author: BY THE COURT

text:
    EVANS v BRUGGEMAN
    Ohio Appeals, 2nd Dist,. Montgomery Co
    No 916.
    Decided July 29, 1929

      Mr. Prank W. Krehbiel, Dayton, for Evans.
    Messrs. E. H. & W. B. Turner, Dayton, for Bruggeman.
   BY THE COURT

Counsel for plaintiff in error in his brief insists that there is error in the record prejudicial to his client by reason of the court’s having given special charges Nos. 4 and 5, as requested by counsel for defendant in error before the argument to the jury. The principal objection made by counsel for plaintiff in error to such special charges is that the Court failed to include therein what would constitute ordinary care on the part of a boy twelve years of age. Assuming that the special charges are incomplete, in the respects suggested we find that the trial court in its general charge to the jury fully covered this phase of the case.

The special charges given before argument, together with the general charge, constitute the charge of the court and should be read and considered together. We think this phase of the case was fully covered by the trial court in its general charge.

The outstanding issue in this case was limited. The plaintiff contended and offered the testimony of two witnesses directly and others indirectly, to the effect, that when struck he was on the graveled portion of the road on the outside and to the north of the paved portion thereof. The-defendant claimed that, and offered the testimony of three witnesses to prove, -he was on the paved portion of the road when the impact occurred and that the plaintiff darted in front of his automobile at a time when he did not have opportunity to stop in time to avoid the injury.

The paved portion of the Dayton and Springfield road is about 20 feet wide, the gravel to the north is about six feet, the gravel to the south is a little less.

The charge, as we view it, presents no theory whatever upon which the plaintiff could recover. It is doubtful if the court charged the law definitely at all upon the negligence of the plaintiff and defendant in the event of the plaintiff darting in front of defendant’s automobile. But the greater difficulty arises in considering the manner in which jhe court instructed the jury concerning the obligation of the plaintiff and defendant under the traffic laws. Section 6310-17 provides:

“Vehicles shall keep to the right side of the roád or highway except when necessary to turn to the left in crossing the road or highway, or in overtaking and passing another vehicle * * *”

The case of Elms vs. Flick, 100 OS., 186, construes the term “the road” as used in former Section 6310 GC. analogous to the one under consideration, to mean “improved portion of the road, where it is disclosed that it is of ample width to permit the passing of automobiles thereon with safety.”

In the case of Scheck vs. LeBar, 6 Ohio Law Abstract 432, Cuyahoga County Court of Appeals, Judges of the Fourth District sitting, automobiles had collided on the highway, each insisting that the other was negligent _in that he did not keep to the right side of the road. The highway consisted pf a paved portion varying in width from fourteen-to twenty feet, with ,a dirt strip to the side thereof. The court in its general charge said:

“Under the law of the road, it is the duty of each of these parties to stick to the right side of his road * *” The jury being uncertain as to the

meaning of the word “road” asked for further instructions; whereupon the court informed them that the “dirt and the pavement are all part of the street.”

The Court of Appeals, Judge Mauck writing the opinion, commenting on this charge, made this observation:

“The court in its general instructions ought to have limited the jury to finding that the defendant was guilty of negligence in being on the left side of the paved strip, both because that was the law, and. particularly because that was all claimed in the petition.
While it was the duty of the defendant to have asked the general instructions be clarified in this respect * * * it nevertheless became necessary for the court to clear up thé matter * * * and the court failed to accurately and correctly meet this reqquirement.”

The requirement .then, that the defendant keep to the right of the road enjoined upon him only the obligation to keep to the right of the center of the improved portion of the road. Section 6310-34 provides:

“Where cross-walks or cinder paths parallel the public road or highway, pedestrians shall not walk in, along or upon the vehicular traveled portion of such public road or highway, except at crossings and crosswalks, except in cases where crossings or crosswalks are an unreasonable distance apart.”

This is the only relevant section of law defining the duty of pedestrians on the highway in the open country. It thus seems that in no event could it be said, as a matter of law, that the plaintiff was negligent so long as he walked in the gravel portion of the highway to the outside of the paved part thereof.

In view of the discussion of these two statements and the situation of these parties, let fis examine what the court said:

“Now, something is said here about notices and rules adopted for the use of this highway, that pedestrians were to travel on. what is commonly known as the opposite side of the road from what is generally traveled. That seems to be a common practice for pedestrians, to travel upon the side of the road upon which they meet the machines coming towards them. Under the statute a mandatory duty was imposed upon this defendant to propel his vehicle at all times upon the right side of the road. If the plaintiff were traveling upon the opposite side, with machines coming behind him, he would have the same rights in the use of the highway, as another machine, and it would be the duty of the defendant to avoid him to the left and give him a full half of the road. Going the other way, it is elementary that both parties cannot use this roadway at the same time, and notwithstanding the regulations and notwithstanding he was rightfully there, the pedestrian in traveling upon the wrong side of the road towards a machine, because of the mandatory statute compelling the defendant to use that side and that side only, must avoid the path of the machine so that they may pass. And in that respect the duty was imposed upon this plaintiff, under the rule heretofore given as to ordinary care, to use, ordinary care for his own safety in that respect.”

It “will be noted that the court at no time makes distinction between the paved portion of the thoroughfare and the graveled part, but refers in general terms only to the road. This, in the minds of the jury must have meant all of the road. Reduced to the simplest terms, the part of the charge just quoted made the plaintiff guilty of negligence per se in being on his left side of the road without any differentiation as to the place where on that side he was walking.

We do not believe the law sustains this proposition. Likewise, without exception, the effect of the charge was that the defendant was guilty of no negligence so long as he was driving on the right side of the road without respect to the place where on that part of the thoroughfare he w,as driving. We do not believe the law sustains this proposition. In the event the júry found, as it 'had a permissable right to do, under the evidence, that the plaintiff at the time the defendant’s automobile struck him, was over on the gravel grid outside the limits of the paved thoroughfare, even so he could not háve recovered. The court also says:

“Recovery here from this defendant must establish by a perponderance of evidence that he was negligent in the respect complained of here and that the plaintiff was free from fault.”

This was clearly improper.- We presume the court charged on the theory that plaintiff’s testimony raised an inference of negligence on his part. But if our position is sound, he was in error in that particular. It was clearly error to place the burden on the plaintiff of proving himself free from fault, and even if an inference of his negligence may arise from his testimony, he does not have to remove it by a preponderance of the evidence— Tresise vs. Ashdown, 118, OS., 308.

There was abundant evidence in the record which would justify a jury finding for the defendant upon the proper presentation of the law of the case by the coprt. Plaintiff was also entitled to have the jury consider his theory, namely that he was walking in a part of the road where h® was not prohibited by law from being, that he was exercising ordinary care for his own safety, and that the defendant failing to exercise ordinary care, drove over upon the gravel and injured him.

For the reasons heretofore indicated, the judgment of the lower court must be reversed and the case remanded for new trial.

Kunkle, Allread and Hornbeck, JJ, concur.


source: Caselaw Access Project

author: VICKERY, PJ.

license: Public Domain

text:
    ARNOLD CREAMERY CO v REYWA
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9608.
    Decided May 20, 1929
    Messrs. Dustin, McKeehan. Merrick, Arter & Stewart, Cleveland, for Arnold Creamery Co.
    Messrs. Cline & Patterson and Kohrman & Kohrman, all of Cleveland, for Reywa.
   VICKERY, PJ.

Notwithstanding these facts, it is urged that there are several errors for which this judgment should be set aside. The main one is that the verdict is so large that it showed passion and prejudice upon the part of the jury; and to get at the question of passion and prejudice, we admit that the verdict must be taken as it was originally rendered by the jury, without regard to the remittitur ordered by the trial court, because if the verdict was rendered through passion and prejudice, the defendant was entitled not to have the judgment against it reduced, but to have it set aside entirely, because if it was rendered under passion and prejudice there is but one duty either for the reviewing court or the trial court in the premises, and that is, to set aside the verdict and judgment thereon and grant a new trial; so that really becomes the main question in this case.

Now when this case was tried, under a decision of the Supreme Court a party injured while in the course of his employment when working for a company or an individual that had complied with the Industrial Insurance Law, and the injured person being entitled to compensation from the Commission, if while in this situation he was injured by' the negligence of a third person, would be entitled to recover from the third person, but in that event there must be a deduction from the amount that the plaintiff would otherwise be entitled to, to the extent of the amount allowed to him by the Industrial Commission. There never was any logic in this rule, although the writer of this opinion was the first Court in Ohio to adopt that rule a great many years ago when he sat on the Common Pleas Bench in Ashtabula County; but the rule was illogical, and the Supreme Court now has come to the saner rule that where a person is injured by the negligence of a third person, even though he gets compensation from his employer, that cannot be used to reduce the damage that he might otherwise obtain from the third person by reason of the third person’s negligence; but at the time this lawsuit was tried, the Supreme Court had held that such a reduction was proper. Consequently, to get at the question as to whether this verdict was induced by passion and prejudice, gathered only from the size of the verdict, one must take into consideration the further fact that in addition to this $40,000 verdict, there were several years, two or three at least, during which this plaintiff below had been paid compensation, $975 a year, and this sum must be capitalized and added to the verdict in order to arrive at the amount that a jury could thus have found for him, had it not been for this reduction, and that sum added to the $40,000, it is claiméd, is of such a magnitude that it of itself is evidence of passion and prejudice.

The elevator was out of order, was in a dangerous condition, and the parties knew it; that is, the plaintiff in error knew it,, and took no steps to remedy it. This w,as a self-operating elevator, and the plaintiff below was working over-time and he went in there after hours, and there was no light in the elevator or in the building. It w,as argued that there need not be because it was still day-light, -but when plaintiff turned the lever to bring, the elevator down, if the elevator had been working right, he could not have opened the doors until the elevator platform was on a level with the floor, and then one part of the door would go down and the other part of the door would go up, and then he would have free access to the elevator. Now because of the defects of this elevator when he sought to bring it down, there was no light in it, and he thought it was down by reason of the purring sound of the elevator, and the light flashed indicating that it was coming and the doors opened and he fell, or was precipitated in the pit below.

The fall to the basement in this building, was some fifteen feet on a concrete floor. Plaintiff fractured his skull and dislocated and crushed two vertebrae of the back. He fractured the sternum and his wrist and received numerous other similar injuries. He was a man of powerful build, weighing, I think, in the neighborhood of two hundred pounds and he has been incapacitated and has become unable to perform any work down to the trial of this lawsuit. There was medical evidence besides his own testimony in regard to the injuries.

Now a recitation of these injuries will show that they are very severe. We are told in argument, and the record shows it, that he had to wear a steel brace of some kind around the waist and that he was only enabled to get around and do things by reason of this appliance; that he suffered the torments of the damned and will suffer for the rest of his life, in all human probability. It is true, the fracture of the skull seems to have healed, but there remains the crushed sternum and at least one or two of the vertebrae of his backbone have been crushed together and, according to Dr. Burke it has impinged on the spinal cord. How severe this may be nobody knows.

The plaintiff was a man fifty-one years of age. It is said he had diabetes and perhaps something else, but apparently the record shows that he was a strong, able bodied man, capable of doing the hardest kind of labor until this accident. He is a man of not much education and his work must be with his hands rather than with his brain.

Now with all this recitation of his injuries and his disabilities, it is difficult to measure with a nicety just what ought to be the damages allowed to him. We must remember that damages which would have been regarded as excessive twenty-five years ago are common now, and this court sustained a verdict not long ago where thirty-two thousand dollars was allowed to stand, and in that case like the present, the amount a man would recover as compensation was figured and deducted so that the verdict was reduced from something like $55,000 down to $38,000, and a judgment was rendered for that, and we let that judgment stand. It is true we think that that man’s condition, as shown from the record, was worse than the condition of the plaintiff in the instant case, but it g,oes to show that courts are not going to measure with a nicety the exact amount of money that a man is entitled to recover if he is entitled to recover at all; so we do not think that this verdict was so excessive that it alone would show passion and prejudice on the part of the jury, and there is nothing alse in this case to indicate such passion and prejudice.

Judge Kramer one of the careful trial judges of our Court of Common Pleas, heard the evidence, saw thé parties, and thought that the verdict was high and he reduceS it by taking off $10,000, which the plaintiff accepted, and entered up a judgment for $30,000. We do not think that on this ground we would be justified in disturbing this verdict. Other grounds of error are urged, largely in the submission of the case to the jury by the trial court. That the .court was not explicit enough in its charge on the measure of damages. It seems that the plaintiff made some requests on the question of damages, as did the defendant, and the court gave them all and then told the jury that they should limit themselves to compensatory damages; that if other things were proved he was entitled to such damages as would compensate him for the injury. .

There were several grounds upon which recovery was sought, several of which had been ruled out by the court but seven still remained and as to some of these there can be no question but that they were properly submitted. -We think they were all properly submitted and that there is no error in this record that is of such substantial merit that would warrant a reviewing. court in disturbing this verdict, and that while the verdict is high, yet the injuries are grave and in all human probability the plaintiff in the court below, defendant in error here, will be a sufferer from this accident as long as he lives.

Taking the whole record together, we cannot see any reason why the judgment should be disturbed and it will, therefore, be affirmed.

Sullivan and Levine., JJ, concur.


author: POLLOCK, J.

text:
    MATZ v AMERICAN SURETY CO
    Ohio Appeals, 7th Dist, Monroe Co
    Decided May 1, 1929
    Messrs. Matz & Matz, Woodsfield, for Matz.
    Messrs. Lynch & Sawyers, Woodsfield, for Amer. Surety Co.
   POLLOCK, J.

The question in this ease to be determined in regard to the $500.00 is whether when an attorney, who performed services for an executor, receipts for services and accepts the individual promissory note of the executor for the amount, and the account is afterwards approved, and the executor given credit for the payment of this attorney fee, the attorney can afterward recover this amount, the note not being paid, from the surety on the bond.

The character of the indebtedness of an attorney, who has rendered services to an executor or administrator in behalf of the settlement of the estate, has been fully determined by the Supreme Court. It is first the individual liability of the administrator or executor in the settlement, and not the liability, in the first instance, of the estate.

This is held in the case of Thomas, Admr. v. Moore, 52 OS., 201. Then, this question was further before the Supreme Court in the case of Smith v. Rose, 68 OS., 500. The executor is not given credit for the payment, and cannot receive credit until, he has actually paid the amount, and taken the receipt of the attorney.

The Supreme Court in the case of Thomas, Admr. v. Moore, to which we have referred, in the opinion quoted from Woerner on Administration :-

(Here follows quotation)

In order to get credit for this claim or any other, the Code provides in 10830 GC that the administrator must have a voucher showing the payment. There is no exception to this except as provided in 10831 GC, the next section, which permits, under proper affidavit made, that sums not exceeding $10.00 may be allowed by the Probate Court without such a voucher so that before this executor could receive credit for the payment of this attorney fee, it must be allowed by the Probate Court, and then he must produce a voucher showing that it was paid. When that is done, the executor can introduce the voucher, and receive credit.

In the case of Curtis v. National Bank, 39 OS., on page 579, the Court goes further in disposing of a somewhat similar question.

In the case of Braden v. Mercer, 44 OS. 339, the surety on a guardian’s bond sought to attack the finding of the Probate Court in the account of the guardian, and the Superme Court lays down the rule that the surety could not attack the finding of the Probate Court in the absence of fraud and collusion.

In the case of Riggin et al. v. Creath, 60 OS. 114, there were two executors, and for some reason, the distributee saw fit to take the individual check of one of the executors. This check was not paid, payment was refused. She sought then to hold the bondsmen liable.

The court holds that that could not be done.

But our attention is called to the fact that the mere acceptance of a note is not payment, and we are given as authority the cae of American Fidelity Company v. Metropolitan Bank, 30 O. C. A., page 209. This is a well known principle. The mere acceptance of a promissory note is not the payment of a claim unless it is taken with that intention, but that does not reach this case.

Plaintiff in this case accepted the promissory note of the executor and receipted the estate for the amount, knowing that it would be filed with the account and credit claimed and allowed, so that he was not only accepting the individual promissory note of the party, but he was saying that, so far as this estate was concerned, this claim was paid. We do not think the bond in this case is liable for this $500.00 claim.

We then come to the $25.00 claim that was asked for the making, of the distributive account. Now, as the plaintiff said, there is some little inconsistency in this; he is first charged with having receipted for the one claim, and then, he is refused payment because he has not receipted for the other. But it is easily explained if you remember this case of Thomas, Admr. v. Moore, 57 OS., 201.

It is the individual liability of the executor, according to the next case in the 68 OS., page 500, which we referred to, until it is allowed as a reasonable claim by the Probate Court, and that was not done in this case, and, until that is done, it is not a claim against the estate, so that the bondsmen are not liable for that claim.

This disposes of the question in this case, and the judgment below is affirmed.

Farr and Roberts, JJ, concur.


author: WASHBURN, J.

text:
    INDUSTRIAL COMM. v BETLEYOUN
    Ohio Appeals, 9th Dist, Summit Co
    No 1587.
    Decided March 21, 1929
    Mr. Gilbert Bettman, Cincinnati, Mr. R. R. Zurmehly, Lima, and Messrs. D. D. Isham & W. A. Spencer, both of Akron, for Industrial Commission.
    Messrs. Smoyer & Smoyer, Akron, for Betleyoun.
   WASHBURN, J.

While, in a proper sense, a disease is an injury, and in some states is held to be such under the Workmen.’s Compensation law, that is not true in Ohio. Here we have two classes of claims that are compensable, — one growing out of ijnury, and the other out of disease; and it is settled in Ohio that the term “injury,” as used in the Workmen’s Compensation law, does not include occupational diseases or diseases other than occupational diseases. (Industrial Comm. v. Cross, 104 OS. 561.)

The present Workmen’s Compensation law of Ohio does not classify heart disease as an occupational disease, and therefore in this case claimant’s right to compensation depends upon whether he suffered an injury to his heart.

There is ,no question but that the claimant had an accident, nor that before the accident his heart was at least slightly impaired, nor that within a short time after the accident his heart became seriously diseased.

There being no claim made for compensation for an occupational disease, the claimant is not entitled, under the present law, to receive compensation in respect to an incapacity primarily caused by a disease and not related in any way to an accident; in other words, under a claim of injury, he is not entitled to compensation for mere impairment of his physical condition resulting from his doing his ordinary work in the ordinary way; but he is not barred merely because his- impaired physical condition at the time he suffered the accident rendered him more susceptible to injury than a normally healthy man, nor will he be prevented from recovery because the consequences of the injury received in the accident were aggravated by his physical condition at the time the injury was received.

It being conceded that there was an accident and that claimant had an impaired heart at the time, the real question that the jury had to determine was whether the subsequent disability of claimant was due to the accident or to causes independent thereof.

At the special request of claimant, the court charged the jury before argument as follows:

Plaintiff’s special request No. 2.
“If you find that the plaintiff was an employe of the Miller Rubber Company on October 13th, 1924, and while engaged in the ordinary duties of his employment suffered an injury to his his heart which was the immediate cause of his disability, such an injury must be considered by you as one sustained in the course of his employment, and the plaintiff is entitled to the benefits of the compensation law even though prior to and at the time he was suffering from heart disease which probably would have caused his disability in the future.”

This charge is confined to the occurence of Oct. 13, 1924, when the claimant admittedly had an accident; and as applied to the issues and evidence in this case, was not erroneous.

At the special request of the claimant, the court also charged the jury before argument as follows:

Plaintiff’s special request No. 3.
“If you find that the plaintiff had a pre-existing heart disease, and that as a result of his employment it was accelerated to the point of disability by the muscular exertion required by his employment, not due to the character of the disease acting alone or progressing as it would in normal work, then you will find that the plaintiff suffered an injury in the course of his employment within the meaning, of the Workmen’s Compensation Act and your verdict must be for the plaintiff for such period of time as you may find the plaintiff was disabled as a result of such injury.”

In so charging, the court followed the law established by the courts of Massachusetts, where the Workmen’s compensation acts are similar to ours, but where the construction placed upon them is fundamentally different than the Ohio courts give to the Ohio workmen’s compensation acts. In Ohio it is settled that, except for occupational diseases, compensation is awarded only where theré is a personal injury “by accident” (State, ex rel., v. Creamer, 85 OS. 349; Industrial Comm. v. Brown, 92 OS. 309; Industrial Comm. v. Cross, 104 OS. 561; Renkel v. Industrial Comm., 109 OS. 152; Industrial Comm. v. Davis, 119 OS 221, 162 N. E. 796) while in Massachusetts a personal injury arising from disease without physical impact is compensable under some circumstances (Honora E. Madden’s Case, 222 Mass. 487).

We think that said request No. 3 as given, when technically construed, would permit compensation for an injury not connected with an accident, and for that reason it was incorrect; but in view of the entire record in this case, we think it plainly appears that the jury did not so consider and apply the same.

Claimant based his right to compensation entirely upon an injury sustained in a particular accident on a specified day, and it was admitted that such accident occurred and that claimant was injured to some extent therein; and practically all of the evidence introduced related to said accident and its consequences. To the average juror, said request No. 3 is involved and complicated, and its meaning is obscure even to a trained legal mind until close and careful study is made of it; the trial court at the same time and as a part of the charge before argument, plainly and correctly charged the jury in reference to the claim made for an injury resulting from said specific accident, and therefore, as has been said, we think that it plainly appears that the jury was not misled by the vague and uncertain language of said request No. 3.

Furthermore, the general charge of the court, consistent with request No. 2, limited claimant to compensation for injury caused by said accident.

In the general charge the court instructed the jury that the claimant based his claim upon an injury which he alleged that he suffered in the course of his employment on a particular, specified day— “Oct. 13, 1924” — and that the claimant was required to prove by a preponderance of the evidence that he received “an injury in the course of his employment, and that it was received on Oct. 13, 1924,” and that if he “became disabled because he had a bad heart, he is not entitled to recover.”

From a consideration of the record we are of the opinion that the jury was justified in finding that said disability was caused, in part at least, by said accident of Oct. 13, 1924.

Under all the circumstances, we hold that the error in giving request No. 3 was not prejudicial.

In a case where there is one cause of action made by the peadings and only one issue to be determined by the jury, and the court, before argument, at the instance of the plaintiff, submits two special requests, which are given to the jury, the first of which correctly states the law applicable to said cause of action and said issue, and the other erroneously states a proposition of law not applicable to said cause of action and said issue, which latter proposition is favorable to the plaintiff but is not inconsistent with the former special request and the jury brings in a general verdict for the plaintiff, and there are no interrogatories submitted and no special finding made by the jury, showing, the error to be prejudicial, a reviewing court should not reverse the judgment entered upon said verdict under said circumstances. Especially is this so when it affirmatively appears from the record that the defendant was not prejudiced by the erroneous request given.

Funk, PJ, and Pardee, J, concur.


author: ALLREAD, J.

text:
    YENSEL v. DAYTON RUBBER MFG. CO
    Ohio Appeals, 2nd Dist, Montgomery Co
    No 922.
    Decided July 2, 1929
    I. L. Jacobson, Dayton, for Yensel.
    Burkhart, Heald & Pickrel, Dayton, for Rubber Co.
   ALLREAD, J.

It appears from the admissions of counsel for the defendant in error that Earl Weaver was a regular truck driver of the defendant in error, and was employed upon and in engaged in driving said truck in the business of the company until twelve o’clock noon of that day. There were no admissions covering the subsequent period. This accident took place in the afternoon, shortly after two-thirty o’clock of said day. The only evidence in addition to the admissions is that of Reuben-stein, who testifies that after the collision he found evidence on the truck of liquor, and also that the driver of said truck was drunk.

Reubenstein also testifies that the truck carried boards in such a manner as to indicate its use in carrying, passengers. The record is silent, however, as to any mission or errand of Earl Weaver at this particular time for the business of his principal. We think the burden of proof was upon the plaintiff, and this fact should have been established or at least there should have been some evidence tending to establish the same.

The fact that he was in the employ of the company and was driving the truck on the business of the company until twelve o’clock noon of that day, is no evidence that he was driving the truck in the business of the company at the time of the accident.

We have carefully considered the authorities upon this subject. In our judgment the case of the White Oak Coal Company vs. Rivoux, 88 OS. 18 and the case of Braun vs. Overdack, 113 OS. 613 are to the effect that evidence at least tending to support this proposition must be offered by the plaintiff.

Counsel for plaintiff in error relies upon the case of Rosenberg vs. Reynolds, 11 Ohio Appeals, page 70. We have carefully examined that case and while there are many points similar in that case and the case at bar, the cases cited by the defendant in error are subsequent thereto and in our judgment are controlling.

We are, therefore, of opinion that the judgment of the Court of Common Pleas must be affirmed.

Kunkle and Hornbeck, JJ, concur.


author: IJSVINE, J.-

text:
    SCHMITT REALTY & INV CO et v MONKS et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    Nos 9636, 9573, 9548.
    Decided May 13, 1929
    Messrs. Henderson, Quail, McGraw & Morgan, Cleveland, for Schmitt Rlty & Jpv Co.
    Messrs. Bernon, Mulligan, Keeley & Le-Fever, Cleveland, for Monks.
   IJSVINE, J.-

In interpreting the phrase “will be beneficial to the stockholders” used in the code, no reference can be had to anv particular stockholder. Benefits accruing to some stockholders and not to others must be eliminated. It requires the consideration of only those things that affect alike all stockholders as such. This is reasonable because in a dispute which arises between minority and majority stockholders it is most often the case that what is harmful to the minority proves beneficial to the majority as individuals.

Both sides seem to concede the point that considerations which do not affect alike the owners of a majority and the owners of the minority of the shares, must be eliminated.

In Summers et al v. Thomas Mfg. Co. 82 OS. 338, there are some illuminating statements found in the opinion of the court on pages 344, 349 and 350.

Accordingly the court must consider only those matters that affect alike all the stockholders as stockholders.

Considerable space is devoted in the briefs of counsel for plaintiffs in error to the argument that in considering whether or not a dissolution will be beneficial to the interests of the stockholders, the court must bear in mind whether other remedies not as drastic as the dissolution of the company will be sufficiently effective to elminate abuses. It is contended that a court of equity could give injunctive relief to stop the payment of excessive salaries and other abuses which may creep into the operation of the company. The trial court apparently took the view that the action of the majority stockholders in voting, for themselves excessive salaries was but one of the incidents which led to the present situation. The concession that there may be n^d for a resort to the equitable processes of the court in order to remedy the situation, adds strength to the position of the trial court in decreeing dissolution as it casts dismal reflections upon the future prospects of the company.

In judging of the prospects of the company the trial court is supported by evidence in having reached the conclusion that the situation which existed, namely, the unhealable breach between the minority and majority stockholders, caused by a number of incidents which preceded it, shows that the company cannot successfully function and that the continuance of the corporation will cause a loss to its business and a sacrifice of its property.

The mere ability of the minority stockholders to resort to the process of injunction by way of remedying some of the abuses, will not bridge the gap now existing between the contending factions nor will it bring about the future harmonious cooperation, nor does it furnish a more favorable view of the company’s prospects. Quite the contrary is true.

Litigation of the character suggested intensifies the feeling between the parties and makes their relations even more strained. It is the common experience of the business world that embittered litigation between factions in a corporation tend to reduce the value of the corporation’s assets. It has a destructive and depreciating effect which in some cases leads to utter disorganization.

The trial court reached the conclusion from the facts presented to it that the dissolution of the corporation will be beneficial to the stockholders. It made a finding of fact supported by some evidence.

In order that this reviewing court be empowered to reverse this finding of the common pleas court, it would have to first find from the record that the finding and judgment of the common pleas court was manifestly against the weight of the evidence. We are unable to reach such a conclusion and the judgment of the Common Pleas Court is therefore affirmed.

Vickery, PJ, and Sullivan, J, concur.


text:
    STATE ex STEMP v FAUST
    Ohio Appeals, 7th Dist, Mahoning Co.
    Decided March 8, 1929
    Mr. W. O. Wallace, Columbiana, for State ex Stemp.
    Mr. R. L. Thomas, Youngstown, for Faust.
   POLLOCK, J.

The Township Board of Education has failed to file an answer in this case, but it was admitted, as we have stated. We do not find from the petition or the agreed statement of facts that the school board had made any order in regard to the discontinuance of school in the Springfield Central School District, but we must presume that the seats and blackboard and the advertising of this property for sale was done with the knowledge and consent of the school board.

It is also stated in argument that the school board had provided transportation for the children of the Springfield Central School District to the school in New Middletown and was transporting children whose parents were willing, that they should attend this school. They further urge in the brief filed that under 7684 GC. the Board had acted.

In other words, by the brief of the township board of education it had assigned the youth of Springfield Central District to the schools of New Middletown. But it is urged upon the part of the plaintiff that even if that had been done, that under Section 7730 of the Revised Statutes, upon a petition being presented to the Board it w,as required to re-establish the schools in Springfield Central School District.

The Supreme Court in the case of State v. Board of Education, 95 OS., 367, holds that upon a petition being filed it is mandatory upon the school board to re-establish the school in this district, but in the brief it is urged that since the decision of the Supreme Court in that case the Legislature has passed 7730-1 GC.

It is urged in the brief that the provision notwithstanding the school must not be disposed of in four years except for these purposes, that for these purposes it can be, and that the provision in the preceding section providing, that a petition may be filed and that it is mandatory must be read with regard to this provision, and if the house and grounds are being disposed of for any of the reasons stated therein, that the township school board is not required to re-establish the schools.

This proposition might be disposed of on the ground that there is not anything in the agreed statement of f,act which says that the board of education had removed the property from this building and were disposing of it for this purpose. In fact, the agreed statement of facts says that the Board of Education had done nothing in regard to the disposal of this schoolhouse or suspending of the school, but, granting that it had, we do not think that would be sufficient to authorize the school board to refuse the petition of the residents of this district. There is nothing before the Court indicating that the Board of Education was now engaged in erecting a school building for the benefit of the Dupils of Springfield Central School District, or that the building already erected in New Middletown was intended for that purpose, so that we do not think that the mandatory duty on the Board of Education of the township, upon a petition being, filed, as it is admitted it was filed in this case, has been changed or altered in any respect, but that the township board was required to re-establish the school in Springfield Central School District upon this petition being filed.

The injunction will be granted preventing the sale of this school building and an order made that they re-establish schools therein.

Motion for new trial, if filed, is overruled, and exceptions noted.

Roberts and Farr, JJ, concur.


text:
    RATKOVITZ v RATKOVITZ
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9877.
    Decided April 22, 1929
    Messrs. E. C. & C. H. Schwan and J. H. Read, all of Cleveland for Plaintiff in Error.
    Mr. Sidney Weitz, Esq., Cleveland, for Defendant in Error.
   VICKERY, PJ.

Several grounds of error are alleged in the brief some of which are not insisted upon strongly in the oral argument. It seems that this divorce proceeding was brought in the Insolvency Court, said court at that time having jurisdiction in Cuyahoga County in divorce cases, and the Insolvency Court made this continuing order in which this husband was ordered to pay $3.50 per week until further order, but before this proceeding was brought in the Common Pleas Court, the legislature of Ohio had taken away the divorce jurisdiction of the Insolvency Court and transferred it to the Court of Common Pleas, and whatever jurisdiction the Insolvency Court had in divorce matters was by that act transferred to the Common Pleas Court, and so the motion for an increase of the amount allowed by the court for the support of his former wife was filed in Common Pleas Court.

It was argued, but as already stated, not very strenuously that, inasmuch as this case had already been disposed of, it was, npt one of those which was transferred to the Common Pleas Court. We do not think there is much virtue in this argument because if that were so, then the Insolvency Court having lost control by reason of the act of the legislature taking from it all jurisdiction over divorce matters even though all the jurisdiction was transferred to the Common Pleas Court, there being no order in a particular case, that case could not be transferred and, therefore, there would be no remedy to insure rights of the parties. We do not accede to this doctrine. We think that if the Insolvency Court had continued to have jurisdiction over these matters this order would be subject to modification under the law at any time the jurisdiction of the Insolvency Court was invoked, and that might be invoked by a motion even after term, especially in such a case like the present one the decree being only until further order of the court. In other words, the court retained jurisdiction of this matter for the purpose of further adjustment whenever it was called to its attention and the jurisdiction having been taken from the court and transferred to the Common Pleas Court, the Common Pleas Court had the same jurisdiction that the Insolvency Court would have had even had there been no certification; but it is claimed in this case that, as a matter.of fact, there was a certification of this matter to the Common Pleas Court.

Having disposed of that question because this court thinks that where there is á continuing order in a divorce matter in the Court of Common Pleas or any other court having jurisdiction, that jurisdiction can be invoked to modify or change the original order at any time without having, a petition filed, and the cases that have been cited to us are not in opposition to this theory but were based upon a different proposition of law entirely.

We, therefore, think that the Common Pleas Court had jurisdiction to entertain a motion to increase, to diminish or to modify in any way the allowance for alimony that the Inoslvency Judge granted when the case was before it, and that' that could be done by motion, and it was no.t necessary to file a petition.

We think the only question that really is before this court is whether the facts that were heard by the Common Pleas .Judge warranted this increase. The Judge had the evidence before it as to the financial worth of this man and the whole situation, and we cannot say from this record that his judgment upon this question is so much against the weight of the evidence .that we would be justified in interfering or modifying this judgment in any way. If the husband has taken upon himself burdens which militate against his helping; to support the wife of his youth, the mother of his eight living children, that is one of the misfortunes that he has brought upon himself. One might go much farther and severely criticise the conduct of this plaintiff in error in procuring a divorce from the mother of his children under the circumstances under which the record shows this one was procured, but that matter was disposed of by the trial court and his judgment and not ours must prevail in that respect. We do think, however, that the order compelling this plaintiff in error to pay $55.00 a month, is not out of keeping with the extent of the money he had and the property he had when this divorce was heard.

We, therefore, can see no reason why we should disturb the finding of the court below and the judgment of the court below will, therefore, be affirmed.

Sullivan, and Levine, JJ, concur.


author: FUNK, P. J.

text:
    SCHWARTZ v BRICE et
    Ohio Appeals, 9th Dist, Summit Co
    No 1534.
    Decided March 13, 1929
    Messrs. Lahrmer Sz Hadley, Akron for Schwartz.
    Messrs. Slabaugh, Seiberling, Huber & Guinther, Akron, for Brice.
    Messrs. Sheck, Stevens & Hargreaves, Akron, for Daniel & Sarina Dituro.
   FUNK, P. J.

Three principal questions were argued by counsel on both sides, on the theory that a determination of them is decisive of the rights of the several parties in this case. They are as follows: first, Did plaintiff comply with his part of the agreement so as to entitle him to a decree for specific performance? second, Was the St. Ger-main Realty Co. such agent of the plaintiff as to make the information it gave Dituro about the plaintiff not carrying out his contract with Mrs. Brice, binding upon the plaintiff? and third, if the Realty Co. was not such agent, did Dituro have such information concerning plaintiff’s rights or interest in the property under said land contract as would make him a purchaser with notice and not an innocent purchaser?

We will take up the first the question, Did plaintiff comply with his part of the contract so as to entitle him to a decree of specific performance?

Counsel, of course, know that the power or duty of a court to decree specific performance of a contract does not depend upon any fixed rule but depends upon the peculiar facts in each case and rests largely in the sound discretion of the court, guided and regulated, so far as may be, by precedent and established practice; and that while á party may be entitled to a decree of specific performance if the contract for the conveyance is in all respects fair and free from ambiguity, yet even then the court will refuse a decree for specific performance if such performance would be harsh and oppressive upon any of the parties affected thereby.

While the questions argued by counsel may not require that these rules be especially or strictly applied in a determination of this case, yet they do reflect some bearing on the question of whether or not plaintiff has proven his right to specific performance by. a preponderance of the evidence, as he cannot rely entirely upon the failure of the defendant Brice to do some particular thing before she would be free to cancel the contract or refuse to carry it out, but he must also show that he has complied with all things on his part to be done before he is entitled to specific performance.

As each party claims that he was urging the other party to close the deal and that the delay was caused by the other party, and as these respective claims are supported by .about the same number of witnesses on each side, it is important to especially consider, in connection with what the witnesses said, all the surrounding facts and circumstances.

It will thus be noted that the uncontroverted evidence shows that Mrs. Brice executed the deed to plaintiff for her property and the notes and mortgage to him, for the pew amount agreed upon, on the property she was to get from him, on June 24, 1927, and left them with her agent for delivery to plaintiff when he carried out his part of the contract, and that she arranged with her agent, the. St. Germain Realty Co., to pay the amount of cash she needed to close the deal at anytime plaintiff paid the amount of cash necessary for him to close the deal; that this situation continued for more than three weeks, and that plaintiff did not pay the $205.15 necessary for him to pay to close the deal.

The uncontroverted evidence further shows that the first note of $1300 on the first mortgage on the Brice property, which was the mortgage for $6300 which plaintiff had agreed to assume, was long past due and that the holder thereof was demanding the payment of said $1300 and threatening to start foreclosure proceedings if it was not paid without further delay, and which was one of the reasons why Mrs. Brice was anxious to dispose of her property as soon as possible. Hence; while the statement furnished by the Realty Co. showed that it was necessary for plaintiff to furnish only $205.15 to close the deal so far as the parties and the Realty Co. were concerned, it was also necessary for plaintiff to pay said $1300 within a very limited time to prevent said first mortgage from being foreclosed upon the Brice property and to also pay the June, 1927, taxes then due thereon, amounting to $91.48. The evidence also shows that plaintiff was endeavoring to dispose of the Brice property before he completed the deal.

Under these facts and circumstances, would it be an unreasonable inference to draw that the necessity of raising the $1300 to prevent foreclosure, and the $91.48 to p,ay the June,- 1927, taxes, in addition to the $205.15, had some bearing, on why plaintiff might have wanted to délay closing the deal until he could find a buyer for the Brice property who would take car-e of the $1300 payment and the taxes, without his having to advance the money for it?

We think not; and after considering all the evidence offered, and the briefs and arguments of counsel, we have arrived at the conclusion that plaintiff has not only not sustained the burden of proving his right to specific performance by a preponderance of the evidence, but that the weight of the evidence rather seems to preponderate in favor of defendants.

Finding that plaintiff has not complied with his part of the agrément in such manner as would entitle him to a decree of specific performance, it is not necessary for us to determine the other two questions argued by counsel in this case. However, for the information of counsel, it may be said that we are all inclined to the opinion that Dituro did have such information as would put him on notice that plaintiff had some right in the property, but that a majority of the court are of the opinion that the St. Germain Realty Co. was such agent of the plaintiff ,as would bind him by the information given Dituro by the Realty Co. concerning the failure of plaintiff to carry out his part of the agreement, and which information’ would thereby make Dituro ,an innocent purchaser.

The petition of plaintiff will therefore be dismissed, and an entry may be prepared accordingly.

Pardee, J, and Washburn, J, concur.


author: ROBERTS, J.

text:
    KNOBLAUCH v SCHLEICHER
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9241.
    Decided Feb. 11, 1929
    Messrs. T. J. Long & L. A. Litzler, Cleveland, for Knoblauch.
    Messrs. Young, Stocker & Fenner, Cleveland, for Schleicher.
    Judges MIDDLETON & MAUCK (4th Dist) & ROBERTS, (7th Dist) sitting)
   ROBERTS, J.

The issue in this action or the necessity for a construction of Item Second and Third of the will, arises by reason of- the conflicting disputes of the parties to this action. The plaintiff, Michael J. Knoblauch, the surviving husband, of the deceased daughter, Clara, claims that Mathilda, his mother-in-law, under the terms of this will, took only a life interest in the property at best, and that his wife together with the other daughters, had, by the terms of the will, a vested interest in the remainder in the real estate in question. That his wife dying intestate, such share of the real estate as belonged to her descended as ancestral property whereby he acquired a life interest in such share of the real estate as was vested in his wife as aforesaid.

It is contended on behalf of the daughters who are defendants in this action, that by proper construction of the will their mother took a fee simple in the real estate mentioned in the will; that none of the daughters acquired any interest therein until after the death of the mother and then the surviving daughters inherited the property by virtue of the terms of the will of their mother and that Clara having died prior to their mother never had any interest in the real estate and subsequently no interest passed to the plaintiff as the surviving husband of the deceased daughter, Clara.

Having stated the agreed facts, the issues as raised by the pleadings and such part of the will as requires construction, before proceeding to a determination of what the will really means and how it should be construed, it is logical that some reference should be made to authorities specifying and defining the rules pertinent for consideration, under conditions involved herein.

Anderson vs. Gibson, 116 OS. 684, Syllabus 1.

Tax Commission vs Oswald, 109 OS. 36-48.

McMerriman vs. Scheil Exrs. 108 334.

Williams Lessee vs Veach, 17 OS. 171-180.

Decker vs Decker, 3 OS. 157.

Linton vs Laycock, 33 OS. 128.

Ide vs Clark, 5 C. C. 239.

Collins vs Collins, 40 OS. 353.

Thornhill et al vs Hull, 2 Clark & Finn 22.

Page on Wills, Sec. 574.

In this connection it is contended that the will under consideration in its second item devises the real estate to the wife and that any language which follows this disposition is less clear, less certain and less dispositive than that part which provides for the wife, and that by the first part properly construed, the wife takes a fee simple in the real estate and that all the following language which in any way mentions the giving or conveying of an interest to the daughters, must fail and become inoperative. Difficulty is encountered in this and other instances in the recognition and application of the rule under which the defendants claim for the reason that a determination of the force and effect of the first clause which is sought to be limited, depends not only upon the language used in such disposition but also all that is otherwise said in tlié same connection tending to lessen or modify the first provision.

The clearness and explicitness of the first and claimed controlling provision, depends not only upon its language but upon other language used in connection therewith tending to modify or lessen the estate first attempted to be created. As has been previously said, “the cardinal rule of interpretation of a will is to ascertain the meaning and intention of the testator.”

In the case of Moon Admr. vs Stewart, et al 87 OS. 349 it is s,aid in the opinion, commencing on page 357:

(Here follows quotation).

It is very apparent in the instant case that the will under consideration was drawn by some person wholly unfamiliar with such work with the result that the will is not as clear and explicit as it should have been and justifies this action for a construction of its terms.

Referring to Item second of the will, following the provison for the wife, in the same paragraph it is said:

“She shall at any desirable time distribute the property among herself and daughters: Clara, Coletta, Florence, Mary and Irene”

and immediately following the Third item is as follows:

“In case that she should die before she makes the distribution of the property it should be equally divided among said daughters.”

It is apparent that the wife and five daughters then living were the natural objects of the bounty of the testator and that he clearly had in mind the making of some provision for them in connection with provision for his wife. If we were to attempt to apply the rule claimed by counsel for the defendants all that is said concerning, the daughters in the second and third items would have to, be ignored and disregarded.

It seems fully as clear that the testator intended to make provision for the daughters as for the wife. Guided by the cardinal rule hereinbefore quoted, ascertaining and following the intention of the testator, we are irresistibly led to the conclusion that he intended to make disposition of property in favor of the daughters and that whatever would otherwise have gone to the wife was lessened and qualified by such interest as he intended to devise in favor of the daughters.

The will does not expressly state the precise share which the daughters respectively and the mother should have in the property, but did make it incumbent upon the wife to distribute the property among herself and daughters.

The reasonable construction of this language is that this distribution should be made in six equal parts, one part to the wife apd one part to each of the daughters. The wife having failed to make distribution during her lifetime, then the third item becomes important which provides that in that event the property should be equally divided among said daughters.' The wife having failed to exercise her right to make distribution and by her death her interest in the property having become extinguished, then the subsequent provision becomes applicable that it should be equally divided among said daughters. This leads us to the conclusion that under the terms of the will as construed, each of the daughters had undivided vested interests in the real estate and concededly such interest as the deceased daughter. Clara, had, descended as ancestral property giving the plaintiff a life interest in her share.

We thus reach the final conclusion that the true intent of the testator and the proper construction of his will is that John Joseph Schleicher intended his wife Mathilda, to divide his property equally between herself and the five daughters and that in the event she failed to do so said property should be equally divided among the five daughters. The plaintiff therefore is the owner of a life estate in an undivided one-fifth of the real estate mentioned in the last will and testament of Joseph Schleicher which property is more fully described in the joint answer ,and cross-petition of the defendants than in the will.

This, it may be added, is the same construction made of the will as by the Court of Common Pleas of Cuyahoga County.

Middleton, PJ, and Mauck, J, concur.


author: FARR, J.

text:
    ANDRUS v YOUNGSTOWN MUNICIPAL RY CO
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided March 8, 1929
    Mr. John J. Boyle, Youngstown, for Andrus.
    Messrs. Harrington, DeFord, Huxley & Smith, Youngstown, for Youngstown Municipal Ry Co.
   FARR, J.

Upon a review of the testimony it seems clear that Mrs. Andrus was injured in this collision at least to some extent. To what extent it is not necessary to determine at this time, and the fact that she had recovered personally for the injuries that she sustained does not affect the right of the husband to recover for loss of her services by reason of the same injuries; This verdict was rendered by the jury, as already stated, regardless of the fact that it is practically conceded that if injuries were sustained that the liability of the company is not denied. True, she was later injured in an accident, but it is not shown that such injuries are the basis of the recovery sought by the husband.

As to the next proposition, that domestic trouble had arisen between husband and wife, it is disclosed that in behalf of the defendant below the pleadings in a divorce action were offered and received in evidence, by which it is disclosed that an action for divorce had been brought and answer and cross petition filed to the petition, but it is also disclosed that in about five months following the injuries that a reconciliation took place between the husband and wife and that they were again living together. At the time of trial about four years had intervened between the date of the injury and the trial; therefore, the temporary separation for the five months period would not bar the husband’s right to recover for loss of services after the expiration of that period and when they were again living together. As to the right of recovery under such circumstances there can be no question, under the rule announced in Railway Company v. Glenn, 68 OS., 395.

This principle is adhered to in the case of Smith v. Building Company, 93 OS., 104. It.is alleged in the petition that there had been incurred or paid various accounts such as the doctor bills of Drs. Deitchman, Mariner and Speck, for X-ray pictures, for the services of the wash-woman and other necessities; therefore, the conclusion reached is that this record discloses certain injuries to the wife; that these injuries, so far as the testimony goes to show, did affect her ability to attend to her household duties, and after the expiration of the five months period during which they were separated and for which the husband seeks to recover. Therefore, there was at least the right of the recovery of some amount since the liability of the defendant company is practically conceded.

The conclusion is, therefore, that the verdict and judgment are against the weight of the evidence, and the judgment is reversed and the cause remanded.

Pollock and Roberts, JJ, concur.


author: HORNBECK, J.

text:
    JACOBS v DAYTON (City)
    Ohio Appeals, 2nd Dist, Montgomery Co
    No 846.
    Decided July 29, 1929
    Messrs. C. J. Mattern & Albert J. Dwyer, Dayton, for Jacobs.
    Messrs. John Harshman & Walter V. Snyder, Dayton, for City.
   HORNBECK, J.

The City has in great detail worked out this division of costs. It is not so manifestyl disproportionate to the services that would logically be rendered under the meat inspection ordinance, as to arrest our attention and require us to say that it is excessive.

The salary of the inspectors, two for five months each. $1800, and one part-time, $272.60, does not appear to be objectionable. Automobile maintenance includes $43.80 for Doctor Burke’s car, based on the same proportion of total cost as his salary charge, and for inspectors’ care is charged $405.80. This particular expenditure was questioned and evidence offered by the plaintiff tending to show the oroximity to each other of the plants to be visited, and their accessibility from the office of the meat inspectors. It appears that most of the places to be investigated can be reach-ed in 30 minutes by foot, and the most remote in 25 minutes by car. But, it likewise appears that the slaughter houses are in different sections of the city, that they are, in the main, comparatively small plants, that it is necessary to visit them upon hasty notice, and that the work of the inspectors at the plants requires rarely if at all, a full day.

In view of the common use of the automobile in carrying on business enterprises of all kinds, and the expedition with which it enables one to get about, and the necessity that inspectors attend promptly upon notification of the butchers, we cannot say that the employment of this type of transportation is improper, nor that the expense incident thereto is disproportionate to the demands of the service.

Taken in its entirety, the expenditures incident to the meat inspection cannot be said to be excessive and inasmuch as they are considerably in excess of the amount required to be paid by the butchers we are not confronted with the necessity of determining if the surplus created from the fees is excessive.

We are therefore of the opinion that the fees charged under the ordinance in question are not out of proportion to the expense of such inspection, and therefore are not unlawful.

At the time of the hearing of this cause, plaintiff asked leave to amend his petition by alleging that Sections 735 and 737 of the meat inspection ordinance are contrary to the provisions of Section 1 of Article XIV of the Constitution of the United States, and Section 1, 2 and 19 of Article I of the Constitution of the State of Ohio.

The court, after consideration of this tendered amendment has concluded to permit it to be filed over the objection and exception of defendant. We doubt very seriously our right to open up the case at this time for any purpose whatever other than that fpr which it was specially assigned. However, so that plaintiff may have assured to him any possible legal right to which he is entitled, we are holding that the ordinance is valid and not in contravention of the Constitution of the United States nor the State -of Ohio in the particulars claimed.

Kunkle and Allre,ad, JJ, concur.


text:
    BRARTON v FISHER-GILDER CARTAGE & STORAGE CO
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided March 22, 1929
    Mr. John Ruffalo. Youngstown, for Brarton.
    Mr. Wm. E. Pfau, Youngstown, for Cartage Co.
   FARR, J.

Miss Brarton was crossing this intersection at about eleven o’clock in the morning; the truck was traveling northward across Champion Street. The old lady was crossing about that time and a number of girls were also crossing, and whom she said she followed. They were leading, the way. She was old, heavy, hard of hearing, somewhat tottering perhaps, and time had no doubt dimmed her eyesight. She followed with the crowd that was passing. Wilkinson, standing at the curb, was about to cross. He saw the truck coming and refrained from doing so at that time, but, more than that, he spoke to Miss Brarton as she went out into the path of danger and he said, “Lady’ watch that truck.” Perhaps she did not hear. Perhaps she did not see. An accident of this kind is always regrettable, but it does not follow that one who is the cause of an injury may be penalized under such circumstances save and except for proper reasons.

A case reflecting somewhat upon the situation here is the case of Schmidt vs. Schalm, 2 App., 288.

Another case reflecting directly upon the issue here involved is Baking Company v. Tompkinson, found in the “Ohio Bar” for July 17th, 1928, page 355, and the same case is found in 161 N. E., 283.

In the instant case the trial court determined that Miss Brarton was guilty of contributory negligence as a matter of law; Kellar v. Railroad, 12 App., 326. Attention has been called to Valentine v. Pavilonis, (6 Abs 462) a case decided by the Appellate Court of the 8th District of Ohio, Cuyahoga County, and this case has been read but it is easily distinguished from the instant case upon the facts, and it is not believed that any relief is offered to the claimant in the case at bar by the above or the case of Griffith vs. Slaybaugh in the Court of Appeals for the District of Columbia. This cause w,as on review from the Municipal Court of the District of Columbia, and there are some pertinent paragraphs set out in the opinion of Justice Van Orsdell of that court, but upon reading this opinion, especially the parts that are marked as reflecting directly upon the issues here, many good things are stated by Justice Van Orsdell, and with which this court fully agree, and yet they are not applicable, except in a general way, nor are they controlling in the instant case, because Miss Brarton was walking from the curb out into the street at the intersection with a truck approaching at a very moderate rate of speed, not more than six or seven miles per hour, and then the outstanding fact, Wilkinson, a man only fifty years of age, perhaps strong and verile, hesitating at the curb, but not only that, calling to Miss Brarton to beware of the truck, and regardless of a friendly warning from Wilkinson, the unfortunate lady travels on into the path of danger and injury. As before stated such an incident brings with it its regret, but that regret must not be made the basis or grounds to penalize those who have not really been at fault.

There is nothing here to disclose that the driver of the truck w,as at faul. Wilkinson says that the driver blew his horn; that he had no trouble to hear it; that the truck was traveling at a moderate rate of speed. What else could Wilkinson have done under all of the circumstances to have protected Miss Brarton? He had a right to assume that she could see and he,ar, because there was nothing to advise him to the contrary and he was therefore without any knowledge that she could not see or hear well.

In the light of the testimony the cause was properly arrested from the consideration of the jury and the judgment is affirmed.

Pollock and Roberts, JJ, concur.


author: RICHARDS, J.

text:
    DANNER v AVERY
    Ohio Appeals, 6th Dist, Wood Co
    No 440.
    Decided January 14, 1929
    Messrs. L. D. Hill & E. M. Fries, Bowling Green, for Danner.
    Mr. N. R. Harrington, Bowling Green, for Avery.
   RICHARDS, J.

Many grounds of error are relied on for reversing the judgment, but we will not discuss all of those grounds in detail. The record discloses an abundance of conflict in testimony on material facts and the court cannot say that the verdict and judgment are not sustained by sufficient evidence.

The case was tried on a third amended petition, an amended .answer thereto and a reply. The plaintiff’s final amended petition charges negligence on the part of the defendant in driving the heavily loaded truck in violation of the speed law, failure to operate the brakes, disregarding the dangerous conditions existing at the intersection, failing to give any alarm or signal, operating the truck in violation of the statute and the ordinances of Bowling Green and failing to keep a lookout for other vehicles. The amended answer charges that Ruth Danner, who was operating the Ford car, was only 15 years of age and wholly incompetent to manage the car, and that an ordinance of the Citv of Bowling. Green made it unlawful for a minor under 16 years of age to operate a car upon the public streets, and charges further that the collison was caused solely by placing the infant child in the custody of young and thoughtless girls.

The testimony is in conflict as to the speed of the car and the truck and the relative time at which they entered the intersection. It appears, however, beyond question, that the Ford car was struck by the truck on the rear right hand wheel and testimony was offered on behalf of the plaintiff tending to show that the Ford car arrived at the intersection first and drove into the intersection first.

The court, at the request of defendant, instructed the jury before argument that the driver of defendant’s truck had the right of way as .against the Ford car and had the right to assume that plaintiff’s car was being driven by a driver 'of competent age and one qualified to drive an an automobile upon the public streets. We find two objections to this charge. In the first place, the testimony being in conflict as to which vehicle first arrived at the intersection, it was a cuestión for the jury ,as which had the right of way. If the car and truck arrived at the intersection at or .about the same time the truck would have had the right of way and the right to proceed, if ordinary care would permit it to do so, because it was approaching the intersection on the right of the driver of the Ford car. But the rule giving the right of way to the car approaching on the i'ight cannot be announced without qualification when the evidence is in conflict, and only applies where the two arrive at the intersection at the same time, or substantially the same time. Since this case was tried in the court of common pleas, the Supreme Court in the case of Heidle, et al. vs. Baldwin, 118 Ohio St., -, 161 N. E., 44, has announced the rules applicable at intersections. It is apparent that if that decision had beeen rendered prior to this trial, some of the requests which were submitted would not have been asked or given. The decision in the case just cited makes.it clear the trial court should have left to the jury the question as to which party had the right of way under the circumstances disclosed by the evidence.

This charge also is subject to the objection that it states the driver of the defendant’s truck h,ad the right to assume various things stated in the charge, without adding “unless he has or in the exercise of ordinary care should have had knowledge to .the contrary”, or words to that effect.

Mostov vs. Unkefer, 24 Ohio App., 420.

Defendant’s request No. 3, like the one just discussed, is subject to the objection that it instructs the jury, without qualification, that Ruth Danner was charged with notice that the law gave those approaching. from the south on Maple Street and on her right, the right of way.

Instruction No. 7, giyen to the jury at defendant’s request, reads as follows:

“If you find that the plaintiff’s driver saw, or in the exercise of ordinary care would have seen defendant’s truck .approaching or entering upon said intersection in . time to have checked her car, and thereby- avoid collison, and she failed to do so, and you find that the defendant’s driver did not blow his horn or give other signal of his approach, such failure under such circumstances would not constitute negligence on his part.”

This charge is prejudicially erroneous for it in effect instructs the jury that if the driver of the plaintiff’s car was negligent on the occasion and could have avoided the collision, and the driver of the truck did not blow his horn or give other signal, such failure would not constitute negligence on his part. It .was for the jury to ascertain from the facts whether the defendant’s driver failed to exercise ordinary care on the occasion, and if he did so fail, and such failure proximately caused the collision and injury to the child, then the defendant would be liable even if the driver of the Ford car violated the ordinance and. was guilty of negligence which directly contributed to the injury.

Defendant’s request No. 8 is subject to the criticism that it excuses the defendant from liability if the driver exercised ordinary care in his approach to the intersection, regardless of what his conduct may have been after he entered the intersection. A charge of that sort was condemned in Railroad Co. vs. Kistler, 66 Ohio St., 326, 339, Under this charge the defendant might escape liability no matter how .negligent he may have been after entering the intersection, if he exercised care in approaching it.

Instruction No. 10 givn at the request of the defendant is open to the objection that it puts too great a burden on the driver of the Ford automobile, in that it instructs the jury without qualification that it w,as her duty to check or stop her car. The jury should only have been told that it was her duty to exercise ordinary care in that respect.

The jury was correctly instructed that the negligence of Ruth Danner in operating the Ford automobile could not be imputed to the child, a.nd that the fact that Ruth Danner was under 16 years of age and had no right to operate an automobile, would not prevent the plaintiff from recovering if the neglig.ence of defendant’s driver contributed directly to the plaintiff’s injury.

The common pleas court allowed to remain in the amended answer to the third amended petition an averment that a minor about the same age as Ruth Danner was riding in the front seat holding in her lap the infant child Martin Danner and that said collision was caused solely by the placing of said infant child in the care and custody of young and thoughtless girls. We think the motion to strike that averment from the amended answer should have been granted. We are not able to see that the fact that Martin Danner was held on the lap of a young girl in the front seat could by any possibility have any causal connection with the collision. It could not be a proximate cause of the collision.

Certainly it was competent to prove all the circumstances under which the collision occurred, including the age of Ruth Danner and her experience or the lack of it in operating a car. And we also hold that it was competent to prove the terms of the ordinance prohibiting the operation of a car by a person under 16 years of age. This proof was competent, not for the purpose of founding, a claim that any such negligence could be imputed to the child, Martin Danner, but for the purpose ©f establishing negligence on the part of Ruth Danner, because such violation would be negligence per se.

Schell vs. DuBois, Admr., 94 Ohio St., 93; Rush vs. McDonald, et al., 214, Ala., 47, syl. 5. Freebom vs. Holt, 100 Okla., 50.

The ordinance passed by the City of Bowling Green amounts to a legislative declaration that persons under 16 years of age are incompetent to operate any motor vehicle on the public highways of the city. The question would, however, remain, whether the violation of the ordinance was the sole proximate cause of the collision, and that would be a question of fact for the jury. Certainly the violation of the ordinance and the immaturity of Ruth Danner could have no effect unless a causal connection were shown to exist between the negligence and the collision; but if Ruth Danner were negligent and her negligence proximately and solely caused the collision resulting in injuries to the child, the defendant would not be liable.

Huddy on Automobiles, Sec. 358, p. 370; 2 Blashfield’s Cyclopedia of Automobile Law, 1217, 1238, 1247; 20 R. C. L., 43.

The following cases illustrate the application of the rule under varying circumstances:

Switzer vs. Sherwood, et al., 80 Wash., 19; Koch vs. City of Seattle, 113 Wash., 583; Benesch, by guardian, vs. Pagel, 171 Wis., 620; DeLaney vs. Henderson-Gilmer Co., 192 N. C., 647; Arrelano vs. Jorgensen, 52 Cal. App., 662.

In view of the conflict in the evidence and the nature of the errors, we cannot say that substantial justice has been done by the judgment rendered in this case. For the reasons given the judgment will be reversed and the cause remanded for a new trial.

Wiliams and Lloyd, JJ, concur.


author: SULLIVAN, PJ.

text:
    STATE ex TESHERA v TURGEON
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9787.
    Decided January 14, 1929
    Mr. Sydney A. Davies, Cleveland, for State ex Teshera.
    Mr. John Price, Cleveland, for Turgeon.
   SULLIVAN, PJ.

In the first place, it must be observed that this is not a taxpayer’s suit, and it does not appear anywhere in the record that the rights of the general public are in issue, but, on the contrary, it is clear and conclusive that it is only a private individual right that is projected from the allegations of the petition for the writ of mandamus. The sections above quoted specifically apply to the suit of a taxpayer of a corporation, and it is well settled that it is the plain purpose and intent of these statutes to prevent a municipal corporation from becoming a plaintiff in court without its consent, and it is just as obvious that these sections of the statute do not confer rights upon a taxpayer, but impose a restriction unon those rights by the compulsion of making the application to the City Solicitor, and where refusal results to have that fact form a basis for the right to. commence a suit.

It has frequently been held that there is a distinction between a suit involving the rights of the taxpayers in general and the prerogative of an individual who seeks a right from which he has been denied. It is a well settled proposition of law that, in the absence of positive statutory restriction, every person with a private grievance has a right to his day in court, and it is very questionable whether the legislature has any power to restrict or limit this right by the imposition of the burden of first applying and meeting with the refusal of the City Solicitor of a municipal corporation.

In the petition at bar, it does not appear in any wise that there is any violation of the rights of the municipal corporation, and it is plainly apparent that the only right which appears in the case is the right of the relator to build a Club House upon her own premises, and this is a status which is absolutely unrelated to the rights in general of the body politic.

Under 12283 and 12302 GC., there is no limitation or qualification which confines the right to a writ of mandamus to a taxpayer whose application has been denied by the City Solicitor, and it is admitted in the argument of the case that there is no authority in Ohio which denies the right to sue for a writ of mandamus where a private right is sought to be enforced because of the failure to apply to the City Solicitor and to receive a refusal of the application.

Upon this point, by way of passing, it is well to note that, according to the petition the municipal corporation, if not through its Building Commissioner, at least through its Chief Executive, upon application for a permit to construct, has refused the same and, therefore, it follows as a matter of natural logic, that it would be futile to apply to the counsel for the corporation to commence litigation that would be derogatory to, and in violation of, the official action of the Building Commission and the Mayor of the Village of Rocky River. .Under such a status it seems anomalous and incongruous that the defendants in error should be seeking to deny the right of the relator to sue for this writ, in the face of the corporation’s refusal, through official authority, to grant the application of the relator for a permit to construct the Club House in question. Therefore, in a sense at least, it may be said that, substantially speaking, the relator has applied, in a practical manner at least, to the corporation for the relief which he seeks, by the suing out of the writ of mandamus, and has met with refusal.

The decisive point, however, upon which we decide the! the relator has a right to sue and that the action of the court below was error, is that the basis of the action is an individual and not a corporation right,' and the distinction is of such substance that the courts have established the proposition that where such a status exists, the right of the relator’s day in court in a mandamus proceeding is not susceptible of judicial denial, or legislative act.

From a review of the legislation upon this point we think our reasoning is conclusive. Beginning the examination of the question from Sections 1777 and 1778 of the old Revised Statutes of Ohio, we find that they were the progenitors of 4313 and 4314 GC., and these old sections, in Herrick et al vs. the City of Cleveland, 7 C. C., 470, have been under judicial consideration, and we quote therefrom to sustain our views upon this distinction in favor of the individual where his right is personal as aganst the contention of the corporation that he cannot go forward without the application having been made to the City Solicitor and refused by that official. The syllabus in that case is as follows:

(Here follows quotation)

We quote further from the court’s opinion on page 478, as follows:

(Here follows quotation)

In line with this authority is 6 O. C. C. 305; 3 O. C. D. 465; 7 O. C. C. 470.

In Kuhn vs. the City of Cleveland, 1 C. C. N. S., page 384, we quote from the opinion on page 386 which has reference to Sections 1777 and 1778, above noted, and it sustains our view herein, as follows:

(Here follows quotation)

In the case of State ex rel vs. Roebuck, 2 O. N. P. N. S., page 688, we find that it holds that there is no necessity, in a case like the one at bar, in making a request upon the City Solicitor.

And it may be noted that in the above case a demurrer was filed to the petition under the old revised statutes sections 1777 and 1778, and the court again refers to the distinction already .noted above, therefrom.

Therefore, from a review of the entire case, it is our holding that the Court of Common Pleas was in error in sustaining the motion and making rulings of a similar nature, and thus holding, the judgment of the lower court is hereby reversed, with instructions to the Court of Common Pleas to overrule the demurrer, and an entry may be made accordingly.

Vickery and Levine, JJ, concur.


text:
    LAKE ERIE BOLT & NUT CO v PENN RD CO
    Ohio Appeals, 8th Dist., Cuyahoga Co
    No 9601.
    Decided Februray 25, 1929
    Messrs. Bulkley, Hauxhurst, Jamison & Sharp, Cleveland, for Bolt & Nut Co.
    Messrs. Squire, Sanders & Dempsey, Cleveland, for Penn Rd Co.
   VICKERY, PJ.

The case on its face seems to be of not much importance, for the amount involved is so small that it would scarcely pay for the time and labor spent in collecting the difference in freight, but apparently there is a deeper motive than this, and that seems to be to have the courts rule differently than the Interstate Commerce Commission has ruled and to have the court fix the rates.

.It - was claimed by the Pennsylvania Railroad Company that the commodity was a finished product and, therefore, entitled to the higher rate, or the rate that the Inspector of the Railway Company claimed it should bear and that, therefore, the plaintiff below was entitled to and did recover the amount of the difference between the two rates.

Now it is well settled that the Interstate Commerce Commission has the right and power to fix the rates of freight and that the courts, when a matter gets into the courts, will follow the rulings of the Interstate Commerce Commission, so far as the rates are concerned. In other words, the courts will not trouble themselves about fixing rates; they will adhere to the rates and compel shippers and others receiving shipments to adhere to the rates adopted ,and laid down by the Interstate Commerce Commission. So it becomes a question of fact, whether the materials in question came within the one tariff rate or the other, and that will depend upon whether this is a finished or an unfinished product.

Of course, in ,a way, when a product leaves a particular factory, — when that factory has done all to it that it can do or wants to do, — it is ,a finished product; like pig iron: it is the finished pig when it leaves the place where it is manufactured, but that does not show that it is a finished product that may ultimately be turned out, so that when the ore is turned into the ingot and the ingot into the bloom and the bloom into the billet, the billet is in a measure the finished product. Now, when that billet was still further rolled to make the nut flat, is that, then, a finished product so that the common carrier would be entitled to charge a higher rate than that charged for billets?

Fortunately we are not left to guess about this matter. The Interstate Commerce Commission in several cases has had this question before it, and we do not think it is any longer a question for the courts to bother with.

In the case of Lancaster Steel Products Corporation vs. Director General, 73 I. C. C. 567, it was held that “nut flat” material was entitled to the same rate as “commodity” or “billet” material. Also: New England Drawn Steel Co. vs. Director General, 93 I. C. C. 171 and Clark Bros. Bolt Co. vs. N. Y. C. R. R. Co., 103 I. C. C. 355. It seems to me that that is decisive of the question in the instant case, because there is no question but what this is nut flat material that is in question here. Now “billet” and “commodity” are the same thing so far as the rate is concerned. Billet rate is the same as commodity rate and “nut flat” rate is the same as the commodity rate.

The material in question conforms in size; it conforms in shape; it conforms in the method in which it was handled, that is, it was coiled, it conforms in that it is admitted that it was not drawn through a die, and it conformed to the theory that it might be carried in open cars rather than in closed cars. In other words, there was no fine finish in this material that would be injured by exposure to the weather, and when the material got to its destination, it had to be further treated before it could even be used, or at least before it w,as used to make nuts and bolts out of it. It was pickled and limed,— another process, — before they undertook to use it to make the manufactured product to go to the ultimate destination.

Then the defendant in error was driven back to the ultimate argument that it was finished. Well, the Interstate Commerce Commission has taken occasion to describe what “finished” means. 104 I. C. C. page 620.

The only answer we can get from counsel in distinguishing, this case from those decided by the Interstate Commerce Commission was that they were not parties to that and were not bound. Well, it would be a rather singular proposition if the Interstate Commerce Commission in fixing a rate can make a rate and that does not bind anybody for the same kind of material except the parties who invoke the aid of the Commission in that particular case; if all parties would have access to the courts to change the rate already fixed in spite of the finding of the Interstate Commerce Commission. Whenever the Interstate Commerce Commission has the question squarely before it and it is within its jurisdiction to make a rate, the rate must bind those who ship material coming within one of the various schedules adopted and furnished by the Interstate Commerce Commission. I take it, that if a shipper or a common carrier is not satisfied with the rate, the proper way to change, that rate is to have the question raised and to get the Interstate Commerce Commission to reverse itself or to adopt and give a different rate. It surely cannot ignore the Interstate Commerce Commission’s finding because, perchance, a carrier who does not wish to conform to that rate, wants a higher one and seeks the aid of the court to g.et it that way, for if such were the procedure it could nullify and make ineffectual the rulings of the Interstate Commerce Commission. To fix and determine rates and to prevent discrimination and favoritism among shippers was the purpose of the Interstate Commerce Commission.

It is manifest and plain by the decision of the Interstate Commerce Commission that “nut flats” are not the finished product, and that they are entitled to be shipped at the same rate for which billet steel was shipped, or, as the Interstate Commerce Commission puts it, “commodity rate.”

Now it is admitted that if the shipper of this material in question was entitled to have the rate fixed for billet steel, or commodity rate, then the payment that the Lake Erie Nut and Bolt Company made to the Pennsylvania Company paid all the freight that was due upon this shipment, and that the judgment would, in that event, be wrong.

Now we can come to no other conclusion, after familiarizing ourselves with the evidence in. this case, but that the material shipped was “nut flats” and that it was unfinished; that it could not be used, or was not at least used in the condition that the consignee received it, but had to be further treated before it could be used in the manufacture of nuts; that it was shipped in open cars and was not injured by exposure to the weather in any way; ,and consequently, we are forced to come to the conclusion that the judgment of the court below was not supported bv sufficient evidence and was contrary to the evidence and was likewise contrary to the rule of the Interstate Commerce Commission and the rate adopted by it.

The judgment of the court will, therefore, be that the judgment of the lower court be reversed and final judgment for the plaintiff in error.

Sullivan and Levine, JJ, concur.


author: LEVINE, J.

text:
    STATE ex BETTMAN v CANFIELD OIL CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9902.
    Decided May 20, 1929
    Messrs. Gilbert Bettman, Cincinnati, and Oscar Brown, Cleveland, for State ex Bettman.
    Messrs. Chamberlain, Marty & Fuller, Cleveland, for Oil Co.
   LEVINE, J.

In the brief of counsel for plaintiff,considerable space is devoted to the question whether the facts stated in the defendant’s answer constituted in law or in equity a set-off or counter-claim. Section 11319 GC. defines a setoff.

Section 11317 GC. defines a counterclaim.

If the allegations of defendants answer are to be treated in the nature of a cross-demand, it is to say the least doubtful whether the above section embraces it within its terms. This cross-demand of defendant does not arise out of contract for it has been declared in Peter v. Parkerson, 85 OS. 36, that a tax is not a debt, fine or judgment. A tax arises by operation of law and not by virtue of contract. Likewise it did not arise out of the transaction set forth in the petition as the foundation of the plaintiff’s claim because the excise tax sought to be recovered by the plaintiff’s petition, is for gasoline sold during the month of May, 1927, whereas the cross-demand of the defendant accrued between the period of July 1, 1925 and March 1926. It will also be seen that it is not connected with the subject of the action as set forth in plaintiff’s petition.

As to the argument made by the state that it is ,a well recognized rule that no person can sue the state without its permission unless the statutes specifically provide therefor, and that no such statute was ever enacted in Ohio, we do not deem the same of serious weight for the reason that while it may be true that under the present state of the law the defendant could not sue the state for excess taxes paid by it, it would be entirely competent for the defendant, were it not for other considerations, to withhold payment of an obligation to the state on the basis of the over-payment previously made. We are inclined to the opinion, however, that the allegations of defendant’s answer do not amount to ,a set-off or counter-claim within the terms and wording of Secs. 11317 and 11319 GC.

Waiving aside technical rules of pleading and considering the facts in the light of equitable considerations, it seems to us clear that while the collection of the gasoline tax is made through the dealer the fact must be recognized that the tax is in realty imposed uoon the consumer. The law of the state seems to recognize that f,aet as 5534 GC. which deals with reimbursements of the tax when the fuel is used for any other purpose than the propulsion of motor vehicles, provides that:

“Any person * * * who shall use motor vehicle fuel, * * * shall be reimbursed to the extent of the amount of the tax so paid on such motor vehicle fuel *

The reimbursement is made to the consumer and not to the dealer. A dealer is charged with the collection of the tax for administrative purposes only. The tax is upon the enjoyment of the privilege of using motor vehicle fuel. State v. Brown 112 OS. 397.

Sec. 5532 GC. provides as follows:

(Here follows quotation)

The legislature undoubtedly had some purpose in mind when it provided that the “bill rendered by the dealer to all purchasers shall have printed thereon in a conspicuous place a statement that the liability to the state for the excise tax has been .assumed by the dealer * * *.”

We do not intend to decide in the instant case that the consumers of defendant’s benzol gas product who have retained their bills furnished them at the time of purchase, between July 1, 1925 and March 1926, would be entitled to a refund from the state. All that we seek to point out is that if the dealer’s claim is maintained, surely the state would have to recognize the claim of the consumer who in point of facts actually paid the tax.

Stripping the matter of technical considerations and getting at the essentials, it would seem the dealers when they collected the two cents per gallon from the consumer, became holders of trust funds for the benefit of the state. A mere naked trustee cannot assert a cross-demand to inure to his own benefit. The defendant would be unjustly enriched should its claim be allowed to prevail.

It is well settled that voluntary payment made under a mistake of law cannot be recovered back. Was the payment of the tax on benzol content .voluntary? Counsel for defendant insists that it was an involuntary payment. Citing Swan’s Treatise, p. 622.

It is quite clear that the tax upon gasoline can only be collected by the state of Ohio upon default of payment, by suit in a court of competent jurisdiction. It is true that the Code imposes a penalty of fifteen percent upon delinquent payments, but the same was designed merely to accelerate prompt payment. The defendant had other means of protecting its business than by payment. It could have refused to pay and in a suit by the state to collect, could have successfully resisted such payment.

As to what constitutes a voluntary or involuntary payment, there is ample law in the state of Ohio and other states covering the subject.

Mays v. Cincinnati, 1 OS. 268.

The mere fact that it was made under protest does not make the payment involuntary.

45 Iowa 185.

Whitbeck v. Minch, 48 OS. 210.

Baker v. Cincinnati, 11 OS. 534.

Cooley on Taxation, Sec. 1283

Also page 2569.

In Commonwealth v. Land Co. 23 Kans. 196, the state supreme court sustained a tax and the party assessed paid it and' took a state certificate. The United States Supreme Court afterwards declared the state tax void and notwithstanding such decision the state supreme court declared the payment to have been made voluntarily.

See Wilson v. Pelton, 40 OS. 306.

City of Marietta v. Slokump, 6 OS. 471.

The record fails to disclose any circumstances which would indicate that the payment was made by defendant in order to release any person or persons connected with it or its property from detention or to prevent a seizure of either by the State. The only method permitted by law for the collection of the tax is for the state to institute suit in a court of competent jurisdiction. The defendant could have refused such payment and in case of suit could have successfully defeated the efforts of the state. Instead it chose to rely upon the opinion of the attorney general of the state and made its successive payments under an erroneous impression as to the interpretation of the law.

We hold that the payment of taxes made under mistake of law but with full knowledge of the facts, was a voluntarv payment and cannot be recovered, notwithstanding the subsequent declaration of the Supreme Court that the tax on benzol content was not available to the State.

Upon the above consideration we hold that the common pleas court committed error in overruling the demurrer of plaintiff to the defendant’s answer, and that it also committed error in rendering final judgment for the defendant.

The judgment of the common pleas court will therefore be reversed and judgment will be entered in, favor of the State of Ohio.

Vickery, PJ, and Sullivan, J, concur.