author: By MILLER, J.

text:
    DONOVAN et Plaintiffs-Appellants, v. DECKER. Exr. of the Estate of Dana McBride, deceased et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4890.
    Decided October 8, 1953.
    George T. Tarbutton, Benoy & Sebastian, G. W. Fais. of Counsel, Columbus, for plaintiffs-appellants.
    Robert W. Newlon, Lloyd E. Bilger, Richard C Addison, Columbus, for defendants-appellees.
   OPINION

By MILLER, J.

This is a law appeal from the judgment of the Common Pleas Court sustaining the defendants-appellees’ motion to vacate its judgment entered at a prior term of court for the reason that the court had no jurisdiction to enter the same. The action was to contest the will of Dana McBride and was brought by Edward D. Donovan and William J Donovan claiming to be "interested persons” under §12079 GC in that they were brothers of the deceased wife of the testator; that the testator, Dana McBride, died without issue, leaving an estate consisting of the identical property inherited from his deceased wife, Mary McBride; that therefore, by virtue of the half and half statute, §10503-5 GC, they so qualified as “interested persons.”

It should be noted that the two Donovan brothers were the sole parties plaintiff.

The matter was tried before a jury, proceeded to judgment upon the verdict overturning the will and the same was sustained upon appeal to this Court.

Thereafter, at a later term of court, certain defendants filed a motion in the Common Pleas Court to vacate the judgment of the trial court. The motion was based on the ground that the trial court had no jurisdiction to hear the cause or enter judgment. The motion came on for hearing and evidence was adduced to the effect that the testator, Dana McBride, did not die without issue but was survived by two children, who also filed a motion requesting the court to amend the pleadings by adding their names as parties plaintiffs to the case.

The plaintiffs first urge that the .defendants pursued the wrong remedy in attempting to vacate the judgment; that the remedy should have been by petition to vacate instead of by a motion. The remedy to be pursued, we think, is dependent upon whether or not the judgment is void or merely voidable. The motion to vacate was filed on the ground that the Court had no jurisdiction and that the judgment was voia ab initio. We are in accordance with the appellees' contention that the judgment was void. The enjoyment of the right to contest a will “is dependent upon compliance with the statutory conditions and limitations and a failure to comply extinguishes such right.” Case v. Smith, Admx., 142 Oh St 95.

In the case of Peters v. Moore, 154 Oh St 177, Judge Weygandt, speaking for a unanimous court says:

“Inasmuch as the right to contest a will in Ohio is based on mandatory, jurisdictional statutes and the plaintiff has failed to comply with the requirement that the executor be made a party and a summons issued within six months after the will has been admitted to probate, the trial court was correct in dismissing the action.”

The question of jurisdiction may be raised at any time when there is a void judgment.

“A court has inherent power to vacate or modify its judgment after term, for good and sufficient causes, other than those specified in §11631 GC, the remedy provided in said section being cumulative and not exclusive.” Bennett v. Fleming, 105 Oh St 352; Hayes v. Kentucky Joint Stock Land Bank of Lexington, 125 Oh St 359; Haley v. Hanna, 93 Oh St 49.

The distinction between void and voidable judgments is clearly pointed out in the case of Snyder v. Clough, 71 Oh Ap 440. The first syllabus of that case is as follows:

“1. Secs. 11631 to 11643 inclusive, GC, apply to voidable judgments only; hence a judgment void ab initio because of lack of jurisdiction over the person against whom such judgment was rendered, may upon motion be vacated after term by the court which rendered the judgment, without regard to the provisions of those sections.”

This Court, in the case of Shaman v. Roberts, 57 Abs 502, in an opinion by Judge Wiseman, followed the case of Snyder v. Clough, supra, and the court says, at page 504:

“Secs. 11631 to 11643 GC, inclusive, apply to voidable judgments only, and have no application to a void judgment ”

It is our conclusion that the defendants pursued the proper method in attacking the judgment.

It is next urged that the Donovans successfully maintained the burden of proof in the original action establishing that they were “interested parties” who had a legal right to contest the will. A definition of an interested party is found in Bloor v. Platt, 78 Oh St 46, and Chilcote v. Hoffman, 97 Oh St 98, as follows:

“Any person who has such a direct, immediate and legally ascertained pecuniary interest in the devolution of the testator’s estate as would be impaired or defeated by the probate of the will, or be benefited by setting aside the will, is ‘a person interested.’ ”

It is therefore necessary before a person can bring an action . to test the will of another that he meet the standards set forth above as an interested person. If he does not fall into this classification he is not a proper party plaintiff and therefore would have no right to bring the action and any judgment rendered under such circumstances would be void because of lack of jurisdiction. As stated in the case of Case v. Smith, Admx., 142 Oh St 95, the' right to contest a will “is dependent upon compliance with the statutory conditions and limitations and a failure to comply extinguishes such right.” See, also, Peters v. Moore, 154 Oh St 177.

We also find that the trial court did not err in refusing to substitute the issue of Dana McBride as parties plaintiff. As Judge King properly stated in his opinion, before substitution is allowable a cause of action must exist.

We find no error in the record and the judgment will be affirmed.

WISEMAN, PJ, HORNBECK, J, concur.


source: Caselaw Access Project

author: By PHILLIPS, J.

license: Public Domain

text:
    TRUITT, Plaintiff-Appellee, v. PENNSYLVANIA RAILROAD COMPANY, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3563.
    Decided October 7, 1953.

      Peter B. Betras, Youngstown, for plaintiff-appellee.
    Harrington, Huxley & Smith, Youngstown, for defendant-appellant.
   OPINION

By PHILLIPS, J.

About 1:30 o’clock on the misty morning of April 23. 1950, plaintiff operated an automobile in a southerly direction onto a track of the Pennsylvania Railroad Company, where it crosses West Avenue at grade in the city of Youngstown, which automobile was struck by one of defendant’s trains then being operated in a westerly direction over such crossing, as the result of which the automobile was damaged and plaintiff was injured.

In his action filed in the court of common pleas to recover for damages to the automobile and his injuries the jury returned a verdict for plaintiff for $2450.00. The trial judge granted a remittitur of $650.00 upon acceptance thereof by plaintiff, and entered judgment for $1800 in favor of plaintiff.

The defendant appealed from that judgment to this court on questions of law, and by assignments of error contends that the trial judge erred to its prejudice “in failing to grant a new trial to this defendant-appellant and upon entering judgment in favor of the plaintiff when the plaintiff failed to prove ownership of his automobile without introducing into evidence a certificate of title as required by §6290-4 GC”; in “failing and refusing to sustain the motion of the defendant-appellant made at the close of all the evidence to direct a verdict in its favor”; in “failing and refusing to enter judgment for the defendant-appellant when the evidence showed that the appellee was guilty of contributory negligence as a matter, of law”; in “failing and refusing to sustain the motion of the defendant-appellant for judgment on the record in its favor notwithstanding the verdict of the jury”; in “failing to grant this defendant-appellant a new trial after finding that the verdict was excessive but not finding that such excess was not caused or brought about by passion or prejudice or both on the part of the jury”; and maintains that the trial judge erred in his general charge to the jury; that there are other errors apparent upon the face of the record; and that the judgment of the trial court is contrary to law.

Plaintiff testified that he stopped the automobile he was operating a distance of about fifteen feet from the track on which it was struck, at a crossing with which he was familiar and knew was unguarded; that he and his companion lowered the windows of the automobile he was. operating, looked along the track in both directions, and seeing no train approaching in either direction operated the automobile upon it; that the deisel engine which hauled defendant’s train was unlighted; that he heard no sound, bell or whistle of the train until alighting from the automobile immediately after the collision.

Plaintiff’s companion testified that no signal of the approach of defendant’s train was given by bell, horn, nor otherwise, before the collision between defendant’s train and the automobile plaintiff was operating.

Four of defendant’s five member crew, who were riding in the cab of defendant’s deisel engine, which was hauling 14 cars, testified in substance that the train was travelling between 10 and 15 miles an hour; that the usual crossing whistle warning was sounded twice as it approached the point of collision; that the headlight was burning, and the bell was ringing; and that the engineer and fireman were at their assigned posts of duty and were keeping a lookout ahead.

Two members of defendant’s crew testified that they thought the automobile plaintiff was driving stalled on the track on which defendant’s train was approaching.

Plaintiff failed to introduce into evidence a certificate of title of ownership of the automobile he was driving when it collided with defendant’s train, which defendant contends “is necessary as part of the proof of the plaintiff before the court is authorized or warranted in entering judgment upon a verdict returned for plaintiff,” and supports that contention by citation of the case of Mielke v. Leeberson, 150 Oh St 528, and §6290-4 GC.

The bill of exceptions discloses the following statement made by plaintiff’s counsel: “Let the record show a stipulation that the plaintiff was at the time in question the sole owner of the 1940 Ford vehicle involved in the crash,” to which defendant’s counsel responded “yes.”

In disposing of this question on defendant’s motion for a new trial the trial judge held that the action we review was not an action to determine title to such automobile, and accordingly the stipulation to which reference has been made sufficed to prove ownership thereof.

In view of such stipulation there was no issue to present to the jury on the question of the ownership of plaintiff’s automobile.

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

“As between a person about to cross over a railroad at a crossing and a train of cars approaching such crossing, the train has the right of way. This is so because the person, or the automobilist, could stop within a few feet and the train cannot. The duty of the driver of an automobile when approaching railroad tracks at a grade crossing, when the vision is obstructed, if it is, is to stop, look and listen, and to do so at the time and place when stopping, looking or listening, will be effective. In other words, it is the duty of the automobilist approaching a crossing right of way to use ordinary care for his own safety, and ordinary care is that which I have defined to you, such a degree of care as an ordinarily prudent and careful person ordinarily and customarily exercises under the same or similar circumstances. The right of the railroad company to enjoy the use of its railroad at the crossing of the public highway, and the right of the traveling public to use the highway, are coordinate and equal. Reasonable care and prudence must be exercised by each in the use of the same.”

Defendant maintains that the portion of the charge reading: “The right of the railroad company to enjoy the use of its railroad at the crossing of the public highway, and the right of the traveling public to use the highway, are coordinate and equal,” is inconsistent, and renders the charge prejudically erroneous.

Further the trial judge charged the jury:—

“Next, the plaintiff claims that the defendant was negli- ' gent in not keeping a lookout ahead. The duty of the defendant in that respect would be, through its engineer, to use ordinary care in maintaining a lookout. Whether or not the defendant was negligent in that respect is an issue of fact for the jury under all the evidence in the case and under the law.”

Further attacking the charge of the trial judge defendant’s counsel contends:—

“This charge, we think, should not have been given to the jury at all and was not and is not justified under the evidence. The plaintiff did not produce even a scintilla of evidence that the members of the train crew were not keeping a lookout ahead of the train as it approached the crossing. Three and perhaps four members of the crew riding in the cab of the Deisel engine testified positively that they were looking ahead of the train as it approached the crossing. We. therefore, respectfully contend that the trial court was not authorized or warranted in submitting such question of negligence to the jury and that in doing so he committed prejudicial error. In fact it might well be that it was because of this part of the court’s charge the jury found against the defendant in the trial court.”

Reading and considering the general charge of the jury in its entirety we find no error prejudicial to defendant warranting a reversal of the judgment of the trial court.

The evidence, some of which has been cited supra, is such in our opinion as to present questions for the determination of the jury thus freeing the trial judge of the charge of prejudicial error in overruling defendant’s motions for judgment to be entered in its favor made at the close of all the evidence and notwithstanding the verdict of the jury returned against it, and refusing to enter judgment in its favor on the ground that plaintiff was guilty of contributory negligence as a matter of law.

Now defendant contends that if this court determines it is not entitled to final judgment on the grounds already disposed of that it is entitled to a new trial for the reason that the trial judge upon plaintiff’s acceptance granted a remittitur notwithstanding he found that the verdict of the jury was not the result of passion and prejudice.

Defendant cites the cases of The Chester Park Co., v. Schulte, Admr., 120 Oh St 273; Jones v. The Macedonia-Northfield Banking Co., et al, 132 Oh St 341; and Larrissey, Admx., v. Norwalk Truck Lines, Inc., 155 Oh St 207.

Defendant states by brief:—

“The rule in Ohio seems to have been the same over a long period of time and as we read and understand the cases that rule required the trial court to find and hold two things before a remittitur, even with the consent of plaintiff’s counsel, could be legally entered in the case. Those two things are, first, that the verdict is excessive, and, second, that the excessive amount was not caused or brought about by passion or prejudice and we do not have such findings in this case and, therefore, feel that the defendant-appellant is entitled to a new trial.”

We find no merit in this assigned ground of error.

Appellant’s counsel has failed to call our attention to “other errors apparent upon the face of the record,” as alleged as a ground of error, or to comply in respect thereto with the provisions of Rule VII of this court that his briefs “shall contain a statement of the questions presented and a succinct statement of so much of the cause, referring to the pages of the record, as is necessary to show how the questions arose, together with a statement of the authorities relied upon.” Accordingly we will not pass upon this assigned ground of error.

The judgment of the trial court is affirmed.

GRIFFITH, PJ, NICHOLS. J, concur.


author: By BARTLETT, J.

text:
    AMERICAN LEGION CLIFTON POST NO. 421, Appellant, v. BOARD OF LIQUOR CONTROL, Appellee.
    Common Pleas Court, Franklin County. .
    No. 189612.
    Decided July 1, 1954.

      Bernard J. McCluskey, Cleveland, for appellant
    C. William O’Neill, Atty. Geni., Kiehner Johnson, Asst. Atty. Geni., Columbus, for appellee.
   OPINION

By BARTLETT, J.

BOARD OF LIQUOR CONTROL ORDER REVERSED, (REJECTING APPLICATION FOR D-4 PERMIT.)

This is an appeal under §119.12 R. C. (formerly §154-73 GC). seeking reversal of an order of the Board of Liquor Control rejecting an application for a D-4 Permit, on appeal from an order of the Director of. Liquor Control rejecting an application for such permit.

The record discloses that the Director rejected the application for the reason that the applicant was “not a reputable organization as required by §4303.17 R. C.,” since the applicant had permitted beer and intoxicating liquors to be sold or given away at its location without being a permit holder contrary to the provisions of §4301 and §4303 R. C., as shown by arrests resulting in convictions, made by the said Department about November 28, 1953, at the location of said applicant for violations of said §4301 and §4303 R. C. (Emphasis ours. )

The Board rejected the application and dismissed the appeal from the order of the Director, for the reason that about November 28, 1953, the appellant “did openly and notoriously engage in the sale of beer and intoxicating liquor without being the holder of a permit,” authorizing such sale, as shown by the conviction of certain agents and employees of appellant in violating §§4301.58 and 4399.09 R. C. (Emphasis ourt. )

The record shows that the appellant is a unit or Post of the American Legion, chartered by act of the Congress of the United States, and is first in priority on filing for such permit: and, it was stipulated by counsel that the appellant was a bona fide club, organized for the benefit of its mem.oers and maintained by a dues-paying membership. It was further stipulated that on November 28, 1953, three members of Appellant Post were arrested and convicted for violating on the premises of appellant Post, §4301.58 R. C. (R. p. 3.)

One Richard Guidos testified that on the date in question, he was an investigator for the Department of Liquor Control, and that he made purchases of a “shot of Scotch and a bottle of beer” on the premises of the appellant. He testified (R p. 8): “I would have to look that up in a report in Cleveland to be exact,” when asked how much he was charged for his drinks. He testified he was alone when he made the first purchase at 10 P. M.; and that he returned about 12:20 A. M. with five others who were officers of the Department, and “ordered another shot and a bottle of beer. I remember I was charged thirty cents for the bottle of beer, and I don't know whether it was forty or fifty for the Scotch.” He said he looked in another room where “they had music in there and the whole room was filled up in there.” (R. 9); and he went back to the bar “and bought another shot and another bottle of beer, and I paid for them, too,” and the other officers entered and three employees of appellant were arrested on the premises for sale of said liquor and beer. He claimed he made purchases from both bartenders, and there were 40 to 50 people in the bar room. He was asked on cross-examination if there were three or four boxes on top of the bar, and he replied, “There was something there, but I didn’t pay • too much attention.” Again he was asked “Were there boxes?” and he replied, “Well, I didn’t notice them at the time ” Then he was asked “Did you notice them at any other time?,” and he replied, “When the boys came in, he called them to Mr. Hall’s attention, the supervisor. Mr. Hall asked me if I saw them use those boxes.” He was asked, “What were the boxes for?” and he replied, “Well, he discussed that with Mr. Hall.” (R. pp. 10-11.) This conversation was claimed to have taken place between the bartender, the witness and Mr. Hall, supervisor of the officers from the Department.

Vernon Allen, Commander of the Post, testified that when they had parties the steward of the club purchased liquor and beer at the retail stores, and the members made donations to the Post through their donation boxes, and a sign on the boxes stated “service by donation only.” He testified there were no price lists, and that the supply of liquor and beer was replenished from the donation boxes.

The Commander testified the financial statement covering income at the bar, included not only donations for drinks, but many other donations, including checks for several hundred dollars for other activities of the Post.

The financial report of the Post showed for 1953, net income from the bar, $1378.31, net general income $3927.80, and net for the year $1064.71.

This financial statement showed expenditures of $226.00 on “Americanism,” $282.93 on “Athletics,” $100.00 on “child welfare,” $576.27 on “Children’s Christmas Party,” $160.24 on “Crile Hospital Entertainment,” $741.94 on “Installation Expenses,” etc. It also showed income on such affairs, like $250.00 “Children’s Christmas Party,” etc.

The Roster showed 1578 members, and the Commander testified 980 members were in good standing (R. 16), and their Post was the largest Legion Post in Cuyahoga County and 16th in Ohio. He testified 'the Post owned its own home, valued on the Tax Duplicate at $72,000.00 free and clear. He testified they took care of 93 families Christmas and wrapped toys for 450 children. They provide teen-age Canteen service for four high schools on Saturday nights — the last one, they nad 349 children. They have Boy Scouts on Wednesday night, and have the largest hall on the west side of Cleveland, which is used for civic affairs with only a fee for cleaning.

It was stipulated that appellant filed its application January 8, 1952, for the permit in question.

The Director rejected the application on the ground that the applicant was “not a reputable organization as required by §4303.17 R. C.” The Section in question, provides among other things:

“No such permit (D-4) shall be granted or retained until all elected officers of such organization controlling such club have filed with the department of liquor control a statement certifying that such club is operated in the interest of the membership of a reputable organization, which is maintained by a dues paying membership, setting forth the amount of initiation fee and yearly dues.”

This Section also provides:

“Permit D-4 may be issued to a club * * and “the requirement that a club shall have been in existence for three years in order to qualify for a D-4 permit does not apply to units of organizations chartered by Congress * *

It will be seen, therefore, that there is a distinction under this statute between the meaning of the terms “club” and “organization.” (Emphasis ours.)

The Liquor Control Act defines the meaning of the term “club,” (§§4301.01 and 4303.01 R. C.) but does not undertake to define either of the terms, “organization” or “reputable.” The section refers to “such organization controlling such club.” and to such clubs as “units of organizations chartered by Congress,” such as the American Legion. The finding that the applicant “is not a reputable organization as required by §4303.17 R. C.”; must necessarily, therefore, refer to the American Legion, or at ieast to Clifton Post No. 421 of said American Legion, and cannot be limited merely to the club itself of said Post. In any event, such a finding is not only preposterous, but is not supported by any evidence whatever upon the closest scrutiny of the entire record of this appeal.

“Reputable,” means, “1. Having a good reputation; estimable; honorable, 2. consistent with honorable standing. —* * * reputation * * * the estimation in which a person or thing is held by others; especially, the popular opinion, whether favorable or the reverse; * * Funk and Wagnalls “Practical Standard Dictionary” (1946).

Reasonable minds will agree that the popular opinion or estimation of our great patriotic, fraternal and welfare organizations, are not affected let alone determined, by the small indiscretions of the few at the bar in the club rooms, but rather by their laudable programs for human welfare, built upon the tireless efforts of their vast memberships at the cost of thousands of dollars.

On the evening in question, the dance hall of the appellant Post, the largest hall in west Cleveland, was filled by the happy throng of the members and their ladies dancing to the music of the orchestra, while at best some forty or fifty lounged in the vicinity of the bar.

The record shows that the facilities of the appellant Post, were used largely for community affairs, such as meetings of the Boy Scouts, North Olmstead Women’s Club. Parkview Civic Club, K. of C., Volunteer Order of Police and their auxiliary, F. B. I., the churches, Highway Patrol, Teen-age Canteens from four high schools, Christmas parties for needy kids, etc.

Surely this evidence does not indicate a lack of popular esteem for this Legion Post, the largest in the county There is no indication that the good people of the neighborhood avoided this Legion Hall on account of any disreputable rumors arising from illegitimate activities of the Appellant Post.

The finding of the Board that the appellant “did openly and notoriously engage in the sale of beer and intoxicating liquor * 4 is no more justified by evidence than the finding of the Director that the organization was not reputable. (Emphasis ours.)

It was admitted by a member of the Board that a lot of laudable things are carried on by the American Legion; but he commented, “The whole question is whether or not you were selling liquor there.”

Attorney General Bricker ruled in 1936 (opinion No. 5839), that §6064-25 GC (§4301.26 R. C.), did not prohibit the Department of Liquor Control from issuing a permit to a person whose permit had been revoked because of a conviction of the permit holder or his agent or employee of violating the penal provisions of the Liquor Control Act, even though such revocation was mandatory under the said section of the act. Under these circumstances, it was pointed out by the then Attorney General, that such “person must be the holder of a permit at the time of conviction;” which is certainly more to be condemned than where the violator was not the holder of a permit, and, consequently, did not violate a trust reposed' in him by the Department.

Without expressly referring to all the restrictions contained in the Liquor Control Act pertaining to the issuance of the various classes of permits, it is pertinent to note that §4303.29 R. C. (formerly §6064-17 GC), defines the restrictions on the issuance of permits, one of which is that “no person heretofore convicted of a felony shall receive or be permitted to retain any permit;” but that no prohibition is to be found in the Liquor Control Act against the issuance of any permit, based solely on a violation of the Liquor Control Act, constituting only a misdemeanor, such as the provisions for revocation or suspension of such permits contained in §4301.25 R. C.

From this express limitation as to the issuance of a permit based solely on a conviction of a felony, it might be argued that the principle of statutory construction should apply expressed by the Latin maxim of “expressio unius est exclusio alterius,” that is, the express mention by the legislature of certain limitations is to the exclusion of all others. This principle of statutory construction has been recognized by the Supreme Court in many decisions. Cincinnati v. Roettinger, 105 Oh St 145; Madjorous v. State, 113 Oh St 427; 37 O. Jur. 555. Sec. 295.

However, in 33 C. J., Sec. 147, page 552, what appears to be the true rule of law as to the issuing of licenses to sell intoxicating liquor is stated as follows:

“But it is usually held that the court or board charged with the duty of issuing licenses is vested with a sound discretion to be exercised in view of all the facts and circumstances of each particular case. But this discretion is a sound judicial discretion and must be based upon solid legal reasons and not exercised arbitrarily or capriciously. * * * Licensing authorities must treat alike all applications possessing the legal qualifications, and they cannot license favored persons and exclude others possessing similar qualifications. * * *”

To the same effect in 37 C. J., Sec. 97, p. 240 under the title of “Licenses”:

“The power vested * * * to grant licenses, * * * carries with it, either expressly or impliedly, the power of exercising * * * a reasonable discretion ■'■**. in exercising this discretion the board or officers should consider all the circumstances against, as well as in favor of, granting the license, and act in accordance with what they believe to be in the interest of the public safety or public welfare, and if for good reasons they are satisfied that the license ought not to be granted, they are justified in refusing it.”

These authorities cited, together with the various sections of the Liquor Control Act, lead to the conclusion that the Department of Liquor Control has certain discretion in the issuance of the various classes of permits and has the authority to prescribe certain standards in addition to the express requirements contained in said Act, with the view of effecting the policy therein disclosed. The Liquor Control Act was adopted by the Legislature in order to control the traffic in intoxicating liquors and the Department has been authorized to adopt rules, regulations and orders to accomplish this purpose. It, however, must be kept in mind that the requirements must be reasonable and in keeping with the policy as declared by the Legislature.

It must be remembered that the appellant Post had pending for nearly two years the application for the permit in question, which signified its desire in good faith to submit to the supervision of the Liquor Control Department. It would appear to be more in keeping with the purpose of the liquor Control Act and the accomplishment of the policy therein disclosed, to have welcomed this leading Post of the Great American Legion as the holder of a permit and subject to the supervision of the department, instead of encouraging drinking parties to resort to devises such as the donation or locker systems found in so many clubs of different organizations In other words, if the club desires to be on the Lord’s side, it should be welcomed and encouraged, with a view to insuring the maintenance of public decency, sobriety, and good order in a place where intoxicating liquors are bound to be consumed from time to time.

Let us again look to the type of evidence offered by the department and on which is based the finding that the applicant was not a reputable organization. Only one witness was offered in the person of Richard Guidos, an investigator who had been with the Department nearly a year. (R 7.) He was the “snooper” or “stool pigeon” sent into the club to get the evidence. Yet when questioned about the donation boxes on the bar, his lame reply was, “There was something there, but I didn’t pay too much attention. * * * Well, I didn’t notice them at the time. * * 11 When the boys came in, he (bartender) called them to Mr. Hall’s attention, the supervisor. Mr. Hall asked me if 1 saw them use those boxes.”

If his recital of events be accepted as true, his own drinking was not confined to making a buy just to procure evidence, as he claims to have purchased three “boiler makers” in about two hours which in bar room parlance is a shot of liquor with a bottle of beer. This would be considered he man drinking in any club.

He knew he was the key witness, and yet his memory was so bad he couldn’t recollect the price he paid for the liquor without his report, and his intelligence was so lacking that he came to Columbus from Cleveland without his report, to be a witness against the leading Post of the American Legion in his county. His testimony is so lacking of the elements of trustworthiness as to lead one to suspect his veracity.

Generally the credibility of witnesses should be left to tlie fact finding agency, such as the Board in the instant case, but in order to affirm the order complained of in this appeal, it is necessary to find that the order is supported by reliable, probative, and substantial evidence, upon consideration of the entire record, which this Court is unable to do; and the Court further finds that the order of the Board is not in accordance with law, and, therefore, sustains the appeal.

Entry accordingly with exceptions by counsel for the Board of Liquor Control.


author: By THE COURT: By THE COURT:

text:
    HOBBS, Applicant-Appellant, v. BOARD OF REVIEW, BUREAU OF UNEMPLOYMENT COMPENSATION, and FRIGIDAIRE DIVISION, General Motors Corporation, Defendants-Appellees.
    Ohio Appeals, Second District, Montgomery County.
    No. 2246.
    Decided November 23, 1953.

      'Raymond S. Caulfield, Dayton, for applicant-appellant.
    C. William O’Neill, Atty. Geni.. James W. Hardwick. Asst. Atty. ,Genl., Columbus, for Board of Review, Bureau of Unemployment Compensation, State of Ohio, Defendants-Appellees.
    Cowden, Pfarrer & Crew, Dayton, for Frigidaire Div., General Motors Corporation, Appellee.
   OPINION

By THE COURT:

This is an appeal on questions of law from a judgment of the Common Pleas Court affirming a decision of the Board of Review, Bureau of Unemployment Compensation, disallowing appellant’s application to institute further appeal from the decision of a Referee. The facts necessary to an appreciation of the question presented are, that the appellant was in the employ of Frigidaire Division of General Motors Corporation, Dayton, Ohio, as a punch press operator, from January 12, 1948 to July 27. 1951. On the latter date, she was laid off. Thereafter she made application to the Bureau for benefits under the Unemployment Compensation Act, and her claim was allowed. Thereupon, the employer appealed and upon appeal, the order of the Administrator was affirmed. This condition was maintained until November 29, 1951, when the Division Controller of the Social Security Department of applicant’s employer wrote to the Bureau, in which it was stated that “claimant was interviewed 11/26/51. Stated she was not interested in job offered at the present time.” Thereafter, on the 10th of December, 1951, the applicant made her statement to the Bureau of November 29, 1951. In that letter she stated, among other things, that she had had about five years factory experience all together, and no experience in other work, and that since unemployed, she had not looked for work other than factory work; that she was offered a temporary job at Sears, Roebuck, throügh Ayers and Vogt; that she did not want the job because it would not pay her enough to enable her to care for her two children.

Upon these facts the Administrator, on the 10th of December, 1951, decided that the claimant had refused an offer of suitable work without good cause, because not conforming to §1345-6-3 (2) GC of the Ohio Unemployment Compensation law.

The section upon which the administrator relied at the time of his decision read “has refused to consider an offer of work for which she is reasonably fitted, or has refused to accept a referral to a job opportunity when directed to do so by a local employment office of this state or another state.” From this decision the applicant appealed to the Board of Review of the Bureau.

A Referee was appointed and the appeal came on for hearing, appellant and the employer being represented by counsel. At the hearing no witness was examined except the applicant. At the conclusion of the hearing, the Referee decided that the order of the Administrator was not based upon the applicable section of the Unemployment Compensation Act because it did not appear that the referral of the applicant to a job was made by “a local employment office of this State or another State.” However, the Referee continued and concluded that “during the week ending December 1, 1951, the applicant was not fully available for and actively seeking work within the meaning of the law and is not entitled to benefits for that week, and thereafter, until such time as she proves to the satisfaction of the Administrator that she does meet this and all the other requirements of the law and regulations.” The Board of Review refusing to disturb the decision of the Referee, the applicant noted her appeal to the Common Pleas Court. On this appeal three errors were assigned.

1. That the decision of the Referee is contrary to the manifest weight of the evidence.

2. That the decision of the Referee is contrary to law.

3. That the decision of the Referee is unreasonable.

On the appeal the Common Pleas Court found against the contention of the appellant and affirmed the decision of the Board of Review.

On the appeal to this Court, appellant assigns the same grounds of error as in the Common Pleas Court and propounds five queries which it is contended are presented for determination.

“1. When the administrator makes a determination on one set of facts, does a referee have a right, on appeal on that set of facts, to reverse the administrator on that issue and proceed to make a finding on another set of facts, which were not in issue?”

As we interpret the finding of the Referee, it is based upon substantially the same facts presented to the administrator from which the referee draws a different conclusion of law.

“2. Does the determination of the administrator on one issue raise a presumption that the claimant is eligible for benefits on other grounds when no appeal is taken from said determination on any other issue?”

“3. If no such presumption is raised in favor of the claimant, does the referee of the Board of Review comply with the requirement of a fair and impartial hearing, when he seeks no evidence pertaining to active search for work in the week in question and then proceeds to bar the claimant from benefits because of the absence of such evidence.”

“4. Does the burden of proof as established in the case of Shannon v. Bureau of Unemployment Compensation, 155 Oh St 53, apply to the facts as set .forth in the instant case?”

We hereinafter discuss the developments in this case as they may have application to the 2nd, 3rd and 4th queries propounded.

“5. Must a claimant be available for work without limitation in order to be eligible for benefits under the Unemployment Compensation law of Ohio?”

Of course, there are limitations upon the work for which an applicant may be held available. The question is answered by 81345-6 a (4) GC that the applicant “is able to work and available for work in his usual trade or occupation, or in any other trade or occupation for which he is reasonably fitted:” and we have held that “reasonably fitted” means that the applicant is so qualified by reason of training and experience The Brown-Brockmeyer Co. v. Board of Review, Bureau of Unemployment Compensation, 70 Oh Ap 370.

The authority and obligation of a referee on an appeal from a decision of the administrator is set forth in §1346-4 GC, namely; “a referee shall, after affording the parties reasonable opportunity for a fair hearing, affirm, modify or reverse such findings of fact and the decision of the administrator or deputy as to him shall appear just and proper.” The appeal is to findings of fact, taken together with the decision, and is de novo; but the appeal is from the findings of fact as they are made, as well as from the decision thereon. In this case, the issue of fact at ail times was restricted to the conduct of the applicant respecting the transaction which took place between the applicant and Ayers and Vogt when on November 26, 1951 she answered their notice to call at their office. The administrator interpreted this occurrence as a referral by the employment agency, Ayers and Vogt, of the appellant to a proposed job with Sears, Roebuck An examination of the testimony is convincing that it was more than a referral It was a tender by Ayers and Vogt of a job at Sears, Roebuck. Early in the examination of applicant before the referee she said that Ayers and Vogt did not offer her a job. Thereafter, she said that they did not give her any referral card, or send her over to Sears, Roebuck, and this question was put and answer made:

“Q. Did they say they could get you a job, or would refer you to a job at Sears, Roebuck?
“A. Well, they would get me a job.”

There are two significant developments in the record as is found in the files of the case before the Bureau, and in .the record of the testimony before the referee.

(1) At all times it clearly appears that the experience of the applicant was confined to work in a factory at a pjmch press She had had no experience whatever in clerking in a retail store, she was hard of hearing, and it is indeed doubtful if she was qualified by training and experience to meet the requirements of such a job a& the meager testimony regarding it discloses.

However, we would not be disposed to disturb the finding of the administrator and the referee that she was qualified to accept the position to which she was referred because of the right of these officials to weigh and determine the evidence.

(2) Before the administrator, and in the testimony of the applicant before the referee, it is developed without dispute or contradiction that as a prerequisite to the acceptance of the job by the applicant, she was expected to yield any seniority that she had attained by reason of her employment with Frigidaire. The refusal of the applicant to accept the job at Sears, Roebuck cannot be reconciled upon any other theory than that one of the reasons therefor was the condition that she waive her seniority. It is significant that none of the particulars was developed as to the duties which would be required of the applicant if she accepted the employment tendered. It is obvious that that point was not reached in the negotiations.

“Q. 13. Did they attach any conditions to the referral?
“A. Well, they wanted to know if I would relinquish my seniority.
“Q. 20. You said something about your seniority, will you explain that a little bit further to the referee?
“A. Well, if I would give up my senority at the Frigidaire, they could give me a job at Sears, Roebuck.
“Q. 23. Did you tell them you would give up your seniority at Frididaire?
“A. No.”

On page 6, the referee asked the applicant this question:

“Mrs. Hobbs, did they discuss the job with you any further after you said you would not give up your seniority?
“A. No.
“Q. I suppose that was about the first question they asked, was that it?
“A. Yes.
“Q. How much seniority do you have at Frigidaire?
“A. From January 12, 1948. Practically four years.”

As we have said, this testimony of the applicant is not contradicted, and must stand as the truth. Whether or not such a condition could be enforced is not germane. If this testimony was not in accordance with the facts as contended by the employer, it should have been refuted. It is manifest that it weighed heavily with the applicant in making her decision not to accept the tender of the job. There no doubt were other reasons which she indicated, and which must have been speculative, because at no place does the compensation that she was to receive appear.

We are of the opinion that the condition attached to the tender of the job to the applicant was unreasonable and that the refusal of the applicant under this situation precludes the determination made by the Administrator, the Referee and the Board of Review.

The finding of the Common Pleas Court that the decision of the Referee was not unlawful, unreasonable nor against the manifest weight of the evidence is not supported by the record. The errors assigned are well made. The judgment will be reversed and the cause remanded for further proceedings according to law.

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

Decided January 14, 1954.

ON APPLICATION FOR REHEARING

No. 2246.

OPINION

By THE COURT:

Submitted on application for rehearing for which three grounds are assigned.

We have again examined our original opinion and are satisfied that we had full appreciation of the facts developed and the questions of law presented, and that we have reached the proper conclusion.

The application will be denied.

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


author: Per CURIAM:

text:
    CLEVELAND (City), Plaintiff-Appellee, v. GOGOLA, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22807.
    Decided June 22, 1953.

      Vatro J. Grill, Cleveland, for plaintiff-appellee.
    Martin A. McCormack, A. F. Hansen, Cleveland, for defendant-appellee.
   OPINION

Per CURIAM:

The defendant, Joseph Gogola, was charged with being a common beggar, under the provisions of Section 3003 of the Municipal Code of Cleveland, and upon being tried was found guilty by a jury, whereupon sentence was pronounced as provided by law.

Section 3003 of the Municipal Code of Cleveland, insofar as pertinent here reads:

“If any common beggar * * * shall be found in any city, any such person shall be subject to prosecution before the Criminal Branch of the Municipal Court and upon conviction thereof shall be fined * * *. The term, ‘common beggar' as used in this section shall not be construed or defined so as to prevent persons that are regularly connected with any charitable institution from soliciting or begging alms for or on behalf of such charitable institution * *

The record discloses that two police officers testified that on August 6, 1952, they observed the defendant standing at the northeast corner of the May Company department store on Euclid Avenue, with a white cane in one hand and with the open palm of the other hand extended in front of him They observed him for ten minutes during which time they saw two women and a boy accompanied by a woman, place coins in defendant’s open palm, which defendant then deposited in his pocket. The record further shows that the defendant was again arrested as a common beggar on August 21. 1952 which was followed by another arrest for the same offense on December 15, 1952. Evidence was also introduced showing that the defendant was charged and convicted of the same offense on previous occasions.

Defendant, on his own behalf, testified that he did not beg alms when placed under arrest in the case at bar, but' merely accepted gifts offered to him by persons who came to know him over a period of years. He also admitted that he had been convicted as a common beggar in 1944 and 1946.

Appellant assigns six grounds of error which may be reduced to three questions as follows:

“1. Is the ordinance of the City of Cleveland, Section 3003 of the Municipal Code, which provides for the punishment of a common beggar, in conflict with §13408 GC, when applied to a blind person?
“2. Was there admission of evidence prejudicial to the rights of defendant?
“3. Was the verdict of guilty contrary to the manifest weight of the evidence?”

The principal questions of law presented is whether Section 3003 of the Municipal Code is unconstitutional as being in conflict with §13408 GC, which provides as follows:

“Tramps: Whoever, not being a female or blind person and not being in the county in which he usually lives or has his home, begs or asks subsistence by charity and enters a dwelling house or yard or enclosure about a dwelling house, without the permission of the owner or occupant thereof, or does not. when requested, forthwith leave such place, or is found carrying a fire-arm or dangerous weapon, or does or threatens to do injury to the person or property of another, shall be imprisoned in the penitentiary not less than one year nor more than three years. A person, upon view, may apprehend such offender and take him before a justice of tbe peace or other examining officer, for examination.”

Sec. 3 of Article XVIII of the Ohio Constitution, provides:

“Municipalities shall have authority to exercise all power of local self-government, and to adopt and enforce within their limits such local police, sanitary and other similar regulations as are not in conflict with general laws.”

We have given careful consideration to this question and have arrived at the conclusion that the Municipal Code Section is not in conflict with §13408 GC.

A careful examination of §13408 GC indicates clearly that it applies to “Tramps” which is the title of the section.

In our view the offenses as described are entirely separate and distinct offenses. The only persons embraced within provisions of §13408 GC are male persons, able to see, who violate the prohibitory provisions described, while not in the county where they have a bona fide residence. It follows, therefore, that the contention of defendant that there is conflict, is untenable because under such a construction of the statute no person, whether male or female, could be prosecuted or punished for being a common beggar within the limits of a county, if such person presented evidence that he or she lived or had a home in such county.

Sec. 3664 GC, under the heading “Municipal Corporations, enumeration of power,” etc., reads in part as follows:

“To provide for the punishment of * * *. In like manner to provide for the punishment of any vagrant, common street beggar * *

We have examined the many cases cited by appellant, based upon the contention that there may not be a conflict between State statutes and Municipal ordinances. With this contention we agree, as in the case of conflict it is fundamental that the state statute must prevail and the municipal ordinance must fail. As indicated, we find no conflict between the State law and the Municipal Code on the issue here presented. Therefore, a discussion of cases bearing on the issue of conflict will serve no useful purpose.

In Village of Struthers v. Sokol, 108 Oh St 263, syllabus 1 reads:

“Municipalities in Ohio are authorized to adopt local police, sanitary and other similar regulations by virtue of Section 3 Article XVIII of the Ohio Constitution, and derive no authority from, and are subject to no limitations of the General Assembly except that such ordinances shall not be in conflict with general laws.”

In Greenburg v. Cleveland, 98 Oh St 282, where the ordinance prohibiting attempted pocket picking was claimed to be unconstitutional the supreme court in paragraphs 1 and 2 of the syllabus held:

“1. Section 3 of Article XVIII of the Constitution of Ohio specifically authorizes municipalities ‘to adopt and enforce within their limits, such local police * * * regulations, as are not in conflict with the general laws.’
“2. An ordinance of a municipality, providing that ‘Any person who, otherwise than by force and violence, or by putting in fear, attempts to steal and take from the person of another, anything of value, shall be guilty of a misdemeanor * * *’ is not in conflict with the general laws of this state, and is a valid and constitutional exercise of local police power conferred upon municipalities by Section 3 of Article XVIII of the Constitution of Ohio.”

Donahue, J., in an opinion, speaking for a unanimous court said at page 286:

“There is no statute of this state making it an offense to attempt to steal and take away from the person of another anything of value, otherwise than by force and violence and by putting in fear. That being true, of course, this ordinance does not conflict with the general law of the state and, if there were a statute creating the same offense, it could not be exclusive, even if the general assembly of Ohio in express terms prohibited the municipality from legislating upon the same subject matter.”

We have examined the bill of exceptions carefully, with respect to the assignments of error, in respect of the admission of testimony offered by the city, and in the rejection of testimony offered by the defendant, and in respect of the charge of the court, and we find no error prejudicial to the rights of the defendant.

We do not find that the verdict of the jury is contrary to the weight of the evidence.

There being no other errors prejudicial to the rights of the defendant, the judgment is affirmed. Exceptions noted. Order see journal.

HURD, PJ, KOVACHY, J, SKEEL, J, concur.


author: By WOODS,

text:
    B & B COMPANY, Bankrupt, In re: BERBELIS et, Bankrupt.
    IN THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION.
    Nos. 70710, 70700 and 70712.
    Decided July 14, 1954.
    Alton L. Rinier, Trustee, Canton, Herman D. Emerman. Canton, Richard C. Minor & Roger Tarrell, Columbus, for Dept, of Taxation, J. G. Beyoglides, Canton, Wm. O’Neill, Atty Geni., Columbus.
   OPINION

By WOODS,

Referee in Bankruptcy.

The Ohio Department of Taxation, by Stanley J. Bowers, Tax Commissioner of the Department of Taxation, on April 14, 1954, filed its claims against Nick John Berbelis, individually and as a partner, d. b. a. The B & B Co., case No. 70700, and Chris John Berbelis, individually and as a partner, d. b. a. B & B Co., case No. 70712, of Canton, Stark County, Ohio, for sales tax due the State of Ohio in the sum of $2,712.47 for the period of Jan. 1, 1950, to July 22, 1953, claiming priority by virtue of Sec. 64a (4) of the Bankruptcy Act.

Aitón L. Renier, Trustee in Bankruptcy of the bankrupt partnership and as trustee for individual parties in the separate case of each bankrupt partner, filed his objection to said ciaim of the Ohio Department of Taxation, Sales Division.

The relevant Federal Statute is Sec. 64a of the Bankruptcy Act:

“The debts to have priority .... and to be paid in full out of bankrupt estates, and the order of payment, shall be . . . . (4) taxes legally due and owing by the bankrupt to the United States or any State or any subdivision thereof: . . . . And provided further, that, in case any question arises as to the amount or legality of any taxes, such question shall be heard and determined by the court.” ....

The relevant Ohio Statutes under which this sales tax is assessed relied upon by the tax commissioner are §5739.01, et seq., R. C. (§§5546-1-11 GO, the particular section relied upon here is:

Sec. 5739.02 R. C. (§5546-2 GO. Levy of tax; purpose; rate; exemptions.

“For the purpose of providing revenue with which to meet the needs of the state for poor relief .... an excise tax is hereby levied on each retail sale made in this state of tangible personal property.
“(A) The tax is as follows:
“(1) No tax is imposed if the price is less than forty-one cents; ....
“(4) If the price in excess of $1.00, three cents ....
“(B) For the purpose of the proper administration of §5739.01 to §5739.31, inclusive, R. C., and to prevent the evasion of the tax, it is presumed that all sales made in this state are subject to the tax until the contrary is established.” . . .

Bankrupt, The B & B Co., was a partnership consisting of two brothers, Nick John Berbelis, Case No. 70700, and Chris John Berbelis, Case No. 70712, who operated a confectionery store and soda fountain at 536 Cleveland Ave., N. W., on a main street of Canton, Ohio, at a bus stop, and adjacent to schools McKinley High School, St. Peter’s School, and St. John’s School; so that the customers of the store were mainly school children from 6 to 17 years old who brought their own sandwiches and would have a coke or soft drink, and thus the sales rarely exceeded 40c (Tr. C. J. Berbelis, pg. 48).

The tax on sales for which the assessment is filed, is an estimate by tax agents for the state (Tr. pg. 28) for the period Jan. 1, 1950, to July 22, 1953,

The voluntary petition in bankruptcy was filed Oct. 15, 1953, and the First Meeting of Creditors of which notice was given all creditors including the State Department of Taxation soon after filing of the petition, was held on Oct 29, 1953. The inspection report of the examiner and his supervisor (State Ex. A) is dated March 22, 1954; the assessment report (State Ex. B) of Payne, the Examiner, and Cochran, the Supervisor, for the State Tax Department, is dated March 23, 1954, and the tax claim of the department is filed April 14, 1954. in the two individual cases of partners, for the tax assessment from Jan. 1, 1950, to July 22, 1953, for $2,712.47.

The claim thus is made by the State of Ohio for the sales tax for the period of 3% years from Jan. 1, 1950, to July 22, 1953. The proof offered is an estimate made by State Agents, Examiner Payne who lived in Canton, and his chief, J M. Cochran, District Manager and Supervisor, who lived in Akron. From such records as Payne could assemble with the help of witness Shifman, an accountant who had done work for the bankrupts, he estimated that the sales in the period of more than 3Vz years were $189,764.42 (State Ex. E), which included punch-board receipts, sales from soda fountain, drugs, some wholesale, although the bankrupts did not employ a pharmacist. Payne and Cochran, State Agents, both testified that they agreed that an estimate of 50% of sales should be held to be taxable and 50% should be exempted, so that on one-half of the total sales or an amount of $94,582.21 was assessed the 3% tax of $2,712.47 for which the claim was filed.

In this connection, it may be noted that Examiner Payne who lived in Canton, testified that he was in the store many times as a customer, but never as an official examiner (Tr. pg 14): he also testified that he never questioned either of bankrupts “about the character of their business or the nature of their sales.” (Tr. pg. 19.) Cochran, the Supervisor, who lived in Akron, was never in the confectionery store of the bankrupts (Tr. pg. 33).

The testimony of Shifman who had been an accountant and made the income tax returns of bankrupt seems to be that only 40% of the sales of the bankrupt in the 3V¿ year period should have been considered taxable; so his estimate of any tax should have been considerably less than that of the State Tax Agents (Tr. pg. 43). Further doubt as to any value of an estimate upon which a tax could be assessed is shown by the following testimony of Shifman (Tr. pgs. 42-43):

State Atty. — Q. From your experience could you determine by any means how much of the fountain sales would be taxable?
Mr. Emerman, Bankrupt’s Atty.: Object.
Witness: A. — It would depend on the character of fountain sales. To my experience that particular store, their sales were, we will say, small sales; soda, coca cola, possibly a sandwich and coflee.
Q. Did they serve sandwiches?
A. Yes, they served sandwiches. I would say that majority of the sales would have been under forty cents.

This testimony is as much as to say that since many of the sales were for 40c or under and exempt, no one knows how much they amounted to. The pertinent question then is, what value is this or any other estimate?

Chris John Berbelis, one of the partners, testifies that he had given seven years to the business previous to the bankruptcy, and that he was on the premises 13 hours of every day; that at first the store did a large punch-board business and that when this fell off, the business was mostly of confectionery, “sodas, sundaes, chewing gum, cracker jack, anything for the kids around the neighborhood.” (Tr. pg. 48.) Further his testimony is that bankrupts employed no pharmacist, that the store was near two schools, that the purchases were less than. 40c, that 90% of the business or over was on the fountain side, perhaps 10% of it taxable, sundaes were 10% of the business with only 5% taxable (Tr. pg. 49). He further testified that the store had ten stools and nine booths for customers, two old cash registers, presumably one for drug sales, the other for soda fountain sales, but no register sales ■slips were used by Shifman (Tr. pg. 38) and none were used by examiner Payne in the estimate of tax. Bankrupt witness further testified that he often put cash from sales in either register as it was difficult for him to get about as he had lost a leg in World War II; so that any money on register slips or any record in books used by accountant Shifman and Payne in their estimate of the business done was 'not accurate or reliable. (Tr. pg. 49.)

In this situation the court is confronted with a prima facie case made by the State Tax Collecting Agents based upon an estimate made by the Examiner and his Supervisor, neither of whom visited the premises of bankrupts’ confectionery store during the period for which the tax is levied, To overcome the prima facie case is the testimony of one of the bankrupt partners who was at the store at all times and the accountant who was familiar with its business.

Counsel for the State urge that the presumption of the prima facie case can only be overcome by the showing of the records brought by the bankrupt. What records there are were furnished by accountant Shifman who says that most of the sales were under 40c, and there is also the parole testimony of the bankrupt partner who was in the store at all times for which the tax is assessed saying to the effect that only 5% of the non-exempt sales should be taxable.

Counsel for the State relies upon Obert v. Evatt, 144 Oh St 492 in which it is held that the recovery may be had for sales tax from a vendor in cases where the vendor failed to keep records or because of the nature of the vendor’s business it was impracticle for him to keep such records. There is a long discussion of the rule and it is also discussed in State ex rel. v. Evatt, 144 Oh St 65. The facts of the present case do not bring it within the rule of State v. Evatt, supra, for the reason that the proof of the prima facie case offered by the State is only a computation or estimate of the taxes which might have been due from this vendor who is now bankrupt. Against this is the testimony of the accountant and the bankrupt partner. In such cases where the testimony is overcome the proof of actual facts controls over an estimate.

The rule is stated in 17 O. Jur. 35. The legislature has power to prescribe rules of evidence and has also power to prescribe methods of proof. The rules may establish what shall constitute prima facie evidence but must provide that an adverse party shall be given opportunity to contest such claim in court. See Bowland v. Wolfe Shoe Co., 5 O. N. P. ns 170 which is also a tax case. This power of the legislature includes the power to enact that a relevant circumstance shall be presumptive evidence of an alleged fact, Hammond v. State, 78 Oh St 15, but such rule is not without its limitations. Again from 17 O. Jur. 115, the burden of proof in meeting a prima facie case is satisfied by facts established which are other than an estimate.

Counsel for the State urges that on the authority of Jones v. Glander, 150 Oh St 192 (1948), that the vendor who has not kept records of tax-exempt sales of personal property may introduce parole evidence of the amount of such sales and then the assessment was sustained by the court because it appeared that the burden of proving the tax-exempt sales had not been sustained by the taxpayer.

In the case at bar, all there is to sustain the estimated tax is the testimony of the two agents, one of whom never visited the premises and was not familiar with the business, and the other an examiner who admitted he had not talked with the bankrupt taxpayer about the nature of the sales.

In Bloch v. Glander, 151 Oh St 381 (1949), the court held that parole evidence should be admitted where a vendor kept records of the total amount of his sales and produced oral evidence showing the nature of the sales which should be released, exempt from the tax. Judge Matthias of the Supreme Court said:

“The arbitrary application of a specific preadopted markup percentage of proceeds of sales over costs in determining the sales tax which should have been collected and the arbitrary application of a specific preadopted percentage of sales of food for consumption off the premises, without consideration and in disregard of evidence documentary or otherwise, adduced by the vendor, cannot be commended.”

In an earlier case before this court in Re: Emil Carl Peter - silge. No. 64390, it was held that in a case where a presumption of the estate of sales tax due is overcome by proof of facts other than the estimate, that the tax levied based only on the estimate is void and the claim therefore was disallowed.

In the case at bar, the proof failing to establish the claim as asserted by the State Tax Commissioner based on an estimate and there being evidence of one of the bankrupt partners, that only 5% of the non-exempt sales was taxable under this Ohio Statute, the findings aré that claim of Tax Commissioner for the State Department should be allowed at 3% on such non-exempt sales in an amount of $141.95, and such is entitled to priority.


text:
    HARTMAN, Jr., Plaintiff-Appellee, v. HINTON et, Defendants-Appellants.
    Ohio Appeals, Second District, Shelby County.
    No. 170.
    Decided November 12, 1953.
    C. V. Lewis. E. J. Garmhausen, Sidney, for plaintiff-appellee.
    H. K. Forsyth, Sidney, for defendants-appellants.
   OPINION

By THE COURT:

This is an action for damages for personal injuries received by Lloyd G. Hartman, the plaintiff-appellee, while a guest passenger in an automobile being operated by one George Wooiey.

The record discloses that the accident occurred about 2:00 A. M. on U. S. Route 25, which was under repair but open to traffic with warning signs indicating it was not safe to drive faster than 30 miles an hour; that an automobile approaching from the opposite direction blinded Wooiey, causing him to drive off of the paved portion of the highway and strike a road roller owned by the defendantsrappellants, Hinton, Bailey and Warrick; that said roller was parked on the unimproved portion of the highway, some testimony indicating that it was seven feet and ten inches from the paved portion, and other witnesses testifying that it was not quite that far; that it was without lights, in violation of §6307-84 GC; that the berm, throughout the entire area of construction, had been worked by heavy road-building machinery and was unfit for vehicular traffic. The plaintiff was asleep at the time and was therefore unable to testify concerning the manner in which the collision occurred. Wooiey, the driver of the car, testified as follows concerning the events leading.up to the collision:

“Q. And from a point, say, a quarter of a mile north of the accident, will you describe just what happened as you approached the scene of the accident?
“A. Well, I was coming from the north, headed south, and there was a car coming from the south going north, and he had his bright lights on — I flicked down my dims, he didn’t dim, so I flicked back to bright and then back to dim again— he didn’t dim, and I was blinded and I pulled to the right side of the road, and the front wheel seemed to drop off into something soft and mucky and jerked the steering wheel out of my hands and I plowed into this roller.
“Q. Who, other than yourself, was in the car at the time?
“A. Lloyd Hartman, Jr.
“Q. Where were you sitting?
■ “A. I was on the left side of the car.
“Q. Where was Hartman?
“A. He was on the right hand side.
“Q. In the front or rear seat?
“A. In the front.
“Q. What was Mr. Hartman doing at the time immediately before the accident?
“A. He was sleeping.
“Q. How long approximately had he been asleep?
“A. He fell asleep just outside of Wapakoneta.
“Q. Did you see any lights on the roller?
“A. No, there wasn’t any.
“Q. Did you see the roller at all before you hit it?
“A. No.”

On cross-examination, record page 65, the same witness testified:

“Q. Now, when you enter the zone ‘30 mile — slow,’ how fast were you driving?
“A. I would say I might have been doing a little more than thirty.
“Q. You were going between forty — forty-five, and higher?
“A. I didn’t look at the speed — I might have been doing thirty-five — I might have been doing forty — I don’t know.
“Q. You do know you were driving faster than thirty?
“A. I don’t know.
“Q. You say that you were blinded by the lights of an approaching car?
“A. That’s right.
“Q. And you used your foot button to warn him to dim?
“A. Yes.
“Q. And in the process you slipped into this soft muck—
“A. I didn’t slip — I just pulled over to the edge of the road too far.
“Q. Yes, you pulled off the edge of the road too far and got into that soft ground and landed against the roller?
“A. That’s correct.
“Q. You said you didn’t see a light?
“A. I said there wasn’t no light.
“Q. I say this — if there had been a light on it, the accident would have happened anyway?
“MR. GARMHAUSEN: Object.
“THE COURT: If you actually know, you may answer — if you don’t you don’t have to answer.
“A. That would be hard to say. That would be a hard question to answer. If it had had lights on it, I would have saw it and possibly I may not have pulled to the right so far.
“Q. I’ll ask you if you did not say in this courtroom before ‘There could have been a light on it (referring to the road roller) and I could have hit it anyway’?
“A. That’s possible — I made that statement.
“Q. Did you make that statement?
“A. I did.”
On redirect examination, the same witness, record page 71:
“Q. George, Mr. Forsyth asked you whether you had made this statement ‘Well, I was blinded by this car’s lights — there could have been a light on it, and I could have hit it anyway.' Now, I’ll ask you whether this is not a part of the same answer to the same question, and that the full answer reads as follows: ‘Well, I was blinded by this car’s lights — there could have been a light on it and I could have hit it anyway. I really don’t know whether I could have saw it or not’?
“MR. FORSYTH: Object.”

Objection overruled.

“Q. Is that not the whole answer that you gave to that question?
“A. Yes, sir.”

A verdict was rendered by the jury in favor of the plaintiff and judgment was duly entered thereon.

The errors assigned relate to the Court’s overruling the defendants’ motions for a directed verdict at the close of the plaintiff’s evidence, and also at the close of all of Che evidence, and motion for judgment notwithstanding the verdict and motion for a new trial. It is also urged that the verdict is not sustained by sufficient evidence and is contrary to law. All of these alleged errors are grounded upon the question as to whether or not the negligence of the defendants in failing to have proper lights on the roller was a proximate cause of the injuries sustained by the plaintiff. Ordinarily the issue of causation is for the determination of the jury and it is not for the Court to substitute its reasoning for that of the jury in a field which belongs peculiarly to the latter. Baldridge v. W. Gas Co., 154 Oh St 453. In Tolliver v. City of Newark, 145 Oh St 517, at page 526, the Court says:

“Ordinarily the question of proximate cause is a question of fact but where, as here, there is no dispute as to facts that question becomes a question of law.”

The law on proximate cause is clearly set forth in the syllabus in Gedra v. Dallmer Co., 153 Oh St 258, which reads as follows:

“1. In a negligence action, it is essential for recovery that plaintiff prove by a preponderance of evidence not only that defendant was negligent but also that defendant’s negligence was a direct or proximate cause of plaintiff’s injury.
“2. In a negligence action, it is not sufficient for plaintiff to prove that the negligence of defendant might have caused an injury to plaintiff but, if the injury complained of might well have resulted from any one of several causes, it is incumbent upon plaintiff to produce evidence which will exclude the effectiveness of those causes for which defendant is not legally responsible.
“3. In such action, if the cause of an injury to a plaintiff may be as reasonably attributed to an act for which defendant is not liable as to one for which he is liable, the plaintiff has not sustained the burden of showing that his injury is a proximate result of the negligence of the defendant.”

Now, an examination of the record reveals that only one witness testified concerning the cause of the accident, to wit, George Wooley, the driver of the car. His testimony discloses that the approaching auto blinded him, causing him to pull to the right side of the road and to leave the paved portion where he said “the front wheel seemed to drop off into something soft and mucky and jerked the steering wheel out of my hands and I plowed into this roller.” When one loses the steering wheel of an automobile all directional control is lost. Therefore, even though the roller had been properly lighted and seen by Wooley, still the result would have been the same. Wooley did not select the place to leave the highway, but this was forced upon him, and it happened to be near, the parked roller. We are unable to find any causal connection between the defendants’ negligence and the plaintiff’s injury, which appears to have been caused by the sole negligence of Wooley in driving at an excessive rate of speed.

It is our conclusion that reasonable minds could not arrive at a conclusion different from ours as to the cause of the accident, and where reasonable minds could not differ on the question of fact or the reasonable inferences to be drawn therefrom, it is the duty of the Court to determine the question as a matter of law. Patrick v. Western Union Telegraph Co., 86 Oh.Ap 365; Evegan, Admr., v. Cincinnati Street Ry. Co., 85 Oh Ap 138. See also Glaseo v. Mendelman, 143 Oh St 649.

This is the second time the case has been in this , Court. The first time we reversed on error committed in charging the jury on the question of contributory negligence. In our opinion at that time we said the question of proximate cause was a jury question, but it only becomes a jury question upon the issue being properly raised. On this record we find no causal connection between the defendants’ negligence and the plaintiff’s injuries.

The motion for a directed verdict, as well as the motion for a judgment notwithstanding the verdict, should have been sustained. We will sustain the latter motion and order final judgment rendered for the defendants.

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

Decided December 18, 1953.

ON APPLICATION FOR REHEARING

No. 170.

OPINION

By THE COURT:

This is an application for a rehearing in which it is urged that our ruling on the question of proximate cause was not •consistent with a former ruling in the same case. This case was remanded and retried upon a completely new record. It was from this we found the evidence was not sufficient to warrant the question submitted to the jury, and pointed out in the opinion the reason the record did not support the same. The application will be overruled.

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