author: Hornbeck, J.

text:
    The State, ex rel. O’Neill, Attorney General, Appellee, v. The Troy Sunshade Co., Appellant.
    (No. 483
    Decided February 6, 1954.)

      Mr. C. William O’Neill, attorney general, and Mr. Leonard J. Stern, for appellee.

      Mr. Dale D. Rapp, for appellant.
   Hornbeck, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court for plaintiff against the defendant, in the sum of $1,854.11, with interest and costs.

The action was instituted for the recovery of an additional award made by the Industrial Commission against the defendant upon a finding that an injury suffered by an employee of the defendant resulted from the employer’s violation of a specific safety requirement. The safety requirement which it is alleged was violated by the defendant is set forth in its entirety in bulletin 207, being sections 16 and 19 of the specific requirements promulgated by the Industrial Commission. The defendant answered by asserting three defenses, one of which was a general denial, another a denial of the jurisdiction of the commission to make the award and that it was made contrary to and in violation of the true and lawful meaning of the safety requirements, and, third, that there was no violation of any legal specific requirement.

Upon the issues drawn, the cause came on for hearing, evidence was offered by the plaintiff of the order of the Industrial Commission, and the settlement sheet was introduced showing the amount due plaintiff, which it was conceded made a prima facie case on behalf of the plaintiff. The defendant then offered the testimony of three witnesses. It was stipulated that other witnesses of the defendant were available but that their testimony was not offered because it would be cumulative. Practically all the testimony offered by the defendant was admitted without objection or exception. It tended to show that there was no violation of the requirements set out in the petition, that they were not specific requirements, that they were indefinite and susceptible of different meanings, and that the employee, in using the press with which he was injured, was negligent in that he failed to use it as directed and in the proper manner.

The trial judge, in a written decision, relied principally on State, ex rel. Duffy, Attorney General, v. Alexander, d. b. a. Alex-Short Builders, Miami County Common Pleas Court, No. 33870, unreported, in which case the court passed on the requirement upon the issue of whether it was a specific requirement. In the instant case, the trial judge found “that the decision of the commission as to whether or not the injury resulted from a violation of a specific safety requirement, is final. ’ ’ The trial court, in its decision recites:

“The court finds that under Article II, Section 35 of the Constitution of Ohio, the Industrial Commission of Ohio has full power and authority to hear and determine whether or not an injury, disease or death resulted because of the failure of an employer to comply with any specific requirement for the protection of the lives, health or safety of employees, enacted by the General Assembly or in the form of an order adopted by such commission, and that the determination and decision of said Industrial Commission of Ohio thereon shall be final, and that by reason thereof this court is without jurisdiction to inquire into the question of whether or not the injury suffered by John A. Ball was the result of the violation of a specific safety requirement.”

Under authority of Slatmeyer v. Industrial Commission, 115 Ohio St., 654, 155 N. E., 484, the trial court had jurisdiction to review the decision of the commission in respect to the imposition of the added award upon basic legal questions necessary to be determined by the commission before making such award. As we read the Slatmeyer case and other pertinent opinions — Pittsburg Coal Co. v. Industrial Commission, 108 Ohio St., 185, 140 N. E., 684; Gatton v. Industrial Commission, 93 Ohio St., 203, 112 N. E., 503; Fassig v. State, ex rel. Turner, Atty. Genl., 95 Ohio St., 232, 116 N. E., 104; and DeWitt v. State, ex rel., 108 Ohio St., 513, 141 N. E., 551 — when there is a specific requirement the commission has the sole and exclusive right to determine whether the failure to comply with that requirement caused the injury of which the employee complains. But the question whether a requirement is specific is one of law and not of fact alone. And if it is denied that there is a specific requirement, this issue may properly be determined on an appeal in the action instituted by the Attorney General to recover upon the additional award of the commission. This is emphasized in the opinion of Judge Jones in the Slatmeyer case, at page 657:

“Does the finality of the commission’s decisions extend to questions of law, arising in a proceeding where an additional award is imposed for failure to comply with such specific requirement? In this respect this court holds that it does not. The language of the Constitution is plain. The commitment of finality extends only to the single question of fact to be heard and determined. While the constitutional amendment may have contemplated that the industrial tribunal could dispose of a question of fact as well as a court constituted for that purpose, it no doubt recognized that upon legal, fundamental, or jurisdictional questions, action by a court would be. necessary. At all events, no legal questions were committed by the Constitution to the final jurisdiction of the commission.”

He continues by saying that if the attack by the employer is upon the imposition of the added penalty, “the constitutional amendment does not deny the right of the employer to question the added • award upon jurisdictional, legal, or constitutional grounds. ’ ’

He then makes the following statement:

“If the added per centum were imposed where no specific requirement was ‘enacted by the General Assembly or in the form of an order adopted by such board/ manifestly the commission’s finding of failure to comply would be illegal; or if in any manner the jurisdiction of the commission in respect to a specific requirement were attacked, that as well as other legal questions would still remain within the jurisdiction of the courts for the purpose of review, and a denial of judicial process in those respects would be a denial of due process.”

Here, by the pleadings and the testimony, the employer challenged the definiteness of the requirements and that they were specific and, therefore, the jurisdiction of the commission to make the additional award and the legality thereof.

We are aware of the provision of Section 871-25, General Code, that “allorders of the Industrial Commission of Ohio in conformity with law shall be in force and shall be prima facie reasonable and lawful,” but perceive no conflict between it and our holding. An order may be lawful but not be a specific requirement.

If we look at the decision of the trial judge in the light of his reference to the Alexander case, supra, it lends support for the conclusion that he determined the legality of the claimed specific requirement and all matters which were properly presented by the pleadings for his decision, and the judgment entry does not require us to hold otherwise.

The entry is practically a recitation of Section 35, Article II, of the Constitution of Ohio. There is no premise from which it may be held that the court did not consider the questions which were essential to the correctness of the judgment. It does not appear that he did not consider and determine that the requirement under consideration was specific. In this connection, it might be well to again call attention to some general principles which are well stated in 2 Ohio Jurisprudence (Pt. 2), 1017, Section 565:

“The. inference which the law raises is that every court does its duty and does right, and, unless the records show something to the contrary, it will be presumed that the lower court acted wholly within the law, that the decree or judgment was made upon proper grounds, that the court below applied the law correctly, and that its action was justified. A state of facts which is repugnant to the judgment will not be presumed, but on the contrary all reasonable inferences tending to support it will be adopted, and if the record is ambiguous it will be given that construction which is most favorable to the judgment.”

It may be that the trial judge decided this case against the contention of the appellant as to the extent to which the court should pass upon the legal questions which we have considered, but the entry does not exemplify the fact.

The error which is urged and argued in this court is not exemplified by the record, and we find no error assigned well made.

We affirm the judgment.

Judgment affirmed.

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


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    Bradford et al., Admrs., Appellees, v. Micklethwaite et al., Appellees; et al., Appellants.

      (No. 5075
    Decided April 27, 1954.)

      Mr. H. Paul Joseph, for plaintiff appellees.

      Messrs. Graham, Graham, Hollingsworth, Gottlieb & Johnston, for defendant appellees.

      Mr. Carrington T. Marshall, Mr. Orland R. Crawfis, Mr. John H. Summers, Mr. Frank A. Hunter, Mr. Peter Vacca, Mr. Aaron J. Halloran, Mr. Donald M. Hamilton, Sr., Mr. Frank H. Kearns, prosecuting attorney, Mr. Paul W. Martin and Mr. Charles A. Eberly, for appellants.
   Miller, J.

This cause was submitted upon the motion of Hazel M. Melick, Raymond C. Micklethwaite and Chester A. Micklethwaite, defendants, appellees herein, seeking an order dismissing the appeal on questions of law and fact for the reason that the court has no jurisdiction to entertain such an appeal. The appeal, which is brought by practically all the remaining defendants, is from the judgment of the Probate Court of Franklin County, determining that the appellees are the sole persons entitled to inherit the property of the intestate decedent, Dennis Raymond Kelly.

The action was instituted by the coadministrators of such estate who sought a determination of heirship under the provisions of Section 2123.01 et seq., Revised Code. All counsel seem to recognize that such a proceeding is purely statutory in character, is not a chancery action, and is not appealable on questions of law and fact. It is urged, however, that the character of an action is not determined solely from the petition but from the primary relief sought under the issues raised by the pleadings. We can agree with such a conclusion. See O’Leary, Exr., v. Burnett, 87 Ohio App., 70, 87 N. E. (2d), 897; Clark v. Clark, 110 Ohio St., 644, 144 N. E., 743. Our examination of the voluminous pleadings filed herein, there being some 28 defendants, discloses that the primary and only relief sought is the determination of who are the lawful heirs of the decedent. It is to be noted that defendant Rose Sigler McGhiey, appellant herein, filed an answer and a supplemental answer. In the original answer, she admitted that Dennis Raymond Kelly, deceased, was duly adopted as alleged in the petition. However, in her supplemental answer, she pleads that the adoption was without her knowledge and consent, and that it was fraudulent and “wholly illegal, void and of no effect whatever as affecting the status of the said son. ’ ’ Her prayer then is as follows:

“Wherefore, this defendant prays this court for a judgment and decree, declaring, determining and adjudging this defendant to be the sole and only heir at law and next of kin of said decedent and as such sole and only heir at law and next of kin that she inherited and is entitled to be possessed of the entire estate of said decedent, and for all other proper relief to which she may be entitled.”

Each of the remaining defendants, after setting out their defense, seeks a determination of the heirs of said Dennis Raymond Kelly. We find none of the pleadings seeks or prays for an affirmative relief in setting aside the judgment of adoption in the Illinois court. The answer attacking the adoption proceeding appears to us to be in the nature of an equitable defense to an action at law, which does not change the character of the case to one in chancery. In 2 Ohio Jurisprudence (2d), 749, Section 148, it is said:

“That an equitable defense is set up in an action at .law, or one which, under the former rule, plaintiff was entitled to have tried by jury, does not always make the case appealable on questions of law and fact. Thus, the fact that an answer in an action on a note set up an equitable defense did not make a case so appealable, where the answer went only to the credit upon the note and, if sustained, would not extinguish the plaintiff’s demand. A defense in the nature of fraud, even though cancelation, etc., are sought, but in which no affirmative relief by way of cross demand which if tried first would wholly supersede the plaintiff’s claim is pleaded, is defensive, does not convert the cause into chancery, and does not make the case appealable on questions of law' and fact.
“A distinction must be observed between a mere equitable defense and a cross-petition. Although a plaintiff’s cause of action may be at law, or one that under the former rule was triable by jury, where a new matter set up in the answer constitutes an equitable cause of action, which, if established, will extinguish or supersede the case made in the petition, the issues taken on such new matter are triable by the court, and not as of right by a jury. Such matter, where it constitutes a new affirmative chancery cause of action requiring a trial in advance and superseding the plaintiff’s case if sustained, makes the case so determined appealable on questions of law and fact, whether or not issue is taken on the averments of the petition. If issue is taken on the averments of the petition, the materiality of such issue will depend upon the result of the trial of the equitable case made by the defendant. If the equitable case is established, the decree will end the controversy and settle the rights of the parties. But if the defendant fails in his equitable case, the issues raised on the petition must be disposed of before the case can pass to final judgment.”

In the case of Lichtenberger v. Milligan, 63 Ohio App., 107, 25 N. E. (2d), 357, the syllabus provides:

“Where a person not in possession, in an action to quiet title to certain real estate, and also seeking an injunction and accounting of rents and profits, alleges that he is the owner in fee simple and that he acquired his interest as remainderman, his cause of action does not come within Section 11901, General Code, which gives ‘a right of action to quiet title to one out of possession who claims an estate in remainder or reversion in real property,’ and the cause of action is not within the jurisdiction of a court of equity. The relief asked for by way of injunction and accounting being incidental only, stands or falls upon the granting or denying of the principal relief prayed for, the quieting of title.”
In Raymond v. T., St. L. & K. C. Rd. Co., 57 Ohio St., 271, 48 N. E., 1093, the syllabus, in part, provides as follows:
“3. Whether a case is one in equity or at law, does not depend upon the understanding of counsel, or of the trial court, nor upon the form of the judgment rendered, but upon the nature of the action as shown by the pleadings.
i C * * *
“5. The nature of such action is not changed by an answer which pleads an estoppel merely as an equitable defense.
“6. Allegations of new matter of an equitable nature in the reply, do not change the nature of the action itself.”

Our examination of the pleadings reveals that the primary and only relief sought by all the parties is that they be determined to be the heirs of the decedent. The other questions raised are merely incidental to the primary question of heir-ship. The appeal is, therefore, one on questions of law only.

The motion to dismiss is sustained, but the cause will be retained for determination on questions of law. The appellants are granted leave to perfect such appeal in accordance with the supplement to Bule VII of this court. We recognize that this is an appealable order (In re Estate of Stafford, 146 Ohio St., 253, 65 N. E. [2d], 701), and in the event an appeal is taken on it to the Supreme Court and the ruling of this court is sustained, then the time for perfecting the appeal on questions of law shall not start to run until the judgment of the Supreme Court is journalized.

Motion to dismiss sustained

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


author: Matthews, P. J.

text:
    Mink, a Minor, Appellee, v. The Cincinnati Street Ry. Co., Appellant.

      (No. 7884
    Decided November 22, 1954.)

      Mr. Fred L. Hoffman, Messrs. Waite, Schindel & Bayless and Mr. Philip J. Schneider, for appellee.

      Mr. Leo J. Brumleve, Jr., for appellant.
   Matthews, P. J.

The plaintiff, Evelyn Mink, a minor four years of age at the time, was struck by defendant’s bus on October 18, 1946, while it was proceeding in an easterly direction on Clark Street, a public street in the city of Cincinnati, Ohio. She was seriously injured. She filed this action on October 13, 1950, to recover damages on account of those injuries. After two mistrials, the case went to trial on October 20, 1953, on a second amended petition and an amended answer thereto.

The jury returned a verdict for the plaintiff for $20,000. A motion for a new trial was duly filed, which motion the court overruled and entered judgment on the verdict. This appeal is from that judgment. The appellant has assigned several errors in the trial, which it asserts were prejudicial and require a reversal of the judgment.

At the request of the plaintiff, the court gave this special charge before argument:

“The court charges you that if you find from a preponderance of the evidence that defendant’s bus driver was negligent in any respect as charged by the plaintiff, and which negligence caused Evelyn Mink to be injured, then your verdict should be for the plaintiff.”

The giving of this special charge is assigned as error because of the use of the word, “caused,” without expressly qualifying it by either the word, “directly,” or the word, “proximately.” It will be observed, however, that the negligence referred to is that “charged by the plaintiff.” An examination of the second amended petition upon which the parties went to trial discloses that she expressly alleged the injuries which she suffered “were the direct result of the defendant’s negligence.” If her injuries were the direct result of the defendant’s negligence then, of course, the defendant’s negligence was the direct cause. They are simply transpositions of the same thought.

We are of the opinion that the charge was responsive to the pleadings, which the jury had with it during its deliberation. We do not think the jury could have been misled by it.

We are further of the opinion that at most the only criticism that could be leveled at this charge is that it was indefinite. We do not think that we would be justified in treating 'this charge as though it expressly stated that if the plaintiff’s injuries were caused either directly or remotely by defendant’s negligence she would be entitled to recover. Under any circumstances that would be a strained construction and certainly would not be the natural construction under the circumstances of this case.

Furthermore, any indefiniteness in this charge was completely removed by special charges given at the same time and, later, by the general charge.

Appellants counsel relies on the rule that where two conflicting instructions are given prejudicial error necessarily results, because it cannot be determined which of the two was followed by the jury. As we have determined that this is not a case of conflicting instructions, we conclude that the cases relied upon are inapplicable.

We are of the opinion that no prejudicial error was committed in the giving of this special charge.

Next, it is urged that the court erred in excluding evidence of certain municipal ordinances offered by the defendant. These ordinances regulated the sounding of gongs, the yielding of the right of way by pedestrains between cross-walks, the requiring of due care toward pedestrians by operators of vehicles between cross-walks, and the defining of cross-walks and intersections.

In considering this ruling it should be remembered that the plaintiff was a minor only four years of age, and under the law could not be charged with negligence based upon a failure to observe any common-law or municipal rule of conduct. It is urged, however, that the existence of these rules would in some way qualify the duty of the defendant in the operation of its bus. We fail to see anything in these ordinances that would reduce, affect, or qualify the degree of care required of the defendant or how the ordinances would constitute a circumstance to be considered in determining whether reasouable care had been exercised.

We are of the opinion that no prejudicial error was committed in excluding these ordinances.

Defendant requested the court to give two special charges defining the abstract duty of parents and custodians of children of tender years, and a third special charge applying this duty and instructing the jury that if the parents failed to perform their duty and thereby enabled the plaintiff “to go upon Clark Street unattended — and if you find that such conduct was contrary to the conduct of ordinarily prudent persons under the same or similar circumstances, then the parents or custodians- were negligent; and if you find that they were so negligent, and that such negligence was the proximate cause of her injuries and not any negligence of the defendant, then the plaintiff cannot recover and your verdict must be for the defendant, The Cincinnati Street Railway Company.”

There is no evidence in the record accounting for the plaintiff’s presence in Clark Street unattended. She may have escaped her parents’ control, despite their exercise of the utmost diligence. That would be a sufficient reason for the refusal of the court to give these charges.

Furthermore, the conduct of the parents — negligent or otherwise — could not be a proximate cause of this collision under any circumstances. How and why she was in Clark Street unattended at the time is immaterial and irrelevant to the issues in this case. The giving of the charges would have injected an irrelevant issue and would have tended to confuse the jury.

We conclude that the court did not err in refusing to give these charges.

For the same reasons, the court did not err in striking from the amended answer to the second amended petition the allegation that the sole and proximate cause of the plaintiff’s injuries was the parents’ act in permitting the plaintiff to play unattended in Clark Street — a much traveled street.

The plaintiff in her second amended petition quoted Section 506-8 of the Ordinances of the City of Cincinnati, prescribing in many particulars the mode and manner of operating motor vehicles in and over its streets.

In its general charge the court referred to the plaintiff’s claim that the defendant had violated this ordinance and, in that connection, said: “it is claimed that the defendant saw or should have seen Evelyn Mink, in the street in time to stop the bus and avoid striking her.” Shortly thereafter, the court quoted the entire first paragraph of that ordinance which is as follows:

“Section 506-8. No person shall operate a motor vehicle, trackless trolley or street car in and upon the streets or highways at a speed greater or less than is reasonable or proper, having due regard to the traffic, surface, and width of the street or highway and any other conditions then existing, and no person shall drive any motor vehicle, trackless trolley or street car in and upon any street or highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead.”

The court then said:

“With regard to that last provision of that section of the ordinance, the court says to you that if you find that this bus driver was, or in the exercise of ordinary care should have seen this child in the street and that he failed to stop his bus, then you would be warranted in concluding that he had violated that provision of the ordinance. On the other hand, if you conclude that he did not see this child, or in the exercise of ordinary care conld not have seen her because of the claim that she dashed into the street, then the court charges you. that you would not be warranted in finding that the bus driver violated that provision of the ordinance.”

Later, the court instructed the jury as follows:

“This is a rather simple case, ladies and gentlemen, because there is only one of two conclusions at which you may arrive. One conclusion is that the defendant in this case was guilty of negligence; that such negligence was the proximate cause of the plaintiff’s injuries, and in that event the plaintiff is entitled to recover'; or you may conclude that the defendant was not guilty of negligence, and that this result, without regard to its severity, was brought about by the actions of this child herself, and that the defendant is not responsible therefor. If you come to that conclusion then your verdict should be for the defendant.”

It is claimed that the court erred in its statement of what conduct would constitute a violation of the ordinance — that it was not sufficient to show that the operator of the bus saw, or by the exercise of ordinary care should have seen, the plaintiff before the collision; but that it ivas necessary for the plaintiff to prove that the defendant saw or should have seen her long enough to stop and avoid striking her by the exercise of ordinary care in the operation of the bus.

It will be observed that that portion of the charge complained about relates to what the jury would be warranted in finding to be a violation of the ordinance. It may be assumed that the basis set forth would be insufficient for that purpose, although the court in the sentence that followed excluded the possibility of a finding of a violation of the ordinance if the plaintiff “dashed into the street,” thereby implying that time to avoid the collision was essential. There was no instruction that the jury should find for the plaintiff if the jury found the ordinance had been violated. At no point in the charge did the court instruct the jury that the violation of the ordinance would be negligence. In various special charges the court correctly instructed the jury on the assured clear distance principle, the burden of proof, proximate cause, and the duty of the defendant to exercise ordinary care, and finally submitted the issue of reasonable care as tbe only issue for the jury’s determination, other than the amount of recovery in the event it found that issue in the plaintiff’s favor.

In this state of the record, we cannot say that the general charge contains affirmative prejudicial error.

Counsel also urges that the verdict is manifestly against the weight of the evidence. We have read the record and find the evidence conflicting on the circumstances surrounding this collision, from which evidence the jury was required to draw inferences as to its cause. If believed, there was ample evidence from which the jury could conclude that the collision was directly caused by the negligence of the defendant. We would' not be justified in disturbing the finding of the jury on the credibility of the witnesses.

For these reasons, the judgment is affirmed.

Judgment affirmed.

Hildebrant, J., concurs.


author: Per Curiam.

text:
    The State, ex rel. General Exchange Ins. Corp. et al., v. Crawford, Judge.
    (No. 2326
    Decided February 11, 1955.)

      Messrs. Schaffer & Andary, for relators.

      Messrs. Pickrel, Schaeffer & Ebeling, and Mr. William E. Selva, for respondent.
   Per Curiam.

This cause is submitted on a demurrer to a petition for a writ of procedendo. The petition alleges that an action in which relators were parties plaintiff was duly set for trial and that three days before the trial date, upon motion of defendant, a continuance was granted by respondent.

The granting or refusing of a continuance rests within the .sound discretion of the trial court. 9 Ohio Jurisprudence, 202, Section 7; State, ex rel. Buck, v. McCabe, 140 Ohio St., 535, 537, 45 N. E. (2d), 763. An appellate court will not interfere with the exercise of such discretion unless the action of the court is plainly erroneous and constitutes an abuse of discretion. Norton v. Norton, 111 Ohio St., 262, 145 N. E., 253. The allegations that relators have no adequate remedy at law and that the trial court abused its discretion are legal conclusions and are not admitted on demurrer. Gannon v. Gallagher, Dir., 145 Ohio St., 170, 60 N. E. (2d), 666. Relators fail to allege facts which constitute an abuse of discretion; neither does it appear that they are without an adequate remedy at law.

Demurrer sustained.

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


text:
    The State, ex rel. Focke, v. Kirkpatrick, Chief of Police.
    (No. 2317
    Decided January 26, 1955.)

      Mr. Joseph W. Shafts and Mr. Otterbein Creager, for relator.

      Mr. Herbert S. Beane, law director, Mr. William P. Keane and Mr. Arthur O. Fisher, for respondent
   Per Curiam.

This cause is submitted on the motion of respondent to dismiss the petition for a writ of habeas corpus. The relator invoked the original jurisdiction of this court. The facts have been stipulated.

The relator was arrested by the Police Department of the city of Dayton for a violation of an ordinance of the city. Re•lator filed a motion to quash, which was overruled. He is now awaiting trial in the Municipal Court of Dayton. The stipulated facts do not show that relator is in custody; however, the petition alleges he is being restrained of his liberty by the chief of police, and it seems to be conceded by counsel that he is in technical custody.

' The relator contends that the warrant for arrest was improperly issued, which, if all that is claimed is true, would amount to an irregularity which would not deprive the court of jurisdiction and the question could be presented only on appeal.

The principal ground for issuing the writ is the claim that the city ordinance, the violation of which the relator is charged with, is unconstitutional and void. It is well established in Ohio that the constitutionality of a statute or ordinance cannot be tested by a petition for a writ of habeas corpus. Yutze v. Copelan, Chief of Police, 109 Ohio St., 171, 142 N. E., 33, 32 A. L. R., 1048; Ex parte Elicker, 117 Ohio St., 500, 159 N. E., 478; Calhoun v. Russell, 154 Ohio St., 81, 93 N. E. (2d), 561; Hamlin v. State, 58 Ohio Law Abs., 274, 96 N. E. (2d), 426. In Yutze v. Copelan, supra, the syllabus is as follows:

“A writ of habeas corpus will not lie, to test the constitutionality of a statute or ordinance, in favor of one who has been convicted, where the criminal court wherein conviction was obtained had jurisdiction or power to determine the question of constitutionality. In such case the writ cannot be made a substitute for proceedings in error.”

Unquestionably the Municipal Court of Dayton had jurisdiction and power to determine the question of the constitututionality of the ordinance. That court has jurisdiction of the person and the subject matter. It is axiomatic that habeas corpus will lie only when the court exercising restraint is acting without jurisdiction. 20 Ohio Jurispnidence, 429, Section 11. If the court issuing the process, rendering the judgment, or making the order, had jurisdiction the writ of habeas corpus shall not be allowed. Section 2725.05, Revised Code.

Motion to dismiss sustained.

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


author: Montgomery, J. McClintock, J.,

text:
    St. Francis Hospital Assn., Appellant, v. Bowers, Tax Commr., Appellee.
    (No. 359
    Decided December 15, 1954.)

      Mr. Robert E. Scott and Mr. D. Deemer Agnew, for appellant.

      Mr. C. William O’Neill, attorney general, and Mr. Jack E. Bertsch, for appellee.
   Montgomery, J.

This proceeding comes before us as an appeal from the Board of Tax Appeals, and involves the assessment of sales tax, aggregating about $23,000, against the appellant St. Francis Hospital Association, which is now a private hospital in the city of Cambridge.

No sales tax was included in the charges against patients for medicines or other supplies; and in the statements.or bills rendered patients there was no “breakdown” between the amount charged for drugs and other medicines, and other service. On that theory the Tax Commissioner, upheld by the Board of Tax Appeals, assessed this tax against all services rendered, all supplies furnished, and all expenses incidental to the operation of the institution.

Two errors are assigned, to wit:

“1. The commission erred in assessing the sales tax on the entire hospital bill of patients at St. Francis Hospital.
“2. The commission erred in assessing the sales tax on medicines and drugs administered patients by appellant St. Francis Hospital.”

Counsel for the commission place reliance directly upon the case of Wilson v. Glander, Tax Commr., 151 Ohio St., 479, 86 N. E. (2d), 761, the syllabus of which is:

“Where a person sells material to another and in connection therewith furnishes labor or service in applying such material to his customer’s property, the entire transaction shall be considered a sale and subject to tax, unless there is a clear separation, in the making or billing of a charge therefor, of the material furnished and the labor or service performed.”

It is a far cry from the recapping of automobile and truck tires to the restoration of the health of a human being. And in any event, two suggestions are to be made about this Wilson case. In the quoted syllabus there is a limitation upon the proposition in that it is indicated there may be an exemption if there is “a clear separation, in the making or billing of a charge therefor.”

In other words, the mere failure to bill the patient for these items separately does not warrant the assessment of the tax if there is a clear separation in the making of the charge. And in concluding the opinion on page 485, the court in the Wilson case says: “We do not mean to hold that there must be any particular or scientific method of bookkeeping or invoicing to show a separation of material from labor or service performed, in order for a transaction to be exempt from the sales tax so far as the labor or service is concerned, but we hold that the separation must be such as to clearly show in the invoice or charge what the sale price is for the material and what the charge is for labor or service.”

In any event — and with natural hesitancy do we assume to interpret the opinions of a higher court, or place limitations upon them — the later case of Roberts v. Glander, Tax Commr., 156 Ohio St., 247, 102 N. E. (2d), 242, seems to us to be directly applicable to the instant case rather than the Wilson case, supra. The syllabus in the Roberts case is:

“By virtue of. the provisions of Sections 5546-1 and 5546-3, General Code, a sales tax is determined by the consideration for both services rendered and the materials furnished in an upholstery repair job unless the consideration for services is separately stated from the consideration for materials furnished, and a vendor who separately states such consideration on his books of account available to the Tax Commissioner and who collects the proper tax from his customer is entitled to have excepted as a predicate for the sales tax the consideration for services rendered even though he fails to make such separate statement on an invoice delivered to his customer-vendee for such repair job.”

And on page 251 of the opinion the court says:

“Doubtless a purchaser may demand an invoice for, as he may demand an inspection of, goods purchased before payment may be required. On the other hand, it is apparent that the purposes to be served in making the separation of charges are to enable the Tax Commissioner to determine and assess the tax and to enable the vendor to make his tax return to the state and claim his exception by keeping copies of his invoices or by keeping books of account reflecting the breakdown of the charges. And it is quite apparent that such a breakdown on the books of the vendor would be just as efficacious for the purpose and more permanent in form than the retention of invoices as and when made.”

In the instant case one of the examiners for the commission testified that hospital records were available from which specific charges could have been determined, although they .were not separated upon any statements rendered. An auditor for the appellant testified to the same effect and further that actual drugs and other medicines furnished would not exceed 20 per cent of the total charge in any event, or $4,600 as distinguished from $23,000.

Frankly, we think that the charge made is an outrageous charge in view of the law and the records actually available from this hospital, even though there was not a strict compliance with the rules of the commission. This conclusion seems to us inevitable on the basis of reason, and on the authority of the Roberts case, supra, which, while not specifically doing so, certainly does modify and qualify the Wilson ease, supra.

In other words, we hold against the appellant in its suggestión that the bills for medicine were purely incidental and that no sales tax should be levied, but we hold with it on its contention that the commissioner erred in assessing sales tax on things other than medicines and drugs.

It follows that, quoting the concluding paragraph in the Roberts opinion: “The decision of the Board of Tax Appeals is reversed and the Tax Commissioner is directed to revise the sales tax assessed against the appellant in accordance with this opinion.”

Decision reversed.

Putnam, P. J., concurs.

McClintock, J.,

dissenting. The facts in this case, as stated by the appellant in its brief, are as follows: In rendering its statements or invoices to its patients the appellant combined the cost of the nurses, administration costs, the charges for staff doctors, and the drugs all into one charge for drugs or medicines. No separate charge was stated on the invoices for the doctors’ fees or the nursing fees or for any of the services rendered by the hospital, there being two items only, drugs and room. Handling the invoices in this manner made the room charge unusually low and the medicine and drug charge unusually high, and appellant claims the reason for doing so was the competition with the Good Samaritan Hospital in Zanesville, Ohio. Good Samaritan was operated by the Catholic Church. The Sisters at Good Samaritan donated their services, thus enabling such hospital to make an unusually low room charge. In order to make their room charge compare favorably with the Good Samaritan Hospital room charges, the appellant, St. Francis, tacked its charges for nurses and doctors and administrative costs onto the medicine and drug charge, and rendered the invoice to the patient with the medical charge actually including everything except the room charge, and in that manner made the medical charge on the invoice many times higher than it actually was. The average markup by hospitals on drugs is around 100 per cent. However, St. Francis marked its up around 800 per cent by including these extra charges.

It is clear that the appellant does not deny that it makes sales of medicines to its patients, nor does it deny that no charge for service is separately stated on its invoices to the patients or on the records it keeps of those invoices. It only contends that by consulting other records, which we do not know about and which were not introduced at the hearing, a proper breakdown could be made.

As to the law of this case, I cite Wilson v. Glander, Tax Commr., 151 Ohio St., 479, 86 N. E. (2d), 761, the syllabus of which is as follows:

“Where a person sells material to another and in connection therewith furnishes labor or service in applying such material to his customer’s property, the entire transaction shall be considered a sale and subject to tax, unless there is a clear separation, in the making or billing of a charge therefor, of the material furnished and the labor or service performed.”

Also, on page 482:

“Section 1464-3, General Code, provides for the adopting and promulgating of rules by the commissioner, and rule 73 of the commissioner, as amended, reads:
“ ‘Repairmen are making sales of all tangible personal property which is transferred by them to their customers in connection with regular repair work.
“ ‘Where the charges for material and labor or service are not separately stated, the tax base for the application of the tax is the full amount charged with no deductions.
“ ‘Where the charges for material and labor or service are separately stated, the tax shall be computed on the charge for material and no tax shall apply on the charge for labor and service.
< i 4 * # *
“ ‘This rule is applicable to all repairmen, including * * * tire retreaders, as well as those engaged in recapping tires # * # y
“Section 5546-9a, General Code, provides that in case any vendor fails to collect the tax imposed by Section 5546-2 he shall be personally liable for the amount he failed to collect or for an amount of prepaid tax receipts which he failed to cancel.
“The commissioner has the power to make an assessment against any vendor, based on any information which shall come into the commissioner’s possession, for any taxes which the vendor failed to collect or for which he failed to cancel prepaid tax receipts, and any such assessment carries with it a penalty of 15 per cent.”

The Wilson case is approved in the case of Rose v. Glander, Tax Commr., 153 Ohio St., 363, at page 365, 91 N. E. (2d), 685.

It is claimed in the majority opinion that the case of Roberts v. Glander, Tax Commr., 156 Ohio St., 247, 102 N. E. (2d), 242, in some respects is distinguished from the Wilson case.

The syllabus in the Roberts case is as follows:

“By virtue of the provisions of Sections 5546-1 and 5546-3, General Code, a sales tax is determined by the consideration for both services rendered and the materials furnished in an upholstery repair job unless the consideration for services is separately stated from the consideration for materials furnished, and a vendor who separately states such consideration on his books of account available to the Tax Commissioner and who collects the proper tax from his customer is entitled to have excepted as a predicate for the sales tax the consideration for services rendered even though he fails to make such separate statement on an invoice delivered to his customer-vendee for such repair job.”

And on page 250:

“In the opinion in that case, Judge Stewart said:
“ ‘We do not mean to hold that there must be any particular or scientific method of bookkeeping or invoicing to show a separation of material from labor or service performed, in order for a transaction to be exempt from the sales tax so far as the labor or service is concerned, but we hold that the separation must be such as to clearly show in the invoice or charge what the sale price is for the material and what the charge is for labor or service. ’
“It must be observed that in that case the court and the writer of the opinion were dealing with a case where no books were kept showing separate charges, the only record of the transaction being an invoice upon which no separate charges were made. In the instant case, the vendor made a complete separation of the charges for labor and materials on his books so as to reflect all the information required for the commissioner to determine and assess the tax.”

Also, on page 253:

“As to preparing and making such return and establishing its correctness Section 5546-12, General Code, provides:

“ ‘Bach vendor shall keep complete and accurate records of sales of taxable property, together with a record of the tax collected thereon, which shall in every instance be the amount due under the provisions of this act, and shall keep all invoices, bills of lading, retained parts of cancelled prepaid tax receipts and such other pertinent documents, in such form as the commission may by regulation require. Such records and other documents shall be open at any time, during business hours, to the inspection of the commission * * V ”

I am of the opinion, after a careful reading of both these cases, that the Roberts case does not modify or overrule in any way the Wilson case.

The Roberts case says that the books'of account may show a breakdown, even though the invoices do not. In the casé now under consideration neither the appellant’s books of account, nor its invoices, nor any other part of its records carried a breakdown of charges made to a patient.

For the reasons herein stated, I am of the opinion that the decision of the Board of Tax Appeals was not unreasonable or unlawful in finding that the Tax Commissioner did not err in assessing appellant for sales tax it failed to collect or return on the price it charged for medicines.


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    Scharff, d. b. a. Scharff’s Tavern, Appellant, v. State of Ohio, Board of Liquor Control, et al., Appellees.

      (No. 5178
    Decided February 2, 1955.)

      Mr. H. David Lefhowitz and Mr. Joseph L. Zelazny, for appellant.

      Mr. C. William O’Neill, attorney general, Mr. Kiehner Johnson and Mr. Russell J. Spetrino, for appellees.
   Miller, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court affirming an order of the Board of Liquor Control, which affirmed that of the department of Liquor Control denying the appellant a new D-3 liquor permit.

The record discloses that on December 10, 1948, the appellant filed his application for said permit for premises located in the village of Brecksville, Ohio; and that on September 9, 1953, the department issued the following order rejecting said application:

“This matter having been carefully considered by the Department of Liquor Control upon the application, report of investigation and allied documents, the application is refused and rejected upon the basis of the department’s findings hereinafter set forth.
“The department finds that subject application, filed on December 10, 1948, is for the issuance of a D-3 permit.
“The department further finds that to issue said D-3 permit would be contrary to the provisions of Regulation 64 of the Board of Liquor Control. Regulation 64 of the Board of Liquor Control provides in part as follows:
“ ‘No new D-3, D-3A, D-4 and D-5 permits shall be issued except permits issued pursuant to the provisions of Regulation 14, and except, also, new permits upon the expiration of any existing permits to the same permit holder for the same location. ’
“The department finds that as of April 11, 1949, there was 1 class D-3 permit issued and outstanding in the village of Brecksville, Ohio. The department further finds that as of this date, September 9, 1953, there is still 1 class D-3 permit in the village of Brecksville, Ohio.
“The department’s findings that a new D-3 permit cannot be issued to the applicant are based solely upon the provisions of Regulation 64 of the Board of Liquor Control and for no other cause. The department has not made any inspection of the applicant’s permit premises nor has there been an investigation of the applicant himself as to whether or not he is a qualified person to hold a class D-3 permit under the provisions of the Liquor Control Act or the regulations of the Board of Liquor Control.
“Accordingly, application No. E 1546 is hereby refused and rejected. Refund check for the fee accompanying said application will be forthcoming.”

The only evidence submitted before the board was a stipulation that the number of inhabitants in the village of Brecksville on December 10, 1948, was in excess of 2,500; that there was one D-3 permit then issued and outstanding; and, further, that on April 11, 1949, the number was the same as well as on September 9, 1953, when the rejection order was made.

The appellant urges that when the application was filed there was no freeze on the number of permits which could be granted, but that the same was governed entirely by the statutory limitation and under which the permit could have been granted; that a freeze on the number of liquor permits was established in January 1949, by executive order which remained until March 28, 1949; and that from that date until April 11, 1949, there was no freeze on, but that on April 11, 1949, the numbér of permits was again frozen by regulation No. 64.

It is admitted that if the various freeze orders had application during their effective dates, the permit could not have been lawfully issued, but the appellant contends that his rights to a permit were fixed as of the date of the filing of the application, to wit, on December 10, 1948. This would be true if any rights vested in the applicant when the application was filed, bnt snch does not appear to be the law. It seems to be well established that a legal license confers no right or estate or a vested interest. 8 Ohio Jurisprudence, 525, Section 388; State, ex rel. Zugravu, v. O’Brien, 130 Ohio St., 23, 196 N. E., 664.

The constitutional inhibitions as to the impairment of the obligation of a contract do not extend to licenses. 12 American Jurisprudence, 36. See, also, numerous cases cited therein.

In State v. Gibbs, 82 Vt., 526, 74 A., 229, 24 L. R. A. (N. S.), 555, 18 Ann. Cas., 525, the court held that a license to sell liquor is not a contract between the state and the licensee, giving the latter vested rights, and it cannot be so granted as to be irrevocable.

If there can be no vested right in a permit, it must logically follow that there can be none in an application for the same; hence, the law applicable at the time of the passing on the application by the proper authorities must govern.

In Board of Liquor Control v. Tsantles, 156 Ohio St., 512, 103 N. E. (2d), 749, the court says at page 514:

“ Applications may be filed and processed at any time, but the granting of them is a matter for the judgment and control of the department.
" # # #
“ * * * A permit is issued as a mere privilege and not as a matter of right, and its issuance is in control of the department. ’ ’

The applicant also contends that he was restricted by the board as to the evidence he might be permitted to offer. We do not think that such a conclusion is sustained by the record. But even if the appellant were correct as to his contention, no proffer of additional evidence was made; hence, we cannot say that its exclusion was prejudicial.

The judgment is affirmed.

Judgment affirmed.

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


text:
    Spence, Admx., Appellee, v. Commercial Motor Freight, Inc., of Indiana, Appellant.
    (No. 130
    Decided April 6, 1954.)

      Mr. Walter H. Earley and Mr. Horace W. Baggott, for appellee.

      Mr. Waldo E. Young, for appellant.
   Hornbeck, J.

This is an appeal on questions of law from a judgment for the plaintiff against the defendant in the sum of $42,000 entered on a verdict of a jury.

The action was for damages for the wrongful death of plaintiff’s decedent because of the negligence alleged in plaintiff’s amended petition. Plaintiff’s decedent died by reason of a collision between a milk truck, which he was driving, and a truck driven by the agent of defendant, Commercial Motor Freight, Inc., of Indiana. Both trucks were moving westwardly on U. S. Route 35, and the collision occurred about three and one-half miles west of Eaton, at a point about 219 feet west of the intersection of U. S. Route 35 and the Eaton and New Hope Road.

After the impact, the milk truck came, to rest in a corn field on the north side of U. S. Route 35, the driver, having been thrown from the truck. The defendant’s truck moved a distance of about 165 feet after the collision, and came to rest on the berm on the north side of the road. Plaintiff’s decedent, prior to the collision, had made delivery of milk to the home of Mrs. Norma Matheny, who lived on the south side of ü. S. Route 35. She was in her kitchen, from a window of which she had a limited view of route 35 to the west. She observed plaintiff’s decedent moving from her home toward the north side of the road and when last she saw him his vehicle was astride the center thereof. She then looked away and in a very short period of time heard a noise which may have been a collision between the trucks. She was the principal witness and, indeed, as to certain material physical facts, the only disinterested witness. Other conclusions are largely circumstantial, to be drawn from photographs of the effects of the collision as appearing upon the trucks, the location of skid marks on the highway, the movement of the trucks before and immediately following the collision, and their position when they came to rest.

Plaintiff, in her petition and reply, set up four specifications of negligence. By the pleadings, the issues were drawn as to the negligence of the defendant in any one of the four particulars alleged, and the contributory negligence of plaintiff’s decedent.

The action was instituted against Commercial Freight Lines, Inc., Indianapolis, Indiana. Summons was served upon the Secretary of State of Ohio, and by sending to the defendant named, by registered mail, return receipt requested, a copy of the summons and of the service upon the Secretary of State. The receipt attached was returned, signed “Com. Motor by O. K. Riggle.”

Thereafter, Commercial Motor Freight, Inc.,, of Indiana, moved to quash service of summons upon three grounds:

1. That the defendant named is an Ohio corporation.

2. That the service could have been made upon the defendant as provided by law in the state of Ohio and not upon the Secretary of State.

3. That any attempted service upon the named defendant herein under Section 6308-2, General Code, is unlawful and void.

Following this motion, plaintiff moved for leave to amend her petition, praecipe for summons, summons, and return of summons, by correcting and changing the name of defendant in each instance to read “Commercial Motor Freight, Inc. of Indiana.”

The grounds for the motion were that the correct corporate name of the defendant sought to be sued is “Commercial Motor Freight, Inc., of Indiana,” and that there was a misnomer of the defendant in the petition.

The court sustained plaintiff’s motion and overruled the defendant’s motion to quash. This action is the first error assigned.

The trial judge, passing on the motions, filed a written opinion in which he found that the amendments sought to be made were authorized; that the law contemplated two methods of service; and that the plaintiff had the right to avail herself of either. He found that the corporate body, Commercial Motor Freight, Inc., of Indiana, had been apprised of the action filed and would lose no rights by being subjected to the jurisdiction of the court. With this conclusion we are in accord. We doubt whether it is necessary to go beyond the letter of the statute to determine the question. Section 2309.58, Revised Code (Section 11363, General Code), so far as applicable, provides:

“Before * * * judgment, in furtherance of justice and on such terms as it deems proper, the court may amend any pleading, process * * * by correcting a mistake in the name of a party or a mistake in any other respect * * * when the amendment does not substantially change the claim or defense * *

There can be no doubt as to the right to amend by changing the name of the defendant in the petition. The only question of substance is whether the court was authorized to overrule the motion to quash in view of the form of the service. There is similarity between the names, “Commercial Freight Lines, Inc.,” and “Commercial Motor Freight, Inc.” The former is an Ohio corporation, the latter is an Indiana corporation. Carried as a part of the title in the petition was “an Indiana corporation,” and the petition averred that the defendant was an Indiana corporation. It is manifest that the entity sought to be reached in the petition, praecipe, and by the service, was the Indiana corporation. It was actually apprised of the action by the registered letter which it accepted. The intent of the plaintiff as to the corporation sought to be subjected to the jurisdiction of the court is clear from all the facts developed. The entity sought to be reached was notified in regular manner, subject only to the disparity in name. The intent of the service of process was accomplished.

It is held in United Fuel Gas Co. v. City of Ironton, 107 Ohio St., 173, 140 N. E., 884, 29 A. L. R., 342, that the discretion vested in the court by Section 11363, General Code, should be exercised in the furtherance of and not for the purpose of defeating justice. Under authority of Section 10214, General Code, the provisions of Section 11363, General Code, are to be liberally construed: Douglas, Admx., v. Daniels Bros. Coal Co., 135 Ohio St., 641, 22 N. E. (2d), 195, 123 A. L. R., 761.

In State, ex rel. Heck, v. Sucker, 77 Ohio App., 257, 65 N. E. (2d), 268, the court held that in furtherance of justice the court may order a defective summons amended, without requiring amended summons to be served, if it be shown that the party served will not be prejudiced thereby. The court in its opinion called attention to the fact that Section 11363, General Code, had special application to process and that it authorized correction of a mistake in any other respect. The court, at page 259, said:

“ ‘It [Section 11363, General Code] further authorizes an amendment of a mistake in any respect. Broader and more efficient language could hardly have been used to vest this power. The only limit seems to be to cases where an amendment would not be in furtherance of justice. ’ ’ ’

Burton v. Buckeye Ins. Co., 26 Ohio St., 467, is cited. There the summons was permitted to be amended although it contained the name of the insurance company but the defendant was actually served. Many cases are cited and commented upon by the plaintiff, but it would be a work of superarrogation to cite and comment upon them. Suffice it to say that they support, as a matter of law, the action of the trial judge here.

Defendant cites and relies upon Uihlein v. Gladieux, 74 Ohio St., 232, 78 N. E., 363. There are several distinguishing differences between that case and the instant cause. The action under review in the cited case required consideration of a suit originally instituted in a justice of the peace court wherein the jurisdiction must clearly appear upon the record. The enabling provisions of Section 2309.58, Revised Code (Section 11363, General Code), have no application. That section defines procedure in the Common Pleas Court. The case was adjudicated upon error proceedings. There was no attempt in the original action to name the individual in the title, against whom judgment was rendered. There was no observance of the statutory requirements as to what the summons shall contain when the name of a party is unknown. There was no showing that the party against whom the judgment was entered was served personally. And, finally, the judgment was entered against the defendant with the finding that the name of that defendant was unknown. The court held that the facts upon which the judgment of the justice of the peace court was predicated must be shown affirmatively, and that they did not appear.

In Hendershot v. Ferkel, 144 Ohio St., 112, 56 N. E. (2d), 205, the court supported the contention of the appellee that service on the defendant had been accomplished under Section 6308-2, General Code (Section 2703.20, Revised Code). The statement of Judge Matthias on page 120 is to the effect that service of process by registered mail, as provided in Section 6308-2, General Code, defining the essentials of service of process upon nonresidents, should be strictly followed in order to invest the court with jurisdiction. Judge Hart, in the dissenting opinion, stresses the determinative question which was before the court, namely the essential steps to be taken by the officer to whom the writ is directed. That case is not authority upon the question under consideration here.

The final case cited is Ksenich v. Lorain St. Ry. Co., 10 Ohio Law Abs., 357, 31 N. E. (2d), 266. There the action was instituted against the Lorain Street Railway Company. It should have named the Lorain Street Railroad Company. The service of summons was upon a train dispatcher, who the sheriff understood was an agent of the railway company, but who, according to the evidence, was in fact a train dispatcher of the railroad company. The answer was filed in the name of the railway company, counsel appeared solely for that company, and the cause went to trial and judgment upon the situation thus developed. Judge Washburn found that the record failed to disclose “who the officers of the two companies are or what relation, if any, one company has to the other.” It was held that there was before the court a defendant company over which the court had jurisdiction, namely, the railway company which was named in the petition, as defendant, upon whom service was had; that it did not move to quash the service; and that the plaintiff, after a jury had been sworn, did not avail himself of the right to withdraw a juror and properly present the right party before the court, but insisted that he had a right then to substitute, for a party properly sued and in court, a party not sued and not in court. A statement of the operative facts is sufficient to mark the differentiation between the law pronounced in the cited case and that controlling in this case.

The first assignment of error is not well made.

The second, third, fourth and fifth assignments of error are directed to the insufficiency of the evidence to carry the case to the jury. Without comment, we hold that no one of these assignments is well made.

The sixth assignment is that the verdict should be set aside because of irregularity in the proceedings on the part of plaintiff, appellee herein, preventing the defendant, appellant herein, from having a fair trial. This assignment is not supported by the record.

The seventh assignment is that the verdict of the jury, and the judgment rendered thereon, is excessive, and was given under the influence of passion or prejudice. The verdict is large, but in view of all the circumstances appearing, the depreciated value of the dollar, the comparative youth of plaintiff’s decedent, his expectancy of life, his earning capacity, his varied abilities, his steadiness, his services to his wife and son, the damages may not be said, as a matter of law, to be excessive.

The conduct of the case does not suggest any occurrence which would arouse the passion or produce prejudice on the part of the jury. The cause was exceptionally well tried and unusually free from any manifestation of feeling on the part of counsel.

The eighth assignment of error is predicated on the refusal of the court to set aside the verdict and judgment on the ground of newly-discovered evidence.

Supporting appellant’s motion for a new trial on the basis of newly-discovered evidence, affidavits of the driver and passengers in an automobile which was moving from Eaton to Richmond, Indiana, were offered to the effect that as the car left the western limits of the village it passed defendant’s truck; that, later, the car was stopped to pick up one of the passengers; that this stop was made about three-tenths to four-tenths of a mile east of the intersection of the Eaton and New Hope Road with U. S. Route 35; that the car was parked partially on and partially off the right or north side thereof; that while the car was thus standing, defendant’s truck passed; that when they first saw the truck it was on its right side of the road, and that when it passed them the driver sounded his horn, turned to the left at a speed of about 45 miles an hour, passed them, and moved over to his right side of the highway; and that as he approached and. passed them he was operating the truck in the proper manner. Counsel for defendant also made an affidavit tending to show that he had exercised diligence to find witnesses from whom any probative evidence could be secured, and that he did not learn of the driver of the aforementioned automobile and the passengers until some time after the trial of this cause. Contra these affidavits, plaintiff offered three affidavits, the purport of which was that the witnesses from whom the purported newly-discovered evidence would come were known to affiants before trial, and that their presence was likewise well known to many persons in Eaton.

The evidence, if accepted, would have been slightly probative of the fact that defendant’s driver was not asleep at the time of the collision with the milk truck. However, we doubt whether the defendant may make this contention because counsel did not interrogate defendant’s driver on this issue, notwithstanding an extended cross-examination of the driver of defendant’s truck tending to show that he was exhausted, that he had had little sleep the night before the trip on which plaintiff’s decedent was killed, and that he had been on duty long hours and driven a great distance, all of which it could be argued tended to show that he may have been asleep when the collision occurred. Independent of this aspect of the proffered evidence, the motion could have been determined on the question whether the defendant had used due diligence to secure the evidence. On this question the trial judge was authorized to exercise wide discretion and, unless it clearly appears that it has been abused, a reviewing court should not interfere. Taylor v. Ross, 150 Ohio St., 448, 83 N. E. (2d), 222, 10 A. L. R. (2d), 377. We can not hold that the trial court abused its discretion.

The ninth assignment of error relates particularly to errors occurring during the trial, the admission of evidence offered by plaintiff, the rejection of evidence offered by the defendant, and errors in the charge of the court. We find no error in any of the particulars assigned, and will discuss only that one which relates to the admission of expert testimony on the measure of damages.

Wilbur G. Kennedy, agent of the Northwestern Mutual Life Insurance Company, testified on the subject of annuities. As a basis for his computation, he was given the annual earnings of decedent, his age and expectancy of life. Decedent’s earnings at the time of his death were shown to be in excess of $3,000 a year.' Mr. Kennedy was permitted to testify as to the cost of a straight annuity which would produce a monthly income of $250, or a total of $3,000 per year. The lowest cost of such annuity was $84,826.45; the highest, $86,963.75. He also fixed the cost of a straight annuity producing $200 per month, which ranged from $67,861.20 to $68,771. He also gave computations for an income of $350 per month. He also gave costs of annuities on smaller units, even down to a single premium which would be required to produce $10 a month.

Appellant insists that the court erred in admitting this testimony, and cites in support of its position Bartlebaugh v. Pennsylvania Rd. Co., 150 Ohio St., 387, 82 N. E, (2d), 853. In the cited case the cost of the annuity, which was there held to be erroneously admitted, related to a refund annuity as distinguished from a straight annuity, the subject of the testimony here.

The witness carefully explained the difference between a refund annuity and a straight annuity. He stated that certain profit of the company was added to the cost. Counsel did not interrogate him to determine the amount of this profit.

The general charge of the court was a strong and correct presentation of the law. The issues were carefully defined and the respective claims of the parties properly delineated. The charge as to the measure of damages was full and correct. It followed largely the law announced in Sherer v. Smith, 155 Ohio St., 567, 99 N. E. (2d), 763. The trial judge explained to the jury the purpose for which the testimony as to the annuities was received. In our judgment it afforded the jury some assistance in determining the ultimate question for its decision as to the measure of damages.

The theories of the parties of this case are clearly defined. The plaintiff’s claim was based upon the contention that the driver of defendant’s truck had a clear view of plaintiff’s decedent on the right side of the road for a distance which assured him ample time and opportunity to avoid striking the milk truck. In this contention she was supported by the testimony of Norma Jean Matheny and by the skid marks on the road, from which it could be inferred that the collision occurred when plaintiff’s decedent was over on to his right side of the road and moving forward in that lane.

The contention of the defendant was that without warning the plaintiff’s decedent moved suddenly into the path of defendant’s truck and that thereby he was denied the opportunity to stop his truck in time to avoid striking the milk truck. In this position the defendant was supported by the direct testimony of Jess Swafford, the driver of the truck, and from certain physical facts which tended to support its contention. It is also urged, and there was some evidence tending to prove, that Norma Jean Matheny could not have seen the movement of the milk truck as she testified.

The jury evidently accepted the testimony of the plaintiff and her witnesses.

We find no error assigned established, or if established in any degree, that it was prejudicial to the rights of the defendant in the trial of this case.

The judgment is affirmed.

Judgment affirmed.

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


text:
    Clark, Appellee, v. City of Cincinnati et al., Appellants.
    (No. 7960
    Decided October 11, 1954.)

      Mr. James R. Clark and Mr. Burton E. Robinson, for appellee.

      Mr. Henry M. Bruestle, city solicitor, Mr. James W. Farrell, Jr., and Mr. Edgar W. Holts, for appellants.
   Matthews, P. J.

The plaintiff is an attorney at law, practicing his profession in the city of Cincinnati, Ohio, and filed this action on behalf of himself and all others similarly situated, whom he alleged were so numerous that it was impracticable to bring them all before the court. The defendants are the city of Cincinnati and its commissioner, whose duties were to administer and enforce the provisions of an ordinance purporting to impose an earned income tax. This action challenges the constitutionality of the ordinance, and the plaintiff’s prayer is that the tax imposed upon him and others similarly situated be declared discriminatory and void, and its collection enjoined.

The Court of Common Pleas on the issues made found in favor of the plaintiff to the extent that it enjoined the defendants from levying or collecting any amount in excess of one per cent of their net earnings for the months April 1, 1954, to October 31, 1954, both inclusive.

From that judgment, the defendants appealed on questions of law and fact to this court. At the trial in this court, it developed that there is substantially no dispute as to the facts.

In the preamble of this ordinance, it is recited that the purpose was to levy a tax "to provide funds for general municipal operations during 1954, and to provide for the administration, collection and enforcement of the tax, and to declare violations thereof to be misdemeanors and imposing penalties.”

The first section is confined to ordaining the definition of terms used. By the second section, it is ordained that there should be and was levied a tax at the rate of one per cent upon compensation and net profits received by residents of Cincinnati or by nonresidents upon activities performed within the city of Cincinnati. The only exception was in favor of nonprofit organizations exempt from federal income tax.

By section 3 of the ordinance, the tax was limited to compensation and net profits received during the period from April 1, 1954, to October 31, 1954, both inclusive, but it was provided that “a taxpayer whose fiscal year is the same as the calendar year shall pay the tax on seven-twelfths of the net profits for the year,” and that a taxpayer whose fiscal year differed from the calendar year should pay a tax on the net profits determined by the ratio which that portion of the operative time of the ordinance bore to the entire fiscal year of which it was a part.

Section 3 creates two classes of taxpayers. It manifests an intent to impose an equal burden on the members of the two classes; but this is denied, and it is asserted that it fails to accomplish that result, and, also, that it creates inequalities of burdens within each class. Certain hypothetical inequalities have been mentioned. The contention is that the classification has no reasonable basis, is arbitrary and capricious, results in discrimination, and violates the Fourteenth Amendment to the Constitution of the United States and Section 2 of Article I of the Constitution of the State of Ohio. In other words, the claim is that the plaintiff and others similarly situated are denied the equal protection of the law.

On the other hand, defendants contend that on its face the ordinance discloses a palpable attempt to equalize the burden of the tax and that the classification is the only possible one to accomplish that result. In this connection, counsel point out that net profits are not and cannot be determined from day to day, or even from month to month, that they are unstable and fluctuating, and that it is the usual practice to make the calculation at the end of the calendar or fiscal year; and that because of the long pendency of the fruition of many transactions from which net profits may or may not be realized it would be difficult, if not impossible, to make a calculation of net profits during the months of April to October, both inclusive, without, at least, disturbing the time honored practice of those engaged in business and professional enterprises, and engaging in unnecessary speculation as to the ultimate result of many business transactions.

In deciding between these contentions, we must keep in mind that we are confronted with an exercise of the taxing-power to secure funds to defray the expense of operating the government generally. It is not an instance of regulatory legislation under the police power accompanied by a tax or license fee. It is not a tax imposed to discourage one activity and encourage another by burdening one and not the other. The only object is to raise revenue to conduct the established legitimate business of the municipality.

Where a court is confronted with the task of determining the constitutionality of substantive legislation, that is, regulatory legislation under the police power, before it can declare the law constitutional, it must be found that it conforms to both the “Due Process” clauses as well as the “Equal Protection” clauses of the federal and state Constitutions. To conform to the “Due Process” clause, it must be a valid exercise of the police power, that is, the purpose must have some reasonable relation to the public health, public morals, public safety, the general welfare or general prosperity, or in other words, the purpose to be accomplished must be a just object of government. When it is found that the purpose comes within the police power, it still remains to be determined whether' the method employed conforms to the “Equal Protection” clause. The purpose may be a proper object of government, and still the particular legislation may be fatally defective because of its arbitrary and discriminatory nature. The classification may lack a reasonable basis, thereby resulting in persons similarly situated being treated differently.

The “Due Process” clause is irrelevant to this inquiry. A tax law is per se due process. The ordinance is a revenue measure solely. Its only object was to raise revenue. That the council had power to tax to raise revenue to pay the operating expense of the municipal government cannot be disputed. The only question is whether the method employed conforms to its power under the constitutional provisions guaranteeing all persons the equal protection of the law. This singleness of purpose of a tax measure is pointed out in 51 American Jurisprudence, 238, Section 177, where it is said in the text:

“It has been said, however, that the rule that legislative classifications must rest upon some ground of difference having a fair and substantial relation to the object of the legislation does not require that the classification made by a taxing statute or ordinance be related to the purpose for which the proceeds of the tax are to be spent. ’ ’

And, in a footnote it is said:

“By ‘object of the legislation’ within the meaning of the text rule is meant merely the raising of revenue, and it is consequently not necessary that the classification in a tax statute bear any reasonable relationship to the specific purpose for which the funds to be raised by the statute are to be appropriated. ’ ’

The equal protection of the law does not require that all taxes shall be imposed upon all persons within the territorial limits of the municipality. It does not exclude classification and the imposition of a tax upon the members of that class. The only requirement of uniformity is that the law shall operate equally upon all similarly situated. And where the law is confined to the raising of revenue, the power to classify is broader than it is in relation to other legislation. This results, as already pointed out, from the inapplicability of the “Due Process” clause. In 51 American Jurisprudence, 233, Section 174, it is said on this subject:

“The power to make classifications with respect to taxation is with the Legislature in the first instance, and its discretion in the matter is very broad and covers a wide range. In this connection it has been variously said that in taxation there is a broader power of classification than in some other exercises of legislation, that it is not necessary that the basis of a classification of property for tax purposes be deducible from the nature of things classified, and that the Legislature, in classifying subjects for taxation, cannot be required to state the grounds of the classification.”

In choosing the objects and persons to be taxed, there is always a certain discrimination between the taxed class and those that are not taxed. Such discrimination does not affect the validity of the tax. It is only when those similarly situated are unequally burdened that the constitutional provision requiring equal protection is violated.

That the constitutional provision does not require exact uniformity and equality even within the class is pointed out in bold type in 84 Corpus Juris Secundum,- 82, Section 23b, where it is said:

“Absolute or perfect equality and uniformity in taxation, being impossible of attainment, is not required, and as long as there is substantial uniformity in the application of taxing statutes, the constitutional provisions relating to equality and uniformity are not violated.”

And administrative convenience and expense in the collection or measurement of the tax may be a valid ground for exclusion from the taxed class. 51 American Jurisprudence, 522, Section 520. Placing those excluded from one class, and placing all such of those similarly situated in another class, would seem to be an effort to enforce the rule of uniformity rather than to violate it.

Nor does mere difference in method of assessment constitute a discriminaton or deny equal protection. Charleston Federal Sav. & Loan Assn. v. Alderson, Commr., 324 U. S., 182, 89 L. Ed., 857, 65 S. Ct., 624.

It has also been said that the establishment of a class for taxation does not preclude the division of that class into subclasses based upon some reasonable distinction not found in all the members of the larger class. 51 American Jurisprudence, 240, Section 180.

Let us analyze the provisions of this ordinance in the light of these constitutional principles. We find that the subject matter of the tax is earned income, and it is manifest that it was the purpose of the taxing authority to impose the tax upon every form of earned income by whomsoever received within the reach of its jurisdiction, excepting only nonprofit organizations. It places the recipients of income into five classes, but the division on a broad basis is between income received by employees as a result of their employment and net income or profit received by those engaged in businesses and professions on their own account. The same rate (one per cent) is imposed upon the income no matter by whom received. It is said, however, that by limiting the duration of the taxable period to the time from April 1 to October 31 and requiring employees to pay on all income actually received during that period, and by providing that those who are independently engaged pay on their net profits during the taxing period determined by taking seven-twelfths of the net profits for the calendar or fiscal year in which the taxing period falls, produces a discrimination. While sporadic inequalities might occur in other classes, it is difficult to see how this method of determining the basis of the tax shows any purpose to discriminate between the two classes as classes, or that it actually results in discrimination.

It seems obvious to us that a classification based on the fact that income is received as compensation for services as an employee is founded upon a sound distinction. Thousands of laws are found in the statute books conferring rights and imposing liabilities upon employees. It is entirely too late to challenge the validity of such laws. If it is a valid basis of classification for substantive legislation it would seem to be equally valid for taxation purposes. If this is true, then the municipality could have singled out either the class of employees or the class of businesses and professions and imposed a tax upon either, and the one taxed would have had no cause of complaint. Or, it could have imposed a higher rate upon one class, without depriving the members of the class of the equal protection of the law. Instead of so doing, the municipality saw fit to place both classes in the same legislation. We know of no rule prohibiting it. If the formula by which the net profits were to be determined favored those making net profits over those earning wages, it would be a discrimination the municipality has a right to make. However, we find no such discrimination.

We believe this question relating to the constitutionality of this ordinance has been answered by the unanimous decision of the United States Supreme Court in the case of Walters v. City of St. Louis, 347 U. S., 231, 98 L. Ed., 660, 74 S. Ct., 505. It is dispositive of this case. We quote the opening paragraph of Mr. Justice Jackson’s opinion to show the relevancy of that case to the case at bar:

“This appeal challenges a municipal income tax ordinance which excises gross salaries and wages of the employed but only net profits of the self-employed, of corporations and of business enterprises. Appellants, who aré wage earners, sued in the state courts for a declaratory judgment and injunction to prevent their employer from withholding the tax and the city from collecting it. Their contention is that the discrimination between wages and profits which results from allowing certain deductions only to profits violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. It has been overruled by the state courts and is brought here for determination.”

This similarity is more fully confirmed by the various references to the terms of the ordinance in the opinion and footnotes.

At page 236, Mr. Justice Jackson says:

“On its face, the ordinance classifies incomes from taxation according to their sources, one category consisting of salary and wage income and the other of profits from self-employment or business enterprise. Classification of earned income as against profits is not uncommon, sometimes to the advantage of the wage earner and sometimes to his disadvantage. It is a classification employed extensively in federal taxation, which under appropriate circumstances allows deductions to the self-employed not allowed to employees, discriminates sharply between earned income and capital gains, and sets apart certain types of wage earnings for social security tax and for benefits. We cannot say that a difference in treatment of the taxpayers deriving income from these different sources is per se a prohibited discrimination. There is not so much similarity between them that they must be placed in precisely the same classification for tax purposes.”

In the Walters case, there was an attempt to raise the question as to the validity of an administrative regulation allowing federal income tax to be deducted in computing net profits. No such question was presented in the case at bar, and could not be, because the regulation excludes federal income tax as a deduction. The Supreme Court of Missouri refused to pass upon the question, holding that the regulations were no part of the ordinance and declined to pass upon their validity, but, as noted in the opinion of the United States Supreme Court at page 233, “intimated that the regulations might be held void hereafter without invalidating the ordinance. ’ ’

It seems that the only difference between the St. Louis ordinance and the Cincinnati ordinance is that the latter fixes a period of less than a year for its operation and prescribes a method of fixing net profits, based on net profits for the entire year. It does not appear what method of determining net profits was used in the St. Louis case, but manifestly some period of time was an element. We are of the opinion that this method of determining net profits is fair, and perhaps the only practical method, and shows no intent to discriminate for or against either wage earners or earners of net profits. If the distinction between wages and net profits is a valid basis of classification, a method of assessment that produces a different result when applied to the two classes cannot be an unconstitutional discrimination, and isolated instances of unequal results or burdens within either class do not preclude such classification.

Counsel for plaintiff have urged upon our consideration the provision of the Constitution of Ohio that prohibits retroactive laws (Section 28, Article II), claiming that various provisions for calculating net profits in section 3 of the ordinance violate the article. We have considered this and fail to find any retroactive operation either as to the provision for calculating the tax or as to the penalty for nonpayment.

Nor do we think that the case of Youngstown Sheet & Tube Co. v. City of Youngstown, 91 Ohio App., 431, 108 N. E. (2d), 571, is applicable. In that case, the court passed upon an ordinance that imposed a higher tax upon corporations than upon individuals engaged in the same kind of business. The court held that was not a valid basis of classification. In reaching that conclusion the court followed the case of Quaker City Cab Co. v. Pennsylvania, 277 U. S., 389, 72 L. Ed., 927, 48 S. Ct., 553. No such classification is presented in this case.

For these reasons, we find the ordinance and taxes imposed thereby enforceable.

Judgment accordingly.

Ross and Hildebrant, JJ., concur.


author: Miller, P. J.

text:
    The State of Ohio, Appellant, v. McCoy, Appellee.
    (No. 556
    Decided March 5, 1955.)

      Mr. George R. Smith, prosecuting attorney, for appellant.

      Mr. James F. Cox, for appellee.
   Miller, P. J.

This case comes to this court on an appeal on questions of law from a. judgment of the Common Pleas Court of Greene County sustaining the defendant’s motion for a directed verdict at the close of the state’s case. There appears to be no conflict in regard to the facts presented; hence, the question to be determined is one of law only. The facts pertinent to the issue disclose that Robert Kahr, a- state highway patrolman, was issued a warrant out of the Mayor’s Court of Spring Valley, Ohio, directing him to arrest Robert Melvin McCoy; that the warrant was issued upon an affidavit filed in the court charging McCoy with operating an automobile with fictitious license plates on or about July 30, 1954; and that on Sunday, August 1, 1954, an attempt was made by tbe highway patrolman to arrest McCoy, at which time he fled into his father’s nearby grocery store. The father attempted to block the entrance doorway and prevent the officer from making the arrest. The father was informed of the warrant for the son’s arrest, but he still persisted in resisting. Thereupon, the highway patrolman arrested the father, defendant Robert McCoy, appellee herein, and charged him with unlawfully interfering with and obstructing a state highway patrolman in the discharge of his official duties in violation of Section 2917.33, Revised Code. The motion for a directed verdict was based upon the following sections of the Revised Code:

Section 2331.12. “No person shall be arrested during a sitting of the Senate or House of Representatives, within the hall where such session is being held, or in any court of justice, during the sitting of such court, or on Sunday, or on the fourth day of July.”

Section 2331.13. “Sections 2331.11 to 2331.14, inclusive, of the Revised Code do not extend to cases of treason, felony, or breach of the peace * * *.”

The arrest of the defendant was made upon the authority of Section 2917.33, Revised Code, which provides, in part, as follows:

“No person shall abuse a judge or justice of the peace in the execution of his office, or knowingly and willfully resist, obstruct, or abuse a sheriff, or other officer in the execution of his office. ’ ’

The question, therefore, arising is whether the officer was lawfully exercising the duties of his office on the day the alleged offense was committed by the defendant. In other words, was the attempted arrest of the son on Sunday in violation of Section 2331.12, Revised Code? If it was, the officer was illegally attempting to make a forced entry upon the defendant’s premises, and defendant might lawfully resist such entry.

It is urged by the appellant that the cited section has no application to criminal proceedings since it is found in that portion of the Code which relates to “Execution against a Person,” which is a civil proceeding, citing 17 Ohio Jurisprudence, 1003,1007, Sections 521, 534. These citations refer to the Sunday code as having application to executions against the person, but they are silent as to any application in criminal proceedings. We can attach no important significance to this omission. We cannot concur with counsel for the appellant that the Sunday statute should have such a narrow application. In examining into the history of privileges from arrest we find that a somewhat similar provision is found in the Constitution of Ohio of 1802, Section 13, Article I, but which granted the immunity only to senators and representatives. It provided:

“Senators and representatives shall, in all cases, except, treason, felony or breach of the peace, be privileged from arrest during the session of the General Assembly * * *.”

Subsequent thereto, statutes were enacted extending the privileges to those contained in Section 2331.12, Revised Code. Since the original provision of the Constitution did not restrict the privilege to civil cases only and, also, since the same privilege was extended by statutory enactment, we are of the opinion that the original intention was extended by subsequent legislation. It also might be added that-if these privileges were intended to apply to civil cases only, we feel that the Legislature would have made this clear by so stating.

The next question for consideration is whether the son was being arrested for a breach of the peace. If so, the exceptions found in Section 2331.13, Revised Code, would have application and the arrest would be lawful. The appellant urges that every indictable offense constitutes a breach of the peace, and we find support for this contention in the case of Edwards v. District of Columbia (Municipal Court of Appeals, District of Columbia), 68 A. (2d), 286, but contra this view we find the case of Commonwealth v. Fannasy, 30 Pa. Dist. and Co., 410, and numerous other cases from the state of Pennsylvania. We are inclined, however, to accept the latter line of authorities.

In 6 Ohio Jurisprudence, 37, Section 1, we find the following definition:

“Breach of the peace in Ohio is defined as an open, active outbreak of violence in the commission of some unlawful act.”

Ex Parte Carroll, 9 Dec. Rep., 261, 12 W. L. B., 9, is cited as authority. At page 38 of 6 Ohio Jurisprudence, the conclusion that every indictable misdemeanor constitutes a “breach of the peace” is negatived by the enumerating of many offenses which have been defined by statute as offenses against the public peace. The operation of a motor vehicle with fictitious license plates has not been so designated and we do not think it should be given such recognition. The term is defined in 1 Restatement of the Law of Torts, 246, Section 116, as follows:

“A breach of the peace is a public offense done by violence or one causing or likely to cause an immediate disturbance of public order. ’ ’

In 7 Ohio Jurisprudence (2d), 689, Section 1, it is stated:

“In general terms, a breach of the peace is a violation of public order, a disturbance of the public tranquility, by any act or conduct inciting to violence or tending to provoke or excite others to break the peace, or, as is sometimes said, it includes any violation of any law enacted to preserve peace and good order. It may consist of an act of violence or an act likely to produce violence.”

Finally, the appellant contends that exemption from arrest is a privilege which may be waived; and that the record discloses the son pleaded guilty to the charge against him and, thereby, waived his immunity. But it clearly appears that at the time of defendant’s arrest the son did not waive the privilege for he was resisting the same with every means at his command. The conduct of the father must be adjudicated on the facts appearing at the time of his arrest and not on those of a subsequent date.

We find no error in the record prejudicial to the appellant.

Judgment affirmed.

Hornbeck and Wiseman, JJ., concur.