author: By LEACH, J.

text:
    MOORE, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION TERNSTEDT DIVISION et, Defendants-Appellees.
    Common Pleas Court, Franklin County.
    No. 196,297.
    Decided May 21, 1957.
    Leslie D. Strickler, Cincinnati, for plaintiff-appellant.
    Vorys. Sater, Seymour & Pease, Columbus, for appellee, General Motors Corp.
    Wilfiam Saxbe, Atty. Genl., John R. Barrett. Asst. Atty. Genl., Columbus, for appellee, Administrator of the Bureau of Workmen’s Compensation.
   OPINION

By LEACH, J.

On October 5, 1956, notice of appeal was filed in this Court in which Frances Moore, hereinafter designated as claimant, gave notice of appeal from a ruling of the Administrator of the Bureau of Workmen’s Compensation. It appears from the notice of appeal that on August 24, 1956, the Administrator on reconsideration ordered that the claimant’s claim be disallowed for the reason that claimant’s disability was not the result of an injury sustained in the course of and arising out of employment. The notice of appeal of October 5, 1956, was unsigned and on October 17, 1956, an amended notice of appeal signed by counsel for the claimant was filed, being identical in substance.

This case is now before the Court on motion to dismiss the appeal, filed by both the employer General Motors Corporation, and by the Administrator.

Prior to October 5, 1955, Workmen’s Compensation Claims were handled entirely by the Industrial Commission. On that date the Bureau of Workmen’s Compensation was created. By the provisions of §4121.12 R. C., the Bureau is administered by the Administrator of Workmen’s Compensation and by the provisions of §4121.121 R. C., the Administrator is responsible for the discharge of all administrative duties imposed upon the Industrial Commission in Chapter 4123 R. C.

Under the Workmen’s Compensation Law as amended effective October 5, 1955, an appeal was provided from the decision of the Administrator to one of the newly created Regional Boards of Review, the statute providing for the filing of a notice of appeal from the decision of the Administrator within 20 days after the date of mailing. Sec. 4123.516 R. C. This same statute authorized an appeal from the Regional Board of Review to the Commission by filing of a Notice of Appeal within 20 days after the date of the mailing of the decision of the Regional Board of Review.

The only authorization for an appeal to the Court of Common Pleas is contained in §4123.519 R. C., which provides in part as follows:

“The claimant or the employer may appeal a decision of the industrial commission in any injury case, other than a decision as to the extent of disability, to the court of common pleas of the county in which the injury was inflicted or in which the contract of employment was made if the injury occurred outside the state. Like appeal may be taken from a decision of a regional board from which the commission has refused to permit an appeal to the commission. Notice of such appeal shall be filed by the appellant with the commission and the court of common pleas within sixty days after the date of mailing of the decision of the commission appealed from or the date of mailing of the order of the commission refusing to permit an appeal from a regional board of review.” (Emphasis added.)

It will be noted that this statute provides for an appeal to the Common Pleas Court only from (1) a decision of the Industrial Commission in any injury case, etc., and (2) a decision of a Regional Board from winch, the Commission has refused to permit an appeal to the Commission,

Claimant, however, directs our attention to the provisions of §4121.121 R. C., which reads in part as follows:

“The administrator of the bureau of workmen’s compensation shall be responsible for the discharge of all administrative duties imposed upon the industrial commission in Chapter 4123 R. C., and in the discharge thereof:
“The acts of the administrator or of one or more of his deputies within the scope of the authority conferred upon them by the administrator and the acts of a regional board of review are acts of the commission unless modified or set aside under the provisions of Chapter 4123 R. C.”

Claimant asserts that by virtue of this language of §4121.121 R. C., the act of the Administrator herein is “a decision of the industrial commission” within the purview of such language in the first sentence of §4123.519 R. C. We do not agree with such assertion.

It is fundamental, of course, that the primary rule in the construction ana interpretation of statutes is to arrive at the intention of the legislature and that in reaching such intention, many different tests may be applied as an aid in such construction. 37 O. Jur. 480.

If, giving to its broadest scope, the contention of the claimant that the act of the Administrator is the act of the Commision, within the intendment of §4123.519 R. C., is accepted, it would appear that the legislature, in spite of the language actually employed,' intended §4123.519 R. C., to be read as follows:

“The claimant or the employer may appeal a decision of the industrial commission, the regional board, or the administrator in any injury claim, other than a decision as to the extent of disability, to the court of common pleas * * *. Like appeal may be taken from a decision of the regional board from which the commission, the regional board, or the administrator has refused to permit an appeal to the commission, the regional board, or the administrator. Notice of such appeal shall be filed by the appellant with the commission, and the court of common pleas within sixty days after the date of mailing of the decision of the commission, the regional board or the administrator appealed from or the date of mailing of the order of the commission, the regional board, or the administrator refusing to permit an appeal from a regional board of review.” (Emphasized matter added.)

We think it clear that the legislature had no such intent. Obviously there cannot be an appeal from a Regional Board to the Administrator or to another Regional Board. And yet, if we were to accept the premise that any act of the Administrator or the Regional Board is an act of the Commission because of the language of §4121.121 R. C., such a result would follow.

As heretofore stated, prior to October 5, 1955, the entire administration of the Workmen’s Compensation laws was in the Industrial Commission. In the process of dividing responsibility between the Commission and the newly created offices of Administrator and Regional Board of Review and making other changes, the legislature amended three sections and added four new sections to Chapter 4121 R. C., and amended seventeen sections, added thirty-eight new sections and repealed three former sections oí Chapter 4123 R. C. Seventy-nine sections of Chapter 4123 R.C., were left unamended, many of which continued to refer to acts to be performed by the commission, although due to the present division of authority between the Administrator and the Commission, it is now apparent that such authority is lodged in the Administrator. Rather than amending all of such sections to substitute the word “administrator” for “commission,” the legislature chose to accomplish the same resuit by the language of §4121.121 R. C., that the “administrator * * * shall be responsible for the discharge of all administrative duties imposed upon the industrial commission in Chapter 4123 R. C., and in the discharge thereof * * *. The acts of the administrator * * * are acts of the commission * * *.”

While such a system of amendment leaves much to be desired from the point of view of clarity, we think it clear that the legislature intended merely to authorize the Administrator to perform these administrative duties formerly lodged in the Commission and not specifically changed by amendatory language. On the other hand, we think it equally clear that such language was not intended to have reference to the word “commission” as contained in the newly enacted or newly amended sections of Chapter 4123 R. C. A careful examination of the language contained in such newly enacted or amended sections reveals that throughout such sections we find references to “commission” or to “administrator” which obviously are used in their literal sense. It is quite apparent that in such newly enacted or amended sections we cannot substitute the word “commission” for “administrator” wherever the latter word appears, without doing violence to any semblance of a legislative scheme of division of authority between the Administrator, the Regional Board and the Commission.

As heretofore pointed out, the word “commission” in the language of §4123.519 R. C., permitting a like appeal “from a decision of the regional board from which the commission has refused to permit an appeal to the commission,” obviously has reference to the Commission itself and not to the act of the Administrator as being the “acts of the commission.” Under the rule of noscitur a sociis, it would seem that the other uses of the word “commission” in this same statute would have the same meaning. This same conclusion would also be reached by the application of the principle that the specific language of a statute dealing with the subject matter in question, here the subject matter of appeal governs over the general language of another statute.

Our attention also has been directed to the case of Wine v. Summer and Co., No. 194,836, in which another branch of this Court held that an appeal could be taken to the Common Pleas Court directly from the decision of the Regional Board of Review without any attempt to appeal to the Industrial Commission from the decision of the Regional Board. The Court in the Wine case predicated its decision upon the provisions of §4123.516 R. C., which provides that “The decision of a regional board of review shall be the decision of the commission unless the commission upon application of the administrator, the claimant or the employer, made within twenty days after the date of mailing of the decision of the regional board of review allows an appeal to the commission.”

Based upon this language the Court in the Wine case concluded that a decision of the Regional Board of Review, after 20 days, became “a decision of the Industrial commission” within the meaning of §4123.519 R. C., as contained in the first sentence of such section.

The employer contends that the Wine case is in error and that in any event it is distinguishable since there the appeal to this Court was from the decision of the Regional Board of Review while here the appeal is from the decision of the Administrator. As to the claim that the Wine case is m error, it is interesting to note that the counsel for the employer herein represented the appellant in the Wine case and successfully urged upon the Court the exact argument which they now contend is in error.

Without regard to whether an appeal may be taken directly from the Regional Board of Review to this Court where the Commission has not refused to permit an appeal, we believe that no such appeal can be taken to this Court directly from the action or decision of the Administrator.

The language of paragraph “I” of §4121.121 R. C., is distinguishable from the language relative to the order of the Regional Board of Review becoming the order of the Commission as contained in §4123.516 R. C., since in the scheme of arrangement of the statutes, the latter is contained in á statute pertaining to appeal after the action of the Administrator while the provisions of §4121.121 R. C., clearly pertain to division of authority between the Administrator on the administrative level and the Regional Board of Review and the Industrial Commission on the appellate level.

While the specific question now before this Court was not involved in State, ex rel. Federated Department Stores, Inc. v. Brown, 165 Oh St 521, we note that the second paragraph of the syllabus reads in part:

“2. Under §4123.513 R. C., a claimant or an employer may appeal from a decision of the Industrial Commission in any injury case, other than a decision as to the extent of disability, to the Court of Common Pleas of the county in which the injury was inflicted or in which the contract of employment was made if the injury occurred outside the state. Like appeal may be taken from a decision of a Regional Board of Review from which the commission has refused to permit an appeal to itself. * * *"

We note from the opinion that the Court referred to the “administrator,” the “Regional Board of Review” and the “commission” as separate entities. Thus its reference in the syllabus to the “Industrial Commission” could hardly be considered as including the Administrator.

Finding as v/e do that this Court has no jurisdiction to entertain an appeal from the decision of the Administrator of the Bureau of Workmen’s Compensation, the motions to dismiss the appeal, filed both by the employer and by the Administrator are sustained, and the appeal dismissed at the cost of the appellant. Entry may be prepared accordingly.


source: Caselaw Access Project

author: By MILLER, J.

license: Public Domain

text:
    MOORE, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION TERNSTEDT DIVISION et, Defendants-Appellees.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5716.
    Decided October 16, 1957.
    Leslie D. Stickler, Cincinnati, for plaintiff-appellant.
    Vorys, Sater, Seymour & Pease, Russell P. Herrold, Jr., of Counsel, Columbus for defendant-appellee, General Motors Corporation.
    William Saxbe, Atty. Genl., John R. Barrett, Daniel B. Quillin, Asst. Attys. Genl., Columbus, for defendant-appellee, Administrator of Bureau of Workmen’s Compensation.
   OPINION

By MILLER, J.

This is a law appeal from a judgment of the Common Pleas Court dismissing the appeal for the reason that the court had no jurisdiction to entertain the same. The appeal is from an order of the Administrator of the Bureau of Workmen’s Compensation, who upon a rehearing denied the appellant’s claim for the reason that the disability was not the result of an injury sustained in the course of and arising out of her employment.

The only authorization for an appeal to the Court of Common Pleas is found in §4123.519 R. C., which permits an appeal from a decision of the Industrial Commission or from a Regional Board under certain conditions.

Judge Leach in a lengthy and well considered opinion held that the cited section of the Code did not authorize ah appeal to the Common Pleas Court from a decision of the Administrator of the Bureau, and for that reason sustained the motions of the employer and the administrator and dismissed the appeal.

We are in full accord with the conclusions of the trial court and will adopt its opinion as our own.

The judgment is affirmed.

PETREE, PJ, BRYANT, J, concur.


author: By MILLER, PJ.

text:
    DORSEY, Plaintiff-Appellant, v. PEARCE, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5490.
    Decided October 22, 1956.

      James F. Little, Columbus, for plaintiff-appellant.
    Robert R. Shaw, Columbus, for defendant-appellee.
   OPINION

By MILLER, PJ.

This is a law appeal from a judgment of the Municipal Court of Columbus, Ohio, in favor of the defendant for costs of suit.

The record reveals that the action was instituted on October 27, 1949, seeking restitution of certain real property and also damages in the sum of one hundred dollars, incurred by the plaintiff by reason of the -unlawful and forcible detention of said premises.” It appears that service of process was duly had, but no answer was filed within rule and that on November 4, 1949, a default judgment was rendered for the plaintiff for restitution of the premises and also for damages in the sum of one hundred dollars and costs. This judgment, however, was vacated on the same day by virtue of the following order:

“Above judgment of this date, 11/4/49, is hereby ordered vacated and held for naught; case to be reassigned * * etc. Counsel for the appellant urges that since it does not appear that a motion was filed to vacate said default judgment that the same should not have been vacated and that to do so constituted prejudicial error. It is a fundamental principle of law that a court retains jurisdiction over its own orders during term and the presumption of regularity attends, that it acted upon good cause being shown. Counsel relies upon §11634 GC (§2325.04 R. C.), which requires that a proceeding to correct mistake or omission of the clerk or irregularity in the obtaining of judgment shall be by motion. However, this section has reference to the vacating of a judgment; after term under §2325.01 R. C. The error complained of was made during term. Hence, §2325.04 R. C., has no application to the facts here presented.

The record further reveals that on August 22, 1950, a default judgment was rendered for the plaintiff for eighty dollars and costs. No action was taken on this judgment until July 13, 1955, when an affidavit in aid of execution was filed. Shortly thereafter, on July 22, 1955, the defendant filed a petition to vacate said judgment. It is urged that proper service was not had upon the plaintiff, but he entered his appearance by filing a motion to strike the petition from the files for the reason that it was not properly verified. Therefore, he was properly before the court on the petition to vacate. The verification was in the following words: “Robert R. Shaw, being first duly sworn, deposes and says that he is attorney for the defendant herein; that the facts set forth in the foregoing petition are true as he verily believes.” It is to be noted that the verification is by the attorney for the defendant, and that it does not aver that the facts are within the personal knowledge of the affiant. Such a’verification is required by §2309.53 R. C., when it is made by an attorney of one of the parties. This motion was erroneously overruled. However, the plaintiff did not stand upon this error and permit final judgment to be ordered but waived the same by filing a demurrer to the petition, which was also overruled, then filing an answer to the petition to vacate. The same came on for hearing on October 10, 1955, at whicn time the court vacated the judgment and ordered the tendered answer filed. Plaintiff demurred to the answer which was overruled and again waived the error, if any, on said ruling on the demurrer by filing a reply on July 15, 1955. The case then came on for trial and on the pleadings and the evidence the court found for the defendant. No errors are assigned as having been committed during the course of the trial or that the judgment is not supported by the proper degree of proof. It should be noted that this judgment is the only one which had been entered on the merits of the case. Both of the prior default judgments for one hundred dollars and eighty dollars, respectively, were irregularly entered which is another reason why the petition to vacate judgment under §2325.01(C) R. C., should have been allowed. The second cause of action set forth in' the plaintiff’s petition was for damages in an unliquidated amount. Sec. 2311.12 R. C., does not authorize a default judgment on such a claim when the defendant is in default for answer. It will be noted that this section provides for a default judgment only upon factual situations which differ from those in the instant case. In the case of Star Building & Loan Co. v. Smith Co., 12 Abs 162, the action was one for an unliquidated amount and the court held that the taking of default judgment for the same constituted an irregularity upon which the judgment might be vacated. The principle is well set forth in the syllabus, to wit:

“In an action sounding in tort, a judgment by default for the amount claimed in the petition is properly set aside on motion of the defendant at a succeeding term, where it appears that no damages were assessed in accordance with the provisions of §11593 GC.”

We find no prejudicial error in the record and find further that substantial justice has been served.

The judgment will be affirmed.

HORNBECK and WISEMAN, JJ, concur.


author: Per CURIAM.

text:
    BENTZ, Plaintiff-Appellee, v. BENTZ, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5892.
    Decided June 17, 1958.
    Charles J. Chastang, Columbus, for plaintiff-appellee.
    Clayton W. Rose, Jr., John J. Chester, Jr., Columbus, for defendant-appellant.
   OPINION

Per CURIAM.

This cause came on to be heard on the motion of plaintiff, appellee herein, filed on March 28, 1958, which is as follows:

“Now comes plaintiff-appellee and through her counsel, Charles J. Chastang. respectfully moves the Court for an order striking the purported bill of exceptions filed herein on March 6, 1958, from the file and thereupon to affirm the orders and judgment of the trial court.”

Appellee sets up in her brief four steps which, she claims, are necessary to satisfy the statutory obligations set forth in §§2321.05 to 2321.12 inclusive, R. C., relative to a bill of exceptions. Appellee urges that Point No. 3 was not complied with and asks that the bill of exceptions be stricken from the file and that the court affirm the orders and judgment of the trial court.

Point No. 3, as set out on Page 2 of appellee’s brief, reads as follows:

“3. Appellant was required to file the bill of exceptions as allowed and signed by the trial judge in the trial court.”

The bill of exceptions, as shown on Page 1465 thereof, bears the following certificate of the trial judge:

“And thereupon, on the 18 day of February, 1958, the Defendant filed this his Bill of Exceptions herein.
- “And thereupon the Clerk of said Court having notified the Plaintiff of tne filing of this Bill of Exceptions and no objection or amendment to said Bill of Exceptions having been filed by said Plaintiff, said Court did on the 28 day of February, A. D., 1958, certify that the foregoing was all of the evidence offered, introduced and admitted on behalf of the Plaintiff and on behalf of the Defendant on this trial of this cause, and did allow, sign and seal this Bill of Exceptions as provided by the statute, all of which is accordingly done as of .said January Term A. D. 1958 of said Court.
“/s/ FOGLE
JUDGE”

In connection with this certificate, it might be well to consider §2321.07 R. C., which reads as follows:

“The trial judge, upon the receipt of a bill of exceptions, shall indorse thereon the date it was received, and within five days thereafter correct it. if necessary, allow and sign such bill, and immediately transmit it to the office of the clerk of the court from whom it was received, with any amendment or objections thereto.”

The notice of appeal in this case was filed by defendant, appellant herein, on January 21, 1958. The bill of exceptions was filed in the Court of Common Pleas on February 18, 1958; was allowed on February 28 ten days later; and bears the stamp mark as being filed in the Court of Appeals on March 6, 1958.

It is our opinion that in view of the statutory procedure set forth in §2321.07 R. C., making it the duty of the trial judge after signing a bill of exceptions to immediately transmit it to the office of the clerk of the court from whom it was received, with any amendments or objections thereto, the failure of the bill of exceptions to positively show a re-stamping or refiling of the bill of exceptions does not warrant this court in sustaining the motion filed herein. It is plain that the procedures for getting a correct bill of exceptions signed and allowed have been followed, and no ministerial duty which might devolve upon the clerk with reference to stamping the bill of exceptions again after it had been signed and allowed should deprive the appellant of his day in court.

This position is strengthened when we consider §2505.04 R. C., which provides in part, that no step required to be taken subsequent to the perfection of the appeal is jurisdictional and, further, that an appeal is perfected when written notice of appeal is filed with the lower court.

The motion will, therefore, be overruled in its entirety.

Motion overruled.

PETREE, PJ, BRYANT and MILLER, JJ, concur.


text:
    SECURITY BENEFIT LIFE INSURANCE COMPANY, Plaintiff-Appellee, v. ROBINSON, Superintendent, Division of Insurance, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5746.
    Decided June 24, 1958.
    Wright, Harlor, Purpus, Morris & Arnold, Earl F. Morris, Harry Wright, III, of Counsel, Columbus, for plaintiff-appellee.
    William Saxbe, Atty. Genl., Huntington S. Carlile, First Asst. Atty. Genl., Richard O. Michael, Asst. Atty. Genl., Columbus, for defendant-appellant.
   OPINION

By MILLER, J.

This is a law appeal from a declaratory judgment of the Common Pleas Court wherein it was adjudged and decreed that under §§5729.02 and 5729.03 R. C., the defendant-appellant herein, Walter Robinson, as Superintendent of Insurance did not have the authority to levy and collect taxes upon the payments made to plaintiff-appellee by holders of fraternal benefit certificates issued prior to its transformation from a fraternal benefit society to a mutual reserve life insurance company, and enjoined the defendant from taking any action to collect such taxes.

The record reveals that the Security Benefit Association was organized and operated as a fraternal benefit society under the laws of Kansas prior to 1950. As such it maintained a lodge system, had a ritual, a representative form of government and maintained an orphanage, a hospital and a home for the aged. The association had members in Ohio who had insurance certificates issued by it to them. It existed in Kansas and in Ohio, only as a fraternal benefit society and no tax was asserted in Ohio against it for the premiums or assessments paid by the Ohio members of the society.

In 1949, however, the society’s board of directors determined that it was impossible to continue the corporatin as a fraternal benefit society and that it was in the best interests of the members to transform the corporation into a mutual life insurance company. The board of directors, on April 20, 1949, adopted the following resolution:

“WHEREAS, it has become impossible to conduct the affairs of the corporation as a fraternal benefit society organized on the lodge system with ritualistic form of work; and
“WHEREAS, it is the consensus of this Board that the interests of the members of the corporation would best be served by transforming the corporation into a mutual life insurance company;
“NOW, THEREFORE, BE IT RESOLVED, that the officers of the corporation be and they are hereby authorized, directed and empowered to take such steps as they may deem necessary and advisable to transform the corporation into a mutual life insurance company, all in accordance with the provisions of the Insuraiice Code of the State of Kansas.”

Under the laws of Kansas a fraternal benefit society may be reorganized into a mutual life insurance company, which was done, effective January 2, 1950. Since the reorganization as a mutual life insurance company, the Security Benefit Life Insurance Company has abandoned its lodge system and ritual. There are no longer any lodges or supreme governing body with subordinate lodges in existence and the company does not have a representative form of government. Neither does it maintain an orphanage or an old age home. It does maintain, as a charity, a hospital, but the former members of the society have no contractual rights as former members to the use of the same. The new company has taken over the assets and assumed the obligations on the insurance certificates which were issued by the old fraternal society. However, these, certificates or policies are now no longer subject to any control or change by the action of the former society, whereas, before the reorganization the fraternal policyholders had the protection of the provision that the other members could be assessed if the reserves of the corporation are impaired or deficient. This right was irrevocably waived on reorganization and new premium rates for policyholders were computed.

Since the reorganization the new mutual life insurance company has been licensed in Kansas and in Ohio, solely as a mutual life insurance company and not as a fraternal benefit society.

The corporation has paid and is paying the tax imposed upon it by $§5729.02 and 5729.03 R. C., based upon the amount of premiums or assessments on the new business it has written in Ohio, since it became a mutual company, but it has not included in determining the amount of tax due, the amount of premiums or assessments received from policyholders of the policies or certificates issued before the company changed into a mutual company.

The Division of Insurance upon discovering that these premiums and assessments were not being included in determining the amount of tax due, billed the company for the additional amount. This action was then instituted for a declaratory judgment, claiming that it was exempt from paying a tax on the old business by reason of §3921.39 R. C., and asking that the defendant be enjoined from collecting said taxes or taking any steps to revoke the plaintiff’s license to do business as a legal reserve life insurance company in this state. An examinatio'n of §5729.02 and 5729.03 R. C., reveals that a certain tax is imposed upon all foreign insurance companies for the privilege of doing business in Ohio, which is based upon the amount of premium paid on policies of insurance by residents of Ohio. However, §3921.39 R. C., exempts from such taxes those insurance companies which can qualify as fraternal benefit societies. This section provides:

“Fraternal benefit societies shall be governed by §§3921.01 to 3921.45, inclusive. R. C., and shall be exempt from all insurance laws of this state, not only in governmental relations with the state, but for every other purpose, and no law enacted after June 14, 1911, shall apply to them, unless they are expressly designated therein.”

The question immediately presented is whether or not the Security Benefit Life Insurance Company continued to be a fraternal society as to the former certificate holders after the transformation to a mutual legal reserve premium life insurance company. It is conceded that prior to such organization it qualified as such. Sec. 3921.01, et seq, R. C., spells out quite clearly what the attributes of a fraternal benefit society must be in order to qualify as such. Sec. 3921.01 R. C., reads as follows:

“Any corporation, society, order, or voluntary association, without capital stock, organized and carried on solely for the mutual benefit of its members and their beneficiaries and not for profit, and having a lodge system with ritualistic form of work and representative form of government, and which makes provision for the payment of benefits in accordance with §3921.09 R. C., is hereby declared to be a fraternal benefit society.”

As stated previously, since the reorganization the plaintiff no longer operates under a lodge system with ritualistic form of work and representative form of government. As the plaintiff is claiming the benefit of the exemption to fraternal societies, the burden is upon it to clearly establish that it is such an organization. The one who claims an exemption from taxation must bring himself within the exemption by clear and unmistakable terms. It is said in 38 O. Jur. 852, Section 114:

“* * * The fact remains, however, that it is the theory of government that all property should bear its equal share of the cost and expense of government, and, since the law does not favor exemption of property from taxation, before particular property can be exempt it must clearly fall within the class of property authorized to be exempt by the Constitution. Again, since the sole power to exempt from taxation is vested in the general assembly, except as the Constitution itself makes certain exemptions, and it has provided for the taxing of all property ‘except only such property as may be expressly exempted,’ the accepted rule is that an exemption cannot be presumed, or implied and read into a statute; or, stated conversely, to have an effective exemption, it must be expressed in clear and unmistakable terms, or at least with reasonable certainty, as the laws relating to exemption from taxation, being in derogation of equal rights, are strictly construed as against such exemption and in favor of the taxing authorities.”

It is our conclusion that the evidence discloses that the plaintiff ceased to be a fraternal benefit society after the reorganization and is therefore not entitled to an exemption from the taxes • imposed upon it by virtue of §§5729.02 and 5729.03 R. C. Those sections read as follows:

Sec. 5729.02 R. C.:

“Every insurance company incorporated by the authority of another state or government shall set forth in its annual statement to the superintendent of insurance the gross amount of premiums received by it from policies covering risks within this state during the preceding calendar year, less return premiums paid for cancellations and considerations received for reinsurance of risks within this state, provided that dividends paid or otherwise allowed to policyholders shall not be deducted except as provided in §5729.04 R. C. If the superintendent has reason to suspect the correctness of such statement he may make an examination at the expense of the state of the books of such company or its agents for the purpose of verifying them.”

Sec. 5729.03 R. C.:

“If the superintendent of insurance finds the annual statement required by §5729.02 R. C., to be correct, he shall compute an amount of two and one-half per cent of the balance of such gross amount, after deducting such return premiums and considerations received for reinsurance, and charge such amount to such company as a tax upon the business done by it in this state for the period covered by such annual statement. All taxes collected pursuant to this section shall be credited to the general revenue fund.”

The trial court was of the opinion that the above quoted sections were ambiguous and required interpretation, stating at page 5 of the opinion:

“The ambiguity arises by virtue of the fact that in these two sections the General Assembly uses the terms premiums on policies while in the chapter dealing with fraternal benefit societies, it makes no mention of policies but refers only to certificates and refers to contributions and assessments rather than premiums. In spite of the fact that counsel for the plaintiff have conceded that the amounts received by the plaintiff upon the certificates are premiums received upon policies, nevertheless that concession does not assist the Court in resolving the am•■biguity nor does it eliminate the ambiguity. If the legislature intended that a legal reserve life insurance company, transformed from a fraternal benefit society, should pay a tax on the premiums received by it from certificates during the preceding year, such intention is difficult to ascertain, to say the least.”

The court then proceeded to interpret the statute in favor of the plaintiff, basing the same upon the theory that it has always been the policy of this state to exempt fraternal benefit associations from taxation. We concede that such has been the policy of the state, but the plaintiff no longer qualifies as such an association. To us the taxing statutes cited supra appear to be clear, unambiguous and have a definite meaning. Sec. 5729.02 R. C., sets out who must file the annual statement and what it shall contain. It applies to insurance companies incorporated by the authority of another state; it must set forth in its annual statement the gross amount of premiums less certain items derived from policies covering risks within the state. There seems to be no dispute that these requirements are all met.

The plaintiff-appellee admits in his petition that it is an insurance company incorporated under Kansas law. There is no dispute as to the amount claimed due nor that it is based upon risks within the state and the amounts paid by the holders of the security benefit certificates are premiums from policies within the meaning of the statute. Sec. 5729.03 R. C., requires the superintendent of insurance to compute an amount of 2-V2 % of the balance of the gross amount less certain deductions contained in the company’s annual statement, and charge such amount to the company as a tax on the business done by it in this state. The intention of the Legislature in enacting a statute must be determined from a proper interpretation of the language used as the language of a statute is its most natural expositor. It is said in 37 O. Jur. 514, Section 278:

“* * * where the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation. To interpret what is already plain is not interpretation, but legislation, which is not the function of the courts, but of the general assembly. Some statutes, it has been declared, are so clear that an attempt to make them clearer is a vain labor and tends only to obscurity. An unambiguous statute is to be applied, not interpreted. But where the court is confronted with an ambiguity, the rules of construction are invoked to ascertain the true legislative intent.”

Only recently our Supreme Court decided the case of Katz v. Dept. of Liquor Control, 166 Oh St 229, wherein Judge Herbert made the following statement at page 231, which appears to be appropriate:

“It is too well established to require citation of authority that we look primarily for the intention of the Legislature as it is expressed in the enactment language which it adopted. Where the language itself clearly expresses the legislative intent, the courts need look no further.
“It is not our province to guess what the Legislature intended but rather to ascertain the intent of the language which it did adopt, * *

From the language used in §§5729.02 and 5729.03 R. C., we conclude that the tax provided therein is imposed upon this plaintiff.

The judgment will be reversed as being contrary to law and re-' manded to the trial court with instructions to enter its judgment in accordance with this opinion, since sufficient uncontraverted facts appear in the record to entitle the defendant to the relief sought in its answer.

PETREE, PJ, BRYANT, J, concur.


author: By KOVACHY, J.

text:
    STATE, Plaintiff-Appellant, v. ZDOVC, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24487.
    Decided July 10, 1958.

      N. A. Brinsky, for plaintiff-appellant.
    R. E. Reichert, for defendant-appellee.
   OPINION

By KOVACHY, J.

The State of Ohio, the plaintiff in a criminal case, brings this appeal on questions of law from a judgment of the Parma Municipal Court wherein a motion made, sua sponte, by the court to quash the citation, summons, affidavit and warrant was granted and the defendant discharged.

The record discloses that the defendant was arrested on January 7, 1958, by a police officer of the City of Parma, on view, for allegedly driving his automobile while under the influence of intoxicating liquor within the corporate limits of the City of Brooklyn. An “arrest affidavit” with full details was filled out by the arresting officer, charging the defendant with violating §4511.19 R. C., and filed with the Clerk of the Parma Municipal Court. No jurat appears thereon. Court appearance was set for January 21, 1958 at 9:00 A. M. Bond was set at $200.

The defendant made his appearance in court, without counsel, on January 21 and entered a plea of “Not Guilty.” The trial commenced and the arresting officer, upon being duly sworn, took the witness stand and testified that he was patrolling Brookpark Road in Parma when he observed the defendant driving “in a suspicious manner” on the Brooklyn side of said Brookpark Road, that he thereupon arrested the defendant and detained him until he could obtain a warrant from a court of competent jurisdiction. The court, at this point, interrupted the trial to raise the question of the legality of the arrest of the defendant in the City of Brooklyn by a police officer of the City of Parma and continued the case for further hearing to January 23. The record shows that on January 23, an affidavit, proper in form, was executed and filed with the Clerk of the Parma Municipal Court and a warrant issued thereon, charging the defendant with violating §4511.19 R. C., “in that he did operate a Chev. 2-door bearing license plates AM 6615 on Brookpark Road while being under the influence of alcohol.” The record also shows that the defendant appeared on January 23 for disposition of his case but that no witness took the stand at the hearing. Rather, the court made a statement, in open court, to the effect that it intended to discharge the defendant for the reason “that a police officer of a municipal corporation has no power or authority to arrest or detain anyone found violating a state law, constituting a misdemeanor, outside of the corporate limits of the municipality which he serves.” The prosecutor, thereupon, asked for leave to file a brief, which was allowed and the case passed for such purpose. The entry on the journal reads: “Court’s own motion entered for dismissal. Prosecutor to file brief on or before January 30, 1958.” Another leave was given the prosecutor until February 4, 1958 on which date this entry appears on the journal:

“After full consideration of brief filed on behalf of the City of Parma the court on its motion hereby quashes the citation, summons, and affidavit and warrant and further orders that the defendant be discharged.”

The State of Ohio here contends that this ruling of the court was contrary to law and that the court erred in discharging the defendant. It maintains that police officers of a municipality are state officers, who derive their authority from the state, and are authorized under §2935.03 R. C., to “arrest and detain a person found violating a lav/ of this state,” anywhere in the state. Counsel representing the trial court, on the other hand, maintains that a police officer of one municipal corporation has no authority to arrest or detain without a warrant “a person found violating a law of this State, to wit: a misdemeanor, and more particularly a violation of a motor vehicle law, which violation occurred entirely .within the corporate limits of another municipal corporation.”

The Parma Municipal Court is a creature of the Legislature of the State of Ohio and its jurisdiction is consequently found in the statutes enacted in relation thereto. Its Territorial Jurisdiction is found in §1901.02 R. C., effective June 17, 1957, and reads as follows:

“The municipal courts, established by §1901.01 R. C., have jurisdiction within the corporate limits of their respective municipal corporations and are courts of record. * * * The municipal courts also have jurisdiction as follows:

The Parma municipal court has jurisdiction within the corporate limits of the municipalities of Parma Heights, Brooklyn, Lindale, North Royalton, Broadview Heights, Seven Hills, and Brooklyn Heights in Cuyahoga county.” (Emphasis ours.)

Its Criminal Jurisdiction is found in §1901.20 R. C.:

“The municipal court has jurisdiction of the violation of any ordinance of any municipal corporation within its territory and of any misdemeanor committed within the limits of its territory. In all such prosecutions and cases, the court shall proceed to a final determination thereof. The court has jurisdiction to hear felony cases committed within its territory and to discharge, recognize, or commit the accused. The court also has jurisdiction within the limits of the county or counties in which its territory is situated of those crimes and offenses which are within the county wide jurisdiction of justices of the peace.”

These sections established beyond question that the Parma Municipal Court has the jurisdiction to prosecute the violation of a misdemeanor, prohibited by state law, that occurs anywhere within its territorial jurisdiction, including the City of Brooklyn.

The law is that the prosecution of a criminal case in our courts commences with the finding of an indictment by a grand jury, the filing of an information by a prosecuting attorney, or the filing of an affidavit by a citizen or peace officer. It is not commenced by or with the arrest of the person. Such arrest may take place before or after 'the filing, with the court, of documents formally instituting the criminal prosecution, depending upon the circumstances of each case.

The syllabus in the case of Britton v. Granger, 13 O. C. C. 281, 7 C. D. 182, states the law as follows:

“Where an officer finds one violating a law or ordinance, and arrests him, and thereafter files affidavit charging him with the offense he was found committing, the prosecution begins with the filing of the affidavit and not with the arrest.”

The record shows that the “arrest affidavit” filed with the clerk on the day of the arrest was not sworn to when signed by the arresting officer, and, therefore, it was not an affidavit. A proper affidavit was first filed with the clerk on January 23, 1958. It necessarily follows from this state of the record that the charge brought January 7 was of no legal effect, that the plea of “Not Guilty” was without substance ip law, and that the partial hearing on January 21, was without sanetion of law. All proceedings, as a consequence, prior to said January 23. were void ab initio and of no legal effect whatever, and the defendant was not lawfully within the orbit of the court’s power and authority o’n the charge brought against him by the arresting officer until January 23 when a valid affidavit was first filed. The court’s motion to quash and discharge defendant appears on the transcript as of January 23. A motion to quash is directed to a defect apparent upon the face of the record, including defects in the form of an indictment or affidavit, and in the manner in which an offense is charged. Sec. 2941.54 R. C. It is not the correct legal procedure and is clearly improper to question a matter. extrinsic to the record, as here intended. Moreover, as the matter then stood, the defendant had entered a plea of “Not Guilty.” This, likewise, made the motion highly irregular since under the law an accused “waives all defects which may be excepted to by a motion to quash or a plea in abatement, by demurring to an indictment, or by pleading in bar or the general issue.” Sec. 2941.59 R. C. This statute applies as well to a criminal charge based on an affidavit. Cincinnati v. Schell, 125 Oh St 57, 180 N. E. 545.

Be that as it may, the motion to quash the citation, summons, affidavit and warrant and to discharge the defendant was granted on the ground that the arrest was illegal. From this it is manifest that the trial court was of the opinion that it lacked jurisdiction to try the defendant, believing the arresting officer to be without authority to arrest the defendant for a violation outside of the municipality he served, though the arrest was on view and for the violation of a state law.

Sec. 2935.03 R. C., authorizing a police officer to arrest a person for a violation of a state law on view without a warrant, reads as follows:

“A sheriff, deputy sheriff, marshal, deputy marshal, watchman, or police officer shall arrest and detain a person found violating a law of this state, or an ordinance of a municipal corporation, until a warrant can be obtained.
“A constable within the limits of the township in which said constable has been appointed or electéd, shall arrest and detain a person found by him in the commission of a misdemeanor, either in violation of a law of this state or an ordinance of a village, until a warrant can be obtained.”

Under the common law, peace officers had no right to arrest a person for a misdemeanor committed in their presence without a warrant, outside of the confines of the territory they served, and this is the law generally followed in the United States today, except in states where it has been changed by statute.

“In the absence of statutory permission, a peace officer, when making an arrest within the state, has authority to make an arrest only within the confines of the geographical unit of which he is an officer.” 6 Corpus Juris Secundúm, 610, Section 12(2).

See also 4 Am. Jur. 35, Sec. 51; 4 Wharton’s Criminal Law and Procedure, 277, Sec. 1614.

Police officers in Ohio, though serving municipalities, are State officers. Laws of the state dictate their appointment, authority, organization, term of office, composition, and control, general duties, hours of work, retirement, pension, removal, etc. Sec. 737.01 et seq, R. C.

In the light of this clearly expressed policy of the state, it may well be that the Legislature intended, by the language employed in the first paragraph of §2935.03 R. C., and the exception stated with respect to Constables in the second paragraph, that police officers be authorized thereby to make arrests for a violation of a state law on view without a warrant anywhere in the state. This question, however interesting, does not come to us for determination in this case for the reason that the method or the means employed for the apprehension and detention of a person charged with committing a criminal offense is immaterial in the prosecution of the person where, as here, the defendant is physically before the court, and the jurisdiction of the court is duly invoked by the filing of a valid affidavit charging an offense that is within its criminal jurisdiction and alleging its commission in a location inside its territorial limits.

The great weight of authority, both in the United States and England, reaching back many years, supports this rule of law with respect to criminal procedure and practice.

In Ex Parte Scott, 4 Man & R. 361, 9 Barn & C. 446 (1829), the British subject was arrested by a marshal of the Kings Bench under a warrant upon an indictment for a misdemeanor in Brussels Belgium, and brought back to England, clearly an illegal arrest. Judge Park stated the applicable law as follows:

“If such a party has been really illegally arrested, he has his remedy for that wrong by action but he is not to be allowed the opportunity of escaping and altogether eluding public justice merely because there was some irregularity in his original apprehension.”

The Supreme Judicial Court of Massachusetts in Commonwealth v. Conlin, 184 Mass. 195, 68 N. E. 207, stated the law in paragraph two of the syllabus:

“2. Where the record on appeal from a conviction for drunkenness showed that defendant was regularly brought before the superior court by virtue of a complaint issued by such court, the fact that she was arrested without a warrant before such complaint was issued, and whether her arrest was legal or illegal was immaterial.”

The Supreme Court of North Carolina in State v. Sutton, 244 N. C. 679. 94 S. E. 2d 797, had the following to say in paragraph one of the syllabus:

“The fact that the arrest of defendant was illegal because municipal police officers pursued defendant and arrested him outside the corporate limits of the municipality does not affect the jurisdiction of the court over the offense for which defendant was arrested, and the court may try defendant on a valid warrant charging him with driving at a speed in excess of 80 miles per hour.”

In 15 Am. Jur., 15, Sec. 317, it is stated:

“As a general rule, the mere fact that the arrest of an accused person is unlawful is of itself no bar to a prosecution on a subsequent indictment or information, by which the court acquires jurisdiction over the person of the defendant.”

See Commonwealth v. Gorman, 288 Mass. 294, 192 N. E. 618; The People v Rowe, 4 Parker’s Criminal Reports, 253; Ker v. Illinois, 119 U. S. 436; 7 S. Ct. 225, 30 L. Ed. 421; State v. May, 57 Kan. 428, 46 P. 709; Commonwealth v. Tay, 170 Mass. 192, 48 N. E. 1086; People v. Miller, 235 Mich. 340, 209 N W. 81; People v. Ostrosky, 95 Misc. 104, 160 N. Y. S. 493, 34 N. Y. Cr. R. 396; State v. McClung, 104 W. V. 330, 140 S. E. 55, 56 A. L. R. 257. For additional authorities in support of the above view, see Annot. 56 A. L. R 260.

We hold, therefore, that the judgment granting the motion to quash the citation, summons, affidavit and warrant and the discharge ,of the defendant was erroneous; that the defendant, under the circumstances shown by this record, has not been in jeopardy; that the defendant is presently properly before the Parma Municipal Court on a charge of violating §4511.19 R. C., on which he has as yet not been arraigned and tried; that the Parma Municipal Court has the jurisdiction and is hereby directed to proceed with the trial of the cause to its final disposition.

Judgment reversed and cause remanded for further proceedings according to law, not inconsistent with this opinion.

Judgment reversed and cause remanded.

SKEEL, PJ, HURD, J, concur.


author: By PETREE, PJ.

text:
    EVERSOLE, Plaintiff-Appellee, v. COLUMBUS (City), Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5720.
    Decided February 11, 1958.
    Rowe. Dunkle & Davis, Arthur L. Rowe, William D. Edwards, of Counsel, Columbus, for plaintiff-appellee.
    Russell Leach, City Atty., John W. E. Bowen, Chief Counsel, Hervey A. Bain, Asst. City Atty., Columbus, for defendant-appellant.
   OPINION

By PETREE, PJ.

This is an appeal on questions of law from the judgment of the Court of Common Pleas of Franklin County in favor of plaintiff, appellee herein, who recovered from defendant, appellant herein, the sum of $2,300.00 and costs upon a verdict rendered by a jury after appellant moved for a directed verdict and from the final order of said court overruling the motion for a new trial.

Appellant sets out four assignments of error which are as follows:

1. The Court of Common Pleas erred in overruling the motion of defendant-appellant for a directed verdict at the close of plaintiffappellee’s case.

2. The Court of Common Pleas erred in overruling the motion of the defendant-appellant for a directed verdict made at the completion of all evidence.

3. The Trial Court of Common Pleas erred in overruling the motion of the defendant for a new trial.

4. The Trial Court of Common Pleas erred in the exclusion of evidence offered by defendant-appellant to the prejudice of defendant-appellant.

The City of Columbus, through its Department of Recreation, was operating a school called the Columbus Arts and Crafts Center at 738 Oak Street, which the appellee, Ruth Eversole, was attending as a student and for which appellee had paid $1.50 to cover the cost of materials and equipment used in the various art classes. Appellee claims that she was injured in a fall and that her injuries were caused solely and proximately by the carelessness and negligence of the appellant in the follow-, ing particulars:

1. In maintaining in said building on said premises for the use of persons being instructed in said class an unlighted and unguarded stairway.

2. In failing and neglecting to properly light the clothes closet in said premises.

3. In inviting the plaintiff to place her coat in an unlighted clothes closet in said premises without first warning the plaintiff of an unlighted stairway in said closet.

The place where the appellee fell was a stairway leading from the floor of a closet where she had been informed by an instructor at the Arts Center that she might find a coat hanger.

The first two assignments of 'error go to the question of whether the court should have directed a verdict in favor of the appellant. It is our opinion that there was sufficient evidence to establish beyond any question that- the activity engaged in by the City of Columbus through its Recreation Department at the time of the injuries complained of was a governmental function. That being so, the case falls squarely under the rule laid down by the Supreme Court of Ohio in Selden v. Cuyahoga Falls, 132 Oh St 223, where the following language is used .in Syllabus 2:

“2. While acting in such governmental capacity a municipality incurs no liability in tort for common-law negligence.”

Unless it were alleged and proved that the condition of the stairway in question, down which appellee fell, constituted a nuisance, she could not recover. In this case there is neither allegation nor proof of nuisance nor defective condition of the closet and stairway in question. In Selden v. Cuyahoga Falls, supra, Syllabi 3 and 4 are as follows:

“3. The term ‘nuisance’ is not synonymous with ‘negligence’ and does not necessarily rest upon the degree of care used, although a nuisance may be and frequently is the consequence of a negligent act.
“4. The provision of §3714 GC, requiring a municipality to keep its public grounds free from nuisance is in derogation of the common law.”
The case before us can be distinguished from that of Gorsuch v. City of Springfield, 43 Abs 83, where the court held:
“The maintenance and operation of a municipal golf course and club house at the election of the city in a municipal park by a golf commission of which the park superintendent was an ex-officio member, whereby the city was benefited by revenue in the nature of privilege fees, etc., with which to make permanent improvements in the park without a levy of taxes for such purpose, is a private and proprietary function as a matter of law under clear and uncontradicted evidence.”

In that case the management and investment of income was under the control of a board or committee in a distinct and separate fund. The case at bar more nearly conforms to the Selden case.

We hold, therefore, that the trial court erred in overruling the motion for a directed verdict at the end of plaintiff’s case and at the end of all the evidence on the ground that the City of Columbus was engaged in a governmental function at the time of the injuries complained of.

In view of our holding that sufficient evidence had been admitted to establish governmental function, we find that there was no error prejudicial to this appellant in the exclusion of additional evidence, covered by assignment of error No. 4.

The question of plaintiff’s contributory negligence and whether it should have been submitted to a jury is one of considerable interest in view of the facts developed in this case. The trial court, we believe, was right in holding that to be a jury question. However, that is not the ground upon which the judgment of the trial court is reversed for its action in overruling the motion for a directed verdict. Assignment of error No. 3 is well taken upon the ground that the city was engaged in a governmental function at the time of the injuries herein complained of. I . '

Inasmuch as we conclude that the evidence clearly established governmental function on behalf of the appellant, City of Columbus, and that the court erred in refusing to direct a verdict for said appellant, this court will render the judgment which the trial court should have rendered and enter judgment for appellant for its costs.

Judgment reversed and judgment for appellant for costs.

BRYANT and MILLER, JJ, concur.


text:
    KANE, Admrx., Appellant, v. EMPLOYERS LIABILITY ASSURANCE CORPORATION, LIMITED et, Appellees.
    United States Court of Appeals, Sixth Circuit.
    No. 13289.
    Decided February 19, 1958.
    Edward J. Utz, Marvin Kleinman, Cincinnati, on brief, for appellant.
    Rendigs, Fry & Kiely, Cincinnati, on brief, for appellee.
    Before ALLEN, McALLISTER and STEWART, Circuit Judges.
   OPINION

Per CURIAM.

This is an appeal from a declaratory judgment holding that a liability insurance policy issued to Earl Schott Inc., did not obligate the insurer with respect to claims against Norman Stephen Sr., or Norman Stephen Jr., growing out of a collision on June 12, 1955, in which an automobile was involved which the latter was driving. The judgment was rendered upon stipulated facts.

Ean Schott, Inc., w'as an automobile dealer, and at the time of the collision the Ohio certificate of title to the vehicle in question was in Schott’s name. A sale of the car to Norman Stephen, Sr., had been negotiated, however, and Schott had delivered possession of it to him. Stephen had made a small down-payment toward the purchase price, and arrangements had been made for extension of credit on the balance. Stephen had signed a note and chattel mortgage.

We perceive no error in the judgment of the district court. It appears that under Ohio law “ownership” of the automobile was in Earl Schott, Inc. Garlick v. McFarland, 1953, 159 Oh St 539, 50 O. O. 445, 113 N. E. (2d) 92; Mielke v. Leeberson, 1948, 150 Oh St 528, 38 O. O. 352, 83 N. E. (2d), 209, 7 A. L. R. (2d), 1342; cf. Workman v. Republic Mut. Ins. Co, 1944. 144 Oh St 37, 28 O. O. 584, 56 N. E. (2d), 190. It is clear, however, that at the time of the collision Norman Stephen, Jr., was not operating the automobile “in connection with” the business purpose of Earl Schott, Inc. The automobile dealer had not given Norman Stephen, Sr., possession of the car for the purpose of trying to sell it to him. The sale had already been fully agreed upon and all of its terms settled.

The judgment is affirmed.


author: By WALCUTT, J.

text:
    MOORE, deceased: Estate of, In re.
    Probate Court, Franklin County.
    No. 169913.
    Decided May 16, 1958.

      Charles V. Schwenker, Columbus, for administratrix.
    William Saxbe, Atty. Genl., Howard F. Wilson, Asst. Atty. Genl., Columbus, for Bureau of Support.
   OPINION

By WALCUTT, J.

Mary Howell Moore died intestate in the City of Columbus, Franklin County, Ohio, on the 6th day of February, 1956, leaving as her next of kin and heirs at law three daughters, all adults. Nancy L. Howell, one of the daughters, was appointed administratrix of her estate by this Court on March 14th, 1956, and qualified as such.

Thereafter the estate of the decedent, Mary Howell Moore, was duly administered, and the first, final and distributive account of the administratrix was filed on September 28, 1956, and was thereafter approved and the estate was closed.

On October 19th, 1956, exceptions to the final account were filed by the Attorney General of Ohio on behalf of the Bureau of Support; Department of Mental Hygiene and Correction, of the State of Ohio, alleging that it is a creditor of Mary Howell Moore, deceased, and that the account is not a true and correct account for the reason that:

The administratrix did not ascertain from the Bureau of Support whether the deceased, Mary Howell Moore, was supported while a patient at the Columbus State Hospital as is required by §5121.10 R. C., and pursuant to any such determination failed to pay a debt for which his decedent was personally liable to the State of Ohio, which payment he is compelled to make according to law.

Exceptor further states that the sum due for support of said decedent is One Thousand Two Hundred Sixty Eight Dollars and twenty-seven cents f$1268.27), and that it did not have notice of decedent’s death.

It was stipulated by counsel for the parties that Mary Howell Moore was committed to the Columbus State Hospital on April 10th. 1934, by the Probate Court of Franklin County, and that the hospital file shows that the charges for which the decedent was liable amounted to $1,268.27.

The schedule of debts filed in the matter qxi July 24th, 1956, does not show the claim of the State of Ohio. The evidence does not show, nor is it contended, that the State of Ohio presented its claim in accordance with §2117.06 R. C.

Counsel for the administratrix contends, in essence, that the Bureau of Support is barred by the limitations imposed upon the presentation of claims to an administratrix, that the State did not exercise due diligence in the presentation of its claim, even though it had knowledge of the death of the decedent, and that the State should resort to the fund of the Industrial Commission of Ohio for payment of hospitalization under an order of that Commission theretofore issued.

The evidence shows that the decedent was injured on August 20th, 1945, when, as an employee of the Omar Bakery, she suffered a compensable injury at her work; that thereafter, to the time of her death, she was incapacitated and adjudged permanently disabled, and that, by order of the Industrial Commission of Ohio, on December 11th, 1950, the Commission found and determined that the decedent’s mental condition had been cáused by her industrial injury.

The evidence further indicates, and it was not disputed, that the decedent’s condition was such that she required nurses to watch over her when she was not an inmate of the State Hospital, and that the Industrial Commission authorized and paid for such nursing care out of the Workmen’s Compensation Fund.

It is likewise conceded that the decedent had been under guardianship for a number of years, and was under such guardianship at the time of her death.

The first question for consideration is whether or not the limitations of the statute apply as against the State of Ohio or one of its agencies, such as the Bureau of Support. The general principle is that the sovereign is not bound by the Statute of Limitations unless it manifests a clear intention so to be bound.

Since the Bureau of Support is a governmental agency within the Department of Mental Hygiene and Correction, it is in effect the state itself, and it cannot be barred by a Statute of Limitations.

25 O. Jur., Sec. 285, page 630, says:

This general principle, as to the immunity of a sovereign from laches, and the Statutes of Limitation, is applied to the state governments. So, the Statutes of Limitation do not run against the State of Ohio, unless the intention that they shall so run is obvious. This rule is sometimes of odious application, but it is adopted as incidental to sovereignty, and as necessary to preserve against negligence or cupidity those rights which the state has acquired or retained. The rule is applicable in actions where the state, though not a party to the record, is the real party in interest.

That same work quotes from the decision of Minshall, J., in Heddleston v. Hendricks, 52 Oh St 460:

The general rule is that the Statute of Limitations does not apply as a bar to the rights of the public, unless expressly named in the statute, for the reason that the same active vigilance cannot be expected of it as is known to characterize t'hat of a private person, who is always jealous of his rights, and prompt to repel any invasion of them.

In State of Ohio versus Security Central National Bank, Admr., 100 Oh Ap 425, the second syllabus states bluntly:

The State of Ohio is not bound by the Statute of Limitations.

To like effect Wasteney v Schott, Treas., 58 Oh St 410:

The rule that statutes of limitation do not run against the state unless it is expressly so provided is applicable in actions where the state, though not a party to the record, is the real party in interest.

There are numerous holdings to the same effect, to which we shall not further refer. It is our opinion that the Statute of Limitations as to the presentation of claims does not apply to claims of the state for support of persons in the State Hospital, as there is no indication in the statute that- it is intended to permit a private citizen to invoke the bar.

True, §5121.10 R. C., says:

Such claims shall be allowed and paid as other claims against the estate.

However, when this is read in connection with the other provisions of the statute, to which reference will be made later, it is clear that this was not intended to waive the rule as to any statute of limitations.

Coming now to the matter of whether or not the Administratrix can be excused for failure to include the claim of the state in her list of liabilities against the estate, reference must be had to §5121.10 R. C., which provides, in part:

Upon the death of a person who is an inmate or has been an inmate, of any benevolent institution under the jurisdiction of the department of mental hygiene and correction and who is possessed of property, the executor or administrator shall ascertain from the department whether the deceased person was supported while an inmate, and if not, the department may present a claim for support, or for the balance due in case less than the rate • prescribed by §5121.03 R. C., has been paid Such claim shall be allowed and paid as other claims against the estate.

The language of the section just quoted is clear, explicit, and, we believe, mandatory. The legislature clearly intended the claim of the State of Ohio, in this case to be a preferred claim upon the assets of the decedent, and there is no necessity of presentation of the claim under §2117.08 R. C.

The reason for this is apparent. The executor or administrator of an estate has only his own matter to look after, whereas governmental authorities have claims without number of this character and it would be impossible and unreasonable to expect that the State Department or the office of the Attorney General could or should be able to keep track of all the details as to every claim. The General Assembly apparently intended to place at least a portion of the responsibility for taking care of these claims upon the shoulders of the fiduciary of the estate.

The administratrix knew of the confinement of the decedent in a state hospital, and she is charged with a knowledge of the law requiring payment for support.

The mere fact that she had been on bad terms with the guardian of her mother is not sufficient to excuse her from the duty imposed by statute upon her in her official capacity. And the statement of the guardian, in turning over the assets and the list of the liabilities of his ward, that these were all the assets and unpaid bills, does not operate to discharge the obligation of ascertaining whether there were claims for support in a state institution.

This court has been especially sensitive to this situation, and when it formulated its rules on November 1st, 1957, this rule was included for the sole purpose of reminding fiduciaries and counsel of their liability under the law of Ohio where their decedent was or had been an inmate of a state institution:

Rule 5. CLAIMS OF GOVERNMENTS AND GOVERNMENTAL SUBDIVISIONS: Upon the filing of the schedule of debts, executors and administrators shall certify that they know of no indebtedness to the government of the United States, or of the State of Ohio, or of any political subdivisions thereof; as to any claim, presentation of which is not required by statute.

Of course, this rule was not in effect at the time of the closing of this estate, and it is set out here merely to show that the Court has been somewhat anxious about the failure of fiduciaries to investigate as to such claims.

See opinion of Griffith, J. (Court of Appeals, Trumbull County), in case No. 1380, State v. Knowlton.

It will further be noted that the administratrix in this case did not file her final account under the provisions of §2109.36 R. C., which provides:

An application for an order of distribution of the assets of an estate or trust held by a fiduciary may be set for hearing before the probate court at such time as the court shall designate. The fiduciary may serve notice of the hearing upon such application, or cause such notice to be served, upon any person who may be affected by an order disposing thereof; or the court, upon motion of any interested person for good cause shown or at its own instance, may order such notice to be served upon any such person. Such notice shall set forth the time and place of the hearing and shall be accompanied by a statement of the proposed distribution. At the hearing upon the application the court shall inquire into, consider, and determine all matters relative thereto, and make such order as the court deems proper. If the court makes an order of distribution, the fiduciary shall comply therewith and shall account to the court for his distribution, verified by vouchers or proof. An order of distribution shall have the effect of a judgment. Such order may be reviewed upon appeal and may be vacated as provided in §2101.35 R. C.

As to the contention of the administratrix that the state should resort to the Industrial Commission fund for the payment of the expenses of hospitalization of the decedent, while it is conceded, of course, that she was injured and that she did receive an award, we can see no obligation resting upon the Bureau of Support to call upon the Industrial Commission to meet this claim. It would be much like a debtor saying to his creditor that a third person owed him money, and the creditor should resort to that third person for the payment of the bill. If any fiuty lay upon anyone to collect the money for this purpose, it was the duty of the guardian, and, the guardian having not done this, the administratrix should have proceeded to collect this claim as an asset of the estate.

We believe the exceptions to be well taken.

An order may be drafted accordingly.


text:
    KUNTZMAN, ATLAS ASSURANCE COMPANY, LTD., and AMERICAN CASUALTY COMPANY, Plaintiffs-Appellees, v. FOLDEN, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5588.
    Decided April 15, 1957.
    Richard Huggard, Columbus, for plaintiffs-appellees.
    Ballard, Dresbach, Crabbe & Newlon, Charles E. Brown, of Counsel, Columbus, for defendant-appellant.
    (HORNBECK, J, of the Second District, sitting by designation in the Tenth District.)
   OPINION

By MILLER, J.

This is a law appeal from a judgment of the Common Pleas Court rendered upon the verdict of a jury in favor of the plaintiffs-appellees.

The parties will be referred to hereafter as they appeared in the trial court.

The record reveals that the action is one for damages alleged to have been caused by the negligent manner in which the defendant was operating her automobile on the highway as she approached the intersection of State Routes No. 310 and No. 16.

At the conclusion of all the evidence plaintiffs’ counsel moved for an order withdrawing from the jury all questions of negligence and submitting the case on the amount of the damages only. The motion was sustained over the objection of the defendant, and the question presented is whether or not this constituted prejudicial error. In other words, the court decided that the defendant was guilty of negligence which was a proximate cause of the alleged damages.

The evidence discloses that State Route No. 310 runs in a northerly and southerly direction and dead-ends with its intersection with State Route No. 16, which runs east and west; that Route No. 310 has a stop sign erected at the intersection which requires traffic to yield the right of way to that proceeding in a lawful manner on Route 16. The defendant was proceeding in a northerly direction on Route 310, the evidence reveals, came to the intersection, made a stop, then proceeded to make a left turn and drove in a westerly direction on Route 16. After she had proceeded approximately 300 feet on Route 16 a heavy truck and trailer, weighing 21 tons, owned by the plaintiff Kuntzman and being operated by his agent, approached the defendant from the rear. Being unable to stop and avoid striking her car, he elected to pass her on the right causing the truck to run off the road and overturn. It came to a stop approximately 375 feet beyond the intersection. The tractor was demolished and the trailer badly damaged. The defendant testified that there was a hill on the east approach of Route 16 and that her view was clear to the crest of the same approximately three-tenths of a mile distant; that when she entered the intersection she looked to the east and saw nothing approaching. The driver of the truck testified that he was driving 35 to 40 miles per hour and could stop at this speed at approximately 300 feet; that when he was 175 feet from the intersection he saw the defendant’s car stop at the intersection and proceed into it and turn west; that he immediately applied his brakes with the ensuing results.

It will be noted that there was a direct conflict in the evidence as to the location of the truck when the defendant entered the intersection. Obviously, the speed of the truck became a factual question as well as the proximate cause of the injury. If the truck was not approaching the intersection in a lawful manner it lost its right of way and the question of contributory negligence became an issue.

The credibility of the witnesses, the weight to be given to their •testimony and the inferences to be derived therefrom are all matters for the sole determination of the jury.

The leading case in Ohio on the question of directing a verdict or taking the case from the jury is the well known case of Hamden Lodge v. The Ohio Fuel Gas Company, 127 Oh St 469, which abolished the scintilla rule in this state. Paragraphs 3 and 4 of the syllabus appear to the applicable to the case at bar. to wit:

“3. Upon motion to direct a verdict the party against whom the motion is made is entitled to have the evidence construed most strongly in his favor. But if upon any essential issue, after giving the evidence such favorable construction, reasonable minds can come to but one conclusion and that conclusion is adverse to such party, the judge should direct a verdict against him.
“4. Where from the evidence reasonable minds may reach different conclusions upon any question of fact, such question of fact is for the jury. The test is not whether the trial judge would set aside a verdict on the weight of the evidence.”

In considering the evidence presented in this case most strongly in favor of this defendant, as we are required to do, we are of the opinion that reasonable minds may not come to the same conclusion as to the facts in issue; hence the case should have been submitted to the jury. See Wilkeson, Admr. v. Erskine & Son, Inc., 145 Oh St 218; Glasco v. Mendelman, 143 Oh St 649; Columbus Pipe & Equipment Co. v. Riley, 70 Abs 303. The rule in this state seems to be well summarized in 39 O. Jur. 796, Section 181, to wit:

“A motion for a nonsuit or for a directed verdict should be denied if substantial evidence or proof has been offered by the party against whom the motion is directed covering all material averments required to prove his case and tending to make a prima facie case for him. The whole trend of judicial opinion in Ohio is to the effect that the right to trial by jury must be jealously guarded, for which reason, if the trial court has any doubt as to his right to grant a nonsuit or direct a verdict, the motion should be refused. It is only where no evidence has been introduced by the plaintiff tending to support the issue or where it is such as to show clearly that he has no cause of action — that is, when all the evidence and all reasonable inferences therefrom favor the instructed verdict or a nonsuit — that the case can be taken from the jury and decided by the court. * * *”

We are of the opinion that the court erred in sustaining the plaintiff’s motion. The judgment will be reversed and cause remanded for further proceedings according to law.

PETREE, PJ, HORNBECK, J, concur.


author: By LEIS, J.:

text:
    D. H. WILLEY LUMBER COMPANY, Plaintiff, v. FLICK et, Defendants. DAVID H. WILLEY & HENRY BETZ, Plaintiffs, v. FLICK et, Defendants. MARTIN, Jr., Plaintiff, v. FLICK et, Defendants.
    Common Pleas Court, Hamilton County.
    Nos. A-157793, A-156794, A-156997.
    Decided November 21, 1957.

      Cowell & Fletcher, By Lee J. Hereth, for plaintiffs, The D. H. Willey Lumber Company and David H. Willey & Henry Betz.
    James Farrell, City Solicitor, William McClain, Asst. City Solicitor, for defendants.
    Leroux & Weber, By Paul J. Weber, for Ray Martin, Jr.
   OPINION

By LEIS, J.:

These three cases in which the plaintiffs in each action seek to enjoin annexation proceedings of certain real estate located in Green Township.. Plamilton County, Ohio, were consolidated for trial and tried to the court.

Resident freeholders of an area may, by virtue of Chapter 709 R. C., annex an area to a municipality. There are two used methods of annexation to a municipal corporation: one is by application of the citizens residing in territory adjacent to a municipal corporation; the other method is on application by the municipal corporation. In these proceedings the application for annexation to the city of Cincinnati was by citizens residing in the area sought to be annexed.

A review of the pleadings and a study of the evidence reveal two points of issue of substance: first, the completeness and accuracy of the description of the proposed annexation area; and, secondly, that the Board of County Commissioners refused to allow certain signers of the annexation petition to withdraw their signatures after a certain date.

The Court turns first to consider the alleged incompleteness of the description. Plaintiffs, contend that the petition for annexation did not contain the full description of the territory sought to be annexed, being incomplete and inaccurate, and allege further that the petition was not accompanied by an accurate map or plat of the territory sought to be annexed.

Titfs Court stated in a prior annexation contest, Waddel v. Bossert, Hamilton County Common Pleas Court, No. A-154549, under circumstances where the description of the area was in dispute that the issue could be stated thus: “Is there sufficient identification of this area in the petition to annex to render the description adequate to ascertain the territory sought to be annexed?” The Court further cited 7 O. Jur. (2d) 635 thus: “But if sufficient be shown to ascertain the estate intended to be conveyed, the land may pass by the deed although some of the particulars are false.”

As regards point one, the incompleteness of the description, the Court believes that the language of its opinion in the prior annexation case is still applicable here. It remains to be determined from the evidence, therefore, whether there is sufficient identification of this area in the petition to annex. On this point of dispute, both sides introduced an expert witness.

Thomas D. Jones, witness for plaintiffs, on cross examination by Mr. McClain stated:

“If the monuments are where the map indicates or seems to indicate them, the drawing of the red lines where they should be, then I would say the map would probably represent what is described in the description ” (Record p. 53.)

Harry H. Schops, witness for the defendant city, upon questioning by the Court, testified as follows:

“Q. Are you acquainted with the petition and the description contained in the petition?
“A. I am, sir.
“Q. Does that description contained in the petition, is that a full description of the territory sought to be annexed?
“A. I believe so, yes, sir.
“Q. All right. Is the map an accurate map or plat of the territory sought to be annexed?
“A. It is an accurate 200 scale map. That is what we call it.
“Q. Your answer is yes to the question I have asked?
“A. Yes, sir.
“Q. Let me ask you this, is there sufficient identification of this area in the petition to render the, description adequate to ascertain the territory sought to be annexed in your opinion?
“A. Yes, sir, I believe so.” (Record p. 59.)

The Court feels that after a consideration of the evidence, the plaintiff has failed to sustain the necessary burden of proof on the point of incompleteness of the description in the petition to annex.

Turning now to the refusal of the Board of County Commissioners to allow petitioners to withdraw their signatures, the Court finds that this contention is bottomed on the proposition that if these petitioners had been allowed to withdraw their signatures, the number of valid signatures would have fallen short of the necessary majority to effect annexation.

The Board of County Commissioners, under date of October 25, 1955, and in reply to an inquiry put to them by Robert B. Grote, Agent for the petitioners, wrote the following:

“October 25, 1955.
Mr. Robert B. Grote,
2166 West Tower Lane,
Cincinnati 38, Ohio.
Dear Sir-
This is to acknowledge receipt of your letter, regarding the Summit area annexation.
The Board of County Commissioners in session this day directed that you be advised that no additional petitions or withdrawals are accepted after the date set for the hearing.
Very truly yours,
BOARD OF COUNTY COMMISSIONERS
Hamilton County, Ohio
By ----------------------Clerk."

This letter, received in evidence as part of Exhibit 6, unequivocally set down that no additional signatures or withdrawal of signatures would be allowed. If this was a valid action by the Board of County Commissioners, this Court can not stand in the way of the proposed annexation; if this action was an abuse of discretion, or contrary to law, this Court has but one course of action and that is to enjoin annexation of the proposed area.

The right of a petitioner to withdraw his name has provided a fertile field of litigation throughout the years. In the instant case there were 609 resident freeholders in the area to be annexed, 337 of whom validly signed the petition for annexation, or 55.3% (Record pp. 26-27).

It will be noted that prior to the barring date of October 25, 1955, the County Commissioners allowed the withdrawal of 39 names and the addition of twenty new signatures (record p. 28), this was a net loss of nineteen, and resulted in an adjusted percentage of 52.3% of the resident freeholders of the area.

This Court holds that this allowance by the Board of County Commissioners was proper. The petitioners had the right at that time to withdraw their signatures (see below). Similarly, new resident freeholders should be allowed to petition in order to compensate for withdrawals and to give continuing jurisdiction to the Board of County Commissioners. The right to withdraw or add signatures is a common law right, and there being no statutory abrogation of this right in Ohio annexation proceedings, this Court can not disturb the exercise of the discretior of the Board of County Commissioners in allowing these withdrawals or additions at the time that they did and prior to the announcement that no further withdrawals or additions would be permitted.

By letter of October 24, 1955, Mrs. Louise R. Martin forwarded to the County Commissioners signatures of twenty-eight resident freeholders with the request that these names be “rescinded and withdrawn from the petition submitted previously.” (Exhibit 6.) It is conceded that allowance of withdrawal of these names would result in less than the required majority. The letter stating the policy that no additional petitions or withdrawals would be accepted was dated October 25, 1955; Mrs. Martin’s letter with twenty-eight withdrawals was received by the County Commissioners October 27, 1955 at 9:15 A. M. according to the stamp thereon. (Exhibit 6.)

It has been held by the courts of this state that the signers of a petition can withdraw their signatures at any time before official action is taken on the petition.

State, ex rel. Wilson v. Board of Education of Shelby County School District, 166 Oh St 260; State, ex rel. Kahle v. Ruppert, 99 Oh St 17; Lynn v. Supple, Clerk, 166 Oh St 154.

Granting the right of a petitioner to withdraw his name, it only remains to be determined whether or not official action had been taken.

This court is not unmindful of the seeming conflict of Schulte v. Flick, 89 Oh Ap 252, a Hamilton County Court of Appeals case, and Lakeville v. Palmer, 74 Abs 45, an Ashtabula County Common Pleas Court case; but feels if there be any conflict that the latest expression on the right of a petitioner to withdraw his signature is by our Supreme Court in State, ex rel. Wilson v. Board of Education, Shelby County School District, decided March 27, 1957.

It can not be denied, whether adhering to the Schulte case supra or to the Lakeville v. Palmer case, supra that the jurisdiction of the County Commissioners was invoked when 337 valid signatures favoring annexation were presented. This jurisdiction remained in effect unless sufficient signature withdrawals were effected prior to official action.

On July 26, 1955, the Board of County Commissioners adopted a resolution setting forth that a majority of adult freeholders had petitioned for annexation and set down October 11, 1955, for hearing on the proposed annexation. At this meeting in July the Board of County Commissioners had in hand a letter of July 25, 1955, from the County Engineer which stated:

“July 25, 1955.
Board of County Commissioners
Hamilton County
Court House
Cincinnati, Ohio
Gentlemen:
Enclosed herewith find petition for the annexation of certain territory in Sections 7 & 8, Town 2, Fractional Range 2, Green Township, Hamilton County, Ohio to the City of Cincinnati. Also find description and plat of same.
Upon checking this office finds that 55.3% of the resident freeholders therein have signed said petition. We also And the description and plat to be a true representation of the area in the proposed annexation.
Respectfully submitted
s/s GEORGE M. LEMMEL
Hamilton County Engineer.” (Exhibit 1)

On the same date, the Board of County Commissioners directed Robert B. Grote, agent for petitioners, to take the necessary action to provide for publication of the said resolution.

On October 11, 1955, the formal hearing on the proposed annexation was held and communications for and against annexation were presented.

The Court feels, therefore, that official action had been taken by the Board of County Commissioners and the board was within its discretion to refuse to allow further withdrawal of the signatures. To hold otherwise would result in needless hindrance and a state of suspension in annexation matters. At all times there was a majority of resident freeholders in favor of the annexation so as to vest continuing jurisdiction in the Board of County Commissioners.

It is the ruling of this court, based on the law and the evidence received, that the prayers of the petition of all three plaintiffs be denied and that annexation proceed in accordance with the Board of County Commissioners’ Resolution dated November 21, 1956.

Please present your entry accordingly.