author: By WISEMAN, J.

text:
    BAKER, Plaintiff-Appellee, v. ALL STATES LIFE INSURANCE CO., Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4382.
    Decided March 30, 1950.

      O. C. Ingalls, Gene A. Jones, Columbus, for plaintiff-ap>~ pellee.
    Isadore Topper, R. Brooke Alloway, Columbus, for defendant-appellant.
   OPINION

By WISEMAN, J.

This is an appeal on questions of law from the Municipal? Court of the City of Columbus which rendered judgment favor of the plaintiff in amount of $500.00.

The action is one in which the plaintiff seeks to recover under the double indemnity provision of a policy of life insurance issued by the defendant on the life of the plaintiff’s insured.

We have experienced considerable difficulty in determining on what theory this case was tried and decided. On the day of trial an extended discussion took place between counsel and the Court as to the nature of the cause of action and the theory on which this case should be presented. The trial Court took the position that the action sounded in contract on the policy. Counsel for the plaintiff took the position that the action sounded in tort; that the action was not based on the policy of insurance but was based upon fraud in the inducement in the procuring of the release. Also, counsel for the plaintiff contended that the right of recovery on the original contract was extinguished and that a new contract arose between the parties which formed the basis for the suit. In the oral argument before this Court counsel for the plaintiff took the same position. From the beginning counsel for the defendant insisted that this was an action for damages based on deceit.

Plaintiff in his petition alleges that his wife, Annabel S. Baker, was insured in defendant’s company; that he was named as beneficiary in said policy, and that the policy of insurance provided for double indemnity if the insured sustained bodily injury directly and solely through external, violent, and accidental means resulting in the death of the insured. Plaintiff further alleges that on the eighth day of March, 1947, Annabel S. Baker suffered an accidental injury in that she suffered burns on the body surface and that as a direct and proximate result of said burns said Annabel S. Baker died on the first day of April, 1947. Plaintiff alleges full compliance with the terms of the policy relative to giving notice and demand for payment. Plaintiff further alleges that the defendant admitted liability under the policy and tendered the principal sum of the policy in the amount of $500.00, but withheld the additional benefit of $500.00 payable under the double indemnity clause. Plaintiff further alleges that he advised defendant that the Metropolitan Life Insurance Company had promised to pay additional benefits on a policy that was held in that company, whereupon defendant stated that if the Metropolitan paid the additional benefits on its policy, the defendant would also pay plaintiff the additional $500.00. The plaintiff alleges that the Metropolitan Life Insurance Company did pay to the plaintiff the additional benefits on its policy and so advised the defendant, but the defendant refused to pay. The plaintiff further alleges that:

“Acting upon said representations that the additional benefits would be paid if Metropolitan paid, plaintiff surrendered Policy No. 517770 to the defendant and accepted the principal sum of Five hundred dollars ($500.00) and at the same time executed a release to the defendant. * * * Plaintiff alleges that on the 23rd day of April, 1947, the defendant represented to the plaintiff that if the Metropolitan Life Insurance Company paid to the plaintiff the amount as shown in their policy for death by accidental means, that the defendant would pay the Five hundred dollars ($500.00) additional benefits, that said representations were false and known by the defendant to be false and were made by it with the intention to deceive the plaintiff and to induce the plaintiff to execute a complete release to his damage. That because of the former good business relations between the parties the plaintiff had a right to rely upon said representations as being true and did so rely and execute the release and surrender the policy; that in reliance upon said representations, that defendant would pay if the Metropolitan paid, plaintiffs surrendered the insurance policy, executed a complete release of all claims whatsoever; that because of plaintiff’s reliance on said representations, knowingly and intentionally made and the falsity thereof, plaintiff sustained damages in the sum of Five hundred dollars ($500.00) with interest from the first day of May, 1947.
“WHEREFORE, plaintiff prays judgment against the defendant for the sum of Five hundred dollars ($500.00) with interest from the first day of May, 1947.”

To this petition the defendant filed an answer admitting that the contract of insurance contained a clause providing for the payment of additional benefits, if death was caused by accidental means. The defendant admitted that it paid to the plaintiff the sum of five hundred dollars and that upon such payment the plaintiff surrendered to the defendant the policy of insurance and executed a release to the defendant, which release defendant alleges was executed by said plaintiff as his free act and deed and with his full knowledge of the circumstances and the effect of said release, and that said release was read by said plaintiff before it was executed. Further answering, the defendant denies each and every other material allegation contained in the petition.

At the time of trial it was stipulated between the parties

“That Annabel Baker, wife of Walter E. Baker, the plaintiff herein, died on April first, 1947; that the immediate cause of her death was a sudden massive uterine hemorrhage, superimposed by burns over 65% of her body, and burns of third degree over 55% of her body, the burns being the proximate cause of the decedent’s death. The burns were incurred while the decedent was attempting to ignite a fire with kerosene.”

Evidence was taken on the matter of the execution of the release by the plaintiff and the payment of $500.00 by the defendant. The evidence showed that the Metropolitan Life Insurance Company did pay the plaintiff double indemnity under a policy issued on the life of Annabel S. Baker. The plaintiff was examined in chief and cross-examined at length relative to the conversation which took place between the plaintiff and the agent of the defendant at the time the plaintiff executed a complete release and received the check for the principal sum of the policy in the amount of $500.00. The testimony of the plaintiff, when given the most favorable construction, tends to support the allegations in his petition with respect to the alleged representations made by the defendant’s agent. The agent for the defendant testified that he informed the plaintiff that the defendant company denied any liability under the double indemnity clause of the policy and that the defendant company would pay only the principal sum of the policy upon the surrender of the policy and the execution of a complete release. The agent of the defendant company also testified that after he had made this statement the plaintiff surrendered the policy, executed the release and received the check which was tendered in the principal sum of the policy. The agent of the defendant company denied making any statement or promise to the plaintiff that his company would pay the double indemnity if the Metropolitan Life Insurance Company paid a double indemnity under its policy.

Upon the request of counsel for the defendant the court rendered a separate findings of fact and conclusions of law. The findings of fact are as follows:

“A contract of insurance on the life of Annabelle Baker in the amount of $500.00 and containing a double indemnity provision in the case of accidental death was issued by the defendant, All States Life Insurance Company, naming plaintiff, Walter E. Baker, husband of the decedent as beneficiary.
“A release was signed by the plaintiff beneficiary, Walter E. Baker, upon the death of his wife, Annabelle Baker, with the office manager, Mr. C. W. Schroeder, of the defendant, All States Life Insurance Company, upon the payment by check in the amount of $500.00 and other representations made by Mr. C. W. Schroeder.”

This statement constitutes the full and complete findings of fact of the trial court. The conclusions of law consisted of numerous quotations from Ohio Jurisprudence, American Jurisprudence, and Ruling Case Law and two cases cited on abstract principles of law. The court rendered judgment for the plaintiff in the amount of $500.00. The defendant filed a motion for new trial which was overruled and judgment was again entered.

The defendant-appellant has assigned as error: That the purported findings of fact and conclusions of law do not support the judgment, either on the theory of tort or contract; that the purported findings of fact and conclusions of law are not sufficiently clear to constitute a substantial compliance with §11421-2 GC; that the judgment is contrary to law, is contrary to the manifest weight of the evidence and is not supported by sufficient evidence; that the trial court erred in overruling the motion of defendant for finding in its favor at the close of all the evidence; that the trial court erred in the admission and exclusion of evidence.

The defendant-appellant contends that the findings of fact and conclusions of law do not support the judgment in favor of the plaintiff, either on the theory of tort or contract, and that said findings of fact and conclusions of law are not sufficiently clear to constitute a substantial compliance with §11421-2 GC. Without question, the separate findings of fact fail to respond to all of the material issues in the case, and are not a substantial compliance with the provision of §11421-2 GC. The findings of fact are insufficient to support the judgment either on the theory of tort or contract.

The general rule is that where the findings of fact do not support the judgment a reversal will be ordered. However, a different rule obtains where the findings of fact are so incomplete that the reviewing court is unable to determine the factual basis for the judgment. The court is always required to give that construction to the findings which would support the judgment, if possible, but where the court, after applying that principle, is still in doubt as to the grounds on which the judgment is founded, it has been held that in the exercise of a sound discretion the reviewing court will remand the case to the trial court for a specific findings of facts on all the determinative issues in the case. Peter v. The Union Manufacturing Company, 56 Oh St 181, 207, 43 N. E. 683. But where a complete bill of exceptions is presented to the reviewing court, which is the situation here, it would serve no useful purpose to remand the case to the trial court for a specific findings of facts if, upon examination of the bill of exceptions, the reviewing court cannot find any legal basis for the judgment. In the instant case, the facts relative to the manner in which the plaintiff’s decedent sustained the injury which resulted in her death were stipulated. The facts on this determinative issue are not in dispute. If the reviewing court, after construing the evidence most favorably to the appellee on all the determinative issues in the case, finds that a judgment for the appellee cannot be supported, it will not remand the case, but will proceed to determine the issues raised. We are required to examine the bill of exceptions to determine whether a judgment for the appellee can be supported upon any aspect of the case. See Levi v. Daniels, 22 Oh St 38; Grant v. City Trust and Savings Bank, 26 Abs. 227, 46 N. E. (2d) 453; Keller v. Weiss, 8 Abs 218, Vol. 2 O. Jur., Part 2, page 1610, Section . 847.

The appellant contends that whether the action sounds in contract or in tort, the plaintiff is required to show that he returned or tendered the money which he received at the time the release was executed. The evidence in this case does not show that the plaintiff returned to the defendant, or tendered, the amount which he received under the policy. In actions ex contractu the general rule is stated in Manhattan Life Insurance Company v. Burke, 69 Oh St 294, 70 N. E. 74, and in actions ex delicto the general rule is stated in Picklesimer v. The B. & O. Rd. Company, 151 Oh St 1, 84 N. E. (2d) 214. The general rule is to the effect that where a dispute exists between the parties as to liability and an amount less than the claim is paid to the claimant in settlement of the controversy and he executes a full acquittance and release, an action on the contract or in tort may not be maintained by the claimant without returning or tendering the consideration he received under the compromise agreement. However, there are exceptions to the general rule. In Manhattan Life Insurance Company v. Burke, supra, on page 303, the court, in discussing the exceptions to the general rule, held:

“One is that restoration is not necessary where the money received by the party was due him in any event and if returned could be recovered back. Bebout v. Bodle, 38 Oh St, 500, may be referred to as illustrative.”

The court then discussed the question which was presented in Bebout v. Bodle and on page 303 states:

“But the district court held, and this court held, that such payment back was not necessary, as, in any event, the principal maker owed the debt, and all of it. Of course the payment back would have been the doing of a vain thing, inasmuch as the plaintiff was admittedly entitled to the interest paid, whether by virtue of the settlement, or by the principal maker’s original liability, which liability was in no way impaired. The law does not require an idle ceremony.”

In Bebout v. Bodle the court, on page 504, held:

“It is further urged that in order to enable plaintiff to repudiate the contract she was bound to refund to William the money paid as its consideration, or at least to tender it back. This cannot be true. This sum, which was the interest covering the period of extension, during which the principal remained actually unpaid, was due to the plaintiff from William, irrespective of the question whether the agreement was valid or invalid. We can see no- reason why plaintiff should be compelled to pay to this defendant money which was her own in either event, and to which he could not, in any aspect of the case, be entitled.”

In National Fire Ins. Co. v. Wagner, et al., 23 Abs 369, this Court, in discussing this question, on page 375 held:

“Since the defendant owed the plaintiff that amount of money for which settlement was effected on the basis of partial loss, defendant was not required to tender back when this action was instituted. Bebout v. Bodle, 38 Oh St 500; Kelley, et al. v. Hazzard, et al., 96 Oh St 19. The trial court was not in error when it held against defendant on this claim.”

In the case at bar it is admitted that the defendant' company was liable to the plaintiff for the principal sum of the policy in the amount of $500.00, which it paid. This amount was due the plaintiff under the policy in any event and if returned could be recovered. The $500.00 was not paid in settlement of a compromise relative to the liability of the defendant company under the double indemnity provision of the policy. Under the facts in this case a return of the $500.00 or a tender of that amount was not a necessary'prerequisite to the recovery.

Because of the nature of the pleadings and the character of the evidence presented and the judgment of the court thereon, together with the errors assigned, it becomes necessary for this Court to consider whether the judgment can be supported on any one of the three theories advanced.

If the action sounds in contract and is based on the provision of the policy with respect to the payment of double indemnity for death caused by accidental means the plaintiff would be required to prove that the release was executed by reason of the fraud of the defendant’s agent and that death was caused by accidental means.

If the case sounds in tort and is considered an action for damages based on deceit, the plaintiff would be required to prove all the elements of deceit and that death was caused by accidental means.

There was evidence presented tending to prove the charge of fraud alleged in plaintiff’s petition. On this aspect of the case this Court cannot say that the allegations in the petition herein are not supported by sufficient evidence.

Counsel for the plaintiff has contended that a new contract arose between the parties which forms the basis of the suit; that at the time the plaintiff received the principal sum of the policy and executed the complete release a new contract was entered into whereby the defendant promised to pay the plaintiff the double indemnity if the Metropolitan Life Insurance Company paid a double indemnity on its policy. The evidence shows that the Metropolitan Life Insurance Company did pay to the plaintiff the double indemnity on its policy. In brief, counsel for the plaintiff contends that a novation took place, j A novation may be defined as the substitution of a new obligation for an old one, which is thereby extinguished. A novation may arise where the debtor and creditor remain the same but a new debt takes the place of an old one. There must always be a debt, once existing and now cancelled, to serve as a consideration for the new liability. In order to give a right of action on the new obligation there must be an extinguishment of the original debt. In order to recover upon this theory of the case the plaintiff would be required to prove not only that an obligation existed between the plaintiff and the defendant which was extinguished, but, also, that the •parties at the time the novation took place intended to effect a novation and both parties consented thereto. The release of the old obligation is a sufficient consideration for the new promise. Bacon v. Daniels, 37 Oh St 279. For the elements of novation see Bouvier’s Law Dictionary, Baldwin’s Edition, 1943,'page 859; Black’s Law Dictionary, DeLuxe Edition, page 1261, and Cyclopedic Law Dictionary, Third Edition, page 769. The evidence in this case will not support a conclusion that a novation was intended by the parties. The evidence shows that the agent of the defendant company had no authority to bind the company to such an agreement. Furthermore, we conclude that under the facts in this case any such agreement, if entered into, did not fall within the apparent scope of the authority of the agent. Also, in order to recover upon this theory of the case the plaintiff would be required to prove not only that the agreement entered into by the agent of the defendant company was binding on the defendant company on the theory that it was within the apparent scope of the agent’s authority, but, also, that a prior obligation existed between the plaintiff and the defendant, which was extinguished. In order to show a prior existing obligation it would be necessary for the plaintiff to prove that death was caused by accidental means.

Coming now to consider the basic issue in this case, which was whether the death of Annabel S. Baker was caused by accidental means, we return to the consideration of the stipulation entered into between the parties to the effect that: “The burns were incurred while the decedent was attempting to ignite a fire with kerosene.” The evidence shows that when the decedent attempted to ignite a fire with kerosene an explosion took place, resulting in third degree burns on 55% of the surface of her body, and that as a result thereof death ensued. Do these meager facts show that death was caused by accidental means? Without question, an accidental injury occurred, but it is not sufficient to show, under the provision of the policy, simply that an accidental injury occurred. The evidence does not show that an unexpected, unforeseen or unusual happening intervened. The evidence shows that the decedent performed the act which she intended to perform. The igniting of the kerosene was the natural consequence of her act. A differentiation must be made between the resulting injury to the insured and the means which was the operative cause in producing this injury. The facts in this case show that the means which produced the injury, to wit: the use of kerosene in igniting a fire, was voluntarily and intentionally employed. In the application of the principle laid down in the case of Mitchell v. New York Life Insurance Co., 136 Oh St 551, 27 N. E. (2d) 243, we conclude that death was not caused by accidental means within the intent and meaning of these words as used in the double indemnity clause of the insurance policy. In that case, the court in commenting on the evidence adduced, on page 553 stated:

“It is true that the result produced was not that which was intended, and hence accidental. However, the fact that the result was accidental does not make the means, which produced such result, likewise accidental.”

In Blubaugh v. The Lincoln National Life Insurance Co., 84 Oh Ap 202, 82 N. E. (2d) 765, this Court held:

“Before an injury can be said to be effected through ‘accidental means’ as that term is used in a policy of insurance which provides for double indemnity should the insured ‘sustain bodily injury, effected directly through external, violent and accidental means,’ it must be shown that the means by which the injury was produced was accidental; it is not sufficient that the resulting injury be unexpected, unforeseen or accidental; the means by which the injury resulted must be shown to be unexpected, unforeseen or accidental.
“Where the evidence shows proof of an accidental injury as distinguished from an injury effected through ‘accidental means,’ there cannot be a recovery.”

The defendant contends that the Court erred in admitting parol evidence to contradict the release agreement which was executed by the plaintiff at the time he received the principal sum of the proceeds of the policy. It is elementary that the written contract cannot be contradicted by parol evidence. Parol evidence may be admitted to contradict or vary a receipt, but where the receipt constitutes a contract parol evidence to contradict or vary its terms is inadmissible. In the case at bar, parol evidence was admissible on the theory that the plaintiff was induced to execute the release by reason of the false representations made by the agent of the defendant company. See 17 O. Jur. pp. 510, 569, 572. Furthermore, the record shows that counsel for the defendant interposed no objection to the introduction of this evidence and in fact cross-examined the plaintiff at length on this matter.

We conclude that the judgment of the trial court is not supported by sufficient evidence, is contrary to the manifest weight of the evidence, and contrary to law. The motion of the defendant for a finding in its favor filed at the close of all the evidence should have been sustained. This court enters judgment for the defendant, which the trial court should have rendered.

Judgment reversed and cause remanded.

MILLER, PJ, and HORNBECK, J, concur.


source: Caselaw Access Project

author: By Phillips, PJ.

license: Public Domain

text:
    STATE, Plaintiff-Appellee, v. McGHEE, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3320.
    Decided November 7, 1949.
    William A. Ambrose, Pros. Atty., Youngstown, for plaintiffappellee.
    Clyde W. Osborne, Youngstown, for defendant-appellant.
   OPINION

By Phillips, PJ.

The parties to the case we review will be referred to in this opinion as they stood in the court of common pleas, the State of Ohio as the State, and appellant McGhee as defendant.

Defendant was indicted by the grand jury of Mahoning County upon the following indictment laid under §12400 GC:—

“Indictment for. Second- Degree Murder
(Felony)
“The State of Ohio, Mahoning County, SS.
“In the Court of Common Pleas, Mahoning County, Ohio, of the term of January in the year of our Lord one thousand nine hundred and forty-nine.
“The Jurors of the Grand Jury of the County of Mahoning, and State of Ohio, then and there duly empanelled, sworn and charged to inquire of and present all offenses whatever committed within the limits of said County, on their said oaths, in the name and by the authority of the State of Ohio, do find and present:
“That John E. McGhee late of said County, on the 8th day of January in the year of our Lord one thousand nine hundred and forty-nine, at the County of Mahoning aforesaid unlawfully, purposely and maliciously killed Ruth L. McGhee, contrary to the statute in such cases made and provided and against the peace of the State of Ohio.”

A jury in the court of common pleas found defendant guilty as charged in the indictment, and acting under §12403 GC, the trial judge sentenced him to be imprisoned and confined in the Penitentiary at Columbus, Ohio, during life. Defendant appealed from that judgment of conviction and imprisonment to us on questions of law.

Defendant, aged 34 years, born in and, except as noted herein, a life long resident and citizen of Roanoke, Virginia, married Ruth Lottier on July 16, 1946, where, after their marriage, they lived until January 6, 1948, when they moved to Youngstown, where defendant worked and attended night school to improve himself; and he and his wife lived in a room in the home of his wife’s mother.

Defendant and his wife had the usual quarrels of a young married couple incident to the adjustments of living together as husband and wife; and, as he admitted, as the result of his service in the armed forces of the United States, he had occasional fits of temper.

Defendant left his employment about 3:00 P. M. on Saturday January 8, 1949, and met his wife in downstown Youngstown. They were friendly, and proceeded to their home, where they ate their evening meal, in the preparation of which he assisted her. Later in the evening they quarreled over his wife’s relations, after which she left their home to attend a woman’s club, to which she belonged. While quarreling she told him to “go to hell,” as the result of which he testified “so I went to see what the score was, to see where she was going, to find out about the change she was supposed to leave me, and why she ran out as she did”; that he overtook her at the corner of Edward and Cleveland Streets in Youngstown, Mahoning County, Ohio, and they crossed Hill-man Street together to the southeast corner of Hillman and Cleveland Streets, where he took his wife by the hands, and led or pulled her back diagonally across Hillman Street to the north side of Cleveland Street.

Further defendant teistified that while on Cleveland Street, and while he was pulling her back toward Hillman Street; she struck him in the face with her purse, and kicked him a couple of times, “And she kicked me the second time on my leg and pain ran just all over me, and I just went blind, I just grabbed her and went blind, and what happened I just couldn’t say. I just saw red just like that.”

The record clearly discloses that after she struck and kicked him he picked her up “bodily” and threw her to the pavement, kicking her head and beating it against the pavement and a part of a steel catch basin situated near the intersection of Cleveland and Hillman Streets.

A state witness to defendant’s acts testified that he admonished defendant to quit beating “the woman,” and that defendant replied that the woman was his wife, and he could treat her as he pleased; that defendant “was in a rage and he seemed to be out of his head”; and verified defendant’s testimony that he was holding his wife’s wrists as he pulled her across Hillman Street.

A second state witness testified that defendant had his wife by the arm trying to take her across the street; that he saw defendant pick his wife up over his head and throw her down on the ground, then kick her, and start beating her head on the “sewer lid”; that defendant “was mad and in a rage”; and that when they tried to stop him beating his wife he told them (he and the first witness) to leave or he would “start on them.”

A third state witness, a reputable and respected citizen of Youngstown, testified that he saw defendant kick his wife in the head twice, and heard him say “this is my damm wife, and I will kill her if I want to, and I will kill any G— D— body that interferes”; that such statement was made while defendant was “very much in a rage, and that he spoke like a man in a rage.”

A fourth state witness testified:—

“The bus stopped to let two fellows on the bus and instead of getting on the bus they hollered, ‘leave that woman alone,’ and at that time I stood up on the bus to see what was going on. I got off the bus and saw that it was Lucille hollering.
“At the time I saw him he was holding her to keep her from getting away. * * * She was in a half-way position on her knees. * * * I ran across the street and hollered, ‘John, leave her alone.’ He says, ‘This is my wife, g— d— it, and I will kill her or anybody that messes with me.’ * * * He was hitting her head against the sewer lid. * * * Some fellows were hollering ‘leave the woman alone’ and he says, ‘it is my wife, I will kill her.’”

Still another state witness testified:—

“I got out of the car and I ran up to the corner and I saw a colored man on his knees and a colored woman on her back and he had her by the ears and he was hitting her head against the sewer. * * * I ran down to my house and got my mother and my mother came up to the corner with me. * * * I saw him kick her in the face, and drag her up a little ways from where the manhole was. * * * He says, ‘she is my wife and I will do what I want.’ ”

There is evidence that after assaulting his wife, from the injuries received in which assault she died on January 17, 1949, defendant walked part way, and rode part way, from the place of assault to his place of employment in Mosier, a hamlet situated some distance from Youngstown; went to the bunk room in the round house of the Erie Railroad Company, where he was employed, and was arrested there about 2:30 on the morning of January 9, 1949, at which time, in referring to his wife’s assault, he said “I didn’t know I did it”; that he “remembered taking a swing at her and everything went blank.”

Youngstown City Detective Carney testified that when he took defendant’s statement on the morning of January 9, 1949, he cried and told of his love for his wife.

Defendant’s mother-in-law testified concerning much quarreling between the defendant and his deceased wife; that during one of such quarrels deceased said “he fights with me every month when I have a period as though 1 could help it”; that she said to defendant, “John, in the short time that you have been here, there has been more fights and commotion than in the whole forty years that I have been married. I cannot stand it and the next time you lay your hand on her I am going to call the law.”

By grounds of error assigned by brief, which alone we will dispose of, and which differ from those formally and separately filed, defendant contends:—

“The court erred in overruling the motion of the defendant made at the conclusion of the state’s evidence that ‘the court arrest from consideration of the jury the charge of second-degree murder, for the reason that the state has failed to prove such charge beyond the existence of a reasonable doubt.’ (This assignment of error was withdrawn by counsel for defendant during argument in open court, and accordingly we will not pass upon it.)
“Misconduct of the prosecuting attorney to the substantial prejudice of the defendant.
“The court erred in its general charge in instructing the jury on Page 222, with regard to the right of the jury to ‘deduce’ or ‘presume.’
“The court erred in its general charge in not more fully instructing the jury on the elements of manslaughter (§12404 GC) and more fully instructing the jury as to the degree of the crime, if the acts of the defendant were one on sudden provocation, which provocation amounted in its effect upon the defendant of uncontrollable passion and anger.
“The verdict of the jury is decidedly and manifestly against the weight of the evidence, and the verdict of the jury under the evidence should have been manslaughter.
“The court erred in overruling the motion of the defendant for a new trial.”

By brief counsel for defendant argues:—

“Under the indictment of second-degree murder, it was incumbent upon the state to prove beyond the existence of a reasonable doubt that John McGhee assaulted Ruth McGhee with the purpose to kill and assaulted her maliciously with the purpose of killing her (in which statement we concur). There is absolutely nothing in the record by which the jury could have found beyond the existence of a reasonable doubt that McGhee assaulted the decedent with the purpose of killing her, or that he maliciously intended to kill her. On the contrary, all of the evidence in this case bears out the theory, that the taking of this life was not intended by McGhee, that he had no such purpose, and that he never intended to kill. On the contrary, the only crime which was proven to the jury under the evidence was that the assault, which later resulted in the death of Ruth McGhee, was'an assault .on sudden provocation and under uncontrollable passion, ‘hot-blood’ and at a time when the defendant had suddenly been plunged into a highly emotional state.”

We cannot so conclude.

The prosecutor objected to a question defendant’s counsel asked him, which defendant’s counsel then withdrew. Then the prosecutor said “we do not care for the sake of this lawsuit, whether he held her nose or her head, but he murdered her that’s all.” The trial judge overruled defendant’s motion for the withdrawal of a juror, and instructed “the jury to disregard the remarks of the prosecutor.”

In cross examining a character witness of defendant the prosecutor asked the witness: “What is his reputation now?” In argument to the jury the prosecutor said:—

“But this I can venture to say and I say it to you in honesty that, and I have the right to say to you under this evidence, had I known they would ever have produced a motive for the killing like they did in an attempt to get you to move into manslaughter, had I known that any such a motive would have been given me, he would be here charged with murder in the first degree.”

Further in his argument to the jury the prosecutor said:—

“* * * then you have the right to come into jury and say my mind exploded and I killed her, but just give me manslaughter, don’t give me second degree because I didn’t mean to do it, I am sorry. All the time he talked about what he did, this young boy, being taught to kill in the Pacific. I had two boys in that war. They were taught to kill and they were there for months and months and one of them will never get over it because he will be crippled for life. They don’t come back and kill because somebody makes them mad; that is no excuse for them.”

Defendant’s counsel, who was not his counsel in the court of common pleas, contends that the stated actions and remarks of the prosecutor were highly prejudicial to defendant, and entitled him to a reversal of the judgment entered against him.

It is observed that defense counsel in the trial court made no objection to parts of the prosecutor’s argument of which complaint is made now; and while the prosecutor admits saying “well he murdered her,” yet he contends that defense counsel said the same thing when he urges that defendant be convicted of manslaughter only. We have read the prosecutor’s argument, of which complaint is made, and without further word conclude that the jury was not prejudiced thereby.

In his general charge to the jury the trial judge said:—

“The design and purpose to kill may be deduced from all the attending and surrounding circumstances, the manner and method of inflicting the wound or wounds and the kind and character of the methods employed. Was the act which caused the death of the deceased one plainly and obviously likely to destroy life? If so, then the presumption is that that result was intended in the absence of proof to the contrary. It is a general presumption of law that what a person does wilfully he intends to do and that he intends the natural and necessary consequences of his voluntary act unless the circumstances are such as to indicate the absence of such intent.”

Defendant contends that such “instruction was erroneous in law and highly prejudicial.”

In our opinion the trial judge in his general charge informed the jury fully and completely the essential elements of the crime of manslaughter, and the elements necessary to be shown beyond a reasonable doubt before a conviction therefor could be maintained.

“2. Criminal cases must be reviewed in Ohio in the light of §13449-5 GC, which amongst other things provides, ‘nor shall any judgment of conviction be reversed in any court * * * for any misdirection of the'jury unless the accused was or may have been prejudiced thereby.’
“4. The intent of an accused person dwells in his mind. Not being ascertainable by the exercise of any or all of the senses, it can never be proved by the direct testimony of a third person and it need not be. It must be gathered from the surrounding facts and circumstances under proper instructions from the court.
“7. * * * ‘It is not always possible to prove a purpose by direct evidence, for purpose and intent are subjective facts. That is, they are within the mind of man, and hence, in determining purpose you may look to all the surrounding circumstances, including what was said and done in relation thereto; bearing in mind the presumption of law, that every one is presumed to intend the natural and probable consequences of his voluntary acts, unless the circumstances are such as to indicate the absence of such intent. When an unlawful act, however, is proved to be knowingly done, no further proof is needed on the part of the state in the absence of justifying or excusing facts, since the law presumes a criminal intent from an unlawful act knowingly done.’ Such an instruction, although an abstract proposition of law, was not prejudicial.” State v. Huffman, 131 Oh St 27.
“Under a charge of murder in the second degree, proof that the killing was done purposely may be deduced from the attendant circumstances, the type of instrument used, the manner of its use, and its tendency to destroy life when used in that manner.
“Only simple malice is required to be shown in murder of the second degree, and it may be implied from the facts proved.” State v. Stallings, 82 Oh Ap 337.

Further counsel for defendant contends that the trial judge erred in “its general charge in not more fully instructing the jury on the elements of manslaughter (§12404 GC) and more fully instructing the jury as to the degree of the crime, if the acts of the defendant were one on sudden provocation, which provocation amounted in its effect upon the defendant of uncontrollable passion and anger.”

Reading the general charge of the trial judge, and considering it' as a whole, we find no error prejudicial to defendant therein.

We have read the bill of exceptions submitted to us for review carefully, as is our solemn duty. where, as in this case, defendant is being deprived of his liberty during his life, and without further reference to the evidence, which would not be helpful in understanding the questions presented, we can not reach the conclusion, urged by counsel for defendant, that “the verdict of the jury is decidedly and manifestly against the weight of the evidence, and the verdict of the jury under the evidence should have been manslaughter”; nor that the “court erred in overruling the motion of the defendant for a new trial.”

The judgment of the court of common pleas is affirmed.

NICHOLS, J, BUCKLEY, J, concur in judgment.


text:
    WORKINGMEN’S OVERALL SUPPLY COMPANY, Appellant, v. GLANDER, Tax Commr., Appellee.
    Board of Tax Appeals.
    Nos. 15600, 15601.
    Decided January 4, 1950.
    Sidney Rigelhaupt, Youngstown, for appellant.
    Herbert S. Duffy, Atty. Geni., W. H. Annat, Asst. Atty. Geni., Columbus, for appellee.
   OPINION

This is a consolidated appeal from orders made by the Tax Commissioners on December 23, 1948, wherein that official denied applications for a review and redetermination of the taxpayer’s classification and adhered to the valuation of appellant’s inventories theretofore made for the tax years 1945, 1946 and 1947. The matters are submitted upon the transcript, notices of appeal, the record made at a hearing had before an attorney examiner of this Board and briefs of counsel.

Appellant is engaged in the business of furnishing industrial plants and business enterprises with coveralls, coats, pants, shirts,. smocks, fender covers and industrial towels. It describes its business as that of selling service to its customers upon contract. It purchases its wearing apparel ready-made and alters it to fit its customers’ employees. It adds thereto its customers’ color scheme, emblems and the employee’s name. Two qualities of these garments are purchased where necessary — one for winter, the other for summer wear. Each employee has three garments which are cleaned and laundered about every ten days. The average life of these garments is said to be 12 to 14 cleanings or 6 to 8 months otherwise stated. It is evidenced that these garments are not interchangeable between employees of the same customer or those of other customers and that if an employee leaves service his garments are scrapped.

The major portion of the taxpayer’s business is the supplying of industrial towels, material for which is brought in two sizes. This material as purchased is not useable. It is put through a process which removes grit, lint, chemical and abrasive substances and makes it absorbent. Towels average about 9.6 cleanings or have an average life of approximately 3 to 4 months or longer according to where and how used.' It is evidenced that this industry’s practice is to “expense” its serviced articles when taken from stock, which is to understand that when they are made ready for use and processed they cease to have an inventory value and are nothing more than used material. Its unused and worn out materials are eventually cut into rags when possible and sold to industry as waste. This final act of disposal of no longer useable materials is said to be unprofitable. Appellant followed these practices prior to 1948 and made no return of its used materials for the purpose of taxation. It did not do so in its returns for the years under review.

On June 13, 1947, the Tax Commissioner issued a directive on the taxation of linens and garments of towel and linen service companies and industrial service and supply companies. It recites that its necessity is prompted by a lack of uniformity in the industries’ personal tax returns and inventories. It directs the Commissioner’s subordinates that where a report for taxation does not reflect true value the following method is to be pursued: That the purchase cost of materials, both used and unused, during the 12 months of the calendar or business year is to be ascertained, and that 70% thereof shall represent true value as classified and provided in §5388 GC. Examiners are cautioned to carefully examine a taxpayer’s books. Responsive to this directive and statute a departmental examiner, after application for review and redetermination had been filed, did examine the taxpayer’s books during the week of September 23-28, 1948. His report, which was adopted by the Tax Commissioner, is the basis of the orders made. It found the true value in money of appellant’s inventories to be $68,750.00 for the year 1945; $65,861.00 for the year 1946 and $119,651.00 for the year 1947. The examiner, in his testimony before this Board, has this to say concerning the method pursued by him:

Respecting new and unsued garments and towels, their true value in money for taxation was established by adopting the values as returned by the taxpayer in its tax returns, balance sheets and letters as of its end of the year inventories. Seventy per cent of those figures .was then taken to establish the basis upon which the tax was computed.

Appellant contends that this method of computation is predicated upon two incorrect factors. First, it is a manufacturer and as such entitled to a reduction of its tax base of 50% and not 70% as allowed by the directive and order appealed from. Second, that as manufacturer or merchant its year’s end inventory values were improperly adopted, when its average monthly inventory values should have been used. Third, it is said that the force and effect of §§5381, 5382, 5385 and 5386 GC have been arbitrarily disregarded.

The method pursued as to used garments and towels is considerably more involved. The evidence concerning it is difficult to follow. We must preface the method pursued by certain facts shown by the records. The present corporate managing officers but recently came into office. They were unfamiliar with the corporation’s books. In fact, the books for 1944 and 1945 were not available. Its present management method of bookkeeping was, in fact, only begun during the latter half of 1946. The Company never kept any inventory values, annual or monthly, of its used garments and towels for the tax years in question, considering them of no value when taken from stock for processing, and charged them' off as expense. This being the state of its used material reco’rds, a method had to be devised to ascertain used values in accordance with the directive. To that end, after the filing of the assessment orders and the applications for reconsideration and redetermination, the Department of Taxation directed Examiner Morse to the Company office to ascertain such values. His examination was conducted in September of 1948 as hereinbefore noted. By actual physical count and Company records it was found that 12,986 coveralls, 2,620 coats, 3,778 pants, 2,638 shirts, 2,043 fender cover’s, 21 smocks, 32 Terry towels and 315,840 industrial towel's weré in service as.of that week. This count is conceded by appellant to be substantially correct. The examiner found, as a result of his count, that an average of 15% of used towels were lost by customers; and, in accordance with departmental custom as applied to similar industries, he deducted 18% from the total gross towel count, leaving 82% thereof as the total actual used towel figure. Used garments and towels were then valued at average cost submitted by the taxpayer’s representative, Bishop, for the respective years. To this or those sums was then added the Company furnished cost of processing these garments and towels, which established total accumulated cost. Since 1948 was an unfinished year, Bishop and Morse agreed, in the absence of records, that 1947 figures would be taken as the norm. The examiner next considered the age and service use of towels and, all things considered, determined that the used towel accumulated cost figures should be and were listed at 50% in accordance with similar industrial inventories instead of taking 70% thereof as specified in the Commissioner’s directive. As to used garments and towels, the count as depreciated and method used was carried throughout the years 1944, 1945 and 1946. Appellant complains of this procedure in several respects; first, that used garments and towels have no inventory value; second, that if it be found that these articles have a value, that as a manufacturer or merchant its average monthly inventories of used articles should have been taken as the taxable base rather than its year’s end inventory as built up by the examiner; third, that inasmuch as the September, 1948, count of articles was carried into the 1944, 1945 and 1946 computations, the numbers used were in excess of the articles actually in service during those years, and that thereby the taxpayer has been and is now required to pay a tax on articles which it did not then possess.

From the questions presented, the Board chooses to first consider the claim of appellant that it is a manufacturer ahd if it be not found to be such, is it a merchant? If it be a manufacturer it is entitled to list the inventory of its new garments and toweling at 50% and not 70%. If it be either merchant or manufacturer it is entitled to have its inventories taken on the monthly average basis, if such are ascertainable, rather than a year’s end inventory. Secs. 5382, 5385 and 5386 GC so provide. These statutes are’ in fact, tax exemption statutes and, like other cases of special privileges, are to be strictly construed. Expression of this general rule, with sustaining authorities, is to be found in the notes appearing in. 10 A. L. R. 1273 (1274), 116 A. L. R. 1111. Ohio recognition of that rule is found in Iron Co. v. Glander, 145 Oh St, 423 (430) 31 O. O. 39, wherein the court states that:

1 “It is well settled that the provision of any statute which purports to except certain property from general statutory provisions governing taxation is a measure of exemption, and that laws relating to exemption of property from taxation being in derogation of equal rights are strictly construed.”

In that case §5385 GC was under consideration. It provides, in part:

“A person who purchases, receives or holds personal property, of any description, for the purpose of adding to the value thereof by manufacturing, refining, rectifying, or by the combination of different materials with the view of making a gain or profit by so doing, is a manufacturer, * *

Unfortunately, in defining the word manufacturer this section employs an applicable derivative thereof, to wit, “by manufacturing.” The word has received frequent consideration by the courts, as is evidenced by reference to 26-Words & Phrases - 408, from which a generally accepted understanding of the term may be produced as follows: It contemplates a change wrought through the application of forces which results in the transformation of some preexisting substance or element into something different with a new name, nature, form or use. To manufacture implies change. There must be transformation. A new and different article must emerge, having a distinct name, character or use, as is held in City of Louisville v. Ewing Von-Allmen Dairy Co., 268 Ky. 652, 105 S. W. (2d) 801. In In re Niagara Contracting Co., 127 F. 782, it is said that the process of manufacturing is supposed to produce some new article by the application of skill and labor to the raw material. We are unable to perceive that the taxpayer’s processing of its garments and towels changes or transfers the articles’ name, nature, form or use. No new and different article emerges. Its character or use is not changed. They were purchased as garments and towels and were serviced to their customers as such. Garments were simply altered and decorated to fit and comport to the use of an employee of its customer. Towels were simply cleansed of foreign substance and made fit for their intended use. The Board feels that it is supported in its view by what is found in Schumacher Stone Co. v. Tax Commission, 134 Oh St 529, 13 O. O. 161, and Cleveland-Cliffs Iron Company v. Glander, 145 Oh St 423, 31 O. O. 39.

Is the taxpayer a merchant? Sec. 5381 GC, enacted long prior to the Sales and Use Tax Statutes, defines the term as:

“A person who owns or has in possession or subject to his control personal property within this state, with authority to sell it, which has been purchased either in or out of this state, with a view to being sold at an advanced price or profit, or which has been consigned to him from a place out of this state for the purpose of being sold at a place within this state, is a merchant.”

The taxpayer says that he sells service upon contract. He does not sell “personal property.” It does not lease its goods so as to come within the terms of the sales tax statutes. See §5546-1 GC as recently amended. It does not pass title of any kind. If garments or towels are lost in service the customer is required to pay the reasonable value of the lost article. It retains title. The transaction has all the earmarks of a contract of bailment. We see no difference between the old example of a livery stableman who furnished his patron with a horse and carriage for a price. Clearly, under the statute the garments and towels were not “purchased * * * with a view to being sold at an advanced price or profit.” Since only service is sold and articles of personal property are not sold, it must be found that appellant is hot a merchant.

Since the taxpayer is neither a manufacturer nor a merchant, it must be classified under the general statute for listing and assessing personal property at its true value in money, which statute is §5388 GC and which reads, in part:

“Excepting as herein otherwise provided, personal property shall be listed and assessed at seventy per centum of the true value thereof, in money, on the day as of which it is required to be listed (January 1 of each tax year), or on the days or at the times as of which it is required to be estimated on the average basis (in the case of manufacturers or merchants), as the case may be. * *

It must, therefore, follow that the Tax Commissioner did not err in assessing appellant’s new and unused goods at 70% of its true value as displayed by its years’ end inventories. Appellant was not entitled to insist on its average monthly inventories being taken on the tax base. Not being a manufacturer, it is not entitled to a 50% depreciation of-.its tax-base. The Tax Commissioner, therefore, did -not arbitrarily disregard the statutes enumerated, ,v ¡

Regarding the claim that its used garments and towels have no inventory value, the Board of Tax Appeals is emphatically of the view that this claim is without the vestige of merit; but if this were true, then carried to its logical conclusion, its customers are paying something for nothing. Whatever-the custom of the industry may be — that is, to expense articles when taken from stock — it cannot have the effect of an amendment to exemption statutes. These articles, so long as cleaned and returned to service and, in fact, to the day they are sold as wiping rags and waste, are of some value. The value is, of course, a diminishing one; that is, from 100% thereof before put in service to a fraction of 1% before sold as waste. Some middle ground must be found to establish that value. Appellant expended these articles. It kept no inventories or books which were enlightening to the Department of Taxation. Its business practice and neglect ought not to checkmate the State of Ohio in collecting its just tax. Every person is required to pay his just portion of the tax burden. If appellant had a free ride in taxation parlance prior to the issuance of the directive it ought not, in good conscience, complain of surprise because of its issuance. The situation required the devising of some method of appraising value. Sec. 5388 GC and the directive required that 70% of inventory be considered as true value. The examiner and his superior, recognizing the rapidly deteriorating use and value of these goods, took that fact into consideration and applied a depreciation figure of 50% in accordance with similar inventoried goods of like industries. We think the method pursued in-respect to used articles was fair and just to the taxpayer.

There still remain three matters of complaint for the Board’s consideration. The first two concern a mathematical computation of the accumulated cost of fender covers for the years 1944 and 1945, which produced a cost of $7,259.02 in 1944 when the same should have been $725.90; and a cost of $7,871.92 in 1945 when the same should have been $787.20. These errors are, by the Tax Commissioner, admitted to exist. In view of the order hereinafter made, the Board will make no attempt to make any correction thereof.

We now revert to the particular complaint that the Tax Commissioner and his agent, Morse, failed to give effect to the fact that the service returns of uninventoried used merchandise of the appellant for the years 1944, 1945 and 1946 were less than in the year 1948, and that hence the number of units in service were proportionately less. The examiner did give effect to the difference in price for the articles purchased. To develop this claim of error appellant called its accountant as a witness, who testified that appellant’s returns for its Ohio services rendered in 1944 amounted to $80,131, which represents 69.41% less from service receipts for that year than for the year 1948, which amounted to $314,000.00. Like figures for the year 1945 disclose Ohio service receipts in the sum of $83,631.35 or 69.074% less than for the year 1948. Like figures for the year 1946 establish Ohio service receipts in the sum of $197,459.07 or 24.62% less than for the year 1948. In arriving at these figures the witness stated that cost of service to appellant’s patrons was 20% less in 1944 and 1945 than in 1948, and-% less in 1946 than in 1948, and that his computations took this difference in service charges into account. The price paid for this merchandise, plus processing costs for these three years, is not in dispute.

Inasmuch as appellant’s counsel fails to give this phase of the case any consideration, we turn to what the Departmental auditor has to say respecting the method pursued by him and its effect upon the matter of quantity of uninventoried merchandise used in these years which produced service income. We have read and reread Morse’s testimony as elicited by the attorney examiner and appearing on page 185 of the record and thereafter. It therefrom appears that at date of examination, in September of 1948, Company books for 1944 and 1945 were not made available. Appellant’s accountant now says before this Board that the information as to quantities for used merchandise is available from tax reports, balance sheets filed and Company records. The Department of Taxation, at final hearing, had to resort to formula and stipulation. At this date, however, appellant raises the question made. We doubt that appellant’s accountant has considered all accounting factors. The actual amount of used taxable merchandise possessed by the Company in 1944, 1945 and 1946 which appellant did not inventory is problematical; and if this Board were to reach any definite quantities for these years it would have to resort to mere speculation. It is, therefore, considered that in fairness to the litigants and the Board this phase of the case should be remanded to the Department of Taxation for reconsideration and recomputation.

It follows that in all respects, save the two mathematical computations and the quantities of used merchandise possessed by appellant in the years 1944, 1945 and 1946, the orders complained of are affirmed, and the cause is remanded for further consideration and assessment on the three exceptions noted.


author: By GESSAMAN, J.

text:
    STANDARD MATERIALS, INC., v. MASSACHUSETTS FIRE AND MARINE INSURANCE COMPANY.
    Common Pleas Court, Franklin County.
    No. 171201.
    Decided January 6, 1948.
    Knepper, White & Dempsey, Columbus, for plaintiff.
    Joseph M. Harter, David M. Postlewaite, Columbus, for defendant.
   OPINION

By GESSAMAN, J.

This case is submitted to the court on the pleadings, an agreed statement of facts and the briefs of counsel.

Briefly stated, the facts are that late in 1945 plaintiff purchased six used Mack trucks from The Ohio Fuel Gas Co., four of which were delivered in October, 1945. One Nick Cenci asked the president of plaintiff corporation if he, Cenci, could buy one of the trucks whereupon the president told Cenci that two more were to be delivered and that Cenci could have one of them. Some time later the two trucks were delivered and one was moved to Mr. Cenci’s place of business. The certificate of title to this truck (bearing the assignment in blank of The Ohio Fuel Gas Co.) was turned over to Mr. Cenci’s son by the president of plaintiff corporation. Thereupon, Mr. Cenci gave to an officer of plaintiff $1100.00, the full sale price of the truck and this money was immediately turned over to the agent of The Ohio Fuel Gas Co. This certificate of title, assigned as above described remained in the possession of Cenci until sometime after the fire to which we shall shortly refer. At no time was any of plaintiff’s money tied up in this truck.

Plaintiff was having its five trucks remodeled and Cenci asked if he could have his remodeled in the same way by the same company and that was done. The bill for the work on the six trucks was paid by plaintiff who was immediately reimbursed by Cenci for the work on his truck. He then had a dump body installed and the motor reconditioned and the truck was delivered to him (Cenci).

During the latter part of January, 1946, Cenci' discovered that this truck, when loaded, was too heavy to be used legally on the highways of the state and offered to sell it to plaintiff for $2124.40. An officer of plaintiff then agreed with Cenci that plaintiff would purchase said truck when plaintiff had a need for it, payment therefor to be made at plaintiff’s convenience within 90 days.

A few days later plaintiff had need for the truck and took it to Congo, Perry County, Ohio where it used it for two days. At the end of the second day the differential broke, was repaired at plaintiff’s garage, was again used but was burned and totally destroyed by fire when plaintiff’s garage caught fire on February 4, 1946. At the time of the fire plaintiff had not paid Cenci for the truck nor had plaintiff paid anything thereon at the time of the commencement of this suit. Sometime after the fire an officer of plaintiff obtained said certificate of title and on April 13, 1946, procured a certificate of title to said truck to be issued in its name under §§6290-2 to 6290-20 GC.

On the date of the delivery of this truck to' plaintiff and on the date of the fire there was in full "force and effect policy No. A40445 issued by the defendant, insuring all automobiles owned by the plaintiff. Said policy provided in part as follows:

“* * * If the insured who is the owner of the automobile acquires ownership of another automobile and so notifies the company within thirty days following the date of its delivery to him, such insurance as is afforded by this policy applies also to such other automobile as of such delivery date.

Within thirty days after the date of the delivery of said truck to plaintiff, but subs&quent to said fire, plaintiff notified' defendant that it claimed that it had acquired ownership of said truck on said delivery date and that it owned same on the date of the fire. Defendant denied this and refused payment for the destruction of the truck. The question presented is, therefore; Had the plaintiff acquired ownership of the Mack truck prior to the fire?

At common law, the sale of a motor vehicle could be consummated by delivery of the vehicle to the buyer with the intention of passing title. 42 C. J. 765, Sec. 279 “Motor Vehicles.” But in most states the common law has been superseded by statutory rules concerning the transfer and sale of motor vehicles. In Ohio the “Bill of Sale” law came into existence in 1921 and in its first pronouncement under that law our Supreme Court held (1924) in the case of Ohio Farmers Ins. Co. v. Todino, 111 Oh St, 274, that the buyer of an automobile, to whom the seller did not execute a bill of sale, was not the sole and unconditional owner of the automobile. The statute, in that case, was strictly construed. The court followed that policy until 1929 when it decided the case of Commercial Credit Co. v. Schreyer, 120 Oh St, 568, reversed its former decision and held that (syl. 3):

“Any assignment or transfer of a motor vehicle (not violative of the uniform sales law of this state) which is not executed and delivered in compliance with §§6310-3 to 6310-14 GC, but which is accompanied by delivery of possession, is nevertheless a valid contract between the parties thereto.”

It further held that (at p. 585):

“The act of 1921 had a definite purpose which is expressed in its title. It is a penal statute which was not intended to affect the validity of contracts, or titles, or rights of property.”

Therefore, subsequent to 1929, the buyer of an automobile who secured delivery thereof with the intention to pass title, becomes the owner thereof although, in fact, he did not secure a bill of sale. (Parenthetically, we should point out that we are not considering nor do we think it necessary to consider, in this case, the uniform sales act or statutes relating to conditional sales and chattel mortgages.)

In 1937 the legislature enacted the “Certificate of Title” act in substantially its present form. A few of the sections were amended in the same year in details not here pertinent. In this act, it is provided, among other things that:

“No person except as provided in the preceding section shall sell or otherwise dispose of a motor vehicle without delivery to the purchaser or transferee thereof a certificate of title with such assignments thereon as may be necessary to show title in the purchaser, nor purchase or otherwise acquire a motor vehicle unless he shall obtain a certificate of title for the same in his name in accordance with the provisions of this chapter.” Sec. 6290-3 GC.

And also that:

“No person acquiring a motor vehicle from the owner thereof, whether such owner be a manufacturer, importer, dealer, or otherwise, hereafter shall acquire any right, title, claim or interest in or to said motor vehicle until he shall have issued to him a certificate of title to said motor vehicle * * *. No court in any case at law or in equity shall recognize the right, title, claim or interest of any person in or to any motor vehicle hereafter sold or disposed of * * * unless evidenced by a certificate of title * * * duly issued, in accordance with the provision of this chapter.” Sec. 6290-4 GC.

Do these provisions change the rules of law that prevailed in this state following the decision in the Schreyer case, supra?

The present statutes were before the Supreme Court in 1940 in the case of Automobile Finance Co. v. Munday, 137 Oh St, 504, 19 O. O. 176, which was an action in replevin by the mortgagee of an automobile to recover possession as against the purchaser thereof and one Munday. The purchaser had not secured the certificate of title. In denying the writ the court said that: (p. 521)

“However, there was no burden on the defendant below (the purchaser) to show any title or right of possession. The burden was on the plaintiff below 11 * * to show an unlawful detention by the defendant of a chattel of which the plaintiff below was owner or in which he had some interest, and of which plaintiff was entitled to immediate possession.”

And the court went on to hold that the plaintiff, under the facts of the case, “was not entitled either to the right of property or the right of possession of this automobile.” Therefore the question here presented was not before the court in the Munday case. The most that can be said for that case is that Judge Matthias said in a concurring opinion, that the purchaser “had and still has the right to demand and, if refused, to secure by appropriate court action, a certificate of title for this car.” All of which is correct, for it was the duty of the seller, a dealer, to secure the certificate of title for the purchaser (§6290-5 GC).

In the later ease of Workman et al., d. b. a., v. The Republic Mutual Ins. Co. 144 Oh St 37, 28 O. O. 564, ownership was-declared to be in the purchaser who, at the date in question, had not yet secured her certificate of title. The court held as follows in syl. 3:

“Where the insured sold an automobile and delivered possession thereof to the purchaser who signed an installment note for the purchase price, executed a chattel mortgage securing the same, signed an application for transfer of the certificate of title which the vendor had delivered to the purchaser, and redelivered the same to the vendor for filing in an adjoining county within the three days permitted by law, actual ownership with complete possession and control proved to the purchaser.”

One question in that case was whether Mrs. Rhodes, the purchaser, was the owner of the car on the date of an accident in which the car was involved. The accident occurred on the day following the delivery of the car to Mrs. Rhodes. It was the duty of the seller to obtain the certificate of title for Mrs. Rhodes (§6290-5 GC) within three days and obviously three days had not elapsed on the day of the accident and .therefore the provision of the certificate of title act had not been disregarded. The purchaser had done everything that she could do to secure not only ownership of but title to the car. However, we are still faced with the question as to whether ownership would have passed to the purchaser if the pertinent elements, outline'd in syl. 3 had not existed. That is to say, if the provisions of the Certificate of Title law had been disregarded entirely, what would the decision of the Supreme Court have been? Upon that precise question there appears to be no decision as yet, in this state.

In the instant case there was delivery of the truck to the buyer with the intention to pass title. At common law that would have consummated the sale. But the Certificate of Title law had been completely disregarded both by the seller and the buyer although ample time had elapsed — including the mandatory period of three days, §6290-5 GC — for compliance therewith. In such a situation, to hold that plaintiff was the owner although not the holder of the title to the truck would, in. our opinion, constitute complete disregard for the positive language of §6290-4 GC. As we have already pointed out it provides, in part, that “* * * no person shall acquire any right, title, claim or interest in or to said motor vehicle until he shall have issued to him a certificate of title * * And that, “No court ? * * shall recognize the right, title, claim or interest of any person in or to any motor vehicle * * * unless evidenced by a certificate of title * * That is positive language and it is not ambiguous. The right of ownership of a motor vehicle is obviously a claim or interest in a motor vehicle and by the provision of the law no person may acquire nor may any court recognize such ownership without a certificate of title. From October, 1945 to January, 1946 Mr. Cenci had either actual or constructive possession of the truck but had made no effort to secure the issuance of a certificate of title to him although he had the old certificate with the blank assignment of The Ohio Fuel Gas Co. in his possession. Therefore, it seems quite clear that Mr. Cenci did not acquire any right, title, claim or interest in or to the truck, at least, which a Court could recognize and enforce. When the truck was delivered to the plaintiff the old certificate of title was not then passed to plaintiff, no effort was made to secure it and of course no certificate of title was issued to plaintiff until long after the fire. It seems clear, therefore, that plaintiff, likewise, did not acquire any right, title, claim or interest in or to the truck before the fire, at least, any which the court could recognize and enforce.

But, counsel for the plaintiff claim, it did notify the defendant within thirty days after it had received delivery of the truck, that it claimed it had acquired ownership thereof, and that it acquired title thereto on April 13, 1946 and that therefore the insurance shall apply as of the delivery date. But the policy provides that:.

«* * * jj tIie insurecj * * * acquires ownership of another automobile and so notifies the company within thirty days following the date of its delivery to him, such insurance as is afforded by this policy applies also to such other automobile as of such delivery date.”

In order to notify the company (dwefendant) that it had acquired ownership, it must have prior thereto' acquired ownership — not just possession. The policy provides that plaintiff must “so notify the company.” The word “so” obviously refers back to the words “acquires ownership.” Therefore, it appears to be beyond any doubt that the notice must be given within thirty days after the delivery date but that the notice must be to the effect that the insured has acquired ownership. In the instant case this could not have been done for the reason that the plaintiff had not acquired ownership prior to giving the notice. Ownership was acquired later. It appears clear that, by virtue of the terms of the policy, ownership, not just possession, must be acquired before the notice is given and that said notice must be given within thirty days after the date of delivery. Therefore, it follows that ownership would have to be acquired within thirty days after date of delivery and before notice was given. That was not done in this case.

It is our conclusion, therefore, that the court must deny the prayer of the petition and find for the defendant.

Since writing this opinion the attention of the court has been directed to the case of Mielke v. Leeberson, 150 Oh St 528, 38 O. O. 352. The syllabus of that case is as follows:

“Under the plain and unambiguous language of §6290-4 GC, a Court cannot recognize the right, title, claim or interest of any person in or to any motor vehicle without the production of a certificate of title or manufacturer’s or importer’s certificate duly issued in accordance with the Certificate of Title Law, and any other evidence of ownership is not of sufficient weight to sustain a verdict or judgment where title must be proved as a condition precedent for the validity of such verdict or judgment.”

In that case the plaintiff was suing for damages to his automobile. He testified that he was the owner, was referred to as the owner during the trial, but he did not produce his certificate of title. He secured a judgment in the Common Pleas Court. Of this situation the court said, at p. 535 of the opinion:

“In our view of the case, since there was evidence of plaintiff’s ownership, although such evidence can never be sufficient without the production of a certificate of title, the proper procedure is a reversal and a remanding for a new trial.” (Emphasis ours.)

The decision in this case substantiates the conclusions which we have already reached

The defendant also contends that the sale, if any, from Cenci to the plaintiff was a conditional sale and that, therefore, plaintiff may not recover because of a provision of the policy of insurance which excluded coverage of an automobile subject to a conditional sale. In view of the opinions already expressed herein, it will not be necessary to consider this contention.

Entry may be drawn accordingly and exceptions noted.


author: By HUNSICKER, PJ.

text:
    STEFANCIK, Appellee, v. KUHNS, Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21564.
    Decided July 17, 1950.
    Kiefer, Waterworth, Hunter & Knecht, Cleveland, for appellee.
    M. B. & H. H. Johnson, Cleveland, for appellant.
    (HUNSICKER, PJ, DOYLE, J, of the Ninth District, and MONTGOMERY, J, of the Fifth District, sitting by designation in the Eighth District.)
   OPINION

By HUNSICKER, PJ.

In this appeal on questions of law, the facts disclose that: George J. Stefancik and Muriel Stefancik were husband and wife; they lived together in such relationship from the time of their marriage in August, 1941, until June, 1946; Muriel Stefancik was employed at Aluminum Company of America; in 1945, she met the defendant (appellant), Stanley R. Kuhns, personnel manager of Aluminum Company of America, and, so far as the record discloses, she had no contact with him except in a business relationship, until December, 1945, at a Christmas party of the employees of such company; at such party, Muriel Stefancik danced once with Stanley R. Kuhns; in March, 1946, Muriel Stefancik told her husband, George, that she no longer loved him and desired a divorce; on May 20, 1946, Muriel filed an action for divorce from her husband, George; in May, 1946, George Stefancik saw his wife riding in an automobile with Stanley R. Kuhns; on July 2, 1946, Muriel moved to a home in Garfield Heights, Ohio, a suburb of Cleveland; on and after July 2, 1946, Stanley R. Kuhns was frequently seen in the company of Muriel; George Stefancik discussed with Mrs. Stanley R. Kuhns on July 3, 1946, the fact of the association of his wife, Muriel, with Mr. Kuhns; George Stefancik secured a divorce from his wife, Muriel, in January, 1948, although, shortly prior thereto, Muriel sought a reconcilement on terms which her husband refused to accept.

On January 13, 1947, George Stefancik filed an action in the Common Pleas Court of Cuyahoga County, Ohio, against Stanley R. Kuhns, claiming that “in or before December, 1945,” Stanley R. Kuhns wrongfully alienated the affections of his wife, Muriel, and that the actions of Kuhns have caused her to live apart from George Stefancik. A trial on the issues joined in such action resulted in a verdict and judgment for George Stefancik. It is from such judgment that an appeal on questions of law is before this court.

The test as to the right of the plaintiff to recover in the instant action is whether the defendant, by his conduct, intentionally accomplished the alienation of the affections of plaintiff’s wife.

21 O. Jur., Husband and Wife, Sec. 274, p 561, and cases cited.

We have carefully examined the record of testimony and do not find any evidence which supports the theory that Stanley R. Kuhns caused Muriel Stefancik to announce to her husband, in March, 1946, her desire for a divorce.

The action, if it is to be maintained, must then be based on the claim that the conduct of Stanley R. Kuhns, subsequent to March, 1946, was of such a nature that it alienated the affections, etc., and induced Muriel Stefancik not to return to her husband.

The rule on this subject is set out in III Restatement of the Law of Torts, Sec. 684:

“One who, without a privilege to do so and for the purpose of disrupting the marriage relation, induces a wife to separate from her husband or not to return to him after she has separated from him, is liable to the husband for the harm thereby caused to any of his legally protected marital interests.”

There is, of course, much evidence which shows that Kuhns did associate with Muriel Stefancik after the separation, but there is no credible evidence to show that he induced her to remain away from her husband.

Where it appears, as it does in the instant case, that the defendant did not cause the separation and did not influence the refusal of Muriel Stefancik to return to her husband, there can be no liability on the part of the defendant to respond in damages.

We find, therefore, that the judgment herein is manifestly against the weight of the evidence.

The judgment is reversed, and the cause remanded to the Common Pleas Court for further proceedings.

DOYLE, J, and MONTGOMERY, J, concur.


author: By THE COURT.

text:
    STATE, Plaintiff-Appellee, v. THOMASSON, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4399.
    Decided June 9, 1950.

      John J. Chester, Columbus, for defendant-appellant.
    Ralph J. Bartlett, Pros. Atty., Edmund B. Paxton, Henry L. Holden, Asst. Pros. Attys., Columbus, for plaintiff-appellee.
   OPINION

By THE COURT.

The defendant-appellant, James Thomasson, was indicted, tried and convicted for armed robbery in the Common Pleas Court of Franklin County, Ohio. Five defendants were jointly indicted: Thomasson, Spieles, Vineski, Wilks and Bohn. The indictment was filed on March 23,1949. The indictment against Bohn was nollied May 31, 1949. Vinesky pleaded guilty and was sentenced. On May 12, 1949 the appellant moved for separate trial. Although counsel for appellant claims this motion was promptly overruled, the record does not disclose that it was passed upon. On May 16, 1949 the appellant filed a notice that his defense would be an alibi. Trial date for the appellants, Spieles and Wilks, was set for December 6, 1949. After notice of trial was given appellant again, on November 29, 1949, filed a motion for a separate trial and a request for a bill of particulars. On the first day of the trial, to wit: December 6, 1949, the motions were brought to the attention of the trial court. Finding no good cause shown for a separate trial the court overruled the motion. The court found that while the request for a bill of particulars had not been seasonably filed, nevertheless the court ordered a bill of particulars to be filed instanter, which was done. The appellant then moved for a continuance of the cause, which was overruled. Appellant also moved to be furnished with the statements made by the defendants to the police and to the prosecutor, which the court denied. At this stage of the proceedings the defendant, Wilks, waived a trial by jury and requested to be tried by the court. The court proceeded to try jointly the appellant and Spieles.

The first, second and third assignments of error are directed to the action of the court on the preliminary motions. The question whether the appellant should be jointly tried with Spieles or given a separate trial lay within the sound discretion of the trial court. Under the statute the burden of showing good cause for a separate trial was on the appellant. Sec. 13442-11 GC, State v. Abbott, 152 Oh St 228, 238. We find no error committed by the trial court in denying the appellant a separate trial.

During the argument on the motions the prosecutor made the statement that he could not and would not attempt to use the statements made by the two defendants. On defense Spieles called Vineski as a witness, who testified that Spieles was not involved in the robbery. This testimony was at variance with the previous statement which Vineski had given to the police and the prosecutor. Over objection the prosecutor cross-examined Vineski with respect to these statements. It is now urged that these statements were prejudicial to the appellant and that a separate trial should have been granted. The cross-examination of Vineski with respect to statements made to the police and the prosecutor at variance to his testimony at the trial was for the purpose of impeaching the testimony of Vineski. The appellant made no statement and although he testified in support of his defense of alibi he was not questioned with respect to any statement. The defendant Spieles did not testify. The statement of the prosecutor in the argument on the motion for a separate trial to the effect that he would not attempt to use in the trial any statement of the defendants did not deprive the State of its legal right to cross-examine a witness for the defense with respect to statements made out of court at variance with the testimony given by the witness at the trial for the purpose of impeaching the testimony of the witness. In the case at bar there are no confessions involved as in State v. Rosen, 151 Oh St 339, 86 N. E. (2d) 24, and State v. Abbott, supra, and State v. Shafer, 71 Oh Ap 1, 47 N. E. (2d) 669.

We find no authority in law to require the prosecutor to submit to counsel for defendants for inspection statements made by the defendants to the police and prosecutor which were in the possession of the prosecutor. State v. Yeoman, 112 Oh St 214, 147 N. E. 3; State v. Rhoads, 81 Oh St 397, 91 N. E. 186; State v. Strain, 84 Oh Ap 229, 82 N. E. (2d) 109; Arnold v. State, 33 Oh Ap 185, 168 N. E. 848.

In our opinion the trial court very properly found that the request for a bill of particulars was not seasonably made. Six months prior thereto the appellant had filed his notice of a defense of alibi. The trial court did not find, and we do not find, that the appellant, in view of the nature of his defense, was prejudiced by the refusal of the trial court to grant a continuance. See State v. Petro, 148 Oh St 473, 76 N. E. (2d) 355 and State v. Whitmore, 126 Oh St 381, 388, 185 N. E. 547. This matter rested within the sound discretion of the trial court. We find no abuse of discretion.

The fourth assignment of error relates to the admission of evidence of a telephone conversation which Bohn testified took place between him and the appellant. Without discussing all the evidence in detail bearing on the question of the admissibility of this evidence, we conclude that the court did not err in admitting this evidence. The appellant testified that he gave to Bohn the telephone number which Bohn called. At the time the call was made Bohn asked for “Murphy,” the name by which Bohn knew the appellant. A man’s voice answered, which Bohn thought was the voice of Murphy. Bohn told Murphy, or the person whom he thought was Murphy, that friends of Murphy’s were at the Virginia Hotel. Within a very short time the appellant appeared at the hotel and met Spieles, Vineski and Wilks. This evidence was sufficiently convincing to prove that it was the appellant who answered the telephone call placed by Bohn.

The fifth assignment of error concerns the attempt of the appellant on defense to offer the court record of Bohn to show that in his case a motion for a separate trial was sustained and later the indictment was nollied; and also the court record to show that Wilks had not been arraigned and had not given bond prior to December 6th when he appeared in court and waived trial by jury. Objection to the introduction of this evidence was sustained and the proffer was made. Both Bohn and Wilks had testified over the objection of the state relative to the disposition of the case against them. The court admitted this testimony on the theory that such evidence was admissible to show interest or lack of interest on the part of the witness. The court records could not add anything to this evidence. The court very properly excluded the introduction of the court records.

For his sixth assignment of error the appellant claims the court erred in refusing counsel the right to examine the written transcription of statements prepared from stenographic notes from which the witness testified. Vineski, on cross-examination, testified that in giving his statement to the prosecutor he had been told by one of the assistant prosecutors that if he did not help the State against Spieles the prosecutor’s office would give him a bad recommendation to the Parole Board and that he would face twenty-five years imprisonment, but that if he helped the prosecution he would be given a good recommendation and an early parole. On rebuttal the State called as witnesses the stenographers who took the stenographic notes when the statements were made to the prosecutor and the police. The witnesses read from their shorthand notes. The prosecutor questioned the witnesses with the help of a typewritten transcription of the notes which he had in his possession. The court accorded counsel for appellant the privilege of examining the shorthand notes from which the witnesses testified, but overruled his request to be furnished a copy of the typewritten transcription of the notes which was in the possession of the prosecutor. In our opinion the ruling of the trial court was correct. State v. Yeoman, supra; State v. Rhoads, supra; State v. Strain, supra; Arnold v. State, supra. In the case of State v. Taylor, 83 Oh Ap 76, 77 N. E. (2d) 279, this court held that counsel for defendant had the right to inspect the typewritten transcript of the shorthand notes of the witness, but in that case the witness testified from such written transcript. That case is clearly distinguishable from the case at bar.

For his seventh assignment of error the appellant claims the court failed to properly instruct the jury with respect to its consideration of the ex parte statements made to the prosecutor and the police, and in charging on circumstantial evidence. The court in its charge discussed at some length the consideration to be given these statements and all the evidence adduced in connection therewith. The court charged the jury that such statements were not and could not be offered in chief as evidence bearing directly on the guilt or innocence of the defendants or either of them; that the sole purpose of such evidence was to permit the State to refute and impeach the testimony of Vineski and as affecting his credibility. The evidence in this case was such as to justify a charge on circumstantial evidence. In our opinion the charge was eminently fair to the appellant.

The record does not support the claim of the appellant that the prosecuting attorney was guilty of misconduct which prevented the appellant from having a fair trial, which is made the eighth assignment of error.

For his ninth assignment of error it is claimed the verdict is not sustained by sufficient evidence and is contrary to law. We have read the entire record with great care and find ample evidence to warrant a conviction. We have given careful consideration to every question raised by appellant. The' record indicates that this was a most difficult case to try, for counsel as well as the court. However, we do not find that any prejudicial error intervened. We are of the opinion that appellant had a fair trial and that the verdict and judgment is sustained by sufficient evidence and is not contrary to law.

Judgment affirmed.

MILLER, PJ, HORNBECK and WISEMAN, JJ, concur.