applied for permission to tap this sewer, it owed nothing, and that, therefore, no lien could exist. It is suggested that it might never apply and, therefore, never become liable.

This contention ignores the fact that this sewer was tapped and was being used by the defendant at the time it conveyed to the plaintiff. It is true that it appears that no application for permission was filed or granted, bnt the property owner could not take advantage of the wrongful act in so doing.

On any theory a debt arose immediately upon the tapping of the sewer. However, the existence of special benefits is not dependent upon immediate availability or actual use of the utility. In 17 American Jurisprudence, 820, Section 68, it is said: “And there may be instances when future possibilities will warrant the levying of an assessment or a tax, as, for example, in the case of property not yet provided with sewers, but in which a sewerage system may eventually be installed and connected with the trunk sewer in question. ’ ’

Nor was the existence of the lien dependent upon the maturity of the assessment as a debt. By Section 3897, General Code, the lien attaches from the date of the assessment. From that date, the assessment constituted an encumbrance upon the land. It could obtain sewer service only by means of this sewer. The owner had no alternative. With the knowledge and acquiescence of the owner, it was provided for its convenience — and the price fixed. That, in our judgment, constituted a burden on its title, the existence of which was a violation of the warranty in the deed. The encumbrance could be removed only by payment of the assessment.

For these reasons, the judgment is affirmed.

Judgment affirmed.

Hildebrant, P. J., concurs.


author: Wiseman, J.

text:
    Wiegel, Appellee, v. Burcham, Appellant.
    (No. 495
    Decided October 30, 1952.)

      Mr. Charles W. Frayne, for appellee.

      Mr. Frank L. Nevius, for appellant.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Clark County, rendered on a verdict returned in favor of the plaintiff in the amount of $2,500 on a claim for the support of a child of the plaintiff and the defendant, the latter having been adjudged the reputed father of the child in a bastardy proceeding.

The defendant, appellant herein, has assigned 21 separate grounds of error, most of which involve the question of jurisdiction.

A recital in chronological order of the various steps taken in these special proceedings is necessary for a full appreciation of the questions presented.

On January 7, 1938, the plaintiff, an unmarried woman, filed an affidavit in bastardy against the defendant in the Municipal Court of Springfield. On February 10, 1938, the cause was transferred to the Common Pleas Court of Clark County. The cause was duly tried on August 4, 1939, and a judgment was entered on the verdict in which the jury adjudged the defendant to be the reputed father of the child born to the plaintiff. In the judgment, the court adjudged that the defendant pay to the plaintiff $250 for her support, maintenance and necessary expenses caused by pregnancy and childbirth. The judgment did not provide a weekly sum to be paid plaintiff for the support and maintenance of the child. On October 23, 1939, plaintiff filed an affidavit in the Juvenile Court of Clark County, charging the defendant with nonsupport of the child. The defendant could not be located and was not served. Soon thereafter the defendant entered the armed services of the United States, from which he was released in the latter part of 1944. After being released from the armed services and upon returning to Clark county, the defendant voluntarily appeared in Juvenile Court and discussed with the officer of that court his obligation to support the child. It was agreed that he should pay into the Juvenile Court the sum of five dollars per week for the child’s support. He began making payments to the Juvenile Court on January 22, 1945, and made weekly payments intermittingly until August 3, 1949, the date this action was instituted. The total sum paid by the defendant to the Juvenile Court up until this suit was instituted amounted to $844.35, which' was remitted to the plaintiff.

The record shows that the Juvenile Court never held a hearing on the affidavit charging nonsupport. The arrangement to pay five dollars per week was unofficial and voluntary, and no court order was made in regard thereto. No further effort was made to prosecute the defendant for nonsupport.

On the trial of this case, counsel for the defendant at different stages of the proceeding challenged the jurisdiction of the Common Pleas Court to hear and determine the issues presented. The point made by defendant is twofold: First, that the court in the bastardy proceeding failed to make an order for the support and maintenance of the child, as provided in Section 12123, General Code, now Section 8006-17, General Code, and, second, that the plaintiff had invoked the jurisdiction of the Juvenile Court in filing the nonsupport affidavit, and that, in consequence, the Juvenile Court still has jurisdiction in the matter, which deprives the Common Pleas Court from the exercise of jurisdiction in this action.

The provision in Section 12123, General Code, requiring the court in a bastardy proceeding to adjudge the amount which, the reputed father shall pay to the mother for support and maintenance of the child was placed in that section by an amendment effective May 17, 1938. The amendment became effective prior to the date of the judgment in the bastardy proceeding, which was August 4, 1938. However, the amendment was not expressly made applicable to pending proceedings. Section 26, General Code, provides that an amendment shall not affect pending proceedings, and when the amendment relates to the remedy, such amendment shall not affect proceedings existing at the time of the amendment unless expressly provided in the act. The bastardy proceeding was pending at the time the amendment became effective. Therefore, Section 12123, General Code, as it existed prior to the amendment applies. Prior to the amendment this section did not require the court to adjudge the amount the reputed father should pay to the mother for the support and maintenance of the child. The judgment of the court was proper in every respect.

Does the fact that a nonsupport charge was filed in Juvenile Court oust the jurisdiction of the Common Pleas Court? • We do not think so. The plaintiff in filing her affidavit in Juvenile Court was proceeding under Section 1639-46, General Code, which makes “nonsupport” a criminal offense. The filing of an affidavit in Juvenile Court charging the defendant with a criminal offense under this section in no way deprives the Common Pleas Court of the proper exercise of its jurisdiction in a civil action to recover for the support and maintenance of such child. Furthermore, the record shows that the nonsupport charge was not prosecuted. No hearing was had and no formal order was made by the court. The court speaks through its journal entries. The appearance of the defendant in • the Juvenile Court was unofficial and voluntary, and the understanding with respect to payments was unofficial and voluntary.

The court charged the jury to take into consideration the payments made by the defendant to the Juvenile Court, which the plaintiff acknowledged receiving.

We find no error in giving special instructions before argument or in the general charge. In view of the evidence presented, we cannot find the verdict to be excessive. In our opinion, the verdict and judgment are sustained by sufficient evidence and are not contrary to law. We have considered carefully all errors assigned and do not find any well made.

Judgment affirmed.

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


author: Per Curiam.

text:
    Schimpf v. Alvis et al.
    (No. 4754
    Decided October 2, 1952.)

      Mr. Lester E. Schimpf, in propria persona.

      Mr. C. William O’Neill, attorney general, and Mr. Larry H. Snyder, for respondents.
   Per Curiam.

This is a proceeding in habeas corpus, instituted by Lester E. Schimpf, who is now confined in the Ohio Penitentiary under a sentence for grand larceny. On October 4, 1944, the petitioner entered a plea of guilty to grand larceny in the Common Pleas Court of Licking County. He was sentenced to the Ohio Penitentiary for a period of from one to seven years. The execution of the sentence was suspended, and the petitioner was placed on probation for a period of five years. On March 14, 1946, the probation was revoked and the petitioner was re-sentenced; and on the same date, he was admitted to the penitentiary.

The probation period lasted seventeen months and ten days.

The petitioner contends that he should be given credit on the maximum sentence of seven years for the time he was on probation. If credit were given the seven-year period would have expired.

Section 13452-1, General Code, provides that a court may suspend the imposition of sentence. Neither the express words of the statute nor the spirit of the law contemplate that the petitioner should be given credit on his sentence for the probationary period, if sentence is later imposed. The obvious purpose of the probation is to stay the execution of the sentence. A sentence which is stayed is not in force.

In the case of In re Nunley, 102 Ohio St., 332, 131 N. E., 495, the court held that where sentence is imposed and then suspended, “the defendant while under suspension is not in any sense serving a sentence.” See, also, In re Keagy, 76 Ohio App., 95, 63 N. E. (2d), 216.

When a person escapes from the Ohio Penitentiary and is returned, the time from the date of his escape to the date of his arrest shall not be counted as part of time or sentence served. See Section 2209-20, General Code.

Other grounds set forth in the petition are not well taken.

Petitioner remanded to custody. ■

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


author: Hurd, P. J. Hurd, P. J.

text:
    Rathbun, Appellant, v. The Humphrey Co., Appellee.
    (No. 22592
    Decided February 24, 1953.)

      Messrs. Gaines £ Hirsch, for appellant.

      Messrs. Arter, Hadden, Wykoff £ Van Duser, for appellee.
   Hurd, P. J.

This is an action in tort, instituted in the Court of Common Pleas to recover for personal injuries received by a patron of an amusement park during a ride on an amusement device. Plaintiff appealed from a judgment entered pursuant to a verdict for defendant.

Defendant, The Humphrey Company, owns and operates an amusement park in the city of Cleveland known as Euclid Beach Park. One of the attractions is a roller coaster called the “Thriller.” It is composed of three separate cars with four seats each, the cars being joined together to make up a train. The train operates on rails supported by a trestle, built in the form of declivities, dips and curves. It is pulled by a chain from the loading platform to the top of the trestle. Prom there it descends by force of gravity. The ride covers a distance of about 2,800 feet in approximately two minutes.

Plaintiff, a young woman of about 32 years of age, entered the Thriller with her mother. They occupied the first seat of the second car, the mother to the right or outside and the daughter to the left or inside. The car ahead was filled to capacity with eight persons. The seats in back of plaintiff in the second car were wholly or partially filled. Plaintiff testified that as they were approaching the return curve she turned slightly to her mother and told her to scream as they were approaching a series of dips. Plaintiff testified further that when she was thus turned slightly to her right a branch of a tree suddenly whipped down from foliage overhanging the track area on the return or lower curve striking her forehead, nose, and left eye and breaking her eyeglasses in such a manner that the left lens was shattered and the frame fell into her mother’s lap. She claimed that she was seriously injured when pieces of the shattered lens lodged in her eye.

Six grounds of error were assigned, two of which were abandoned in this appeal. Combining the first two assignments of error, plaintiff asserted that the trial court erred prejudicially, first, in permitting the manager of the Thriller to testify that during the summer of 1948 up to. and including September 26, 1948, the date of the injury, no person had ever complained to him of having been struck by a branch or limb of a tree during a ride, and, second, in permitting defendant to introduce testimony relative to the number of persons who rode the roller coaster on the day of the injury.

The courts are divided on the question of the admissibility and competency of evidence showing nonoccurrence or absence of other similar accidents in negligence cases generally. Some hold that such evidence is not admissible for the purpose of showing that the place of injury was free from danger. Others hold that such evidence is admissible for that purpose and that it tends to show reasonable care, thus negativing to a certain degree the charge of negligence. In any event, such testimony is admissible only if it has rational probative value bearing upon the issues made by the pleadings. It is never conclusive, its persuasive effect or weight being for the jury alone under proper instructions. As a general rule, such testimony is admitted as applicable to static conditions where the danger is not obvious.

Considering now the issues made by the pleadings in the instant case, the plaintiff alleged and the defendant denied that the proximate cause of her injuries was the negligence of the defendant, first, in failing to provide a route of travel which was reasonably safe for patrons to use; second, in designing, operating and maintaining the Thriller in close proximity to abutting and overhanging trees; third, in failing properly to care for said trees and in failing to exercise vigilance to provide patrons with a ride free from the danger occasioned by the presence of such trees, they being wholly under the control and management of the defendant; fourth, in permitting such tree and the branches thereof to become a source of danger to patrons using the roller coaster; and, fifth, in failing to warn plaintiff of the danger.

It appears from these allegations that an issue has been created relative to the static condition of the amusement device in relation to external conditions surrounding its design, operation and maintenance in the particular location close to overhanging and abutting trees. Was this operation as there conducted safe for patrons or was it dangerous ? How is this question to be determined? Is not experience a definite criterion, persuasive but not conclusive? We” think so. True it is, as plaintiff argues, that her claim is not based on any mechanical defect in the Thriller as such, nor is there any claim of improper mechanical construction. This removes from consideration the doctrine of res ipsa loquitur, but it does not remove from consideration the claim that the design, operation and maintenance of the device as located was dangerous for patrons under the static conditions there existing and upon which the claim of negligence is predicated.

In Cleveland & Buffalo Transit Co. v. Roderick (1918), 10 Ohio App., 119, evidence of nonoccurrence of similar accidents was held admissible for the purpose of showing that defendant was not guilty of negligence in not apprehending the accident where the danger was not obvious. In that case this court reversed and remanded the cause for prejudicial error in excluding such testimony.

In Witherspoon v. Haft (May 1952), 157 Ohio St., 474, 106 N. E. (2d), 296, the court, in affirming a judgment of the Court of Appeals for Franklin County, in relation to the test of experience, said on page 480, “and none of the witnesses who testified concerning their experience with this type of bleachers knew of arty accident resulting from a seat board slipping out of its brackets.” In tbe same case, the Court of Appeals (61 Ohio Law Abs.,T02,103 N. E. [2d], 275), had previously held that testimony of many years of experience with the same type of bleacher seats involved in that case was admissible as to nonoccurrence of accidents, but not conclusive. See, also, Railroad Co. v. Anderson, 11 C. D., 765, 21 C. C., 288.

In Murphy v. Steeple Chase Amusement Co. (1929), 250 N. Y., 479, 166 N. E., 173, where plaintiff sued for injuries sustained while using an amusement device known as the “Flopper,” Chief Justice Cardozo refers to evidence offered by the president of the amusement company to the effect that there had never been such an accident before and that, according to defendant’s evidence, 250,000 visitors “were at the Flopper in a year.”

In Carlin v. Krout (1923), 142 Md., 140, 120 A., 232, 29 A. L. R., 13, where plaintiff sued for injuries received on an amusement device known as an “Ocean Wave,” it was held that the fact no accident similar to plaintiff’s had occurred to any of the thousands of persons who had used the device during the two years which had elapsed since its installation, while not conclusive of the absence of negligence, might properly be considered on the question whether any part of the device was improperly designed or constructed.

To the same effect see, also, Godfrey v. Connecticut Co. (1922), 98 Conn., 63, 118 A., 446; and Denver Park & Amusement Co. v. Pflug (C. C. A. 8, 1924), 2 F. (2d), 961.

The case of Wray v. Fairfield Amusement Co.. 126 Conn., 221, 10 A. (2d), 600, is cited by plaintiff as being contra, but that case should be distinguished, as there the evidence of the number of passengers who had ridden the amusement device was excluded because the strap of one seat of the device which the plaintiff had occupied was defective and evidence of the entire number who had occupied other seats not defective would not be a reasonable test of experience, particularly in view of the fact that the plaintiff did not claim that either the construction or operation of the roller coaster in general was negligent.

We think that it should be noted also that the superintendent of construction and maintenance for 28 years and the man who built the Thriller, when called as one of plaintiff’s witnesses, was permitted to testify without objection on cross-examination by the defendant that in his years with the defendant it never had been brought to his attention by any person that any rider on the Thriller had claimed to have been struck by the branch of a tree and injured. By allowing this testimony without objection, plaintiff may have waived claims of error on this ground.

We conclude that, under the issues here made by the pleadings together with all the surrounding facts and circumstances appearing in the evidence, testimony tending to show the absence or nonoccurrence of similar accidents during the summer season of 1948 (to which the testimony was limited), including the number of riders on the day of the accident without injury (in excess of 5,000), must be considered to have a rational probative value, bearing upon the claim of negligence in the design, operation and maintenance of the amusement device in the place in question. To hold that plaintiff could create such an issue so general and comprehensive in its nature and implications and to deny the defendant the right to meet it by the test of experience would not be in accord with sound logic or judicial fairness.

For its fourth assignment of error, plaintiff asserted that the trial court erred in granting defendant’s request to charge before argument as follows:

“I say to you that it is the law of the state of Ohio that the obligation of The Humphrey Company is to provide for its patrons instrumentalities, such as the Thriller, which are reasonably safe for the purpose for which they are used and are intended to be used. This obligation means that The Humphrey Company must exercise such a degree of care in connection with the inspection and operation of its amusement devices as would ordinarily be exercised by an ordinary, careful and prudent person under the same or similar circumstances. ’ ’

It is well established that the owners or operators of amusement resorts and appliances are not insurers of the safety of patrons, and that such owners and operators owe the duty to exercise ordinary or reasonable care commensurate with the risk involved. See Smith v. Puritas Spring Park, 26 Ohio Law Abs., 505, and cases therein cited as follows: Maehlman v. Reuban Realty Co., 32 Ohio App., 54, 166 N. E., 920; and Lake Brady Co. v. Krutel, Admr., 123 Ohio St., 570, 176 N. E., 226. The great weight of authority in other jurisdictions is to the same effect.

While the charge of negligence was not directed to mechanical defects in the amusement device per se, an issue was made as to its safety in the particular location in which it was maintained and operated in close proximity to trees along the side of the track. We think that the duty of care implicit in this special charge applies not only to a part but to the total operation of the device and does not inject an issue not raised by the pleadings. The proprietor or operator is under an obligation to use ordinary care and diligence to put and keep the' place in a reasonably safe condition for persons attending in pursuance of his invitation. He is bound to use ordinary care for their safety and protection, the test being that degree of care which an ordinary careful and prudent person would exercise under the same or similar circumstances. If injury results from a breach of this duty, he is liable. We find no prejudicial error in this charge as, in our opinion, it is in accordance with the general rule applicable under the issues here made.

In her final assignment of error, plaintiff claimed that the judgment is against the manifest weight of the evidence. We may reverse on this ground only when the verdict is so manifestly contrary to the natural and reasonable inferences to be drawn from the evidence as to result in a denial of substantial justice. Upon consideration of all the evidence submitted to the jury, we can not so conclude. The members of the jury were not obliged to rely entirely upon the testimony of the plaintiff and her mother as to the cause of her injury. There are many factors appearing in the evidence, too numerous to detail here, which would reasonably justify the jury in finding otherwise. Our view of the evidence in this case is such that whether the jury found either for plaintiff or defendant, we would not be justified in setting aside the verdict on the weight of the ■ evidence. Suffice it to say that the burden was upon the plaintiff to show by a preponderance of the evidence that the negligence of the defendant was the proximate cause of the injuries of which she complained. After a fair and complete trial, the verdict of the jury indicates conclusively that she failed to sustain the burden thus necessarily assumed by her. Consequently, the error assigned that the verdict and judgment are contrary to the manifest weight of the evidence cannot be sustained.

Since we find no error prejudicial to the rights of plaintiff, the judgment is affirmed.

Judgment affirmed.

Kovachy and Skeel, JJ., concur.

(Decided March 23, 1953.)

On Application for rehearing.

Hurd, P. J.

In an application for rehearing, counsel for plaintiff respectfully and most earnestly argue that this court has misconceived- the claims of plaintiff in determining that the trial court did not commit error prejudicial to the rights of the plaintiff in admitting evidence of nonoccurrence of similar accidents on the Thriller under the limitations imposed. For this reason we have once again reviewed the case.

Because of the nature of the arguments presented, we think it well to direct attention to some fundamental legal principles. Negligence is never presumed. The fact that an accident happened and that plaintiff was injured does not ipso facto establish liability against defendant. The plaintiff alleged negligence. The defendant denied it. This casts the burden upon plaintiff to prove by a preponderance of the evidence that defendant was negligent in one or more of the respects charged in the petition, and that such negligence was the direct and proximate cause of the injuries of which plaintiff complains.

The petition contains certain specifications of negligence (Nos. 3 and 4) charging failure on the part of defendant properly to care for the trees growing close to the Thriller, in failing to exercise vigilance to provide patrons with a ride free from danger, and in permitting such trees and the branches thereof to become a source of danger to the patrons. The effect of these claims is to charge a failure of custodial care in the operation of the amusement device. These specifications comprehended a continuing omission of a duty owed by defendant to its patrons to keep the ride free and safe from danger. But the petition also contains two other specifications of negligence (Nos. 1 and 2) which are of a different character, because therein defendant is charged with designing, operating and maintaining a roller coaster in such close proximity to overhanging and abutting trees that it thereby failed to provide a route of travel reasonably safe for patrons to use. These charges we refer to in the opinion as creating “an issue as to the static condition of the amusement device in relation to external conditions surrounding its design, operation, and maintenance in the particular location close to overhanging trees.” The term, “static,” was used to characterize a situation which is established and fixed so far as the structure of the roller coaster and the trees abutting such structure are concerned. The term, “static,” is derived both from the Greek and the Latin, the Latin being stations, the Greek being statilcos, meaning “causing to stand.” Hence, we have here a charge of negligence in operating and maintaining a roller coaster having a route of travel constant in its surroundings but made dangerous and unsafe by the close proximity of the abutting and overhanging trees. In our opinion these allegations raise an issue of negligence involving the character and location of the structure, which issue is so broad and comprehensive in nature as to justify the admission of evidence concerning nonoccurrence of similar accidents. This rule is founded upon reason and logic and is. we believe, in accord with the greater weight of authority. While such evidence may be considered as negative in character and not conclusive, yet it has probative value hearing directly upon the issues made. Evidence to the effect that of the thousands upon thousands of persons who rode the Thriller from the beginning of the season up to and including the date of the accident on September 26, 1948, not one complained of an experience similar in character to the complaint made by plaintiff certainly must have some probative value as negativing the charge of negligence made.

We can well understand the claims with respect to the dynamic forces of nature such as the weather and natural growth of trees and their branches so graphically described by plaintiff’s counsel. So far as we can discover, plaintiff was not restricted in the presentation of her evidence on those and related subjects. Those factors, together with all the plaintiff’s evidence presented in support of her petition, were questions of fact for the jury to weigh and consider under proper instructions of the court.

The third and fifth assignments of error with respect to the general charge of the court and one special charge before argument were abandoned by plaintiff on this appeal. The fourth assignment of error concerning another special charge before argument is discussed in the opinion.

We do not wish to belabor these matters unduly, but we are particularly desirous of having counsel understand our position concerning the issues presented by the pleadings and the evidence.

We conclude that we must adhere to our decision of affirmance for the reasons herein and heretofore stated. Therefore the application for rehearing is denied.

Application denied.

Kovachy and Skeel, JJ., concur.


author: Wiseman, P. J.

text:
    State of Ohio, Department of Public Welfare, Appellee, v. Wendt, Admr., Appellant.
    (No. 4882
    Decided February 16, 1953.)

      Mr. C. William O’Neill, attorney general, Mr. Gus Tarian and Mr. Richard D. Metcalf, for appellee.

      Mr. Aubrey A. Wendt, for appellant.
   Wiseman, P. J.

This is an appeal on questions of law from the judgment of the Probate Court of Franklin County, in an action for a declaratory judgment.

The essential facts which are undisputed are alleged in the amended petition, and are epitomized as follows:

It is alleged that Ferdinand T. Koska was honorably discharged from the United States Army on January 8,1919. Sometime after his discharge, Koska applied for and was granted a disability pension. Thereafter, Koska became mentally ill and was admitted to the Columbus State Hospital. Koska was a patient in this hospital and a ward of the state of Ohio from November 27, 1948, until his death, which occurred October 6, 1950. He left surviving him one daughter, Ernestine M. Smith.

At the time of his decease Koska had no money or property of any kind other than $1,520.85 accrued pension, which had been withheld during the period of his hospitalization, and which was deposited by the United States Veterans Administration in its “Fund Due Incompetent Beneficiaries” account. After the appointment of the defendant as administrator of the estate of Koska, the defendant applied for and received from the Veterans Administration the $1,520.85, which was deposited by the defendant in his name as administrator in a checking account in a Columbus bank. Such sum constitutes the entire estate of the decedent.

The Department of Public Welfare presented to the defendant a claim in the amount of $845.59 for the support and maintenance of Koska while confined in the Columbus State Hospital. The claim was allowed, but the defendant contends that he has no funds available for the payment thereof, contending that the funds in his possession are exempt from all claims of creditors under the provisions of Section 454a, Title 38, U. S. Code. Plaintiff alleged that the defendant threatens to distribute such fund without paying the claim presented by it, and asked the court to declare the rights of the parties.

To the amended petition of the plaintiff, the defendant filed a motion for judgment on the pleadings. The court overruled the motion and, the defendant’ electing not to plead further, the court rendered final judgment in favor of the plaintiff.

Probate Judge McClelland, in the judgment entry, made this finding:

“The court further finds that when the United States Government, through its Veterans Administration, transferred the aforesaid fund to the decedent, such fund passed from the control of the United States Government to the control of the Probate Court having charge of the administration of the estate of the decedent, and that said fund lost its identity as money coming from the United States Government and by coming into the hands of the administrator of the estate of the deceased, it thereby became subject to the payment of the decedent’s debts in the order of their preference.”

The Probate Court made the following order:

“* * * it is further ordered and adjudged that out of the funds held by the defendant as administrator, said defendant pay to the state of Ohio the sum of eight hundred forty five dollars, fifty nine cents ($845.59) in the order of its preference.”

A determination of the question presented requires a construction of certain provisions of the U. S. Code. Section 454a of Title 38, U. S. Code, in part, provides:

“Payments of benefits due or to become due shall not be assignable, and such payments made to, or on account of, a beneficiary under any of the laws relating to veterans shall be exempt from taxation, shall be exempt from the claims of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary. ’ ’

Section 451, of Title 38, provides:

“The amount of the monthly installments of compensation, yearly renewable term insurance, or accrued maintenance and support allowance which has become payable under tbe provisions of Titles II, III, or IV hereof, but which has not been paid prior to the death of the person entitled to receive the same, may be payable to the personal representatives of such person, or in the absence of a duly appointed legal representative where the combined amounts payable are $1,000 or less, the director [Administrator of Veterans’ Affairs] shall allow and pay such sum to such person or persons as would under the laws of the state of» residence of the decedent be entitled to his personal property in case of intestacy: Provided, that in cases where the estate of the decedent would escheat under the laws of the place of his residence, such installments shall not be paid to the estate of the decedent but shall escheat to the United States and shall be credited to the appropriation from which the original award was made.”

The defendant contends that the pension money is exempt from the claims of creditors, and that the fund should be distributed to the daughter of the decedent. The plaintiff contends that under the facts in this case and under a proper construction of the federal statutes, the pension money has lost its identity as pension money, and the exemption' of such money from the payment of the claims of creditors has been lost; and, further, that the claim of the Department of Public Welfare should be paid out of such money before distribution to the next of kin of the decedent.

We find no reported case in Ohio and only a few decisions in other jurisdictions, touching this precise question. Defendant has cited several cases involving the proceeds of war-risk insurance policies and adjusted service certificates. These cases furnish no precedent and are not helpful in determining the question before the court. The cases involving the proceeds of war-risk insurance turn on the provisions of the insurance contract between the soldier and the government, and the applicable sections of the War Risk Insurance Act, which contain provisions dissimilar to the two sections above quoted, and which we are required to construe. We comment briefly on the cases cited. In Jones v. Price, Admr. (1929), 107 W. Va., 55, 146 S. E., 890, the widow and children sued the administrator of the insured to recover proceeds of an adjusted service certificate, which the administrator claimed should be used to pay creditors of the estate. The court sustained the contention of the widow, stating that the widow, and not the administrator, was entitled to the proceeds under the express provisions of Section 661, Title 38, U. S. Code, which section expressly provides that such money shall be paid to the dependents of the veteran giving first preference to the widow.

In the case of In re McCormick’s Estate (1938), 169 Misc., 672, 8 N. Y. Supp. (2d), 179, which involves proceeds from war-risk insurance, payment was made to the administrator, and the court held that under Section 454a, Title 38, ü. S. Code, the proceeds of war-risk insurance are exempt from the claims of creditors, and that such proceeds should be paid to the beneficiaries designated in the War Risk Insurance Act. The court in Haley v. United States, 46 F. Supp., 4, modified in 145 F. (2d), 235, which involved proceeds from war-risk insurance, cited with approval the McCormick case, and held that the exemption provided in Section 454a, extended not only to the veteran himself, but, also, to his estate.

In the case of In re Estate of Harris, 179 Minn., 450, 229 N. W., 781, which involved the proceeds of war-risk insurance, the court held that the administrator is simply a conduit to receive such funds, and is required to distribute such funds to the persons entitled thereto under the provisions of Sections 511 to 514, Title 38, U. S. Code, and other related sections of the War Risk Insurance Act. The Court cited with approval the case of Tax Commission v. Rife, 119 Ohio St., 83, 162 N. E., 390, which involved war risk insurance proceeds, and quoted from page 90, as follows:

“ ‘It is reasonable to assume that the purpose of Congress in making the payment to the administrator of the deceased soldier was for the benefit of the government, to relieve the government of the necessity of selecting and determining the next of kin of the deceased soldier to whom payment should be made, and to place his burden upon the administrator appointed in the state of the soldier’s residence. The administrator becomes a mere trustee or conduit for the government to make the payments to the persons entitled to the same under the provisions of the federal law. The intestate laws do not operate upon the decedent’s property, but are referred to in order to determine who shall take the proceeds of the insurance. Congress had a right to adopt the course of descent prevailing in the state of the residence of the soldier, and the proceeds of the insurance therefore pass under the federal act, the intestate laws of Ohio being adopted as a standard or guide for ascertaining the next of kin to whom payment shall be made. ’ ’ ’

In Surplus v. Remmele (1949), 194 Misc., 1036, 87 N..Y. Supp. (2d), 651, the pensioner had died, leaving a widow, who attempted to draw from the bank the pension money-which the pensioner had accumulated and deposited in the bank. A creditor of the widow sought to restrain the widow from drawing the money from the bank. The court held that the pension money was exempt in the hands of the widow, as against her creditors. The court leaned most strongly on the principle of law applied in war-risk insurance cases. That case can be distinguished from the case at bar on the facts.

In determining the question presented in the war-risk insurance cases, the courts noted, and we must observe also, that the federal statute expressly provides to whom the proceeds of war risk insurance shall be payable, as follows: “Insurance shall be payable only to a spouse, child, grandchild, parent, brother, sister, uncle, aunt, nephew, niece, brother-in-law, or sister-in-law, or to any or all of them * * Section 511, Title 38, U. S. Code.

Other related sections (Sections 512 and 514), which provide that the proceeds under certain conditions shall be payable to the estate must be construed so as to give effect to the mandatory provisions of Section 511, which requires payment to be made to certain designated persons. So, also, the exemption statute (Section 454a) must be construed to give effect to the provisions of Section 511, as it relates to war risk insurance.

However, there is no statute comparable to Section 511, providing to whom the proceeds of pension money is payable, except Section 451. This section expressly provides that accumulated pension money, which is not paid prior to the death of the pensioner, may be payable to his estate, or in the absence of a duly appointed fiduciary of the estate of the pensioner, where the amount payable is $1,000 or less, the veteran’s administrator may pay such sum to such person or persons as would, under the laws of the state of residence of the pensioner, be entitled to his personal property in case of intestacy. When a fiduciary is appointed to administer the estate of a pensioner, the federal statute requires payment to be made in every case to such fiduciary, except where the estate would escheat. Authority to make payment to the next of kin of the pensioner is granted only when the amount is $1000 or less and no fiduciary has been appointed. Payment to the fiduciary is not only preferred but required in cases where a fiduciary is appointed. No conditions or limitations attach to such payment. It is easily understood why the statute does not mention creditors. The creditors of an estate are usually numerous and classified as to priority, and to require payment to them by the veteran’s administrator would create a difficult administration problem. The statute recognizes a fundamental law in the administration of estates, which gives a creditor the right to compel an administration, if the next of kin fail to act. Consequently, if no administration is opened, the government should not be delayed in making payment, but will make payment to the next of kin under the intestate laws, if the amount involved is $1,000 or less. If the amount involved is more than $1,000, an administration is required and payment can be made only to the fiduciary. This provision is for the benefit of the government, and serves as a safeguard to the government in making payment without undue delay. If Congress intended the pension money to be received and distributed by the fiduciary only for the benefit of the next of kin of the pensioner,-we are of the opinion that it would have so provided. The statute does not attempt to control the fund after it is paid to the fiduciary. There is no statutory provision designating persons to whom the pension money is made payable, as in the case of war-risk insurance.

We now discuss briefly several cases cited by the appellee in support of its contention that the pension money paid to the administrator in the instant case lost its identity as pension money, and that the exemption against the claims of creditors no longer obtains. In the case of In re Lewis’ Estate (1938), 287 Mich., 179, 283 N. W., 21, where a child was confined in a state institution and her estate under guardianship consisted only of pension money received from the United States Government as the child of a veteran, the court held that the state is not barred by Section 454a, Title 38, U. S.- Code, from reimbursement out of such pension money for the care and maintenance of the child while confined in a state institution. The court discussed the effect of the amendment to Section 454a, effective August 12, 1935, and reasoned that the pension money was intended for the support of the child, and, therefore, in ordering the payment of the claim, it was acting in furtherance of the pension law.

We quote from the opinion, beginning on page 186, as follows :

‘ ‘ Previous to that amendment the exemption did not cover the pension after receipt thereof by the beneficiary. The very purpose of a pension, such as in this case, is to provide support for the beneficiary and, in this proceeding for reimbursement, the state, under the statute, is asking no more than the pension was given to provide. We are not here concerned with actions by creditors seeking to turn the pension to satisfaction of their demands, but only with the question of reimbursement of the state for care and maintenance. Certainly the pension protective law does not intend the fund for the welfare of the beneficiary and then, under restrictions thereof, after receipt by the beneficiary, prevent employment thereof for care and support of the pensioner.

‘ ‘ At the time the guardian of the pension beneficiary received the pension money she was a ward, not only of the Probate Court but, as well, upon her commitment for hospitalization, a ward of the state. The state asks no more than the guardian was, in duty and of necessity, obligated to provide by way of support, care and maintenance of the ward.

“The state, under humanitarian legislation, has assumed the care and maintenance of the insane pension beneficiary and, by statute, has provided means and measures for reimbursement and we do not think that, under such circumstances, Congress intended to consider the state in the class of barred creditors. The exemption in the pension law serves its purpose in holding that in the hands of the guardian and under order of the court, of which the beneficiary is a ward, the money is not exempt from employment in reimbursing the state, under statutory provisions, for the expense of care and maintenance of the ward.

“It seems to be a question without guiding precedent in this jurisdiction and applicable precedent elsewhere has not been brought to our attention. ’ ’

As will be noted, the court observed that the claimant was not a creditor ‘ ‘ seeking to turn the pension to satisfaction of their demands. ’ ’ The court here makes a distinction between the rights of a creditor who has furnished care and maintenance to the decedent as against the rights of other creditors. The claim in the instant case is of the same character as the claim in the cited case.

In the case of Estate of Buxton (1944), 246 Wis., 97, 16 N. W. (2d), 399, where the factual situation was similar to that presented in the instant case, it was held that where the assets of the estate of the deceased widow of a civil-war veteran consisted entirely of funds accumulated from the proceeds of a pension paid to the guardian of the deceased widow such assets are not exempt under Section 454a, Title 38, U. S. Code, from a claim of the state for care and maintenance furnished to the deceased while confined in an insane asylum. The state of Wisconsin has enacted a statute exempting such pension money, etc., from execution.

The court, on page 101, ibid., stated the question presented as follows:

“The question is squarely presented, whether funds exempt during the lifetime of the person entitled to them ceased to be exempt upon the death of the person under either the federal or state statute. ’ ’

In discussing- the effect of the provisions of Section 454a, Title 38, U. S. Code, the court, on page 101, ibid., said:

“The purpose of this legislation, both federal and state, is for the protection of the veteran. No reference is made in either statute to the heirs or legatees of the veteran, and nowhere do we find protection for them as against creditors of the deceased. To extend this exemption to the estate of the veteran is to extend it to the heirs or legatees, and if this is done it is difficult, if not impossible, to determine when and where the exemption would cease. An unambiguous statute will not be enlarged by inference or construction.”

On page 102, ibid., the court concluded as follows:

“There is nothing in either statute exempting the securities and moneys in question after they become a part of the estate of the deceased veteran. It is considered that none of the assets of this estate is exempt under 38 USCA, sec. 454a * * *.”

The case of In re Application of Citizens Trust Co., 227 App. Div., 839, 237 N. Y. Supp., 448, draws a distinction between the rights of creditors furnishing-care and maintenance to a veteran as against the rights of other creditors.

In the application of the principle of law laid down in the case of In re Lewis’ Estate, supra, this court may well hold that since the claim presented in the instant case is for care and maintenance of the veteran, justice and equity would require the payment of the claim in furtherance of the purpose of the federal government to grant pensions to veterans for their support and maintenance. Such a ruling- would be sufficient to support the judgment of the trial court, but it would not meet squarely the issue presented.

We approve and follow the rule stated in the Buxton case, supra, to wit:' The exemption provided in Section 454a, Title 38, upon the death of the pensioner, where the pension payments are terminated, is not extended to the protection of the heirs or next of kin of the pensioner, as against the rights of the creditors of the pensioner. The statute does not expressly so provide and the court will not enlarge on its provisions by inference or construction. The fund held by the administrator in the instant case will be administered as other assets and distributed under the intestate laws of the state of Ohio.

The judgment of the Probate Court, being in all respects correct, is hereby affirmed.

Judgment affirmed.

Miller and Hornbeck, JJ., concur.


author: Matthews, P. J.

text:
    Lieberman, Appellee, v. Present et al., Appellants.
    (No. 7617
    Decided March 23, 1953.)

      Mr. Samuel L. Chalfie and Mr. Harry Kasfir, for appellee.

      Mr. Sol Goodman, for appellants.
   Matthews, P. J.

This is an action to impose a trust upon an undivided one-sixth of the title to a residence located on Wilson avenue in the city of Cincinnati, the entire legal title to which, at the time this action was commenced, was in the name of the defendants as tenants in common. The plaintiff and the defendant Jean Present are brother and sister. The defendant Morris Present is Jean Present’s husband. With the exception of certain documents, the entire evidence was furnished by the testimony of the parties and their brothers and sister.

The evidence shows that at the time of his death in 1933, Max Lieberman owned a dwelling house on Whittier street in Cincinnati, Ohio, in which the family resided and which was encumbered by a mortgage. The balance due on the mortgage was left uncertain by the evidence. Max Lieberman died intestate, leaving surviving him his widow and six children. The widow and two of these children — Milton and Jean— both then unmarried, continued to reside in the family home.

The evidence discloses that Max Lieberman was a wage earner, struggling to maintain his family, and that at the time of his death all he had was this modest encumbered home worth only a few thousand dollars and a bank balance of perhaps $400.

It appears also that up to the time of the father’s death, and in spite of the fact that four of the children had married, there still remained considerable cohesion in the family and that this continued after his death so long as his widow, Clara Lieberman, lived. This is evidenced by the fact that shortly after Max Lieberman’s death, his six children joined in a deed, transferring all their title in the Whittier street property to their mother. The wives of those who were married released their inchoate dower. It is manifest that the sole purpose of this conveyance was to insure a home for their mother. The fact that Jean joined in the conveyance is conclusive that neither she nor her brothers and sisters had her in mind as a grantee to whom was conveyed either a legal or equitable title.

The evidence shows also that the unmarried children living with their mother contributed rather regularly to the expense of maintaining the home, and that the married children contributed at irregular intervals. One story was rented and in this way they succeeded in preserving the family home, which was a very modest one, reduced the mortgage debt, and accumulated some money under the control of the mother.

By 1939, the children had reached the conclusion that the character of Whittier street had so changed that it was no longer a desirable place of residence for their mother. The plaintiff happened to Learn that this Wilson avenue property was for sale, and being of the opinion that it would be a satisfactory residence for his mother and within her means, brought it to the attention of the family at a meeting at the mother’s home on Whittier street. The upshot of that meeting was that it was decided that the Wilson avenue property should be bought as a home for their mother, and that it should be her property, just as the Whittier street residence was then her home and property. A contract was entered into to buy the Wilson avenue property for $4,000. However, the written contract shows that the defendant Jean Present, then Jean Lieberman, signed the contract as purchaser, and that Ben Lieberman, her brother, signed as a witness to her signature. In accordance with the contract, the deed ran to Jean as the grantee. It is clear that the cash payment of $1,000 was made with the funds accumulated by the mother, Clara Lieberman, from various sources within the family, and which the children all regarded as her property. Jean Lieberman signed the mortgage for the unpaid portion of the purchase price.

Clara Lieberman, accompanied by her unmarried daughter, moved from her home on Whittier street to the new home on Wilson avenue, where she continued to live until her death in 1947.

On June 17,1943, Clara Lieberman sold tbe Wbittier street property for $5,500. The mortgage thereon had been reduced so that after its payment something more than $4,000 remained. On June 21, 1943, a deposit in a bank of $4,000 to the credit of Jean Lieberman was made. It is clear that this money came from the sale of the Whittier street property. Before the sale of the Whittier street property and after the purchase of the Wilson avenue property, there was a rental income of about $90 per month, and the monthly payments required by the terms of the mortgage on the Wilson avenue property were made from these rentals. In that way, the mortgage was reduced so that on February 3, 1945, the balance due was $1,-989.90. At that time, Joseph Lieberman, a son, suggested that, as his mother, as he supposed, was paying a higher rate of interest on the mortgage than she was receiving on her bank deposit, she use the money on deposit in the bank to pay the balance due on the mortgage. As a result, the bank records show that on Febbruary 3, 1945, $1,989.90 was withdrawn, and the records of the building association, the mortgagee, show that on that same day an identical amount was received by it in payment of the balance due on the Wilson avenue property.

It is manifest that what was done in the matter of providing a home first on Whittier street and later on Wilson avenue resulted from agreement among the children rather than the independent decision of the mother. The children arranged it, and the mother acquiesced. This resulted in part, at least, from the mother’s unstable health, which caused her to waver on the borderline between mental capacity and incapacity.

In deeding their interest in the Whittier street property and later arranging for the purchase of the Wilson avenue property, Jean Lieberman’s brothers and sisters certainly were not influenced by the motive of providing a home for Jean to their exclusion. There is strong circumstantial evidence that Jean herself had no such thought at the time. The possibility of turning to her own advantage the fact that the title was in her name seems to have occurred to her at a later time, perhaps as late as 1946, when she married her codefendant. The fact that she withheld from record her deed conveying an undivided one-half title to the Wilson avenue property is significant.

It was not until after the mother’s death that the brothers and sisters knew of Jean’s claim that she and not her mother was the owner of the Wilson avenue property. In a conversation on the subject of the funeral expenses, Morris Present told Joe Lieberman and Ben Liebe'rman that Clara Lieberman left no estate. They expressed surprise. Finally, an arrangement was made whereby Morris Present would pay the funeral expenses in consideration of which they agreed to convey their claims as heirs to him and his wife. Morris Present paid the funeral expenses and J oe Lieberman and Morris Lieberman have tendered to him a deed conveying whatever title they might have in the Wilson avenue property to Jean Present and Morris Present.

It is true that the defendant Jean Present claimed that she furnished the money for the cash payment on the Wilson avenue property, but her credibility was discredited on cross-examination. It would seem that she justified herself in so testifying by the fact that to a certain extent there was a commingling at the home of the money contributed by the various members of the family, or, at least, in the use of ’the money as occasion arose, without too much regard as to whether the obligation discharged was that of one or the other. But the money at the home was that of the mother, notwithstanding the contribution thereto by the chi Idren. And Jean’s contribution thereto, after deducting a reasonable amount for her board and living accommodations, must have been slight. Her employment record shows that during the nine years immediately preceding her marriage, when she quit her employment, her average monthly wage was less than $76.

We have measured this evidence by the rules that where a parent pays the purchase price and takes title in the name of a child, there is a presumption of a gift (40 Ohio Jurisprudence, 280, Section 100), and that to engraft an oral trust upon a deed absolute, the proof must be clear and convincing. 40 Ohio Jurisprudence, 170, Section 34. However, the presumption is rebuttable and the degree of proof may be satisfied by circumstantial evidence.

We have reached the conclusion that it was the money of Clara Lieberman that paid for the Wilson avenue property; that this money was derived from the income from and sale of the Whittier street property; that Jean Present held the legal title in trust for her mother, who owmed the equitable title at the time of her death; that an undivided one-sixth descended directly to the plaintiff; and that he is entitled to a decree so finding, and an accounting of the rents and profits derived since the death of Clara Lieberman.

A decree may be presented in accordance with this opinion, together with the costs including a reasonable fee to the master for his services, assessed against defendants.

Judgment accordingly.

Ross and Hildebrant, JJ., concur.


text:
    The State of Ohio, Appellee, v. Beatty, d. b. a. Novelty Food Bar, Appellant.
    (No. 4791
    Decided October 14, 1952.)

      Mr. C. William O’Neill, attorney general, Mr. William Ammer and Mr. Brooke Alloway, for appellee.

      Mr. Edmund B. Paxton, for appellant.
   Hornbeck, P. J.

This is an appeal from a judgment of the Municipal Court against the defendant in the sum of $160.27 with interest and costs. The action was predicated upon a finding of the Industrial Commission of Ohio in favor of Joe Alexander on his claim for compensation for injuries suffered while employed by defendant in the Novelty Food Bar.

The injuries suffered were caused by a collision of another automobile with the automobile of Beatty which was being driven by Alexander upon the direction of Beatty.

The finding was predicated upon the application of Alexander, supported by his affidavit and one supporting affidavit to the effect that Alexander was regularly employed at the Novelty Food Bar. Beatty filed a counteraffidavit in which he denied that Alexander was in his employ at the Novelty Food Bar and averred that, he was not regularly in his employ in any other capacity.

The commission made specific findings that at the time of the injury Alexander was employed by Beatty, doing business as the Novelty Food Bar; that the employer was not then a subscriber to the State Insurance Fund nor had he elected to pay compensation direct ; and that applicant’s injury was sustained in the course of employment and at the time and in the manner alleged in the application.

When the cause came on for trial, it developed, not only by uncontradicted testimony but by the admission of Alexander, that he was not at the time of his injury an employee of Beatty at his Novelty Food Bar. There was some question whether he was regularly employed at all but the evidence would support the finding that he was regularly employed at a rooming house and at Beatty’s residence. It developed that Beatty not only operated the restaurant known as the Novelty Food Bar but also a rooming house at 195 North Hamilton avenue and at one time also was engaged in the numbers business. Beatty lived at another address. There was testimony that he had three or more employees regularly employed at the rooming house at the time of Alexander’s injury, but this was denied and indefinite as to proof. It appeared further that at the time of the collision Alexander was driving Beatty’s automobile for him and that it was his practice to drive it at irregular intervals for Beatty. The only testimony as to the mission of Beatty at the time of the collision was that he was on his way to a Western Union Telegraph office to receive a telegram. Upon inquiry, he said that they left on the trip, in which Alexander was injured, from 195 North Hamilton avenue, and that his visit to the telegraph office was not in connection with any business which he conducted but was for his personal benefit.

It will be noted, from the foregoing facts, that the case which developed upon the action for judgment was entirely different from the facts as found to be true in the finding of the commission, and the facts developed at the trial as to the true place of employment of Alexander were not brought to the attention of the commission.

The question is: May we affirm the judgment upon this development ? Counsel for the state urge that the Novelty Food Bar was not a corporation and that to all intents and purposes all of Beatty’s operations were in his individual capacity and that, it appearing that the injury was suffered by Alexander while in the employ of Beatty at a place of business whose employees were covered by the Workmen’s Compensation Act, the judgment was proper and should be supported. It is the contention of defendant that there is such variance in proof that the judgment should be reversed.

It is basic that a judgment must be predicated upon issues drawn upon the pleadings. Upon such issues here, it is clear that the judgment does not meet this test.

Counsel have afforded the court no assistance whatever by any adjudication on the question whether an application for an allowance under the Workmen’s Compensation Act, based upon claim of employment in a specific business, is supported by proof of employment in some other business of the common employer. We have not found any adjudications on this specific question.

That part of Section 1465-61, General Code, applicable here reads:

2. ‘ ‘ Every person in the service of any person * * * employing three or more workmen * * * regularly in the same business, or in or about the same establishment under any contract of hire, expressed or implied, oral or written, * * * but not including any person whose employment is but casual and not in the usual course of trade, business, profession or occupation of his employer, ” is an employee.

The language employed connotes employment of workmen in the same business, in or about the same establishment. May it be said here that Alexander, although employed by Beatty, was regularly employed in the same business at the rooming house and Beatty’s residence as he would have been had he been employed at the restaurant? We think this doubtful.

Then, too, if this judgment is affirmed it will be carried on the records of the commission as an affirmance of its specific finding which finding is not in accord with the facts.

But a more serious question as to the sufficiency of the proof to support the judgment is found in the undisputed testimony of Beatty that at the time of the collision Alexander was working for him solely in a personal relationship. Is this a showing that the injury of which complaint was made arose out of or occurred in the course of the employment of Alexander in any business or establishment which was amenable to the workmen’s compensation law? This, of course, is a prerequisite to the right of the claimant to an award, and was not presented to the commission as it was developed at the trial upon its finding.

We are aware of the opinion of the Court of Appeals for Hamilton county in Prager v. State, ex rel. Bettman, 13 Ohio Law Abs., 128, in which it was held that upon determination that a judgment on a verdict of a jury supporting the finding of the commission must be set aside as against the weight of the evidence, the cause must be remanded for a new trial because of the prima facie case made by the finding of the commission. In our judgment, that case is not controlling.

The judgment is reversed and judgment is entered for defendant.

Judgment reversed.

Wiseman and Miller, JJ., concur.