author: By HURD, J:

text:
    RHOADES, Plaintiff-Appellant, v. CLEVELAND (City), Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22085.
    Decided April 30, 1951.

      Walter Booth, Harry Clark, Cleveland, for plaintiff-appellant.
    Lee C. Howley, Director of Law, Cleveland, for defendantappellee.
    (DOYLE, J, of 9th District sitting by designation.)
   OPINION

By HURD, J:

This is an action of tort originating in the Court off Common Pleas of Cuyahoga County to recover damages for personal injuries incurred as the result of a collision between an automobile operated by plaintiff appellant and a street car operated by an employee of the transit system of defendant appellee. The parties will hereafter be referred to as plaintiff and defendant as they appeared in the trial court.

This is the third appeal of the parties to this court. The first trial resulted in a verdict and judgment thereon for the defendant. This judgment was reversed and cause remanded for error of law on the part of the trial court in refusing to charge on the doctrine of last clear chance. The defendant carried the judgment of reversal to the Supreme Court on motion to certify which was overruled.

The second trial resulted in a verdict and judgment thereon for the plaintiff in the sum of $7500.00. This judgment in favor of plaintiff was reversed for error of law on the part of the trial court in withdrawing from the consideration of the jury a special request of defendant to charge before argument, after the request had been granted and the charge properly given to the jury as requested. The third trial resulted in a verdict in favor of defendant. This appeal now comes1 to this Court on questions of law from the judgment for defendant entered upon the verdict.

The facts are in sharp dispute. The accident giving rise to this lawsuit occurred Nov. 19, 1944, at or about 5:30 P. M. at the intersection of E. 93rd and Carton Avenue. According to plaintiff’s testimony he v»'as operating an automobile in a southerly direction on East 93rd Street; upon arrival at Kinsman Road and E. 93rd St., he stopped behind a southbound street car and two or three automobiles, on account of the traffic light being against them; that upon receiving the green light he proceeded at a speed of twelve to fifteen miles per hour; that as he approached Carton Avenue he looked to see where the traffic was, and to see if there was anything to interfere with making a left turn into Carton Avenue; that he gave a signal by putting his left hand out the window; that he let his car go down to a slow speed to make the turn; that his car rolled to a stop on the northbound track; that the southbound street car at that time was several hundred feet on down E. 93rd Street; that as he started to make the turn he saw a northbound street car 300 feet or more away; that after he came to a stop his car stalled and he tried the starter; that the northbound street car was then about 200 feet away; that he heard the motorman ringing the gong right after that; that he tried the starter again; that the street car kept on coming; that he could see the motorman then very plainly standing -facing him; that the street car struck his automobile and he was rendered unconscious.

A witness who was walking south on. E. 93rd Street corroborated plaintiff’s testimony to the extent that while he was walking south on the west side of E. 93rd Street he saw plaintiff’s car stalled on the northbound tracks; that the northbound street car was then about 200 feet from the stalled car; that when the street car was about 100 feet from the stalled car the motorman began to sound the gong and kept it up until the automobile was struck; that he did not know plaintiff before that time; that when he first saw the street car it was moving at from 20 to 25 miles per hour and continued at that speed until the collision.

Defendant presented evidence through the testimony of the motorman of the street car and another witness who had been walking south on East 93rd Street toward Carton Avenue at the time of the collision in support of its contention that plaintiff turned suddenly and without warning from behind the southbound street car directly into the path of the northbound street car which was then only 20 to 30 feet away, a distance within which it was impossible to avoid the collision.

This conflict in evidence presented issues of fact for determination of the jury under proper instructions of law by the court.

Therefore we shall confine this opinion to a discussion of the first assignment of error, namely, error of the court in its charge to the jury, as the second assignment of error, namely, that the verdict is against the manifest- weight of the evidence cannot be sustained.

The petition of the plaintiff charged that the defendant was negligent in five separate specifications which may be condensed as follows:

1. Under the doctrine of last clear chance

,2. Failure to maintain proper control of the street car

3. Failure to stop or abate the speed of the street car

4. Failure to maintain proper lookout

5. Operating a street car at a speed greater than would permit its stoppage within the assured clear distance ahead.

Issue was made upon the five specific charges of negligence contained in the petition by the answer of the defendant, which while admitting that a.collision occurred between one of its street cars and the automobile operated by» plaintiff, denied negligence on its .part in any of the respects charged in the petition.

The error complained of on the part of the trial court is predicated upon the failure of the court separately to state and define the various issues of facts made in the pleadings and the evidence and to give proper instructions to the jury in respect thereto. The brief of plaintiff contains the following quotations from the general charge:

“The plaintiff claims that the defendant was negligent in the manner in which the collision occurred and the plaintiff has set forth certain specifications of negligence, specifications in which he claims the person operating the street car was guilty of negligence in the operation of the car at the time and place of this collision.
“The defendant has denied that it was negligent or its driver was negligent in any respect, and claims that the plaintiff was guilty of negligence and that his negligence was the cause of the collision and his subsequent injuries, or that his negligence contributed to the negligence of the defendant, if any, to bring about and to cause this collision. Therefore defendant claims that the plaintiff is not entitled to recover in this case.
“These claims of negligence and these denials make up what we call the issues in the case. In this type of a case that issue is bound up really in what the jury may find was the manner of the happening of the accident. What movements were being made by the motor vehicle; what movements were being made by the driver of the street car just before and at the time of this collision? Upon these questions the parties are at variance and their variance as I have stated, makes up the issues in this case. Without going into detail too much and stating it only in a general manner, the plaintiff claims that he was proceeding in a southerly direction along East 93rd Street, operating at a low rate of speed and that at or near the intersection of Carton Avenue and East 93rd Street he put his car into low speed and proceeded to make a left turn into Carton Avenue. He claims that after he made the turn when he was in this intersection his car stalled or came to a stop and that at the time the street car was approaching from the south a .considerable distance away, and that the driver of the street car failed and neglected to stop or control the movements of this street car and caused it to collide with his motor vehicle. I have not covered all of the details, but that is the general picture which has been painted here by plaintiff.”

It will be observed that in the above quoted part of the charge the trial court failed to separate and define specifically the issues of fact made by the pleadings and the evidence.

However, in passing upon a claim of prejudicial error in the instructions of the trial court to the jury, we must consider the charge as a whole and if it appears that a correct statement of the law was given in such a manner that the jury could not have been misled, no prejudicial error can be held to have resulted. Applying this test we have examined the charge as an entirety and find that the court failed throughout the charge to separate and define the issues of fact relating to four specifications of negligence set forth in plaintiff’s petition. The court did not read any part of the pleadings to the jury and did not separate and define the specific issues involved in the specifications of negligence included in charges two to five, both inclusive, above set forth.

The court charged upon the doctrine of last clear chance but under plaintiff’s specifications of negligence and evidence plaintiff was not obliged to rely upon this claim alone - and certainly a charge on this subject alone could not be a substitute for the duty resting upon the trial court to separate and define the other issues of fact made by the pleadings and the evidence.

In 2 O. Jur., “Appellate Review” Section 744, page 1390 et seq., it is stated that:

“It is well settled in Ohio that it is prejudicial and reversible error for the trial court to give a charge which is so meager that it fails to define the specific issues involved or to present them to the jury in such a way that they may have them completely in mind. Thus, it has been stated that it is the imperative duty .of the trial court to separate the issues of fact from the issues of law, to separate and define the various issues of fact made in the pleadings, and to give proper instructions in regard to each, calling the attention of the jury to the material allegations of fact which are admitted and to those which are denied, and that failure to perform such duty constitutes reversible error except possibly in cases involving only a single tersely stated issue.”

Citing numerous authorities, including: — Baltimore & Ohio R. R. v. Lockwood, 72 Oh St 586, 74 N. E. 1071; Simko v. Miller (1938), 133 Oh St 345, 13 N. E. 2d. 914, 10 O. O. 535; Ford Motor Co. v. Barry, 30 Oh Ap 528, 165 N. E. 865 (m. c. o. Oct. 30, 1939) (failure to submit to jury under charge, one of the defenses contained in the answer); Avra v. Karshner, 32 Oh Ap 492, 168 N. E. 237; Faucett v. Hensley, 35 Oh Ap 16, 171 N. E. 352 (stating that to “separate” means to disconnect, divide or sever, and not either to read the pleadings or to state the substance thereof,- and that “to state definitely the issues of fact made in the pleadings” means to state them with certainty); Ribarin v. Kessler (1946), 78 Oh Ap 289, 70 N. E. 2d. 107; Kelley v. Ohio Traction Co., 24 Oh Ap 539, 157 N. E. 765.

And many others too numerous to detail here at length.

To the same effect see: Jones v. People’s Bank, 95 Oh St 253, 260, 261; 116 N. E. 34; Telinde v. Ohio Traction Co., 109 Oh St 125; 141 N. E. 673; Lima Used Car Exchange Co. v. Hemperly, 120 Oh St 400, 405; 166 N. E. 364; 39 O. Jur. (Trial) page 915, Sec. 248; 12 Page’s Ohio Digest, Part 1, “trial” page 518, Sec. 124.1 and numerous authorities therein cited.

The pleadings and the evidence.in this case are such that the instructions to the jury cannot be reduced to a single tersely stated issue. An example in point is plaintiff’s specification of negligence No. 4 where it was charged that defendant was negligent in operating the streetcar at a greater speed than would permit the same to be brought to a stop within the assured clear distance ahead. Nowhere throughout the charge do we find any reference to this specification of negligence. It was the duty of the court under the issues made by the pleadings and the evidence to submit this issue to the jury with proper instructions and leave the determination of the issue of fact to the jury. The plaintiff had a right to have this charge presented under plaintiff’s evidence to the effect that the street car was .300 feet or better away from the intersection when plaintiff attempted to execute the left turn.

Present §6307-21 GC providing in part that no person shall drive any motor vehicle, trackless trolley or street car at a greater speed than will permit him to bring it to a stop within the assured .clear distance ahead is a successor statute to former §12600 GC, containing the same language. In the case of Skinner v. Penna R. R., 127 Oh St 69, the court held that violation of that statute would be negligence per se; the single paragraph of the syllabus being as follows: -

“The language of §12603 GC, providing that no person shall drive any motor vehicle in and upon any public road or highway at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead, is a specific requirement of law, a violation of which constitutes negligence per se.”

This case was approved and followed in Gumley, Admr. v. Cowman, 129 Oh St 36, the syllabus of which is as follows:

“1. The language of §12603 GC providing that no person shall drive any motor vehicle in and upon any public road or highway at a rate of speed greater than will permit him to bring it to a stop within the assured clear distance ahead, is a specific requirement of law, a violation of which constitutes negligence pet se. (Skinner v. Penna. R. R., 127 Oh St 69 approved and followed.)
“2. The present legislative requirement establishes a subjective test whereby a driver is prohibited from operating any motor vehicle in and upon any public road or highway at a rate of speed greater-than will permit him to bring it to a stop within the distance at which he can see a discernible object obstructing his path.”

It was the imperative duty of the court so to charge in this case. On the other hand, under the evidence adduced by the defendant it would likewise be the duty of the court to instruct the jury that the rule would not apply if the jury should find that the assured clear distance ahead was without fault of the operator-of the street car suddenly cut down or lessened by the entrance within such clear distance ahead and into his path or line of travel of some obstruction (in this case the automobile of plaintiff) which would render him unable, in the exercise of ordinary care, to avoid colliding therewith.'

Likewise the court should have charged specifically that the duty rested upon the operator of the street car in the exercise of ordinary care to keep the same under control, to maintain a proper lóokout and to stop or abate the speed of the street car so as to avoid the collision, such instructions to be properly qualified to meet the .issues raised by the pleadings and the evidence in the case.

It is true that in the course of the charge the court stated that there was a burden on both parties to keep a lookout and keep their vehicles under control but here again thé court failed to charge specifically on these issues. Reference to these matters was more of a casual than of a definitive nature.

The defendant argues that while plaintiff excepted to the charge generally, no specific request was made to instruct the jury on the issues of fact and propositions of law of which plaintiff complains and that it was the duty of plaintiff to call the same to the attention of the court. Citing Columbus Ry. Co. v. Ritter, 67 Oh St 53.

In this connection we think it pertinent to point to the language employed by Marshall C. J., in the case of Telinde v. Ohio Traction Co., 109 Oh St 125, reference to the effect of Columbus Ry. Co., v. Ritter and later cases on this subject. In referring to §11561 GC, since repealed, he said in behalf of a unanimous court:

“This section has been construed many times, notably in three leading cases: Columbus R. Co. v. Ritter, 67 Oh St 53, 65 N. E. 613; State v. McCoy, 88 Oh St 447, 103 N. E. 136 and State v. Driscoll, 106 Oh St 33, 138 N. E. 376. In each and all of those cases this court has stressed the duty of counsel to aid the court by calling attention to omitted matters, and ha§ placed a large measure of responsibility upon counsel in this behalf. The cases do not, however, overrule the case of Baltimore & Ohio R. R. v. Lockwood, 72 Oh St 586, 74 N. E. 1071, neither do they put the entire responsibility upon counsel. By the provisions of §11447 GC (now §11430-1 GC) construed and defined by the Lockwood case, a very great responsibility still rests with the court. As between the responsibility resting upon the court, on the one hand, and that resting upon counsel, on the other, it is apparent that cases will constantly arise for which no definite rule can be established * * * The problem is not always solved * * * by merely determining whether the blame rests upon the court or upon counsel. It may be that both are at fault and when in such case error intervenes which is material and prejudicial to the substantial rights of the party excepting, what course should be pursued by a reviewing court? Substantial justice to the litigant should be the highest aim of the courts otherwise the Bill of Rights becomes only a form. In spite of the rules already laid down and those which may hereafter be declared, it is manifest that there will yet remain a twilight zone in which cases will appear where the courts will be compelled to determine upon the particular issues of those cases and the evidence adduced in support thereof, whether the instructions amount to a charge complying with §11447 GC (Now §11430-1 GC) and if not, whether it was the duty of counsel to make specific objections and requests for further instructions.” Telinde v. Ohio Traction Co., 109 Oh St 125, 141 N. E. 673.

We think that in this case the failure to separate and define the issues of fact and to accompany the same with proper instructions of law relating thereto, made the same wholly inadequate and constituted error of commission as well as omission under the particular circumstances of this case.

This view is further confirmed by the action of the trial court in the instructions to the jury in favor of the defendant. The answer of the defendant is in effect a general denial and does not plead any specific defenses. The court charged in favor of the defendant, (1), that the street car had the right of way; (2) that the plaintiff before turning or changing the course of the vehicle was obliged to make sure that the movements could be made with reasonable safety; (3) that it was the duty of plaintiff to cause signals to be, given of his intention to change the course of his vehicle in a way visible outside the motor vehicle and that failure to do so would be negligence per se in the violation of a specific lawful requirement; (4) that the plaintiff could not recover if he was guilty of negligence in the slightest degree contributing to his injuries. Three of these same charges were given in writing before argument and repeated in the general charge. We find no error in these charges per se as we think issues in respect thereof were created by the evidence. But we find that these charges in favor of the defendant, when contrasted with the failure to separate and define the issues in favor of the plaintiff as raised by the pleadings and evidence, resulted in giving undue prominence and emphasis to the evidence adduced upon behalf of defendant.

On this subject we direct attention to 39 O. Jur. “Trial” Sec. 255 page 931:

“In the language of the Ohio Supreme Court, the trial judge should not give ‘a charge which confines the attention of the jury to one view of the case when there is more than one which they should consider,’ or one which has the vice of confining itself and the jury’s attention to the theory of the case promulgated by one party, ignoring that which the other puts forth.”

For the reasons stated, it is our conclusion that in considering the charge as a whole it was prejudicially erroneous to the rights of the party complaining and that the cause should be reversed and remanded for further proceedings according to law.

This opinion is written to assist the trial court, in the event that the case is re-tried, so that he may be able to instruct the jury fully, fairly and impartially, and in such a manner that whatever the result, neither party will have any further just cause for complaint.

Judgment reversed and cause remanded for further proceedings according to law. Exc. Order see journal.

SKEEL, PJ, DOYLE, J, concur.


source: Caselaw Access Project

author: Per CURIAM.

license: Public Domain

text:
    CLICK v. PARISH et al.
    Ohio Appeals, Third District, Hardin County.
    Decided June 10, 1950.

      Carlos A. Faulkner, Harry I. Kaylor, Kenton, for plaintiffappellee.
    Frank Wiedemann, Marion, Roy W. Roof, Kenton, for defendants-appellants.
   OPINION

Per CURIAM.

These are appeals upon questions of law, one by the plaintiff Ellis Click, and the other by defendants Lenole Parish, Harry Boyd and A1 Smith, from a judgment of the Common Pleas Court of Hardin County, Ohio.

The plaintiff filed his petition in said court, which, omitting caption, signatures of counsel, and oath thereto, is in the words and figures following, to-wit:

“Now comes plaintiff, Ellis Click, and for his cause of action against the defendants, Lenole Parish, Harry Boyd, Clayton Shope and A1 Smith, says:
“The defendant, Harry Boyd, is a Justice of the Peace of Montgomery township, Marion county, Ohio; the defendant, A1 Smith, was a special constable of said Montgomery Township, Marion county, Ohio, deputed by said Justice of the Peace, and the defendant, Lenole Parish, is a resident of Montgomery Township in said county.
“On or about the 14th day of October, 1947, said defendants did combine and conspire together to obtain and procure, under color of the office of said Harry Boyd, Justice of the Peace aforesaid, and of the office of A1 Smith, special constable as aforesaid, to cause to be obtained and procured and did obtain and procure, under color of said offices, the false and wrongful and illegal arrest of plaintiff herein, and did unlawfully and falsely detain the person of plaintiff and restrain him of his liberty, at his home in Kenton, Hardin county, Ohio, and caused him to be conveyed, and did convey him, under said false, wrongful and illegal arrest of his person and restraint of his liberty, from his home, in Kenton, Hardin County, Ohio, to the jail of Montgomery Township, Marion County, Ohio, late at night, to-wit 11:30 o’clock P. M. on said day, and kept plaintiff in said jail under color of said false, wrongful and unlawful arrest for a period of more than 12 hours, before releasing him.
“Said false and wrongful and illegal arrest of plaintiff by defendants was wanton and wilful and without just cause and was not made for the purpose of prosecuting a criminal offender under the laws of the state but solely for the purpose of collecting an amount claimed owing the defendant, Lenole Parish, from plaintiff.
“Plaintiff, at said time, was the owner of a truck, which was used for the purpose of hauling hay, and employed a driver to purchase hay in the vicinity of Kenton, Ohio, and haul same to southern Ohio and other points to sell. On or about October 13, 1947, his said driver called at the farm of the defendant, Lenole Parish, and made arrangements to buy some hay to haul south to sell. The driver did not have the money to pay for such hay, which said Parish knew, but sold him said hay, which he was to bring through Kenton and have weighed at the scales of David Wax in Kenton and leave the weigh slip there for said Parish to pick up, that evening, which said driver did. Through some misunderstanding said Parish did not find said weigh slip at Wax’s, although it was there, and without further investigation, proceeded to the place of the defendant, Harry Boyd, Justice of the Peace, to see how he could get his money. Said defendants, Boyd and Parish, knew that said Boyd had no jurisdiction over this plaintiff in any civil action to collect for said hay and that said defendant, Boyd, could secure no costs except in a criminal action by bringing plaintiff into his court, and they thereupon on October 14, 1947 prepared on the criminal docket of said Justice, page 95, an affidavit which said Parish did not sign, charging that on or about the 13th day of October, 1947, at the County of Marion, one Ellis Click did take and dispose of 162 bales of timothy hay from the premises of the above Lenole Parish and did transport it out of the county with intent to defraud the above complainant. Contrary to §13104 GC which states the penalty for obtaining property under false pretenses. The defendant, Al Smith, was called in and informed of the facts and agreed to be sworn in as a special constable to arrest plaintiff and bring him to Marion County. Thereafter a pretended warrant, embodying such pretended criminal charge above, was prepared and issued, by the defendant, Harry Boyd, under color of his office as Justice of the Peace, at the instigation of said defendant, Leñóle Parish, to said defendant, Al. Smith, who proceeded at a late hour in the evening to the home of plaintiff, accompanied by the defendant, Clayton Shope, a police officer of the City of Kenton, Ohio, where said defendant, Al Smith, and said defendant, Clayton Shope, made said arrest of plaintiff above set forth, and forced him to accompany said Al Smith to said jail in Montgomery Township, Marion County, Ohio. Said plaintiff was placed in said jail, which was filthy and unsanitary and uncomfortable and left until the next day, October 15, 1947. He was then told by defendants that in order to get out he would have to pay for said hay and pay the costs of said arrest. He was arraigned before said Justice upon said trumped-up and pretended charge, to which he pleaded ‘not guilty.’ Later on in said day, after he had paid the sum of $106.50, demanded by the defendant, Lenole Parish, and the sum of $3.80, costs demanded by defendant, Harry Boyd, and $8.35 costs demanded by the defendant, Al Smith, he was permitted to leave said jail and go home. No bond was fixed or given in said pretended criminal case to secure his release; he was not recognized to appear again before the Justice of the Peace nor bound over to the Grand Jury of the County, nor was the pretended charge withdrawn or dismissed.
“By reason of said wilful, wanton, malicious, wrongful acts in causing plaintiff to be falsely arrested and the illegal restraint of his person arising therefrom as above set forth, plaintiff was unable to continue his said business of buying and selling hay in the vicinity of Kenton, Ohio, was forced to sell his truck and discontinue his business, suffered severe discomfort to his person, was made mentally upset and nervous for a considerable period, and was wrongfully humiliated and shamed, to his damages, ordinary and punitive, in the sum of $50,000.00.
“Wherefore plaintiff prays judgment against the defendants in the sum of $50,000.00, and for his costs.”

Each of the parties defendant filed his separate answer to the petition, and to each of the answers the plaintiff filed his reply in which he denied each and every allegation of each of said answers which did not constitute admissions of the allegations of plaintiff’s petition.

The cause was tried to a jury in the Common Pleas Court upon the pleadings mentioned.

Upon the trial of the cause, evidence was introduced by the parties, including a paper writing designated as Plaintiff’s Exhibit 4, which is in the words and figures following, to-wit:

“Warrant to Arrest
(Violation of State Law)
(Containing Copy of affidavit)
Justice of the Peace Court, ■
“The State of Ohio, Marion County, ss:
Montgomery Township.
“To A1 Smith, Constable of said Township,
Greeting:,
“Whereas, There has been filed with me an affidavit of which the following is a copy:
Justice of the Peace Court,
“The State of Ohio, Marion County, ss:
Montgomery Township.
“Before me, Harry Boyd, Justice of the Peace of Montgomery Township, in said County, personally came Lenole Parish, who, being duly sworn according to law, deposes and says that on or about the 13th day of October, 1947, at the County of Marion, one Ellis Click did take and dispose of 162 bales of Timothy Hay from the premises of the above Lenole Parish and did transport it out of the county with intent to defraud the above complainant. Contrary to §13104 GO which states the penalty for obtaining property under false pretenses.
Lenole Parish
“Sworn to and subscribed before me, this 14th day of October, 1947.
“Harry Boyd
Justice of the Peace.'
“These are, therefore, to command you to take the said-• if-he be found in your County, or, if-he is not found in your County, that you pursue after him in any other County in this State, and take and safely keep the said -, so that you have his body forthwith before me to answer the said complaint, and be further dealt with according to law. Given under my hand this 14th day of October, 1947.
. “Harry Boyd
Justice of the Peace.”
and a paper writing designated as Plaintiff’s Exhibit No. 2, which is in the words and figures following, to-wit:
“Warrant to Arrest
(Violation of State Law)
(Containing Copy of Affidavit)
Justice of the Peace Court,
“The State of Ohio, Marion County, ss:
Montgomery Township.
‘‘To A1 Smith, Constable of said Township,
Greeting;
“Whereas, There has been filed with me an affidavit, of which the following is a copy:
Justice of the Peace Court.
“The State of Ohio, Marion County, ss:
Montgomery Township.
“Before me, Harry Boyd, Justice of the Peace of Montgomery Township, in said County, personally came Lenole Parish, who, being duly sworn according to latv, deposes and says that on or about the 13 day of October 1947, at the County of Marion, one Ellis Click did take and dispose of 162 bales of Timothy Hay from the premises of the above Lenole Parish and did transport it out of the county with intent to defraud the above complainant. Contrary to §13104 GC which states the penalty for .obtaining property under false pretenses.
“Lenole Parish
“Sworn to and subscribed before me, this 14th day of October, 1947.
“Harry Boyd
Justice of the Peace.
“These are, therefore, to command you to take the said Ellis Click if he be found in your County, or, if-he is not found in your County, that you pursue after him in any other County in this State, and take and safely keep the said Ellis Click, so that you have his body forthwith before me to answer the said complaint, and be further dealt with according to law. “Given under my hand this 14 day of October 1947.
“Harry Boyd
Justice of the Peace.”

The jury returned a verdict in the sum of $675.00 against the four defendants named in the petition.

Motion for judgment notwithstanding the verdict was then made by the four defendants, and the court sustained the motion as to the defendant Shope but overruled the same as to the other defendants.

Judgment was then rendered on the verdict against the defendants, Parish, Boyd and Smith, and a motion for new trial was filed in their behalf. Motion for new trial was also filed on behalf of the plaintiff, Click. All motions were overruled on January 14, 1950.

Notice of appeal to this court from said judgment was thereafter filed by the plaintiff on January 23,1950; and on January-24, 1950, notice of appeal was filed on behalf of the defendants Parish, Boyd and Smith. These are the appeals under consideration.

The plaintiff-appellant assigns errors in certain particulars, and the defendants-appellants also assign errors in certain particulars, but in the view we take of this case it is necessary to consider only certain of the errors assigned by the defendants-appellants, as a consideration of these errors will be dispositive of the whole case. The assignments referred to are as follows:

a. The court erred in refusing to follow the law as decided by the Supreme Court in the case of Brinkman v. Drolesbaugh, 97 Oh St 171, 119 N. E. 451, L. R. A. 1918F, 1132.

b. The verdict of the jury and the judgment of the court are contrary to law.

c. The court erred in overruling the defendants’ motion for judgment notwithstanding the verdict of the jury.

An inspection of the petition discloses that the cause of action pleaded by the plaintiff is strictly and solely one for damages for false imprisonment.

The rules of law applicable to actions of this character are stated in sub-divisions 1, 2, 3, 4, 5 and 6 of the syllabus of the case of Brinkman v. Drolesbaugh, 97 Oh St 171, 119 N. E. 451, L. R. A. 1918F, 1132, to be as follows:

“1. ‘False imprisonment’ is a legal term defining a legal status known in law as an unlawful detention or illegal deprivation of one’s liberty.
“2. False imprisonment per se is not concerned with good or bad faith, malicious motive, or want of probable cause on the part of the prosecuting witness, or the officer causing the imprisonment. If the imprisonment was lawful, it is not the less lawful' that any or all of the foregoing elements existed. These elements relate to an action of malicious prosecution, but are not essential to an action in false- imprisonment.
“3. Whether or not the complaint is true or false is of no concern in an action for false imprisonment. Such inquiry may be essential to an action in malicious prosecution. Whether or not the complaint in the form of affidavit, information, or indictment is or is not sufficient in law to charge an offense is likewise per se insufficient to furnish the basis of an action in false imprisonment.
' “4. The law relating to false imprisonment classifies affidavits, informations, and indictments into ‘void’ and ‘voidable.* The ‘void’ class includes those setting forth facts which in no conceivable form can constitute a criminal- offense; or if they might constitute an offense, the court issuing the process had no jurisdiction over such offense or the person charged with the offense. The ‘voidable’ class includes those where a bona fide attempt has been made to charge a possible offense under the statute, but by reason of some defect or irregularity such charge is per se insufficient in law. As to such ‘voidable’ complaint or ‘voidable’ processes issued thereon there can be no false imprisonment per se.
“5. Judges and magistrates whose courts have jurisdiction of an offense, sought to be charged in a complaint by affidavit, information, or indictment, but which complaint is insufficient in law, are, on grounds of public policy, exempt from liability for false imprisonment by virtue of any criminal process issued on such complaint.
“6. By the same public policy the administrative or executive officer, whether he be constable, policeman, game warden, sheriff, or any other authorized officer of the state, whose duty it is under the law to serve the process of such court, is likewise exempt from any liability arising from an imprisonment by virtue of such process, which is prima facie regular.”

It is a general rule that the syllabi of a case decided by the Supreme Court constitutes the law of the case, and that lower courts are constrained to follow the law as laid down in the syllabus of such case. Bule VI of Buies of Practice of the Supreme Court, 94 Ohio St. IX, and notes thereunder.

While the propositions of law appearing in subdivisions 3, 4, 5 and 6 of the syllabus are to some extent obiter and not necessary to a decision of the case by the Supreme Court, they do constitute a declaration of the public policy of the state, unanimously concurred in by the Judges of the Supreme Court, as to the various propositions of law set forth therein, designed for the protection of judges, justices of the peace, sheriffs and constables in the performance of their duties, much more liberal in character to accomplish such purpose than are prevalent in other jurisdictions.

Applying these rules of law, to the case under consideration, it is clear that if the affidavit and warrant upon which the arrest and imprisonment of the plaintiff are based, are not void but merely voidable, the plaintiff has no cause of action against any of the defendants for damages for false imprisonment.

Under the rules mentioned, the “void” class includes affidavits,. informations and indictments setting forth facts which in no conceivable form can constitute a criminal offense; or if they might constitute an offense, the court issuing the process had no jurisdiction over such offense or the person charged with the offense. And the “voidable” class includes those affidavits, informations and indictments where a bona fide attempt has been made to charge a possible offense under the statute, but by reason of some defect or irregularity such charge is per se insufficient in law.

Considering the affidavit and warrant in the instant case, in the light of these prescribed tests, it appears that §13104 GC, which the acts and intent of said Ellis Click averred in the affidavit are charged therein as being contrary thereto, prescribes an offense of obtaining property by false pretenses with intent to defraud of which the justice of the peace had jurisdiction to issue a warrant for the arrest and detention of a person charged therewith.

The recitals in the affidavit constitute a bona fide attempt to charge said offense under said section, and the affidavit and warrant are not sufficient in law to charge such an offense, only because there is a failure to charge in such affidavit, the false pretenses by which the timothy hay therein described was obtained by the plaintiff, Ellis Click.

Following the rules of law set forth in the quoted subdivisions of the syllabus in the case of Brinkman v. Drolesbaugh, 97 Oh St 171, 119 N. E. 451, L. R. A. 1918F, 1132, we therefore hold that the affidavit and warrant upon which the imprisonment of the plaintiff was based, were “voidable” and not “void,” and this being the case, that the plaintiff has no cause of action against the defendants for damages for false imprisonment, although he may have a cause of action against one or more of them for malicious prosecution. However, the venue of an action for malicious prosecution is, as against all the defendants, who are all residents of Marion county and were served with summons in Marion county, not in Hardin county.

For the reason that the affidavit and warrant were voidable and not void and for the further reason that there was no evidence tending to prove that the defendant, Clayton Shope, in any way participated in the arrest and confinement of plaintiff the court did not err in rendering a judgment in his favor notwithstanding the verdict.

As the plaintiff had no causé of action against any of the defendants for damages for false imprisonment, the Common Pleas Court erred in that the verdict of the jury and the judgment of the court are contrary to law, and in overruling defendants’ motion for judgment notwithstanding the verdict, and for these errors the judgment of the Common Pleas Court will be reversed, and this court, rendering the judgment the Common Pleas Court should have rendered, will render final judgment in favor of the defendants and against the plaintiff, dismissing plaintiff’s petition at his costs, and will further adjudge that the defendants-appellants recover from the plaintiff their costs upon their appeal, and the appeal of plaintiff will be dismissed at his costs.

GUERNSEY, PJ, MIDDLETON and JACKSON, JJ, concur.


author: By THE COURT. By THE COURT.

text:
    CRAWFORD, Plaintiff-Appellee, v. BACH et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4500.
    Decided September 12, 1950.
    George S. Crawford, Columbus, for plaintiff-appellee.
    Matthew L. Bigger, Clarence L. Corkwell, Columbus, for defendants-appellants.
   OPINION

By THE COURT.

This is a motion to dismiss the appeal on law and fact for, the reason that the appeal bond was not signed within 20 days after the filing of the entry overruling the motion for a new trial. The record discloses that the motion was overruled on July 25, 1950, and the bond was filed on August 15, 1950. It was therefore not filed within the 20 days as required by §12223-6 GC. The motion will be sustained but the case will be retained for determination on questions of law as required by §11564 and §12223-22 GC. The appellant will be granted leave to file bill of exceptions, assignment of errors and brief within the time allowed by Supplement to Rule VII of the Court.

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

ON APPLICATION FOR REHEARING

No. 4500.

Decided October 16, 1950.

By THE COURT.

This is an application for a rehearing on a motion which was sustained and the appeal on law and fact was dismissed for the reason that the appeal bond was not filed within twenty days after the overruling of the motion for a new trial. The appellants urge, and are sustantiated by the record, that they signed the bond on the 20th day, but it was not signed by the surety until the 21st day, at which time it was approved by the Clerk and marked as being filed in the Clerk’s office. We are still of the opinion that the requirements of §12223-6 GC were not met in that the bond was neither approved by the Clerk nor filed until the 21st day. Sec. 12223-10 GC provides that the bond is not effective to stay execution until approved by the Clerk, who shall file it upon the giving of his approval. An ineffective bond is a nullity.

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


text:
    CRAWFORD, Plaintiff-Appellee, v. BACH et, Defendants-Appellants, COLUMBUS & SOUTHERN OHIO ELECTRIC COMPANY AND THE OHIO BELL TELEPHONE COMPANY, Defendants-Appellees.
    No. 4500.
    Decided March 1, 1951.
    George S. Crawford, Columbus, for appellee.
    Matthew L. Bigger, Clarence L. Corkwell, Columbus, Forrest R. Detrick, Worthington, for appellants.
    Porter, Stanley, Treffinger & Platt, Columbus, for defendants-appellees.
   By THE COURT.

The appeal is from a judgment of the Common Pleas Court finding upon the issues joined in favor of the plaintiff and against the defendants-appellants and ordering the defendants to remove from plaintiff’s property certain utility poles and wires by means of which defendants are trespassing on plaintiff’s property.

Appellants set out ten assignments of error. The substantial questions presented are that the judgment is not supported by and is against the manifest weight of the evidence. Without comment, we hold against the appellants as to all other errors assigned. Although the Electric and Telephone Companies were defendants below they take no part in this appeal, and when we hereinafter mention' defendants we refer to defendants, Everett F. Bach and James P. Bach.

The plaintiff held title of record to about 75 acres of land to the north of a 22 foot lane, which lane afforded access, alongside of land owned by McKitrick, to a 10 acre piece owned by defendant, Everett Bach, which piece was to the south of the property line of plaintiff and to the west of McKitrick. In 1928, James F. Bach contracted with the Electric Company and érected poles and strung wires thereon alongside the north line of the lane extending over and onto the land of plaintiff for a distance of about 5 feet. When this construction was done, the land now in the name of plaintiff was owned by Wilbur Mitchell. In 1929, this land was deeded by Mitchell to Day and Hogue; in 1935 by Day and Hogue to Frances Jennings; and in 1947, by Jennings to plaintiff.

In August, 1948, Wilbur Mitchell and wife deeded a five foot strip of land on which the poles were erected to Everett F. Bach. This deed recited that it was intended to carry into effect an oral agreement between James P. Bach and the grantors giving said land to Bach for the purpose of enabling him to erect and maintain said utility poles.

Prior to plaintiff’s purchasing the land, she and her husband, having observed the poles, made inquiry respecting them of the then owner, Jennings. George S. Crawford, husband of the plaintiff, testified that upon his information the poles were placed by permission.

Defendants’ answer claimed title to the five foot strip of land on which the poles were erected by an oral gift in 1928 to James P. Bach from Wilbur Mitchell, that the grantees were put- in possession of the premises and made improvements thereon and since that date had openly held the land.

Appellants contend that the trial judge did not give proper consideration to the testimony of the defendants tending to prove a gift of the land which would take it out of the application of the Statute of Frauds.

Without restating the testimony of Wilbur Mitchell who owned the land in 1928 and his wife, we would say that, if we were weighing their testimony originally, it supports the claim of defendants of an oral gift of the land, with possession taken by the donees and valuable improvements then made by him on the land. This proof would have been sufficient to permit the defendants to hold the five foot strip as against Wilbur Mitchell, and against plaintiff if fully known by her when she acquired the 75 acres. But we may not so hold because oí the right of the trial judge to .pass upon the credibility of the witnesses, weigh their testimony, and hold otherwise. Many of the Circumstances in the case and the uncertainty of the testimony of some of defendants’ witnesses justified the trial judge in his conclusion.

We learn from the written decision of the trial judge that he was of opinion that the defendants’ use of the land was permissive only and, if we could resort to this opinion, we could say that he did not pass on the second question in the case, as indeed he would..not be required to do.

The second question is: What'notice did plaintiff have as to the nature of defendants’ holding of the five foot strip? This issue was in dispute and must be resolved in favor of the defendants, if they succeed in their defense, as plead. This is true even though it be proved that Bach, as against Mitchell, had been given the strip of land.

The judgment entry is general in terms. There is no separate finding of law and fact. So that we must indulge the inference that all issues necessary to support the judgment were resolved in favor of the plaintiff.

In Gibsonburg Banking Co. v. Wakerman Banking Co., 20 O. C. C. 591, it is held that where a case is tried to the court and taken on error * * * to an appellate court, any fact necessary to sustain the judgment will be presumed to have been found by the trial court if the evidence can be found to support such finding.

In Scovanner v. Toelke, 119 Oh St 256, it is held that where no separate findings of law and fact have been made by a trial judge trying a case without the intervention of a jury, a reviewing court will presume that the trial court correctly applied principles of law to the facts. Jennings, plaintiff’s immediate predecessor in title, says that he informed plaintiff that the poles were on the strip of land by permission, and George S. Crawford, husband of plaintiff, denies the statement of James Bach that he told plaintiff in the presence of her husband that Mitchell had given him the 5 foot strip. Manifestly, the evidence would support the finding that plaintiff had full reason to believe that the poles were standing in the strip by permission only.

Unless it was proven that the plaintiff had knowledge,, or should have known, that the five foot strip was held by the defendants’ claiming to own it by gift, such claim could not be successfully asserted against her record title.

We cannot upon the state of the record hold with the appellants upon any error assigned.

The judgment will be affirmed.

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

ON APPLICATION FOR REHEARING

No. 4500.

Decided April 11, 1951.

By THE COURT.

Submitted on application of appellants for rehearing. Our rules do not contemplate the filing of applications for rehearing, but, if the Court has failed to consider some material question or has overlooked some controlling authority or principle of law, we entertain such an application.

An examination of the propositions advanced and argued in' the brief with the application is convincing that nothing is presented which we did not fully consider either in the original opinion on the merits in the law appeal or on the motion to dismiss the law and fact appeal.

It is too late to relitigate the question presented and determined in the motion to dismiss the appeal on questions of law and fact, viz., the failure of appellant to file the appeal bond within statutory time.

We adhere to our decision on the merits and are satisfied that we considered all facts material to the law questions presented and properly decided the case upon the record as presented.

The application will be denied.

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


author: By BADER, J.

text:
    STATE ex DAVIS, v. BROWN.
    Common Pleas Court, Hamilton County.
    Nos. 34905, 34906.
    Decided April 11, 1951.

      Edward C. Benson, Michael M. Nikolin, Cincinnati, for plaintiff.
    Chauncey Pichel, Cincinnati, for defendant.
   OPINION

By BADER, J.

The complainant, Marie Davis, and the defendant, Moses Brown, are the same in both Cases Nos. 34905 and 34906 respectively. Both cases come before this court on similar pleadings, to wit: (1) Plea in Abatement; (2) Special Demurrer; and (3) Motion to Quash, filed by the defendant who presents as his reason therefor that the “prosecution or proceeding was commenced more than six years following the alleged commission of the offense” and that “prosecution is forever barred by reason of the provisions of §§11222, 11224, 11225 and 12381 GC.”

In Case No. 34905 the affidavit sets forth among other statements that the complainant, Marie Davis, was delivered of a bastard child on the 15th day of December, 1943 and that Moses Brown is the father of that child.

In Case No. 34906 the affidavit sets forth among other things that the complainant, Marie Davis, was delivered of a bastard child on the 22nd day of June, 1942, and that Moses Brown is the father of this child. Counsel for complainant and defendant are in accord in their contentions that bastardy proceedings are civil in nature and the court will not discuss this phase of the case.

This action is brought by authority of §12110 GC, which reads as follows: “Complaint of unmarried woman. When an unmarried woman, who has been delivered of or is pregnant with a bastard child, makes a complaint in writing, under oath, before a justice of the peace, or in juvenile court charging a person with being the father of such child, ,the judge or justice thereupon shall issue his warrant, directed to any sheriff, police officer or constable of the state, commanding him to pursue and arrest such accused person in any county therein, and bring him forthwith before such judge or justice to answer such complaint.”

At common law there was no remedy for the mother of a bastard child available. The putative father was not compelled to support or provide for his illegitimate children. That duty was imposed upon him by statute in the State of Ohio and was in full force and effect, at the time the children were conceived, when the children were born, and is still in full force and effect. This is in derogation of the common law and must be strictly construed. State ex rel. Griffin v. Zimmerman, 67 Oh Ap 272, 36 N. E. 2d 808: “[1] §12123 GC (117 Ohio Laws, 808), relating to the duties and obligations of an adjudged reputed father to his illegitimate child, is in derogation of the common law and must be strictly construed, and, there being no mention in this section of the reputed father’s responsibility for the expense incurred in the support of the child from birth to the adjudication establishing the child’s paternity, it is not error for a trial court to refuse to allow any amount for the support of the child during such period.”

It appears to the court that the defendant cannot be made to pay for the support of an illegitimate child until he has been found to be the father of that child. He can only be made to pay for complainant’s support, maintenance and necessary expenses caused by pregnancy and childbirth, together with costs of prosecution and a weekly sum to be paid complainant for support and maintenance of said child from the date he is adjudged to be the father of that child to the time the child becomes eighteen years of age. There is nothing in the statute which provides that he can be made to pay for the child’s support from his or her birth until he is adjudged the father in bastardy proceedings instituted by authority of §§12110 to 12123 inclusive GC. See State ex rel. Beebe v. Cawley, 116 Oh St page 377, 156 N. E. 214; State ex rel. Griffin, v. Zimmerman, 67 Oh Ap 273, 36 N. E. 2d 808.

In the case of State ex rel. Griffin v. Zimmerman, 67 Oh Ap on page 274, 36 N. E. 2d on page 809, the court said:

“The Legislature, when it amended §12123 GC, in January, 1938, did not see fit to insert that the reputed father should support or pay for the support of the child from the date of its birth until the date of the adjudication establishing the paternity.
“We therefore hold that the trial court was correct in not making any allowance for the support of the child from the date of its birth to the date of adjudication of its paternity.”

The law in Ohio is silent as to when an action in bastardy may be commenced or whether it is subject to any Statute of Limitations. This is a mute question in this state. It has been held, however, in Sullivan v. Wilkoff, 63 Oh Ap 269, 26 N. E. 2d 460, in syllabus 2 as follows: “The only action provided by the statutes of Ohio whereby the mother may institute proceedings against the father of an illegitimate child is found in §12110 GC, which action may be maintained only by an unmarried woman.”

Sec. 12110 GC provides that “When an unmarried woman, who has been delivered of or is pregnant with a bastard child, makes a complaint” as provided for in that section the defendant will be brought before the Judge of the Juvenile Court or a Justice of the Peace to answer the complaint.

It does not appear to this Court that the Legislature intended that there should be a limited time within which a putative father could be charged with bastardy under §12110 GC and subsequent sections of the General Code.

It appears to this Court that the prime purpose of the bastardy statutes in the State of Ohio is to determine the paternity of the child so that responsibility for its support and maintenance after that determination has been made may be properly placed. The question of the expenses caused by pregnancy and childbirth and support, maintenance and necessary expenses for the complainant during that period is only secondary. The obligation to pay for the items listed in §12123 GC, including the support and maintenance of the child until he or she shall become eighteen years of age, is not placed and does not begin until the defendant is found to be the father of the illegitimate child.

It is the opinion of this court that, while bastardy proceedings are civil in nature, it was not intended by the legislature that the Statute of Limitations having to do with other civil causes of action, should apply to causes instituted under §12110 GC and that bastardy proceedings may be instituted by authority of §12110 GC at any time an unmarried woman, who has been delivered of or is pregnant with a bastard child makes a complaint in accordance with the provisions of that section. ,

The court is further of the opinion that the plea in abatement, the special demurrer and the motion to quash are not well taken and the same should be denied and overruled.


author: By PHILLIPS, PJ.

text:
    SMITH, Plaintiff-Appellant, v. WARREN (City), Defendant-Appellee.
    Ohio Appeals, Seventh District, Trumbull County.
    No. 1216.
    Decided March 29, 1950.
    Sieman, Sieman & Sieman, Warren, for plaintiff-appellant.
    Mark Williams, City Solicitor, Warren, for defendant-appellee.
   OPINION

By PHILLIPS, PJ.

In this opinion plaintiff-appellant will be called plaintiff, and defendant-appellee will be designated as defendant.

On August 25,1947, and subsequent thereto, plaintiff, a Grade B draftsman in the water department of defendant city, a municipal corporation, sued defendant to recover money deducted and withheld from his salary during the years 1932 through 1938.

Defendant contended inter alia in the court of common pleas,' and contends here, that the statute of limitations began to run against plaintiff’s action from the date that deductions, or withholdings, were made from his salary, of which he had knowledge; that having failed to commence his action within the limits of such statute it has run against him; and by answer generally denied each and every other fact stated, averment made and allegation set forth in plaintiff’s petition.

By reply plaintiff generally denied all affirmative matters alleged in plaintiff’s answer.

The jury returned a verdict for defendant, upon which the trial judge duly entered judgment. Plaintiff appealed from that judgment to this court on questions of law,.and assigns sixteen grounds of error, which with subdivisions total, if we have added correctly, twenty-one assignments of error. Some of such errors will be combined and disposed of as one error.

In April 1932 defendant’s general fund was depleted substantially; but the Department of Water thereof had sufficient money to pay plaintiff’s salary.

In May 1932 plaintiff, and other employees of the Water Department of defendant city, signed an agreement authorizing defendant to deduct one-eighth of their salary each month, and to deposit it to defendant’s general fund, which was done during the years 1932 through 1938.

Plaintiff contends that such deduction was to be made only during the balance of the year 1932, and that by a contemporaneous oral agreement with defendant it was to repay the total amount of such deduction “when the period of financial stringency of the City of Warren, and its general fund, was removed,” which defendant denies.

Both parties introduced evidence in an attempt to support their contentions and allegations of their respective pleadings, which evidence it is not necessary to recite in detail. Reference thereto will be made only as it is essential to do so to dispose of the assignments of error and understand the questions presented for our consideration and determination.

By his second assignment of error plaintiff contends that the trial judge erred to his prejudice “in permitting ordinances and evidence pertaining to wage cuts of other, city department employees and elected officials”; and “in permitting the defendant’s witness tp state that a certain ‘plan’ was entered into between the city and the employees and in reference to ‘whether the city employees expected to be repaid.’ ”

The evidence with reference to this assigned ground of error is voluminous, and the argument of plaintiff’s counsel lengthy. We cannot make any reference thereto and keep the length of this opinion within reasonable bounds, which we are determined to do though disposing of twenty-one assigned grounds of error; and which opinion would not be written were it not that counsel for plaintiff insist that an opinion be written in tills case, and that each of their numerous assigned grounds of error, be answered. We content ourselves with the terse statement that we find no error prejudicial to plaintiff in the introduction of the evidence of which he complains in this assigned ground of error.

In his third assignment of error plaintiff contends:—

“The defendant purposely made reference to the alleged, fact that breadlines were in existence in 1932, and that W. P. A. was in effect,' which had no bearing whatsoever upon the issues in the case, but was merely injected to prejudice the jury, and attempt to have them recollect bad times and thereby create a ‘fog’ as to the issues in the instant case. (R. 96 & R. 227).
“Counsel for defendant likewise was permitted to inject into the case that the refund given in the year 1934 of the wages that were withheld from the employees, by an ordinance passed by the City, was a Christmas gift,- there being no evidence in support thereof, and no theory in which such question or answer was material.
“This was purely injected for prejudicial purposes.”

Having studied this assigned ground of error carefully we conclude that we cannot reverse the judgment of the trial judge for that reason on the grounds assigned by plaintiff’s counsel.

The trial judge permitted defendant to introduce evidence that the parking meter fund was abolished in 1948. Plaintiff contends that the introduction of this evidence was prejudicial to him, and constituted reversible error since it concerned a matter which happened after he filed his lawsuit in 1947; and “could only accomplish prejudice by attempting to create an inference that money never was transferred from the parking meter fund to the general fund for city use.”

The trial judge did not err to plaintiff’s prejudice as charged in this assigned ground of error.

Plaintiff argues by brief:—

“The defendant’s attorney attempted to bring to the attention of the jury alleged statements that the plaintiff was called for jury duty for his own case; that he truely was a resident of Columbus, Ohio at the time, all of which was used for prejudicial purposes to attempt to create in the minds of the jury that the plaintiff wasn’t a resident of the county, tried to be a juror in his own case, with the attempted inference that the plaintiff was careless with the truth. This error was very prejudicial to the rights of the plaintiff, since it may have created a doubt in their minds of the truth and veracity of his testimony. This testimony had no place whatsoever in the lawsuit and we cannot speculate as to what effect it had upon the jury, except that we can presume that it had an adverse effect. Naturally, the evidence clearly showed that such allegations set up by the defendant were not true, but the impressions created by the defendant’s evidence still lingered in the minds of the jury and prejudiced him. (R. 240, 242, 337, 338, 339).”

We find no error in plaintiff’s fifth assignment of error prejudicial to plaintiff in the introduction of such testimony.

In his sixth assignment of error plaintiff contends:—

“The court erred in R. 303 in permitting the introduction of indiscriminate records covering the financial transactions of all of the departments of the city without restricting said exhibits to the facts pertinent to the Water Department claim, the introduction of such exhibits created confusion and misled the jury.”

We find no merit in this assignment of error.

Just as plaintiff claims he was prejudiced by the introduction of evidence, so he claims he was prevented “from having a fair and complete trial” by the exclusion of evidence he offered concerning the bonded indebtedness of defendant city from 1932 to 1943 as bearing upon the .close of its “financial stringency”; and evidence with “reference to the balances in the general fund and transfers from other funds of the city through the period subsequent to the year 1944,” for the purpose of “reflecting when the financial stringency of the city had passed (R. 160 and 161).”

Likewise, under this assignment of error, he contends that the trial, judge erred to his prejudice “as to the understanding that the money was to be repaid”; for the reason that “if the plaintiff signed the assignment relying upon the contemporaneous promises that he was to be repaid money deducted, he should be permitted to state what his understanding was when he signed the paper, and depriving him of this right prejudiced him in an integral part of the lawsuit.”

In support of this assignment of error plaintiff argues that the trial judge erred to his prejudice in rejecting his “testimony that'he did not sign the assignment voluntarily”; for the reason that “since it was brought out by the plaintiff in evidence, and alleged by the plaintiff that coercion and duress, at least of a constructive nature, was exercised to obtain withholdings of the plaintiff’s salary, evidence as to whether or not such instrument was signed voluntarily, or involuntarily is vital to the issues of this case and should have been submitted to the jury.”

The evidence upon which this assignment of error is bottomed, like the evidence- on all of the other assigned grounds of error, is so voluminous that we can not make reference to it other than that made supra, and control the length oí this opinion. We conclude that the trial judge did not err to plaintiff’s prejudice as urged in this assigned ground of error.

Plaintiff contends in his eighth assigned ground of error that “the contract of the parties was comprised both of written and oral agreements”; and that the trial judge erred to his prejudice in permitting defendant “throughout the lawsuit to confine the contract between the plaintiff and defendant to merely the alleged written assignment, known as defendant’s Exhibit A, which covered the period of May 1, 1932; through January 1, 1933,” when “the evidence discloses, however, that the real contract between the parties covered the period of May 1932 through the year 1937.”

The law governing this assignment of error is settled, and well known, making a re-announcement thereof unnecessary. The evidence is such as to lead us to conclude that the trial judge did not err to plaintiff’s prejudice in the respects urged in this assignment of error.

In his ninth assignment of error plaintiff says:—

“The words ‘do hereby give, assign, transfer and deliver,’ contained in the purported assignment, defendant’s Exhibit ‘A,’ do not constitute a bar to a recovery by the plaintiff, and when considered in the light of the contemporaneous oral agreements, representation, promises and understandings that the deductions would be repaid, and the subsequent ordinance actually repaying a portion thereof, definitely show that a loan with expectation of repayment, rather than an outright gift, was contemplated, intended and consummated.”

With reference to this assignment of error his counsel argues:—

“The City, in its Exhibit A, covering the period of time limited to May 1, 1932 through January 1, 1933, made mention of the word ‘gift,’ in such assignment, and throughout the trial, the defendant contended that if that were true, the plaintiff was not entitled to recovery. Upon considering the evidence, the fact remains that when the Exhibit A, ‘the alleged assignment,’ was signed, contemporaneous thereto, the duly authorized officials, Councilmen and employees as an inducement to obtaining said signatures, represented definitely that the money withheld would be repaid, when the financial stringency of the City was over.
“Therefore, the theory propounded by the defendant that it was a ‘gift’ is inconsistent therewith; the fact that the plaintiff and the employees protested vociferously on many occasions likewise rebutts any inference or contention that an outright gift was made or contemplated.”

It is difficult to be sure what error of the trial judge is claimed by this assignment, but we assume, and will decide accordingly, that it refers to the fact that the trial judge permitted defendant’s Exhibit A to be introduced in evidence, in the introduction of which we find no error.

In his tenth assignment of error plaintiff contends that defendant city could not withhold, nor reduce, his salary with, or without, his consent, except by a duly enacted ordinance, which the evidence discloses was not passed, especially when he was, as the evidence discloses, a civil service employee; and that the act of the defendant city around which the case we review revolves was illegal and against public policy.

As disclosed by the evidence, there is no doubt but that defendant agreed to the deduction from his salary for the purposes stated. Under the law and evidence submitted the number of such deductions, and whether they were to be repaid by the defendant, presented questions for the determination of the jury, with whose verdict we will not interfere. There is no evidence that plaintiff’s salary was reduced, thus making inapplicable his argument that his salary could not be reduced without his consent; and we find no merit in his argument that a portion thereof could not be withheld with his consent.

In his eleventh assigned ground of error plaintiff contends that the trial judge erred to his prejudlice in holding that the six year statute of limitations applied to his action filed in the court of common pleas, for the reason that “the legal principle of equitable estoppel is established and the city is estopped to set up” that defense because of “the promises of the City Council, Mayor, Safety Director, public officers and employees, that the deductions would be paid back when the financial stringency passed”; and because by passing an ordinance authorizing payment of such deductions, some of which were paid thereunder, that defendant city represented that future ordinances would be passed and payments made thereunder.”

There is no error prejudicial to plaintiff in the holding of the trial judge, as urged in this assigned ground of error.

In his twelfth assigned ground of error plaintiff contends that the promises to which reference is made in his eleventh assigned ground of error “stopped the running of the statute of limitations until the time and date when the city was in financial condition to pay the deducted wages,” which he claims was in 1943, and in which we find no merit.'

In his thirteenth assigned ground of error plaintiff argues that the statute of limitations began to run in 1943, because plaintiff was prevented from bringing an action earlier “by reason of lulling him into security by misrepresenting to him that he would be paid when the financial stringency had passed, the city took advantage of the plaintiff thereby and cannot be permitted in court to set up the defense of the statute of limitations.”

■ We find nothing in the evidence submitted to us preventing plaintiff from commencing the action he did commence in the court of common pleas at a date earlier than he did. We find absolutely no foundation for the statement that he was lulled “into security by misrepresenting to him that he would be paid when the financial stringency had passed”; and that “the city took advantage of the plaintiff thereby, and cannot be permitted in court to set up the defense of the statute of limitations.”

By assignment of error fourteen plaintiff contends that the “acts of city officials, employees and council created an implied contract, and acts of city officials, employees and council were ratified by the passing of ordinance number 2715, representing two weeks salary”; and that the city is liable under implied contract “and ratified the acts of its officials, employees and council.” (

The evidence discloses that council of defendant city by such ordinance numbered 2715 paid to plaintiff a portion of his withheld salary. Plaintiff contends “the city and council by said act by passing said resolution and ordinance acknowledged and recognized the fact that the city was obligated to repay a portion of the salary deducted and implied by said act that further ordinances would be passed in the future to refund further sums of money withheld and deducted from the plaintiff’s salary.” We find no merit in this assigned ground of error.

We will not attempt to enumerate the numerous respects in which plaintiff contends he was prejudiced by the argument of counsel for defendant, which he contends “was calculated to excite passion and prejudice,” except to quote the following excerpt from the argument of plaintiff’s counsel made to the jury:—

“Even though he received 25% deduction, he still was making more money than when the W. P. A. was in existence; and if . you recall the needs of ’32, ’33, the principal Occupation we had was selling apples on the corner. * * *
“And I have no doubt when you go into the jury room you are not going to forget the experience that you had to undergo in 1932, ’33, and those years that were very, very bad years, when conditions were changed by the creation of the W. P. A. * * * That he was getting more money even if he got a 25% reduction, 25% of $170 is about $40; he was still getting more money than" W. P. A. You have a right to recall those times, and I think many of you do; and I think you do, Mr. Brobst, when that particular period was on, if you were driving truck, you know the conditions in existence at that time; you do, Mr. Mowbray. Now all I am asking is to go in and not throw -your experience out of the window; but apply your experience in this particular case as enunciated by different witnesses.

We have considered the contents of the voluminous bill of exceptions submitted to us for review carefully. If we were sure that such argument was not in answer to the argument of plaintiff’s counsel, which is not before us, we might conclude that it was so prejudicial to plaintiff’s rights as w warrant a reversal of the judgment of the trial court. Accordingly, and assuming, as we must in absence of knowledge to the contrary, that the trial judge, who heard the arguments of counsel for the respective parties, and all the testimony, and considered all the evidence introduced, discharged all the duties owed to the respective parties and their counsel, we cannot reverse the judgment of the trial court for any of the reasons urged in this assigned ground of error.

By assignment of error fifteen plaintiff contends that- the trial judge erred to his prejudice in failing and refusing “to read the pleadings to the jury or to define the numerous issues presented thereby” in his general charge to the jury; and to clarify for the benefit of the jury “that deductions made from plaintiff’s pay, without the passage of a salary reducing ordinance, even if attempted as a gift or donation, were contrary to law, contrary to public policy, and invalid at the outset”; in failing “to charge the jury on the issues of duress and coercion charged by plaintiff, and substantiated by the evidence”; by commenting and expressing his opinion on the evidence; by failing to refer to any of the “affirmative defenses set out in plaintiff’s petition and reply”; by confusing and misleading the jury “by unduly emphasizing inadmissible claims in defendant’s” answer and charging “bad law”; by presenting to the jury the question of waiver and relinquishment of plaintiff’s rights by his acts; by refusing to charge the jury that “if the evidence showed a promise by the city to the plaintiff that he would be paid in the future if he forebore suit, that could effect an extension of the Statute of Limitations” to charge “that fraud or duress may be constructive as well as express”; and' to charge the jury “what the rate of interest should be”; and that there are “numerous other errors of omission and commission apparent upon the face of the record in the court’s charge without the necessity of our specifically pointing same out herein.”

Like plaintiff’s counsel, we will not “specifically” state our reasons for concluding that the trial judge did not err to plaintiff’s prejudice in the respects urged in this assignment of erx-or. The well considered-charge speaks for itself.

We have read the voluminous bill of exceptions submitted to us for review, and the verdict of the jury and judgment of the court entered thereon are sustained by sufficient evidence, and are not “contrary to the manifest and greater weight of the evidence.”

Having disposed of plaintiff’s twenty-one assigned grounds of error, and the argument of his counsel contained in his fifty-three page brief and sixteen page reply brief filed in his appeal in this court from the judgment of the trial court entered in a case well tried, and in which the issues were so simple as to make the task of disposing of so many assignments of error not only unnecessary but extremely burdensome, we affirm the judgment of the court of common pleas.

NICHOLS, J, CARPENTER, J, concurs in judgment.


author: By THE COURT.

text:
    JOHNSON, Plaintiff-Appellee, v. BROWN, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4385.
    Decided December 20, 1949.

      Howard H. Gillard, Columbus, for plaintiff-appellee.
    Walter R. Hill, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

Submitted on motion by the plaintiff-appellee seeking an order dismissing the appeal for the reason that the defendant-appellant has failed to file assignment of errors and bill of exceptions within fifty days from the date of filing the notice of appeal on questions of law. The record discloses that the action was one in forcible entry and detention originating in the Municipal Court of Columbus, Ohio; that a judgment was rendered for the plaintiff and appeal on questions of law taken to the Court of Common Pleas. The appeal was dismissed upon motion filed by the plaintiff-appellee for failure to comply with the court rule in that bill of exceptions and assignment of errors were not filed within thirty days from the date of filing notice of appeal. Our appeal is directed to the judgment entry sustaining the appellee’s motion in the Common Pleas Court. A purported assignment of errors has been filed within the time required under Rule VII of this court but all of the error assignments are directed to errors alleged to have been committed in the Municipal Court. None of them are directed to the judgment appealed from and there is nothing in the appellant’s brief which complains of error committed by the Court of Common Pleas. Since none of the errors relate to the order appealed from there is as a matter of fact no assignment of errors which this court can recognize. The motion will therefore be sustained for failure to comply with Rule VII of this court, the fifty day period for such filing having elapsed.

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


author: By CARPENTER, PJ.:

text:
    SKAPURA et, Plaintiffs-Appellees, v. CLEVELAND ELECTRIC ILLUMINATING CO., Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22137.
    Decided April 2, 1950.
    Sindell & Sindell, Hyre & Stevens, Cleveland, for plaintiffsappellees.
    Squire, Sanders & Dempsey, L. L. Towell, Cleveland, for defendant-appellant.
    (CARPENTER, PJ, FESS, J, and CONN, J, of the Sixth District sitting by designation in Eighth District.)
   OPINION

By CARPENTER, PJ.:

In this action the plaintiff, Jane Skapura, and her insurer, recovered a judgment in the Municipal Court of Cleveland against the defendant, The Cleveland Electric Illuminating Company, for damages to her automobile sustained when an automobile owned by the defendant and driven by one of its employees collided with it while it, was stopped at an intersection waiting for a green light.

From that judgment, the defendant took this appeal on questions of law. At the close of all of the evidence, the defendant moved for a directed verdict and judgment. That motion was overruled, as was one for judgment notwithstanding the verdict. The overrulings of these motions are assigned as errors.

The material facts are undisputed, and as was said in Bauman v. Sincavich, 137 Oh St 21:

“The principle of law here involved is well settled and is not disputed by counsel.”

And the question there was the same as here and is'stated:

“Specifically, is there evidence tending to prove that at the time of the collision the driver of the defendant’s delivery truck (here, automobile) was acting within the scope of his employment?”

This was the only fact question on liability submitted to the jury. The answer to that question will have to be found in an extended set of facts as shown by the evidence.

The defendant is a public utility which generates and distributes electricity in the metropolitan area of Cleveland. The meters of its customers, of which there are approximately 372,000 in that area, are read every month. To do this, it employs sixty-three meter readers. The area is divided into 1947 separately numbered areas or reading routes for each of which there is a book. Included in each book is a street .map of the area and the addresses of all of the meters in it.

At the company office each day there is prepared a schedule covering the work for the next meter reading day, of which there are twenty-one in a month: That schedule is posted and it indicates the number of the reading route assigned to each reader for that day. For the outlying areas and those where meters are so far apart that it is not feasible for the reader to walk, five automobiles (coupes) are maintained by the Company.

The defendant has definite rules and a plan of procedure for its readers to follow. Under them, each morning when meters are to be read, the readers assemble at the office and the posted schedule tells each one the area assignd to him. He then gets his book for that area and, unless it is a remote one to which an automobile has been assigned or one nearby that one, the reader of which is assigned to ride with the one assigned to drive an automobile, they are to proceed at once by the most direct public transportation to their respective-areas. (For the expense of transportation, they are reimbursed by the Company.)

The five assigned tó drive automobiles and the five to ride with them are taken to the company, garage where each driver gets the automobile assigned to him and they proceed by the most direct route to their respective areas.

On the morning of the collision, April 28, 1949, reader Arthur Schieman was assigned to an area in the Village of Eastlake, east of Cleveland, and in Lake County, and was one to which an automobile was assigned, and another reader, Erdman, was assigned to ride with him. The Eastlake area was just off from Lake Shore Boulevard, a direct highway from near the garage to the area.

Instead of following that direct route, he digressed from it to East 12th Street and Euclid Avenue, where he picked up two other readers, and then out the Lake Shore Boulevard to a restaurant at East 185th Street, where they stopped for breakfast and picked up a fifth reader and went south on 185th to Euclid Avenue, over two miles, to the area of one of the five, then east on Euclid Avenue to East 222nd Street, the area of another, and north on that street to St. Clair Avenue where the third man was left, then on north to Tracy Avenue where the collision occurred, which was some distance south of Lake Shore Boulevard, his direct route to his assigned area and that of the reader who was assigned to ride with him.

That the collision and resulting damage was caused by the negligence of Schieman is not disputed. He testified that he knew the company rules and that he was supposed to travel by the Boulevard and not to carry any one other than the reader assigned to ride with him. A few days later, for this violation of rules, he was discharged from company service.

In 1913, when the automobile was a new vehicle in our highways, the Supreme Court in syllabus 1 of The White Oak Coal Co. v. Rivoux, Admr. 88 Oh St 18, laid down the general principle that has ruled cases like this, as follows:

“The owner of an automobile is not liable in .an action for damages for injuries to or death of a third person caused by the negligence of an employee in the operation of the automobile, unless it is proven that the employee, at the time was engaged upon his employer’s business, and acting within the scope of his employment.”

In Bauman v. Sincavich, 137 Oh St 21, an employee on a delivery route for the employer digressed to accommodate friends without the consent of the employer.- As in this case, the trial court submitted the employment question, and a verdict for plaintiff was returned. That judgment was reversed and final judgment for defendant entered. In that case it was urged that some remote benefit resulted to the employer by the digression to accommodate the friends of the employee.

So in the case at bar, it is now contended, first, that it was not a digression in that Schieman’s area could be reached by going out Euclid Avenue. Whether it could or not is immaterial, he did not stay on that street. When the accident happened he was returning to the prescribed route, the Boulevard.

The main contention of plaintiff is that the digression was in furtherance of the defendant’s business in transporting three of its readers to their reading routes. The evidence does not show how it benefited the employer, either by saving time for its employees or money for their transportation. The inference seems obvious that it was for the accommodation of the friends of Schieman, and perhaps for some social pleasures that were theirs in having breakfast together and the ride.

It is not contended that the conduct of Schieman was not in violation of company rules. With a business as large and intricate as that of the defendant, even in the process of the reading of meters by sixty-three readers, it is obvious that reasonable rules are necessary.

Employee Schieman, at the time and place of the collision, was not “operating the automobile on the defendant’s business, and was not acting within the scope of his employment.”

For these reasons, the motion for a directed verdict made at the close of the evidence should have been granted, and, that not having been done, the motion for judgment notwithstanding the verdict should have been. For these errors, the judgment will be reversed and final judgment entered for the defendant.

Reversed and final judgment. Exc. Order See Journal.

FESS and CONN, JJ, concur.


text:
    SCHENCK, Plaintiff-Appellant, v. UNION SERVICE CORPORATION et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4288.
    Decided May 12, 1949.
    Russ Bothwell, Columbus, for plaintiff-appellant.
    Collis Gundy Lane, Columbus, for defendants-appellees.
   OPINION

By THE COURT.

Submitted on motion by the defendants-appellees, Michael Lenyo and Robert Poxon, seeking an order dismissing the appeal for the reason that the order appealed from is not a final order as defined by §12223-2 GC.

The record discloses that the order appealed from is one sustaining the motions of the two defendants Lenyo and Poxon to quash the service of summons because of irregularity of process and not attacking the jurisdiction of the court. No final judgment has been entered.

We are of the opinion that this is not a final order as defined by the statute. The appellant is relying upon the case of Uthoff v. DuBrie, 62 Oh Ap 285, but this case is not on all fours with the case at bar, for there the service was attacked on jurisdictional grounds. See Carr v. Marion Masonic Temple Co., 67 Oh Ap 521; Jones v. Bontempo, 28 Abs 356.

The motion will be sustained.

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


author: By DOYLE, J:

text:
    BINGHAM, Estate of, in re: DEPARTMENT OF TAXATION, Plaintiff-Appellee, v. NATIONAL CITY BANK OF CLEVELAND et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22087.
    Decided April 30, 1951.
    C. Wm. O’Neill, Atty. Geni., W. E. Herron, J. M. Burtch, Jr., Asst. Attys. Geni., Columbus, for plaintiff-appellee.
    Thompson, Hiñe & Flory, Cleveland, for defendant-appellants.
    (DOYLE, J, of the Ninth District, sitting by designation.)
   OPINION

By DOYLE, J:

The appellants, Executors of the Estate of Robert F. Bingham, deceased, are before this Court on appeal from the Probate Court of Cuyahoga County, challenging and excepting to that Court’s order that under the Ohio law a taxable succession passed from the decedent to his life insurance beneficiaries.

Appellants’ testator died on September 5, 1947.' Included in the net estate subject to federal estate tax were life insurance proceeds payable at death in the amount of $125,309.16. This amount was payable in the sum of $39,330.45 to the decedent’s widow, and the remainder, in the quantity of $85,978.71, to the National. City Bank of Cleveland, trustee of an inter vivos life insurance trust, of which the decedent was the settlor. The total amount of the net estate subject to Federal estate tax before deduction of specific exemptions amounted to $257,910.58. The Federal tax was calculated to be in the sum of $47,483.31, and this entire amount was paid by the Executors from the residuary estate in Probate, in compliance with instructions in Item I of the decedent’s will.

We think it proper to here, insert Item I of the will because the Executors’ adherence to directions therein - contained, and the payment of the Federal tax by the Executors out of the funds of the estate, on the items of insurance, to specific beneficiaries (not the estate) create the controversial matters before us.

“Item I. * * * I further direct that my executors pay out of the principal of my estate, as a general charge thereon, all estate, inheritance and transfer taxes which may be assessed by reason of my death, regardless of whether assessed against my executors or against any other person, including interest- and penalties accruing on all such taxes, if any. No person shall be required to reimburse my estate for any part of any payment made hereunder, nor shall the funds or property receivable or received by any person, other than the residuary distributions hereunder, be reduced by reason of any such payment.”

The Executors, in compliance with the testamentary instructions, did not seek reimbursement from the life insurance beneficiaries for the Federal taxes paid by them, as would have been their right in the absence of such testamentary language. On this subject, paragraph (c) of Sec. 826 of the Internal Revenue Code under the general heading of “Collection of Unpaid Tax” is of importance. It is:

“(c) Liability of life insurance beneficiaries. Unless the decedent directs otherwise in his will, if any part of the gross estate upon which tax has been paid consists of proceeds of policies of insurance upon the life of decedent receivable by a beneficiary other than the executor, the executor shall be entitled to recover from such beneficiary such portion of the total tax paid as the proceeds of such policies bear to the sum of the net estate and the amount of exemption allowed in computing the net estate, determined under section 935(c). If there is more than one such beneficiary the executor shall be entitled to recover from such beneficiaries in the same ratio.” (Emphasis ours.)

From what has been said thus far, it becomes apparent that the residuary estate is lesser in amount than it would have been, had the executors, in the absence of testamentary provision, proceeded against the life insurance beneficiaries under Sec. 826 (c) of the Internal Revenue Code, supra, to recover a portion of the total Federal tax paid by them.

We agree with the conclusion of the Probate Court that “the full amount of the Federal estate tax should be deducted” in determining the value of the succession “when the executors are precluded from recovering any portion of the Federal estate tax from the life insurance beneficiaries.” It was clearly the intention of the testator that Federal taxes, including those on life insurance policies not payable to his estate, be paid out of the assets of his estate.

“The Ohio state inheritance tax is a succession tax on the beneficial interest of each heir, legatee, devisee, or other beneficiary of a decedent’s estate, and in determining the value of the succession of any such beneficiary the amount of the Federal estate tax should first be deducted, like other debts and expenses of administration.” Tax Comm. ex rel et al, v. Lamprecht, Admr., 107 Oh St 535.

It is the contention of the Department of Taxation of Ohio that, because of the payment made by the executors under Item I of the will, a taxable succession passed from the decedent to the insurance beneficiaries in an amount equal to the paid Federal estate tax which was attributable to such insurance proceeds and upon which pro rata share the said beneficiaries were relieved from payment into the decedent’s estate. The Probate Court upheld this view and assessed a tax against' the beneficiaries. The issue before us is thus created by the Executors in their claim that the law does not. include the amount paid by the executors for the benefit of the beneficiaries as a “succession,” for tax purposes, to the said beneficiaries.

Under the title “Inheritance Tax” in the General Code of Ohio are the following pertinent provisions:

“Sec. 5332 GC. Property on which tax levied. A tax is hereby levied upon the succession to any property passing, in trust or otherwise, to or for the use of a person, institution or corporation, in the following cases: 1. When the succession is by will or by the intestate laws of this state from a person who was a resident of this state at the time of his death. * * * Such tax shall be upon the excess of the actual market value of such property over and above the exemptions made and at the rates prescribed * * *.
“Sec. 5331 GC. Definitions of terms * * *. 1. The words ‘estate’ and ‘property’ include everything capable of ownership, or any interest therein or income therefrom, whether tangible or intangible, and, except as to real estate, whether within or without this state, which' passes to any one person, institution or corporation,’ from any one person whether by a single succession or not. 2. ‘Succession’ means the passing of property in possession or enjoyment, present or future.
“Sec. 5332-4 GC. Life Insurance policies exempt. Proceeds of policies of life insurance payable on the death of the insured otherwise than to the estate of the insured, shall not be considered as property passing within the meaning of §5332 GC, whether paid directly by the insurer to the beneficiaries designated in such policies or to a trustee designated therein, and to be held and managed by such trustee and distributed to designated beneficiaries under an agreement or declaration of trust in the manner as may have been prescribed by the insured in said agreement or declaration of trust.”

The Department of Taxation asserts in argument that “the decedent during his lifetime had a right to and did direct how his estate should be distributed, and, by exercising his prerogative under Sec. 826 (c), directing that the estate should not recover monies paid for Federal taxes for life insurance beneficiaries, he in effect said that the life insurance beneficiaries shall receive an amount equal to what they would have been compelled to reimburse the estate and that the residuary shall be decreased by that amount. Thus, the decedent had an interest in the right of his estate to proceed against the life insurance beneficiaries, and, by cutting off that right, changed the distribution of his estate.”

We are told, in Tax Commission etc., v. Lamprecht, Admr., supra (at p. 544),

“that the Ohio inheritance tax is a tax upon the right to receive property from the estate of a decedent. The technical language of the act above quoted taxes the ‘succession’ which by the statutory definition means ‘the passing of property.’ ”

We also observe that under §5332-4 GC supra that

“the proceeds of policies of life insurance” under these circumstances “shall not be considered as property passing within the meaning of §5332 GC.”

As above noted, the tax is not imposed upon the property passing, nor upon the right to transmit property, but is a tax upon the right to receive property. But by specific pronouncement of the Ohio statute, these insurance proceeds are not property subject to a succession tax, and the beneficiaries are accorded the right, without tax, to receive the .proceeds from the policies undiminished.

The Department, of Taxation says, yes, this is so, but when the executor paid your tax to the federal government with the right to contribution denied the executor by testamentary instruction^, this in effect constituted a passing of property; therefore, you must now pay for the right to receive the insurance funds undiminished, although the Ohio statute says such funds are not property within the purview of the succession tax law.

Where shall we find the law which we must embody in our judgment?

• In many cases the rule which fits the case may be supplied by the statutes, and the ascertainment of the intention of the legislature becomes a question of interpretation. The dif.ficulties of so-called interpretation arise, however, when the question, which is raised on the statute never occurred to the legislature. Does it become the duty of a court to guess what a legislature would have intended on a point not present to its mind, if such point had been present?

The members of this Court are not inclined to indulge in judicial legislation on this question of taxation. It is possible that, had the point been made during legislative discussion, an exception would have been written into §5332-4 GC supra, entitled “Life Insurance Policies Exempt.”

We find no property interest possessed by the testator in his life-time in a statutory right which passed to his , life insurance beneficiaries under the will. The case before us is not analogous to the forgiveness of a debt by the testator. There is a property interest in a debt which becomes an asset of an estate at death, and if this asset is bequeathed to the debtor, it follows, of course, that there is a testamentary .passing of the property.

We are in accord with the statement of the appellant that “although a benefit does accrue to the beneficiary, it is not a property interest held by the decedent which passes to the beneficiary, but a benefit which arises from the exercise of a statutory privilege by a testator in his will.”

The judgment will be reversed and final judgment entered for the defendants appellants. Exe. Order see journal.

SKEEL, PJ, HURD, J, concur.