author: By PHILLIPS, J.

text:
    ZUSMAN, d. b. a. BERTRAM BUILDERS & SUPPLIES, Plaintiff-Appellee, v. PARKER et, Defendants-Appellants.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3934.
    Decided October 25, 1957.
    Philip A. Morgante, Youngstown, for plaintiff-appellee.’
    Modarelli & Modarelli, Youngstown, for defendants-appellants.
   OPINION

By PHILLIPS, J.

Defendants appeal on questions of law from a judgment of the court of common pleas overruling their motion for a new trial and entering judgment for plaintiff on the verdict of the jury returned for plaintiff in the amount of $1,102.71 against defendants.

In the first cause of action in his petition filed in the court of common pleas plaintiff alleged that on or about the sixth day of March, 1955, he entered into a contract in writing “with the above defendants for the construction of a patio and garage to be annexed to and complimentary with the house situated at” 150 Forest Hill, Youngstown, Ohio; that by “the terms of said contract the plaintiff agreed to furnish materials and to build said patio and garage on the lot of the defendants”; that “in consideration of said services to be performed and labors to be done, the defendants promised and agreed to pay the plaintiff the sum of $1,252.00 upon the completion of said job”; that “after said work was begun and after the garage was completely erected, and at the defendants’ request, the said contract was modified by mutual agreement between the above parties; that the change made in the terms of the contract was as follows: that the patio was not to be erected, nor any work toward said erection of the patio begun until sometime during the Fall of 1955”; and that “in consideration of said modification, the defendants promised to pay the plaintiff the cost price for material and labor as set forth in the original contract.” Further plaintiff alleged his willingness to complete and defendants unwillingness to allow plaintiff to complete the modified portion of the contract and defendants failure to pay him in accordance with the contract and “his damage” on the modified contract in the sum of $150.00.

For his second cause of action plaintiff alleged perfection of a mechanics lien.

By answer defendants admit the execution of the alleged contract, but specifically deny that the work was completed in accordance with the agreement, or that “at any time by mutual consent or otherwise” they “permitted any change in the contract as executed,” or “that they refused the plaintiff from completing the work,” or that they “are indebted to plaintiff in the amount as alleged in the petition”; and generally deny each and every fact stated, averment made and allegation set forth in plaintiff’s petition.

By cross-petition defendants alleged:—

“* * * at the time that they engaged the Bertram Builders and Supplies Company, it was informed that the building to be constructed was for the purpose of raising expensive carrier pigeons, and that the company in attempting to perform said work, used inferior lumber, did not use the sizes for joist and studding as specified in the contract and that in their work, many knots, openings, and appertures are visible and that the lumber is of a poor quality and not as specified in the contract and that the workmanship is defective and not to the standard of carpentry.
“These cross petitioners say that in the construction, the company has not built any overhang and have not supplied or placed sufficient nails for the proper construction of the building and that various walls and especially the end walls are not braced and that the windows in said building are not finished, and certain windows are lacking, according to the contract, and that the lumber placed in the construction of said building looks to be of a variety of hemlock and of a very inferior grade.
“These cross petitioners further state that the structure now on the premises is considerably shorter than was agreed upon between the parties, to be built and according to the contract.
“These cross petitioners state further, that the building as now constructed, is of little or no value to them, and that same cannot be used for the purpose for which it was constructed, and as a result of the defective work, materials, and of using sizes different than those specified in the contract, and that the dimensions of the building having been diminished or lessened, and as a result of these defects they have been damaged in the sum of $1,500.00.
“Wherefore, these cross petitioners pray judgment against Bertram Zusman dba Bertram Builders and Supplies, in and for the sum of $1,500.00 and costs of suit.”

Defendants claim that:—

“The jury erroneously brought forth a verdict which included an amount of damages for which no evidence whatsoever was submitted by plaintiff.
“The lower court erred in refusing to permit defendants to introduce evidence to substantiate its defense and prove its cross-petition.
“The court erred in its charge to the jury and confused the jury so that they returned a verdict that was manifestly against the weight of the evidence.”

In a cover all argument, defendants contend “all that can be said was that many prejudicial and substantial errors were made during the trial of this cause, any of which would be valid ground for reversal and the remanding of this cause for a new trial.” We find no merit in this contention.

Although having no bearing on the case we review defendants’ counsel by brief called our attention to the fact that this case was tried twice in the court of common pleas, the first trial resulting in a verdict for plaintiff against defendants in the sum of $275.00 and in favor of plaintiff on defendants’ cross-petition. Motion for new trial was sustained and the cause retried and in that retrial the jury rendered a verdict for plaintiff against defendants in the sum of $1,102.71. It is from this verdict that defendants now appeal to this court on questions of law.

By assignments of error defendants claims:—

“4. Error of the court in preventing these defendants from offering testimony to substantiate the claim of their cross petition.
“5. Error of the court in excluding various exhibits offered in behalf of the defendants, which were material to the issues and would assist the jury in a sensible determination of the issues.”

The trial judge rightly refused to allow defendants to change or vary the terms of their written contract with plaintiff by introduction of testimony of loss of profits which would come from the sale of homing pigeons — nothing being mentioned in the contract as to the purpose of the building.

In the case of Steel Sanitary Co. v. Pangborn Corp., 38 Oh Ap 65, it is said in the first and third paragraphs of the syllabus:—

“Where contract imports complete legal obligation, it is, in absence of fraud, accident, or mistake, conclusively presumed that whole engagement of parties was reduced to writing.
“Defendant could not change defense and cause of action in cross-petition, from one sounding in contract to one sounding in tort.”

Also see Seitz v. Brewers’ Refrigerating Machine Co., 141 U. S. 510; 1 Williston on Sales, Second Edition, Section 236, Page 610; Davis Calyx Drill Company v. Mallory, 137 Fed. 332; and Leverette v. New London Ship & Engine Co., 24 Fed. (2nd) 524.

We find no error in the exclusion of these exhibits.

Defendants contend “that the court erred in admitting certain testimony over the objection of these defendants, to which exceptions were duly noted.” We find no error prejudicial to defendants in this conten-, tion.

By assignment of error number six defendants contend the court erred “in permitting plaintiff to depart from the allegations of his petition and proceed on a quantum meruit in this cause.” We find nothing to charge the trial judge with commission of error in the respect charged in this assigned ground of error.

It is claimed that “the long, complicated and confused charge delivered in this case covers a shotgun blast on every kind of contract law. Paragraphs of the charge, taken by themselves, might sound proper. Taken altogether, however, a different result occurs.” A reading of the court’s charge as a whole convinces us that the trial judge covered each and every one of the issues fairly and clearly.

Defendants contend that defendant Howard Parker’s absence during part of the trial “might have influenced the jury in its determination.” There is no merit in this assigned ground of error.

Next defendants urge “that the verdict of the jury was procured by testimony offered in behalf of the plaintiff which was not truthful and misled the jury in its determination,” and as a result thereof “the jury erroneously brought forth a verdict which included an amount of damages for which no evidence whatsoever was submitted by plaintiff.” There is nothing in the entire record to support this assigned ground of error.

Appellants’ counsel has failed to call our attention to “other errors of law which occurred during the trial to which exceptions were duly noted, which will be shown at the time of the hearing of the motion for new trial in this cause,” as alleged as a ground of error, or to comply in respect thereto with the provisions of Rule vn of this court as hereinbefore stated. Accordingly we will not pass upon this assigned ground of error.

The judgment of the court of common pleas is affirmed.

NICHOLS, PJ, GRIFFITH, J, concur.


source: Caselaw Access Project

author: By TOBIN, J.

license: Public Domain

text:
    EVANS, INC., Assignment for the Benefit of Creditors, In re.
    Probate Court, Columbiana County.
    No. 52555.
    Decided February 10, 1959.
   OPINION

By TOBIN, J.

This matter came on to be heard on the question whether Messrs. Stillwell, Young and Spar, as salesmen for Don Evans, Inc., were (1) entitled to be preferred creditors to the extent of $300.00, or whether their claims were only that of general creditors.

2. Was the mechanic’s lien on record in favor of Charles Bibbee, d. b. a. B. & B. Sanitation, a valid mechanic’s lien entitling him to be a preferred creditor on his claim.

As to No.. 1, the Court renders the following Decision:

Originally §11138 GC read “Each person who has performed labor as an operative (emphasis mine) in the service of the assignor, shall be entitled etc., full amount of wages due for such labor, not to exceed $300.00."'

The decisions under this section principally Myers v. Ensign, 21 N. P. N. S. 177; decided in 1918 and Davis assignee v. Greenlees, VIIOCD 111 decided 1897 held automobile salesmen did not perform labor as an operative and thus were not preferred claims.

Sec. 1313.44 R. C., effective October 1, 1953, which was enacted when the new code was adopted, deliberately removed the words “as an operative” from this section. It is a rule of judicial interpretation of legislative acts that the Courts must arrive at the intention of the legislature and it must be assumed the legislature used the language in the statute advisedly and intelligently. 37 O. Jur. p. 504 et seq.

Also that the Legislature has a definite purpose in each and every enactment and all its provisions. 37 O. Jur. P. 656.

Under these rules it must be assumed the Legislature had a purpose in deleting the words “as an operative” from former §11138 GC, when it enacted §1313.44 R. C. The only meaning this Court can take from this change and the new statute is to enlarge on the meaning of those who furnish labor to assignor.

Herein the above parties were salesmen in an organization that sold automobiles. They were important cogs in the organization. Without them little of the assets would have been available at all for distributors. Therefore this Court states that they come within the meaning of “labor” as expressed in §1313.44 R. C., and have preferred claims up to the statutory amount of $300.00.

Coming now to the claim of preference of B. & B. Sanitation on a Mechanic’s lien. The question involved is: Was the mechanic’s lien filed and recorded with the Columbiana County Ohio Recorder a valid Mechanic’s lien entitling preference?

Receivers claim two fatal defects:

1. No affidavit or statement under oath showing name of every unpaid laborer and sub-contractor was ever furnished. Sec. 1311.04 R. C.

2. Proper posting of Notice under §1311.07 R. C., was not complied with.

As to the first contention of the receiver the testimony of Mr. Bibbee on Page 6 of the record states as follows:

(MR. KAPP EXAMINING MR. BIBBEE)

Q. You filed the affidavit on June 1, 1956, now, before you filed your lien, did you serve any papers?

A. No, Evans received his bill in the mail.

Q. Did you give him anything else in the mail?

A. No.

Q. Did you ever serve him after June 19, 1956?

A. I have never seen the man.

Q. Did you ever serve me with any papers?

A. No.

Q. Did you ever serve Mr. Gelbman?

A. No.

Q. Did you ever serve by registered or certified mail?

A. No.

Nowhere does this indicate a “statement under oath containing names of unpaid laborers or subcontractors” as required by §1311.04 R. C. The Court finds that there was no compliance by claimant with the requirements of §1311.04 R. C.

As to the second contention the testimony of Mr. Bibbee is as follows:

(MR. KAPP EXAMINING MR. BIBBEE)

Q. Did you post it on the door?

A. No sir, I slipped it under the door. I put it under the garage door.

Q. In Salineville?

A. Yes sir.

Sec. 1311.07 R. C., uses the language “posting in some conspicuous place.” Is placing same under door sufficient? The Court believes not. The posting of the notice in a conspicuous place is to bring the matter to the attention of the owner and all other interested parties of claimant’s rights. The Legislature has allowed this as a substitute for actual personal service where the owner cannot be found and its intention was that it be brought to his attention as forcibly as possible in view of his absence. Placing same under the door is not “posting in a conspicuous place.”

Therefore, the Court rules that B. & B. Sanitation has a general claim but the alleged mechanic’s lien is invalid as a lien because of the above stated reasons and thus does not create a preferred lien or claim.

EXCEPTIONS ALLOWED.


author: By HORNBECK. J.

text:
    BENNETT, Plaintiff-Appellant, v. MATTHEWS DELIVERY SERVICE, Defendant, and NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5967.
    Decided January 6, 1959.
    Wiles, Doucher, Tressler & Koons, Arthur W. Wiles, of Counsel, Columbus, for plaintiff-appellant.
    Dresbach, Grabbe, Newlon, Collopi & Bilger, Lloyd E. Bilger, of Counsel, Columbus, for defendant-appellee.
    (HORNBECK, J, of the Second District, sitting by designation in the Tenth District.)
   OPINION

By HORNBECK. J.

This is an appeal from a judgment for the defendant entered upon a directed verdict for the defendant, Nationwide Mutual Insurance Company, a corporation, on its motion at the conclusion of plaintiff’s case. The plaintiff secured a judgment against Matthews Delivery Service, defendant, for damages for persona! injuries in the sum of $75,000.00, which was entered after the plaintiff had accepted a remittitur to that sum from the verdict of $90,000.00 as returned by a jury. Thirty days having elapsed, the judgment remaining unsatisfied, the plaintiff filed a supplemental petition against defendant insurance company, which was the successor to Farm Bureau Mutual Automobile Insurance Company, in which Matthews Delivery Service, Inc. was the insured on a policy of liability, covering certain trucks and trailers of Matthews Delivery Service, and by the conditions of which the insurer indemnified Matthews from damages for which it was liable to the amount of $50,000.00. Plaintiff, after the necessary averments as to the recovery of the judgment against Matthews, that it had not been paid for thirty days succeeding the judgment, averred that Nationwide was obligated under its liability insurance policy with Matthews to pay the sum of $50,000.00 that it had defaulted on its obligation.

Nationwide, answering, set up three defenses: the second defense pleaded certain paragraphs of the policy which was held by Matthews .under headings:

1. Notice of Accident.

2. Notice of Claim or Suit.

3. Limits of Liability.

4. Limits of Liability (Coverages E, F and G).

In this defense, Nationwide also pleaded that the accident occurred on April 24, 1953, and that the defendant, Matthews, through its officer and agent had been informed of and knew of said accident and the bodily injuries of the plaintiff upon the date of the occurrence; that neither the insured nor anyone on its behalf gave any notice of said accident to the defendant insurance company or any of its duly authorized agents, “as soon as practicable,” as provided “under the conditions of the policy”; that when notice was given to the company, approximately eighteen months after the occurrence of the accident, it did not contain particulars sufficient to identify the driver of the insured vehicle and reasonable, obtainable information respecting the time, place and circumstances of the accident with the names and addresses of the injured and all available witnesses, as provided “under the conditions of the policy.”

As a third defense, Nationwide pleaded a paragraph of Section 6, “Action Against Company * * * (Coverages E and F),” as follows:

“No action shall lie against the Company unless, as a condition precedent thereto, the Insured shall have fully complied with all the terms of this policy, nor until the amount of the Insured’s obligation to pay shall have been finally determined either by judgment against the Insured after actual trial or by written agreement of the Insured, the claimant and the Company.”

The plaintiff, replying to the answer of Nationwide, admitted the provisions of the policy as pleaded, but alleged that notice of the accident was given to the insurance company “as soon as practicable.”

Appellant assigns four errors: the third, error in refusal to admit testimony; the fourth, other errors apparent upon the face of the record. These are not especially urged. The first and second raise the same question.

1. That the Common Pleas Court erred in sustaining the motion of the Nationwide Mutual Insurance Company to direct the jury to return a verdict in its favor; to the sustaining of which motion the Plaintiff-Appellant at the time excepted.

2. That the Common Pleas Court erred in entering up a judgment upon the verdict of the jury which had been directed by it.

We hereinafter refer to Matthews Delivery Service as Matthews or the insured, to the defendant, Nationwide Mutual Insurance Company, as the insurer or the insurance company.

■ The principal and controlling issue in this court arises upon a construction of the provision in the policy requiring notice and that part of Section 6, which we have heretofore quoted, to the effect that “No action shall lie against the company, unless as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, * * *.*’

The provision of the policy affecting notice is as follows:

“When an accident occurs written notice shall be given by or on behalf of the insured to the Company or any of its authorized agents as soon as practicable. Such notice shall contain particulars sufficient to identify the Insured and also reasonably obtainable information respecting the time, place and circumstances of the accident, the names and addresses of the injured and of available witnesses.”

Two questions are presented upon the issues drawn by the pleadings:

1. Was the notice of the accident given to the defendant insurance company as soon as practicable?

2. Did such notice as was given conform to the last sentence of the paragraph relating to notice as to certain particulars required to be given by this clause of the policy?

The plaintiff having introduced its evidence and rested, defendant insurance company moved for a directed verdict, which was sustained.

In determining the correctness of this action, we are required to accord to the testimony produced by the plaintiff its most favorable intendment for him. So doing, is it such that reasonable minds can come to but one conclusion. If so, and that conclusion is adverse to the plaintiff, the trial judge was correct in directing a verdict for the insurance company. If reasonable minds could come to different conclusions on the evidence adduced, then the court erred to the prejudice of plaintiff. Third and fourth syllabus, Hamden Lodge, etc. v. The Ohio Fuel Gas Co., 127 Oh St 469.

We shall state the evidence, as we read it, in the most favorable light to the plaintiff.

The plaintiff, Sylvan Bennett, was on April 24, 1953, in the employ of the Kroger Grocery & Baking Company as a meat cutter. Robert Reed, on that date, was in the employ of defendant Matthews, as a trucker and a delivery man. ■ He was making a delivery for Matthews to Kroger, either in the morning or afternoon of that day and, while carrying a quarter of beef into the meat department of Kroger, slipped, causing the beef to be thrown against plaintiff. The floor of the Kroger Company was slippery from grease. At the time that the plaintiff was struck by the quarter of beef, inquiry was made of him by Mr. Reed if he was hurt, and he said that it knocked the wind out of him. Reed completed his deliveries elsewhere in the city of Columbus and in the evening between five and six o’clock, reported the occurrence to a dispatcher for Matthews and to Leon E. Matthews, President of the Matthews Company.

Reed testified that he told Mr. Matthews, “ T hit a man with a shoulder of beef out there today,’ and he said, ‘Was the man hurt?’ And, I said, ‘He didn’t act like it,’ and he (Mr. Matthews) said, ‘See me tomorrow and we will make an accident report.’ ” He did not tell Mr. Matthews how the accident happened, the condition of the floor, or anything substantially further than we have stated. Reed did not report the next day and he said that he knew nothing about the matter until fifteen or eighteen months thereafter. Matthews testified on cross-examination that he called an insurance agent respecting coverage who told him that in probability his company was covered by the Farm Bureau policy. No report was made of the accident until approximately eighteen months after it occurred. However, the report was made to the company almost immediately after Matthews learned, for the first time, that the plaintiff was claiming that he had been injured in the accident wherein he was struck by a shoulder of beef. Thereafter, suit was instituted against Matthews and there is no question but that it forwarded summons which it received in the action of Bennett. The case came on for trial many months after the suit was instituted and after the insurance company had been notified that it was pending and after it had received the summons from Matthews. The company defended Matthews with the reservation of its rights under the policy which Matthews held.

If the question presented here was one of first impression, applying the rule that the effect of contracts entered into between parties must be determined by the ordinary meaning of the language therein employed, we would have less difficulty in concluding that notice by Matthews to the company of the accident was not given as soon as practicable, but the matter is not one of first impression but one which has been litigated and upon which the courts have spoken many times in contracts similar to, and at least once in a contract identical with, the one under consideration in this case. The problem is made much more difficult because there is some diversity of opinion as to the proper construction of the clause in this policy respecting notice.

Most of this difficulty arises because of the interpretation which courts inferior to the Supreme Court have given to the case of Employers’ Liability Assurance Corporation v. Roehm, 99 Oh St 343. That case held:

“A provision in a policy of indemnity insurance, to the effect that written notice should be given the company within 30 days from the date of sustaining the injury, is of the essence of the contract, and like other contracts should be construed so as to give effect to the intention and express language of the parties. This rule of law is subject to the qualification that if at the time of the accident, and within the period stipulated for the giving of notice, no reasonable ground existed warranting a belief that the injury was anything but trivial in its character, not justifying a claim for damages, and it subsequently develops that as a result of such accident serious consequences have ensued, and that immediately upon being advised of this fact the insured gives written notice to the insurer, the question whether the notice was given within time is not a matter of law, but is a question for the determination of a jury.”

In this case Roehm, while playing basketball, June 1914, was accidentally struck a blow in the left eye. He had immediate medical treatment, but he nor his physician apprehended any serious injuries from the blow. More than ten months thereafter for the first time,' after consultation with another physician, he learned that as a direct result of the accidental blow, he had lost a greater part of the vision of the injured eye. Eventually, he lost the sight of both eyes. As soon as he was aware of the serious nature of his injury, he gave notice to the insurance company. The policy provided insurance “against bodily injuries during the term of the policy” and “no claim shall be valid on account of any injuries, fatal or otherwise, unless written notice is given to the company within thirty days from the date of sustaining any injuries, fatal or otherwise (unless such notice may be shown not to have been reasonably possible), for which claim is to be made.” The opinion directs attention to the fact that it is recognized in every jurisdiction that provisions as to notice in insurance policies must be reasonably construed; and that such provision should be liberally construed in favor of the insured. The opinion points out that the much greater weight of authority outside of Ohio supports the doctrine that notice given immediately after the extent of the injuries brought to the knowledge of the insured, is a compliance with the requirement that notice must be given within a time reasonably possible after the happening of the accident. A strict compliance with the terms of the policy in the Roehm case would have defeated his claim. It cannot be denied that Roehm did suffer an injury in the accident, though minor, and was treated by a doctor; nor that thirty days elapsed after that time before notice was given to the insurance company.

It would be well to read that part of the fourth syllabus of The Travelers’ Insurance Co. v. Myers & Company, 62 Oh St 529, disapproved in the Roehm case:

“4. ‘Immediate written notice’ in such stipulation means written notice within a reasonable time under the circumstances of the case; and where the facts are not disputed, what is a reasonable time is a question of law.” (Emphasis ours. The emphasized part of the syllabus is the last clause.)

The succeeding Ohio cases have construed the holding in the Roehm ease wherein the policy requires notice of the sustaining of an “injury” to have like application where the policy requires notice of the occurrence of an “accident.”

In July, 1917, almost two years before the Roehm case was decided, on April 2, 1919, the Court of Appeals for Hamilton County, in the case of The Fischer Auto & Service Co. v. General Accident, Fire & Life Assurance Corp., of Perth, Scotland, 8 Oh Ap 176, which is widely cited in Ohio and elsewhere, had under consideration the application of a clause in the policy involved which provided:

“C. The assured upon the occurrence of an accident shall give immediate written notice thereof, with the fullest information obtainable at the time, to the corporation’s head office at New York City, or to its duly authorized agent. * * *”

The original action by Smith was for damages for injuries suffered by him in a collision between plaintiff’s automobile and one in which Smith was riding. Defendant refused to defend and denied liability on the ground that notice had not been given of the occurrence of the accident in accordance with the terms of the policy. The facts disclosed that the driver of plaintiff’s truck had no knowledge of any bodily injury to either of the occupants of the other automobile and understood the extent of the damages caused by the collision was property damage to the other automobile. First knowledge had by plaintiff of any bodily injury caused by the accident was brought to its attention about five months after the accident, whereupon notice was given to the agents for the insurance company of the claim that Smith had been injured. The court pronounced this syllabus:

“1. Where no bodily injury is apparent as the result of an accident at the time the same occurs, and there is no reasonable ground for believing that a claim for damages against the owner of an automobile will arise therefrom, such owner is not required to give his assurer notice until subsequent facts as to an injury would suggest to a person of ordinary and reasonable prudence that a liability on the part of the owner to the injured person might arise.
“2. Under such circumstances the duty of the assured owner is performed if he gives notice within a reasonable time after the injury presents an aspect suggestive of a possible claim for damages.”

The court held that the trial judge erred in refusing to give two special charges requested by plaintiff before argument.

1. “The provision in the policy sued upon that the assured upon the occurrence of an accident shall give immediate written notice, with the fullest information obtainable at the time, to the corporation’s head office at New York City, or to its duly authorized agent, does not require a notice of all accidents, but only such accidents as result in bodily injuries.”

2. “If you find that neither the plaintiff nor the driver of its truck prior to the receipt of the letter from Clark Rankin, on December 4, 1913, knew or had reasonable grounds to believe that Mr. Smith received a bodily injury in the collision on July 18, 1913, and that within a reasonable time thereafter communicated said written notice to The Heister Huntington Company, then I charge you that the giving of that notice was a compliance with the provision of the policy requiring the insured to give immediate written notice of the accident.”

And, also held that the trial court erred in its general charge “in the use of language from which the jury might infer that a notice was necessary to be given the defendant company under the policy on the occurrence of any accident whatever, even though bodily injury did not result therefrom.”

Employers’ Liability Assurance Corp. v. Oles, et al., 13 Abs 436, was decided by the Court of Appeals of Mahoning County on October 14, 1932, in the light of the Roehm decision. A Mrs. Moyer fell on a soapy, wet and slippery surface in a meat market owned by the defendant in error. An employee of the defendant in error assisted Mrs. Moyer to her feet after she had fallen and made inquiry of her whether or not she had received an injury. She probably stated at that time that she was not hurt. Later, she made the observation to the proprietor of the meat market that he was lucky that she was not going to sue him and said to him that she had slipped and fallen but that she was not hurt. The effect of what was said was to indicate that Mrs. Moyer did not then realize that she had sustained an injury. The accident occurred on June 22, 1928. Later, Mrs. Moyer instituted an action against Oles for damages resulting from injuries which she claimed to have sustained in the accident. This suit was the first information that Mr. Oles had that Mrs. Moyer had suffered any injury. Mr. Oles was absent when the suit was instituted, but upon his return and upon learning that the action had been commenced, he notified his insurer of the accident and that action had been commenced to recover damages thereon. The company made some investigation and refused to accept liability or to defend the case upon the ground that the delayed notice jeopardized its interest and that the terms of the policy contract respecting notice had been violated. The provision in the policy read:

“Upon the occurrence of an accident, covered by this policy, the assured shall give immediate written notice thereof to the corporation or its duly authorized agent. The assured shall give like notice with full particulars of any claim made on account of any such accident. If any suit or other proceeding mentioned in Agreement 3 is instituted against the assured, on account of any such accident, the assured shall immediately forward to the corporation or its duly authorized agent every notice, summons or other process served upon the assured.”

Concerning this stipulation, the court found in headnotes Nos. 2 and 3 that:

“2. A stipulation in a liability insurance policy requiring the insured, upon the occurrence of an accident, to give ‘immediate written notice’ to the insured, does not, where the accident is of a trivial character or where there is no reasonable ground for believing that a claim will be made, require that notice be given until an actual claim is made.
“3. Whether the likelihood of injurious consequences of the fall of a woman customer on the concrete floor of a store, who at the time stated she -was not injured, with a resulting claim for damages is so reasonably apparent as to impose upon the store owner the duty of giving his liability insurer notice of the accident in accord with the provisions of his policy requiring the giving of immediate notice upon the happening of an accident, is a question of fact.”

Nye v. Louis Ostrov Shoe Co., et al., 43 N. E. (2d) 103, Court of Appeals, Summit County, January 23, 1942, arose upon a supplemental petition filed by an insured against its insurer company upon a liability insurance policy to recover the amount of a judgment obtained by plaintiff against the insured in an action for damages for personal injuries sustained by being crushed by the descending counterweights of a freight elevator in a building occupied by the Shoe Company, the insured. This case differs from the instant cause in that there was an issue if the insured had any notice or knowledge of the accident in which the employee, Nye, was injured. However, the significant finding of the court is in the fifth and sixth propositions of the syllabus:

“5. Under liability policy requiring insured to give insurer notice of any accident occurring, notice is an essential requirement to fix liability on insurer when there has been such occurrence or accident as would lead the ordinarily prudent and reasonable man to believe that it might give rise to a claim for damages.
“6. In action against liability insurance carrier to recover amount of judgment obtained against insured for injuries sustained by plaintiff when struck by descending counterweights of a freight elevator, where policy required insured to give insurer notice of such accident as soon as reasonably possible, the question whether such notice had been given was properly submitted to the jury and its determination that such notice had been given was not against the weight of the evidence.”

The next Ohio case tried in a State Court is that of Wagner v. Fireman’s Fund Indemnity Company, 130 N. E. (2d), 450. This is a nisi prius case decided by Judge McLaughlin, who now is on the Court of Appeals of the Fifth District. The provision in the policy there under consideration is set out in the first syllabus:

“Under automobile liability policy provision that, when accident occurs, written notice shall be given to insurer ‘as soon as practicable,’ quoted phrase means that insured must give notice within a reasonable time.”

The notice provision in this policy is the same as to the time when it shall be given as in the policy in the instant case.

In the cited case, the first and only notice given to the insurer was when insured received summons thirty-nine days after the accident. There was some suggestion in this case as to the issue whether or not the insurance company had been prejudiced by the delay in the insured giving his notice.

Another Ohio case, but determined in the Federal District Court for the Southern District of Ohio, Eastern Division, on October 7, 1940, is London Guarantee & Accident Co., Limited, v. Shafer, et al., 35 Fed. Suppl. 647. The provision in the liability policy there involved, as here, was that, upon the occurrence of an accident written notice should be given to insured “as soon as practicable.” The 6th syllabus held that this should be “interpreted to mean that notice must be given within a reasonable time” and the 7th syllabus:

“Whether notice of accident was given by insured to insurer within a ‘reasonable time’ depends upon facts of particular case, and if insured acts as a reasonable prudent man in determining that no claim will arise under policy, failure to give notice until such claim is asserted does not breach notice condition of policy.”

The court relied upon the Roehm case and made no differentiation between the obligation of the insured to report an accident and to report an injury. The failure to give the notice sooner was sought to be excused by the insured because he claimed that he did not believe that the policy of the defendant company was involved.

The last case supporting the contention of the appellant here is the most recent one, Keith v. Lutzweit, et al., 106 Oh Ap 123. This case was decided October 9, 1957. The writer of this opinion participated in the judgment.

The facts in this case do not parallel the facts in the instant case to any marked degree. However, the provision in the casualty insurance policy involved provided for “immediate notice of an accident.” The notice was not given until two months after the accident. Upon the facts developed, we held that there was an issue for the jury whether or not the insured had complied with the obligation enjoined upon him by the notice clause of his policy.

it may be noted that the policies in all of the Ohio cases which we have been reviewing employed the word “accident” instead of “injury” in the notice provision of their policies.

Outside of Ohio the great weight of authority is in accord with the adjudications heretofore considered. Annotation to Clements v. Preferred Accident Insurance Company of New York, 76 A. L. R. 23, at pages 53 and 61, wherein it is said at page 53:

“Briefly stated, the doctrine in question [trivial occurrence] is to the effect — to quote from the 3d syllabus by the court in the case of Chapin v. Ocean Acci. & G. Corp. (1914), 96 Neb. 213, 52 L. R. A. (N. S.) 227, 147 N. W. 465 (automobile liability) — that ‘in a case where no . . . injury is apparent at the time of the accidental occurrence, and there is no reasonable ground for believing that a claim for damages . . . may arise therefrom, he (the assured) is not required to give the assurer notice until the subsequent facts as to injury would suggest to a person of ordinary and reasonable prudence that a liability to the injured person might arise. In such a case the duty of the assured (to give “immediate” notice of accident) is performerd if he gives notice within a reasonable time after the injury presents an aspect suggestive of a possible claim for damages.’)” (Material in brackets ours.)

Several pages in this annotation, beginning at page 53, relate to the rule of reasonable construction of the notice clause and what facts and circumstances present a question for the jury as to the observance of required timely notice of an accident or injury resulting from a collision which thereafter results in an action for damages for personal injuries against the insured. To like effect, 45 Corpus Juris Secundum, 1280, Paragraph 1056, Insurance:

“* * * ordinarily delay will be excused where the nature of the accident or the triviality of the injury is such as to indicate no reasonable possibility of ensuing liability on the insured’s part.”

And at page 1281:

“Generally, delay is excusable in the case of an accident which is trivial and results in no apparent harm, or which furnishes no ground for insured, acting as a reasonable and prudent man, to believe at the time that a claim for damages will arise or that the injury is one insured against.”

Supporting this last paragraph are citations of cases from nine states including Nye v. Louis Ostrov Shoe Company, supra.

Blashfield, Cyclopedia of Automobile Law and Practice, Volume 6, Part 2, Paragraph 4117.75, states that:

“In general, whether or not the requirements of the policy concerning the giving of notice have been complied with is for the jury. * * *
“If there has been delay in giving notice, whether the delay is explained or excused is also ordinarily a question for the trier of the facts."

A case from another jurisdiction is of special interest because the facts are nearly parallel to those appearing here. The policy required immediate written notice to insurer upon occurrence of an “accident.” Held, that although the insured failed for a year and a half and until claim for injuries was asserted, to give his insurer notice of automobile collision, the question of compliance with the notice clause was for the jury. The test of the obligation devolving upon the insured was whether or not he acted as a reasonably prudent person in failing to give earlier notice. Ohio Casualty Ins. Co. v. Rosaia, et al. (Washington), Circuit Court of Appeals, 9th Circuit, 74 Fed. (2d) 522.

The one case which fully supports the directed verdict is Blanc v. Farm Bureau Mutual Automobile Insurance Co. et al., 102 Oh Ap 150, decided October 13, 1955. The facts in this case parallel in particulars those found here, and the defendant insurance company and the policy involved are the. same. We have high regard for the Cuyahoga County Court of Appeals and the writer of the Blanc opinion, but believe that the holding is in conflict with the other Ohio cases we have heretofore cited, and that the interpretation which is placed upon the holding in the Roehm case is not supported. The Blanc opinion, as did the trial judge in the instant case, stresses the obligation of the insured to give notice of an “accident” as distinguished from notice of. an “injury ” The Blanc opinion does not state the facts upon which the insured predicated his contention that the injury to the plaintiff, if any, appeared to be trivial. As we have heretofore pointed out, the cases do not make differentiation between the obligation of an insured under the notice clause of an indemnity policy which requires notice of an accident or notice of an injury.

We have examined cases cited by appellant, Luntz v. Stern, 134 Oh St 225, The Travelers Indemnity Co. v. Cochrane, 155 Oh St 305, Gergely v. Pioneer Mutual Casualty Co., 48 Abs 387, all of which treated evidence from which one conclusion only could be drawn, in which event it was held there was no issue for the jury. Also, U. S. Casualty Co. v. Breese, 21 Oh Ap 521, where a demurrer was held to have been improperly sustained to an answer which pleaded failure of an insured to give notice to its insurer, as provided in the policy of insurance. Nor do we question those cases wherein it is held that compliance with the terms of the policy, as here pleaded, requires the insured to prove compliance. Malloy, et al, v. Head, et al, 4 Atl. (2d) 875 123 A. L. R., 941, State Farm Mutual Automobile Insurance Company v. Cassinelli, 18 A. L. R. (2d) 431, 480. Sears, Roebuck and Co. v. Hartford Accident & Indemnity Company, 313 Pac. (2d) 347, where notice of the accident was not given to the insurer until a few days before trial.

Much reliance is placed by the insurance company here on the failure of Matthews to notify it until eighteen months after the accident in view of his information and his expressed purpose to make an accident report to the company on the day following the night when he had talked to Reed, which delay may be attributed to the fact that he forgot to make up the report. Different inferences may be indulged from the same facts, either that Matthews recognized an obligation to immediately report the accident whatever the circumstances, or that what he learned from Reed did or did not put him on notice, as a prudent man, that the plaintiff had been injured and that by reason thereof his company might be called on to respond in damages. If the inference is drawn that he knew of the injury upon the above test, the insurance company would be absolved from any liability on its policy. But, if under the evidence, as the jury may have resolved it, Matthews believed, and had good reason to believe, that the plaintiff was not injured at all, br only suffered a trivial injury, and that his company would not be called upon to respond in damages to the plaintiff, the jury could have found that the notice, although given eighteen months after the accident, was made “as soon as practicable.”

In other words, the issue for the jury was, when did the obligation of the insured to give notice of the accident arise? If on the night Matthews received the information from Reed, then, clearly, Matthews did not observe the obligation enjoined upon it by the insurance contract, and the' unusual delay was an aggravation which made the failure of Matthews all the more flagrant.

We are not unmindful of the strong case made on behalf of the defendant insurance company by the evidence in behalf of Matthews, which may be further strengthened by the testimony which the insurance company may adduce and which has been suggested in the briefs.

It is our conclusion that giving to the evidence on behalf of plaintiff the favorable interpretation which is required, it made a case for the jury as to the observance by Matthews of the provisions of the insurance policy as to the time when notice was required to be given and as to the information therein contained when it was given.

The defendant Matthews Delivery Service in its brief not only urges the errors assigned by plaintiff but also that the trial judge “erred by refusing to allow the jury to determine the question of reasonableness of time of notice and by directing a verdict which is res judicata as to Matthews Delivery Service without giving Matthews Delivery Service a chance to put on its case.”

The supplemental petition named Matthews Delivery Service as a defendant. It filed no answer or other pleading. It was not named in the judgment entry, At the conclusion of plaintiff’s case, it expressed no desire to offer testimony in its behalf. The only exception interposed on behalf of Matthews was to the court sustaining the motion (to direct a verdict) in view of the fact that the determination is binding upon Matthews Delivery Service. Wright v. Shick, 134 Oh St 193, 16 N. E. (2d), holds that the assured, “becoming a party to such an action, is privileged to participate in the proceedings for the protection of his interests.” No error sought to be raised by Matthews is exemplified by the record.

We recognize that our judgment will be in conflict with the judgment of the Cuyahoga County Court of Appeals in Blanc v. Farm Bureau Mutual Automobile Insurance Co., et al, 102 Oh Ap 150; and we will, if counsel desire, certify it to the Supreme Court for review.

The first and second assignments of error of plaintiff-appellant are sustained. The judgment will be reversed and new trial granted to plaintiff with instruction to the trial court to overrule the motion of defendant-appellee, Nationwide Insurance Company, for a directed verdict in its behalf; and cause will be remanded for further proceedings according to law.

PETREE, PJ, BRYANT, J, concur.


author: By FRANCE, J.

text:
    STATE, v. WHEELER, Defendant.
    Ravenna Municipal Court.
    No. 19736.
    Decided October 27, 1958.

      6. J. Schneider, for the State.
    G. M. Showalter, for the defendant.
   OPINION

By FRANCE, J.

This matter was heard on defendant’s motion to quash the affidavit, which has been treated as a motion to dismiss under Rule X of the Court, the motion to quash being unknown to police or mayor’s court procedure by which, in the absence of specific rule, this court is bound. Secs. 1901.21 (A); 1901.14 (B) R. C.

The defendant’s contention is two fold:

1— That at the time of arrest he was not adequately apprised of the nature of the charge against him.

2— That by the recitations on the.“arrest record” or citation given him on the road by the officer, he was deliberately misinformed that he was to appear for trial, and that it was not intended by the officer that trial should be had on the occasion of defendant’s appearance. Defendant claims that such mis-representation, causing him to prepare for trial in good faith when trial was unavailable, constitutes abuse of process.

Since both contentions relate to the “arrest record” copy given the defendant at the scene of the alleged offense, a brief description of the document is in order for the purpose of testing its claimed inadequacy. It consists of a single sheet of paper 4x6-% inches, labelled “Ohio state Patrol ARREST RECORD” at the top, and is apparently the final, much smudged, carbon copy of a multiple carboned form. It contains spaces in which the following information was to be and was — so far as the smudged carbon can be read — filled in: Name and address of defendant, his sex, age, occupation and driver’s license number and its state of origin; the make, type, registration number and state of origin of his vehicle; the date and hour of arrest, the date and hour of trial, the officer’s name, unit, post and district. Other information called for by the form and filled in by number only are: route, township, co (county?) arrest number, cause code (?). The name and address of magistrate and type of court are also called for and filled.in. Blanks not filled in on the form used are Case number, page number, docket number, accident number, jury and grand jury. A single space 3 x 7/16 inches is left for “Violation revised code number,” which is filled in “unsafe operation, §4511.20 R. C.,” and another, 1 x 7/16 inches, is denominated “speed

m. p. h.” and filled in “60/50,” which is the sum total of all information relating to the nature of the offense. An additional blank 5 x % inches has pre-printed on it, in red ink, the following legend:

“YOU ARE HEREBY DIRECTED TO APPEAR AT THE TIME AND PLACE DESIGNATED BELOW TO STAND TRIAL FOR THE OFFENSE INDICATED. A FAILURE TO OBEY THIS SUMMONS WILL RESULT IN A WARRANT BEING ISSUED FOR YOUR ARREST.”

It is at once apparent that , the document in question is not, technically, a summons, although attempted to be denominated as such, because it does not fulfill the requirements of §2935.08 R. C., in being issued by a magistrate or clerk of court. Nor does it appear from the circumstances that the defendant has been “arrested” in the sense of §§2935.03 — 2935.07 R. C., since he was not detained until warrant could be obtained, nor was he taken before a court or magistrate. It is equally apparent that the paper is merely a carbon copy (with a slight modification where the red printing occurs) of report made to head-quarters of the Ohio State Patrol for the use of its machine records, and that the stopping involved was for the issuance of a “citation” rather than an arrest, a practical necessity unrecognized by the antediluvian code of criminal procedure under which this state operates.

Since the procedure used by the officer is, in a sense, extra-legal and no formal summons was even issued in the case, it is argued that there is no necessity that the “citation” form comply with §2935.08 R. C., by setting forth “substantially the nature of the. offense.” The court cannot agree with this contention. As a matter of practice the “citation” has been used for many years as a means of obtaining voluntary appearance of the defendant in traffic matters, and has been complied with by the overwhelming majority of those accused of traffic violations just as a formal summons would be. Therefore, in practical, if not legal, effect the “citation” is a summons. The alleged violator appearing at a delayed date in court to explain an occurrence in the past is entitled to his accuser’s version of the occurrence equally in the case of the legal and the extra-legal, or practical, summons. It follows that the citation should set forth “substantially the nature of the offense” as required by §2935.08 R. C.

The affidavit filed in court is in the form of the Uniform Ticket used in Michigan, New Jersey and Illinois and in many municipalities in Ohio; much of the same data as to person and vehicle appear as in the green “arrest record.” There similarity stops. On the affidavit the following blocks are checked: “Excessive speed, over limit; prima facie unreasonable, 60 M. P. H. in 50 M. P. H. zone night,” and “improper passing (left of center) at intersection or R. R. crossing” and below it is written “Did operate in reckless manner so as to endager life or limb of those in lawful use of highway” in violation of §4511.20 R. C. On the “arrest record” appears: “Violation unsafe operation, §4511.20 R. C.,” and in another space “speed 60/50 m. p. h.” Is the latter description substantially the same as the former?

In the absense of further description the court feels that “unsafe operation” is entirely too loose a term because it comprehends many different types of driver activity, with or without the peril to others inherent in what is commonly called reckless operation. Nor is the cryptic notation “60/50 m. p. h.” such as to inform a defendant in a reasonable and proper speed state that he is charged with driving unreasonably fast. State v. McCloud (Mo.), 313 S. W. (2d) 177 — Columbus v. Rodgers, 93 Oh Ap 328. The clarity of the citation issued in this case is easily distinguishable from that approved by the Supreme Court of Oregon in Yunker v. McQuillan Ore. 275 P. (2d) 240, where symbols on the face of the citation were explained in detail on its reverse side. Here there is no explanation, no clarification — merely the copy of a series of coded numbers understandable to members of the enforcement agency involved and without real meaning to anyone else. The first ground of motion is well made.

As to the second ground of motion, it is doubtful that a traffic officer giving a “citation” to an alleged traffic offender is under obligation to inform him, either in writing or otherwise, that if he contests the charge he is likely to have to come back to court on another day than the one originally appointed. Such would be gracious conduct, but graciousness is not required of officers. If the summons, citation or arrest record (whichever we choose to call it) merely stated “you must appear- at the stated hour” without more, leaving it to the defendant to ascertain, at his peril, the practice of the court in which he was to appear, as does the typical court summons, it would be unexceptional and unassailable on the ground of misinformation.

But this “arrest record” goes farther. It tells the accused to “APPEAR AND STAND TRIAL” at 7 P. M. on a specific evening when the officer writing it knows, from past experience, that at least 40 other defendants will appear at that hour, that taking of testimony in contested cases at such time is impractical, and that he, as accuser, is not likely even to be present in the court room when the case is called. The whole quoted statement is a lie; it was known to be a lie at the time it is issued, and it would be equally a lie if applied to appearance in most courts of record in Ohio. But while the officer knows it is a lie, the defendant does not know it, and in good faith prepares for trial at a time when, as a practical matter, trial cannot be had. This quoted statement, to be fair to the Ohio State Patrol, was not always a lie; twenty years ago when the patrolman, on catching a violator, took him to the nearest J. P., woke the squire up at night or called him out of the fields by day, the violator could get trial, such as it was, on the spot. It is no longer true, as a general rule, in courts of record; it is now true only occasionally in the courts of the professionally minded county judges, and in the mayor’s courts of busy communities. Yet the misleading printed statement persists and becomes more and more a misleading and fraudulent lie with every passing day. The second ground of motion is also well taken.

It would seem, in common fairness, that the resources of the great state of Ohio were equal to the need of informing an alleged traffic violator of the nature of the state’s claim and the nature of his scheduled court appearance. The blurred copy of the arrest report designed for agency record keeping obviously does not do so. Many cities and many courts, including this one, have managed to. The use of the copy of the uniform ticket affidavit is available to the Ohio State Patrol equally with other traffic officers in this jurisdiction. Its use has been refused by higher headquarters with the expression: “We will not force our officers to carry the form.” which, freely translated from the oflficialeese of the expression, means “We forbid them to do so.” This is permissible only if the agency can find an equivalent method of apprising defendants of the offense and the appearance as required by Rule III. This it has not done.

Motion to dismiss is sustained and the affidavit dismissed without prejudice to refiling, when the state can demonstrate compliance with criminal rule III, of the court.


author: By MILLER, J.

text:
    DECOLA, Plaintiff-Appellee, v. HEMMING, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5857.
    Decided October 7, 1958.
    Mitchel D. Cohen, Columbus, for plaintiff-appellee.
    Robert P. Barnhart, Columbus, for defendant-appellant.
   OPINION

By MILLER, J.

This is a law appeal from a judgment of the Common Pleas Court finding in favor of the plaintiff for the amount due upon an account stated. The errors assigned all relate to the sufficiency of the evidence to sustain the material allegations of the petition.

The record reveals that the plaintiff-appellee, Joseph J. DeCola, performed certain accounting services for the business of the defendant-appellant’s decedent, Wilda K. Hemming; that monthly statements were rendered for these services to which she never made any objections; that on the __ day of August, 1949, she entered into an agreement with one Sam J. Miller and Arthur G. Martin to operate her business, and in which contract she entered a list of her creditors which included that of the plaintiff for the amount sought in this action. This operating agreement is in evidence and marked plaintiff’s Exhibit “A.” It is urged that the plaintiff is not a party to this agreement and may not receive any benefits from the same. However, it appears that a request was made of the plaintiff by defendant’s decedent for a statement of the balance due on the account, which was incorporated7 in the contract, and the plaintiff was mailed a copy of the agreement for his. examination as to its correctness, all of which was done with decedent’s knowledge and consent.

The agreement bears the endorsement that a copy was sent to the plaintiff. Defendant’s counsel urges that this was not done by the decedent or her attorney or agent; hence, she may not be bound to the plaintiff by its terms. However, we are' of the opinion that the trial court was warranted in concluding that she made the person who forwarded plaintiff’s Exhibit “A” to the decedent, her agent for conveying to the plaintiff an admission of the correctness of the account.

It is said in 1 O. Jur. 2d, in Section 37, page 194, that

“A specific agreement to pay an amount admitted to be correct is not necessary, since this is inferred from an admission of its correctness.”

See also Miami Consolidated Tire Company v. Heier, etc., 52 Oh Ap 312.

It is our conclusion that the evidence supports the judgment of the trial court and the same will be affirmed.

PETREE, PJ, BRYANT, J, concur.


text:
    RAPOPORT, Plaintiff-Appellant, v. HUME et, Defendants-Appellees.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3917.
    Decided October 16, 1957.
    Marvin Traxler, Youngstown, for plaintiff-appellant.
    Harrington, Huxley & Smith, Youngstown, for defendants-appellees.
   OPINION

By PHILLIPS, J.

On May 16. 1957, defendants owned and occupied a home in Youngstown, Ohio, to which they invited their nephew, a handicapped life long victim of cerebral palsy, aged forty years, to' spend the night as their guest,

Defendant, Abraham Hume, assigned and accompanied his nephew to his room on the lowest level of his three level home, on which floor a bathroom was situated. The asphalt tile floor of this bathroom had been waxed and buffed with an electric buffing machine the day before. Such floor concededly was “more, slippier than when it isn’t waxed and polished” (sic).

A small cotton throw rug was placed on the bathroom which allegedly slipped as plaintiff later stepped upon it, injuring him for which injuries a jury in the court of common pleas returned a verdict in his favor for $15,000.00.

Upon defendants’ motion the trial judge entered judgment for defendants notwithstanding the verdict of the jury returned for plaintiff.

Plaintiff appealed from that judgment to this court on questions of law presenting the question whether the trial judge erred to plaintiff’s prejudice in entering such judgment for defendants.

Plaintiff cites the case of Scheibel v. Lipton, 156 Oh St 308, to secure a reversal of the judgment of the court of common pleas.

In the case of Scheibel v. Lipton, supra, the- jury returned a verdict for the plaintiff. The trial judge entered judgment upon the verdict. Defendant appealed to this court on the ground that the trial judge erred to his prejudice in overruling his motion for judgment to be entered in his favor notwithstanding the verdict of the jury entered against him. This court affirmed the judgment of the trial court. The supreme court reversed this court by a five to two decision saying in the third paragraph of the syllabus:—

“A host who invites a social guest to his premises owes the guest the duty (1) to exercise ordinary care not to cause injury to his guest by any act of the host or by any activities carried on by the host while the guest is on the premises, and (2) to warn the guest of any condition of the premises which is known to the host and which one of ordinary prudence and foresight in the position of the host should reasonably consider dangerous, if the host has reason to believe that the guest does not know and will not discover such dangerous condition.”

Plaintiff in this case relies heavily upon the foregoing paragraph of the syllabus in the Scheibel v. Lipton case.

In the case of Ayers v. Woodard, 166 Oh St 138, the second paragraph of the syllabus reads:—

“In order to sustain either a motion for judgment notwithstanding the verdict or a motion for a directed verdict, the evidence received upon the trial and the facts established by admissions in the pleadings and in the record must be construed most strongly in favor of the party against whom the motion is made, and, where there is substantial evidence to support his side of the case, upon which reasonable minds may reach different conclusions, the motion must be denied. Neither the weight of the evidence nor the credibility of the witnesses is for the court’s determination in disposing of either of such motions. (Paragraph two of the syllabus of McNees v. Cincinnati Street Ry. Co., 152 Oh St 269, and paragraph one of the syllabus of Durham v. Warner Elevator Mfg. Co., 166 Oh St 31, approved and followed.)”

In the case of Rushton v. Winters, 200 Atlantic 60, 331 Pa. 78, likewise cited by plaintiff, the Supreme Court of Pennsylvania said:—

“Where defendant knew that porch railing, was unsecure but failed to repair it, and visitor at defendant’s home fell from porch to concrete driveway nine feet below and was injured when railing gave way, defendant was liable for breach of duty to warn visitor of the unsafe condition of railing.”

In the case of Mitchell v. Legarsky, 60 Atlantic (2nd) 136, on which plaintiff likewise relies, the supreme court of New Hampshire said:—

“We are of the opinion that, under the evidence in this case, the plaintiff was a gratuitous licensee, or bare licensee, toward whom the defendants owed only a limited duty of care. ‘As stated in section 342, a possessor • owes to a bare licensee only a duty to exercise reasonable care to disclose to him dangerous defects which are known to him and likely to be undiscovered by the licensee.’ ”

It appears to us that the admonition to the host announced in the case of Scheibel v. Lipton, supra, applicable to the case we review, is:—

“* * * to warn the guest of any condition of the premises which is known to the host and which one of ordinary prudence and foresight in the position of the host should reasonably consider dangerous, if the host has reason to believe that the guest does not know and will not discover such dangerous condition.”

The announced duty of the host to warn the guest is based upon a dangerous condition of the premises known to the host which a guest of ordinary prudence and' foresight should reasonably consider dangerous, which condition the host has reason to believe the guest does not know and will not discover.

The question presented to us is whether defendant created a dangerous condition by placing a throw rug on a highly and recently polished and waxed tile floor.

The settled law seems to be as announced in the case of Bonawitt v. Sisters of Charity of St. Vincent’s Hospital, 43 Oh Ap 347, syllabus one:—

“Visitor slipping on waxed and polished hospital floor could not recover as matter of law, there being no evidence of negligence in method or materials used in waxing or polishing.”

Also see Boles v. Montgomery Ward & Co., 153 Oh St 381.

We discover no evidence of defendants’ negligence in the choice of waxing material nor in the method of its application.

This conclusion forthwith presents the question whether the placing of a throw rug on such floor created an unusual risk for plaintiff.

In the case of Jacobs v. Deshler-Wallick Hotel Co., 67 N. E. (2nd) 922, motion to certify which to the supreme court was overruled, the Court of Appeals of Franklin County held:—

“It is common knowledge that household rugs, in great numbers, possibly a majority of all rugs that are laid upon floors in homes, are placed on hardwood or other slippery wood surface, and the court may take judicial notice of such general and accepted practice.
“Hotel proprietor, following the general and accepted practice of placing rugs on slippery floor, was not chargeable with negligence.
“In action by invitee against hotel proprietor for injuries sustained when invitee caught her foot in edge of heavy rug and fell, evidence in support of invitee's claim that rug was so dimly lighted that she was prevented from appreciating its presence and particularly the edge thereof, and that proprietor failed to exercise ordinary care in placing rug on slippery floor was insufficient for jury.”

It is observed that in the case Scheibel v. Lipton, supra, the supreme court catalogued plaintiff as a “social guest” and held that the dui-y to such a guest was less than that owed to a business visitor or invitee, in which event in our opinion defendants in the case under review owed their guest a lesser duty than in the case of Jacobs v. Deshler-Wallick Hotel Co., supra.

In the case of Cutro v. Scranton Medical Arts Bldg., 198 Atlantic 141, the supreme court of Pennsylvania had before it a case where the plaintiff fell upon a small throw rug in the doctor’s office. She claimed that the defendants were negligent in placing the throw rug on the highly polished hardwood floors. The court, in holding as a matter of law that there was no negligence on the part of the defendants, said:—

“* * * it is not negligence for the owner or occupier of a building to maintain polished or oiled floors. Evidence of a highly polished floor alone does not sustain the charge of negligence if a guest or invitee tails and is injured thereby. * * *.
“* * * Moreover, the presence of throw rugs upon a polished floor is not negligence. The practice of placing throw rugs upon polished floors is a general one, and only reasonable care is required of the person stepping upon such rugs to avoid falls. Here the circumstances were such that the wife plaintiff had ample opportunity to observe the conditions, and it is not the fault of the defendant that she did not do so.”

See also Nelson v. Smeltzer, 265 N. W. 924, and Chilberg v. Standard Furniture Company, 115 Pacific 837.

In Brown v. Davenport Holding Co., 279 N. W. 161 (Nebraska), the court said inter alia:—

“Though a polished floor is slippery and light rugs are apt to slide, since such rugs are in common use their use is not negligence unless there is something unusual about them. There was nothing unusual about the floor or the rug in this case, and the verdict was properly directed.”

In Kitchen v. Women’s City Club of Boston, 166 N. E. 554, the court said:—

“That the defendant owed a duty to its paying guests to use reasonable care that the premises as a whole, and the rooms assigned to the use of the guests in particular, should be reasonably fit and safe for such use is obvious. And it is plain that it is its duty to take fair and reasonable precautions that the guest is informed and warned against all dangers incident to the enjoyment of club privileges, which are not obvious to the senses of an ordinarily intelligent person.
“As a corollary, it follows that no duty is owed to a guest, where the conditions are open and obvious to an ordinarily intelligent person, to make changes in such conditions or call attention to dangers which are apparent to the senses of such a person. If the law is applied to the facts of this case, the verdicts were directed rightly. The plaintiff knew all the conditions of which she complains; she knew that light rugs when stepped on may be expected to slip on slippery floors, but she did not anticipate that the rug in the room in question would slip on the floor of that room. * * *.
“We are of opinion the plaintiffs have no right of action for the causes alleged in their pleadings or for any cause which the testimony would support. * * *.’■

All 01 the quoted cases involved invitees, in which cases the degree of care owed by the host was higher than in the case being reviewed where the plaintiff was a “social guest.”

As affects social guests we find courts of other jurisdictions have Held'—

“The owner of a house is not liable to a guest for injuries sustained when the guest slipped on an unfastened oriental rug on a polished nardwood floor; * * Greenfield v. Miller, 180 N. W. 834.

Also see Lewis v. Dear, 198 Atlantic 887, (New Jersey).

In the case of Wolfson v. Chelist, 284 S. W. (2nd) 447, the court said:—

“* * * but, the court, in delineating the duty on the part of the 'host’ to the ‘social guest,’ states a rule quite like that stated in some jurisdictions in defining the duty of occupant or possessor of land to a licensee.”

In the case of Wolfson v. Chelist the court reversed a judgment for the plaintiff and entered final judgment for the defendant.

In the case of Scheibel v. Lipton, supra, at page 331, our supreme court said:—

. “* * * It can hardly be said that the ‘saucer shaped’ depression was a trap or a condition involving unreasonable risk. It had been in the lawn for several months. The hosts and their children had lived with it. There was no evidence that anyone had ever been injured by it. It was not in our judgment, such a condition as to require a warning by the hosts or the burning of flood lights to disclose it.”

In reaching our conclusion consideration must be given to the fact that plaintiff was a life long victim of cerebral palsy, whose ability to walk, has not been impaired.

In the case of Page v. Murphy, 261 N. W. 443 (Minnesota), the court was faced with a problem of an eighty year, old woman who fell on the wet tile floor leading to defendant’s bathroom, upon which beans used for children’s play were scattered, of which she obtained knowledge, when she was helped to the bathroom and the light switched on for her, but on which she fell when returning therefrom. In that case the court held the defendant not liable to the executors of the estate of such eighty year old woman who died as the result of such fall.

Even though defendant allowed such alleged dangerous condition to exist, we find that he had no reason to believe that such condition, which was perfectly obvious to plaintiff, was not known to or that plaintiff would not discover it.

Having reviewed the evidence and the law carefully as we have endeavored to do we conclude that upon authority of the cases cited and others the judgment of the court of common pleas must be and is affirmed hereby.

NICHOLS, PJ. GRIFFITH, J, concur.


author: By WATTERS, J.

text:
    BEDFORD SPORTSPARK, INC., Plaintiff, v. LESLIE, Defendant.
    Common Pleas Court, Summit County.
    No. 213946.
    Decided February 3, 1959.
    Marshman, Hollington & Steadman, William Snyder, of Counsel, for plaintiff.
    Herman E. Werner, for defendant.
   OPINION

By WATTERS, J.

On August 11, 1958, the Council of the Village of Northfield, Summit County, Ohio, adopted ordinance 1,958-14 entitled, “An Ordinance Providing for an Admissions Tax,” as follows: (See Exhibit “A” attached to the Answer.) Section I A:

“There is hereby levied and imposed upon every person who pays an admission charge for the right or privilege to enter a theatre; auditorium; dance hall; roller or skating rink; athletic field; swimming pool; outdoor amusement park; automobile or motorcycle race or contest; horse race meeting; meeting at which horse racing is conducted for any stake, purse or award; horse show; circus; side show attraction; or any other public exhibition or performance for profit, within the Municipality of Northfield, a tax of three per centum (3%) on the amount of money paid for the ticket or right of admission thereto.”

Section I B:

“Such tax shall apply to every admission charge for any such place or event sponsored within the Municipality of Northfield notwithstanding that the sale of the ticket or right of admission was made outside the corporate limits of the Municipality.”.....

Section III A:

“The tax hereby levied and imposed shall be paid by and collected from the person seeking admission to the place or event sponsored at the' time the admission charge thereto is paid to the person receiving payment thereof.”.....

Plaintiff, Bedford Sportspark, Inc., is an Ohio corporation, for profit engaged in the business of operating horse racing meetings upon its premises located in the Village of Northfield. It operates under permit from the Ohio State Racing Commission, and conducts horse racing meetings, on specified dates, wherein the pari-mutuel system of wagering is permitted under the Ohio Racing Act.

The plaintiff corporation refuses to comply with the provisions of said ordinance and brings this action to enjoin the assessment or collection of said admission tax in the grounds that it violates the provisions of §3769.08 R. C. of the State of Ohio.

The defendant, Robert C. Leslie, Clerk-Treasurer of and on behalf of such Village, maintains that said ordinance is in all respects legal and proper generally, insofar as the plaintiff corporation and all other permit holders are concerned, in that said ordinance does not assess any license, excise tax or fee against the pari-mutuel take of a permittee conducting horse race meetings; that the admission tax is levied against the one paying the admission price, and not against the licensee.

The original, final Horse Racing Act was passed June 22, 1933, as Amended Senate Bill 372,115, Laws of Ohio, page 367. It became §§1079-1 to 1079-14, both inclusive, GC. See §1079-8 GC. It became effective •June 28, 1933.

Effective in 1953 the R. C. became §§3769.01 to 3769.14, and §1079-8 GC as §3769.08 R. C., was amended to increase the take from the wagering to the State Commission.

In 1953, effective 7-21-53, §3769.081 R. C., was added which gave the right to the various municipalities wherein race meets are held to collect through the Racing Commission, from the permit holder, a certain percent of the wagering take, not to exceed $10,000.00 for any given year.

Later, effective in June, 1957, §3769.08 R. C., was further amended to its present form, and §3769.082 R. C., was passed to provide the “Ohio Fair Purse Fund,” which has no bearing in the instant controversy. It was an aid to horse racing at the county fairs, and as a needed financial lift to them.

The original statute §1079-8 GC, and its successor statute §3769.08 R. C., all provided, and now provides, that:

“No other license or excise tax or fee, except as provided in §§3769.01 to 3769.14, inclusive R. C., shall be assessed or collected from such licensee by any county, township, district, municipal corporation, or other body having power to assess or collect a fax or fee.”

It will be noted that the entire horse Racing Act is in contravention of the constitutional provision against conducting lotteries in the State of Ohio, which has brought the so-called bingo operation to grief. It is also in contravention of all the various anti gambling provisions of our state law and local ordinances. The Act permits pari-mutuel wagering or gambling at the track, but the so-called “bookie” operators are still illegal.

It is, therefore, necessary to hold that the whole Horse Racing Statute should be strictly construed. It gives the permit holders and patrons certain rights and immunities to do what otherwise would be an illegal gambling operation, and sets out certain contributions or splits the permit holder must make or share with the State, local governments and the county fair organizations, and then provides that nothing else shall be taken from the take of the permit holder or licensee, by any county, municipality, etc.

Does this mean that such bodies cannot levy an admission tax such as the one before us against the one paying the admission, or from the permit holder outside of the pari-mutuel take?

Has the State preempted generally the field of such an admission tax as we have here?

The State of Ohio had an admission tax law passed in 115 Ohio Laws 657 at the same session of the Legislature that passed the Horse Racing Act in 1933, the latter being 115 Ohio Laws 171 and Amended finally in 115 Ohio Laws 367 (1933).

That admission tax act became §5544-2 GC, and, as pertinent, reads as follows:

“A tax of 1% for each 10 cents or fraction thereof paid for admission to any place — to be paid by the person paying for such admission.”

Under it, the assessment was against the person paying to be collected by the person collecting or receiving the admission price.

In 1936, effective December 30th, said section was amended (§5544-2 GC) to 3% upon the amount received. This made the tax payable by the person receiving the admission.

It became under the amendment an admission tax — a gross receipts tax, payable by the person receiving the admission price.

See 149 Oh St 1, Leader v. Glander; 48 Abs 148, Shallat v. Glander.

The Legislature repealed this admission tax law in 1947 (122 Ohio Laws 459). So the State is no longer'in the admission tax field.

Accordingly, generally, a municipality has the power to levy excise taxes for revenue where the State has not preempted the field.

See 147 Oh St 58, Haefner v. City of Youngstown, Syllabus (3).

So generally then the Village of Northfield had and has the full power to levy the admission excise tax in question here. There is no question on that.

Now we come to the question of whether §3769.08 R. C., prohibits the Village from levying an admission tax under its said ordinance against those who pay an admission to plaintiff race track.

As stated herein before, the Act must be strictly construed. All the contributions the permittee (plaintiff) has to make, plaintiff claims, under the said statute, is a percentage of the take passing through the betting machines subject to a $10,000.00 yearly limitation to the local jurisdiction (under §3769.081 R. C.).

There is nothing in §3769.08 R. C., which pertains to or mentions or provides for or taxes or takes from from any admission charge that the licensee or permitte may charge. Whether the permittee charges an admission is wholly up to it. Obviously, many pay an admission and follow the races for the love and thrill of the “sport of kings” without wagering anything, and to enjoy the thrills thereof and. the relaxation and excitement, food and refreshments, and other incidentals.

Such persons do not contribute to or participate in, add to or detract from the pari-mutuel take.

The admission charge is exclusively under the control of the permittee. It is common knowledge that many are admitted on pass, free of charge. The main thing is the pari-mutuel wagering take which is not small. This is subject to some loss by the presence of a few unlawful bookies, who may operate their calling in spite of the watchful eye of the special law enforcement agents.

The State of Ohio is not concerned under the statute §3769.08 R. C., etc., with whether the admittee pays for his admission or not.

The State is interested only in the pari-mutuel take for itself and the other beneficiaries set forth in said statutes. The State has no admissions tax; the field is open.

The Statute is to be strictly construed. It says nothing about the admission price, and takes no part of it. It does not say that a subdivision of the State cannot levy an admission tax against the permittee.

The Statute §3769.08 R. C., says, “No other license or excise tax or fee except as provided in §§3769.01 to 3769.14, inclusive, R. C.,..... shall be assessed or collected from such licensee, by any county..... etc.” All of which refers back to the pari-mutuel take, out of which the State and other subdivisions, and the County Fair Board, share.

The evidence does not show whether the State, while its admission tax was in force, levied or collected such tax from the horse racing licensees (from 1933 to 1947). However, it is the court’s opinion the State could have then done so; otherwise, the admissions tax would not have been a law of general application to all classes.

And, in the court’s opinion, going further, the State having abandoned the admission tax, any subdivision under a general admission tax ordinance could reach the permittee of a rack track within its jurisdiction.

In any event, in the case at bar, the Village of Northfield is not taxing the 3% against the licensee, plaintiff corporation, but the tax is upon the admittee, the person who pays the admission.

It was argued by plaintiff’s counsel in the brief that as a matter of fact, from a practical standpoint, the operator would have to absorb this tax itself, and would then, in effect, be paying it. This, of course, would be a matter of policy of the operator and could not affect the problem before the court.

Counsel discusses §3769.081 R. C., which, in substance, as pertinent here, provides:

“The tax commissioner shall collect from each permit holder..... one-tenth of one percent.....(of the amount wagered).....for the purpose of providing operating revenue for the political subdivisions wherein such meetings are held.....”

This is limited as set forth above to $10,000.00 a year.

Counsel for plaintiff argues that this section, passed in 1953, shows the legislative intent, that the local authorities should not derive any tax income from racing activities, and its desire to help such localities to meet the operating expenses during race meets.

It will be noted, however, that this statute (§3769.081 R. C.), was passed in 1953, twenty years after the original Horse Racing Law was passed, which, from the start, contained the prohibition relied on in present §3769.08 R. C., and was inserted right after the latter statute, and referred, as in all other instances, to a percentage of the amounts wagered, as did §3769.082 R. C., passed in 1957 to help out the Fair Boards.

The Legislature limited such contribution from the amount wagered to $10,000.00. If it intended to restrict such subdivisions from levying an admissions tax, it could have so stated. See 162 Oh St 200, Goodyear Aircraft v. Peck (on legislative interpretation and intent). They did not so state and never have in said act.

There is no evidence before the court as to whether or not at the time the legislature passed §3769.081 R. C., to aid said subdivisions any of them had admission tax laws and were enforcing it against the tracks.

If such was the fact, the legislators would know about it, and if they passed the above statute, without' specifically prohibiting such a tax, it would be very significant.

The court finds that the ordinance in question is legal and valid and enforcible. Accordingly, the petition of the plaintiff is dismissed at its costs. •

A journal entry will be prepared by counsel, with exceptions to plaintiff.


text:
    UNIFORM RULES AND REGULATIONS, Adoption of, In re. CARNEY, Aud., Appellant-Appellee, v. BOARD OF TAX APPEALS, DEPARTMENT OF TAXATION, Appellee-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5947.
    Decided November 12, 1958.
    John T. Corrigan, Pros. Atty., George W. Leddon, Asst. Pros. Atty., Cleveland, for appellant-appellee.
    William Saxbe, Atty. Geni., S. Noel Melvin, Asst. Atty. Geni., Columbus, for appellee-appellant.
   OPINION

By MILLER, J.

This is a law appeal by the Board of Tax Appeals from the judgment of the Common Pleas Court, holding Rules 100, 101, 104-D-24, 105 and 106 of the Board of Tax Appeals unlawful, invalid and unreasonable. These rules were promulgated by the said Board pursuant to the Administrative Procedure Act under a grant of- administrative authority provided in §§5703.02 and 5715.01 R. C.

The appellant-appellee, John J. Carney, as auditor, citizen and taxpayer of Cuyahoga County, appealed from the adoption of these Rules to the Common Pleas Court of Franklin County under the provisions of §119.11 R. C., and the appeal to this court is prosecuted under the same section. It has been conceded by all counsel that the said Rules were promulgated in accordance with the procedural requirements; hence, it would serve no useful purpose to recite the facts attendant upon their adoption. Therefore, the question presented is, whether or not the Common Pleas Court erred in holding that said Rules are unreasonable and unlawful.

It is well established in Ohio that the Legislature, while not empowered to delegate legislative powers, may properly delegate to administrative agencies quasi legislative power where it has laid down the policy to be followed and established the standards or rules by which the administrative agency is to be governed and restricted in adopting rules and determining facts to which the expressed policy is to apply.

In the case of Matz v. Curtis Cartage Company, 132 Oh St 271, the court held that “the General Assembly cannot delegate legislative power to an administrative board and any enactment which in terms does so is unconstitutional and void; but laws may be passed which confer on such a board administrative powers only.”

It is urged that the said Rules are unlawful for the reason that §§5703.02, Paragraph K, 5713.01, 5713.03 and 5715.01 R. C., as amended by Senate Bill 109, enacted by the 102nd General Assembly of the State of Ohio, are unconstitutional in that they constitute an unlawful delegation of legislative power upon an administrative board and are not in conformity with Section 2, Article XII, Ohio Constitution.

Sec. 5703.02 R. C., provides in part as follows:

“The board of tax appeals shall exercise the following powers and perform the following duties of the department of taxation; * * * (C) Exercise the authority provided by law relative to determining whether the real property, and the various classes thereof, in the counties, municipal corporations, and taxing districts have been assessed by uniform rule and according to taxable value, and relative to increasing or decreasing the aggregate value of real property in the counties, municipal corporations, and taxing districts; * * * (K) subject to provisions of §§119.01 to 119.13, inclusive, R. C., exercise the authority provided by law relative to the adoption and promulgation of uniform rules and methods for the assessment of real property according to taxable value, in accordance with the provisions of Section 2, Article XII, Ohio Constitution.

Section 2, Article XII, Ohio Constitution, provides that:

“No property taxed according to value shall be so taxed in excess of one percent of its true value in money * *

Counsel for the Board admits that §5703.02 R. C., sets no standards for its guidance in fixing the taxable value, but urges that §5715.01 R. C., does this as specific as the nature of the function permits. This section contains the following language:

“* * * The board shall adopt, prescribe, and promulgate rules for the assessment of real property by uniform rule according to value. * * * Such rules shall provide that such taxable value be determined on the basis of all facts and circumstances which the board finds necessary in order to achieve uniformity and avoid overvaluation and discrimination. * * (Emphasis added.)

It is to be noted that by the terms of this statute the legislative policy is set forth, to wit, that taxable value shall be such as will “achieve uniformity and avoid overvaluation and discrimination” and “be determined on the basis of all facts and circumstances.” Therefore, the Board is only authorized to consider facts and circumstances which are found to be necessary to carry out the expressed policy of the Legislature.

There is nothing in the record which tends to show that the Board, in adopting the Rules, did not consider the “facts and circumstances” which would be relevant. It must, therefore, be presumed that the Board took cognizance of the same and adopted them in accordance with the fixed legislative standard.

It is our opinion that nothing could be more reasonable in the field of taxation than to establish a policy of uniform assessments of real property, for the burden of disproportionate taxation is intolerable. The ianguage employed by the Legislature to express its policy of uniformity appears to be well expressed and intelligible.

Counsel for the Board urges that it is a matter of common knowledge that county auditors throughout the state have employed widely different methods of valuation and, as a result, a lack of uniformity existed in the taxing districts throughout the state. It is for this reason that the attempt is being made to place in the Board of Tax Appeals the authority to fix the tax values of assessed property in the various counties. The need for such uniform rules and methods of assessment appears to be in the interest of the public welfare.

In Weber v. Board of Health, 148 Oh St 389, the court held that rule-making bodies must be allowed a wide discretion where it is impossible to lay down standards, saying at page 396:

“* * * it is recognized that there are many occasions where the nature of the problem makes it impossible to lay down standards, and as a result rule-making bodies must be allowed a wide discretion without anything as their guide except the general policy of the law-making body and the law that such bodies must not legislate or make rules which are unreasonable, discriminatory or contrary to constitutional rights.”

Similarly in the seventh paragraph of the syllabus, in Matz v. Curtis Cartage Company, 132 Oh St 271, the court held:

“7. As a general rule a law which confers discretion on an executive officer or board without establishing any standards for guidance is a delegation of legislative power and unconstitutional; but when the discretion to be exercised relates to a police regulation for the protection of the public morals, health, safety or general welfare, and it is impossible or impracticable to provide such standards, and to do so would defeat the legislative object sought to be accomplished, legislation conferring such discretion may be valid and constitutional without such restrictions and limitations.”

Taxation is an extremely complicated subject which the Legislature may wisely leave to the Tax Board, which is especially qualified and sits in continuous session. Thus for many years, the leading writers and the highest courts of other states have advocated allowing the same latitude of action to boards of equalization that Ohio has seen fit to delegate to its local boards of health and Public Utilities Commission. Typical of these expressions is that of Cooley, one of our greatest tax jurists, who stated in his Law of Taxation (4th Ed., 1924), Volume III, Section 1196, at 2395:

“* * * Generally the most important function of state tax commissions is to preserve uniformity in assessments throughout the state, sitting annually for that purpose as the board of equalization, but a state board of tax commissioners cannot usurp the functions of the legislature. Where a statute empowers a state board to equalize valuations for taxation, BUT DOES NOT POINT OUT THE MODE, ANY REASONABLE AND EFFICIENT MODE MAY BE ADOPTED.* * *” (Emphasis added.)

While the .precise constitutional question presented here has never been squarely before our Supreme Court, the constitutionality of the statutes which were amended by Senate Bill 109 were at one time under attack on similar grounds and the Supreme Court in its fourth branch of the syllabus, in Rollman and Sons Company v. Board, 163 Oh St 363, held:

“4. Where the ‘equalization program’ authorized by statute, as administered by the Board of Tax Appeals, deals with the valuation of the real property of each county, in the aggregate, and does not relate to the valuation of any individual parcel of property, and where the Board of Tax Appeals, acting under the authority of §5613 GC (§5715.24 R. C.), providing that such board has the power to ‘increase or decrease the aggregate value of the real property * * * in any such county,’ in order to equalize real property valuations among all the counties within the state of Ohio, adopts a reasonable and efficient mode of valuation and applies it uniformly to each county, the board acts within its statutory powers and its actions are not unreasonable or unlawful.”

And, at page 370 of the cited case, supra, Judge Matthias said:

“Real estate values fluctuate and it would be literally impossible for a tax body to determine the exact valuation of each parcel within a taxing district”on assessment day. In determining a valuation for equalization purposes it is almost imperative that the tax body develop some formula to apply to the valuation of property, and, where no mode or method and no yardstick are set up in the equalization statutes, any efficient mode or method may be adopted. 3 Cooley on Taxation, 2395, Section 1196.”

The pertinent issue here appears to be a transfer of authority from county auditors to the Board of Tax Appeals. Prior to this amendment, county auditors have been determining taxable values under statutory authority without a challenge of unconstitutional delegation of legislative power. Now the Legislature has decided to transfer this duty to the Board of Tax Appeals as a matter of policy and has enjoined the Board to carry out this task by promulgating uniform rules in order to achieve uniformity and avoid overvaluation and discrimination in determining taxable value. The policy appears to be clear and definite with more standards for establishing uniformity than there were when the several auditors made the determination.

We concede that the standards are broad and that discretion is granted to the Board of Tax Appeals within the limits of uniformity, avoidance of overvaluation, and prevention of discrimination in the initial assessment of real estate. The discretion is not strictly confined but is canalized within banks that keep it from overflowing.

It should also be noted that every presumption of validity attends the acts of the Legislature and that they are not to be stricken down unless clearly shown to be unauthorized or in violation of some express constitutional provision. Such a showing does not appear to us to have been established, and it is therefore our opinion there has been no delegation of legislative powers.

Although not quoted because of their length, we have examined the said rules and come to the conclusion that they are reasonable and in accordance with the expressed legislative policy.

The judgment will be reversed and the order of the Board promulgating said Rules is ordered affirmed.'

PETREE, PJ, BRYANT, J, concur.