text:
    JOSEPH E. SEAGRAM & SONS, INC., Appellant, v. BOWERS, Tax Commr., Appellee.
    Board of Tax Appeals, Department of Taxation, State of Ohio.
    No. 32147.
    Decided May 14, 1957.
    Isadore Topper, R. Brooke Alloway, Columbus, for appellant.
    C. William O’Neill, Atty. Geni., by William E. Herron, Asst. Atty. Geni., Columbus, for appellee.
   OPINION

Appellant prosecutes this appeal from an increased tangible personal property tax assessment order made against it, a nonresident of the State of Ohio, by the Tax Commissioner on June 21, 1956, covering the tax period for the year 1954. The amount of the increased assessment amounts to $57,967.44.

The cause now comes on for further and final determination upon the Commissioner’s transcript and final order, appellant’s notice of appeal, an agreed stipulation of facts, and briefs of counsel.

Appellant, an Indiana corporation and nonresident of this state, manufactures whiskies, cordials, neutral spirits and other alcoholic beverages in various adjoining states. It has storage facilities at its various points of production. It does not manufacture spirituous liquors of any kind within Ohio. Its principal place of business and all its financial activities are located and conducted in New York City. During the year 1953 appellant leased space in government bonded warehouses located in Hamilton, Butler, Warren and Cuyahoga Counties in this state, wherein it stored excess whiskies and neutral spirits. Both bulk commodities were contained in charred oak barrels, the whiskies in new and the spirits in old whiskey barrels, all under the control and supervision of government officers. It does not appear that either of these two stored articles was ever sold or consumed in Ohio, but were eventually withdrawn from storage and returned to appellant’s plants outside the state of Ohio and there bottled and further processed.

The facts in this case are precisely the same as corresponding facts found in the case of National Distillers Corporation & Subsidiaries v. Bowers, Case No. 32144 decided by this board this day. In the entry disposing of the National Distillers case, and in the further entry of the Board of Tax Appeals in the case of Champion Spark Plug Co. v. Bowers, Case No. 32137, likewise this day journalized, this board has fully set forth its reasons and conclusion in nonresident storage cases. By reference what is said in these two companion cases is incorporated in this entry as fully as though restated herein.

That portion of the Tax Commissioner’s order which has to do with the assessment of appellant’s stored whiskey and neutral spirits, and the barrels in which contained, is not includable in appellant’s monthly average tax base. In that respect, that portion of the Commissioner’s order is hereby reversed. That portion of the Commissioner’s order which has to do with appellant’s distillation still is affirmed.


source: Caselaw Access Project

author: By MILLER, J.

license: Public Domain

text:
    LOOSE, Application of, In re.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5688.
    Decided Jauary 14, 1958.

      Herbert, Tuttle, Applegate & Britt, Thomas W. Applegate, C. Richard O’Neil, of Counsel, Columbus, for plaintiffs-appellees.
    J. Russell Leach, City Atty., Alba L. Whiteside, Asst. City Atty., Waymon B. McLeskey, Special Counsel, Columbus, for defendants-appellants.
   OPINION

By MILLER, J.

This cause comes into this court as an appeal on questions of law and fact from a judgment of the Common Pleas Court. The action is one in which the plaintiffs, Donel F. Loose and Edna Loose, are seeking to acquire the title to a twenty foot strip of ground by reason of adverse possession for more than twenty-one years, and that the title of the defendants be quieted and forever barred from claiming any right or title to said premises.

The answer of the City of Columbus admits that plaintiffs are the owners of the two lots between which the twenty-foot strip, designated as an alley, runs, but alleges that the same had been dedicated as a public highway and accepted by the Board of County Commissioners of Franklin County, which is of record in Plat Book 1, page 248, Recorder’s Office, Franklin County, Ohio.

It alleges further that since the said dedication the area involved was duly annexed to the City of Columbus, affirmatively denies the adverse holding and also denies generally all of the other allegations contained in the petition not specifically admitted to be true. No issue was raised by the other defendants, who are the heirs of the subdividers of the tract. So as to these the relief sought in the petition will be granted and the plaintiffs’ motion for a judgment, sustained.

Now, the questions presented are: (1) Was the alley duly dedicated and accepted as a public thoroughfare? and (2) has it been held adversely by the plaintiffs for a period in excess of twenty-one years as provided in §2305.05 R. C.?

The record reveals that in the year 1906 Lyman H., Charles L., Nettie A. and Sarah A. Innis subdivided a tract of land in Franklin County, made a plat thereof and dedicated the said alley as a public highway therein, all of which was accepted by the Board of County Commissioners, and the same was duly recorded. It is admitted that the owners signed the plat but their signatures were neither witnessed nor acknowledged. It is urged by the plaintiffs that because of these failures in the execution of the plat there was no statutory dedication and the plaintiffs’ claim of adverse possession should be sustained. An acknowledgment by an officer authorized to take acknowledgments to deeds is required under §711.04 R. C. (§5383 GO, but the defendants urge that the dedication may be considered as one for road purposes and §5553.31 R. C., would become applicable. This section provides:

“Any person may, with the approval of the board of county commissioners, dedicate lands for road purposes. A definite description of the lands to be dedicated with a plat of such lands thereto attached and signed by the party dedicating such lands, with the approval and acceptance of the board indorsed thereon, shall be placed upon the proper road records of the county in which such road is situated. If the lands so dedicated * *

It will be noted that this statute requires no acknowledgment but only that the plat shall be signed by the party dedicating such lands, approved and accepted by the board of commissioners and filed for record. All of these requirements have been complied with. Hence it is our conclusion that there has been a statutory dedication of this alley. However, should this determination be incorrect, there can be no question of it being a dedication under the common law. The record is clear and convincing that the dedication was intended by the owners of the land and that the same was accepted by the Board of Commissioners on behalf of the public. The plat in question contains the following notation:

“Approved this 1st day of March, A. D. 1906, and the roads, streets and alleys therein dedicated to public use, are hereby accepted as such for the County of Franklin, State of Ohio.”

This approval and acceptance was signed by the three County Commissioners then in office. These facts are sufficient to establish a common law dedication.

In Railroad Co. v. Roseville, 76 Oh St 108, it is said in paragraph 1 of the syllabus:

“To show the establishment of a street by a common law dedication, it is essential to prove clearly that the owner of the land intended to donate it for that use, and to prove also an acceptance.”

In Byerlyte v. City of Cleveland, 32 Abs 609, the second paragraph of the syllabus provides:

“It is not necessary to have a statutory dedication in order to achieve a public thoroughfare; there may be a common law acceptance either by the municipality or by public use.”

See also, Fulton v. Mehrenfeld, 8 Oh St 440; Scott v. Snyder, 73 Oh Ap 424.

The City of Columbus also urges, and we think properly so, that the plaintiffs are estopped to question the validity of the dedication. It was stipulated that sales in the platted subdivision, including the sale of lot No. 64 to the plaintiffs, were made with reference to the plat in that subdivision.

In 17 O. Jur. 2d, 28, Sec. 26, the author states:

“It is well established in Ohio, in accordance with the general rule elsewhere, that where the owner of real property makes a plat thereof, showing streets, alleys, squares, or commons, and sells lands with reference to such plat, and the streets or other ways or places indicated thereon are used by the public, he thereby, in the absence of any circumstances to show that they are limited or restricted to a private use or purpose, dedicates them to a public use. This was the rule prior to the enactment of any statute providing for the recording of plats of a subdivision of property, and even since the enactment of the statute, a valid dedication of property to a public use may still result from the platting or laying out of ground on the usual common-law principles, where such platting or laying out is not sufficient to constitute a statutory dedication. * * *”

In Cincinnati v. Leeds, 3 Oh Ap 123, the court says on pages 130, 131:

“It has been repeatedly held that where the owner of real property makes and records a plat showing streets, highways or public squares, and sells land with reference to that plat and the streets, highways or public squares thereon are used by the public, he thereby dedicates them to the public. And this is true whether the plat is properly executed and acknowledged or not. 13 Cyc., 455, and cases cited; Daiber, et al. v Scott, 3 C. C., 313; Wright v. Oberlin, 23 C. C., 509, 511; Doren v. Horton, 1 Dis., 401, 404; Brown v. Manning, et al., 6 Ohio, 298, 303; Huber, et al. v. Gazley, et al., 18 Ohio 18.”

See also, Thompson v. City of Columbus, 22 O. N. P. (N. S.) 33.

It is conceded that .when the plat was filed for record, the land was outside any village or municipality, but in 1920 it was annexed to the City of Columbus; hence the City is a proper party defendant.

The next question for consideration is whether or not the plaintiffs acquired title to the strip of ground by prescription. It is said in 1 O. Jur. 2d, 765, that municipal corporations are not subject to the loss of their property by adverse possession or prescription, and that no public body holding rights in the streets or highways can lose the same by such methods. However, there appears to be an exception to this general rule which is found in §2395.05 R. C. This statute provides that when a street or alley is enclosed with a fence and has remained in the open and uninterrupted use of such owners for a period of twenty-one years, the public easement shall be extinguished. The specific requirement of this section is that the alley be “enclosed with a fence.” Now the facts in this case do not show that there ever was a fence surrounding this alley. There was a fence for many years along the entire west line and also an obstruction across the south end, but the east border and north entrance contained no fence or other obstruction. Hence it may not be said that the alley was enclosed. The word “enclosed” is defined in Patterson’s Law Dictionary, 4th Ed. as follows:

“To surround; to encompass; to bound; fence, or hem in on all sides.”

The case of Orangeville v. Powell, 69 Abs 440, is in accord with the definition, supra. The first paragraph of the syllabus of 'this case provides:

“Under the provisions of §2305.05 R. C., providing for the acquisition of the’'title to streets by the adjoining land owner through adverse possession it is an absolute requirement that the street be fenced and remain in the possession of the original proprietors and where the evidence shows that neither of these requirements have been fulfilled no title is acquired by the adjoining landowner.”

We are of the opinion that the requirements of the cited section of the Code have not been established and that the plaintiffs’ cause of action must fail. Our judgment will be rendered for the City of Columbus, defendant, for costs of suit.

PETREE, PJ, BRYANT, J, concur.


author: By PHILLIPS, PJ.

text:
    GATEWOOD, Plaintiff-Appellee, v. YOUNGSTOWN SHEET & TUBE COMPANY, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3836.
    Decided March 27, 1956.
    Traxler & Beil, Youngstown, for plaintiff-appellee.
    Manchester, Bennett, Powers & Ullman, Youngstown, for defendant-appellant.
   OPINION

By PHILLIPS, PJ.

Defendant, a self-insurer under the Workmen’s Compensation Act of Ohio, appealed to this court on questions of law from a judgment of the court of common pleas entered upon a jury verdict for plaintiff in his appeal to that court from an order of the Industrial Commission of Ohio denying his right to participate in the Workmen’s Compensation Fund of' Ohio.

On September 27,1948, while regularly employed as a tractor operator by defendant the tractor plaintiff was operating fell from a platform about four feet above ground level striking plaintiff in his chest and middle of his body, fracturing his pelvis and rupturing his urethra. X-ray examination revealed a thickening of the pleura over the entire right lung field.

Plaintiff resumed his employment in March 1949 and except for intermittent short periods worked steadily until April 1951 when he quit work because of a knee condition, which so far as the evidence shows was not due to the injury received on September 27, 1948.

On September 24, 1951, plaintiff was admitted to the Mahoning Tuberculosis Sanitarium for treatment for tuberculosis, where he remained until September 26, 1951, when he left that institution voluntarily and without discharge by those in charge of that institution, and later was hospitalized in the United States Veterans Hospital in Butler, Pennsylvania.

Diagnosis of plaintiff’s condition made in the Mahoning Tuberculosis Sanitarium in November 1948 revealed no pulmonary tuberculosis but revealed plaintiff was suffering from pleurisy. The diagnosis of no pulmonary tuberculosis was confirmed in August 1951, and in October 1951 plaintiff’s tuberculosis, diagnosed as acute fulminating pneumonic type, was diagnosed as of fairly recent origin and of about three months duration.

Two medical witnesses testified that there was and four medical witnesses testified that there was no causal relationship between plaintiff’s injury of September 27, 1948, and his subsequent tubercular condition.

It is established by the evidence that there was no pre-existing pulmonary tuberculosis in plaintiff’s lung on September 27, 1948; that the tubercular bacillus is a germ which causes tuberculosis; that that germ was not introduced into plaintiff’s body nor caused by his injury of September 27, 1948; that it merely lowered his resistance allowing tuberculosis to develop after he inhaled the germ which set up an infection in his body.

As defendant suggests by brief the issue is whether “plaintiff’s pulmonary tuberculosis (is) the direct and proximate result of the injury sustained by him” on September 27, 1948.

As its sole assignment of error defendant contends that “the court of common pleas erred in overruling defendant’s motion for a new trial,” for the assigned reasons that the verdict of the jury and judgment of the trial judge entered thereon are against the manifest weight of the evidence and contrary to law; and that “plaintiff’s disability beginning in September 1951 from tuberculosis was not the direct and proximate result of his injury in September 1948, but rather was the direct result of a germ; and also because only certain occupational diseases enumerated in the Workmen’s Compensation Act are compensable as such, and tuberculosis is not one of those diseases enumerated.”

Defendant argues by brief:—

“In view of this conclusive evidence of no tuberculosis one month after the injury, and no tuberculosis as late as August, 1951, almost three years after the injury, there is obviously no basis for a claim the injury 'activated, aggravated or accelerated a pre-existing condition of ill being in the plaintiff.’ This is fortified by the circumstance the hypothetical question asked by plaintiff of his medical witnesses does not assume a pre-existing condition of tuberculosis. However, the evidence shows plaintiff complained of pain in the chest beginning about three weeks after entering the hospital for his injury. This of course was due to the pleurisy which developed and which required drainage. But this condition cleared up completely as Dr. Kravec testified at page 58, 1. 6-11:
“ 'Q. Did you take any x-rays at that time?
“ ‘A. Yes. We took x-rays before the aspiration and it showed the presence of the fluid and then we followed this up with several other x-rays that showed the fluid completely cleared from the lung ’ ”

It is said in Industrial Commission of Ohio v. Klaff, 123 Oh St 451 at 453:—

“The greater part of the briefs of counsel is confined to the issue whether the disease of tuberculosis, from which the applicant now suffers, was caused by the lifting of heavy steel rails upon the car, as claimed by him, or whether, as claimed by the state, the plaintiff at the time of injury had the germ of tuberculosis in his body and that the present stage of his disease would have developed in any event. Those issues were presented by the court to the jury and were found in the plaintiff’s favor; and a majority of this court do not feel inclined to reverse the case upon the ground that the plaintiff offered insufficient evidence to support that issue.”

This court being unable to find the judgment of the trial court is manifestly against the weight of the evidence and no other error being claimed the judgment of the court of common pleas is affirmed.

NICHOLS and GRIFFITH, JJ, concur in judgment.


author: By WEICK, District Judge.

text:
    GELFAND, a Minor, et, Plaintiff, v. STROHECKER, INC., a Corporation, Defendant.
    United States District Court, N. D. Ohio, E. D.
    Civ. A. Nos. 29571, 29573.
    Decided August 1, 1956.

      A. H. Dudnik, Sam Komito, Cleveland, for plaintiffs.
    Thomas E. Antonelli, Youngstown, for defendant.
   OPINION

By WEICK, District Judge.

These cases were consolidated, and tried before a jury, resulting in verdicts in favor of the plaintiffs (Rose Gelfand for $10,000, Harvey Gelfand, a minor for $3,500 and Judy Gelfand, a minor for $1,000).

Written interrogatories were submitted by the court to the jury under Rule 49 (b) of the Federal Rules of Civil Procedure, 28 U. S. C. A., which were answered as follows:

“Interrogatory No. 1.
“Was the defendant negligent? If so, of what did it consist? Answer. Yes. Not using due caution considering weather conditions of the highway.”
“Interrogatory No. 2.
“Was Herman Gelfand negligent? If so, of what did it consist? Answer. Yes. Not using due caution considering weather conditions of the highway.”
“Interrogatory No. 3.
“Do you find that the defendant operated its truck onto plaintiffs' right-hand portion of the highway, to-wit: the westerly half thereof, so as to cause Herman Gelfand to attempt to avoid an imminent collision on the truck’s wrong side of the road, thereby forcing Gelfand to operate his automobile on his left side of the highway, namely, the east side thereof. Answer: Yes or no. No.”
“Interrogatory No. 4.
“Do you find that the injuries sustained by the plaintiffs proximately resulted: (a) From the negligence of the defendant: (b) From the combined negligence of Herman Gelfand and the defendant; or (c) From the sole negligence of Herman Gelfand? Answer. B. Not using due caution considering weather conditions of the highway.”

The defendant moved for a directed verdict at the close of plaintiffs’ evidence, and at the close of all the evidence, ruling on which was reserved by the court. Upon the rendition of the verdicts, judgments were entered in favor of the plaintiffs.

The defendant has now moved to set aside the verdicts and judgments and to have judgments entered in its favor in accordance with its motion for directed verdicts. Rule 50(b), Federal Rules of Civil Procedure.

The defendant claims that there was no substantial evidence of its negligence, and that in any event the sole proximate cause of the injuries of the several plaintiffs was the negligence of the driver of their automobile.

The accident happened, in broad daylight, on the morning of January 28, 1952 on State Route 90 in Mahoning County, Ohio. It had been snowing and the roadway was icy and slippery.

The roadway had only two lanes for travel and extended generally in a northerly and southerly direction and was improved. There was an “S” curve in the roadway which commenced at about the place where the accident took place. Appropriate signs had been erected by the State Highway Department indicating the presence of the curve.

The plaintiffs were on their way from Cleveland to Florida in a Cadillac automobile owned and operated by Herman Gelfand, husband of Rose Gelfand, and father of the two minor plaintiffs. Gelfand had filed no action for his own injuries or for damages to his automobile.

Gelfand was operating his automobile in a southerly direction and the defendant was operating his truck in the opposite direction or northerly when a collision occurred between the two vehicles on the easterly lane of the roadway within four feet of the east berm. This lane was the right side of the road for the truck and the wrong side of the road for the automobile in which plaintiffs were riding. Of this there was no question.

The complaints, in identical language, alleged that “the driver of the defendant corporation’s truck operated said truck onto plaintiffs’ right-hand portion of said Route 90, to wit: the westerly half thereof: that in order to avoid a collision with said truck, [Gelfand] pulled his automobile to his left, to wit: to the east, at which time the driver of defendant corporation’s truck carelessly and negligently operated said truck back onto his right-hand portion of said Route 90, so as to cause a collision between the automobile in which the plaintiffs were riding and the defendant corporation’s truck, * * (Complaint, par. 3.)

This identical claim was also charged as a specification of negligence in the complaint. (Complaint par. 4[d].)

This same claim was repeated by counsel for plaintiffs in his opening statement to the jury when he said:

“The evidence will show that when this truck was about 150 feet or so away from Mr. Gelfand — who was the driver — he then took particular notice — he might have seen it before — but at that time he took particular notice of the truck because it was then approaching him.
“The evidence will show that it was then on its proper or right-hand side of the road, and that would be to the east side of the road.
“The evidence will show that they both lessened the distance between themselves because they were approaching each other; and that the truck — defendant’s truck — went—around 20 feet from the Gelfand automobile, came over onto the Gelfand automobile side of the road, in other words, the westerly half of that road.
“Now, the evidence will show that when Mr. Gelfand was confronted with this truck coming straight at him on his side of the road, he swung his vehicle to the left or to the left-hand side of his left-hand side of the road, or the easterly half of the road, to try to get out of the way of this oncoming truck.
“The evidence will show that at the same time, the operator of the truck — who apparently had lost control of the truck and came over on his side of the road — tried again to get his vehicle onto the right-hand side, and he did at that point. So that the accident — the actual impact-occurred on the truck’s side of the road where Mr. Gelfand was cutting across, and that the front of the truck came into contact with the right side of the Geifand automobile.
‘Now the evidence will show that the reason for Mr. Gelfand’s going oiuo the left or his wrong side of the road at that time was the approaching vehicle coming at him, and at that time he thought that was the Lest way to attempt to avoid an accident.”

Herman Geifand, herein referred to as Geifand, testified that he was driving ce tween 25 and 35 miles an hour, although in his deposition taken in April 1953. he had testified that his speed was 35 miles an hour.

He testified, that when he first saw the truck, it was coming from the opposite direction, on its own side of the road, and 150 feet away.

The truck was still on its right side of the road when he saw it 100 feet away.

The truck was still on its right side of the road when he again saw it 50 feet away.

He then saw the truck when it was from 20 to 25 feet away. At this time, he testified the truck was on its wrong side of the road coming directly at him and he was then on his right side of the road.

Geifand testified that he blew his horn and turned to the left onto the left side of the road to avoid a head-on collision with the truck and the truck driver then turned to his right and got back on his right side of the road where the collision took place.

Geifand admitted that the collision took place on his wrong side of the road and the right side of the road for the truck.

He had not applied his brakes or slowed down and at the time of the accident was traveling at the rate of 35 miles an hour.

He did not see any signs indicating the presence of a curve. He said that he passed no other cars after leaving Poland.

Geifand was questioned on cross-examination as to whether he saw or talked with any officer of the State Highway Patrol, and he testified that he did not remember.

The fact was, however, that he gave a written statement, in his# own handwriting to Patrolman Robert E. Kettlewell and Patrolman Spindler of the State Highway Police on the same day as the accident.

This statement was as follows:

“I, Hérman G. Geifand, do hereby make the following statement of my own free will and accord concerning a motor vehicle accident which occurred on Highway 90 on the 28th day of January, 1952:
“I was traveling south on Route 90 about 25.
“I saw a truck coming north towards me. If I turned right, I would knock a car off the road, so I pulled towards my left. Next I knew, I was in ditch. My wife thrown through the windshield.”

Rose Geifand testified that their automobile was traveling between 25 and 35 miles an hour on her right side of the road. She saw the truck approaching, when it was right in front of them on its wrong side of the road and 20 feet away and her husband swerved his automobile to the left: that the collision took place on her left side of the road. In her deposition, she had testified that the automobile was traveling at 35 miles an hour; that she did not see any road signs indicating a curve: that the road looked straight; that she did not observe any automobiles in front of them before the accident.

Cecil Sowers testified that he lived about !4 of a mile north of where the accident took place and was backing his car out of his driveway when Gelfand drove by; that the road was covered with ice; that Gelfand was going about 25 miles an hour when he passed Sowers; that Sowers saw no other vehicle going south; that Sowers heard the crash, but did not see the accident take place; that after Sowers saw Gelfand, Sowers drove his car forward in his driveway up to his home; that after the accident Sowers went to the scene; that the automobile was in the east ditch facing south and the truck was about 15 feet north of the automobile heading west.

The minor children did not testify as to the facts of the accident. Defendant called no other witnesses as to the facts.

Robert E. Kettlewell, a State Highway patrolman, called as a witness for the defendant, testified that he arrived at the scene of the accident about 15 minutes after the accident took place.

He determined the point of impact of the vehicles from the debris on the highway, which was in the easterly lane about four feet from the east berm. The pavement was 19 feet wide and was surfaced with macadam. There were skid marks made by the automobile extending in a southerly direction, from the point of impact, a distance of 30 feet to the ditch; that there were no obstructions to the view except the “S” curve; that the curve was to the right for the truck and to the left for the automobile; that the lanes were marked; that the roadway was icy. He identified the statement made by Gelfand. (Deft’s Ex. “D.”)

A. C. Stroheeker, an officer of the defendant corporation, testified that he was driving its lVz ton Studebaker truck north on Route 90 about 25 or 30 miles an hour on his right side of the road; that he noticed traffic coming south and the next thing he saw was a Cadillac car passing a black car and coming toward him at a good rate of speed on the wrong side of the road and about 150 to 200 feet away; that the road was covered with black ice; that he applied his brakes, but there was not a thing he could do; that the collision took place on his right side of the road 4 to 5 feet from the east berm.

On cross-examination, Stroheeker testified that he saw the Cadillac car on his side of the road 150 feet or more away. He was asked within what distance he could stop going 30 miles an hour. He answered “quite a distance, because the road was black ice. He was then asked what is quite a distance. His answer was “Oh, it would be folly to try to stop a car under five or six lengths of that truck.” Question: “Five or six lengths?” *

“How long is that truck?” Answer. “The truck is at least 20 feet long, maybe 21.” Question. “So that you could have brought that vehicle to a stop in 100 to 105 feet, is that correct?” Answer. “It would be very difficult and very dangerous. * *

He said that, as soon as he saw the approaching automobile deviate he applied his brakes and was traveling from 10 to 12 miles an hour on his own side of the road at the time of the accident.

The jury pulled the rug out from under plaintiffs’ case when they answered “No” to Interrogatory No. 3.

The whole basis of plaintiffs’ case, fantastic as it may seem, was that the truck came over on plaintiffs’ right side of the road and when the vehicles were only 20 feet apart, Gelfand blew his horn and, to avoid a head-on collision with the truck, he went over on the left side of the road and the truck then went back on its right side of the road where the collision occurred.

The jury, in its answer to Interrogatory No. 3, found that no such thing happened, and answered the interrogatory “no.” It would have been a physical impossibility for the accident to have occurred in the manner related by the Gelfands.

All of the witnesses, including both Gelfand and his wife, Rose, testified that the accident took place on the truck’s right-hand side of the road.

The jury could not Have believed the testimony of Herman and Rose Gelfand and answered “no” in Interrogatory No. 3.

Gelfand was on the wrong side of the road, but the truck did not cause him to be there.

Strohecker swore that Gelfand was on the wrong side of the road, passing a black automobile at the time.

Gelfand’s statement, in his own handwriting, which he gave to the State Highway patrolman on the day of the accident was:

“I saw a truck coming north towards me. If I turned right, I would knock a car off the road, so I pulled towards my left.”

There must have been a car to his right, which he was passing at the time, and which he would have knocked off the road, if he had turned to the right, so Gelfand pulled to the left. After the collision occurred, he proceeded 30 feet further into the ditch. Gelfand’s car probably skidded on the ice because its right front fender and side were damaged.

The truck was on its own side of the road, where it had a right to be, at the time of the collision, and previous thereto. The truck driver was not required to be on the lookout for persons who might violate the law. He had the right to assume that the drivers of other vehicles would obey the law. Hangen v. Hadfield, 135 Oh St 281, 14 O. O. 144. 20 N. E. (2d), 715.

Sec. 6307-25(1) GC now §4511.25 R. C., provided: (in part)—

“Upon-all roadways of sufficient width a vehicle * * * shall be driven upon the right half of the roadway, except as follows: (1) When overtaking and passing another vehicle proceeding in the same direction or when making a left turn under the rules governing such movements: '***» *

Violation of this statute was negligence per se. Brandt v. Mansfield Rapid Transit, Inc., 153 Oh St 429, 41 O. O. 428, 92 N. E. (2d), 1; Simko v. Miller, 133 Oh St 345, 10 O. O. 535, 13 N. E. (2d), 914; Mahoning Savings & Trust Co. v. Kellner, 131 Oh St 69, 5 O. O. 402, 1 N. E. (2d), 616; Patterson v. George F. Alger Co., 112 N. E. (2d), 65, 64 Abs 385.

Sec. 6307-26 GC, now §4511.26 R. C., provided:

“Operators of vehicles * * * proceeding in opposite directions shall pass each other to the right * *

A violation of this statute was negligence per se. Johnson v. Thompson, 35 Oh Ap 91, 172 N. E., 298.

Sec. 6307-29 GC, now §4511.29 R. C., provided:

“No vehicle * * * shall be driven to the left of the center or center line of the roadway in overtaking and passing traffic proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interferring with the safe operation of any traffic approaching from the opposite direction or any traffic overtaken.”

Gelfand offered no excuse for being on the wrong side of the road, except the one which the jury, in answer to Interrogatory No. 3, found was false. He, therefore, had no valid excuse and was guilty of negligence as a matter of law. Lagos v. Kahler, 99 Oh Ap 214, 58 O. O. 367, 132 N. E. (2d), 254; Jackson v. Frederick, 152 Oh St 423, 40 O. O. 423, 89 N. E. (2d), 645.

Just how the truck driver, proceeding on the icy road, could have averted a collision with the Cadillac automobile, proceeding in the opposite direction on the wrong side of the road at the rate of speed of 35 miles an hour, does not appear.

True, the truck driver might have driven over on the left side of the road or to his right into the ditch, if he had sufficient time to do so. There is no proof that he had time and, in any event, he was under no legal obligation to get off the highway or go on the wrong side of the road in order to escape from being hit by one who was violating the law. Before negligence may be predicated upon the failure to act, there must be a violation of a duty and here there was no such duty. Mahoning Savings & Trust Co. v. Kellner, supra; Baler v. Cleveland Ry. Co., 132 Oh St 388, 8 O. O. 208, 8 N. E. (2d), 1.

But it is said that the truck was not under control; that the truck driver was going too fast; that he did not stop or lessen his speed and that this was negligence in view of the weather and the icy condition of the road.

These claims are not sustained by the evidence. The truck driver had been traveling 25 to 30 miles an hour and slowed down to 10 or 12 miles an hour at the time of the accident. If, in the exercise of ordinary care, he would have been able to bring his truck to a complete stoo (and there is no such evidence), he still could not have averted the collision with the Cadillac which was traveling at the rate of 35 miles an hour in the opposite direction and on the wrong side of the road. The driver of the Cadillac did not slacken his speed or apply his brakes and the car after the accident traveled a distance of 30 feet south of the point of impact and into the ditch.

In his closing argument to the jury, counsel for plaintiffs made a big point over the failure of the truck driver to stop his truck.

■ This reasoning of counsel, which undoubtedly influenced the jury, was fallacious.

There was no credible evidence offered to the effect that the truck driver, in the exercise of ordinary care, could have stopped his truck in time to have averted the accident. On the contrary, the uncontroverted proof shows that at the rate of speed which the Cadillac was traveling in the opposite direction (35 miles an hour), which was not lessened, the collision would have occurred, even if the truck had been brought to a complete stop. Hence speed of the truck could not have been a proximate cause of plaintiffs’ injuries.

In this case, the assured clear distance rule does not apply. Hangeu v. Hadfield, 135 Oh St 281, 14 O. O. 144, 20 N. E. (2d), 715. Nor would the doctrine of last clear chance (which was not pleaded or proved) apply because the negligence of Gelfand'continued up to the time of the collision. Patterson v. George F. Alger Co., supra.

The court will now consider the effect of the answers of the jury to Interrogatories Nos. 1, 2 and 4.

Interrogatories Nos. 1 and 2 were drawn in conformity with the decision in Davison v. Flowers, 123 Oh St 89, 147 N. E., 137, which holds that where more than one specific act of negligence is pleaded, the defendant is entitled to a request for a finding eliciting from the jury of what particular act or acts of negligence they find the defendant guilty. (3rd Syl.)

The purpose of interrogatories is to give the parties an opportunity to ascertain whether the jury has understood and applied the law to the proven facts. Elio v. Akron Transportation Co., 147 Oh St 363, 34 O. O. 301, 71 N. E. (2d), 707.

The interrogatories, under federal practice, should elicit facts, on which carelessness or contributory negligence, is sought to be predicated. Carpenter v. Baltimore & Ohio R. Co., 6 Cir., 109 F. (2d), 375.

In answer to Interrogatory No. 1, the jury found that defendant was negligent and as to the particulars answered: “Not using due caution considering weather conditions of the highway.”

The court had submitted the following specifications of negligence to the jury:

1. In that it failed to keep its truck under control.'

2. In operating its truck at an unreasonable rate of speed.

3. In that it operated its truck onto plaintiffs’ right-hand portion of the highway, to wit: the westerly half thereof, so as to cause the driver of the automobile in which plaintiffs were riding to attempt to avoid an imminent collision, thereby forcing him to operate his automobile onto his left-hand side of the highway, to wit: the easterly portion of said Route 90.

4. In failing to slacken the speed of the truck or to stop the same.

The answer of the jury, giving it a liberal construction, means that defendant did not exercise-ordinary care, considering the weather, and the conditions of the highway. “Caution” and “care” mean the same thing. We should not be particular about proper punctuation in the jury’s answer.

In effect, the jury said that the defendant was negligent because it failed to use due care considering weather and highway conditions. The jury did not find in what respect or respects the defendant was negligent which the interrogatory sought to elicit. The court was without right to require the jury to amplify its answers. Elio v. Akron Transportation Co., supra. In any event, the jury did not find that the defendant was guilty of negligence in any of the particular acts' or specifications with which it was charged in the complaint and which the court had submitted to the jury.

Because the jury did not find in its answer to Interrogatory No. 1, that the defendant was guilty of any of the four specifications of negligence charged, this operated as a finding against the plaintiffs, who had the burden of proof. Masters v. N. Y. Central R. Co., 147 Oh St 293, 34 O. O. 223, 70 N. E. (2d), 898; Miljak v. Boyle, 93 Oh Ap 169, 50 O. O. 377, 112 N. E. (2d), 340; Mills v. City of Cleveland, 97 Oh Ap 78, 55 O. O. 310, 117 N. E. (2d), 471.

An interrogatory which sought merely to determine whether the defendant was negligent, without requiring the determination of the supporting facts would be improper. Davison v. Flowers, supra; Carpenter v. Baltimore & O. R. Co., supra. Such an interrogatory would elicit a bare conclusion without facts to support it.

Even if such an interrogatory had been proper, a finding of the jury that the defendant was negligent in any respect would not be supported by the evidence.

Furthermore, it is not understandable how the jury could find the same acts of negligence against both Gelfand and the truck driver as their acts were certainly different. One was on his wrong side of the road, and the other on his right side, but the jury did not differentiate.

The answer of the jury to Interrogatory No. 4, insofar as it finds that such negligence of defendant was a proximate cause of plaintiffs’ injuries is contrary to the evidence and must be set aside.

Reasonable minds can reach but one conclusion in this case and that is that the negligence of Gelfand was the sole proximate cause of the injuries sustained by his wife and children.

The jury having determined that the truck was not the cause of Gelfand being on the wrong side of the road, the clear uncontroverted facts show, that only his negligence in driving on the wrong side of the road, without any valid excuse, was the proximate cause. On the evidence in this case, the question of proximate cause became one of law for the court to determine. Cobb v. Bushey, 152 Oh St 336, 40 O. O. 370, 89 N. E. (2d), 466.

The verdicts of the jury and the judgments, the jury’s answer to Interrogatory No. 1 and so much of the jury’s answer to Interrogatory No. 4 which finds that negligence of defendant was a proximate cause of plaintiffs’ injuries, are vacated and set aside and judgment will be entered in favor of defendant dismissing the several complaints.

      . Now, as I said, sometimes the light comes, and it sometimes comes in a different light and from a different avenue. I was shocked — perhaps you were — and if you were following this argument, because it’s exactly the same thing that I talked to you about in my opening argument: That Strohecker, seeing — according to his testimony — our automobile — the Gelfand automobile —on its wrong side of the road in front of him, coming towards him, never did a thing to stop his automobile until he saw the vehicle going into the ditch as he says, when he was a short distance away, when he could have stopped it— and I don’t think I’m wrong on this — when Strohecker testified that he could stop his vehicle in five times 21 feet or 105 feet.
      But what is the excuse for it? When I say, “Why did he not apply his brakes?” Was my third question proposed to Mr. Antonelli, and here are his words:
      “We were on our right side of the road; we didn’t have to stop.” And then in the next breath he talks about the unfortunate injuries to these people. He feels sorry for them. Too late to feel sorry for them now, Mr. Strohecker.
      “We were on our right side of the road, we didn’t have to stop.” Forgetting the law of this situation, take the humanitarian side of it. In other words, 'he would have you believe that if I were traveling on my right-hand side of the road, and through some circumstances you were out on mv side of the road where you didn’t maybe have the right to be, according to him. that he can go right into you because “We were on our right side of the road; we. didn’t have to stop.”
      In other words, you see somebody on your side of the road; and regardless of the consequences, you drive right into them. “We were on our right side of the road; we didn’t have to stop.”

        That may be the clue to this situation: “We were on our right-hand side of the road and didn’t have to stop.”
      I don’t think anybody could subscribe to such a rule of conduct. I say to you, in all the sincerity that I can command, that we were in the right: and the truth follows the right, and it doesn’t follow the man that says, “I was on my right-hand side of the road, and I didn’t have to stop. I could keep right on going regardless of the consequences.”


author: Per CURIAM.

text:
    GELFAND, a Minor et, Appellant, v. STROHECKER, INC., a Corporation, Appellee.
    United States Court of Appeals, Sixth Circuit.
    Nos. 12996, 12998.
    Decided April 16, 1957.
    Before McALLISTER, MILLER and STEWART, Circuit Judges.
   OPINION

Per CURIAM.

The above cause having come on to be heard upon the record, the briefs of the parties, and the argument of counsel in open court, and the court being duly advised.

Now, therefore, it is ordered, adjudged and decreed that the judgment of the district court be and is hereby affirmed upon the opinion of Judge Weick, 4 O. O. (2d), 446, 78 Abs 406, setting aside the verdicts of the jury and entering judgments in favor of defendant, dismissing the several complaints.


author: By QUATMAN, PJ.

text:
    STATE, ex rel AUSTIN, Relator-Appellee, v. SHAFFER, Clerk, Respondent-Appellant.
    Ohio Appeals, Second District, Champaign County.
    No. 139.
    Decided June 18, 1956.
    J. Harvey Crow, Urbana, for relator-appellee.
    Karl Paulig, Urbana, William E. Bailey, Springfield, for respondent-appellant.
   OPINION

By QUATMAN, PJ.

On July 5, 1955, a petition for mandamus was filed in this court on behalf of one Howard Austin, relator, to compel one Edna Shaffer, Clerk of the Municipal Court, Urbana, Ohio, respondent, to accept and file in case number 493, then pending in that court, certain instruments captioned “Precipe for Transcript” and “Notice of Appeal,” respectively. An alternative writ was allowed on that same day.

For her defense, the said Edna Shaffer asserted that the instruments in question were presented for filing by one J. Harvey Crow, whose name appeared thereon in the capacity of attorney for relator; that the said J. Harvey Crow had, on the 13th day of May, 1955, been disbarred from the practice of law by judgment of the Common Pleas Court of Champaign County, Ohio.

On October 19, 1955, the matter was heard by the court and the court found from the pleadings, and an exhibit offered by relator, being the record of the proceedings in disbarment above referred to; that on May 23, 1955, a stay of execution had been ordered by the Court of Appeals suspending the order of disbarment, and therefore found in favor of relator and ordered a peremptory writ to issue.

Although the matter was pending in the Court of Appeals of Champaign County, the respondent, on the day of the hearing, filed with the Franklin County Clerk, an affidavit of bias and prejudice against the court, and filed a copy thereof with the Champaign County Clerk the following day. The respondent orally informed the court of the filing of this affidavit at the time of the hearing and then withdrew from the court room upon the court ruling that the affidavit was untimely.

On October 27, 1955, respondent filed a motion to vacate the judgment ordering the issuing of the peremptory writ, and on November 7th filed her notice of appeal to the Supreme Court of Ohio on questions of law and fact. Thereafter, on February 23, 1956, the appeal was dismissed upon appellant’s application.

By an instrument filed in this court December 14, 1955, and signed by the Chief Justice of the Supreme Court, it appears that the affidavit of bias and prejudice above referred to was withdrawn.

On December 14, 1955, an entry was filed, dated December 8th, vacating sua sponte, the judgment rendered October 19, 1955, ordering the peremptory writ.

Thereafter, on March 30, 1956, relator, Howard Austin, filed a motion to strike from the files, the entry of vacation, alleging that the court was without jurisdiction to enter its order by reason of the proceedings having been removed to the Supreme Court of Ohio, pursuant to respondent’s notice of appeal filed November 7, 1955, and which appeal was pending on the date the order of vacation was entered.

This court comes now to a determination of the merits of this motion, having in mind the previous proceedings as herein set forth.

Assuming that its jurisdiction has not been removed, a court has full control to review, affirm, modify or reverse its judgments during term. However, after term this authority can only be exercised upon the jurisdiction of the court being properly invoked.

While the record of these proceedings raises considerable doubt as to the authority of the court to have entered its judgment of October 19, 1955, ordering the issuing of a peremptory writ, that matter could only be passed on by way of review in a higher court, or, being after term, possibly upon a petition to vacate. We are therefore confined only to the justiciable matters raised by the motion now for hearing.

While the notice of appeal filed on November 7, 1955, gave notice that the appeal was on law and fact, it will be considered as an appeal on law only.

It is well recognized that the only appeal possible from a court of appeals of this state to the Supreme Court of Ohio is one on questions of law only.

The courts have several times passed on the question of the jurisdiction of the lower court to further proceed in an action, after notice of appeal on questions of law has been filed.

A review of the cases establishes that the jurisdiction of the lower court is stayed only to the extent that any further action on its part would conflict or materially affect that part or portion of the proceedings pending on appeal. In re: Kurtzhalz, 141 Oh St 432.

The notice of appeal in the instant case sets out that appeal is taken from the judgment rendered by this court on October 19, 1955, to-wit: the judgment ordering the issuing of the peremptory writ.

Upon the authority and reasoning above set forth it follows that an order of this court, though rendered in term, vacating its judgment of Octooer 19, 1955, while said judgment was then pending on appeal as a matter of right, did materially affect the appeal and substantially affect one of the parties and was therefore void.

Motion of relator is sustained and journal entry may be prepared accordingly. Exceptions saved.

MIDDLETON and YOUNGER, JJ, concur.


author: By LEIS, J.:

text:
    TINSLEY, Plaintiff, v. CINCINNATI (City) et, Defendants.
    Common Pleas Court Hamilton County.
    No. A-148422.
    Decided March 29, 1957.

      C. Watson Hover, County Pros., William J. Schmid, Asst. Pros. Atty., for Board of County Commissioners.
    Harry Gehler, for plaintiff.
    Henry M. Bruestle, City Solicitor, J. B. Grause, Jr., William A. McClain, Edward A. Hogan, Asst. City Solicitors, for the City of Cincinnati,
   OPINION

By LEIS, J.:

This is an action for personal injuries sustained by the plaintiff when he fell to the ground from the fourth floor of a building while in the process of washing windows. The building, situated on Lincoln Park Drive in Cincinnati, Ohio, is owned by the City of Cincinnati. The entire building was leased to Hamilton County, but some time prior to plaintiff’s fall, Hamilton County leased back to the.City of Cincinnati the fourth floor of the building. The fourth floor of the building was at the time of the accident used for the purposes of Smoke Abatement.

The defendants have demurred to plaintiff’s second amended petition under the authority of §2309.08 (E) and (J) R. C.

The Court will treat first the grounds of the demurrer under §2309.08 (J) R. C., that the petition does not state facts which show a cause of action.

As to the defendant, Board of County Commissioners of Hamilton County, Ohio, the Court feels that a demurrer will lie. Counsel refer to Commissioners of Hamilton County v. Mighels, 7 Oh St 109. In one hundred years, the rule laid down by this case has not been disturbed. The cited case is determinative of the issue here as it pertains to the defendant county. The Mighels case states:

“The board of commissioners of a county are not liable, in their quasi corporate capacity, either by statute or at common law, to an action for damages for injury resulting to a private party by their negligence in the discharge of their official functions.”

That they were in the discharge of their official duties in this instance is not to be denied. The building in question is used .by the County Welfare Agency for the relief of the poor. Relief of the poor is an official function of the county. See page 119 of the Mighels case, supra.

“It is the general rule that counties and boards of county commissioners are immune from tort liability unless such liability is predicated upon statute.” 14 O. Jur. (2d) 385; see also 38 Am. Jur. 260.

“The reason for such exemption from liability is that organizations of the kind referred to (counties, townships, school districts) are mere territorial and political divisions of the state, established exclusively for public purposes connected with the administration of local government.” 11 O. Jur. 538.

See also State, ex rel. Bowman v. Board of Commissioners, 124 Oh St 174, and Babin v. City of Ashland, 160 Oh St 328, which discuss the entity of the county.

As to the defendant, City of Cincinnati, plaintiff claims that regardless of the nature of the function being carried out on the fourth floor of the building by the city, as regards the relationship of the city and the plaintiff, the function was proprietary and hence liability exists.

It is generally recognized that a city is exempt from tort liability in the exercise of governmental functions, but that no immunity exists in the exercise of proprietary functions. The rule, easy of statement, is more difficult of application. See Ellis’ Ohio Municipal Code, Sections 15.1 and 15.2.

A leading Ohio case on the subject of municipal tort liability is that of City of Wooster v. Arbenz, 116 Oh St 281. Though the facts in that case are not similar to the ones at hand, the language used by Chief Justice Marshall is pertinent to the question of tort liability at issue here:

“This court is for the present committed to the doctrine that there is no liability on the part of a municipality in actions for tort, if the function exercised by the municipality at the time of the injury to the plaintiff was a governmental function. The nonliability for governmental functions is placed upon the ground that the state is sovereign, that the sovereign cannot be sued without its consent, and that the municipality is the mere agent of the state and therefore cannot be sued unless the state gives its consent by legislation. * * *”
“The court is equally committed to the doctrine that if the function being exercised is proprietary ajid in pursuit of private and corporate duties, for the particular benefit of the corporation and its inhabitants, as distinguished from those things in which the whole state has an interest, the city is liable. * * *
“First of all, let us ascertain the tests whereby these distinctions are made. In performing those duties which are imposed upon the state as obligations of sovereignty, such as protection from crime, or fires, or contagion, or preserving the peace and health of citizens and protecting their property, it is settled that the function is governmental, and if the municipality undertakes the performance of those functions, whether-voluntarily or by legislative imposition, the municipality becomes an arm of sovereignty and a governmental agency and is entitled to that immunity from liability which is enjoyed by the state itself. If, on the other hand, there is no obligation on the part of the municipality to perform them, but it does in fact do so for the comfort and convenience of its citizens, for which the city is directly compensated by levying assessments upon property, or where it is indirectly benefited by growth and prosperity of the city and its inhabitants, and the city has an election whether to do or omit to do those acts, the function is private and proprietary.”

The Court can not subscribe to plaintiff's contention that irrespective of the nature of the city’s function, as regards its relationship to the plaintiff, the city’s function was proprietary. 38 Am. Jur. 287, states:

“The rule of municipal immunity for liability for torts committed while in the performance of a governmental function applies in cases in which the injured party is an employee of the municipal corporation, as well as when the injured party is a third person.”

It therefore follows that the city is clothed with immunity against any such persons, be they employees, employees of independent contractors, or frequenters, so long as the function is governmental.

The Court must determine, therefore, whether the operation by a city of a building which houses a Smoke Abatement League on one of its floors, and leases other floors to a county for welfare work constitutes a governmental function. If the function is governmental, the building which houses this function is immune.

“The exemption of municipal corporations from liability for personal injury in connection with the conduct of public and governmental functions has been held to extend to injuries arising from the unsafe and defective condition of all public buildings and other public places used in connection with such functions as fully as to those resulting from the negligent acts of employes or from the negligence of persons employed to care for the same. * * *” 38 Am. Jur. 304.

The Court believes that the use of the fourth floor for Smoke Abatement purposes is a governmental function, and the building which housed this function is within the scope of the municipal immunity. Discharge of dense smoke into the atmosphere of a populous city, causing large quantities of falling soot and rendering the air difficult and injurious to health does not only constitute a public nuisance but is a danger to the public health.

“Public health and sanitation are broad objects of the police power and their protection and promotion within a municipality constitute important and far-reaching functions of municipal government. Not only do municipal corporations have power to protect and promote public health and improve sanitation, but it is their duty to do so.” 7 McQuillan, Municipal Corporations, 48.

Counsel for plaintiff argues with ability the applicability of §§4101.11 and 4101.12 R. C., to the instant case. Is an employee of an independent contractor protected by the provisions of these two sections when the employer of the independent contractor is a city, and the employee of the independent contractor is injured in a building which is used by the city for a governmental function? The Court thinks not.

As cited above, the general rule is that the immunity of the municlpality extends even to its own employees. The statutes here, being in derogation of the common law must be strictly construed.

City of Wooster v. Arbenz, supra; Standard Fire Insurance Co. v. City of Fremont, 164 Oh St 344.

Counsel for plaintiff cites the Court to §4123.01 R. C., which defines "employee” to mean “every person in the service of the state, or of any county, municipal corporation, township, or any school district therein, * * *” The definitions under §4123.01 R. C., refer only to §§4123.01 to 4123.94 R. C., and do not pertain to the section in dispute, §4101.11 R. C. Nor do the eases cited by counsel definitely interpret §4101.11 R. C.

The legislature has not seen fit to set down a statute which places these duties enumerated under §4101.11 R. C., upon a municipality engaged in governmental functions, and this Court will not invade the province of the legislature by so doing.

Plaintiff in his second amended petition does not plead facts which require or permit the conclusion that the defendant city was acting in a proprietary function. Such a petition is insufficient against a general demurrer. See Huffman v. City of Columbus, 51 N. E. (2d) 410.

The demurrer of the city is well taken and will be sustained.

The demurrers being sustained on the grounds of §2309 (J) R. C„ there is no need to discuss the merits of the demurrers on the grounds of §2309 (E) R. C., misjoinder of parties defendant.

Please present your entries accordingly.


author: By DOYLE, J:

text:
    SMACK & SNACK, INC., Appellant, v. MAYFIELD HEIGHTS (City), et al, Appellee. SMACK & SNACK, INC., Appellee, v. MAYFIELD HEIGHTS (City), et al, etc., Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    Nos. 24371, 24384.
    Decided March 31, 1958.

      William J. Kraus, for appellant in Case No. 24,371 and for appellee in Case No. 24,384.
    Squire, Sanders & Dempsey, for appellee in Case No. 24,371 and for appellants in Case No. 24.384.
    (HUNSICKER, PJ, DOYLE, J, of the Ninth District, and HORNBECK, J, of the Second District, sitting by designation in the Eighth District.)
   OPINION

By DOYLE, J:

This was an action for a declaratory judgment, relating to the validity of admission tax ordinances of the former village, and present city, of Mayfield Heights, Ohio, and to the applicability of such ordinances to certain aspects of the business conducted within the limits of the municipality by the petitioner, Smack & Snack, Inc.

Trial was had in the Court of Common Pleas of Cuyahoga County, and, from a judgment there rendered, which, in part, was for the plaintiff. and, in part, was for the defendants, we entertain the present appeals made by each of the litigants.

The following facts are before us:

The plaintiff is a corporation engaged in the business of owning and operating a golf driving range, a golf school, and a restaurant. The premises consist of about 15 acres of land, substantially enclosed by fence.

A building 60 x 30 feet in floor measurement houses the restaurant, and, in the rear thereof, with entrance thereto from the building, a golf driving range is established. There is maintained here a series of benches and rubber mats facing a golf driving range.

Members of the general public who come upon the premises, and who wish to drive golf balls onto the range from the mats, may rent a pail of 40 balls for a stipulated amount (formerly $1 a pail, presently 75c a pail), and then, using their own golf clubs or clubs provided free by the plaintiff-company, drive the balls onto the range. Ño charge is made for admission to the premises, and people may, if they desire, watch others use the facilities with no cost to them. While admission is free to the restaurant, a charge is made for food and drink. A golf instructor is available for those who desire lessons. A charge is made for lessons, and the money is kept by the instructor.

Recapitulating briefly:

Persons visiting the premises are neither required to rent golf balls, employ the instructor, or to purchase food and drink. They may enter, visit, and watch, without charge, as well as park their cars in a parking space on the premises.

At this point, it should perhaps be stated that the present law-suit involves the right to collect a 3% tax on the money received for the use of the golf balls on the plaintiff’s golf driving range facilities.

Under now-repealed sections of the General'Code of Ohio (§5544-1 et seq GC), the state levied what was then characterized as an “admissions tax.” In the year 1947, these statutes were repealed, and municipalities throughout the state entered this field of taxation, as was their right.

The then village of Mayfield Heights was one of such municipalities, and on April 21, 1948, passed its ordinance No. 1320, one of the two ordinances with which we are here concerned. This ordinance (No. 1320) in its pertinent part provided:

“Section 2. Admissions Tax. There is hereby levied and imposed upon every person who pays an admission charge to any place, including a tax on persons who are admitted free of charge or at reduced rates, to any place for which other persons pay a charge or a regular higher charge for the same or similar privileges or accommodations:
“(1) A tax of three per centum f3%) on the amounts paid for admission to any place, including admission by season ticket or subscription.”
“Section 1. Definitions. For the purpose of this ordinance, words and phrases shall have the following meanings:
“ ‘Admission charge’ — In addition to its usual and ordinary meaning, shall include a charge made for season tickets or subscriptions, a cover charge or a charge made for use of seats and tables, reserved or otherwise, and similar accommodations; a charge made for food and refreshments in any place where any free entertainment, recreation or amusement is provided; a charge made for rental or use of equipment or facilities for purposes of recreation or amusement, and where the rental of the equipment or facilities is necessary to the enjoyment of the privileges for which a general admission is charged, the combined charge shall be considered as the admission charge; and a charge made for automobile parking where the amount of the charge is determined according to the number of passengers in an automobile.
“ ‘Place’ — Includes, but is not restricted to, theatres, dance halls, amphitheatres, auditoriums, stadiums, athletic pavilions and fields, golf courses, baseball and athletic parks, circuses, side shows, swimming pools, outdoor amusement parks, and such attractions as merry-go-rounds, ferris wheels, dodge-’ems, roller coasters, and observation towers.”

As shown above, the village council defined the meaning of the word “place” when it imposed a 3% tax on the amounts paid for admission “to any place.” It also defined “admission charge,” as that term is used in Sec. 2 of the ordinance, supra.

The second ordinance with which we are here concerned was enacted in the year 1953. It is designated as “Ordinance No. 1953-51,” and titled “An ordinance- amending Ordinance No. 1320 levying an admission tax on persons paying admissions or who are admitted free or at reduced rates to any place; fixing the amount and providing for the collection thereof and prescribing penalties.” This amending ordinance changed only the definition of the word “place,” and added thereto “golf driving ranges” in addition to its former designation of “golf courses.”

It appears that, following unsuccessful attempts by the former village of Mayfield Heights, and presently by the city of Mayfield Heights, to collect a 3% tax on the charge for the use of the golf balls, claiming that a tax on such charge was authorized under the respective ordinances, the municipality threatened court action against the plaintiff, and, as a consequence thereof, the plaintiff corporation filed this action for a declaratory judgment in the Court of Common Pleas.

The trial court, pursuant to trial, entered its judgment, in part, as follows:

“1. The Council of the city of Mayfield Heights has the power, and its predecessor, the council of the village of Mayfield Heights, had the power, to enact tax legislation applicable to all persons paying a charge for the rental or use of plaintiff’s golf driving range facilities, and the council of the city of Mayfield Heights validly exercised that power when it enacted Ordinance No. 1953-51.
“2. Ordinance No. 1320 of the city of Mayfield Heights by its terms does, not apply to persons using the plaintiff’s golf driving range facilities and, therefore, does not require the plaintiff to collect a tax from them and remit it to the city of Mayfield Heights.
“3. Ordinance No. 1953-51 by its terms does apply to persons paying a charge for the rental or use of plaintiff’s golf driving range facilities and does require the plaintiff to collect a tax from them and remit the same to the city of Mayfield Heights. Said ordinance having been validly enacted on July 20, 1953, as an emergency ordinance and having been signed on the same date by the mayor of the city of Mayfield Heights has been in full force and effect since that date. Persons using plaintiff’s golf driving range facilities after said date were subject to the tax levied by said ordinance and it has since been and is now the duty of the plaintiff to collect said tax from all those using the facilities and to remit it to the city of Mayfield Heights.”

The appeals from this judgment are on questions of law. The respective parties each ask for a reversal of that part of the judgment which is adverse to it or him.

1. The right of municipalities in this state to legislate for the levying of excise taxes of the character of the municipal legislation now before us cannot be here questioned. The state of Ohio has not pre-empted the field, nor limited expressly, or by implication, the right of municipalities to launch into this field of taxation.

On this subject it is said:

“1. Taxation is an attribute and function of sovereignty.
“3. Municipalities have the power to levy excise taxes to raise revenue for purely local purposes; but under Section 13, Article XVIII» Ohio Constitution, such power may be limited by express statutory provision or by implication flowing from state legislation which pre-empts the field by levying the same or a similar excise tax.”

Haefner, a taxpayer, et al., v. City of Youngstown, et al, 147 Oh St 58.

As heretofore stated, the state has departed from this field of taxation, and the municipalities within the state are now free to function within constitutional limitations without state interference.

2. The city of Mayfield Heights, in its status as an appellant, claims error of the trial court in ruling that ordinance No. 1320 (the one initially enacted) did not, by its terms, apply to the plaintiff’s “golf driving range business.”

At the outset, it must be observed that we are here dealing with a tax law, and, as such, it must be strictly construed. If there is any doubt as to whether a particular ordinance levies a tax, the doubt must be resolved in favor of the taxpayer.

Marshall, C. J., in Cassidy v. Ellerhorst, 110 Oh St 535, at p. 539, has well stated the rule:

“In approaching the interpretation of statutes imposing taxes, it should be recognized at the outset that the rule of strict construction should be followed, and that, where there is ambiguity or doubt as to legislative intent, the doubt should be resolved in favor of the person upon whom the burden of taxation is sought to be imposed, and that language employed in a taxation statute should not be extended by implication beyond its clear import, or to enlarge its operation so as to embrace subjects of taxation not specifically named. This rule has been declared by this court in Gray v. City of Toledo, 80 Oh St 445, 448, 89 N. E. 12, and City of Cincinnati v. Connor, 55 Oh St 82, 91, 44 N. E. 582; and by the Supreme Court of the United States in Gould v. Gould, 245 U. S. 151, 38 Sup. Ct. 53, 62 L. Ed. 211.”

Another rule of law relating to the interpretation of statutes or ordinances may be stated succinctly as follows:

“Special statutory provision for particular cases operate as exceptions to general provisions which might otherwise include the particular cases and such cases are governed by the special provisions.”

State, ex rel. Elliot Co., v. Connar, Supt, 123 Oh St 310.

Under the first ordinance (No. 1320), the municipal council not only levied an excise tax on the admission charged to enter’ any place for the purpose of seeing, hearing, or otherwise enjoying the facilities of the place (the theatre, opera, museum, etc.), but also included as a part of the admission charge additional expenditures required to be made for the use of certain parts of the facilities or accommodations of the “place.” This the council did by its own definition of the “words and phrases” used in the ordinance. The council legislated that, included in the “admission charge,” there should be “a charge made for rental or use of facilities for purposes of recreation or amusement.”

It would appear that the rental fees charged for the golf balls and the use of the driving course to accomplish the purpose of renting the balls, could properly be termed an “admission charge,” unless other language in the ordinance- requires a different interpretation, even though the word “place,” standing alone, is one of broad and uncertain meaning.

The legislating body, however, undertook to define and limit its meaning of the word “place.” It will be remembered that the legislation undertook to levy a tax on every person who pays an admission charge “to any place.” In its definition of “place,” a golf driving range was not included. In fact, there was no affirmative words which levied a tax on a charge made for the use of such a range, nor for the rental of balls as a part thereof.

As stated above, general provisions such as “equipment or facilities for purposes of recreation,” when used in an ordinance, must give way to special provisions for particular cases; and we reach the conclusion that, under the original ordinance, a rental charge made for golf balls to be driven on the range was not subject to the admissions tax, “not on the theory that the * * * (city council did not) have the power to impose a tax * * * but because it” did not do so. Board of Park Commissioners, etc., v. Evatt, Tax Commr., 145 Oh St 297, at p. 300. Compare: City of East Cleveland v. Evatt, Tax Commr., 145 Oh St 493.

We find no error in the trial court’s judgment on this phase of the case.

Directing attention now to the ruling of the trial court, in respect to the application of the amended ordinance wherein “golf driving ranges” were specifically included in its definition of “places.”

The public, of course, was admitted to the 15-acre area without charge. No tax could be collected at this point. The driving course was located in a definite part of the enclosure. The public could watch the golf enthusiasts if it wished, or could wander about and enjoy the restaurant. But those who wanted to use the golf driving range, through the rental of a bucket of balls, and to enjoy these facilities of the place, could be taxed. The taxing authorities could, and did, make the charge for the balls to be used on the range an admission charge and subject to tax.

Contrary to the claim that the tax can be imposed only upon charges for admission to places where the person admitted is a spectator or auditor, such as at • theatres, operas, public performances, ball games, athletic contests, and other places of amusements we are of the opinion that the amended ordinance could, and properly did, impose a tax on fees or rentals charged for the use of golf balls to be used on the facilities of the 15-acre “place”; and whether such charge may be said to be a charge in the nature of a rental or use, nevertheless it may also be characterized as an admission charge and made subject to tax.

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

Judgment affirmed in each case.

HUNSICKER, PJ, HORNBECK, J, concur.