author: By J. J. P. CORRIGAN, J.:

text:
    HAHN, Plaintiff, v. BROOKLYN (City), Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 662398.
    Decided February 20, 1958.

      Henry L. Brover, Cleveland, for plaintiff.
    Michael L. Hearns, Walter A. Savage, Cleveland, for defendant.
   OPINION

By J. J. P. CORRIGAN, J.:

Plaintiff, a resident of the City of Brooklyn, has instituted this action to have a declaratory judgment entered determining that a certain Ordinance designated as Ordinance No. 1945-17, passed on July 23, 1945, is unconstitutional and void and of no force and effect.

Ordinance No. 1945-17 reads as follows:

“AN ORDINANCE PROHIBITING THE RAISING, KEEPING, MAINTAINING, OR HARBORING OF PIGEONS, CHICKENS, DUCKS, GEESE, TURKEYS, GUINEA HENS, RABBITS, MICE, PIGS, SHEEP, COWS, HORSES, GOATS, OR ANY BIRDS, FOWL, RODENTS, OR ANIMALS DETRIMENTAL TO PUBLIC HEALTH AND GENERAL WELFARE ON ANY PARCEL, LOT, OR SUBLOT WITHIN THE VILLAGE LIMITS WHICH PARCEL, LOT, OR SUBLOT HAS LESS THAN 8,000 SQUARE FEET OF AREA.
“WHEREAS, it is detrimental to health and general welfare of the public to permit the raising, keeping, maintaining, or harboring of any birds, fowl, rodents, or animals on a small parcel of land which cause or tend to cause a nuisance through the emission of noise or unwholesome odors;
“NOW, THEREFORE BE IT ORDAINED BY COUNCIL OF THE VILLAGE OF BROOKLYN, COUNTY OF CUYAHOGA, AND STATE OF OHIO:
“SECTION 1. That it shall be unlawful to raise, keep, maintain, or harbor pigeons, chickens, ducks, geese, turkeys, guinea hens, rabbits, mice, pigs, sheep, cows, horses, goats, or any other birds, fowl, rodents or animals detrimental to the public health and general welfare on any parcel, lot, or sublot within the village limits, which parcel, lot, or sub-lot has less than 8,000 square feet of area. Provided, however, that the keeping or harboring of a dog, cat, canary, parrot or any similar bird or animal which has always been customarily maintained or harbored as a pet shall be permissible on any lot of any size within the municipality.
“SECTION 2. That on any parcel, lot, or sublot containing not less than 8,000 square feet of area and not more than 5 acres, a poultry house shall be permissible provided same does not contain more than 240 square feet of area; and said poultry house may be used for raising, keeping, maintaining, or harboring chickens, ducks, or geese. Provided, however, that on any parcel having an area of less than 5 acres it shall be unlawful to raise, keep, maintain or harbor any domestic or wild animal except a domestic pet as set forth in Section 1 hereof.
“SECTION 3. On any lot or parcel containing 5 acres or more of area, there shall be no restriction or limitation on the raising, keeping, maintaining, or harboring of any birds, fowl, or domestic animal.
“SECTION 4. Whoever violates any section of this ordinance shall upon conviction be fined not less than $5.00 nor more than $49.00 for each offense; and each day’s violation shall constitute a separate offense.
“SECTION 5. That this ordinance is hereby declared to be an emergency measure necessary for the immediate preservation of the public health, welfare and safety of the Village, and shall, therefore, go into immediate effect upon its passage.”

Plaintiff urges that the alleged nullity of the ordinance is predicated upon the contention—

(1) that the ordinance is an arbitrary, unreasonable, burdensome, confiscatory exercise of the police power and beyond the legislative power and control of said City of Brooklyn;

(2) it is violative of the provisions of Section 1, Article 14, of the United States Constitution; and

(3) it is in contravention of plaintiff’s rights under Section 1, Article 1, Ohio Constitution.

The plaintiff’s petition alleges that he has for many years been interested in and occupied with the training of American racing pigeons under the auspices of the American Racing Pigeon Union with registration of such birds for wartime use in defense of the United States. Plaintiff alleges that he occupies a parcel of land in Brooklyn aproximately 7,000 square feet in area, and that the purpose and plan of said ordinance has the effect of preventing plaintiff from keeping, maintaining or harboring more than one pigeon on his property. He further alleges he is prevented by said ordinance from making lawful use of his real estate; that he is deprived of his property without due process of law and that he is not being afforded the equal protection of the laws; that he is stopped from enjoying, defending and protecting his property rights in said land.

Plaintiff further alleges that the defendant through its agents and officers has sought to enforce said ordinance by arrests, warnings, and other police activity for which defendant has no adequate remedy at law.

Plaintiff further alleges that the parties hereto are in dispute as to the validity of said ordinance and the rights of plaintiff as to the use of his said property and that a declaratory judgment terminates said controversy.

Answer of defendant admits corporate capacity, the passage of the ordinance in question and the residence of plaintiff. All other allegations of the petition are denied.

In reviewing the history of this general type of legislation, we find that as early as 1867 municipalities were, under the exercise of police power, regulating the right to keep and maintain animals.

However, just to say that something is detrimental to health and general welfare of the public is not sufficient to make it so. Thus a municipal corporation cannot make something illegal merely by having their council declare it to be detrimental to health and welfare anymore than they could make a business a nuisance merely by declaring it to be such, Painter v. Town of Forest Acres, 97 S. E. 2d 71 (Supreme Court of South Carolina) (1951). But a city council is presumed to have good reasons for passing an ordinance and a court is not authorized to subject its judgment for that of the council so long as its ordinances are passed under a valid exercise of the powers granted it, Mayer v. Ames, 5 Oh St 402 (1937).

An early example of the regulation of animals is found in Commonwealth v. Patch, 97 Mass., 221 (1867), which held that an ordinance prohibiting of the keeping of swine within certain localities in the city was valid. Another example is found in the case of Hoops v. The Village of Spona 55 Ill. App., 94, (1894). There the village had been given the right under State statute to declare what was a nuisance. Under that authority the court found the village had legally passed an ordinance declaring the keeping of a stallion for serving within one-half mile of its public square a nuisance.

Since 1900, New York city, under its Sanitary Code, has by varying means regulated live chickens or other fowl. The regulations have required that they shall not be brought into or kept in any yard or other place within the city’s built-up portion without a permit from the Board of Health. These provisions have been held to be legal. See People v. Davis, 79 N. Y. S., 747, 78 App. Div., 570 (1903).

An order regulating hogs to be kept one mile from the Court House was held to be valid in the case of Ex Parte Glass, 49 Tex. Cr. R., 87, 90 S. W., 1108 (1905). The court held that this ordinance was not unreasonable-as it permitted the keeping of hogs outside the one-mile limit.

An ordinance regulating the keeping and feeding of cows in the city of Chicago is valid, as clearly within the exercise of police power granted by the State to the City Council, see Ringelstein v. City of Chicago, 128 111. App., 483 (1906).

Thus the regulating of stock, dogs and all other animals starts early in the development of urban centers. Often it was merely a requirement forbidding the running of stock at large within the corporate limits (held to be valid, Brown v. Town of Williamsburg, 87 S. E., 959, 171 N. C., 57): or the distance a stable could be constructed from another’s land (held to be valid, State v. Bass, 171 N. C., 780, 87 S. E., 972); or requiring the keeping of stock in pens (held to be valid exercise of police power, Ex Parte Broussard, 74 Tex. Cr. R., 333, 169 S. W., 660).

In 1923 the keeping of animals was firmly established as a proper subject of municipal police regulations, and it was held that a municipality could limit the number of animals which could be kept; see Ex Parte Mathews, 191 Cal., 35, 214 P., 981 (1923). But, whether it was dogs (Robbenson v. Gibson, 162 P., 1120, 62 Okl., 306); calves (Town of Jonesborough v. Kincheloe, 148 Tenn., 688, 257 S. W., 418); goats (Ex Parte Mathews, 58 Cal. App., 649, 209 P., 220) or fowl (Merrill v. City of Van Buren, 125 Ark., 248, 188 S. W., 537); the keeping of all animals was being regulated in one manner or another.

By 1946 the questions relative to the keeping of animals were becoming more encroached with legal differentiations and definitions. Thus in the case of Brown v. Klein, 133 N. J. L., 533, 45 A. (2d) 319 (1946) the court became involved in a legal argument over teminology, but, went on to find that municipal health ordinances were not unreasonable in that the keeping of pigs was permitted in one locality and forbidden in others, or confiscatory in that the minimum number of pigs that might be kept was limited to seven in the absence of a standard by which to determine what was reasonable, fair and proper on the premises.

In 1955 the District Court of Appeals in the Case of The People v. Johnson, 129 Cal. A., 2d 1, 277 P., 2d 45 (1955), reviewed some of the cases cited above and found that the keeping of animals may be a proper subject of municipal regulation and that by such regulation the number of animals which may be kept can be limited. There the question involved a zoning ordinance which prohibited the owner of land from having more than five hogs on land zoned for industrial use. The court held that ordinances such as this would be enforced by the courts and that a determination of when and what police regulations are essential is primarily for the city’s legislative body, which is clothed with police power by grant from the Constitution, and its determination should not be set aside by the courts unless the regulation clearly has no relation to the protection of health, comfort or well being of the community. The court went on to hold that the determination by the Council should only be set aside when it clearly invades personal property or property rights under the guise of police regulation. _

This reasoning has been followed by the Ohio Supreme Court in the case of Cincinnati v. Correll, 141 Oh St 535 (1943), the first syllabus holds:

“1. Section 3, Article XVIII, Ohio Constitution, grants authority to municipalities to adopt and enforce within their limits such local police regulations as are not in conflict with general laws. A municipal ordinance passed under such authority, to be valid, must not be arbitrary, discriminatory, capricious or unreasonable and must bear a real and substantial relation to the health, safety, morals or general welfare of the public.”

California courts have been very strict in upholding municipal regulations pertaining to animals. Their latest pronouncement on this subject is found in Pinstein v. County of San Bernardino, 305 P., 2d 266 (1957). There in interpreting a zoning ordinance which required fowl to be kept 40 feet from another dwelling the court held:

“5 MUNICIPAL CORPORATIONS 592 (1)
“An activity which is permitted by law may be constitutionally prohibited. in connection with zoning ordinances, because of the subsequent development of adjacent property.
“6 CONSTITUTIONAL LAW 278 (4)
“Though facilities for keeping poultry were constructed in comnliance with county health ordinance, then in effect, forbidding the keeping of fowl within 40 feet of any dwelling other than that of owner, subsequently requiring owner to remove his poultry in compliance with such ordinance 40 feet from a dwelling meantime erected on adjoining property would not unconstitutionally deprive owner of the use of his property.”

In, State v. Mueller, 220 Wis., 435, 265 N. W., 103 (1936), the court held that an ordinance limiting the number of dogs over three months of age was valid and went on in dicta to quote from Corpus Juris as follows:

“In furtherance of the public health, security and comfort of its inhabitants municipal corporations may regulate the keeping of animals within the corporate limits, or within designated districts of the corporation * * * the keeping of animals * * * within designated districts thereof, may be prohibited when such keeping affects or disturbs the public health, public peace, public safety, or public decency; but only when it does so. In regulating the keeping of animals a municipal corporation may limit the number of particular animals that may be kept within the municipal limits or within designated districts thereof. * * *”

In the case of Shaefffler v. City of Park Hills, Ky., 279 S. W. 2d 21 (1955), the court held that an ordinance prohibiting the keeping or harboring of live stock; fowl and animals within corporate limits was not arbitrary or unreasonable as- enforced against the plaintiff, who was in the business of raising not less than five or more than twenty chickens at his residence within the city. The court held:

“A city has a broad discretion in the enactment of laws to preserve and promote the health, morals, security and general welfare of its citizens. Sufficient grounds exist for the enactment of an ordinance of this nature if it has substantial relation to a legitimate object in the suppression of the conditions which the city authorities deem detrimental to the public good. Nourse v. City of Russellville, 257 Ky., 525, 78 S. W., 2d 761. The keeping of poultry is a proper subject of regulation to protect the public health and welfare. 2 Am. Jur., Animals, Section 30.”

Municipal legislation limiting the keeping of live stock to a specific district or districts within a municipality has been uniformly upheld, see 32 A. L. R., 1372, pg. 1375.

In the case of Springdale v. Chandler, 257 S. W., 2d 934 (1953) the court in discussing an ordinance that provided no livestock, poultry, etc., shall be harbored within 150 feet of a dwelling house held:

“Likewise a city may regulate the keeping of chickens, but, whether such regulation is arbitrary or unjust depends upon the evidence. It might be arbitrary to prevent the keeping of a few hens at a place where it would not be arbitrary or unjust to prevent the keeping of thousands of chickens in that case the ordinance was found to be invalid as it required the protest of two or more neighbors before the person keeping such livestock could be prohibited.”

To that qualification the court held:

“a city ordinance which allows an arbitrary discrimination is unconstitutional and void.”

Actually this was an improper delegation of legislative authority.

There have been very few cases in the Federal Courts questioning the constitutionality of legislation regulating animals and poultry. In the case of Bratley v. Nelson, 67 F. Supp., 272 (1946), the court held:

“Federal District Court withheld any action, in suit by citizens against city and city officials to have declared void as in violation of the 14th Amendment a city ordinance regulating the keeping of poultry, fOvVl, and grazing animals within the city limits, at least, until state courts had passed on the constitutionality of the ordinance. U. S. C. A. Const. Amend. 14.”

The court said this was done because:

“Congress has adopted the policy of leaving to the courts of the States and Municipalities the trials of criminal violations of State Laws and Municipal Ordinances. Federal Courts of Equity, in the exercise of their sound discretion, conform to that policy by refusing to interfere with proceedings in the State and Municipal Courts, except where unusual circumstances clearly call for equitable relief.”

Since the court did not interfere in this instance although it was stipulated that there was an arrest for violating an ordinance requiring poultry and fowl to be kept more than 25 feet from any human dwelling, it must be assumed that the court felt the enforcement of the ordinance by the arrest would not cause irreparable injury which would be clear and imminent to the Court, see Watson v. Buck, 313 U. S., 387, 61 S. Ct., 862, 85 L. Ed., 146 (1941).

In the case of the City of Arkadelphia v. Clark, 52 Ark., 23, 11 S. W., 957 (1889), the court declared invalid an ordinance declaring bees to be a nuisance. Their reason was:

“Neither the keeping, owning, nor raising of bees is in itself a nuisance. Bees may become a nuisance in a city, but whether they are so or not is a question to be judicially determined in each case. The ordinance under consideration undertakes to make each of the acts named a nuisance without regard to the fact whether it is so or not, or whether bees in general have become a nuisance in the city. It is therefore too broad, and is invalid.”

At a later date, in a different jurisdiction and under different circumstances, the Court of Appeals for California in Ex Parte Ellis, 25 Cal. App., 2d 99, 76 P., 2d 516 (1938), decided the raising of bees could be regulated and held:

“The tests of validity in such cases are: Does the ordinance bear a reasonable relation to the public health, morals, safety of general welfare; have the districts been created according to a fair and rational plan? We are of the opinion that the ordinance successfully meets these tests.”

The court went on to find the ordinance not to be discriminatory even though the districts where the bees could be kept contained some small lots in populous places by holding:

“An ordinance delimiting a district in which bees could be kept and prohibiting the keeping of bees outside the district was valid where districts were created under a general comprehensive plan which sought to exclude keeping of bees in thickly populated areas and to permit keeping of bees in thinly populated areas, notwithstanding that district in which bees were prohibited contained some ranch land and mountainous regions suitable for bee culture and that district in which bees were allowed contained closely built-up residential and business districts unsuitable for bee culture.”

We can conclude then that from as early as 1867 right down to 1958 the legislative bodies of various local governments have been regulating the keeping of animals and fowl, that such regulations have often been questioned in the courts, but that the courts have uniformly upheld the legislation unless it was found to be arbitrary, unjust, or an invalid exercise of police power, by being discriminatory or by regulating as a nuisance that which was not a nuisance (per se).

The cases discussing the regulating of pigeons are mostly confined to the Courts of New York.

The earliest reported cases regulating pigeons is Barkmann v. Town of Hempstead, 49 N. Y. S., 2d 362 (1944), affirmed in 294 N. Y., 805, 62 N. E., 2d 238 (1945).

In that case the Town of Hempstead passed a zoning ordinance prohibiting the use of any structure for the harboring of pigeons. The plaintiff resided in a rural section of the town and the premises were surrounded by woods and farmlands. There were no sidewalks or crosswalks within 1500 feet. To the south of plaintiff’s premises there was an outdoor privy and horse stable.

The trial court held the ordinance to be invalid as unreasonable. The Appellate Court reversed, holding that “to what .extent pigeons are a nuisance in a particular area is, in the first instance, a legislative matter.” The highest court affirmed the Appellate Court.

The pigeons were harbored merely as a pastime. The court felt that depriving the land owner of this pastime would not substantially deprive him of his property rights in the use of the premises, which were otherwise undisturbed and unimpaired.

In the case of Kraushaar v. Zion, 63 N. Y. S., 2d 359 (1946), the Village of Lawrence, New York, passed an ordinance which prohibited the keeping and harboring of pigeons, roosters, turkeys or guinea fowl within the Village of Lawrence. The plaintiff brought an action in declaratory judgment asking the court to find the ordinance void as it was not enacted pursuant to a proper exercise of the police power since the acts prohibited would not constitute a nuisance. The plaintiff had asked for relief by injunction and for the declaratory judgment. The court granted her injunction pending the trial but refused to grant the declaratory judgment on the pleadings. The court held that although the plaintiff said her pigeons were not a threat, to peace, welfare or health of the community that what is and what is not a nuisance is often times purely a matter of relativity. The court cited Village of Euclid, Ohio v. Ambler Realty Co., 272 U. S., 365, and the statement therein at page 388 which says—

“A nuisance may be merely a right thing in the wrong place, like a pig in a parlor instead of the barnyard.”

The plaintiff complained that the ordinance did not regulate the keeping of pigeons, but, prohibited their keeping absolutely. The court held that when an ordinance is passed there is a presumption that it is reasonable and just, and the judicial power to invalidate it can be exercised when from its inherent character or from the evidence showing its unreasonableness it is demonstrated to be otherwise.

No later written opinion in the latter case was found so it is impossible to determine whether in the trial in chief the court found the ordinance, from the evidence adduced, to be invalid. The court did show considerable concern over the validity of this ordinance and felt that on the trial the conditions in the community which required a sweeping enactment which prohibited the keeping of pigeons, no matter how or where they are kept and irrespective of whether or not they were in fact a nuisance, would be a matter of: evidence.

In me case of Hoffman v. Murdock, 56 N. Y. S., 2d 753 (1945), the court held that the Board of Standards and Appeals of New York City was without power to restrict the number of pigeons the partitioner could keep on the roof of his two-family residence, where the partitioner did not keep the pigeons as a business enterprise, but merely as a pastime. The court arrived at this conclusion upon the finding that there was no law which prohibited his keeping pigeons as a hobby and went on to hold that until the legislature had spoken he could keep his pigeon coop wherever he desired.

In this opinion the court pointed out that although the pigeons were kept as a hobby the petitioner was making a considerable contribution to the war effort by making donations of the pigeons to the United States Army Signal Corps.

In the case of Hayward v. Samuel, 47 A., 2d 251 (1946), the Supreme Court of Pennsylvania held that the Board of Health of Philadelphia could find that pigeons constituted a nuisance to public health and could order their extermination. The pigeons referred to here were those which inhabited the downtown portion of the city and were not kept by any individual.

The case of People v. Miller, 304 N. Y., 105, 106 N. E., 2d 34 (1952), has become a leading case in the field of zoning. The court held that the harboring of pigeons as a hobby does not amount to a vested right the deprivation of which would subsequently effect the property rights of the land owner in the use of his premises.

The defendant was convicted of the misdemeanor of harboring pigeons on his property. The defendant kept pigeons as a hobby and since 1945 harbored them on his property located in the town of North Hempstead. In 1947 the town adopted a zoning ordinance which prohibited the erection or maintenance of a structure for harboring pigeons, swine, goats, etc., except when authorized by the Board of Appeals.

The defendant was convicted of violating this ordinance and based his appeal on the premise that he had a pre-existing and therefore vested right to use the premises for harboring pigeons.

The court discussed the right to continue a non-conforming use and concluded that this right became vested because otherwise serious financial harm could come to a property owner if the enforcement of an ordinance would render valueless improvements, made during the period prior to the enactment of the ordinance. But, went on to hold, that this theory was inapplicable to the keeping of pigeons on the property for recreational or amusement purposes as this use was merely an incidental use and not one giving rise to a vested right.

Our research has not uncovered any case in the reports concerned with the Keeping of homing or racing pigeons as in our instant case. Prom the evidence before the Court the plaintiff has kept racing pigeons for over forty years. He is a member of the American Racing Pigeon Union, Inc., a national organization of more than 10,000 members engaged in the sport of raising and racing pigeons. This group maintained close liaison with the United States Signal Corps during World Wars I and II and donated thousands of homing pigeons to the Army for message carrying. The plaintiff is also a member of several local racing clubs.

The evidence disclosed that the plaintiff keeps about twenty to twenty-five racing pigeons at all times; that the pigeons are released for exercise flights of twenty minute periods twice a day, once in the early morning and the second about 5:00 P. M. in the afternoon; the birds leave the loft and fly in circles of several miles for the period and do not stop or roost at any other place except their own loft; on return from the exercise flights, the birds go immediately into the loft; the birds leave no droppings in flight; the droppings are left in the loft, and the loft, which is located over the garage is cleaned by the plaintiff twice a day, once in the morning and once in the evening; the lofts are inspected for cleanliness periodically by representatives of the local racing association; in the races, the birds are transported in trailers to points hundreds of miles away from Brooklyn and clocked and released to fly directly to the home loft; on a return there the bird enters the loft immediately and is again clocked; there are no noises emanating from the loft which is above a garage and there are no odors emitted from the loft; there is no vermin nor are there any rodents in the loft area; the testimony before the Court is ample and clear that the loft maintained by the plaintiff is sanitary and in no way can be considered in the nature of a nuisance.

The Court had the benefit of the testimony of a number of very impressive witnesses who were engaging in this sport themselves. The broad object of these persons is to improve the breed of homing pigeons; to advance the security, development and popularity of the sport of pigeon racing; to better the welfare of its members and to maintain a large number of highly bred, virile and tested racing pigeons to serve as a security arm of the country in times of war or other emergency. All of the testimony indicated that it was a clean, wholesome hobby engaged in by good, solid, respectable citizens.

Plaintiff even presented inedical testimony which showed that the keeping and training of homing pigeons is not injurious to the health, morals or the safety of the people of the community. Neighbors of the plaintiff testified that they were not disturbed by the plaintiff’s homing pigeons in any way and that the pigeons created no nuisance in the area.

The question this Court has to decide is whether this ordinance as it affects the plaintiff is in any way arbitrary, discriminating or unreasonable and does it bear a real and substantial relation to the health, safety, morals and general welfare of the people of the City of Brooklyn. Whether such ordinance meets this test depends upon the evidence. In the light of all the evidence before the Court, the Court feels that this ordinance as it affects the maintaining and raising of homing pigeons by the plaintiff is unreasonable and arbitrary and has no real and substantial relation to the health, safety and general welfare of the citizens of the City of Brooklyn. The Court feels that the prohibition in this ordinance against the plaintiff is made without regard to the conditions and circumstances surrounding the plaintiff’s hobby.

In the opinion of the Court from the evidence the maintaining and raising of homing or racing Pigeons is a wholesome, useful sport and this ordinance, insofar as it interferes with the plaintiff in pursuing or engaging in such hobby or sport is invalid because it is unreasonable and arbitrary and bears no real and substantial relation to the health, safety and general welfare of the citizens of Brooklyn. A journal entry will be drawn accordingly.


source: Caselaw Access Project

author: By HURD, J.

license: Public Domain

text:
    RUSSO, Board of Real Estate Examiners, In re.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24414.
    Decided May 8, 1958.

      Lawrence & Bates, for appellant.
    William J. Saxbe, Atty. Geni., Joseph A. Márchese, Asst. Atty Geni., for appellee.
   OPINION

By HURD, J.

This case is appealed to this court on questions of law from a judgment of the Court of Common Pleas in favor of the Board of Real Estate Examiners of the State of Ohio and against the appellant, Nick Russo, who was denied admission to an examination for a broker’s license.

The case was submitted upon an agreed statement of facts, the substance of which sets forth that the appellant attended Griswold Institute of Cleveland, Ohio, and received a passing grade in each of two separate real estate courses not taken concurrently; that Griswold Institute is not a college or university nor is it approved by the Department of Education as is required by §4735.07 R. C. In the statement of facts, the appellant lays no claim to any previous experience of any kind whatsoever in the real estate business, but on the contrary, relies solely upon educational qualifications.

The sole question presented is whether §4735.07 R. C., as amended September 20, 1955, is constitutional. It is the claim of the appellant that the amendment is unconstitutional. The relevant parts of said amendment read as follows:

“If the state board of real estate examiners is satisfied that the applicant for a brokers license * * * has had at least one year’s experience full time in real estate business or service, or has been associated as a real estate salesman with a licensed real estate broker for at least one year and has had sufficient experience as a licensed salesman to the satisfaction of the board, to qualify him for the broker’s examination, or in iitu of such experience or service, furnished a certificate that he uas received a passing grade in each of two separate real estate courses approvea oy the state board of real estate examiners, not taken concurrently. m a college or university approved by the department of education, or nas had other real estate experience equivalent thereto at the discretion of the board * * * it shall admit the applicant * * * to an examination which shall be conducted under the rules prescribed by the board * * *”

It will be observed that the statute as amended provides the following alternative methods to qualify for a broker’s examination: i) that the applicant has had at least one year’s experience full time in real estate business or service, 2) has been associated as a real estate salesman with a licensed real estate broker for at least one year and has had sufficient experience as a licensed salesman to the satisfaction of the board to qualify him for the broker’s examination, 3) has had other real estate experience equivalent thereto at the discretion of the board, and 4) in lieu of such experience or service, has furnishd a certificate that he has received a passing grade in each of two separate real estate courses approved by the state board of real estate examiners, not taken concurrently, in a college or university approved by the department of education.

The Griswold Institute is not a party to this action, consequently, any rights or claims of that institution are not before this court for consideration.

The constitutionality of the statute is raised by the appellant who challenges the right of the General Assembly to impose a condition that an applicant for a broker’s license who is lacking in experience required by statute must, in lieu thereof, take two separate real estate courses, approved by the Board of Examiners, in a college or university approved by the department of education.

It is the claim of the appellant, as set forth in argument and by way of brief, that the statute is vulnerable to constitutional objections, both federal and state, in that it violates clauses with respect to protection of property, the equal protection of the laws and the fundamental rights and privileges of the people and also that it is not uniform in operation and application.

The appellant further contends that no other state in the United States has such a requirement.

As to this latter proposition, we agree with Judge Corrigan of the Court of Common Pleas, who sets forth in his memorandum opinion filed in this case, that in the State of Michigan the statute has no provision that allows the applicant to take real estate courses at any type of educational institution in lieu of the required experience and further that in the State of New York, it is provided by statute that real estate courses approved by the Secretary of State, are recognized, not in lieu of experience, but as a means of shortening the length of actual experience required from two years to one year (See New York Real Property Law, Sec. 441). The trial judge further states correctly, we think, that the Ohio Legislature apparently saw fit to enact a more lenient statute under which a person totally lacking in actual experience could apply for a real estate broker’s license providing he could submit satisfactory proof that he possessed the necessary educational requirements as defined by the statute.

The statute in question falls into that area of legislation generally understood to be within the police power of the state. It is fundamental that the authority of a state to enact such legislation under its police power is limited by the constitutional requirement of due process of law.

However, in considering legislation enacted under the police power, courts cannot consider the wisdom of the particular statute or its suitability or whether another method would have been more satisfactory to accomplish the desired purpose. Such matters are questions of policy into which courts will not inquire in resolving the problem of whether the legislation in question has encroached upon the various rights guaranteed to individuals by the state and federal constitutions. This was put quite clearly and succinctly by Davis, Judge, in Phillips v. State of Ohio, 77 Oh St 214, 217, 82 N. E. 1064, 1065, when he said:

“* * * judicial inquiry is necessarily limited to determining whether a particular regulation is reasonable, impartial and within the limitations of the Constitution. The legislature is the judge of the mischief and the remedy, and of what shall be state policy, subject to the restrictions just mentioned.” (Emphasis added.)

And in the case of State, ex rel. v. Commrs., 124 Oh St 174, 177 N. E. 271, syllabus 3, provides:

“Whether the purpose to be served by legislation pursuant to the police power of the state bears a reasonable and substantial relation to the public welfare is a justiciable question. The wisdom of such legislation, the extent of the threatened danger, and the efficacy of the remedy are political questions.” (Emphasis added.)

To the same effect, see also Sanning v. City of Cincinnati, 81 Oh St 142, 90 N. E. 125.

The first question to be answered is whether the statute is actually an exercise of the police power. Although the term, police power, is not susceptible of precise definition, it is generally accepted that an exercise of such power involves the public health, safety, welfare, or morals. Legislation under the police power, by its very nature, constitutes a limitation on the freedom of the individual for the benefit of society as a whole. This being true, it is clear that the constitutions (either state or federal) in their guarantees of individual rights did not intend that such rights were to be unlimited. For instance, the Ohio Constitution specifically provides in Art. 1, Sec. 19 that: “Private property shall ever be held inviolate but subservient to the public welfare.” See also Grown v. City of Cleveland, 125 Oh St 455, 181 N. E. 897.

In attempting to maintain the delicate balance between individual rights and the public need, the courts of the United States have evolved the following rules as guides in the judicial determination of such conflicts: 1) the purpose of the statute must be within the scope of the police power, 2) the act must be reasonably designed to accomplish this purpose, and 3) the act must not be arbitrary, discriminatory, oppressive, or otherwise unreasonable. Nebbia v. New York, 291 U. S. 502; 78 L. E. 940, 54 S. C. 505; City of Dayton v. Kresge Co., 114 Oh St 624, 151 N. E. 775.

In the instant case, the appellant, by way of brief, recognizes that a statute requiring a real estate broker to procure a license is “as a regulatory measure, a proper or reasonable exercise of the police power.”

This leaves for consideration the question of the reasonableness of the statute and whether it is arbitrary, oppressive or discriminatory. In considering these questions, we must take into consideration the effect of the statute as a whole. In relation to the reasonableness of the statute, the rule is that if the end or objective in view be legitimate, the statute is reasonable if it bears a real and substantial relation to the accomplishment of such purposes.

In Davis v. State, 118 Oh St 25, 160 N. E. 473, 474, Marshall, C. J., states at page 28:

«* * * jn determining the constitutionality of the statute, as measured by the police power, we need only inquire whether this statute is an unreasonable, arbitrary, and oppressive exercise of the police power, and whether it is really designed to accomplish a purpose falling within- the scope of the police power. Every reasonable presumption is indulged in favor of its constitutionality, and if the statute bears any reasonable relation to the public welfare and public morals the courts may not declare it to be invalid. To do so would be a clear usurpation of legislative power. * * *”

In Holsman v. Thomas, 112 Oh St 397, 147 N. E. 750, 752, the court had before it for consideration a local police ordinance of the City of Cleveland regulating auctions of jewelry. In upholding the validity of the ordinance, the court, at page 405, quoted from Wessell v. Timberlake, 95 Oh St 21, 116 N. E. 43, Ann. Cas., 1918B, 402, as follows:

“While the right of a state to regulate business, trade or occupation is of much later recognition and development than the right to regulate the rate of interest, it nevertheless is equally well settled today, that, in the interest of the public welfare, business, trades and occupations, may be so regulated as to prevent extortion, fraud, restraint, monopolistic control of products or prices and so on.”

It is clear that the statute in question seeks to control the real estate brokerage business by requiring the applicant to secure a license and conditions the granting of such license upon the taking of an examination after meeting certain minimum requirements such as specified periods of experience in the real estate business, or in lieu thereof, a passing grade in each of two separate real estate courses approved by the state board of real estate examiners, not taken concurrently, in a college or university approved by the department of education. It would appear quite reasonable that any applicant lacking the necessary experience, and in fact, lacking any experience whatsoever in the real estate business, should be obliged to meet these simple requirements. Such requirements appear to bear a reasonable and substantial relation to the desired objective, namely, competence of those who aspire to be real estate brokers. The contention that the statute is arbitrary, capricious, oppressive and discriminatory is without merit. All applicants for the examination are treated equally. There is no classification of applicants, a fortiori, there is no discriminatory treatment of applicants. It follows necessarily that the statute is uniform'in application and operation.

It should be noted also that the statute requires all persons applying for a broker’s license to be bonest, truthful, and of good reputation, to be at least twenty-one years of age, and a citizen of the United States. These, also, are reasonable requirements. Likewise, the provision that the real estate courses to be given in a college or university approved by the department of education must first be approved by the board of real estate examiners is a reasonable requirement because by it, the type and quality of the courses remain under the control of the board which is charged with the responsibility of giving the final examination for the broker’s license. Under such circumstances, it cannot reasonably be maintained that the requirement that such courses be. given by a college or university is arbitrary, discriminatory, oppressive or that it is not designed to accomplish the desired objective of competence which certainly must be considered a legitimate purpose. There is no provision in the statute that a college degree or even a high school education be required as a preliminary requisite to the taking of such courses of study. Many courses in adult' education are given in colleges • or universities which neither require an academic degree nor lead to such a degree. This case presents a good example of such adult courses.

Concerning appellant’s complaint that the statute requires that the courses approved by the state board of real estate examiners be taken at a college or university approved by the department of education, §81713.02 and 1713.03 R. C., provide for the issuance of a certificate of authorization to educational institutions which comply therewith. As is apparent from a reading of §1713.02 R. C., this statute applies to institutions granting the usual academic degrees in arts and sciences and the professions. Such institutions, by any definition, • would be colleges or universities. The obvious purpose of these sections is to prescribe minimum standards for colleges and universities to insure a higher quality of education. It has been suggested that there is no appreciable benefit to the public gained by requiring the courses to be taken at an educational institution of the college level. This is merely another way of stating that this particular statute is unreasonable. However, as explained above, there is a real and substantial relation between the desired end and the means used to attain that end, and in the absence of discrimination, the statute is constitutional.

The appellant places great reliance upon State v. Gardner, 58 Oh St 599, 51 N E. 136, also cited by appellee. In that case, which must be distinguished from the instant case, the Supreme Court grounded its decision upon the fact that the statute in question (plumbing business) operated unequally upon the designated class. In that case discriminatory aspects of the statute are readily apparent on its face. The statute here involved applies equally to all aspirants for real estate broker’s licenses.

Upon a full and careful consideration of the statute as amended, it is our conclusion, for the reasons stated, that it does not violate any of the provisions of the federal or state constitutions. Therefore, the. judgment of the Court of Common Pleas is affirmed. Exceptions allowed. Order see journal.

SKEEL, PJ, KOVACHY. J, concur.


author: By GOLDTHORPE, J.

text:
    SWIERS, Jr., et, Plaintiffs, v. SMITH et, Defendants.
    Oberlin Municipal Court, Lorain County.
    No. 10.
    Decided February 21, 1958.
    Stanley P. Zuris, Oberlin, for plaintiff.
    Grover L. Severs, Oberlin, for defendant.
   OPINION

By GOLDTHORPE, J.

This is an action in forcible entry and detention filed in the Oberlin Municipal Court of Lorain County, Ohio, in which Albert Swiers, Jr., and Thelma L. Swiers are Plaintiffs and Richard M. Smith and Betty M. Smith are Defendants.

On the first day of November, 1955, the parties to this action entered into a land contract for the sale of certain lands located in Henrietta Township, Lorain County, Ohio by Plaintiffs to Defendants for the sum of $12,000.00 with a down payment of $1300.00 and the balance to be paid in regular, consecutive monthly installments.

The contract contains a forfeiture clause in the event Defendants default in the performance of any of the conditions of the land contract

The petition alleges that the Defendants failed to pay the last three installments of the purchase money due prior to the filing of this action.

The petition further alleges that a demand was made, a forfeiture exists and that subsequently a three-day written notice was served on the Defendants for their vacation of the premises. The Defendants having failed to vacate, this action was then filed and service had upon Defendants.

Defendants demur to the petition on two grounds, namely; (1) That the Court has no jurisdiction of the subject matter of the action, and (2) That the petition does not state facts which show a cause of action against Defendants.

There are two points involved in the question of jurisdiction of this Court. The first being the monetary limitation on jurisdiction. It is true that each party has an equity in the property involved which exceeds the $2,000.00 limitation imposed upon this Court by statute.

However, there is no prayer in the petition for any monies other than the Court costs involved in this action.

The second point concerning jurisdiction has to do with the filing of forcible entry and detention cases in a Municipal Court. Since Justice of the Peace Courts have been eliminated in Ohio and Lorain County has no County Judges, the Oberlin Municipal Court has the only original jurisdiction in forcible entry and detention cases arising within its jurisdiction. The Common Pleas Court has no such original jurisdiction. (24 O. Jur. 2d, Page 486.)

The second issue raised by the demurrer points out that Plaintiffs have a choice of remedies. They may either (1) declare the entire amount due and institute a foreclosure action to recover the equitable title to the property and thus possession, or (2) to declare the contract void and to proceed to secure possession of the property leaving the equitable title still undisposed of.

According to the petition, Plaintiffs have clearly elected to pursue the second course, leaving the matter of equitable title to be determined in a subsequent action in the Common Pleas Court. Secs. 1923.03 and 1901.18 (A) and (H) R. C., make specific provision for such procedure.

There have been many Opinions reported on the matter of whether or not an action in forcible entry and detention is a proper remedy for repossession of real property where a land contract or lease is in issue. Most of these are analyzed in 46 Abs 225, Huddleston v. Ward.

The crux of the matter in the view of this Court is contained in the final paragraph of this Opinion which reads as follows:

“Prom this review of the authorities, we come to the conclusion that this Court has no jurisdiction in the within action for the reason that the lease in question contains no clause of forfeiture and grants no right of reentry or repossession upon default in any monthly payment.”

The first paragraph of the syllabus in 29 Abs 534 sheds further light on the apparent majority Opinion in this State;

“An action in forcible entry and detainer will lie in a Justice of the Peace Court where a land contract contains a forfeiture clause for nonpayment, and default by nonpayment is shown, but not where the contract contains no forfeiture clause.”

The Court wishes to express its appreciation to both counsel involved for their assistance in resolving these issues. Due to the changes in judicial administration in Ohio, the jurisdictional question is certainly important.

There being a forfeiture clause in the contract involved in this matter, the demurrer is overruled in both branches and the Clerk is instructed to set the matter down for hearing.


author: By THE COURT:

text:
    STATE, ex rel. SNYDER, Plaintiff, v. HAYES, Sheriff, Defendant.
    Ohio Appeals, Second District, Fayette County.
    No. 292.
    Decided March 13, 1958.
    Rollo M. Marchant, Pros. Atty., for defendant.
   OPINION

By THE COURT:

Submitted on motion of Rollo M. Marchant, Prosecuting Attorney of Fayette County, Ohio, to dismiss the petition for the reason that the plaintiff has been convicted of the crime for which he was charged; that he was found to be a mentally deficient offender and committed to the Lima State Hospital and that he is not now in the custody of the Fayette County Sheriff as alleged in the petition. The action is in habeas corpus.

The Prosecuting Attorney has filed affidavits of the Sheriff of Fayette County, Ohio, and the judgment entry committing the plaintiff to the Ohio State Reformatory at Mansfield, Ohio, and suspending the sentence while he be committed to the Lima State Hospital, Lima, Ohio.

There is a presumption that the Sheriff has delivered the felon to the institution to which he was committed. Sec. 2949.12 R. C.

It thus appears that the motion of the defendant is well taken and must be sustained.

Motion sustained.

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


author: By MILLER, J.

text:
    CARTWRIGHT, Plaintiff-Appellee, v. GENERAL MOTORS CORPORATION TERNSTEDT DIVISION, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5738.
    Decided February 11, 1958.
    Lewis F. Byers, Columbus, for plaintiff-appellee.
    Vorys, Sater, Seymour & Pease, Russell P. Herrold, Jr., of Counsel, Columbus, for defendant-appellant.
   OPINION

By MILLER, J.

This is a law appeal from a judgment of the Common Pleas Court rendered upon the verdict of a jury finding that Richard Cartwright, the plaintiff-appellee herein, was entitled to participate in the benefits accorded to injured workmen under the provisions of the Workmen’s Compensation Act. The errors assigned all relate to the failure of the court to direct a verdict in favor of the defendant employer at the close of the plaintiff’s case, at the conclusion of all of the evidence and in refusing to set aside the verdict and render a judgment for the defendant notwithstanding the verdict.

The only question presented on this appeal is whether the claimant sustained an injury within the contemplation of the Workmen’s Compensation Act. In order that an injury may be compensable it must be established by the proper degree of proof that the same is “physical or traumatic in character, that it arose suddenly and was not intentionally self-inflicted, and that it resulted by external means from some specific event or mishap occurring suddenly or unexpectedly and not in the usual course of events.” Dripps v. Ind. Com., 165 Oh St 407, 409.

Now, the record reveals that the plaintiff was engaged in his regular line of work as a paint spreader at the defendant’s plant, and that he felt a sudden pain in his back while in a stooped position, as he was helping to carry a pot of paint to his working place. There is no evidence of any slip, fall, blow or any other sudden mishap; hence, the sole cause of the injury arising out of the employment, if any, must have resulted from the performance of those duties for which he was regularly employed.

Although it was controverted, the plaintiff testified that it was unusual for him as a painter to move pots of paint in his work. The fact that more exertion was required when the injury occurred does not make the claim compensable. In the Dripps case, supra, Judge Matthias says at page 409 :

“However, the mere exertion of a greater effort than is ordinarily used or being subjected to some extraordinary strain is not in and of itself sufficient to give rise to a right to compensation; to warrant compensation the need for such strain or effort must be shown to have resulted from some sudden, unusual and unexpected occurrence or some sudden specific mishap or event. In other words, for an injury to be compensable under the Workmen’s Compensation Act, it must be physical or traumatic in character and a result of external and accidental means occurring at a time when the employee was in the course of his employment.”

This court in a recent decision rendered on March 16, 1956, in the case of Jordan v. Ternstedt, 74 Abs 207, held that in order for an injury to be compensable under the act it must be acquired through external and accidental means in addition to the other requirements.

In the case of Heath v. Standard Oil Co., 68 Abs 571, this court affirmed a judgment in favor of the employer, saying at page 576 that,

“There is no- doubt that the plaintiff in moving these barrels of oil through the lube room and onto the lift was regularly and ordinarily subjected to the necessity of heavy lifting or moving but by the authorities, as we interpret them, if this exertion brought about his heart condition, he may not recover.”

In Artis v. The Goodyear Tire & Rubber Co., 165 Oh St 412, decided July 5, 1956, and a companion case to the Dripps case, supra, a judgment for the employee was reversed and a final judgment rendered for the employer for the reason that the injury was not caused by a sudden mishap or accidental means. In this case the plaintiff claimed that because of a “shortage of help” he was required to do something he did not customarily do, that is, he was forced to stack some tire liners to a height of seven feet, whereas they were usually only stacked five feet high. He contended that this was an unusual circumstance which entitled him to compensation. The court said at page 413:

“There is no evidence in the present case of any sudden mishap
“This is not a sudden mishap or happening upon which a claim for workmen’s compensation may be based.”

See also White v. Indus. Comm., 78 Abs 210, decided by this court on March 13. 1957, and being case No. 5515, '

Because ol these recent decisions we deem it not necessary or pertinent to review the earlier cases touching upon this question.

■ . The judgment will be reversed and final judgment rendered for the defendant.

PETREE, PJ, BRYANT, J, concur.


author: By PHILLIPS, J. By NICHOLS, J.

text:
    CRUIKSHANK, Plaintiff-Appellant, v. FRANK SHERMAN COMPANY et, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3894.
    Decided April 4, 1957.

      Norman A. Rheuban, Youngstown, for plaintiff-appellant.
    William E. Pfau, William E. Pfau, Jr., Youngstown, for defendantappellee.
   OPINION

By PHILLIPS, J.

The trial judge entered judgment for defendant, Frank Sherman Company, notwithstanding the jury returned-a verdict for the plaintiff in his action against defendant to recover damages for personal injuries, and for “Frank Sherman Company, Inc.” in whose favor the trial judge directed a verdict, concerning which no complaint is made. Also the trial judge granted defendant a new trial on the ground that “the judgment is not sustained by sufficient evidence and is contrary to law,” said new trial to be had only in event of reversal of the judgment notwithstanding the verdict, and by journal entry said:—

“The court coming now to the motions for judgment n. o. v. and motion for new trial filed in this case, after full and due consideration sustains the motion for judgment n. o. v. and judgment is hereby rendered for defendant, The Frank Sherman Co. Ex. to plaintiff.
“Coming to the motion for new trial, the motion is sustained on the ground that the judgment is not sustained by sufficient evidence and is contrary to law, exception to plaintiff; said new trial shall be had only in the event of a reversal of the above judgment n. o. v.
“This procedure is in accordance with the mandate from the court of appeals in No. 3870.”

Plaintiff appealed from that judgment on questions of law contending that the trial judge erred in his prejudice in sustaining defendant’s motion for judgment notwithstanding the verdict, and in sustaining the motion for new trial “on the ground that the judgment is not sustained by sufficient evidence and is contrary to law, by reason whereof plaintiff is entitled to final judgment in his favor.”

Plaintiff delivered an automobile motor block, weighing 700 pounds, to defendant’s scrap yard for sale and alleged in his petition that defendant negligently failed to provide adequate personnel or equipment to receive scrap metal at its yard, and that while unloading it defendant’s employee negligently jerked such block on his • finger as it was being removed from plaintiff’s automobile causing his finger to be amputated.

There is evidence that plaintiff stopped at defendant’s scrap yard on his way to work and arrived there before 8:30 A M„ the scheduled working hour of defendant’s employees, and was told by defendant’s foreman “to wait until 8:30, that the men would start to work, and we would get men, men would come out and unload the car for him. He told me he was in a hurry and had to go to work and he would unload it himself”; that he drove down the yard and back up to the pile where the scrap was supposed to be unloaded; that he started to unload the scrap; that plaintiff was down on one knee with the motor on his hand and an employee helped plaintiff rock the motor block off his hand and took him to the office; that about 8:20 another defendant employee saw plaintiff coming around his automobile and his hand was bleeding; and that plaintiff was hospitalized at 8:40 A. M.

There is direct evidence that plaintiff’s injury occurred in defendant’s scrap yard where it bought, sold and handled scrap iron such as the motor block which it purchased from and for which it paid plaintiff; and that plaintiff had been assisted by defendant’s employees on other occasions in unloading scrap.

There is no direct evidence that the laborer dressed in working clothes charged with negligence was defendant’s employee, nor was instructed nor authorized to assist plaintiff, as alleged, nor of the presence of an officer or employee of defendant company within fifteen feet of the scene of the injury.

There is no evidence identifying the laborer whom plaintiff contends was responsible for his injury, where he went, nor what he did after plaintiff was injured. Defendant’s president testified that he had no employee answering plaintiff’s description of a “colored man in work clothes about 6' 1" tall.”

Plaintiff contends:—

“Assuming this dichotomy, arguendo, the record displays the following factual support:
“1. The injury occurred on defendant’s property upon which they were carrying on the scrap metal business.
“2. The man in question was in work clothes.
“3. There was no evidence of any one other than plaintiff or defendant’s officers or agents being there at the time.
“4. There were seven or eight of defendant’s yard employees at a distance of from 15 to 75 feet from where the accident occurred.
“5. Part of the regular course of defendant’s business was to purchase steel scrap metal.
“6. Plaintiff and others had been assisted by defendant’s employees in unloading scrap on previous occasions.
“7. It was the duty of plaintiff’s yard employees to help and assist in unloading scrap.
“8. The accident took place during and as a part of the process of a sale of scrap to the defendant for defendant’s benefit.
“9. Defendant’s officer and foreman repeatedly stated that they would send an employee to help plaintiff unload.
“Again we quote from Hurt v. Rogers Trans. Co., supra, at page 334:—
“ ‘It is permissible to draw several conclusions or presumptions of fact from the same set of facts. And it is equally proper that a series of facts or circumstances may be used as a basis for ultimate findings or inferences.’
“Surely, this series of facts or circumstances provide ample support for the inferences. And, is not the inference of agency and scope of employment a reasonable deduction from those facts? Conversely, was the jury bound to infer that an officious intermeddler, helped the plaintiff with his 700 pound burden, a ghostly volunteer who had no connection with the defendant? No amount of mental gymnastics can obfuscate the fact that the inferences are reasonable, inseparable and logical.”

In Hurt v. Charles J. Rogers Transportation Co., 164 Oh St 329 at page 333 it is said:—

“An inference which is based solely and entirely upon another inference and which is unsupported by any additional fact or another inference from other facts is an inference upon an inference and is universally condemned.
“An inference which is based in part upon another inference and in part upon factual support is called a parallel inference and is universally approved provided it is a reasonable conclusion for the jury to deduce.
“It may be conceded that any liability of Rogers must be based on inferences. If those inferences are based entirely on other inferences unsupportd by fact, no basis for liability has been shown. If, however, the inferences needed to support plaintiff’s case are parallel ones, a jury may be permitted to make deductions therefrom provided they are reasonable.”

Plaintiff claims: — '

“Only two inferences need concern us, they are:
“1. The man who injured the plaintiff was the agent of the defendant.
“2. That man was acting in the course and scope of his employment.”

Under the doctrine of respondeat superior defendant is liable to plaintiff only if he showed that the negligent act complained of was done by defendant’s employee, and that such act was done in the performance of defendant’s business. See 26 O. Jur., Section 164, Page 284.

In our opinion the evidence submitted by plaintiff failed to prove that the unidentified laborer was defendant’s employee.

The general rule laid down in this type of case is:—

“Whether the relation of master and servant, as fixing liability on one person for the acts of another under the doctrine of respondeat superior, exists in a particular case depends on the facts and circumstances of that case.” 57 Corpus Juris Secundum, Section 563, Page 275.
“The liability of one person for injury which has been caused by the wrongful act of another presupposes, so far as the present discussion is concerned, the existence of the relation of employer and employee between the actor and the person sought to be held liable. In order, therefore, to recover in such cases, it must be shown that this relation existed between the party sought to be held liable and the person doing the act complained of, in reference to the very act complained of. * * *” 35 American Jurisprudence, Section 537, Page 965.

In the case of Sobolovitz v. The Lubric Oil Co., 107 Oh St 205, at page 209, the Supreme Court through Judge Robinson announces the general principle of law applicable to the case we review in these words:—

“* * * The majority of this court adhere to the rule that before the defendant is put upon his defense the plaintiff must produce some proof of every fact necessary to create a liability, or some proof of a fact from which a reasonable inference may be deduced which tends to create a liability, and that an inference cannot be predicated upon an inference. * *

By that announcement the supreme court refused to permit a jury to speculate.

In Hurt v. Charles Rogers Transportation Co., supra, at page 330, the court said:—

“Rogers argues that a choice between such possibilities (designated ‘probabilities’ by Rogers) brings this case within the rule that, where the cause of an injury may as reasonably be an act for which defendant is not liable as one for which he is liable, the plaintiff has not sustained the burden of showing that his injury was a proximate result of the negligence of the defendant. Gedra v. Dallmer Co., 153 Oh St 258, 91 N. E. (2d), 256, 17 A. L. R. (2d), 453; Gerich v. Republic Steel Corp., 153 Oh St 463, 92 N. E. (2d), 393.

In the case of Gedra v. Dallmer Co., 153 Oh St 258, it is said in the third syllabus:—

“In such an 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.”

In the case of Gerich v. Republic Steel Corp., 153 Oh St 463, paragraph two of the syllabus reads:—

“It is the duty of a party on whom the burden of proof rests to produce evidence which furnishes a reasonable basis for sustaining his claim. If the evidence so produced furnishes only a basis for a choice among different possibilities as to any issue in the case, he fails to sustain the burden as to such issue.”

Finally, in the case of Eichorn v. Lustig’s, Inc., 161 Oh St 11, by syllabus the supreme court said:—

“An owner of property abutting on a public street is not liable for injuries to pedestrians resulting from defects in the abutting portion of such street unless such defects are created or negligently maintained or permitted to exist by such owner for his own private use or benefit.”

On page 14 of the opinion in the Eichorn case Hart, J., said:—

“* * * Here, there was no showing that the truck owner or owners using the sidewalk were or were not employees of the defendant. In the absence of any such proof as to the relationship of the truck owners and the defendant, there was no proof of liability on the part of the defendant, and the trial court properly directed a verdict for it.”

Under the evidence in the case under consideration and the law applicable thereto, we must conclude that the trial court did not err “in sustaining defendant’s motion notwithstanding the verdict of the jury” returned for the plaintiff.

With reference to plaintiff’s second assigned ground of error plaintiff asks:—

“1. Was there sufficient evidence to sustain the judgment for plaintiff?
“2. Was the judgment for plaintiff contrary to law?”

Plaintiff does not urge abuse of discretion of the trial judge. On authority of Klever v. Reid Bros. Express, Inc., et al, 154 Oh St 491, we are of opinion that the trial judge did not err to plaintiff’s prejudice “in sustaining motion for new trial on the ground that the judgment is not sustained by sufficient evidence and is contrary to law.” In Flever v. Reid Bros., Express, Inc., paragraphs 1 and 2 of the syllabus are as follows:—

“An order by a court of common pleas granting a motion for a new trial in an action commenced prior to the effective date of the amendment to Section 6, Article IV, Ohio Constitution, in 1945 and prior to the amendment in 1947 of §12233-2 GC (122 Ohio Laws, 754), does not constitute a judgment or final order reviewable by the court of appeals, unless it dearly appears that the court in making such order abused its discretion. (Hoffman v. Knollman, 135 Oh St 170, approved and followed.)
“The term, ‘abuse of discretion,’ as it relates to an order granting a motion for a new trial, connotes more than an error of law or of judgment; it implies an unreasonable, arbitrary or unconscionable attitude on the part of the court in granting such motion. (Paragraph two of the syllabus in the case of Steiner v. Custer, 137 Oh St 448, approved and followed.) ”

Also see Green v. Acacia Mutual Life Ins. Co., 156 Oh St 1, where it is said in the fourth paragraph of the syllabus:—

“4. An order granting a new trial upon motion made in accordance with §11578 GC, is not a final determination of the rights of the parties and does not constitute a judgment or final order, the General Assembly has no power or authority to provide for an appeal from such order, and §12223-2 GC, providing that ‘an order vacating or setting aside a judgment and ordering a new trial, is a final order,’ is in conflict with Section 6, Article IV, Ohio Constitution.”

In Zukowski v. Tom’s Express, Inc., 71 Abs 333, the syllabus reads:—

“Where the trial judge finds that in his general charge he unreasonably repeated and overemphasized the burden of proof to the plaintiff’s prejudice, it was not error for him to grant a motion for a new trial.”

Finally, we believe that the recent case of McBride v. Toledo Terminal Rd. Co., 166 Oh St 129, decided February 6, 1957, and found in Ohio Bar issue of February 11, 1957, supports our conclusion that the trial judge did not err “in sustaining the defendant’s motion for a new trial conditionally in the event there should be a subsequent reversal of the judgment n. o. v. for the defendant and in holding that his ruling on the motion for new trial, in the absence of abuse of discretion, did not constitute a final order permitting a review by that court on the granting of a motion for new trial.”

As suggested by plaintiff by reply brief:—

“This court has already decreed that the trial court may not reserve its decision on the motion for a new trial but must rule on both motions together. National Mattress Company v. City of Youngstown, Court of Appeals No. 3870 citing Hurt v. Rogers, et al, 160 Oh St 70.”

Having disposed of plaintiff’s appeal as we have we need not discuss the former action of this court nor this assigned ground of error further.

The judgment of the court of common pleas is affirmed.

NICHOLS, PJ, dissents.

GRIFFITH, J, concurs.

DISSENTING OPINION

By NICHOLS, J.

In my judgment the record contains evidence from which reasonable minds could arrive at different conclusions upon every issue involved in this case thus requiring such issues to be determined by the jury and negativing the right of the court to grant the motion for judgment notwithstanding the verdict of the jury.

It was error prejudicial to the plaintiff in this case when the trial court granted the motion for judgment notwithstanding the verdict of the jury.

The cause should be reversed and remanded for that reason. I find no abuse of discretion by the trial court in granting the motion for a new trial.


text:
    COLLINWOOD SHALE BRICK AND SUPPLY COMPANY, Appellant, v. BOWERS, Tax Comr., Appellee.
    Board of Tax Appeals, Department of Taxation, State of Ohio.
    No. 33701.
    Decided July 31, 1957.

      McAfee, Grossman, Taplin, Hanning, Newcomer & Hazlett, by C. Grahame, Cleveland, for appellant.
    William Saxbe, Atty. Geni., by Miles D. Evans, Asst. Atty. Geni., for appellee.
   OPINION

This is an appeal from a sales and use tax assessment made by the tax commissioner on December 6, 1956. The sales end of the assessment amounts to $1,477.19, the use tax to $127.11, together with a penalty contingent upon the date of payment specified in the order. The audit period covered extends from October 31, 1951, to July 9, 1954.

The cause now comes on for further and final consideration upon appellant’s notice of appeal and the order complained of, the Commissioner’s transcript, the record of a hearing had before this Board on April 12, 1957, and briefs of counsel.

The errors complained of by the assessee with respect to said findings are as follows:

1. That the tax commissioner erred in finding that none of the items referred to and described in said exhibit A were used or consumed by the taxpayer directly in the production of the taxpayer’s products, within the meaning of the applicable law.

2. That the tax commissioner erred in finding and concluding that the purchase and use of such items by the taxpayer, as aforesaid, were not exempt from the imposition of the Ohio Sales and/or Use Tax.

3. That the tax commissioner erred in holding that said assessment was properly issued in the amounts set forth in said findings.

4. That the commissioner erred in not finding that said items were purchased by the taxpayer for use and/or were used directly in the production and manufacture of brick and ready mixed concrete for sale, and therefore were exempt under §5739.01 R. C.

5. That the tax commissioner erred in not finding that said Sales and Use Tax assessment is erroneous, unreasonable, unlawful and discriminatory, and therefore was improperly issued.

Appellant has three plants within the City of Cleveland wherein it manufactures ready mixed cement, in one of which it mines shale, which it pulverizes and then manufactures into shale brick. In its petition for reassessment before the commissioner it enumerates the assessed items of which it complains. We shall separately consider these items in the order therein found, and shall set forth the part that each item plays in the production of appellant’s products.

(1) Buda Lift Truck. Pages 28 and 29 of the Record.

Q. “But in the main use of this Buda lift truck, it is used to transport finished products, and there is .no change in them; is that right?”
A. “Yes.”

(2) Ford Lift Tractor front end loader. From Pages 24 to 27 of the Record we glean the following:

This implement is used exclusively in the production of brick. Sixty to sixty-five per cent of its use is in sanding brick, so that they will not fuse or stick together in the kilns, and handling heavy equipment in the brick making process. Less than a third of its time it is used in handling finished bricks from the production line to loading dock or to the storage yard.

(3) Parts for Fairfield Conveyor. Page 24 of the Record.

This conveyor is used exclusively in removing coal from railroad cars to the kiln, where it is used to fire the kilns.

(4) Browning Bucket Crane. Pages 29 to 32 of the Record.

This implement lifts raw materials, such as sand, stone, slag and cement into separate compartments at the top of the batching plant. It effects no change in substance. Appellant’s president further testifies that:

A. (Page 30) “There is no mixing in the original compartments into which we discharge sand, stone, and these other component parts; but the mixing starts as soon as we weigh them into the first collecting hopper.”

We take it that this collecting hopper contains a dry mix. Water may thereafter be added to the mix in a lower hopper oi in the distributing trucks in accordance with the customer’s order. This crane is mounted on a flat car which moves upon a track of considerable length alongside the batching plant.

(5) Steam Generator. Pages 32, 38 of the Record.

This item consists of a heavy boiler with attachments, which stands close to and alongside the batching plant. It is used to generate steam during the winter period which is carried to the top separate compartments and mixing hopper to avoid freezing of the raw materials therein and facilitate mixing in the mixing hopper. It effects no change in materials other than plasticity.

The assessment of these five items constitutes the sales tax assessments. Items (6) and (7) constitute the use tax assessment.

(6) Cement Storage Bin or Silo. Record Pages 33 and 34.

This item is about 10 feet in diameter and 30 feet in height, set alongside the batching plant and is used for the storage of bulk cement.

(7) Screw Feeder for Cement Bin.

This instrument removes cement from the storage bin and elevates it to the bin for cement at the top of the batching plant, from whence it flows into the first mixing bin, where it first meets the other components, such as sand and stone.

Appellant in presenting its complaint relies upon the following Ohio authorities:

France Co. v. Evatt, 143 Oh St 455, 28 O. O. 381; Terteling Bros., Inc. v. Glander, 151 Oh St 236, 39 O. O. 60; Mead Corporation v. Glander, 153 Oh St 539, 42 O. O. 24; and The Boardman Supply Co. v. Bowers, decided by the 7th District Court of Appeals in Mahoning County, on March 28, 1956, 76 Abs 209 and 213.

Particular stress is laid on the Boardman case in support of its argument.

The court in American Compressed Steel Corp. v. Peck, 160 Oh St 207 (208), 52 O. O. 24, makes this statement:

“What constitutes a use or consumption of equipment directly in the production of tangible personal property for sale by processing has been fully discussed and determined in the ease of Tri-State Asphalt Corp. v. Glander, Tax Commr., 152 Oh St 497, 41 O. O. 40, 90 N. E. (2d), 366, and Mead Corp. v. Glander Tax Commr., 153 Oh St 539, 42 O. O. 24, 93 N. E. (2d), 19.”

We therefore first turn to the Tri-State case, supra. Its syllabus reads:

“Boom and bucket cranes the sole function of which is the conveying of ingredients to the place of processing, and which have no part in the actual processing itself, are not used or consumed directly in the production of tangible personal property for sale by processing and, under §5546-1 GC (now §5739.01 R. C.), their sales are not excepted from taxation.”

On Page 501 of the opinion it is further stated that:

“When the General Assembly excepted from taxation the sales of those things which were to be used or consumed directly in the production of tangible personal property for sale by processing, it had in mind only such articles as had a direct part in the processing. Sales of instrumentalities of transportation and other articles or things which are necessary to carry on the business of processing, but which themselves have no part directly in the production, were not excepted.”

The same court has gone on further to pinpoint the law in such cases, and says in Jackson Iron & Steel Co. v. Glander, 154 Oh St 369 (373), 43 O. O. 255, that:

“To come within the exceptions from taxation imposed by the Sales and Use Tax Acts, the sale must be of (1) items necessary and not merely facilitative to the actual business of producing tangible personal property which is to be sold, (2) items used for transporting articles where such transportation is a part of the processing of such articles and (3) items used or consumed during the actual manufacturing or processing.”

Since appellant relies in part upon the claim that its batching plants are integrated operations, and that its mining of shale and the making of shale brick are of the same character, it is well at this point to further quote from the Jackson Iron Case, supra. Page 373: •

“In the instant case, it can not fairly be said that the mining of coal (shale) is a direct and integral part of the production of pig iron (bricks). Here, there are two distinct activities, namely, mining and smelting, (brick making) and, although they are related in that mined coal (shale) is utilized in the production of pig iron (bricks), the two are still separate and distinct operations.” (interjections ours.)

Examination of the Mead Corp., case, supra, discloses that it did little more, on one phase of the case, but apply the law as already announced in such cases. It did, however, expand upon the law of the Fyr-Fyter and Hanna Coal cases, 150 Oh St 118, 37 O. O. 432, wherein the word “directly” is defined, by embracing (¡herein the “primary” test for exemptibility. On Page 543 (Mead Case) the following is found:

“Where equipment is employed principally in a way which excepts its purchase from the sales and use tax, its incidental use otherwise will not destroy such excepted status.”
“The general rule is that ‘it is the primary, as distinguished from an incidental, use of the property that determines the question whether it is exempt from taxation.’ ”

It is doubtful if the conclusions of fact reached in the Mead case, supra, in view of the court’s pronouncement in Union Carbide & Carbon Corp. v. Bowers, 166 Oh St 419, 2 O. O. (2d) 403, decided June 12, 1957, would again be so found.

Appellant has urged upon us the case of Boardman Supply Co. v. Bowers, decided by the Seventh District Court of Appeals on March 28, 1956, 76 Abs 209 and 213. This case appears to be decided upon the theory that all assessed property is an integral part of an operating plant and hence is exempt from sales and use taxation. Appellant says that a motion to certify has been overruled therein, and that such action reveals a strong presumption of the correctness of that court’s decision. As we understand it, the Supreme Court has stated that no presumption is to be drawn from any such action. What the court held in the Boardman case is to date the law of the case within the Seventh District. The law of Ohio in such cases is found in the Supreme Court cases herein referred to and which we propose to follow. Never, to our knowledge, has a majority of the court, in any reported case, subscribed to the “integrated” theory under which the Boardman case is decided. We can not refrain from the comment, that the statutory amendment of two years ago does not make for unanimity or equalization of tax law in Ohio, as evidenced by the decision of the Boardman case. Those ends may not be attained when eleven courts have final jurdisdiction in such cases.

Applying the law, as we conceive it to be, to the facts of this case, we reach the conclusion that production of ready mixed concrete begins when the aggregates are weighed and dropped into the mixing bin from the top storage bins. In other words, in the first mixing bin.

We find the second item, the “Ford Lift Tractor front end loader” to be directly and primarily used during the manufacturing process of making bricks. It is therefore entitled to be exempt from sales and use taxation.

We find all other items in question are subject to sales and use taxation. All are used before and after production begins and ends, and are therefore not used directly and primarily in production.

It follows that the commissioner’s order must be and is modified in accordance herewith, and the order affirmed as modified.


author: By THE COURT.

text:
    ALESSANDRO, d. b. a. LUCKY STAR CAFE, Appellant-Appellee, v. BOARD OF LIQUOR CONTROL, Appellee-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5596.
    Decided December 13, 1957.
    Abraham L. Adelstein, Cleveland, for appellant-appellee. ■
    William Saxbe, Atty. Geni., S. Noel Melvin, Chester Hummell, Asst. Attys. Geni., Columbus, for appellee-appellant.
    (HORNBECK, J, of the Second District, sitting by designation in the Tenth District.)
   OPINION

By THE COURT.

On November 6, 1957, the Board of Liquor Control, appellee-appellant herein, hereinafter referred to as the Board, filed a motion for reconsideration of the judgment of this court entered herein on October 17, 1957, for the reason that the Department of Liquor Control is, by such judgment, ordered to issue to the appellant-appellee, Andre Alessandro, hereinafter referred to as the appellee, a D-5 permit, which order is contrary to law for the reason that said appellee had forfeited his right to have said permit renewed prior to the judgment entered herein from this court.

In essence, the Board claims that the appellee’s failure to file a timely appeal from the rejection of his application for renewal on August 1, 1952, prior to the effective date for §119.121 R. C., made this case moot.

Counsel for Alessandro, in reviewing the record of this case from February, 1949, calls attention to the following two entries of the Board made on August 11, 1953:

“It appears to the Board that the above permit holder is presently operating his business pursuant to an order of the Court of Common Pleas in Case No. 182,451, and that there is no Class D-5 permit now in effect at the above premises. It is therefore ordered and adjudged that the privileges of a Class D-5 Permit conferred upon the said permit holder by means- of said court order be, and the same are revoked, effective September 4, 1953. The former order of revocation of the Board of Liquor Control made on February 10, 1949, is hereby affirmed.”
“This cause came on to be heard on the appeal of Andre Allessandro. dba Lucky Star Cafe, 3842 Scoville Avenue, Cleveland, Ohio, from an order of the Department of Liquor Control rejecting an application for renewal of a Class D-5 permit, and the Board of Liquor Control having heretofore, to-wit, on August 11, 1953, in case No. 10318, ordered the within permit revoked and that consequently there is presently no permit in existence in the name of the appellant which can be renewed, it is ordered that the appeal be dismissed . . .

Counsel for Alessandro continues with the following argument:

“On August 28th, 1953, appellee herein appealed the order of the Board which revoked his D-5 Permit for a second time, by filing said appeal in the Common Pleas Court, case No. 188,202, which incidently is the case in which Judge Joseph Harter reversed the Board and ordered a Class D-5 Permit to be issued, which judgment this Court affirmed recently and appellee is now seeking a reconsideration.
“On September 4, 1953, appellee herein filed a Notice of Appeal from the order of the Board rejecting his application for a D-5 Permit, this case bears No. 188239 in the Common Pleas Court.
“It is noteworthy to follow the action of the department from this point. On November 19, 1953, the Board of Liquor Control through its counsel, the Attorney General of Ohio, filed a Motion with the Common Pleas Court in case No. 188,202 asking the Court to consolidate case No. 188239 (the appeal from the rejection of appellee’s application for a D-5 permit) with case No. 188202 (the appeal from the second revocation of appellee’s permit), ‘for the reason that all actions concern the identical subject matter, involve the same party, and that party alone, . . .’. On January 13, 1954 the Common Pleas Court granted the motion to consolidate and used the language of the motion in its decree, which was journalized in Journal 396, Page 115.
“The proposition raised by appellant herein in its Motion For Reconsideration was never raised by the Department of Liquor Control when it received appellee’s application for a D-5 Permit in July of 1953 and accepted the $1,000.00 fee for same, nor by the Board of Liquor Control in making both of its orders on August 11, 1953, the first in revoking the D-5 Permit and the second in dismissing the appeal of the appellee herein from the decision of the Department in rejecting his application for a D-5 Permit.
“The Attorney General of Ohio did not raise this question when case No. 188202 was first tried by Judge Harter on November 16, 1953, nor when the Board appealed his decision to this Court in case No. 5163, nor when appellee filed bis motion to certify in the Supreme Court of Ohio.
“The Attorney General did not raise this question when Judge Harter again reviewed the Board’s decision on a remand from this Court on February 27, 1956, nor when the Board appealed Judge Harter’s decision to this Court in the case at bar.”

This argument is not without merit in view of the claim in Case No. 182451 that the original order of the Board in 1949 was fraudulently obtained by reason of false testimony and the subsequent motion by counsel for the Board to consolidate Case No. 188202 and Case No. 188239. which motion was granted by the Common Pleas Court.

The judgment of Judge Harter ordered and directed the Department of Liquor Control to issue to the appellee a class D-5 permit covering the permit premises “upon the payment of all permit license fees to date.”

The Board set forth its assignment of errors in the instant case as follows:

“1. The lower court erred prejudicially in admitting into evidence as ‘newly discovered evidence’ documents which verified the conviction and commitment of officer Wayne P. Neal in 1953 for accepting a bribe.
“2. The lower court erred in not finding that the order of the Board revoking the permit involved in this cause was supported by ‘reliable, substantial and probative evidence’ as required by §119.12 R. C.”

The questions raised by this motion for reconsideration were not presented to this court by any original assignment of error. Therefore, they will not be considered on a motion for reconsideration, and the judgment of the Common Pleas Court will again be affirmed.

Judgment affirmed.

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


author: By WASSERMAN, J:

text:
    McLEAN, Plaintiff, v. METROPOLITAN LIFE INSURANCE COMPANY, Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 666931.
    Decided November 19, 1957.
    Frank Leonetti, for plaintiff.
    Burgess, Fullmer, Parker & Weh, for defendant.
   OPINION

By WASSERMAN, J:

This cause has been submitted to the Court on an agreed stipulation of facts and briefs. The plaintiff is the widow of John H McLean, who died on February 5, 1952, and was designated as beneficiary in his application of insurance. As beneficiary she seeks to recover certain insurance proceeds allegedly due under Defendant’s Group Policy No. 15500-G insuring certain employees of the General Motors Corporation. The defendant issued said group policy effective September 1, 1950, and said policy insured certain employees of General Motors Corporation and certain subsidiary and affiliate companies, including the Cleveland-Cadillac Tank Plant. John H. McLean applied for employment with the Cleveland-Cadillae Tank Plant and made written application for insurance under said group policy on June 15, 1951. He commenced work as a factory laborer on June 18, 1951 and worked continuously and actively to and including September 1, 1951, when he was granted a leave of absence due to physical disability. On August 13, 1951, John H. McLean, while in the course of his employment, was accidentally injured, but continued in active employment until September 2, 1951. From that date until his death on February 5, 1952 he was continuously and totally disabled. He was unable to work and never appeared at his place of employment. No premium was ever paid by the employer company to the Metropolitan Life Insurance Company for coverage on John H. McLean under said group policy, nor did John H. McLean or anyone on his behalf, ever pay any premium contribution for insurance on the said John H. McLean. John H. McLean tendered premium contributions to the employer, but the same were refused.

There are two provisions in the group policy which are significant and decisive in determining whether or not the plaintiff is entitled to recover insurance proceeds under said group policy.

The first is “Section 2. Eligibility of Employees,” which reads in part as follows:

“All employees employed prior to the date of issue hereof are eligible for insurance hereunder on the date of issue hereof. Employees employed on or subsequent to the date of issue hereof shall be eligible for insurance hereunder exactly ninety days after the date they start work.”

The second is “Section 3. Effective Dates of Insurance,” which reads in part as follows:

“An Employee may become insured hereunder only by making written request to the Employer on forms furnished by the Insurance Company. The insurance on any Employee who makes such request on or before the date of his eligibility shall become effective on the date of his eligibility, provided he is actively at work on the date of his eligibility * * * The insurance on any Employee not actively at work on the date when his insurance hereunder would otherwise become effective shall become effective on the next following day on which he is actively at work provided that date is not more than twenty-four months later.” (Emphasis added.)

From these sections it can be concluded that John H. McLean became eligible for insurance ninety days after June 18, 1951 or September 16, 1951. His insurance became effective on that date provided he was “actively at work” on that date. If he was not “actively at work” on that date, then his insurance became effective on the next following day on which he was “actively at work.”

The Court finds nothing ambiguous about the term “actively at work,” and, from the facts stipulated, John H. McLean was not “actively at work” at any time after September 1, 1951. In fact he was totally disabled, unable to work, and did not appear at his place of employment after September 1, 1951.

Furthermore, the fact that he was totally disabled by reason of an accidental injury incurred in the course of his employment and could not be actively at work in no way met the requirements of the group policy.

The Court finds that the terms of the group policy are clear and that the insurance never became effective in the case of John H. McLean. Judgment is therefore rendered for the defendant with costs.


author: By PETREE. PJ.

text:
    CITY PRODUCTS CORPORATION, Appellant, v. BOARD OF LIQUOR CONTROL, Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5829.
    Decided January 28, 1958.
    John T. Feighan, Anthony J. Trivison, Cleveland, Charles T. Kaps, Columbus, for appellant.
    William Saxbe, Atty. Geni., John W. Leibold, Asst. Atty. Geni., Columbus, for appellee.
   OPINION

By PETREE. PJ.

The cause is before this court upon an additional assignment of error and motion for remand filed by the appellant on December 20, 1957. The motion sets forth as an additional assignment of error the failure of the Common Pleas Court to grant the appellant a hearing on its appeal from the order of the Board of Liquor Control and then moves that the Court of Appeals remand this case to the Court of Common Pleas for a full and complete hearing upon the appeal of this appellant from the Board of Liquor Control.

At the time this motion was filed, on December 20, this case, bearing No. 5829 in this court, was pending as an appeal on questions of law, pursuant to a notice of appeal filed on October 31, 1957, along with a precipe for transcript of docket and journal entries, together with all the original papers, including the bill of exceptions. Also on said date, October 31,1957, a stipulation was filed in the Common Pleas Court which reads as follows:

“It is hereby stipulated and agreed by and between counsel for the appellant and counsel for the appellees that the papers filed in this cause in the Court of Common Pleas shall constitute the bill of exceptions in the Court of Appeals.”

The papers in the Common Pleas Court contain the proceedings and testimony, including the exhibits, before the Board of Liquor Control, together with the papers from the Director of Liquor Control which had been filed therein.

The matter proceeded to judgment on October 31, 1957, in the Common Pleas Court, and the journal entry approved by the attorney for the appellant, Mr. John T. Feighan, as well as by the Attorney General and assistants and signed by Judge Marshall, contains the following language:

“This cause came on to be considered from an order of the Board of Liquor Control suspending appellant’s A-l permit for a period of twenty-one (21) days. The cause was submitted to the court upon a transcript of proceedings and testimony before the Board of Liquor Control, the original papers, briefs and arguments of counsel. Upon consideration thereof, and being fully advised in the premises, the court finds that the order of the Board of Liquor Control is supported by reliable, probative and substantial evidence and is in accordance with law and should be affirmed.
“It is, therefore, ORDERED, ADJUDGED AND DECREED that the order of the Board of Liquor Control be, and the same is, hereby affirmed. It appearing to the court that the appellant desires to appeal to the Court of Appeals, the restraining order, heretofore granted, is hereby continued until such time as this matter is finally determined. Bond continued. Costs to'be taxed to the appellant.
“To all of which appellant excepts.”

From the above entry, it would seem clear that a complete hearing was afforded this appellant as contemplated by §119.12 R. C. The pertinent language of that section is that the hearing in the Court of Common Pleas shall proceed as in the trial of a civil action, and the court shall determine the rights of the parties in accordance with the laws applicable to such action. At such hearing counsel may be heard on oral argument, briefs may be submitted, and evidence introduced if the court has granted a request for the presentation of additional evidence. The requirement of the statute that the order of the Board be supported by reliable, probative, and substantial evidence was included in the finding of the Common Pleas Court.

There is no showing that the appellant either offered any new evidence or requested permission to offer any new evidence in the Common Pleas Court; but, on the other hand, it rested its case in the Common Pleas Court upon the evidence offered before the Board of Liquor Control. Therefore, we have the situation and the fact that the record discioses no new evidence was offered, but we have no complaint nor any refusal by the Common Pleas Court to admit further evidence. Prom this state of the record, it is our opinion that the Court of Common Pleas has afforded to the appellant the right to a full hearing as contemplated by the statutes of Ohio relating to such hearings.

The additional assignment of error is, therefore, not well taken, and the motion for remand will be denied.

MILLER, J, concurs.

BRYANT, J, not participating.


text:
    KHOURY, d. b. a. CLUB CARNIVAL AND ARTISTS AND ACTORS COCKTAIL BAR, Appellant, v. BOARD OF LIQUOR CONTROL et, Appellees.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5677.
    Decided September 23, 1957.
    Sidney A. Levine, Cleveland, Paul P. Ward, Charles T. Kaps, Columbus, for appellant.
    William Saxbe, Atty. Geni., S. Noel Melvin, Chester Hummell, Asst. Attys. Geni., Columbus, for appellees.
    (HORNBECK, J, of the Second District, sitting by designation in the Tenth District.)
   OPINION

By THE COURT.

We have examined the record in this case and considered the assignments of error, briefs and the oral arguments of counsel and are of the opinion that none of the assigned errors are well taken. Judge Bartlett in a well-considered opinion (74 Abs 492, 498) reviewed the legal questions' presented and came to the proper conclusion, that the order of the Board of Liquor Control was supported by “reliable, probative and substantial evidence and is in accordance with law.” We adopt the opinion of Judge Bartlett and will affirm the judgment.

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