author: By ALBRIGHT, J.

text:
    MELLOTT, Estate of, In re.
    Probate Court, Belmont County.
    No. 54909.
    Decided January 20, 1953.
    Cooper & Cooper, Matz & Cinque, Bellaire, for the Executors.
    John J. Malik, City Solicitor, Bellaire, for the City of Bellaire.

      Ralph A. Neff, Thornburg & Lewis, St. Clairsville, for the surviving spouse, Elizabeth N. Mellott.
   OPINION

By ALBRIGHT, J.

This is a proceeding brought by the surviving spouse of the decedent, under the provisions of §10509-89 GC, to purchase real estate and personal property at its appraised and market value.

The decedent, James F. Mellott died testate on August 10, 1952, leaving the applicant Elizabeth N. Mellott as his surviving spouse and sole heir at law. The decedent’s will was duly admitted to probate on August 19, 1952, and on September 5, 1952, James W. Stewart and J. E. Giffin were appointed Executors of his estate. On November 5, 1952, the surviving spouse made her election not to take under the will of the decedent but to take under the law of descent and distribution, which entitled the widow to take one-half of the net estate under the provision of §10504-55 GC.

On October 28, 1952 the Executors filed their inventory and appraisement of said estate which was approved on November 11, 1952. The gross value of the estate was appraised at $522,179.91, and the net value of the estate after payment of debts and costs of administration is approximately $480,000.00.

On December 10,1952, the surviving spouse filed her application in the Probate Court electing to take certain real estate and personal property listed in the inventory and appraisement at its appraised or market value in the approximate sum of $140,000.00. Among the assets of the estate, listed in the application of the spouse to purchase at its appraised value, were 400 shares of stock in the Union Savings Bank, Bellaire, Ohio, appraised at $13,200.00. The decedent at the time of his death was the owner of 1066 shares of the Union Savings Bank out of a total authorized issue of 3000 shares.

The executors of the estate and the City of Bellaire object to the surviving spouse being granted the right, to purchase 400 shares of the 1066 shares of stock in the Union Savings Bank owned by the decedent, at its appraised value, claiming that all the 1066 shares of stock is specifically bequeathed under the terms of the testator’s will.

Sec. 10509-89 GC provides in part as follows:

“The surviving spouse, if any, whether acting as executor or administrator, or not, shall have the right to purchase the following property, if left by the decedent and if not specifically devised or bequeathed.”

The will of the testator, insofar as it relates to the surviving spouse and the stock he owned of the Union Savings Bank, Bellaire, Ohio, contains the following provisions:

ITEM II. Explanatory of the provisions of this, my Last Will and Testament and of gifts, bequests and devises contained herein and hereinafter set forth, I desire to make it clear that my wife, Elizabeth N. Mellott, and I each have ample properties and holdings, and it is the understanding between us that the estate of each of us should so stand as to be considered separate and apart from the estate of the other, without either claiming any special right in the estate of the other, except as provided in the Will of the other.

ITEM III. I give and bequeath to my beloved wife, Elizabeth N. Mellott, the sum of Twenty Thousand Dollars ($20,000.00) either in cash or in bonds belonging to my estate, at her election.

I also give and devise to my said wife all my interest In lands or lots formerly belonging to the Bellaire Land and Development Company in Pultney Township, lying West of the Fourth Ward in the City of Bellaire, Ohio.

The provisions hereinbefore made for my wife, Elizabeth N. Mellott, are intended to be in lieu of her dower interest and distributive share in my real estate and personal property and any and all other rights, interests, claims or exemptions which she might otherwise have in or against my estate, except her claim to a year’s support in the sum of Five Thousand Dollars ($5,000.00); and such provisions are conditioned upon her formal relinquishment of such rights by election or otherwise; provided, however, that my said wife shall have the right to a year’s support in the sum of Five Thousand Dollars ($5000.00), payable out of my estate.

In the event my said wife shall, for any reason, not elect to take under this, my Will, then the provisions hereinbefore made for her, subject to her claims at law upon the same shall become null and void, and I hereby give, devise and bequeath the same to my Trustees, hereinafter named, and their successors in trust, however, upon the trusts and for the objects and purposes herein set forth.

ITEM IX. All the rest, residue and remainder of my property, real and personal, which I may own or have the right to dispose of at the time of my deacease, I give and devise and bequeath to said James W. Stewart and J. E. Giffin, of Bellaire, Ohio, and to their successors, in trust, however, upon the trust and for the objects and purposes following, to-wit:

Said trustees, or their successors in trust, shall hold, manage, and control as to real estate, to improve, lease, rent, sell exchange and convey the same, or any part thereof, for such rents and prices, and upon such terms and conditions as my Trustees, in their discretion, may deem best, including the power to lease for any term or terms, irrespective of the period of the trust; and as to the personal property to hold, control, sell, invest and re-invest the same, and to purchase any of the property or assets of the estate of my brother, William D. Mellott, deceased. Provided that all of such re-investments of the funds and purchases of securities from my said brother’s estate shall be in shares or stock of incorporated banks or investments that National Banks are now or may hereafter be permitted to make, or in stocks of known and demonstrated value that are offered for sale or about to be sold for less than their known or market value as my said Trustees may deem proper in their discretion, irrespective of any statutes or rules or practices of chancery courts now or hereafter in force, limiting the investment of trust funds; to execute and deliver all proxies, powers of attorney and agreements that they may deem necessary or advisable in administering said trust, and to compound, compromise, settle and adjust all claims and demands in favor of and against the trust estate, on such terms and conditions as they may deem best, provided that, if at any future time, in the opinion of my Trustees, it shall be proper so to do, my Trustees are hereby authorized and empowered to vote, consent to, carry out and consummate a consolidation or merger of The Union Savings Bank of Bellaire, Ohio, with First National Bank in Bellaire, Ohio, and to deposit, transfer and surrender all the shares of stock of both said banks, then owned by my said trust estate, for the purpose of consummating said consolidation or merger, and in lieu of said stock to accept shares of stock of said consolidated or merged institution and place the same in my said trust estate; and provided further, that it is my will and desire that said Trustees shall not otherwise sell, convert or dispose of the shares of stock of either of said banks, which I may own or have the right to dispose of at the time of my decease, except as hereináfter provided.

If the two banks shall have been merged or consolidated before the library building hereinafter provided for is constructed, then and in such case, all of said stock in said merged or consolidated institution may be sold and the income from the proceeds of said sale may be applied to the construction and upkeep of said library building.

If. a merger or consolidation of said banking institutions is not effected prior to the construction of the proposed library building, then and in such case the income from the Stock of the Union Savings Bank of Bellaire, Ohio, and from one hundred (100) shares of the stock of First National Bank in Bellaire. Ohio, shall be placed by said Trustees in the general trust fund, until said library is constructed and said income may then be used for the upkeep of said library building.

And provided further, that said Trustees are hereby directed to set aside shares of the First National Bank, in Bellaire, Ohio, of the par value of Two Thousand ($2,000.00) Dollars, or the proceeds from the sale thereof, if the same shall be sold in conformity with the other provisions of the Will, as to said stock, the income from which shall be used, insofar as necessary, for the upkeep of the the Mellott Burial Lot in Greenwood Cemetery at Bellaire, Ohio. The unused portion, if any, of said income may be transferred at each five (5) year period after my decease to the general purposes of this trust, as hereinbefore and hereafter set forth.

Said trustees may, in their discretion, use such part of my estate as may be necessary for the benefit of Minnie McNiece to the end that she may live in comfort during her lifetime.

Said Trustees shall set apart from said trust funds the sum of Five Thousand Dollars ($5,000.00) and more, if necessary, and from said fund shall pay for the necessary care and support of my aunt, Alice Myers; said payments to be made either to her or for her benefit monthly by my Executors and my said Trustees.

Said Trustees are hereby authorized, empowered and directed to erect, or cause to be erected, either in the City Park, located between Central Avenue and Thirty-fifth Street, in the City, to be not smaller than one hundred twenty (120) feet in depth by two hundred forty (240) feet in length, which shall be provided by said City and acceptable to said Trustees in their discretion, a free public library building, and to expend for the erection of said building an amount of money from my trust estate, other than from one hundred (100) shares of stock of said First National Bank in Bellaire, Ohio, and all of my said stock of The Union Savings Bank in Bellaire, Ohip, which when added to the amount of money which may be expended from the/estate of my brother, William D. Mellott, deceased, for the same purpose, shall be fully adequate for the construction of a library building that will be a credit to the City of Bellaire, and in the construction of said building, if it becomes necessary, all of the property and funds in said trust estate, except one hundred (100) shares of stock of said First National Bank, in Bellaire, Ohio, and all of the shares of Stock of The Union Savings Bank of Bellaire, Ohio, may be used for such purpose.

After the erection of said library building, or after the cost thereof is ascertained, said Trustees are further directed, authorized and empowered to erect, or cause to be erected, if the remaining trust funds in my estate and in the estate of my brother are sufficient, in the opinion of said Trustees to do so, excepting therefrom one hundred (100) shares of the stock of First National Bank in Bellaire, and all of the stock which I may own at the time of my decease in The Union Savings Bank of Bellaire, Ohio, provided said two (2) banks shall not have been theretofore merged or consolidated, a community center building, upon a site which shall also be provided by the City of Bellaire, and acceptable to my said Trustees, and to expend for the same such amount of money from my said trust estate which, when added to the amount of money which shall be available to be expended from the estate of my brother, William D. Mellott, deceased, for the same purpose, as will be necessary for said purpose; provided, however, that said Trustees may exercise their absolute discretion and have the power to determine the amount to be expended from my said trust for said community center building.

The furniture and equipment of said building and the books and papers for said library shall be furnished by taxes authorized by law, or by public subscription, or by private donation, other than from funds of my estate or the estate of my said brother.

It is further provided, however, that the site furnished for said public library building, in the event my said Trustees in their discretion decide to erect a community center building, shall be of sufficient dimensions for both buildings

Said library building, when completed, shall vest in and become the property of a board of library trustees designated by the City of Bellaire, Ohio, which board shall be authorized to render free library service for the use of all of the inhabitants of the County and be appointed in the manner provided by law, and said building shall thereafter be held, controlled, operated and maintained by said board, but shall not be used for any purpose other than as a free public library or reading room. Said community center building when completed, shall vest in and become the property of the City of Bellaire, Ohio, and shall thereafter be held, controlled, operated, maintained, and regulated by said City, but shall not be used for any purpose other than for public entertainment, recreation and community center purposes.

In the event the City of Bellaire, through its duly constituted officers, does not signify its intention of meeting the conditions herein set forth, pertaining to said library building, and'or said community center building within ten (10) years from the date of my death, unless the time be extended by my said Trustees in their discretion, then and in such case the provisions herein made for said library building shall become null and void. Said time, however, may not be extended for more than an additional ten (10) years by said Trustees.

The hereinbefore mentioned library building and community center building are to be considered as a memorial in the names of the following persons: Amos O. Mellott, Phoebe J. Mellott, William D. Mellott, A. E. and Allie M. Smalley, and J. F. and Elizabeth N. Mellott, provided further, however, if said library building and community center building shall be constructed, the remaining surplus from my estate and the income therefrom, other than the principal and income from said one hundred (100) shares of First National Bank in Bellaire, and all of the shares of the Union Savings Bank of Bellaire, Ohio, may be used at any time by my said Trustees for the remodeling of said library and community center building, in order to keep the same in the standards of the times and may further be expended and used by said Trustees in their discretion for the operation and running expenses of said public library and community center, or said Trustees may transfer the corpus of said remaining surplus, other than the above mentioned shares of said banks, to the Library Trustees and to the City of Bellaire, in such proportions as they may elect to be used for such purposes.

In the event the library building shall be constructed, the income from the one hundred (100) shares of stock of First National Bank in Bellaire, Ohio, and the income from the shares of .stock belonging to my estate of the Union Savings Bank of Bellaire, Ohio, shall be paid by my said Trustees annually to the Board of Trustees of said library building to be used by said board for the upkeep of said building.

I further direct that if my said Trustees, in their discretion, shall deem it advisable so to do at any time, they are hereby authorized and empowered to transfer said one hundred (100) shares of stock in First National Bank in Bellaire, Ohio, and shares of stock of the Union Savings Bank of Bellaire, Ohio, belonging to my estate to the Trustees of said library, the income from said stock to be used and expended by said Trustees for the repair, remodeling and upkeep of said library building.

The sole question is whether 400 shares of the Union Savings Bank Stock was “specifically bequested” in the testator’s will. The general rules with reference to the interpretation of Wills are fully applicable in determining whether a legacy, in any particular instance, is to be treated as demonstrative, general, or specific. The cardinal rule is to ascertain and give effect to the intention of the testator as expressed in the language of the Will. The question is: “Did the testator intend to give the specific thing, or to limit the gift to the particular subject-matter? Or did he intend to give an amount of money in any event, and refer to the fund merely as a convenient means of payment?” (O. Jur. Vol. 41, Page 866.)

It is a rule of the Courts to construe legacies of a doubtful nature as general or demonstrative, rather than specific; it being variously stated and variously said in this connection that the Courts are not inclined to favor specific legacies, that the presumption of intention is in favor of general legacies in the first instance, that the law leans against specific legacies and toward general ones, and that the legacies will be construed as specific only when the intention of the testator to make them such is clear and unmistakable. (57 Am. Jur. Page 940, Sec. 1406.)

A specific legacy has been defined as a gift of some specific thing or some particular portion of the testator’s estate which is so described by the testator’s will as to distinguish it from other articles of the same general nature, as a gift of a particular thing or of money specified and distinguished from all things, and which, at the execution of the will, is owned by the testator, as of a horse, or a piece of plate, or of money in a purse, stocks of a corporation, and the like, and as something which a testator, identifying it by a sufficient description and manifesting an intention that it should be enjoyed in the State or condition indicated by that description, separates, in favor of a particular legatee, from the general mass of his personal estate. A specific devise or bequest is one which, according to the intent of the testator, is limited to the subject matter given. (41 O. Jur. Wills, Sec. 738, Page 857.)

The distinction between specific and general legacies is that a specific legacy singles out the particular thing which the testator intends the donee to have, no regard being.had'to its value, while general legacies are payable out of the general assets, the chief element being the quantity or its value A specific legacy differs from a general legacy in that it is not intended by the testator to be paid out of his estate generally, but is to be paid solely by delivering to the beneficiary the specific thing given by the will, as distinguished from a designated value generally and the like ... (41 O. Jur Wills, Sec. 742, Page 865, Rote v. Warner, O. O. C. D. 536, Shaw v. Shaw, 32 Oh Ap 168.)

A specific legacy may be defined as a bequest of a particular individualized chattel, fund, or portion of the testator’s personal estate, which is set apart from the balance of his property and which is differentiated from all other articles or funds of the same or a similar nature. It may be satisfied only by delivery of the specific object, fund, or portion designated, and not by the receipt of some equivalent in money or property. (57 Am. Jur. Wills. Sec. 1401.)

A general legacy is one which is designated primarily by quantity or amount and which may be satisfied out of the general assets of the testator, without necessity of delivering any particular chattel or fund to the legatee. . . The fundamental distinction between general and specific legacies, it has been said, it that the former may be satisfied out of the general assets of testator’s estate without regard to any particular fund, thing or things, while the latter are gifts of particular specified things, or of the proceeds of sale of such things or a defined portion thereof. (57 Am. Jur. Wills, Sec. 1402, 149 A. L. R. 1063.)

The question of the effect of the designation of particular property in a residuary clause of a will is one testamentary construction and the general rules of testamentary construction should be kept in mind in considering this question. The cardinal rule of testamentary construction is to ascertain the intent of the testator and to give it effect. All other rules of construction are designed to that end and are subordinate to such intent when it is ascertained. The intention of the testator is to be gathered from the whole will. And effect is to be given to every word and clause of the will if possible. (128 A. L. R. 823, Shaw v. Shaw, 320 App 168.)

In the recent case of Holmes and Hrobon (61 Abs 113) the Court held: “The provision of Item V whereby the testator provided that the income from the laundry business should be paid to his wife for life is a specific legacy. The fact that this provision is found in a general residuary clause does not take away its character as a specific legacy. However, the question is one of the intention of the testator and his intention to give a specific legacy or devise, although it is given in a residuary clause to the same person who is the residuary legatee, from the language used in designating particular property in a residuary clause, the testator’s intention appears to be to make separate and distinct gifts, one of the designated property and the other of the residue, the courts will construe the legacy or devise of the designated property as specific.” The intention of the testator must be ascertained from the language used in the will, as applied to the subject-matter and read in the light of surrounding circumstances at the time of the execution thereof, and not with reference to the circumstances of the time of the death of the testator, except in so far as the latter are connected with the former. If the language of the will is plain and the meaning obvious, the Court cannot qualify or control the language by conjecture or doubt arising from extraneous facts. The testator must be presumed to have meant what he said. A Court will not disregard a plain provision of a will because of supposed advantages which might accrue to the estate from so doing. A Court will not cause a trust created by the testator to fail, such as by nullifying provisions of the Will creating the trust, or purposely causing the trust to end. (41 O. Jur. Sec. 468, p. 595.).

The use of the word “my” in reference to stock which is the subject of a bequest is convincing evidence of an intention to make the gift specific. (117 O. L. R. 805, Corham v. Chadwick.)

Applying the above rules, the Court is of the opinion that the testator has created a specific bequest of all the 1066 shares of stock that he owned in the Union Savings Bank, Bellaire, Ohio, and that it was his intention to “specifically bequeath” said stock, and has shown his intentions in a clear and unmistakable manner by the following references and provisions.

1. The intention of the testator tq separate this stock from the balance of his personal property is clearly shown in paragraph 2 of Item IX, where there are detailed instructions as to voting for a consolidation or merger of the First National Bank and the Union Savings Bank and where it is specifically directed that the trustees cannot sell or dispose of the shares in these banks “except as hereinafter provided.”

2. The intention is further shown in paragraph 3 providing that if there is a merger of the two banks then the stock may be sold and the income from the proceeds applied to the construction and upkeep of a library building.

3. In paragraph 4 if a merger is not effected then all of the income from all of the shares of the Union Savings Bank is to be placed by the trustees in the “general fund” until the library is constructed and then the income may be used for upkeep.

4. The library building is authorized in paragraph 8 and specifically authorized in the expenditure of all of the balance in the trust estate, for the construction of a library “other than 100 shares of stock in First National Bank and all of my said stock of the Union Savings Bank,” and further “except” those shares against the last clause of that paragraph.

5. It is provided in paragraph 9 that after the library is built, all of the remainder of his estate may be used for a community center building, excepting therefrom 100 shares of the Stock of First National Bank in Bellaire, and all of the stock which I may own at the time of my decease in the Union Savings Bank of Bellaire, Ohio.

6. It is further provided in paragraph 14, that if there is a surplus after the library and community center building have been constructed the remaining surplus may be used for remodeling and for running expenses, “excepting principal and income from said 100 shares of First National Bank in Bellaire, and all of the shares of the Union Savings Bank.” And it is further provided in said paragraph that said surplus, “other than the above mentioned shares of stock” may be transferred to the library trustees and to the City of Bellaire.

7. It is provided in paragraph 15 that the income from the shares of these stocks shall be paid annually to the Board of Trustees of the Library building for upkeep of said building.

8. In paragraph 16, the trustees are authorized to transfer said shares to the trustees of the library to be used by said trustees for repair and upkeep of the library.

9. Other than the trusts set up for Mrs. B. W. Hopkins, the cemetery trust, Mrs. Minnie McNiece and Alice Myers, Item IX of the will, sets up three separate trusts. One for the library building for which any of the assets except the stocks in these banks may be used; one for the Community Center Building in which all of the assets may be used, except the stocks in these banks; and one for the upkeep of the library which is to be definitely the income from 100 shares of First National Bank stock and all of his stock in the Union Savings Bank.

The Court therefore finds and determines that the 1066 shares of Stock of the Union Savings Bank, Bellaire, Ohio, are specifically bequeathed personal property and that the surviving spouse is not entitled to purchase 400 shares of said stock at its appraised value; it is further ordered that the application of the spouse to purchase said 400 shares of stock of the Union Savings bank be and is hereby dismissed.


source: Caselaw Access Project

author: By YOUNG, Jr., J.

license: Public Domain

text:
    CLARK, Plaintiff, v. DeWALT and SATTIG, Defendants.
    Common Pleas Court, Huron County.
    No. 23560.
    Decided April 10, 1953.
    Levin & Levin, Lorain, for plaintiff.
    Freeman & Freeman, Norwalk, for defendants.
   OPINION

By YOUNG, Jr., J.

This action is one for assault and battery commenced by the plaintiff December 28, 1951. The petition alleged merely that on Jan. 1, 1951, while the plaintiff and defendants were standing in the police station in Norwalk, Ohio, the defendants assaulted and beat plaintiff by striking him in the face several times with their fists, inflicting severe injuries which were enumerated.

The defendants filed a joint answer in the form of a general denial, but alleging as a second defense an arrest of the plaintiff by the defendants, his resistance to the arrest, and that plaintiff was injured when the defendants, using no more force than was reasonably necessary, overcame his resistance.

The plaintiff filed a motion to strike certain allegations from the answer. This motion was overruled, and plaintiff then demurred to the answer. The demurrer was overruled as to the first defense, and sustained as to the second defense.

The defendants then filed an amended joint answer, which again contained, in addition to a general denial, a second defense, alleging that the defendants were acting as policemen, and that the plaintiff was lawfully arrested and taken to the police station; that he refused to enter the jail cell therein, and that defendants, using no more force than was reasonably necessary, overcame his resistance and placed him in the cell, but plaintiff’s intoxicated condition caused him to fall in the cell and injure himself.

The plaintiff filed an elaborate motion to strike parts of the amended answer, or in the alternative to make the answer definite and certain, which was overruled. The plaintiff thereupon demurred to the amended joint answer, and the demurrer was overruled.

The plaintiff finally replied to the amended joint answer denying the allegations thereof, and pleading further that the plaintiff had been acquitted and discharged by the Court of Appeals from the alleged offense for which the defendants placed him under arrest on January 1, 1951, and that the defendants had no right to arrest him without a warrant, as they did not find him committing the offense alleged, and the offense was not a felony.

Thereafter the case went to trial before a jury. The trial consumed parts of five days, and at its conclusion the jury deliberated for nearly nine hours before returning a verdict in favor of the defendants.

Promptly after the return of the verdict the plaintiff filed a motion for judgment notwithstanding the verdict. It is this motion that is being ruled upon in this opinion.

These preliminary matters are set forth in detail because they show the essence of the dispute as to strictly legal matters which goes through all of the proceedings in the matter. The plaintiff has contended throughout the entire proceedings that there is only a single legal and factual dispute involved, namely, did the defendants strike the plaintiff in the manner which plaintiff claims they did, or did they not. Based upon this contention, plaintiff sought to strike out any pleadings and exclude any evidence which attempted to assert that he received his injuries in a manner other than by being struck in the face by defendants’ fists.

It is obvious that by this motion for judgment notwithstanding the verdict plaintiff is still taking the position that no evidence or pleadings except his can be considered. This motion is filed under the provisions of §11601 GC. The Supreme Court has held that such a motion is analogous to a motion for a directed verdict, in that if there is no defect in the pleadings, the evidence must be considered in the light most favorable to the opposing party, and then “must be such that reasonable minds could not reach different conclusions therefrom.” Wilkeson, Admr., v. Erskine & Son Inc., 145 Oh St 218 at 230.

“Ordinarily, in order to sustain a motion for judgment notwithstanding a general verdict, the evidence received upon the trial and the facts established by admissions in the pleadings and in the record must be such that the court would have been required, upon a proper motion therefor, to direct a verdict for the party seeking such judgment. * * * In passing upon such a motion, neither the trial court, the Court of Appeals nor this court may weigh the evidence. Sec. 11601 GC.” McNees v. The Cincinnati Street Ry. Co., 152 Oh St 269, Syllabus 2.

The pleadings have already been alluded to in some detail. The petition alleges an assault and battery resulting in certain injuries. The amended answer denies the allegations of the petition, and in addition to the general denial sets up an affirmative defense. This is traversed by a reply. It is therefore clear thqt so far as the pleadings are concerned, the motion is not well taken.

When the evidence is considered, there is again a marked difference between that of the plaintiff and that of the defendants.

The plaintiff testified that on the day in question, he came to Norwalk from his home in Lorain about noon. He stopped in several drinking places and drank, and then went to his mother’s home, where he stayed a short time. He then came down town, had some more drinks, and went to a drug store and had a milk shake. He felt no effects from his drinking except a little glow. He then went looking for a friend, and while so engaged was accosted by the defendant DeWalt, who stepped out of a police cruiser and, without saying anything, motioned him to get into the police car. They went to the police station without conversation, and after they were inside, the defendant DeWalt made a vulgar remark and gesture, and then struck plaintiff several blows in the face. Plaintiff was dazed but did not fall. The defendant Sattig then came in back of him and held him by the upper arms, and DeWalt hit him two more blows. After this, defendants dragged the plaintiff who was in a dazed condition, into a cell, where he was locked up until the next morning. He requested several times that an Attorney be called, but this request was refused.

The plaintiff also testified at length concerning his injuries, and offered the testimony of a number of witnesses, none of whom, however, were present at the time of the alleged beating. Plaintiff offered the testimony of a dentist and a doctor as to his injuries and treatment, but neither of these witnesses was able to state unequivocally that the plaintiff could not have suffered the injuries he exhibited by falling against the bars and floor of the cell, or that' the injuries could only have been caused by blows with a fist. The testimony of the doctor also indicated that the plaintiff’s jaw was so weakened by the presence of an impacted tooth that it could have been broken by a lighter force than that required to break a normal jawbone.

The plaintiff called a bartender, who testified that he had served plaintiff liquor at two separate times during the afternoon, giving him a couple of drinks of liquor early in the afternoon, and not over three drinks late in the afternoon, and that when plaintiff left after the second visit he was not drunk. He also called two deputy sheriffs, who had seen him the morning after the alleged beating. One of them testified that plaintiff didn’t appear as if he had been drunk the night before, and the other said he couldn’t tell from plaintiff’s appearance his condition the night before.

Over objections of the plaintiff, he testified on cross examination that when he was in the drug store after leaving the bar, he met a small colored boy named Phillip Oglesby. That he talked with the boy, asked if he knew one Frankie Noble, and paid for the boy’s drink. He walked with the boy down Whittlesey, to Fruen Street, which is a considerable distance down Whittlesey Avenue from the drug store. On Fruen Street he grabbed the boy by the arm. The boy became frightened and said he had to go home, plaintiff said he wouldn’t hurt him, but the boy ran away. Plaintiff then walked back to Whittlesey and down to Grand Avenue, looking for the Oglesby boy’s house, and it was there the police car encountered him. The Oglesby boy and his father were there, and the boy pointed him out to the defendant DeWalt. The plaintiff tried to explain that he was looking for Frankie Noble.

The defendants, on the other hand, both denied that plaintiff was struck by anyone. The defendant DeWalt testified that in response to a call, he had gone to Oglesby’s house. He took Phillip Oglesby and his father, Mason Oglesby, into the police car, and drove around for a while, and then returned. Plaintiff was there standing near Oglesby’s house. They got out of the car, and Oglesby ran toward plaintiff saying, ‘Til fix his clock.” Defendant stopped Oglesby, saying “I’ll take him to the judge.” The plaintiff was drunk. Defendant and plaintiff rode to the police station and entered. Defendant Sattig was behind the desk. Plaintiff placed his arms on the desk, and responded to all questions by saying “You know me.” Defendant Sattig then said “He’s drunk.” The defendant DeWalt replied, “We’ll get the data tomorrow,” and led plaintiff to the cell block and said “Get in.” Plaintiff grabbed the two sides of the doorway and said “I’m not going in! You can’t put me in!”

Hearing the uproar, the defendant Sattig came out. The defendants removed plaintiff’s hands from the sides of the doorway, and pushed him into the cell. He went forward and bumped his head against the end of the cell, and then fell to the floor. The defendants then locked the cell door and went out into the other room of the police station, and did not return to the cell any more.

The defendants both denied that plaintiff had been struck or beaten. They testified that he was unsteady on his feet, thick of speech, and had the odor of alcohol on his breath. They denied that he asked to have an attorney called. They also denied knowing the plaintiff before the time of his arrest.

The boy Phillip Oglesby at the time of this trial was 13 years old. He said that on the afternoon of Jan. 1, 1951,'he had been to a show, and then went into the Rexall Drug Store, bought some comic books, and ordered a drink of hot chocolate. Plaintiff was sitting at the soda fountain and paid for the chocolate. Plaintiff asked the boy if he knew where Frankie Noble lived, and the boy said he did not. He left the drug store, and plaintiff followed him and spoke to him again outside. The boy then started to walk down Whittlesey Avenue toward his home, and plaintiff walked along beside him. It was then dark. Some distance down the street, the plaintiff said to the boy “I’m not the type that would cut your throat.” The boy was somewhat frightened, and some distance farther on he turned off onto Fruen Street, and then started to cut between the houses on that street, when the plaintiff tried to put his hands on the boy’s “privates” and put his other hand on the boy’s shoulder. The boy testified “He grabbed between my legs.” The boy then started to cry and,ran away to his home, which was near. On cross examination the Oglesby boy testified that when they got on Fruen Street, the plaintiff didn’t say “Don’t go away, I’m trying to find Frankie Noble.” He just asked him to walk further down the street and didn’t say why. He also said that the plaintiff took hold of his trousers, and tried to hold him, but that he tried to shove plaintiff away and then ran across the fields to his home. He was badly scared, and told his father.

Mason Oblesby, the father, is a highly respectable resident of the Community. He testified that his son came into the house, appearing frightened, and with his pants opened. He then called the police, and went with the defendant DeWalt. After some time they saw a man standing near his house. He got out of the car, and discovered it was the plaintiff. He went to him and put his hands on him. DeWalt said “Let the judge take care of it.” The plaintiff appeared to have been drinking, and to be in the “blackout stage.” He was drunk. He staggered and said over and over that he was looking for Frankie Noble. This witness further testified that after plaintiff left with the defendant DeWalt, he went to the police station, arriving within five minutes after plaintiff and defendant got there, but he did not see the plaintiff there. The defendants said the plaintiff was in a cell.

The defendants also offered testimony tending to indicate that plaintiff had had considerably more to drink then plaintiff’s evidence claimed. They also offered evidence that the plaintiff, the morning after his arrest, had a black eye and some blood on his shirt collar, but when asked what happened to him said “I don’t know,” and did not say he had been struck by anyone.

From this resume of the testimony that was offered, it is clear that if it is viewed in the light most favorable to defendants, it would be impossible to say that reasonable minds could not differ, but must find in favor of the plaintiff. Viewed in that manner, there could not possibly be a verdict for the plaintiff, for there would not even be any showing that he was assaulted.

However, the plaintiff claims that most, if not all of the affirmative showing of the defendants is incompetent. The plaintiff’s theory is that, as the record shows, subsequent to his being taken to the police station, he was charged in the Juvenile Court of Huron County, Ohio, with acting in a manner tending to cause the delinquency of a minor; that the affidavit was signed by the defendant DeWalt; that no other charges of any kind were preferred against him; and that he was after-wards acquitted and discharged of this offense by the Court of Appeals, by a judgment which is now final. By reason of these circumstances, the plaintiff claims that his alleged arrest was void ab initio; that the defendant had no right to use any force whatever upon him, or to place him in the jail cell; and that consequently, even accepting defendant’s testimony that he was not struck, but was injured by reason of falling when placed in the cell, he is entitled to judgment in his favor.

In support of this contention, which, as already pointed out, plaintiff has advanced consistently by motions, demurrers to the pleadings, and by timely objections and motions during the course of the trial, the plaintiff cites the following authorities.

Fess instruction to jury. Sections 51.2, 51.3, 51.4, 51.7, 51.10.
Leger v. Warren, 62 Oh St 500, Syllabus 2, Page 506.
Bock v. Cincinnati, 43 Oh Ap 257, Syllabus 4 & 5.
Tracy v. Coffey, 8 O. C. C. N. S. 88, Syllabus 3, Page 91, 92.
State v. Lewis, 50 Oh St 179, Syllabus; Pages 185, 186, 189.
Pletcher v. Younker, 44 Oh Ap 80, Pages 84 & 85.

Tending to cause delinquency of a minor is only a misdemeanor. Sec. 1639-45 GC.

25 O. Jur., Page 947.

Province of court and jury as to existence of probable cause for arrest. Malicious Prosecution, Section 74; Cincinnati v. Wennes, 25 O. C. C. N. S. 321; 37 O. C. C. 408.

23 O. Jur. Judgments, Sections 72, 73 & 74, Pages 578, 579.
C. & S. B. Telephone Co. v. Cincinnati, 84 Oh Ap 521.

This court has carefully examined these authorities, and found most of them entirely distinguishable from the present situation.

The cited paragraphs from Judge Fess’s “Ohio Instructions to Juries” are instructions in a case of false imprisonment, as clearly appears from the Chapter heading and Section 51.1.

Section 51.3 provides a very concise statement of the two statutes of Ohio dealing with the right to arrest, and is to that extent applicable to the present case, but standing alone, as it must here, it does not support the plaintiff’s contention.

None of the other sections cited are helpful in resolving the questions in this case, which is not a case for false imprisonment, but for assault and battery.

Leger v. Warren, 62 Oh St 500, was a case in which the plaintiff was arrested, held in prison for more than five days, and finally released, but no warrant for his arrest was ever obtained, and no charges were ever filed against him. It is clear from this statement that the case is in no way applicable to the situation here.

Bock v. Cincinnati and Tapp v. Cincinnati, 43 Oh Ap 257 are criminal cases, in which the defendants were arrested on suspicion and searched, and then convicted upon the evidence revealed by the searches. They were discharged, because the court held that there was not probable cause sufficient to justify the arrest.

The present case very definitely presents the question of probable cause, but the facts are so remote from the facts of the present case that the Bock and Tapp cases (43 Oh Ap 257) are in no way helpful in reaching a conclusion as to whether there was probable cause for the plaintiff’s arrest.

The case of Tracy v. Coffey 8 O. C. C. N. S. 88 comes closer than any of the authorities cited by plaintiff to the present case, but it does not appear very helpful to the plaintiff’s contentions. In that case, which again was one for false imprisonment, the defendant arrested the plaintiff without a warrant. The plaintiff resisted, and was locked up by the defendant, and later charged with resisting an officer, from which charge he was, apparently, subsequently discharged.

The Court holds that a police officer who has reasonable ground for believing a felony has been committed may arrest a suspected person without warrant (Syl. 1); that if the suspect refuses to submit to arrest and compels the officers to use force, he is guilty of resisting an officer (Syl. 2); and in an action for false imprisonment the burden is on the arresting officers to show that such a state of facts existed as justified him in making such arrest (Syl. 3). Under this holding, the evidence of the circumstances leading up to plaintiff’s arrest and imprisonment would be competent and material, and if therefrom it could be found that the defendants had reasonable grounds to believe a felony had been committed, they would have had a right to arrest plaintiff, and he would have had no right to resist them. This is, of course, diametrically opposed to plaintiff’s contentions.

State v. Lewis, 50 Oh St 179 is the leading case on the subject of arrest. In that case, defendant, a village marshal, was indicted for second degree murder for causing the death of one Edward Elliott, in the course of an attempt to arrest the latter for commission of a misdemeanor. The defendant had no warrant, and the misdemeanor had not been committed in his presence. The court holds that the officer had no authority in law to arrest the decedent without a warrant.

With this general statement of law there can be no quarrel, but as applied to the present situation it does not help the plaintiff, for the factual situation here, as shown by the evidence, could be taken to show the plaintiff was committing a misdemeanor in the presence of the defendant DeWalt, to wit, a violation of §13194 GC, “Being Pound Intoxicated” and that both defendants had reasonable ground for believing that plaintiff had committed a felony, by reason of violating §12423-1 GC, “Assault Upon a Child Under Sixteen Years,” to say nothing, for fear of getting into a vicious circle, of violating, in the presence of the defendants, §12858 GC “Resisting Or Abusing An Officer” (See Tracy v. Coffey, 8 O. C. C. N. S. 88, Syl 2, Supra).

The case of Pletcher v. Younker, 44 Oh Ap 80, is not helpful here, as the facts are too remote from those of the present case. The action was one for assault and battery, in which the defendant struck the plaintiff with a large club, seriously injuring him. The case holds that where the defendant pleads self-defense, he is liable if he used an excessive degree of force, even though the situation appeared to him to warrant the degree of force used by him. However, assuming that the rule stated is applicable to the present case, the court cannot say that viewing the evidence in the light most favorable to the defendants, reasonable minds could not differ, but must find that the force used by the defendants was unreasonable and disproportionate to the situation.

The quotation from 25 O. Jur. 947 and 948 (Malicious Prosecution, Sec. 74) is again not particularly applicable to the questions presented on this motion, being a mere general statement as to the function of the court and the jury as to the existence or want of probable cause in an action for malicious prosecution.

The case of Railway v. Winnes 25 O. C. C. N. S. 321; 37 O. C. C. N. S. 321; 37 O. C. C. 408, is another action for malicious prosecution. No facts are stated in the opinion. It is interesting to note the language of the court at the bottom of page 322 of the opinion.

“The guilt or innocence of Winnes is in no wise involved in this controversy. It is only a question of information in possession of Woodward or of the Company at the time of the arrest, and whether he acted thereon as would any reasonable, prudent man.”

The court then goes on to hold that probable cause is a mixed question of law and fact, which must be submitted to the jury under proper instructions.

The citation of 23 O. Jur. 578, Judgments, Sections 72, 73 and 78, is not applicable to the particular problem involved here. These sections merely dismiss the general rules concerning motions for judgment notwithstanding the verdict.

The case of C. & S. B. Telephone Co. v. Cincinnati, 84 Oh Ap, 521 is concerned only with the question of a motion for judgment notwithstanding the verdict. The second syllabus lays down the same rule as that in Wilkeson, Admr., v. Erskine & Son, Inc., 145 Oh St 218 (Supra), and requires no further comment here.

It is the opinion of this court that the position of the plaintiff with respect to the defensive matters alleged and proved by the defendants is not correct. The validity of the defense that plaintiff was lawfully arrested, resisted arrest, and was injured when the defendants overcame his resistance must be determined in the light of the situation that was presented on January 1, 1951, and is not affected by the subsequent proceedings. Railway Co. v. Winnes, 25 O. C. C. N. S. 321; 37 O. C. C. 408, (Supra).

Conceding that acting in a manner tending to cause the delinquency of a minor is only a misdemeanor (§1639-45 GC), and that neither of the defendants were present when the plaintiff committed the acts alleged to have constituted this offense, it is still clear, if the evidence be viewed in the light most favorable to the defendants, that the plaintiff was, at the time of his arrest and incarceration, drunk. It is equally clear, upon this same basis, that the defendants had reasonable cause to believe that a felony, to-wit, a violation of §12423-1 GC, had been committed by the plaintiff.

The fact that no charge of violating either of these statutes was afterwards laid against the plaintiff, and that he was afterwards acquitted of the charge which was laid against him, is immaterial.

“If the circumstances of the case are such as to raise a strong suspicion in the mind of the officer that a person has committed an offense against the law * * * and if the circumstances were such as should reasonably warrant an officer, acting as an ordinarily careful, prudent officer should under the circumstances, in so believing, so that there would exist probable cause for such action, then such officer would not be liable for the arrest or detention of one without a warrant and without an offense being committed in his presence, although it afterwards turns out that the party is innocent. * * *” Rudy v. Deitrich, 7 O. N. P. 620 at 622.
“The acquittal is not sufficient to show want of probable cause, because the guilt or innocence of the accused is not the equivalent of the want of probable cause. * * *” Britten v. Granger 13 O. C. C. 281 at 285; 7 O. C. D. 182.
“A person who sits down and deliberately makes a charge against another, is required to look into all the facts that exist in his mind, to some extent, * * * but * * * if the police officer arrested upon view, he cannot proceed in the examination of the facts that appeared in his mind at the time he makes the arrest, but must proceed hurriedly, without investigation, or nine times out ten he would lose the prisoner, * * * even where facts are brought to the notice of the person who institutes the prosecution, that person is acting under more or less excitement, and should not be held rigidly to the rule that would govern people who sit down and deliberately think about the matter after it is all over. * * *” Ibid., page 287.
“The point is made by defense that unless the officer has absolute knowledge that an offense is being committed against the laws of the State, he has no right to arrest without a warrant for a misdemeanor. This claim is not tenable. If the person arrested is, as a matter of fact, in the act of committing such offense, at the time of the arrest, and the officer has information or knowledge which induces him to reasonably believe, and at the time of the arrest he does believe that such offense is being committed, and the arrest is made on that account, this is sufficient.” Ballard v. State, 43 Oh St 340. and see also State v. Pate 7 O. N. P. 543 at 545; 5 O. D. (N. P.) 732.

For the foregoing reasons, it appears to this court that the plaintiff’s contention that by reason of his acquittal, his arrest became illegal ab initio -is not correct. The question is only whether plaintiff’s arrest was lawful or unlawful, and if it was the former, whether he resisted, and suffered his injuries as the result of the defendants attempting, with no more force than was reasonably necessary to overcome plaintiff’s resistance. These questions are matters of fact, and viewing the evidence in the light most favorable to the defendants, this court cannot say that reasonable minds could not differ, but must find these facts against the defendants. The plaintiff’s motion for judgment notwithstanding the verdict is therefore overruled. An entry may be prepared accordingly.


author: By MILLER, J.

text:
    STUBBS et, Plaintiffs-Appellants, v. MITCHELL, M. D. et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4626.
    Decided March 13, 1952.

      Nelson Lancione, Columbus, for plaintiffs-appellants.
    Ralph J. Bartlett, Pros. Atty., Howard F. Wehr, Asst. Pros. Atty., Columbus, for defendants-appellees.
   OPINION

By MILLER, J.

This is a law and fact appeal from the judgment of the Common Pleas Court denying the appellants an injunction against the enforcement of Regulation No. 7 issued by the Board of Health of Franklin County on February 27, 1951. governing the immunization of dogs against rabies. The pertinent parts of the Regulation under consideration are as follows:

“Section 2. Immunization. Any person who keeps or harbors a dog, or dogs, within the limits of Franklin County, shall on or before June 1st, 1951, have such dog, or dogs, immunized against rabies and each twelve (12) months thereafter shall have such dog, or dogs, reimmunized. Provided that any method, other than that of re-immunization described above, approved by the Health Commissioner and authorized by the United States Department of agriculture and/or the State of Ohio Department of Agriculture, may be used. Provided further that dogs need not be immunized before reaching the age of three (3) months. And provided further that dogs entering this jurisdiction temporarily for dog shows, performances or exhibition purposes shall not be allowed out of the owner’s, keeper’s or handler’s control, unless properly immunized, and all dogs entering this jurisdiction for field trials or hunting purposes, or any other purpose shall be properly immunized and immunized dogs shall be accompanied by an immunization certificate accomplished by the veterinarian that has immunized the dog.
“Section 3. Records. All veterinarian immunizing or re-immunizing dogs against rabies shall keep a record of such immunization or re-immunization and shall without delay give to the owner or keeper of the dog immunized or reimmunized a certificate of immunization which shall include a number identifying the individual record, a complete description of the dog, place where dog is kept or harbored, name of owner, keeper or harborer of the dog and his or her address, date and type of immunization or re-immunization and such other pertinent information • as is needed, and the signature and address of the veterinarian. The veterinarian shall also without delay forward the information, required on the certificate described in this section, to the Health Commissioner of Franklin County, or to any agency authorized by the Board of Health to keep these records.
“Section 4. Fees. The certificates described in Section 3 shall be made on forms provided by the Health Commissioner or the agency authorized by the Board of Health to the veterinarian at a fee of 50c for each certificate. This fee shall be used to provide for the enforcement of this regulation.
“Section 6. Penalty. Any person, firm or corporation who shall violate any provision or provisions of this rule and regulation shall be liable to prosecution under §4414 GC, which provides as follows:
“ ‘Whoever violates any provision of this chapter or any order or regulation of the Board made in pursuance thereof, or obstructs or interferes with the execution of such order, or willfully or illegally omits to obey such order, shall be fined not to exceed one hundred dollars or imprisoned for not to exceed ninety days, or both but no person shall be imprisoned under this section for a first offense, and the prosecution shall always be as and for a first offense, unless the affidavit upon which the prosecution is instituted contains the allegation •that the offense is a second or repeated offense.’ ”

The case is presented to this Court upon an agreed statement of facts, of which the following is applicable to the issues raised:

“1. Plaintiffs keep upon their premises dogs which are more than 3 months of age and have not been vaccinated against rabies; said dogs are kept confined within a kennel or otherwise under control; and included among said dogs, are many which are sent abroad by their owners into Franklin County to plaintiffs, either for boarding, grooming, breeding or similar temporary purposes. That such owners will not send their dogs into Franklin County for such purposes if the kennel owner is required to have the dog vaccinated against rabies.
“2. Regulation No. 7 requires among other things that by June 1, 1951, and each 12 months thereafter, all dogs, with certain exceptions, within its jurisdiction be vaccinated against rabies.
“3. Said Regulation No. 7 provides for the assessment of a 50c fee for the certificate of immunization issued to the dog owner or keeper who has his dog vaccinated in accordance with said Regulation; and provides further that said fee shall be turned over to the agency authorized by defendants to enforce the Regulation. The Columbus Humane Society has been designated by the defendants to enforcee said Regulation and has been receiving and accepting the fees paid thereunder.
“4. On several occasions legislative proposals have been introduced in the Ohio General Assembly to delegate authority to the respective boards of health to order compulsory vaccination of dogs against rabies. House Bill No. 433 of the 98th General Assembly is an example of such proposals and is annexed to and made a part of the Stipulation as Exhibit B.”

The first question presented is whether the Franklin County Board of Health has authority to provide by regulation for the vaccination of dogs against rabies and if so, are the exceptions provided for therein arbitrary and discriminatory? The plaintiffs urge that it does not possess such power, the same being limited by §5652-16 GC to declaring a quarantine. This section, in part, provides:

“Whenever in the judgment of any city or general health district board of health * * * rabies shall be declared to be prevalent, such board of health * * * shall declare a quarantine of all dogs in such health district or part thereof.”

The general powers of boards of health are set forth in §1261-42 GC, which provides that,

“The Board of Health of a general health district may make such orders and regulations as it deems necessary * * * for the public health, the prevention or restriction of disease and the prevention, abatement or suppression of nuisances.”

We are of the opinion that there is no conflict between the two sections of the General Code as urged by the plaintiffs, §1261-42 GC permitting the making of such orders as it deems necessary for the prevention and restriction of disease, while §5652-16 GC becomes operative only when in the opinion of the Board rabies becomes prevalent, and then it imposes a duty upon the Board to declare a quarantine of all dogs in the district. The powers of Boards of Health are statutory and they are limited to those expressly conferred or fairly implied from those expressly granted. Marion Township Board of Health v. Columbus, 12 O. D. N. P. 553; Cincinnati v. Allison, 12 O. D. N. P. 376. Since the authority for the exercise of broad powers comes under the police power inherent in the State, the power is practically coextensive with the necessities that may arise for the purpose indicated. Metropolis v. Elyria, 23 O. C. C. N. S. 544. However, it does not authorize the Board of Health to arbitrarily establish a rule without reason, but it leaves in the Board a very broad latitude in determining what is reasonable. Shute v. Elyria, 20 O. C. C. N. S. 383.

We are of the opinion that the Regulation is a reasonable attempt by the Board to prevent and restrict the disease of rabies in the district. It is not discriminatory or arbitrary for the reason that it excepts dogs brought in for show purposes, provided they are not allowed out of the keeper’s or- handler’s control. It would appear that when so handled there would in all probability be no contact with other dogs; hence no exposure to rabies; while the other dogs provided for in the Regulation would be more subject to infection through contact with each other. It is therefore not in violation of Article I of the Constitution of Ohio, or the Fourteenth Amendment to the Federal Constitution.

The next question presented relates to the authority of the Board to levy a fee of fifty cents for the issuing of a certificate as provided in Section 4 of the Regulation. This appears to present a more serious question. The record discloses that the fee shall be collected by the veterinarian administering the vaccine and by him turned over to the Columbus Humane Society as consideration for its undertaking to administer and enforce the Regulation. We have been cited to no statutory authority granting such power to assess a fee and we are not aware of the existence of any such. As previously pointed out, boards of health are creatures of statute and must look to the legislative bodies for the source of their operating funds. It will be noted that the fee is not limited nor bears any relationship to the cost of issuing the certificate, but is for the purpose of enforcing the Regulation. This is an attempt to raise revenue for a public purpose and is therefore a tax. The right to tax is a sovereign power and can only be exercised by the Legislature when delegated by constitutional authority. Mays v. City of Cincinnati, 1 Oh St 269. At page 273 the Court says:

“The power to tax is one of the highest attributes of sovereignty. It involves the right to take the private property of the citizen without his consent, and without other compensation than the promotion of the public good. Such interference with the natural right of acquisition and enjoyment guaranteed by the constitution, can only be justified when public necessity clearly demands it. Being a sovereign power, it can only be exercised by the general assembly, when delegated by the people in the fundamental law; much less can it be exercised by a municipal corporation without a further unequivocal delegation by the legislative body. * * * A license may include a tax or it may not. If the exaction goes no further than to cover the necessary expenses of issuing it, it does not; but if it is made a means of supplying money for the public treasury, we agree with the court in State v. Roberts, 11 Gill & Johns, 506, that it ‘is a tax, is too palpable for discussion’.”

In the case of the City of Toledo v. Buechele, 19 O. C. C. p. 127, a parallel situation arose wherein the Board of Health attempted to collect a fee for the issuing of a permit for the cleaning of privy vaults. The first syllabus provides:

“(1) Where a city, upon the payment of an annual fee of ten dollars, has issued a license to a person authorizing him to carry on the occupation of privy vault cleaner in such city for the period of one year, and where such city requires of him to obtain a permit from the board of health before cleaning a privy vault, it is unreasonable and unlawful for such board of health to exact of him the payment of a fee of twenty-five cents, or fifty cents, for the issuing of such permit.”

We are of the opinion that Section 4 of the Regulation relating to fees is contrary to law. We find, however, no unlawful delegation of power to the Columbus Humane Society for the enforcement of the Regulation. This authority is purely administrative and the Society, it appears,.is peculiarly equipped for the performance of such a service. The view we have taken of Section 4 of the Regulation shall not invalidate the other provisions of the Act, because of the saving clause in Section 8 thereof, which provides:

“Section 8. Unconstitutionality Clause. If any section, subsection, sentence, clause or phrase of this rule and regulation is for any reason held to be unconstitutional, void or invalid, the validity of the remaining portions of this rule and regulation shall not be affected thereby.”

It is therefore the order of the Court that the defendants be enjoined from enforcing the provisions of Section 4 of the said Regulation, and that the prayer be denied as to all remaining sections.

HORNBECK, PJ, WISEMAN, J, concur.


author: By MERRICK, J:

text:
    LAZZARO, Jr., In Re.
    Common Pleas Court, Cuyahoga County.
    No. 62767.
    Decided March 27, 1953.

      Frank T. Cullitan, Pros. Atty., John J. Mahon, Asst. Pros. Atty., Cleveland, Wolf & Kruchkoff, amicus curiae and for the witness.
   OPINION

By MERRICK, J:

I am in receipt of your request of February 19, 1953, submitting certain questions which were propounded to the aforementioned witness in proceedings before the Grand Jury. To each of the questions the witness has refused an answer, and has asserted that such refusal is based upon his opinion that an answer might tend to incriminate him.

Two of the questions, seeking to elicit whether or not the witness made a loan or loans from banks without expressing the purpose for which the loans were made are proper and should be answered by the witness. Any answer to these questions would not tend to incriminate the witness.

The remaining twelve questions fall into a different category. From their very nature, it is indicated that the elicitation of some connection with an alleged gambling house is being sought. Answers to these questions might establish that the witness visited a gambling room or indulged in gambling, either of which is a violation of law punishable upon prosecution and resultant conviction.

Sec. 10 of Article I of the Ohio Constitution provides:—

“No person shall be compelled, in any criminal case to be a witness against himself. . .”

It is a well established principle that no person may be compelled to testify where that testimony may incriminate him or lay the foundation for a criminal prosecution against him. There is no law which will punish a witness for refusal to give such evidence. To this principle courts will admit no exceptions but those which have been made by statute. 42 O. Jur., Page 44. State of Ohio v. Murray, 82 Oh St, 305.

A witness is excused from answering not only where the effect would be to involve him in guilt, but also where his answers would furnish one essential link in a chain of testimony conducing to the same end. It is a generally recognized rule that the witness cannot be compelled to disclose any fact which forms a necessary and essential link in a chain of testimony that would be sufficient to convict him of any crime. 28 Ruling Case Law, 433.

Moreover, if, from the evidence and the nature of the question, the Court can definitely determine that the answer will form a link in the chain of evidence to establish the commission of a crime by the witness, it cannot inquire whether the witness claimed his privilege in good faith or otherwise. Ex parte Irvine, 74 F. 954.

The rights intended to be protected by the constitutional provision that no man accused of crime shall be compelled to be a witness against himself are so sacred, and the pressure toward their relaxation so great when the suspicion of guilt is strong and the evidence obscure, that it is the duty of courts liberally to construe the prohibition in favor of personal rights and to refuse to permit any steps tending toward their invasion. O. Jur., Vol. 42, Page 54.

This protection extends to witnesses called before the grand jury, who claim the privilege and do not voluntarily testify. 28 Ruling Case Law, page 426; Burke v. State of Ohio, 104 Oh St, 220.

As constitutional provisions privileging witnesses from giving-self-incriminating evidence are intended solely for the protection of the witness, and have no proper application when the witness is not in danger of actual conviction, it is generally conceded that, where statutory immunity has been conferred upon the witness, and such immunity is full and complete by preventing prosecutions against the witness on account of any transaction, matter or thing testified to such witness may be compelled to testify and held guilty of contempt in refusing to do so, without violating the constitutional privilege against self-incrimination. Mouser v. Public Utilities Commission of Ohio, 124 Oh St, 425.

Ohio has granted immunity generally and extensively to any person called on behalf of the State to testify in a matter concerning the violation of any one of the many statutes which declares it a misdemeanor to indulge in any form of gambling. This is contained in §13444-4 GC. So much of that statute as is applicable in the instant matter reads as follows:—

“If a person called to testify on behalf of the State before a magistrate, the grand jury or court, upon complaint, information, affidavit or indictment, discloses a fact tending to incriminate himself as to a misdemeanor hereinafter named, he shall be discharged from liability for prosecution or punishment for such offense, viz: — . . . permitting a game for wager to be played ... in a house, building or erection, ... or playing a game therein . . . for wager, or betting or wagering on the hands or sides of persons so playing . . .”

It is readily apparent that if this statute is applicable in the instant situation the witness should be compelled to answer the questions. It is to be conceded that the chain of inquiry indicated by the questions propounded to the witness point directly to subsequent questions that would attempt to elicit whether he gambled at the Euclid Bridge and Whist Club or had some part in operating any public gambling game being played at that place.

The circumstances in this case are identical with those present when the Supreme Court of Ohio decided the cases of Hebebrand, Miller and Patton v. State of Ohio, 129 Oh St, 514.

This case arose in Cuyahoga County and grew out of an inquiry by the grand jury, similar in pattern to the case -at hand.

In December, 1934, the grand jury, not acting under any written charge made against an accused, but acting upon its own initiative, proceeded to inquire into certain gambling activities conducted in the county by certain “clubs.” The defendants were called as witnesses before the grand jury for examination. A series of questions was propounded to each witness similar in character, which, taken as a whole, had the tendency to acquire the witness’ knowledge of the club’s activities and his connection therewith. Some of these questions were answered by the defendants, but they refused to answer others, each witness stating as a ground for his refusal that his answers would tend to incriminate him. Acting under the provisions of §13436-11 GC, defendants were haled before the judge, who instructed defendants to answer the questions, including those that tended to incriminate the witness. Still persisting in their refusal to answer in compliance with the order of court, the defendants were each found guilty of contempt. They appealed and eventually the case reached the Supreme Court of Ohio.

Excerpts of the opinion of Judge Jones in that decision disposes of the question which is raised in the instant case and gives the reasons therefor. The liberty is being taken to quote extensively from that opinion as follows:—

“No one doubts the power of a grand jury to investigate, on its own initiative, crimes and offenses committed within the county, and its prerogative so to do is not impinged upon by this or any other statute. But here we have a statute embracing plain and unambiguous terms. It gives immunity to a witness only when he is called to testify on behalf of the state ‘upon complaint, information, affidavit or indictment.’ There is no question that informations, affidavits and indictments require legal process and must be couched in written form charging an individual with a specific offense and apprising a court or magistrate of its nature. The term ‘complaint’ is grouped with the other terms, viz: — ‘information, affidavit or indictment,’ which do require formal, legal process and, being included in that group, should be given the same legal meaning.
“Had an accused person been bound over by a magistrate, under the provisions of §13433-10 GC, it might be plausibly argued that the grand jury was acting upon complaint initiated by affidavit. However, that feature is not presented in this record. The grand jury is an inquistorial body. In this instance, there could be no ‘complaint’ until after the investigation was concluded by the grand jury. In law, the word ‘Complaint’ connotes a formal written charge of some specific offense and alleges that a crime was committed by a specified offender. In defining the word ‘complaint’ when used in legal proceedings, Webster’s New International Dictionary defines it as follows: ‘Law. A formal allegation or charge against a party, made or presented to the appropriate court or officer, as for a wrong done or a crime committed.’ In ‘Words and Phrases’ is found the following definition of the same term: — ‘A “complaint” is a form of legal process, which consists of a formal allegation or charge against a party, made or presented to the proper court or officer, as for a wrong done or a crime committed.’ ”
“In our own state, prosecutions for misdemeanors by information, in lieu of indictment, in our Common Pleas Courts, are provided for by §13437-34 GC. This section distinctly stipulates that informations must have the same legal forms and sufficiency required of indictments. Prosecutions for gambling can only be instituted by affidavit, information or indictment which require written process. Ohio has provided no authority for such prosecutions by initiating unwritten, informal ‘complaints’ — a practice which is unknown to our Code of Criminal Procedure. The terms ‘complaint’ and ‘affidavit’ are often used interchangeably, as in §13429-6 GC; and if, in this instance, we should give the word complaint any validity, we must necessarily construe it as meaning a written complaint initiated by way of affidavit, information or indictment; otherwise we must discard it altogether.
“In construing penal statutes, we must adhere to the well-settled rule that they require a strict rather than a liberal construction . . . The Legislature has recognized this rule in criminal proceedings as shown by its adoption of the latter clause of §10214 GC, stipulating that the ‘section shall not be so construed as to require a liberal construction of provisions affecting personal liberty, relating to amercement, or of a penal nature.’ Adhering to this rule, and giving to the term ‘complaint’ its legal signification, . . . since there was no information, affidavit or indictment, nor any written complaint before the grand jury for investigation, the claimed immunity statute, §13444-4 GC does not, and was not intended to apply to proceedings like the instant one. . .”

This reasoning of the Supreme Court of Ohio, handed down in the year 1935 in a case identical in fact to the one at hand is summed up in the third syllabus of that case as follows:— “Where no written complaint or affidavit, information or indictment has been lodged against anyone, the provisions of such section do not apply, as the witness is not called to testify ‘upon complaint, information, affidavit or indictment,’ and in such a case a witness may refuse to answer questions that have a tendency to incriminate himself.”

This Court must follow this ruling of the highest court in the state and advise you that the witness Lazzaro was within his rights in refusing to answer the 12 questions under consideration. In so doing, I am cognizant of the fact that the law thus hampers a grand jury investigation into organized or commercialized gambling without some specific charge being-preferred against some person on such gambling charge before some court or magistrate. Otherwise the witnesses may refuse to answer the questions pertinent to establish the existence of this vice. Experience teaches that such witnesses are usually reluctant ones, not of the type enthusiastic for law observance or enforcement. There is no doubt but that the Legislature originally intended to strengthen the hand of the law by the enactment of this immunity statute and that such strength was designed to extend to grand jury inquiries. Some amendment to the statute might be advisable. This Court cannot make or amend the law, but must enforcce it as it is written and in the form and manner as directed by our reviewing courts.


author: By SKEEL, PJ.

text:
    ASSOCIATES DISCOUNT CORP., Plaintiff-Appellee, v. MAIN STREET MOTORS INC., Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22311.
    Decided February 11, 1952.
    M. A. Roemisch, Cleveland, for plaintiff-appellee.
    Terrell, Williams & Salim, Philip Kasdan, Cleveland, for defendant-appellant.
   OPINION

By SKEEL, PJ.

This appeal comes to this Court on questions of law from a judgment entered for plaintiff in Common Pleas Court of Cuyahoga County, Ohio.

The plaintiff is an Indiana corporation, authorized to do business in the State of Ohio and Michigan, and is in the automobile finance business. The defendant, an Ohio corporation, is engaged in the used car business in the City of Cleveland.

The defendant, through one of its employees, together with a Detroit agent, purchased from the Bud Ford Motor Sales, a partnership, dealing in automobiles in the City of Detroit, Michigan, two Chevrolet automobiles for the sum of Eighteen Hundred Dollars ($1800.00). The sale took place in Detroit, where, upon the completion of the transaction, the consideration was paid in full. The automobiles at the time of purchase were in Toledo, it being represented that they had been sent there to be disposed of in an auction. They had, however, not been sold.

The Bud Ford Motor Sales, when purchasing these cars, had received from the prior owners assignments of the certificates of title as provided by Michigan law. These certificates were assigned to defendant when this transaction was concluded, and the consideration paid. After Bud Ford Motor Sales purchased the two automobiles they mortgaged them to plaintiff as security for a loan totalling $2060.00. The mortgage was recorded as required by the laws of Michigan, with the Registrar of Deeds of Wayne County, Michigan. The lien of these mortgages was not noted on the certificates of title and when defendant made the purchase above described it was represented that there were no mortgage liens thereon.

Defendant took delivery of the automobiles in Toledo, Ohio, brought them to Cleveland where they were sold. The plaintiff, upon discovering that the defendant had disposed of said automobiles, brought this action in conversion.

The mortgages above noted provided in part that Bud Ford Motor Sales was to keep the automobiles at their place of business in Detroit and upon sale to hold the proceeds in trust and deliver the same to the mortgagee, and directed the purchasers to see that the proceeds were so applied.

Before selling the automobiles, defendant, with the use of the Michigan certificates of title assigned to it in Detroit, procured certificates of title under Ohio law by the use of which title was transferred from defendant to the purchasers who are designated in the record as “unknown.”

From a judgment in favor of plaintiff, for the balance due on the foregoing mortgages as damages for conversion of said automobiles, the defendant claims the following errors:

1. That the judgment is not sustained by sufficient evidence.

2. That the judgment is contrary to law.

3. For other errors of law appearing upon the face of the record.

The facts essential to determine the legal questions here presented are not in dispute. The contract by which defendant purchased the automobiles which it is claimed were converted, was made in Michigan so that for the most part, we must be guided by the law of that State. As shown by the evidence, the rules governing the recording of chattel mortgages are provided for by Sec. 566: 140 of Vol. 3 of the Compiled Laws of Michigan. The provisions of this statute make the filing of a chattel mortgage notice, to all persons who deal with the property mortgaged, of the conditions and terms thereof and the interest of the mortgagee in such property. There is no dispute but that the plaintiff recorded its mortgage upon the execution thereof by Bud Ford Motors Sales, as security for money loaned on the two automobiles with which we are here concerned, said automobiles being fully described in the mortgage.

There is no evidence as to whether under the law of Michigan a chattel mortgage passes the legal title of the property mortgaged to the mortgagee or an equitable lien is created. We must assume therefore, that the law in Michigan is the same as in this jurisdiction. Mendelson v. Mendelson, 123 Oh St 11; 173 N. E. 615; Bobola v. Bobola, 68 Oh Ap 63; 33 N. E. 845.

In Ohio, the mortgagee becomes the owner of the legal title of the property mortgaged. Metropolitan Securities Co. v. Arlow, 107 Oh St 583.

The act of Bud Ford Motor Sales in selling the two automobiles in total disregard of the rights and title of plaintiff therein, constituted a conversion of such property and for that reason, at the time of the sale to the defendant, said defendant became a convertor and, by virtue of the statute, charged with knowledge of plaintiff’s mortgage interest. There is no evidence that defendant, through its agent and employee, had actual knowledge of the mortgage title of plaintiff, but if the seller committed an act of conversion in selling the automobile, unless for some reason the doctrine of estoppel is applicable, the buyer is in no better position than the seller.

It is claimed by defendant that the plaintiff is estopped from enforcing its mortgage interest on the two automobiles purchased, or from claiming damages because of their conversion, because it permitted the mortgagor to retain possession of the automobiles for purposes of sale under what is known as “Floor Plan Financing.” This claim cannot be supported. The defendant was a dealer in automobiles, not a purchaser at retail. The defendant, through its officers and agents, was fully informed on the subject of automobile sales agency floor plan financing. The defendant was also informed that the automobiles purchased were not at the seller’s place of business, as is the general rule with regard to automobiles so mortgaged. Nor did the sale take place at the sales rooms of Bud Ford Motor Sales. Defendant’s agents did not see the automobiles until after the purchase had been made. One other factor is undisputed in the evidence, and that is that the purchase price was $385.00 (or more than 15%) under the prevailing wholesale prices for automobiles like the ones purchased. All of these facts completely negative any claim of estoppel based on the claim that the mortgagee knew that the mortgagor would sell the automobiles in the regular course of his business and that innocent purchasers would be deceived thereby.

Plaintiff has put in evidence two Michigan cases in support of its claim of estoppel. Daas v. Contract Purchase Co. 318 Mich. 348; Hughes v. National Discount Corp. 326 Mich. 244. Both of these cases had to do with retail transactions when the purchasers were not informed about floor plan financing.

There being no Michigan law in point introduced into evidence, where the transaction was between dealers, we must again assume that the law there is the same as in Ohio. We have some support for this conclusion in the case of National Bond Investment Co. v. Union Investment Co. 260 Mich. 307, where a floor plan mortgagee was given priority for its mortgage over the claimed subsequent lien acquired by another finance company. This case, however, was not introduced into evidence.

In Ohio, the question has been decided by the cases, of National Guarantee & Finance Co. v. Pfaff Motor Car Co., 124 Oh St 34; and Colonial Finance Co. v. McCrate, 60 Oh Ap 68. Paragraphs 1 and 2 of the syllabus of Pfaff Motor Sales Co. case, supra, provide;

“1. Where possession of an automobile for purpose of display in his show rooms is given a dealer, who afterwards mortgages such automobile to a finance company, such dealer having no authority, express or implied, to pledge or mortgage such automobile, the owner, and bailor of such automobile is not estopped to recover his property from the pledgee or mortgagee who may have taken possession thereof under his mortgage.
“2. The so-called floor plan rule, whereby an owner who has placed a car on the floor of a retail dealer’s showroom for sale is estopped to deny the title of an innocent purchaser who has purchased from such dealer in the ordinary retail dealing, without knowledge of any conflicting claim, does not apply to a pledgee or mortgagee.”

Likewise, paragraphs one and two of the McCrate case, supra, provide:

“1. An innocent purchaser for value from a retail dealer in automobiles, of an automobile displayed upon the dealer’s salesroom floor for sale, is protected as against the owner of such automobile, which under the laws of Ohio would include a mortgagee upon a chattel mortgage from the dealer.
2. A sale by a retail dealer, at wholesale, to another retail dealer does not come within the protection of the above rule, and the mortgagee of such automobile is not estopped or precluded from asserting his mortgage against the dealer-purchaser of such automobile.”*

Defendant’s claim of estoppel is not strengthened by the fact that the assigned Michigan certificate of title did not have noted thereon the lien of plaintiff. The assigned certificates of title were issued to the former owners and each was dated prior to the date Bud Ford Motor Sales took possession of the certificates and the automobiles. A lien created by a subsequent owner would, therefore, not appear thereon nor was it required by the law of Michigan that the mortgagee should cause such notation to be made.

Plaintiff introduced into evidence the statutory provisions of the law of Michigan dealing with certificates of title of automobiles. They are sections 256:102 and 256:103 Vol. 2 Compiled Laws of the State of Michigan for 1948. An examination of these sections discloses that the lien of a mortgage may be noted on a certificate of title, but failure to do so does not destroy the lien of the mortgage. The recording act, and the purposes therefor, were not changed by the Motor Vehicle Title Law, as is true in Ohio, and by Section 256:103 supra, a licensed dealer is exempt from the need of having the assigned, certificate received on the purchase of a motor vehicle, reissued in the name of such dealer purchaser. The certificates of title here in question were assigned to the defendant by Bud Ford Motor Sales in full compliance with Michigan law and under the law the defendant had no legal right to believe that all mortgage liens would be noted thereon.

We come now to the only remaining question which concerns the right of plaintiff to maintain this action in Ohio, where the plaintiff’s lien was not noted on the certificate of title procured by this defendant after bringing the automobiles to Cleveland as required by §6290-4 GC. The defendant relies on the case of Kelley Kar Co. v. Finkler, 155 Oh St 541. The facts of the Finkler case, supra, are distinguishable from the case here considered, in a number of important respects; the most important of which is the fact that in that case the contract of purchase of the automobile was made in Ohio upon the representation of title evidenced by a certificate of title issued under the provisions of the Certificate of Title Act, §§6290-2 to 6290-20, inclusive, GC, while in the instant case, the defendant claims title to or damages for the conversion of the motor vehicles under a contract made in Detroit, Michigan, by the authority of which it took possession of the automobiles in Ohio before an Ohio certificate of title had been issued. The act of conversion in taking possession as owner, in absolute disregard of plaintiff’s interests, preceded in point of time the creation of a certificate of title in Ohio. It must also be noted that in the instant ease, the defendant by the affidavit of one of its officers represented that there was no lien on the motor vehicles for which the certificates of title were requested and induced the County Clerk to issue the certificates of title which failed to disclose the plaintiff’s lien which certificate the defendant now seeks to use as a bar to the right of plaintiff to maintain this action, while in the Finkler case the fraudulent application was made by the person from whom the defendant purchased the motor vehicle. It seems strange that by the law of the Finkler case a certificate of title induced by fraud and perjury is given absolute verity and permitted to destroy the lien of a valid mortgage made in a sister state, in spite of the fact that the courts of this state have recognized and enforced obligations of that character, since the case of Kanaga v. Taylor, 7 Oh St 134, decided in 1858, and in the face of the holding of the Supreme Court in Finance Co. v. Munday, 137 Oh St 504, in which the court said, in speaking of the effect of fraud in securing the issuance of a certificate of title under §6290-2 to 6290-22 GC, inclusive:

“Besides the certificate of title being issued upon the false representations of Munday and/or North Side Auto Sales was void ab initio. The very purpose of the law is to protect ownership against fraud. * * *.
“Therefore, the certificate of title introduced in evidence in behalf of appellant (plaintiff below) is clearly invalid and the appellant has no right to rely upon the same.”

However, the rule of the Finkler case, supra, is not applicable to the instant case because of the distinguishing facts herein set forth. The plaintiff’s right to seek redress on a cause of action founded on the conduct of the parties prior in point of time to the defendant’s application for a certificate of title under the Ohio law, certainly cannot be destroyed by the act of defendant in thereafter causing a certificate of title to be issued without noting plaintiff’s mortgage.

For the foregoing reasons we find that the errors complained of by the appellant are not sustained and the judgment is therefore affirmed. Exc.

HURD, J, THOMPSON, J, concur.


text:
    BLACKWELL, Plaintiff-Appellant, v. COLUMBUS AND SOUTHERN OHIO ELECTRIC COMPANY, a Corp. et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4599.
    Decided October 4, 1951.
    Adams, Tyler & McCann, Columbus, for plaintiff-appellant.
    Wright, Harlor, Purpus, Morris & Arnold, Rudolph Janata, Jr., of Counsel, Columbus, for defendants-appellees.
   OPINION

By MILLER, J.

This is an appeal on questions of law from the order and judgment of the Court of Common Pleas sustaining the motion of the defendant-appellee, Edward J. Lupton, to quash the service of summons upon him. The record reveals that on May 6, 1950, the plaintiff-appellant filed his petition in the Court of Common Pleas seeking to recover damages for personal injuries arising out of a collision between a trolley bus and an automobile operated by the defendant-appellee, Lupton, in the State of Ohio. The caption of plaintiff’s petition shows the address of the defendant-appellee to be 6 Surrey Lane, Euclid Beach Park, Cleveland, Ohio. A praecipe was filed for the issuance of summons and the sheriff returned the writ unsatisfied with the following notation: “Received this writ May 8th, 1950, at 10:48 o’clock A. M., the within named Edward J. Lupton — not found in my county. (Defendant lives in Florida.)”

Then a second praecipe was filed requesting the clerk to issue an alias summons to the sheriff of Franklin County upon “the defendant, Edward J. Lupton, now a nonresident of the State of Ohio, and whose last known address was 6 Surrey Lane, Euclid Beach Park, Cleveland, Ohio.” To this writ the sheriff made his return showing that he had served the defendant by leaving a true and certified copy of the writ, etc., upon Charles F. Sweeney, Secretary of State, in accordance with §6308-1 et seq. GC, and also that he served the defendant through registered mail by sending the process to his last known address at Cleveland, Ohio. Attached to the return of the summons was a registered mail return receipt card showing that the process had been received at the defendant’s address at West Palm Beach, Florida. Upon this record the defendant filed a motion for an order quashing the service of summons and setting aside the return thereof for the reason that the petition did not affirmatively allege that Lupton was or had become a nonresident of the State of Ohio. This motion was sustained, and which is the alleged error complained of.

Although the question is not raised in the assignments of error or briefs we think the order appealed from is a final order since it has the consequence of ending the case by holding that the defendant is not amenable at all to the jurisdiction of the court and its processes under the facts pleaded. Urschel v. Hannin, 25 Oh Ap 368; Uthoff v. DuBrie, 63 Oh Ap 285; Gorey v. Black, 100 Oh St 73.

At the outset it may be noted we recognize that since the statute is jurisdictional and in derogation of the common law, it must be strictly construed. Parr v. Gregg, 70 Oh Ap 235; Donnelly v. Carpenter, 55 Oh Ap 463. While §6308-1 et seq GC, sets up the means by which service of summons may be had upon a nonresident operator of a motor vehicle or upon a resident who shall subsequently become a nonresident or shall conceal his whereabouts, we find nothing in the statute nor in any court decisions which requires an affirmative allegation in the body of the petition that the defendant has removed himself from the state or is concealing his whereabouts. The fact that the defendant has removed himself from the State cannot in any way alter the cause of action which the plaintiff has against him. The only thing that it alters is the manner in which the defendant shall be legally notified that suit had been brought against him. The record reveals that the service was had in compliance with the requirements of the statute. The trial court based its decision on the case of Mercer Casualty Co. v. Perlman, 62 Oh Ap 133. An examination of this case, we think, discloses that it is neither analogous nor applicable to the case at bar. The cause of action in that case was based upon an assignment of a claim which arose out of an automobile collision and service of summons upon the nonresident defendant was attempted under §6308-1 et seq. GC. In that case the court properly held that a cause of action on an assignment could not be the basis of service under §6308-1 et seq, GC, because those Code sections are limited to actions arising out of accidents or collisions involving a motor vehicle. Since the petition showed on its face that the cause of action was not covered by the statute the court properly ruled on the motion to quash by sustaining the same. In the case at bar the cause of action is squarely within the statute and whether or not the defendant has removed himself from the state does not in any manner alter the cause of action against him. The plaintiffappellee calls our attention to the case of Couts v. Rose, 152 Oh St 458, where the facts seem to be parallel, but a different question was involved. However, the Supreme Court seems to recognize that service had been secured on the defendant under the Code Sections involved herein.

The judgment will be reversed and the cause ordered remanded for further procedure according to law.

HORNBECK, PJ, WISEMAN, J, concur.