author: By WISEMAN, J:

text:
    WAMPLER, Estate of, In re.
    Ohio Appeals, Second District, Montgomery County.
    No. 2119.
    Decided December 29, 1950.

      Herbert S. Duffy, Atty. Geni., Robert E. Younger, Asst. Atty. Geni., Columbus, for the Department of Taxation in Ohio, appellant.
    Charles J. Brennan, Dayton, for Executor, The Winters National Bank & Trust Co., appellee.
   OPINION

By WISEMAN, J:

This is an appeal on law from the order of the Probate Court of Montgomery County vacating and modifying its former order determining the inheritance tax, and ordering a refund.

The facts were stipulated. The executor of the estate of Homer H. Wampler, deceased, filed an inventory and appraisement showing that the decedent owned the entire interest in a piece of real estate appraised at $21,500. This real estate was similarly listed in the application to determine the inheritance tax. The court assessed the tax on the basis that decedent owned the entire interest. In truth and in fact the decedent owned only the undivided one-half interest in said real estate. The court made its original determination on March 27, 1950. No exceptions were filed,-but waiver of right to file exceptions was filed by Nell F. Wampler, sole beneficiary and distributee under the will of the decedent and by the Department of Taxation. The tax was paid to the Treasurer of Montgomery County on April 6, 1950.

On April 29, 1950, the executor filed a motion to vacate and modify the order determining the inheritance tax because of the error made in listing the entire interest in said real estate, rather than an undivided one-half interest. A hearing was had on the motion on June 7, 1950. The Department of Taxation was duly notified of said hearing and was represented by counsel.

The court sustained the motion, finding that the tax was paid on April 6, 1950 but had not been distributed; that the court had jurisdiction to vacate and modify its former order as equity and justice required; that the inheritance tax was paid under a mistake of fact; that the excess of tax paid amounted to $204.25. Thereupon the court vacated, set aside and modified the former order as to said excess payment and ordered the Treasurer of Montgomery County to pay said amount to the executor. The order was journalized on June 8, 1950. From this order the appeal was taken by the Department of Taxation.

Two errors are assigned by the Department of Taxation as follows:

(1) The Probate Court erred -in modifying its determination of inheritance tax made on March 27, 1950.

(2) The Probate Court erred in ordering a refund of the inheritance tax to be paid to the executor in the sum of Two Hundred Four Dollars twenty-five cents ($204.25), or in any sum whatsoever.

Two questions are presented, which may be stated as follows: (1) Does the Probate Court have the power during term to modify its order determining the inheritance tax on the ground of a mistake of fact when the tax has been paid and no exceptions have been filed to the determination of such tax? (2) Does the Probate Court have the power to order a refund of inheritance tax paid under a mistake of fact where the tax so paid'has not been distributed? The Department of Taxation contends the Probate Court was without jurisdiction to grant the motion for modification. This contention is based on the premise that the Probate Court acts administratively and not judicially in determining the in-inheritance tax; that the order determining the tax is an administrative order and not a judgment. The point is made that the power of the Probate Court to modify its judgments during term is not presented. The appellant concludes that the administrative procedure set forth in the statute for the correction of said order must be followed, and that since §5339 GC, does not provide for the correction of the order under the facts stated, the court is without authority to modify the order.

In support of its contention the Department of Taxation cites the case of In Re Estate of Gatch, 56 Abs 556, decided by the Court of Appeals of Hamilton County in 1949, which held that up until the time notice is served on interested parties for hearing on exceptions, the proceeding to determine the inheritance tax is administrative and not judicial on the ground the proceeding is not adversary. We do not conceive this to be the proper test. Under this test, if applied, many proceedings in the Probate Court which have always been regarded as judicial proceedings would be considered as administrative. Because of the peculiar character of the work handled in the Probate Court many of the proceedings are ex parte, rather than adversary, but they, nevertheless, require the exercise of the judicial function of the court. The original determination of the inheritance tax is such a proceeding. A search of the case law reveals that In Re Estate of Gatch is the only case which definitely holds the action of the court to be administrative. That case was reviewed by the Supreme Court, which is reported in 153 Oh St 401, 92 N. E. (2d) 404. No statement is made by the Supreme Court that the action was administrative, but appellant points to the statement of the court on page 406 to.the effect that the Court of Appeals properly decided the questions of procedure. In that case an application for a refund was filed under the express provisions of §5339 GC, on the ground that a deduction for Federal Estate Tax had not been taken. The tax was re-determined and a refund was ordered. The decision of the Court of Appeals on questions of procedure in that case was correct.

In 1943, in the case of In Re Estate of Shafer, 74 Oh Ap 33, 56 N. E. (2d) 926, where an application for a re-determination and refund was filed ten years after the order was made determining the taá, the same Court of Appeals held:

“The jurisdiction of the Probate Cpurt to redetermine its finding or modify its order or instruct its fiduciary is not limited by the power conferred by §5339 GC, but includes the broad powers conferred by §10501-53 GC. * * *

By §10501-17 GC, the jurisdiction of the Probate Court to modify or vacate its orders or judgments is limited by the same rules that govern the Courts of Common Pleas, and by §10501-18 GC, the year is divided into three-terms of four months each, for the purpose of modifying or vacating its orders or judgments.”

The court in that' case apparently treated the order of determination as a judicial order.

In 1944, in the case of In Re Estate of Seidensticker, 75 Oh Ap 73, 60 N. E. (2d) 74, where the- Probate Court during term made a second determination correcting the original determination on the ground that a mutual mistake of fact had been made in estimating the value of certain property, the jurisdictional right of the court to order a re-determination was raised by the Department of Taxation. This Court, speaking through Judge Geiger, on page 80 held:

“The Probate Court is given statutory power to determine inheritance taxes. The claim is made by the appellant that such power in that court is merely administrative and that when the court has determined the amount of the taxes, it has exhausted its power and has no power to reconsider its finding upon exceptions of those interested in the estate. The claim is,to the effect that under §5339 GC, certain powers are given to the Probate Court to reconsider its finding to cover matters not theretofore considered by the court, and that the question which the Probate Court determined upon the exceptions was not such as were enumerated in §5339 GC, and that, therefore, the court overstepped its power in modifying its judgment of December 16, or in assuming further jurisdiction. * * *
“It is asserted that prior to the filing of exceptions, the acts of the county auditor and the Probate Court are distinctively administrative and the auditor and court, having performed such acts, have exhausted their power unless provisions may be found for the modification or correction other than by exception.”

And on page 81 the'Court said:

“It is asserted that, the Probate Court having certain express powers, it must be assumed that such court in its administrative capacity has such powers only and such incidental powers as are necessary to permit it to carry out its express powers; that the entry of December 16, 1943, could be corrected only under express statutory authority which is claimed to be lacking; that, therefore, the entry of December 28, 1943, and the exceptions thereto, must be regarded as surplusage and unauthorized; and that the entry of December 16, which holds that the gifts are subject to taxation, is still in force.
“The appellees assert that under §10501-17 GC, the Probate Court has the same power as the Common Pleas Court, to vacate or modify its orders or judgments and for that purpose three terms of the Probate Court of' four months each are provided. It is asserted by appellees that according to the plain provisions of the above statute the order of the Probate Court, vacating the order of December 16, being within the September term, brings the case squarely within the rule that a court has entire control over its own orders during term.
“As we look at it, the determination of inheritance tax is initially confided in the Probate Court and any procedure taken before that court affecting such tax, calls not alone for administrative action of the court, but judicial action as well. The court has the same power in reference to the orders made in connection with inheritance tax that it has in reference to any other matter rightfully lodged in that court. * * *
“We are unable to follow the argument of counsel for appellant on this matter, and overrule assigned errors Nos. 1 and 2.”

In 1945, in the case of In Re Estate of Decker, 76 Oh Ap 39, 62 N. E. (2d) 711, where a supplemental application was filed by the Department of Taxation, to redetermine the inheritance tax and where it was contended that the Probate Court has no power to redetermine the inheritance tax except where expressly granted by statute, this Court, in an opinion by Judge Hornbeck, on page 44, held:

“We are committed by Abicht, Exr., v. O’Donnell, 52 Oh Ap, 513, 3 N. E. (2d), 893, to the proposition that the Probate Court has inherent equity jurisdiction to set aside its orders or judgments even after term upon proper showing. The language of §5340 GC, vesting the Probate Court with power under the Inheritance Tax Act is broad. It provides that the court 'shall have jurisdiction to hear and determine the questions arising under the provisions of this subdivision of this chapter, and to do any act in relation thereto authorized by law to be done by a Probate Court in other matters or proceedings coming within its jurisdiction.”

And on page 49 the Court said:

“Although the Probate Court has no general jurisdiction, we believe that, because of the broad powers delegated to it in inheritance tax determination, it has jurisdiction in this special proceeding tantamount to that vested in the Common Pleas Court generally.”

The rationale of that opinion is that the action of the court in determining the tax is judicial and not administrative in character.

In the case of In Re Estate of Schick, 57 Abs. 139, in 1949 Judge McClelland, Probate Judge of Franklin County, had under consideration an application filed after term for re-determination of the inheritance tax on the ground that through a mistake full deduction had not been taken for debts proven and listed in the schedule of debts. The court cited §5340 GC, and §10501-53 GC, conferring broad powers on the Probate Court and concluded that the Probate Court possesses the same powers as a Common Pleas Court to correct any errors in its proceedings or records. The court cited with approval the case of In Re Estate of Gatch, supra, holding that the action of the court was administrative in character, and reasoned that under this principle of law the Probate Court was not bound by the limitation of its terms of court in correcting or setting aside a judgment. The court 'held that under §10501-53 GC, it had the power to set aside the original determination and order a refund.

The author of this opinion in 1943, while serving as Probate Judge of Montgomery County, in the case of In Re Estate of Vanderlip, 39 Abs 314, 51 N. E. (2d) Ohio Supp. 123, had presented an application filed after term to modify the former order determining the inheritance tax. In that case the inventory and appraisement and the application to determine the inheritance tax listed as part of the assets of decedent’s estate a running stock account in a loan company which in truth and in fact did not exist. The court found that the determination was made and the tax paid on the stock account under a mistake of fact. The court held that under §10501-17 GC, the Probate Court has the same powers as a Common Pleas Court to vacate or modify its orders or judgments after term. The court held that no remedy was afforded under §11631 GC, but that the authority of the Probate Court was not limited to statutory grounds and that the Probate Court may vacate or modify its orders and judgments on equitable grounds in the same manner as the Court of Common Pleas. The court further held that under §10501-53 GC, it had plenary power in law and in equity to dispose of the matter presented on application. In that case the court ordered a re-determination of the tax and ordered the over-payment to be refunded. The question as to whether the order was a judicial or an administrative act was not raised. The decision was based on the assumption that the order was judicial in character.

That the action of the Probate Court in making an order determining the inheritance tax requires the exercise of judicial powers of the court may be drawn from the applicable statutes. Sec. 5340 GC, confers jurisdiction upon the Probate Court to hear and determine inheritance tax matters and “to do any act in relation thereto authorized by law to be done by Probate Court in other matters or proceedings coming within its jurisdiction.” Under §5345 GC, the Probate Court determines the tax “from the report of appraisal and other evidence relating to any such estate.” (Emphasis ours.) Under §5346 GC, exceptions may be filed to such determination within sixty days from “the entry of the order.” Sec. 5348-10 GC, provides for allowance of fees to be taxed for such services, and §5348-10a GC, provides for additional compensation to be paid the Probate Judge for this additional judicial burden. Sec. 5348-3 GC, prescribes the procedure for the collection of unpaid inheritance taxes. This section provides for filing a transcript of the proceeding in the Probate Court in the office of the Clerk of the Common Pleas Court of the county “and the same proceedings shall be had with respect thereto as are provided by §11659 GC, with respect to transcripts of judgments rendered by justices of the peace and mayors, etc. * * * Thereupon the same effect shall be given to such transcript for all purposes as is given to such transcripts of judgments of justices of the peace and mayors filed in like manner.” Former §11659 GC, is now §11656-2 GC. This section in part provides: “Judgments of Probate Courts, municipal courts, justices of the peace and other courts inferior to the Court of Common Pleas, may be made liens upon lands and tenements of a judgment debtor within any county of this state in the manner provided in §11656 GC, and not otherwise. The certificate of such judgment shall be made by the clerk of any such court or justice of the peace, as the case may be, etc. * * * When any certificate of a judgment of any such court made by the clerk of such court or justice of the peace, as the case may be, shall be filed in the office of the clerk of the court of common pleas of any county, and docketed and indexed therein, execution may be issued out of such court of common pleas upon such judgment and such further proceedings to enforce said judgment may be had, as if the same had been rendered in such court of common pleas.”

Thus, we find that the legislature has by its enactments considered the order of the Probate Court determining inheritance tax a judicial order with the attributes of a judgment.

There is a well-defined distinction between a judgment and an order. Sec. 11582 GC, recognizes this distinction and provides:

“A judgment is the final determination of the rights of the parties in action. A direction of a court or judge, made or entered in writing and not included in a judgment, is 'an order.”

It would be technically incorrect to consider the order of the Probate Court determining inheritance tax a judgment. It is an order within the meaning of that term as defined in §11582 GC. It is a judicial order and not an administrative order which carries with it certain attributes of a judgment. Vol. 23 O. Jur., page 709, Section 321.

The Common Pleas Court may, in the exercise of a sound discretion, vacate or modify its orders during term, and under §10501-17 GC, the Probate Court is given the same power as a Common Pleas Court to vacate or modify its orders. The Probate Court had the power to vacate and modify its order during term in the exercise of a sound discretion.

We come now to consider the second question presented on which there is not much case law in Ohio. Does the Court have the power to order a refund? Under §5348-9 GC, the county treasurer makes settlement semi-annu‘ally for inheritance taxes collected. These settlements are made during the months of February and August. In the instant case the tax was paid to the treasurer on April 6, 1950. Before the time for the August settlement arrived'the motion for re-determination was filed, a hearing was had thereon, and the order of the court ordering the modification and a refund was filed. The tax sought to be refunded to the estate had not yet been distributed to the respective subdivisions as provided by law.

It is the contention of the Department of Taxation that the court has no power to order a refund inasmuch as no such power has been given by statute. It is contended that while the statute provides for a refund where debts are proven (§5339 GC) or where the tax is paid .under a temporary order (§5343 GC) there is no provision for a refund where the tax is paid under a mistake of fact. Appellant cites a number of New York cases which hold that unless there is a statute authorizing it there can be no refund. People, ex rel. Bankers Trust Co. v. Graves, 274 N. Y. S. 260, affirmed by the Appellate Division and reported in 281 N. Y. S. 312, and affirmed by the Court of Appeals and reported in 270 N. Y. 316; In re Dryer’s Estate, 12 N. Y. S. (2d) 814; In re Estate of Ford, 96 N. Y. S. (2d) 177. In the first case cited the executor brought a mandamus action against the State Tax Commission to compel a refund on the ground that the assessment was held to be illegal by ruling of the Supreme Court of the United States. The assessment of the tax was concededly an error of law and not of fact. In the two other New York cases cited the Surrogate Court held that it had authority to modify the order, but no authority to order a refund against the state. We do not have that precise question before us. Moreover, while it is true the inheritance tax law of Ohio is copied largely from the New York law, the courts of Ohio are not obliged to follow the New York case t law in its construction. Tax Commission v. Parker, 117 Oh St 215, 221, 158 N. E. 89; Vol. 38 O. Jur. page 1247, Section 430. Appellant also cites the case of Exrs. of Long v. State, 21 Oh Ap 412, 153 N. E. 225, decided by the Court of Appeals of Hamilton County in 1926 where exempt property was taxed and the taxes paid. An application for refund was filed after term. The sole question was whether the Probate Court had jurisdiction to determine the matter. The court, on page 415, held that the Probate Court had jurisdiction of the subject matter, but that a refund hinged on the determination as to whether the order determining the tax was void. The court held it was not void and that the tax was paid voluntarily. In that case the court concluded that inheritance taxes paid voluntarily cannot be recovered. It will be observed that this case was decided before the enactment of the Probate Code and before the effective date of §§10501-17, 10501-18 and 10501-53 GC. In the case of In re Estate of Vanderlip, supra, the court discusses the case of Long v. State and concludes that the tax was there paid under a mistake of law rather than under a mistake of fact. The court in the Vanderlip case states: “It is a matter of elementary law that relief from the consequences of a mistake of law can be given only through an appeal (formerly error or appeal). Furthermore, that case arose before the Probate Code was enacted which confers equity powers on the Probate Court and, therefore, the court was confined to the statutory remedy.” The other Ohio cases cited in support of the principle of law that taxes paid voluntarily cannot be recovered relate to the payment of general taxes.

We recognize that the case law of Ohio has established the general rule that taxes paid voluntarily cannot be recovered. In our opinion this rule has no application here as this case does not fall in that category. As we see it the order of the Probate Court determining the tax was-a judicial order and attached thereto were certain attributes of a judgment. The executor and the beneficiary were legally bound to abide by the order. The executor had a right to and did invoke the jurisdiction of the court to vacate the order on equitable grounds. In our opinion this remedy was available under the facts in this case.

The inheritance taxes sought to be recovered in the instant case were paid under a mistake of fact. Payment of taxes under a mistake of fact (as distinguished from a mistake of law) has been held not to be voluntary. See Vol. 64 A. L. R. page 35. Numerous cases are cited, including cases from the State of. New York. In the case of In re Edison Electric Illuminating Co., 22 App. Div. 371, 48 N. Y. Supp. 99 (affirmed in 155 N. Y. 699, 50 N. E. 1116) it was held that payment of illegal taxes demanded under apparent legal authority could not be said to be voluntary where the payer did not know that the illegal tax was included in the assessment. Payment made to escape penalties would be deemed involuntary, even though paid before default day. See Vol. 64 A. L. R. page 42. Also payment of taxes under judicial order is held to be paid involuntarily. See Vol. 64 A. L. R. page 67. In Vol. 51 Am. Jur. page 1023, Section 1191, it is stated that recovery on the ground of mistake is predicated on a different basis from a recovery on the ground that payment was involuntary.

Nevertheless the courts have distinguished between payment made under mistake of law and payment under mistake of fact in determining whether the payment was voluntary. The authority concludes: “A payment of taxes under a mistake of fact (as distinguished from a mistake of law) has been held not to be voluntary, and is therefore recoverable.” In Vol. 165 A. L. R. page 879 is found this note by the author: “In the absence of a statutory remedy, an action at law will lie to recover taxes paid where the assessment is wholly void. Such action is equitable in its function.” On page 888 the author states: “In the following cases courts permitted the taxpayer to recover on the ground of mistake, where the mistake was mutual and the assessment was declared void, even though such mistake arose from the want of care on the taxpayer’s part.” Numerous cases from New York are cited to support the rule. While there is diverse authority on this question, due largely to variations in statutory provisions, the weight of authority and the better rule seems to be that a recovery may be had where taxes are paid under a mistake of fact upon a void or illegal assessment or order. See North Miami v. Seaway Corporation, 151 Fla. 301, 9 So. (2d) 705. In Woolley v. Staley, 39 Oh St 354, the syllabus holds:

“Money paid under a mistake of facts, and without consideration, may, as a general rule, be recovered back.
“Where a tax-payer, under a belief, justified by the circumstances, that there is a legal charge against his property upon the tax duplicate in the hands of the treasurer, pays the amount thereof to such treasurer, when, in fact, no such charge appeared on the duplicate, and the payer was under no legal or moral obligation to pay the same, he may recover it back as a payment made under mistake of fact.”

In Newport and S. C. Bridge Co. v. Hamilton County, 8 O. Dec. Rep. 564, 9 Bull. 16, it was held that:

“It is well settled that where a party makes a voluntary payment, no process of the law can be had to recover it back, unless the payment was made through a mistake of fact.” (Emphasis ours.)

In the following Ohio cases a refund was ordered for over-payment of inheritance taxes: State v. Mong, 130 Oh St 483, 200 N. E. 516 (1936); In re Estate of Vanderlip, supra; In re Estate of Schick, supra. In the two latter cases orders were vacated after term and a refund ordered. If such orders may be vacated after term a fortiori it may be done within term. In the case of State v. Mong a mandamus action was brought against the auditor to require him to issue a warrant upon the county treasurer to refund overpaid inheritance taxes. ' The opinion does not indicate on what ground the refund was ordered. On page 484 the court said:

“The tax is computed on the net balance and often after payment further deductions come to light which may be cared for by refund.”

This statement indicates that the action may have been based on the provision of §5339 GC, which provides for refund under certain circumstances. While this opinion may not be good authority supporting a refund order under the facts in the instant case, nevertheless, the court on page 484 did use language which bears notice:

“The intent of the inheritance tax law is that inheritance taxes shall be paid promptly with right of refund of such an amount thereof as may later lawfully appear to be overpaid.”

In that case it was contended that an order of refunder would be in violation of Article XII, Section 9, Article I, Sections 1 and 19, of the Ohio Constitution, and the Fourteenth Amendment to the Federal Constitution. The court said:

“Nothing in the sections of the General Code referred to is in violation of these constitutional provisions as claimed. There is no vested right to inheritance taxes which have been paid and distributed to the state or a subdivision thereof, such as prevents a refund of payments in excess of those warranted by law.” (Emphasis ours.)

No contention was made in the Mong case, nor in the Vanderlip or Schick cases, as the appellant here contends, that a, refund order would be in violation of Article II, Section 22, of the Ohio Constitution, which provides:

“No money shall be drawn from the treasury, except in pursuance of a specific appropriation, made by law; and no appropriation shall be made for a longer period than two years.”

In our opinion this constitutional provision has no application. In the instant case the county treasurer had not distributed the tax. The constitutional provision that no money shall be drawn from the state treasury except in pursuance of a specific appropriation has no application to moneys in the hands of the county treasurer-. In the New York cases cited the tax money was in possession of the state. The New York constitutional provision is much broader than the Ohio constitutional provision. It has never been contended that a refund ordered • under the provisions of §5339 GC, is in violation of Article II, Section 22, but such refunders are not made in pursuance of specific appropriations.

In the Vanderlip and Schick cases refunders were ordered after term and after distribution. The constitutional question presented here was not raised in those cases. Until distribution is made by the county treasurer, inheritance taxes in possession of the county treasurer are held and considered as “undivided” inheritance taxes. See §§5348-10, and 5348-10a GC. Before distribution the inheritance taxes held by the county treasurer are not earmarked. We are not. here required to determine whether a refunder may be ordered after distribution to the state and other political subdivisions, as was ordered in the Vanderlip and Schick cases.

Under §5332 GC, inheritance taxes are levied “upon the succession to. any property passing, in trust or otherwise, to or for the use of a person, etc.” In the instant case inheritances taxes under the original order were assessed against property which did not pass by succession. The language of the Supreme Court in Mong v. State that there is no vested right to inheritance taxes paid and distributed to the state or a subdivision such as prevents a refund of payments in excess of those warranted by law, applies with much force to the situation presented here.

We are inclined to the view that the original order assessing inheritance taxes with respect to the undivided one-half interest of said property which did not pass by succession was void since the court was without jurisdiction to assess a tax on property other than that passing by succession. Several cases in New York also support this view. See In re Estate of Ford, supra, in which the following New York cases are cited in support of this proposition: Matter of Coogan, 27 Misc. 563, 59 N. Y. S. 111, 112, affirmed without opinion in People ex rel. Coogan v. Morgan, 45 App. Div. 628, 61 N. Y. S. 1144, and again affirmed in Coogan v. Morgan, 162 N. Y. 613, 57 N. E. 1107; National Bank of Chemung v. City of Elmira, 53 N. Y. 49; Matter of N. Y. Catholic Protectory, 77 N. Y. 342; Williams v. Board of Supervisors, 78 N. Y. 761; In Matter of Morgan’s Estate, 215 N. Y. 703, 109 N. E. 1084, 1085.

Finding no error in the record prejudicial to the appellant the judgment is affirmed.

MILLER, PJ, and HORNBECK, J, concur.


source: Caselaw Access Project

author: By SKEEL, PJ.

license: Public Domain

text:
    CENTURY INSURANCE COMPANY LTD., Plaintiff-Appellee, v. FAZIO d. b. a. NEW DRUM SUPER SERVICE STATION, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22183.
    Decided June 25, 1951.
    Kitchen & Messner, Cleveland, for plaintiff-appellee.
    Miller, Davis & Folk, Cleveland, for defendant-appellant.
   OPINION

By SKEEL, PJ.

This appeal comes to this court on questions of law from a judgment entered for the plaintiff upon trial in the Municipal Court of Cleveland. .

The plaintiff had a contract of fire insurance with one Edward Senarski insuring against loss by fire as to Senarski’s automobile.

On February 13, 1947, Senarski took his automobile to the service station of the defendant. After ordering gasoline, which was furnished by the defendant, Senarski asked to have the oil changed and the motor flushed. The car was put on the lift, the old oil drained out and a Graco Vitalizer was connected by rubber hose to the crank case and five quarts of fresh flushing oil pumped in. The motor was then started at idling speed to assist in flushing out the crank case. The inside of the motor was thus cleaned, by repeating this process as many times as necessary.

The defendant had been operating the Graco Vitalizer about ten minutes, Senarski being present and watching the work at all times when suddenly fire was discovered in the motor. Fire extinguishers were used at once, the car was lowered to ground level and pushed out of the lubritorium and by that time the fire had been extinguished.

The plaintiff by reason of its fire insurance contract paid Senarski the loss occasioned by the fire and was subrogated to his rights.

The defendant’s assignments of error are as follows:

“1. The finding by the Trial Court for the plaintiff was contrary to law for the defendant bailee had rebutted the inference in favor of the plaintiff and to find for the plaintiff is to hold the bailee liable as an insurer.
2. The verdict is against the great weight of the evidence and contrary to law because the plaintiff, the bailor’s assignee, offered no direct evidence of negligence- on the part of the bailee and no rebuttal evidence after the bailee had explained the loss of the bailed property without negligence on his part.”

The plaintiff’s petition alleged that the defendant ran the motor of the Senarski car at a high rate of speed for over thirty minutes, causing the radiator to overheat and the rubber hose to break so that the alcohol escaped and ignited causing fire damage to said automobile to the extent of $279.40. The petition further alleges that the defendant was negligent in the following particulars:

1. In running the motor at a high rate of speed for a long period of time causing it to overheat, the rubber hose to the radiator to break, permitting alcohol to escape and ignite.

2. In refusing to reduce the speed of the motor at the request of the owner.

3. In failing to extinguish the fire when he could have done . so.

4. In failing to exercise ordinary care for the safety of the automobile.

The defendant’s answer, after admitting the ownership of the automobile, alleged that while he was flushing out the crank case, the motor took fire and some damage resulted and denied all of the other allegations of the plaintiff’s petition.

Upon trial, the plaintiff’s evidence, when considered in its most favorable light in support of his case, did not support the allegations of negligence of the petition. The plaintiff’s evidence established that Senarski delivered his automobile to the defendant to have the oil changed and the crank case flushed out; that the defendant drained the oil and then began to flush out the crank case with the aid of a Graco Vitalizer; that shortly after the work was started, Senarski being present during all of the time, a fire developed under the hood; that both Senarski and the defendant acted as fast as they could to put the fire out, which was accomplished before the fire department got there. There is no attempt on the part of the plaintiff to support the allegations of its petition that the defendant raced the motor, that radiator heated up and the rubber radiator connection broke because of overheating, permitting alcohol to escape and ignite.

When the plaintiff rested its case, its evidence made out, at the most, a prima facie case of the breach of the bailment contract, that is, the delivery of the automobile in good condition to the bailee and its return in a damaged condition, the damage being caused by fire.

The defendant’s evidence explained in detail what was done with Senarski’s automobile at each step of the work. He testified that when the motor was started after the flushing oil was put into the crank case by the Graco Vitalizer, it was operated at idling speed and that everything that was done was done in the usual and ordinary way in working on Senarski’s automobile and that he did all that could be done after the Are was discovered.

When the defendant rested his case, he had met every legal requirement necessary to place upon the plaintiff the duty to proceed with evidence to establish that whatever loss was suffered by the fire was the proximate result of defendant’s negligence as alleged in its petition. This, the plaintiff failed to do, so that as a matter of law the defendant was entitled to a judgment on the state of the record when both parties rested.

For the foregoing reasons the judgment is reversed and final judgment entered for the defendant. Exc. Order see journal.

HURD. J, THOMPSON, J, concur.


author: Per CURIAM:

text:
    INGALLS, Plaintiff-Appellant, v. WESTERN RESERVE UNIVERSITY, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21962.
    Decided March 12, 1951.
    Harrison, Spangenburg & Hull, Cleveland, for plaintiff-appellant.
    McKeehan, Merrick, Arter & Stewart, Cleveland, for defendant-appellee.
   OPINION

Per CURIAM:

We are of the opinion that it was error for the trial court to hold, as a matter of law, that the plaintiff was contributorily negligent, and to grant the defendant’s motion for judgment, n. o. v. on that ground.

Under the evidence in the record it appears that the plaintiff did not know of the dangerous character of the passageway used by her as a means of egress from the property. She had proceeded to the cafeteria during the daytime through the same passageway and testified she did not observe the stones across the end of the driveway.

We are of the opinion also that the issue of negligence was for the determination of the jury. Plaintiff was an invitee or business visitor to whom the defendant owed the duty of ordinary care. The governing principle on the issue of negligence is well stated in Restatement of the Law of Torts, §343 page 942 as follows:

“A business invitation includes an invitation to use such part of the premises as the visitor reasonably believes are held open to him as a means of access to or egress from the place where his business is to be transacted. If the possessor has intentionally or negligently misled the visitor into the reasonable belief that a particular passageway or door is an appropriate means of reaching the business area, the visitor is entitled to the protection of a business visitor while using this passageway or door.”

In the sama paragraph and page of the text of the Restatement the following also appears:

“Since the status of the other as a business visitor depends upon whether the possessor should have known that his visitor would be led to believe that a part of the premises are held open to him as a business visitor, the question is often one of fact and as such a matter for the jury, subject to the normal control which the court exercises over the jury’s function in such matters.”

The trial court in its charge recognized this principle by instructing the jury in effect that the plaintiff was required to establish that defendant in the exercise of ordinary care ought to have anticipated the use of the passageway by plaintiff as a means of exit.

The judgment of the common pleas court is reversed with instructions to enter judgment in favor of the plaintiff for the amount of the verdict returned by the jury.

SKEEL, PJ, HURD, J, McNAMEE, J, concur.


author: By PAULINO, J.

text:
    KEAGLE, Plaintiff, v. UFFORD, Defendant.
    Municipal Court, Ashtabula.
    No. 14737.
    Decided December 28, 1950.
    Robert H. Fuller, Ashtabula, for plaintiff.
    Dana R. Headley, Ashtabula, for defendant.
   OPINION

By PAULINO, J.

This is an action filed in this Court by the plaintiff, Clifford Keagle,.the operator of a boat livery, against the defendant, Robert Ufford, to recover damages for the loss of a boat, anchor and anchor line, and for cost of repairs to an outboard motor used in the operation of the boat and to a lantern with which the boat was equipped.

The facts brought out at the trial were that the defendant, on the evening of August 17, 1950, rented from the plaintiff a boat equipped with an outboard motor, anchor, anchor line and lantern, and that at about the hour of 8:30 P. M. defendant with three companions set out on the waters of Lake Erie at Ashtabula, Ohio, for the purpose of engaging in fishing; that on two occasions defendant and his fishing-companions took up positions inside of the breakwall which extended easterly from the entrance to Ashtabula Harbor for some distance and which breakwall was approximately one mile from shore from where the plaintiff’s boat livery was located; that on three occasions they maneuvered their boat outside of the breakwall, and that on the last occasion they took up a position outside of the breakwall at a distance of approximately one and one-quarter miles from plaintiff’s boat livery, their exact location, as near as could be ascertained, being about one-quarter of a mile east of the east side of the breakwall entrance to the harbor and about one-quarter of a mile out into the lake north of the break-wall.

The testimony on behalf of the defendant was that as the defendant and his companions were anchored and engaged in fishing at this last location a slight breeze sprang up, the water prior to this time being calm; that with the beginning of the breeze ripples began to form on the surface of the water; that at this time the operator of the boat and the outboard motor, Walter Peake, who claimed to have had extensive experience in the operation of outboard motors and who indicated that he had lived along the shores of Lake Erie practically all of his life and had learned to respect the character of the waters of Lake Erie, decided that they should come in with the boat.

Mr. Peake, who was seated in the stern of the boat in control of the outboard motor, testified that as soon as the surface of the water became rough, he began to come in with the boat; that he did not want to anticipate any trouble; that as he was guiding the boat in, the motor stopped; that he tried to restart it and that it sputtered, made a few revolutions and stalled again; that at the time the motor stalled the weather was bad; that the boat had taken on considerable water, the waves at that time rising over their heads; that the boat drifted to the immediate vicinity of the break-wall. He further testified as follows: “I had to find a landing-place as soon as possible.”

The testimony of the defendant was that, while he and his companions were seated in the boat engaged in fishing at a position east by northeast from the harbor channel outside of the breakwall, a slight breeze sprang up and with the beginning of the breeze he and his party started back towards the breakwall; that a storm arose which in a few minutes developed with great velocity and intensity; that there was water flying through the air which reached a height of two feet over the heads of the occupants of the boat; that a darkness came up and that visibility became practically zero; that as a result of the water in the air the motor was drowned out; that the operator of the boat managed to start the motor again; that it ran for a short period of time and then stopped completely. He testified in substance: “We were drifting quite rapidly; at about the time we were able to place the oars in the oar locks, it was too late; before we knew it we were against the rocks; the boat was being bounced against the rocks; nothing more could be done; all of the men got out of the boat; we made an attempt to beach the boat on the breakwall but we could no so for the intensity of the storm.”

The testimony on behalf of the defendant disclosed that, after this incident, the four fishermen remained on the shelter side of the breakwall for a period of from one to two hours before the coast guardsmen came in their boat after the storm had subsided and took the men to the coast guard station in the river channel. The men were then taken by automobile by the plaintiff to the boat livery from where they left for their homes. The evidence further disclosed that the occupants of the boat had lost all of their personal belongings and equipment as a result of this mishap.

The rebuttal testimony of the plaintiff was that on the evening in question he also had gone out into the lake to engage in fishing; that there were a number of other boats out in the lake among which were twenty-three or twenty-four boats from his livery; that while out in the Lake at about the hour of 9:30 P. M. or 10:00 P. M. he had heard thunder in the air and had observed lightning in the distance; that as the thunder and lightning approached more closely, he moved his boat inside of the breakwall; that he observed that other boats out in the lake were moving inside of the breakwall or were going into shore; that about an hour later a windstorm arose; that shortly thereafter he came in to shore and took charge of the boat livery, and kept checking the boats as they came in; that there came a time when all of his boats with the exception of one had come in; that about twenty or twenty-five minutes after the last boat had come in to shore, he noticed signals on the breakwall and immediately notified the Coast Guard Station; that after the storm had subsided he went out to look for the boat, and returned with the outboard motor and lantern but was unable to find the boat, anchor or anchor line; that both the outboard motor and lantern were recovered in a damaged condition.

On cross examination all of the witnesses for the defense denied that they heard thunder in the sky before the storm arose. Defendant, however, did state that if it had been thundering, he could not hear it on account of the noise of the water. In regards to whether or not there had been lightning in the sky, some of the witnesses for the defense stated that they were unable to say that there was lightning in the sky, while others denied that there was any lightning. One witness for the defendant did testify that he saw lightning in the sky as they began to come in with the boat. Defendant and his witnesses testified generally that there were other boats on the lake that evening for they could see lights on the lake apparently from the other boats, but testified when asked if there were other boats on the lake at the time the storm broke that they were not paying any attention to any other boats but were more concerned with bringing their own boat in to the breakwall. When questioned on whether or not he had consulted the weather reports in the daily newspaper or if he had inquired concerning any storm warnings from the coast guard station, defendant testified that he had not done so.

The plaintiff in this action filed the short form petition alleging therein the rental of the boat and equipment, the return of the motor, full of water, requiring repairs; the return of the lantern in a damaged condition, the failure of the defendant to return the boat, anchor and anchor line, a demand upon the defendant for the return of this property, and the failure of defendant to so return the same after such demand made upon him, all of which facts were established in examination in chief.

The defendant in his answer admitted the rental of the boat equipped with the accessories described in the petition, and by way of defense stated that the property was taken from him by a sudden onset of wind and waves and was lost in the waters of Lake Erie without fault or negligence on his part, and by way of further answer defendant denied each and every allegation contained in the petition. The case was tried to the court without the intervention of a jury.

Since the within action is one filed by a bailor against a bailee to recover damages for loss of and injury to bis property, the only issue involved is whether or not there has been a violation of a duty owing plaintiff by defendant in the manner of the use of the property let to him for hire. The Ohio law in situations of this kind is that a bailee for hire owes to the bailor the duty of exercising ordinary care or due care in the use of the bailor’s property.

There is an abundance of law in the State of Ohio defining this relationship. The latest pronouncement of the law is the case of Agricultural Insurance Company v. Constantine, d. b. a. Allerton Parking, 144 Oh St 275, 29 O. O. 426, 58 N. E. 2nd 658, decided by the Supreme Court of Ohio, on December 20, 1944.

Other decisions examined by the court which contain complete discussion of the law relating to this type of cases are the following:

Holtz v. Kaffeman, 13 O. O. 436, 3 O Supp. 127, 28 Abs 321, decided Jan. 21, 1939.

Farm Bureau Mutual Automobile Insurance Co. v. The Alms & Doepke Co., 30 O. O. 387, 75 Oh Ap 88, 61 N. E. 2nd 224, decided Oct. 16, 1944.

These cases contain not only the general rule of law in connection with bailments for hire, but also contain a discussion of the rules relating to the establishment of a prima facie case, the presumption of negligence, the burden of proof and the burden of proceeding with the evidence, and also define the rules of pleadings in cases of this nature.

Since this case was submitted to the court on all of the proof presented at the trial, the only question involved was whether or not the plaintiff had made out a case against the defendant. At the close of plaintiff’s testimony in chief the court was not required to decide whether or not the plaintiff had established a prima facie case. Neither was the court required to decide at the close of defendant’s testimony if defendant had established a valid defense, that is: If the defendant had offered a lawful excuse or an excusable cause for failure to return the boat, anchor and anchor line, and for the damage caused to the outboard motor and lantern. Since the defendant injected in his pleadings the defense of unavoidable casualty, it became the duty of the plaintiff to establish by a greater weight of or by the preponderance of the evidence the proposition in dispute, namely: “Was the defendant guilty of negligence or of a want of due care in failing to safely return the boat and equipment to the plaintiff?”

This brings us to the question of the amount of care required of the defendant to constitute ordinary care. This question has been answered by the Supreme Court of Ohio in the case of Soltz v. Colony Recreation Center, reported in 151 Oh St 503, 39 O. O. 322, 87 N. E. 2nd 167, and decided on June 15, 1949, which decision is as follows:

“Generally, the amount of care required to constitute ordinary care, is commensurate with the danger involved. Thus, under circumstances of peculiar peril, a greater amount of care is required than where the circumstances are less perilous, because prudent and careful persons, having in view the object to be attained and the just rights of others, are, in such cases, accustomed to exercise more care than in cases less perilous. The amount of care is increased, but the standard is still the same. It is still nothing more than ordinary care under the circumstances of that particular case.”

And also in the case of Englehardt v. Philipps, 136 Oh St 73, 15 O. O. 581, 23 N. E. 2nd 829, decided on November 22, 1939, the Supreme Court of Ohio defines legal liability for negligence as follows:

“Legal liability for negligence is based upon conduct involving unreasonable risk to another which must be established by affirmative evidence tending to show that such conduct falls below the standard represented by the conduct of reasonable men under same or similar circumstances. Moreover, in determining whether the defendant should recognize the risks which are involved in his conduct as being unreasonable, only those circumstances which the defendant perceives or should perceive at the time he acts or fails to act are to be considered. Until specific conduct involving-such unreasonable risk to the plaintiff is made manifest by some evidence, there is no issue to submit to the jury.”

To the amazement of this court there is no abundance of authority on the law in connection with the liability of a hirer of property for loss of or damage to such property rented to him by a liveryman. An examination for Ohio authorities in cases of loss of or injury to small watercraft fails to disclose any such decisions. There is a pronouncement of law in Ohio applicable to the within case which takes one back to the horse and buggy days. That is the case of Pickens v. Diecker, reported in 21 Oh St 212, 8 Am. Rep. 55, decided by the Supreme Court of Ohio in 1871. The rule of law established by the court in that case is that a hirer of a team and buggy from a livery-stable keeper is responsible to the liveryman for his negligence resulting in damages thereto.

There is one significant element in the Pickens Case which is similar to the facts in this case. In that case while defendant’s agent was leading a team of horses hitched to a buggy, one of the buggy wheels struck a stone, thereby causing some paper boxes to be thrown from the wagon. This frightened the horses and they broke away causing damage to the buggy, harness, and injury to one of the horses. The court remarked in that case that there was no claim that the horses were more liable to take fright than horses ordinarily are. The point of similarily between the two cases is that in this case there was no claim made by defendant that the storm which arose on Lake Erie that evening was more sudden, more violent, or more out of the ordinary than other storms which have arisen on the lake. On the contrary, Walter Peake, the operator of defendant’s boat, testified that he had spent his whole life on the shores of Lake Erie and had learned to respect the lake. This is an indication that storms on Lake Erie are sudden, violent and frequent. Knowing these facts, can it be said that the defendant took the precautions which a reasonable or prudent person would have taken under the same and similar circumstances?

The fact that there were at least twenty-five boats on the lake that evening and all returned to shore safely with the exception of defendant’s boat was an indication that the defendant and his companions did not exercise the care and prudence which was exercised by the operators of the boats on the lake that evening. This was borne out by the other facts and circumstances brought out in the evidence.

There was testimony in the trial that for approximately one hour before the storm arose there was lightning and thunder in the sky which at first could be seen and heard in the distance and which kept approaching the vicinity in which defendant’s boat and the other boats were located. During this time defendant and his companions were unaware of this condition. Neither were they paying any attention to the movement of the other boats, to the extent that all of the other boats had moved either inside of the breakwall or into shore without the defendant or his companions being aware of this fact. It must be remembered also that it was early in the night on a warm August day when it would not be expected that all of the boats out in the lake would be coming into shore, with the result that defendant’s boat was the only small watercraft remaining on the unprotected side of the lake when the storm finally arrived.

Another pertinent fact in this case is that under the circumstances which existed, defendant and his companions anchored their boat in a position whereby the breakwall stood between them and the shore, making it very hazardous for them to be able to return to shore in the event of a sudden storm over the lake, as had actually happened on that particular evening. While all of the other boats had reached shore safely, the breakwall was the only place of refuge for defendant and his companions.

All of these facts clearly indicate that defendant did not exercise the ordinary care which prudent and reasonable persons would have exercised under the same and similar circumstances existing at that time on the lake. Accordingly, it is the court’s opinion that the defendant was guilty of negligence in connection with the use of plaintiff’s property, and is liable to the plaintiff for any damages he may have suffered as a result thereof.

The undisputed testimony of the plaintiff was that the reasonable market value of the boat, a Lyman Built Clinker Type Boat, was $175.00, and that the reasonable market value of the anchor and anchor line was $2.00; and that the fair market value of services in repairing the outboard motor was $7.00 and of the lantern $1.05, making a total of $185.05. Accordingly, the court is making a finding in favor of the plaintiff against the defendant for the sum of $185.05.


author: By THE COURT.

text:
    STATE ex THORMYER, Plaintiff-Appellant, v. FERGUSON, Aud., Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4388.
    Decided February 6, 1950.
    Fred L. Orum, Columbus, for plaintiff-appellant.
    Hon. Herbert S. Duffy, Atty. Geni., Robert A. O’Neil, Asst. Atty. Geni., Columbus, for defendant-appellee.
   OPINION

By THE COURT.

This is an appeal on law from the judgment of the Common Pleas Court, Franklin County, Ohio, refusing a writ of mandamus requested by the plaintiff-appellant.

This action is brought by George J. Thormyer, relator, on his own behalf and on behalf of others similarly situated to compel Joseph T. Ferguson, Auditor of the State of Ohio, to issue warrants on the Treasurer of the State of Ohio in payment of certain supplemental payrolls of the Department of Highways for the years 1945, 1946, 1947 and 1948. The respondent in his answer admits substantially all of the allegations set forth in the petition of the relator.

The essential facts which were agreed to and stipulated by the parties in substance are as follows: The relator was, during the years 1945, 1946, 1947 and 1948 and still is an employee of the Department of Highways of the State of Ohio; that the Department of Highways prepared supplemental payrolls containing the name of relator, which payrolls were duly signed and approved by the Director of Highways; that said payrolls were filed with the Civil Service Commission of Ohio and that such payrolls were duly certified by said Commission; that said payrolls were transmitted by the Civil Service Commission to the Director of Finance for the State of Ohio, who charged said supplemental payrolls against encumbered balances for the years 1945, 1946, 1947 and 1948; that the Director of Finance transmitted said supplemental payrolls to the respondent herein, accompanied by proper vouchers for payment; that the defendant refused to honor such vouchers and to draw the necessary warrant on the State Treasury to pay said supplemental payrolls. On June 30, 1944, the relator received a base salary of $3,600.00; that between June 30, 1944 and December 31, 1944 he received a merit raise of $200.00, which increase was approved by the Civil Service Commission of Ohio. The relator received a $180.00 increase as provided by House Bill No. 227, which was the general appropriation act for the biennium beginning January 1, 1943 and ending December 31, 1944, and that under House Bill No. 484, which is the general appropriation act for the biennium beginning January 1, 1945 and ending December 31, 1946, he received an increase of $360.00 (10% of base) and $360.00 for prior service (five years at 2% per annum). It is agreed that the total of these increases is $1,100.00, and that the relator has received only $900.00 per year of these increases, leaving a claimed deficiency of $200.00 per year.

The principal question for the court to determine is whether the $900.00 limitation on salary increases in House Bill No. 484 is applicable to merit increases as well as legislative increases. The relator contends that the $900.00 limitation on salary increases in House Bill No. 484 applies only to legislative increases. The respondent contends that the limitation is applicable to all increases.

In order to determine the legislative intent it will be helpful to consider the language used in Amended Senate Bill No. 1 of the 96th General Assembly, which provided for partial appropriations for the period beginning January 1, 1945 and ending June 30, 1945, which was passed January 3, 1945. The pertinent part of Amended Senate Bill No. 1 is as follows:

“(a) All state employees in the service of the state on the effective date of this act shall continue to receive during the period this act is operative, the increase in salary or wage granted to or received by them in accordance with the salary and wage adjustment provisions of House Bill 227 of the 95th General Assembly. * * *

(b) In addition to the above there is herein provided a ten per cent (10%) increase on the base salary of all state employees not herein specifically excluded, plus two per cent (2%) of such base salary for each full calendar year such state employee has been in the state service prior to the effective date of this act, or shall be subsequent thereto, not to exceed five (5) years (not to exceed a maximum of ten per cent). * * *

Provided, however, that' in no event shall the aggregate amount of the increases prescribed herein exceed the sum of Nine Hundred Dollars ($900.00) per annum in the case of any one employee and, provided further that any employee who, between June 30, 1944, and December 31, 1944, received an increase in the annual salary he was receiving on the former date exclusive of any increase he may have then been receiving by reason of the salary and wage adjustment provisions of House Bill No. 227 of the 95th General Assembly, shall receive only the difference resulting when the amount by which his such salary was so increased is subtracted from the aggregate amount of the increases prescribed herein applicable to his case, all of which increases shall in no event exceed Nine Hundred Dollars ($900.00) per annum.

The above limitation shall not in any event result in a reduction of the salary or wage received by any employee on the effective date of this act nor shall it prohibit any promotions in positions or increases in salaries or wages, exclusive of the increases prescribed herein, after this act becomes effective.”

Under the provisions of this bill the salary increase given in House Bill No. 227 was extended for the period covered by the Act, and additional increases were granted under the first paragraph of Subdivision (b) of the Act. However, under the proviso in the second paragraph, Subdivision (b), there was a $900.00 limitation placed on the increases and it further provided that if a merit increase had been given the employee between June 30, 1944 and December 31, 1944 he was entitled to receive as a legislative increase the difference between the merit increase and the aggregate amount of the legislative increases, but all of such increases could not exceed $900.00 per annum. The effect of the last $900.00 limitation in the proviso was to permit the employee to retain a merit increase with the privilege of receiving additional legislative increases granted under the act so long as the merit increase and the legislative increases did not exceed $900.00 per annum. It is obvious that the words “all of such increases shall in no event exceed Nine Hundred Dollars ($900.00) per annum” were applicable to merit increases as well as legislative increases. The effect of the proviso was not to deprive the employee of a merit raise but to reduce the amount of the legislative increases to the extent of the merit raise. The provision in the last paragraph of Amended Senate Bill No. 1 above quoted, which provides that the limitation shall not result in a reduction of salary, supports this interpretation.

Subsequently the 96th General Assembly, on June 28, 1945, passed House Bill No. 484, which was the General Appropriation Act for the biennium beginning January 1, 1945 and ending December 31, 1946. House Bill No. 484 granted the same legislative increases for the biennium as were granted in Amended Senate Bill No. 1 under Subdivisions (a) and (b). House Bill No. 484 also contained the same proviso as in Amended Senate Bill No. 1, with the exception of a change respecting a deduction in the event the employee had received a merit raise. The proviso in House Bill No. 484 is as follows, with the new matter emphasized:

“Provided, however, that in no event shall the aggregate amount of the increases prescribed herein exceed the sum of Nine Hundred Dollars ($900.00) per annum in the case of any one employee, and, provided further that any employee who, between June 30, 1944, and December 31, 1944, received an increase in excess of Two Hundred Forty Dollars ($240.00) in the annual salary he was receiving on the former date exclusive of any increase he may have been receiving by reason of the salary and wage adjustment provisions of House Bill No. 227 of the 95th General Assembly, shall receive only the difference resulting when the amount by which his such salary was so increased in excess of Two Hundred Forty Dollars ($240.00) is subtracted from the aggregate amount of the increases prescribed herein applicable to his case, all of which increases shall in no event exceed- Nine Hundred Dollars ($900.00) per annum.”

The proviso retains the provision limiting legislative increases to $900.00 per annum. It further provides that instead of the entire amount of the merit raise being deducted from the legislative increases, as was provided in Amended Senate Bill No. 1, only the excess over $240.00 of the merit raise is thus deducted. It allows the employee to receive $240.00 more as a legislative increase than was permitted under the provisions of Amended Senate Bill No. 1. The effect of this limitation is to permit the employee to receive the merit increase and receive a legislative increase under the Act, so long as all the increases do not exceed $900.00 per annum. If the merit increase is less than $240.00 the employee would be entitled to receive the merit increase and the entire legislative- increase, so long as all such increases do not exceed $900.00 per annum. The words “all of which increases shall in no event exceed Nine Hundred Dollars ($900.00) per annum” are applicable to a merit increase as well as legislative increases. This limitation in House Bill No. 484 carries with it the same meaning and should be given the same interpretation as in Amended Senate Bill No. 1. We find no different legislative intent which would require a different interpretation. This overall $900.00 limitation on all increases is intended to equalize the salaries of various employees. In House Bill No. 484 the intention of the Legislature is reflected in the phraseology used in the two $900.00 limitation provisions in the proviso. In the first provision the $900.00 limitation expressly and definitely applies only to increases “prescribed herein,” meaning legislative increases. ■ In the second $900.00 limitation provision the words “prescribed herein” are omitted. The Legislature must have had a reason for such omission. This omission discloses an intention of the Legislature to give the second $900.00 limitation a different application.

The relator received a merit raise of $200.00 and was granted legislative increases which amounted to $900.00, making an overall increase of $1,100.00. However, since the Legislature placed a $900.00 maximum on all increases, legislative as well as merit increases, he was entitled to receive increases to the extent of $900.00 per annum and no more. Under the facts stated he has received all that he was entitled to under the law.

Finding no error in the record prejudicial to the rights of the relator the judgment of the trial court is affirmed.

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


text:
    DAVIS, Plaintiff-Appellant, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4484.
    Decided January 30, 1951.
    John H. Winkler, Russ Bothwell, Columbus, for plaintiff - appellant.
    Carl H. Valentine, Columbus, for defendant-appellee.
   OPINION

By THE COURT.

The question presented by this appeal is whether the conditions of a certain policy of insurance have been complied with. The policy insured the life of one William L. Davis, Jr., and also contained a provision for additional benefits in the event of death by accidental means as defined therein and payable subject to the provisions of the policy. One of the provisions of the policy is “upon receipt at the home office of due proof that the death of the insured occurred as a result, * * * of bodily injuries effected solely through external, violent and accidental means, the company will pay, subject to the provisions hereof and to the conditions and exceptions specified below, the amount of benefit in event of death by accidental means specified on the first page of this policy.”

A further condition and exception stipulated is that “no such benefit shall be payable if such death results (a) from self-destruction while sane or insane, * *

The record reveals that in attempting to comply with the provisions of the policy the plaintiff filed with the defendant Plaintiff’s Exhibits C-l and C-2. Exhibit C-l was claimant’s statement and proof of death, assigning “hemorrhage” as the cause thereof. Plaintiff’s Exhibit C-2 is a copy of the death certificate, containing the following information: “Cause of death — hemorrhage. Due to self-inflicted gun shot” * * * caused by “acute depression mental.” It further provides that death was due to external causes, to wit, “suicide.”

This consists of all the information given to the defendant prior to filing the suit concerning the manner in which the insured met his death. It will be noted that the information makes no suggesion of an accidental death. It is true that it states that death was caused by gunshot wound, but that the same was self-inflicted due to mental depression, and that the same was suicide. Therefore no claim was ever made to the defendant that the death was caused by accidental means in accordance with the terms of the policy. The filing of such a claim is a condition precedent to recovery unless there has been a waiver or estoppel with reference thereto. Krasny v. Metropolitan Life Insurance Co., 143 Oh St 284; 22 O. Jur. 729; 46 C. J. S. 396; 170 A. L. R. 1266. The term “due proof” of death by external, violent and accidental means as specified in the policy requires only prima facie evidence of such facts and does not require such certainty of proof of the facts as is required in the proof of such a claim in an action at law in case the claim is rejected by the insurer. Blumenthal v. Metropolitan Life Insurance Co., 143 Oh St 464; but the information given to the defendant prior to the instituting of the action was not sufficient to establish a prima facie case that the death was caused solely through external, violent and accidental means.

We are therefore of the opinion that the trial court did not err in instructing the jury to return a verdict in favor of the defendant at the close of the plaintiff’s case.

The judgment will be affirmed.

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