author: By BRYANT, PJ. By FESS, J.

text:
    KARUN, d. b. a. FRANK’S CAFE, Appellant, v. STATE, DEPARTMENT OF LIQUOR CONTROL, Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6012.
    Decided April 14, 1959.
    H. David Lefkowitz, Cleveland, for appellant.
    Mark McElroy, Atty. Geni., John A. Hoskins, Asst. Atty. Geni., Columbus, for appellee.
    (FESS, J, of the Sixth District, sitting by designation in the Tenth District.)
   OPINION

By BRYANT, PJ.

This is an appeal on questions of law from a decision of the Common Pleas Court of Franklin County, Ohio. That court, in an opinion by Sater, J., found that the order of the Board of Liquor Control revoking the three permits held by Karun, was supported by reliable, probative and substantial evidence and was in accordance with law and should be affirmed.

The charges by the Department of Liquor Control against Karun are as follows:

“Violation No. 1 — On Sunday, July 7, 1957, you and/or your agent or employee, did sell in and upon the permit premises, intoxicating liquor, to-wit, whiskey — in violation of the provisions of the Liquor Control Act and the regulations of the Board of Liquor Control.
“Violation No. 2 — On or about July 12, 1957, you and/or your agent or employee, did have, keep, possess, and did sell, in and upon the permit premises, spirituous liquor, to-wit, whiskey while you were not the holder of a proper permit — in violation of the provisions of the Liquor Control Act and the regulations of the Board of Liquor Control.”

The above language and other pertinent data including the fact that the hearing would be held on August 15, 1957, in the Cleveland City Hall were served on Karun in a written notice of hearing. At the time appointed for the hearing, Karun was present. He was accompanied by an attorney at law. When Karun’s case was called, the two violations or charges were read aloud to him after which they were again referred to by an assistant attorney general by a descriptive title, one being called, “Sunday sale of whiskey,” and the other, “illegal sale of whiskey,” both occurring on the premises of the permit holder, who was not authorized to sell whiskey at any time.

Under the above circumstances a plea of guilty was entered and no evidence was presented by either side.

As we have indicated, the Common Pleas Court, upon appeal, affirmed the order of the Board of Liquor Control and five errors are assigned in the appeal to this court. The first assignment of error contends the Board’s order “is not supported by the proper weight of the evidence and is against the manifest weight of the evidence.” In this case neither the prosecution nor the defense offered any evidence whatsoever, but instead the permit holder entered a plea of guilty. This he had an unquestioned right to do.

Karun, after the decision revoking his permits was announced, filed an affidavit saying he never had any formal education 'and did not fully understand the nature of the hearing held in his case. Lack of formal education might indicate inability to read and write but in this particular case Karun appeared with an attorney at law of his own choosing who undoubtedly was capable of reading and explaining the charges to him. Further, the record shows that charges were read aloud to him on the day of the hearing before he was asked to enter his plea. Certainly it is not contended that he does not know the difference between Sunday, July 7, 1957 and July 12. 1957.

Under the circumstances present in this case, we are unable to find that the court below committed error in its determination as to the sufficiency of the evidence and the first assignment of error must be overruled.

The second assignment of error alleges abuse of discretion by the Board of Liquor Control in revoking the C-2, D-l and D-2 permits held by Karun “in view of the evidence submitted.”

We have heretofore pointed out there was a guilty plea which takes the place of evidence and no further comment on that subject is required. The question remaining is whether or not there was an abuse of discretion on the part of the Board of Liquor Control revoking the three permits issued to Karun.

The C-2 permit, one of two so-called carry-out types of permit, authorized the sale of the so-called high-power beer, wine and “prepared and bottled highballs, cocktails, * * *.”

Karun’s D-l permit authorized the sale of the so-called low-power beer, either for consumption on the premises or to be carried out. His D-2 permit authorized the sale for consumption on the premises of the so-called high-power beer, wine and “prepared and bottled highballs, cocktails, * * It also authorized the sale of such beverages for consumption off the premises. None of the permits held by Karun authorized him to sell whiskey.

Regulation No. 55 of the Board of Liquor Control mentioned in the hearing notice sent to Karun reads as follows:

“No holder of a permit authorizing only the sale of beer, malt liquor, mixed beverages or wine shall have, keep or possess any spirituous liquor upon said permit premises; nor allow any employee, or any patron or other person so to do, for personal use, or for any other purpose whatsoever.”

Pertinent to this point is the comment of Sater, J., in his decision of July 10, 1958, the second paragraph of which is as follows:

“The plea or guilty is sufficient to warrant the Board’s findings. Neither the motion to rehear nor appellant’s brief on appeal supplies any reason to change in anywise the Board’s findings (Wallace v. Board, L. C. R., 1037) or penalty. Nor is the penalty harsh or an abuse of discretion because, if for no other reason, the holder of these permits has twice before suffered suspension for similar if not identical violations.” (Emphasis added.)

Under these circumstances we are unable to say that the action of the court below was erroneous. The second assignment of error must be overruled.

The third assignment of error is based upon the admission of evidence allegedly inconsistent with the charges. In view of the fact that Karun pleaded guilty to both charges, no further discussion of this alleged error is needed and it must be overruled.

The fourth assignment of error relates to the refusal of the Board to grant a rehearing. This is based upon the alleged failure to follow the provisions of Regulation No. 61 of the Board of Liquor Control. It has to do with the serving of a written violation notice upon permit holders found to have violated a law or regulation by investigators of the Department of Liquor Control “upon completion” of the investigation. It also provides for the showing of credentials of the investigator to the permit holder at the time.

In the brief on behalf of Karun fiiled in this court there is a typewritten copy of what is claimed to be a violation notice left with Karun which is alleged to be defective or insufficient.

We have examined the record furnished by the Board of Liquor Control relating to the proceedings and testimony before it. Nowhere in said record do we find any evidence relating to what was or was not contained in the violation notice. We can not, of course, pass upon evidentiary matters not appearing in the record. We are forced to overrule the fourth assignment of error because there is no evidence as to it in the record.

The fifth assignment of error is for other alleged errors but as they are not pointed out, this assignment of error is not well taken and also must be overruled.

For the reasons above set forth the several assignments of error and each of them must be overruled. The judgment of the court below is hereby affirmed.

DUFFY and FESS, JJ, concur.

CONCURRING OPINION

By FESS, J.

The Common Pleas Court upon review of the record found the order of the Department of Liquor Control to be supported by reliable, probative and substantial evidence and to be in accordance with law. Upon this appeal from the judgment of the common pleas court, this court is limited in its review to a determination of the correctness of that judgment, i. e., that the order is supported by reliable, probative and substantial evidence and in accordance with law. Finding no error in the proceedings and judgment of the common pleas court, it is our duty to affirm such judgment, and in my opinion it is unnecessary for this court to consider or determine such matters as the extent of the penalty imposed upon the appellant, his alleged right to a rehearing, or other so-called assignment of errors filed in the common pleas court and refiled in this court. Cf. Delmonte Cafe, Inc. v. Department of Liquor Control, 74 Abs 459, and next to last paragraph of §119.12 R. C.

I therefore concur in the judgment of affirmance.


source: Caselaw Access Project

author: By DUFFY, J. By BRYANT, PJ. By FESS, J.

license: Public Domain

text:
    BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF CINCINNATI, Plaintiff-Appellant, v. RHODES, State Auditor, et, Defendants-Appellees.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6009.
    Decided June 9, 1959.
    James W. Farrell, Jr., City Solicitor, Wallace M. Power, Chief Counsel, Cincinnati, for plaintiff-appellant.
    Mark McElroy, Atty. Geni., Joseph S. Gill, Special Counsel, Columbus, for defendant-appellee School Employees Retirement Board.
    (FESS, J, of the Sixth District, sitting by designation in the Tenth District.)
   OPINION

By DUFFY, J.

Plaintiff-appellant filed a petition for a declaratory judgment asking the Common Pleas Court of Franklin County to decide whether certain dus drivers who drive buses under contracts with the Board of Education of their city are employees of the Board of Education within the meaning of the term as used in §3309.01 R. C. The matter was submitted to a judge of the Common Pleas Court on an agreed statement of fact, and it was decided by that court that the bus drivers were emyployees of the Board of Education, making the Board liable for certain payments to the School Employees Retirement System. From that decision the school board has appealed to this court.

The plaintiff-appellant states that the local school board enters into contracts with contract haulers for the transportation of children to its many schools. These contracts fall into three different categories: (1) the school board contracts with a corporation where several buses are used for the transportation of children; (2) the school board contracts with an individual who furnishes two or more buses for transportation; and (3) one contract is with an individual who furnishes one bus and one driver.

The specific question asked by the plaintiff-appellant is, are the drivers of these buses, furnished under contract with the contract haulers, employees within the meaning of §3309.01 (B) R. C., which section read as follows:

“(B) ‘Employee’ means any person regularly employed in the public schools of the state who is not a teacher as defined in division (A) of §3319.09 R. C.; and any person, not a faculty member, regularly employed in any school or college or other institution wholly controlled and managed, and wholly or partly supported by the state or any subdivision thereof, the board of trustees or other managing body of which shall accept the requirements and obligations of §§3309.01 to 3309.68 inclusive, R. C. In all cases of doubt the school employees retirement board shall- determine whether any person is an employee, as defined in this division, and its decision shall be final. No employee shall be excluded from membership in the school employees retirement system because of membership in any other state retirement system established under the laws of this state unless such employee is receiving a disability allowance from such other retirement system.”

The parties are in agreement that on December 17, 1948, the Retirement Board declared that after July 1, 1949, all of the contract drivers would be considered as employees for Retirement Board purposes.

The Attorney General of Ohio (in his Opinion No. 1371 of the Opinions of the Attorney General for 1937, Page 2309) advised the Retirement Board that the eligibility of the drivers for membership in the system depended upon whether they were “subject to the orders, control and supervision of the board of education as to the mode and manner of performing the work.”

The Ohio courts have many times stated the test to be applied in determining whether or not an individual is an employee of a named employer. See Gillum v. Industrial Commission of Ohio, 141 Oh St 373; Councell v. Douglas, 163 Oh St 292; and Bobik v. Industrial Commission, 146 Oh St 187. It is apparent from those cases that the principal test to apply in determining whether or not an employer-employee relationship exists is the reservation of the right to control the manner or means of doing the work by the person or company for whom the service is being performed. See also the discussion in Snyder, Admrx., v. The American Cigar Company, 22 C. C. (N. S.), 45, and Ohio Bell Telephone Company v. Ray, 19 Abs 294. It is apparent from these cases that it is possible for one who is in the general employ of one person to become, by a sort of adoption, the employee also of another.

From the copies of contracts entered as exhibits, along with the agreed statement of fact, it is apparent that the exact routing of the school buses was a decision for the principal of the school to make, and the routing always remained subject to any changes desired by the school board or principal of the school, which changes had only “to best serve the children.” The drivers also agreed to observe carefully all standards required by statute or regulations for drivers.

Sec. 3327.01 R. C., and subsequent sections in that chapter refer to school boards and the drivers of buses transporting pupils to and from school. From these sections it is apparent that it is the duty of the board to designate certain places as depots from which to gather children and to adopt and put in force a time schedule on which the buses shall be run. The school bus drivers must also be certified by the school board as to age, good moral character, and physical fitness for such a position

The control which the boards of education, by law and regulations, exert over the drivers of the school buses appears to control the manner and mode of transporting the children to and from school so as to make the relationship between the board and the drivers an employer-employee relationship.

The finding of the lower Court that the school bus drivers were employees within the meaning of §3309,01 (B) R. C., was correct, and the judgment should be affirmed.

BRYANT, PJ, concurs.

FESS, J, dissents.

CONCURRING OPINION

By BRYANT, PJ.

As we see it, the judgment of the Franklin County Common Pleas Court was correct and must be affirmed. In addition to the arguments based upon what appears to us to be the agreed and actual control down to the smallest detail of the manner and means of executing such contracts, there is the express, clear and unambiguous definition of what is a “school employee” in §3399.01 (B) R. C., which on November 27, 1956, when the petition was filed, read in part as follows:

“(B) ‘Employee’ means any person regularly employed in the public schools of the state who is not a teacher * * *. In all cases of doubt the school employees retirement board shall determine whether any person is an employee, as defined in this division, and its decision shall be final. * * *” (Emphasis added.)

We have not been able to find,.nor has it been pointed out to us, where there is any substantial difference, so far as this question is concerned, in the language used in the amended form of said §3399.01 supra. R. C. As amended effective September 16, 1957, 127 Ohio Laws 299 at page 336, this section in part now reads as follows:

“(B) ‘Employee’ means any person employed in the public schools of the state in a position for which he is not required to have a certificate (as teacher) issued pursuant to §§3319.22 to 3319.31 R. C. * * *. In all cases of doubt the school employees retirement board shall determine whether any person is an employee, as defined in this division, and its decision shall be final. * * *” (Words in parenthesis added.)

Here the state legislature has provided a definition and has granted authority in the first instance to the school employees retirement board to make a determination in all cases of doubt, it is further provided that decisions of the said board shall be final.

As we see it the legislature had full power and authority to impose these conditions involving as they do the expenditure of public funds by an agency of the public for a public purpose. As the rule and decision of the said retirement board would appear to apply equally to all school boards and school districts in all parts of the state, it should in our judgment be upheld.

DISSENTING OPINION

By FESS, J.

This is an appeal on questions of law from a judgment entered by the Common Pleas Court in an action for declaratory judgment brought by the plaintiff Board of Education finding in favor of defendants and declaring that drivers of school busses owned and operated by contract carriers are employes of the Plaintiff within the purport and meaning of §3309.01 (B) R. C., and as such required to become members of the School Employees Retirement System, Chapter 3309 R. C.

Chapter 3327 R. C., requires boards of education to provide transportation for pupils to and from school. The provisions of this chapter require the adoption by boards of education of a time schedule incident to the conveyance as well as the designation of depots from which to gather children. Sec. 3327.10 R. C., provides that no person shall be employed as a driver of a school bus who has not given satisfactory and sufficient bond and who has not received a certificate that such person is twenty-one years of age and is of good moral character and is qualified physically and otherwise for such position.

• Provision is made for a physical examination of each driver by the board and the revocation of such certificate for improper conduct or neglect of duty resulting in the termination of such driver’s contract.

Sec. 4511.76 R. C., requires the department of education, by and with the advice and consent of the director of highway safety, to adopt and enforce regulations to govern the operation of all school busses used for the transportation of school children, when owned and operated by any school district or privately owned and operated under contract, which regulations shall by reference be made a part of any such contract.

On the whole, the Regulations are mandatory in character, but many of the provisions are recommendations or suggestions to boards of education and supervisory officials. Such section further provides inter alia that every person employed under contract shall be subject to such regulations and that any person operating a school bus under contract who fails to comply therewith shall be guilty of a breach of contract and that such contract shall be cancelled by the responsible officers of such school district.

For a number of years, boards of education have utilized the services of so-called “contract bus drivers,” who own and operate busses for transportation of pupils under several different types of contract. The bus owner may be a corporation or an individual who owns and operates two or more busses by means of drivers employed therefor, or an individual who owns but one bus but operates it by a driver employed by such owner, or an individual who owns and operates such bus himself.

The provisions of the Code, as well as the safety regulations, apply without distinction to the driver of a school bus employed directly by a Board of Education and to one employed by a contractor. It is to be observed, however, that §4511.76 R. C., recognizes the transportation of pupils by privately-owned and operated busses under contract.

Although the terms of employment between the contractor and bus drivers do not appear in the agreed statement of facts, it is to be inferred that the contractor has the right to hire, fix the wages, hours and other terms of employment, and to discharge his drivers. Upon such hiring, such driver is required to give bond and furnish a certificate of qualification. Upon revocation of his certificate “the said driver’s contract shall be thereby terminated and rendered void.” Presumably the driver’s employment is subject to this provision, but it is to be noted that the driver is not discharged by the board but his contract is can-celled. Upon failure of a contractor to comply with the safety rules and regulations, the contract is likewise cancelled for breach thereof.

Under one of the three contracts introduced as an exhibit in this case, the contractor agrees to render transportation and other services according to the proposal of the Board and specifications attached thereto (which proposal and specifications are not included in the agreed statements of facts) upon the following terms and conditions:

a. In consideration of the sum of $231.00 for each school day, the contractor agrees to furnish and operate at his own expense eleven (11) school busses transporting 250 children, more or less, to and from a certain school building each school day for a period of three school years over routes decided upon by the contractor and the principal of said school, in accordance with, the specifications of the board. “These routes shall serve the entire area of the Cincinnati school district except the areas served by the Mt. Washington and Saylor Park elementary schools.”

b. Provision is made for additional services on the part of the contractor, who also agrees to observe carefully standards for drivers, equipment and operation required by statute or by regulations of legally-constituted authorities which are made part of such contract.

c. The Board reserves the right to change any of the routes or roads or to transfer pupils from one conveyance to another during the period of the contract.

d. Contractor agrees to submit to the clerk of the Board certificates of workmen’s compensation insurance coverage each six (6) months during the contract period.

The second contract appearing as an exhibit provides for the operation of five (5) school busses transporting 265 children living more than two (2) miles from Mt. Washington school in certain specified areas. This contract also provides that the exact mileage and routing within the listed areas are to be subject to the instructions of the principal of the school, to be determined in the best interests of the children to be transported. In somewhat different phraseology, the above provisions of the first contract are included.

The third contract relates to the furnishing of one (1) school bus transporting 20 to 30 children living more than two (2) miles from the Kirby Road school building and its provisions follow substantially those of the second contract. The agreed statement of facts does not disclose whether the contractor drives the bus himself or hires a driver, but presumably this bus is operated by a driver hired by the owner.

The contracts have no default clause nor do they reserve to the school board any right to supervise the actual transportation or to hire or fire drivers. No mention is made in the contracts as to the amount of compensation to be paid drivers.

As heretofore indicated, bus drivers (whether publicly or privately employed) are required to be qualified under §3327.10 R. C. The school board may designate depots and adopt the time schedule. Under the terms of the first contract above referred to, which is the major one involved in this litigation, the routes are decided upon by the contractor and the principal of the school in accordance with the specifications of the board of education. The board is also authorized to procure liability and property damage insurance covering each bus and accident insurance covering all pupils transported under authority of such board. Sec. 3327.09 R. C.

Except as provided by law or the safety regulations, the contractor providing transportation is free to hire, determine the wages, supervise, discipline and discharge his drivers. The contractor, not the board, is also free to assign qualified drivers to particular routes or interchange them. The contractor providing the transportation has supervision over the repair and condition of the busses, is free to purchase any kind of bus complying with the regulations, to purchase his fuel and other supplies on such terms and from such persons as he may desire, and possibly to employ his busses in non-educational transportation.

Thus, in all respects not limited by law, regulations, or his contract, the contractor is independent of the school board.

In a comprehensive opinion rendered the Retirement Board by the Attorney General in 1937 (No. 1371, p. 2309) it was held:

“The eligibility for membership in the State Public School Employes Retirement system, or a school bus driver who owns his own equipment and under contract to transport pupils for a board of education depends wholly upon whether or not the relationship existing between the board of education and the bus driver is that of employer and employe, and can only be determined by the terms and conditions of the specific contract existing between the board of education and the bus driver.
“Where a board of education enters into a contract with a bus driver, whereby the bus driver is to furnish the bus and transport a certain number of pupils to and from school over certain designated routes, such bus driver is an ‘employe,’ and eligible to membership in the State Public School Employes’ Retirement System, if the terms and conditions of the contract are such: that the bus driver can not perform the work of transporting the pupils according to his own ideas, but, is subject to the orders, control and supervision of the board of education as to the mode and manner of performing the work of transporting the pupils; and that, he must submit to, and be guided by, the direction of the board of education as to the details of transporting the pupils and cannot refuse to obey such directions. If, however, the terms and conditions of the contract are such, that the bus driver may, in accordance with the specifications as to route, time and number- of pupils set forth in the contract, perform the work of transporting the pupils and all details thereof, according to his own ideas, without being subject to the orders or control of the board of education as to the mode and manner of transporting the pupils, and the board of education has not reserved any supervision over the bus driver while performing the work, except to ascertain whether or not he is performing the work of transporting the pupils in accordance with the specifications set forth in the contract as to time, number of pupils and route, then said bus driver may be said to be an independent contractor and not eligible to membership in the State Public School Employes’ Retirement System.”

The writer is of the opinion that the rule prescribed by the Attorney General in 1937 is correct and is premised upon sound principles of the law of master and servant. However, it is said in appellees’ brief that the rule proved to be unworkable. “That opinion advised the Retirement Board that contract drivers were members of the system if they were ‘subject to the orders, control and supervision of the board of education as to the mode and manner of performing the work.’ To apply this opinion literally would require the Board to maintain a combination detective agency and law office to investigate the terms of and performance under each contract in the State, and to interpret that conduct in terms of the Attorney General’s opinion.”

“It apparently became clear to the Board after eleven years of observation that all of the contract drivers in question work under the control of boards of education as servants, and that all drivers should be subject to the same rule of membership.” Appellee’s brief.

Sec. 7896-64 GC (§3309.01 R. C.), provides:

“ ‘Employee’ means any person regularly employed in the public schools of the state who is not a teacher * * *. In all cases of doubt the school employees retirement board shall determine whether any person is an employee, as defined in this division, and its decision shall be final.”

Purporting to act pursuant to the statute, the retirement board on December 17, 1948, adopted the following resolution to become effective on July 1, 1949:

“Bus Drivers
“1. The following persons regularly driving vehicles used in the transportation of pupils for a board of education shall be considered as employes under the provisions of §7896-64 GC.;
“a. The driver of a school bus which belongs to the board of education.
“b. The driver of a school bus who has contracted with the board of education to furnish and drive the school bus.
“c. The driver of a school bus owned or controlled by the one who has a contract with the board of education to furnish the bus and driver.”

Paragraph (c) is the provision under attack in the instant case.

Sec. 3309.01 E. C., provides that the decision of the retirement board in all cases of doubt shall be final, but this does not empower such board to make a final determination of the status of an employee contrary to the facts or the law. Nor does the attempted justification of the adoption of a blanket coverage into public employment on the ground of expediency in the performance of administrative duties appeal to the writer. In all cases of doubt, the board is required to determine whether any person is an employee. As the Attorney General properly ruled in 1937. the status of a bus driver can only be determined by the terms and conditions of the specific contract between the board of education and the driver. The retirement board could well adopt a rule incorporating the terms and conditions prescribed by the Attorney General in his 1937 opinion as to the amenability of drivers to the provisions of the retirement act for the guidance of boards of education in complying with such act, but paragraph “c” of the 1948 resolution requires that all bus drivers, regardless of control by their employer or the board of education, become members of the retirement system.

The question whether one is an employee or an independent contractor has been considered in many cases, and various tests have been applied in determining it, although it has been said that it is impossible to lay down a rule by which the status of men working and contracting together can be clearly defined in all cases as employees or independent contractors, for each case must depend on its own facts, and ordinarily no one feature of the relation is determinative, but all must be considered together; and ordinarily it is said to be a question of fact. 42 Corpus Juris Secundum 638, quoted with approval in Bobik v. Industrial Commission, 146 Oh St 187, 192, 64 N. E. (2d), 829.

The fundamental question presented upon this appeal is whether upon this record the driver of a contract bus is actually the employee of the board of education or of the contractor. Whether one is an independent contractor or in service depends upon the facts of each case. The principal test applied to determine the character of the arrangement is that if the employer reserves the right to control the manner or means of doing the work, the relation created is that of master and servant, while if the manner or means of doing the work or job is left to one who is responsible to the employer only for the result, an independent contractor relationship is thereby created. Gillum v. Industrial Commission, 141 Oh St 373, 48 N. E. (2d), 234. Thus, where the owner of a truck contracted to haul a certain lot of logs for a certain price, choosing his own manner and means of accomplishing the result, the reservation of the right by the employer to designate that certain types or sizes of logs be hauled as needed does not in itself make such truck owner a servant for the reason that such right of control relates to the result and not to the manner or means of accomplishing the result. Gillum v. Commission, supra. See also Clark v. Fry, 8 Oh St 358; Pickens & Plummer v. Diecker & Bro., 21 Oh St 212, 215; Hughes v. Railway Company, 39 Oh St 461: Klar v. Erie Rd. Co., 118 Oh St 612, 162 N. E. 793; Industrial Commission v. McAdow, 126 Oh St 198, 184 N. E. 759; Bobik v. Industrial Commission, 146 Oh St 187, 64 N. E. (2d), 829; Ludlow v. Industrial Commission, 235 Pac., 884.

In the opinion in the Gillum case, the court quotes with approval from 1 Restatement of the Law of Agency, Section 2:

“(1) A master is a principal who employs another to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service.
“(2) A servant is a person employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master.
“(3) An independent contractor is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other’s right to control with respect to his physical conduct in the performance of the undertaking.”

The opinion also quotes with approval from 27 American Jurisprudence 488:

“As a practical proposition, every contract for work to be done reserves to the employer a certain degree of control, at least to enable him to see that the contract is performed according to specifications. * * * Thus, a person employed to perform certain work is not necessarily a mere servant because the contract provides that the work shall be subject to the approval or satisfaction of the employer. Such a provision is not an assumption by the employer of the right to control the person employed as to the details or method of doing the work, but is only a provision that the employer may see that the contract is carried out according to the plans.”

In the instant case, the drivers of busses operate under rigid regulations and specifications imposed by law under the supervision of their employer, but there is nothing in the record other than these regulations disclosing that the board of education exercises or has the right to control the physical conduct of the driver.

It is also held that the vital test is the right of control over the work by the employer. Industrial Commission v. Laird, 126 Oh St 617, 186 N. E. 718. The relationship of principal and agent or master and servant is distinguished from the relationship of employer and independent contractor by the following test: Did the employer retain control, or the right to control, the mode and manner of doing the work contracted for? If he did, the relationship is that of principal and agent or master and servant. If he did not but is interested merely in the ultimate result to be accomplished, the relationship is that of employer and independent contractor. Councell v. Douglass, 163 Oh St 292, 126 N. E. (2d), 597, Cf. Van Meter v. Public Utilities Commission of Ohio, 165 Oh St 391, 396-397, 135 N. E. (2d), 848.

Right of control is also an essential factor in determining the status of a loaned servant. When one party loans his servant to another for a particular employment in the business and under the direction of the latter, the servant, for anything done in that employment, must be regarded as the servant of the party to Whom he is loaned, although he remains the general servant of the party who loaned him. Halkias v. Wilkoff Company, 141 Oh St 139, 47 N. E. (2d), 199. But where an employer sends his employes with employers of another employer to perform the work of the employee’s general employer, and where, further, the sole work to be performed by the employee is that of his employer and the only authority of the other’s employees to direct the loaned employee is confined to shov/ing him the work to be done, such employee is not legally under the control and direction of the other employer. Giovinale v. Steel Corporation, 151 Oh St 161, 84 N. E. (2d), 904.

Under the contracts involved in the instant case, the contractor assumed the responsibility of requiring his drivers to comply with the applicable provisions of law and regulations governing the operation of school busses. The record before us for review fails to disclose that the contractors relinquished this responsibility or the right of control incident thereto to the board of education.

Appellees contend that since the resolution of the retirement board was adopted in 1948, it should be sustained under the doctrine of legislative acquiescence. Administrative interpretation of a given law, while not conclusive, is, if long continued, to be reckoned with most seriously and is not to be disregarded and set aside unless judicial construction makes it imperative to do so. Industrial Commission v. Brown, 92 Oh St 309, 311, 110 N. E. 744, 745; State, ex rel. v. Brown, 121 Oh St 73, 166 N. E. 903; State, ex rel. v. Underhill, 141 Oh St 128, 132, 46 N. E. (2d), 861. This principle is applicable in the interpretation and construction of the meaning of doubtful phraseology employed in questioned statutes, but may not be applied toward sustaining an administrative promulgation legislative in character belonging exclusively to the General Assembly. Weber v. Board of Health, 148 Oh St 368, 403, 74 N. E. (2d), 331; Wetterer v. Board of Health, 167 Oh St 127, 146 N. E. (2d), 846. Under the 1948 resolution, the driver of a school bus owned or controlled by the one who has a contract with the board of education to furnish the bus and the driver is amenable to the provisions of the retirement act regardless of whether the board of education controls or has the right to control the physical conduct of such driver incident to the performance of his work.

In the instant case, the retirement board made no actual finding that the appellant Board of Education reserved the right to exercise physical control over the bus drivers, but arbitrarily adopted a general rule that all drivers of school busses owned or controlled by a person who has a contract with the Board of Education to furnish the bus and driver, regardless of whether or not the Board of Education exercised or reserved the right to control the physical conduct of the drivers, were employes of the boards of education.

In my opinion, the judgment of the court of common pleas should be reversed and a final declaratory judgment entered herein for the plaintiff Board of Education.

      . In an opinion rendered in 1945 (No. 425, p. 530) the Attorney General ruled that drivers of school busses who are not employed directly by the board of education but who are furnished by a contractor, are required to give bond but are not required to furnish the qualification certificate under the statute, but that by contract the board may require such certificate.

      . The current regulations adopted pursuant to the provisions of Sec. 4511.76 R. C., deal with the following subjects:
      1. Driver qualification.
      2. Maximum hours of driving.
      3. Traffic law observance.
      4. Designation of all stops by board of education.
      5. Time schedule adopted by board of education.
      6. Accurate time piece.
      7. Detailed safety instructions for loading and unloading.
      8. Load distribution.
      9. Driver’s supervision of pupil conduct and assignment of seats.
      10. Overloading.
      11. Transportation of band instruments and other equipment.
      12. Safety patrols.
      13. Recommendation of use of bus patrol members.
      14. Traffic regulations which appear to apply standards more rigorous . than those provided by statute.
      15. Regulations for extra-curricular or non-routine use of busses.
      16. Bus inspection and driver truancy.

      . In reaching a conclusion that drivers of contract bus operators were employees of the Board of Education, the retirement board, confronted with the problem of determining the amount of contributions to be made by such employee and the board of education, resolved on March 17, 1938, that not over 50% of the contract be considered as personal service salary for contract bus drivers, and also that membership in the retirement system be denied a contract bus driver even though eligible for membership, under Attorney General’s Opinion No. 1371 (1937), if said contractor did not drive a bus. However, on September 23, 1955, a further resolution was adopted providing that personal service salary should not be less than 50% nor in excess of 65% of the total amount paid for each vehicle covered by a contract, and repealed the resolution adopted March 17, 1938. The adoption of this formula has been approved by the Attorney General, 1956 OAG No. 6355, p. 196.

      . The agreed statement of facts does not disclose whether such insurance is carried by the plaintiff in this case. The Attorney General has ruled that a board of education is without authority under Secs. 3327.09 or 3313.201 R. C., to procure insurance against liability on the part of contractors for transporting pupils. OAG 1958, No. 1811.

      . The regulations provide that no per pupil charge may ever be made for transporting in any school bus operating with gratis plates. The regulations also state that contract busses are excluded from interstate trips under ICC Ruling No. 80, Sec. 203 (b).

      . In opinion No. 6355, rendered in 1956, the Attorney General ruled that the retirement board did not exceed its authority in adopting such resolution.

      . For school bus driver cases see also: Arthur v. Marble Rock Dist., 228 N. W. 70; Ludlow v. Industrial Commission, 235 Pac., 884 and Daves v. Hain (Ala. S. C.) 1937, 178 So. 63, reversing C. of A. 178 S. 59, and holding one transporting children to be an independent contractor. Contra: Ridgdell v. Tangipoha Parish Board (La. 1944), 17 So. 2d, 55, affd. 21 So. 2d, 77, wherein driver was directly employed by board of education.

      . There is no substantial variation in the Restatement record, other than the addition to paragraph 3 “He may or may not be an agent.”


author: Per CURIAM.

text:
    RIVERS, Petitioner, v. HOOVER, Judge, Court of Common Pleas, Respondent.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6122.
    Decided April 28, 1959.
    Donald L. Rivers, Columbus, Per se.
   OPINION

Per CURIAM.

On February 24, 1959, Donald L. Rivers, an inmate of the Ohio Penitentiary, filed with this court a paper described by him as a layman’s petition for a writ of mandamus and a motion to vacate judgment in which he asked this court to issue a writ of mandamus to Judge Earl R. Hoover of the Common Pleas Court, Cuyahoga County, Ohio, requiring him to show just cause why a judgment issued in his court on December 22, 1958, against Donald L. Rivers should stand and in which he asked that the judgment be declared void. The petition also asked for a temporary restraining order restraining the plaintiff in the December 22, 1958, action from taking any action upon the judgment rendered against petitioner.

No service was had on the respondent, and this court, on its own motion, is dismissing the petition of Donald L. Rivers for the reason that this court does not have any jurisdiction over the judge or judgments of the Court of Common Pleas of Cuyahoga County and could not consider a mandamus action for the purpose of vacating a Cuyahoga County judgment; nor could this court consider a motion to vacate a judgment of the court of that county. If the plaintiff desires any further action in that case, he should be advised to bring the action in the proper court.

Petition dismissed without prejudice.

BRYANT, PJ, MILLER and DUFFY, JJ, concur.


author: By LEIS, J.:

text:
    OCKRANT et, Plaintiffs, v. RAILWAY SUPPLY & MANUFACTURING CO., and J. ROBERT ORTON, Individually and as Trustee, Defendants.
    Common Pleas Court, Hamilton County.
    No. A-167706.
    Decided July 20, 1959.
    Cohen, Baron, Druffel & Hogan, By Timothy S. Hogan, James Q. Doren, for plaintiffs.
    Frost & Jacobs, By H. J. Siebenthaler, Francis L. Dale, for defendants.
   OPINION

By LEIS, J.:

This matter was brought in the Common Pleas Court of Hamilton County on the Application of William Ockrant and Babette Ockrant for an Order Confirming an Arbitration Award. Subsequently an application was filed by Railway Supply & Manufacturing Company and J. Robert Orton, individually and as Trustee for an Order Modifying, Correcting and/or Vacating said Award.

Thereafter a hearing was held before this Court and the question as to the authority of this Court to hear this application was raised. The sole question before the Court at this time is whether this Court has jurisdiction to proceed in this matter.

Proceedings of this nature are authorized by virtue of Chapter 2711 R. C. The Court will direct its attention to one statute of this chapter. Sec. 2711.08 R. C., provides as follows:

“The award made in an arbitration proceeding must be in writing, must designate the county in which it is made, and must be signed by a majority of the arbitrators. * * *”

According to this statute, three elements must be satisfied:

1. The award must be in writing.

2. The award must designate the county in which it was made.

3. The award must be signed by a majority of the arbitrators.

Turning to the Award of the Arbitrators which is the subject of the action, the Court finds this document as “Exhibit 1” attached to the application of the Ockrants. This document is'dated November 18, 1958, and is signed by two of the three arbitrators. Holding up this document to the requirements of §2711.08 R. C., we find:

1. The award is in writing.

2. The county in which the award is made is not designated.

3. The award is signed by a majority of the arbitrators.

Is the absence of the county designation from this document fatal? The procedure set forth in Chapter 2711 R. C., is a special enactment of the legislature conferring jurisdiction on the Common Pleas Court. Before jurisdiction attaches to a court in an individual case, all statutory requirements must be complied with. The statutory requirements in the instant action have not been complied with; to-wit, there has been a failure to designate the county wherein the award was made.

The language of the statute is clear and mandatory. The three necessary requirements set forth above are lacking. Two are present, one is not. This court cannot waive the third in the light of the statute’s use of the word “must.” If the award were not signed by a majority of the arbitrators this Court could not waive that requirement. Similarly, if the award were not in writing this Court would be powerless to dispense with that essential element. The three requirements are of equal importance. It therefore follows that the failure of any of the requirements of the award would be fatal.

The county designation is necessary to vest jurisdiction in the Common Pleas Court of the county wherein the award was made. That this was the intention of the legislature can be readily seen by §2711.09 R. C.

If the holding to the Court appears harsh, it should be remembered that this Court can not foist jurisdiction on itself. Failure to comply with all conditions precedent to vesting of jurisdiction results in a lack of jurisdiction and all proceedings rendered thereunder are void "ab initio.”

The Court wishes to thank all counsel for the manner in which this matter was presented.

The Motion to Dismiss the Application is well taken and is hereby granted.

Please present your entry accordingly.


author: By HUNSICKER, J.

text:
    NEW AMSTERDAM CASUALTY CO. and AMERICAN MUTUAL LIABILITY INS. CO., Appellees, v. KILROY STRUCTURAL STEEL CO., Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24849.
    Decided July 22, 1959.
    Thompson, Hiñe & Flory, for appellees.
    Arter, Hadden, Wylcoff & Van Duzer, for appellant.
    (Judges of the Ninth District sitting by designation in the Eighth District.)
   OPINION

By HUNSICKER, J.

The appellees, herein called “casualty companies,” issued policies of liability insurance insuring The Upson-Walton Company of Cleveland, Ohio, against bodily injury and property damage liability while they were constructing a new factory.

Upson-Walton Company had a contract with The Leonard H. Krill Company, building contractors, for the construction of an office and factory building. The Leonard H. Krill Company subcontracted the structural steel work to Kilroy Structural Steel Co., the appellant, herein called “Kilroy.” While Kilroy was engaged in erecting the structural steel, one of its employees, a man named Holt, was injured in the course of the construction.

The injury to Holt was caused when a wire with a high voltage of electricity broke and came into contact with him. Holt then sued Upson-Walton Company.

The defense of this suit was tendered to Kilroy by the casualty companies, and Kilroy refused to defend such action. The case of Holt against Upson-Walton was settled by the attorneys for the casualty companies, who took contracts of subrogation in order to proceed against Kilroy.

The present action was instituted against Kilroy to collect the sum paid in settlement to Holt, plus the attorney fees paid by the casualty companies incident to such settlement.

Kilroy, by way of answer, herein admitted all of the material facts, but denied that they were liable under the terms of the contracts of indemnity.

At a hearing in the Common Pleas Court of Cuyahoga County, the trial judge awarded judgment for the full amount sought by the casualty companies. It is from the judgment so entered that an appeal on questions of law is before this court.

The judgment entry, in its pertinent part, reads as follows:

“This matter came on to be heard on the petition'of the plaintiff, the answer of defendant, the reply of plaintiff, and facts agreed to between the parties.”

There is no bill of exceptions herein, and thus we accept the statements set out in the journal entry as having been fully established. We have been favored with an excellent memorandum by the trial judge, filed in the case on December 5, 1958, several weeks before the journal entry of judgment, which was filed for journalization on February 19, 1959.

The controversy herein revolves about the construction of the following portion of the contract of indemnity:

“The subcontractor shall indemnify and save harmless, the owner, the architect, the contractor, and their, respective agents, from any and all liability, payments and expenses of any nature, for injury or death to any person, or persons, or for damage to any property, caused or alleged to have been caused by the subcontractor, or incidental to the execution of work under this contract by the subcontractor, his agents or employees * *

It is admitted that the subcontract contained an indemnity agreement, the pertinent portion of which is set out above.

The principal point- of controversy concerns the interpretaion of the above portion of the contract of indemnity, in the light of the long established law involving contracts of indemnity, which rule of interpretation has been determined in the following cases: George H. Dingledy Lumber Co. v. Erie Railroad Co., 102 Oh St 236, and Kay v. Pennsylvania Railroad Co., 156 Oh St 503.

Two cases decided by the Court of Appeals for this district have been called to our attention, the latter of those cases having been decided by the court now sitting in this case, which court was then, as now, assigned to hear cases outside of its own district. We refer to Massachusetts Bonding & Insurance Co. v. Westinghouse Electric & Manufacturing Co., 47 Abs 344, 72 N. E. 2d 388; and St. Paul Mercury Indemnity Co. v. Kopp, 70 Abs 259, 121 N. E. 2d 23.

We are convinced that the reasoning adopted in the St. Paul Mercury Indemnity Co. v. Kopp case, supra, is equally applicable in this case. The contract provisions in the instant case are almost identical with those interpreted in the Kopp case, supra.

We therefore determine that the contract of indemnity herein imposes liability upon Kilroy, notwithstanding that the action brought by Holt was against Upson-Walton Company, the owner of the building being constructed by Krill.

By reason of such determination, the judgment as entered in the trial court must be affirmed.

Judgment affirmed.

DOYLE, PJ, STEVENS, J, concur.


author: By BRYANT, J.

text:
    BIDDLE, Custody of, In re. BIDDLE (KLEIN), Plaintiff-Appellee, v. HOEHN et, Defendants-Appellants. BIDDLE, Adoption of, In re. HOEHN et, Plaintiffs-Appellees, v. BIDDLE (KLEIN), Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    Nos. 5541, 5715.
    Decided January 6, 1959.
    Herbert, Tuttle, Applegate & Britt, Paul M. Herbert, of Counsel, Lewis F. Byers, Columbus, for Harry Hoehn and Goldie Hoehn, defendants-appellants and plaintiffs-appellees.
    Gale R. King, George W. Gross, Columbus, for Dora Jean Biddle (Klein), plaintiff-appellee and defendant-appellant.
   OPINION

By BRYANT, J.

The sole question before the court at this time in the cases above numbered arises from an application made by Dora Jean Biddle (Klein i for a reconsideration by this court of .its opinion rendered on November 18, 1958, handed down following the return of these cases from the Supreme Court of Ohio, where the earlier decision of this court in each case was reversed.

Counsel for Mrs. Klein asks for a ruling by this court upon the weight of the evidence in the adoption cases in Probate Court. It must be remembered that for this court to reverse a lower court upon the weight of the evidence, all three members of this court must agree and further that if only two members of this court favor reversal upon the weight of the evidence, that amounts to an affirmance of the court below upon the question of the weight of the evidence.

Therefore, in answer to the question raised by counsel for Mrs. Klein, it should be pointed out that the three judges of this court were not unanimously in favor of the reversal of the adoption case upon the weight of the evidence, and that therefore this amounts to an affirmance of the Probate Court upon the question of the weight of the evidence.

In other respects, the opinion rendered on November 18, 1958, by this court will be adhered to and the application here under consideration will be denied.

PETREE, PJ, MILLER, J, concur.


text:
    CINCINNATI BASEBALL CLUB CO., Appellant, v. HINES, Appellee.
    United States Court of Appeals, Sixth Circuit.
    No. 13647.
    Decided February 16, 1959.

      Rendigs, Fry & Kiely, Cincinnati, for appellant.
    Weber, Hensley & Nurre, Cincinnati, John M. Heeter, Indianapolis, Ind., for appellee.
    Before ALLEN, McALLISTER and MILLER, Circuit Judges.
   OPINION

Per CURIAM.

Appellee brought a negligence action for damages for personal injuries alleged to have been suffered by her when she slipped on a sticky substance on a runway in the appellant’s grandstand, and fell to the floor. Appellant defended on the ground that there was no credible evidence of its negligence, and that, in any event, appellee was guilty of contributory negligence in stepping on a slippery substance on the floor, when she knew it was there.

As to whether appellant was guilty of any negligence, the evidence presented a question of fact for the jury. On the issue of appellee’s contributory negligence this was likewise a question for the jury. “We are not convinced that the evidence in this case showed without substantial doubt that [she] knew or should have realized before using the floor on the particular day in question that it was dangerously slippery, and that she nevertheless in disregard of her own safety assumed the risk of slipping and falling. Mere knowledge of the physical characterists of a situation is not the only factor to be considered. The character of action or inaction in relation to the appreciation of the peril which a person of ordinary prudence could be expected to have in the situation is also a factor to be considered. The attention which one must pay to his surroundings, in governing his actions with respect to them, is not a legal absolute and will vary with the type of the situation and the circumstances. Reasonable minds might fairly differ in their conclusions. * * * We are of the opinion that the District Judge was not in error in submitting this question to the jury.” City Speciality Stores, Inc. v. Bonner, 6 Cir., 252 F. (2d), 501, 504.

The judgment of the District Court, which was entered on the verdict of the jury in favor of the appellee, is affirmed.


author: By DUFFY, J.

text:
    MELLOTT, Petitioner, v. ALVIS, as Warden, Ohio Penitentiary, Respondent.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6118.
    Decided June 30, 1959.
    Alfred J. Mellott, Columbus, for himself.
    Mark McElroy, Atty. Geni., William M. Vance, Asst. Atty. Geni., Columbus, for respondent.
    (WISEMAN, J, of the Second District, sitting by designation in the Tenth District.)
   OPINION

By DUFFY, J.

A twenty-two year old petitioner seeks a writ of habeas corpus on the grounds that he was illegally sentenced by the courts of Monroe County in 1954, as he was only seventeen years of age at the time and was not processed through the Juvenile Court as the law required. The school records and the 1950 census report indicate that the petitioner was born on December 21, 1936; and the date of conviction was listed as February 24, 1954.

Secs. 2151.25 and 2151.26 R. C., provide the procedure to be followed where a juvenile is charged with an act which could be a felony if committed by an adult. Sec. 2151.25 R. C., reads as follows:

“When a child is arrested under any charge, complaint, affidavit, or indictment, whether for a felony or misdemeanor, such child shall be taken directly before the juvenile court. If the child is taken before a justice of the peace, a mayor, judge of the police or municipal court, or judge of the court of common pleas other than a juvenile court, such justice of the peace, mayor, judge of the police or municipal court, or judge of the court of common pleas shall transfer the case to the juvenile court. The officers having such child in charge shall take him before the juvenile judge, who shall proceed to hear and dispose of the case in the same manner as if the child had been brought before him in the first instance. Upon such transfer or taking of such child before such judge, all further proceedings under the charge, complaint, information, or indictment shall be discontinued in the court of said justice of the peace, mayor, police or municipal judge, or judge of the court of common pleas other than a juvenile court, and the case relating to such child shall thenceforth be within the exclusive jurisdiction of the juvenile court and shall be deemed to be upon a complaint filed in such court as fully as if the appearance of such child had been upon a complaint filed in and a citation or warrant of arrest originally issued by such court.”

Sec. 2151.26 R. C., reads as follows:

“In any case involving a delinquent child under §§2151.01 to 2151.54, inclusive, R. C., who has committed an act which could be a felony if committed by an adult, the juvenile judge, after full investigation and after a mental and physical examination of such child has been made by the bureau of juvenile research, or by some other public or private agency, or by a person qualified to make such examination, may order that such child enter into a recognizance with good and sufficient surety, subject to the approval of the judge, for his appearance before the court of common pleas at the next term thereof, for such disposition as the court of common pleas is authorized to make for a like act committed by an adult; or the judge may exercise the other powers conferred in such sections in disposing of such case.”

At the time of the indictment, apparently everybody thought him to be eighteen years of age. The Common Pleas Court records show that on February 24, 1954, the petitioner appeared in open court along with his counsel and asked leave of the court to withdraw his former plea of not guilty to the crime charged in the indictment (operating a motor vehicle without the owner’s consent). With the permission of the court, the plea of not guilty was withdrawn, and a plea of guilty entered. Petitioner was thereupon sentenced to the Ohio State Reformatory for an indeterminate term of from one to twenty years.

He was paroled on February 29, 1956, but had his parole revoked and was returned to the Ohio State Reformatory on December 16, 1956. He was again paroled on January 30, 1958, and returned to that institution as a parole violator on May 7, 1958.

The state does not deny the petitioner’s allegations that he was not processed through the Juvenile Court but contends that he waived his rights to object to the jurisdiction of the Court of Common Pleas by not raising such a question before the trial court.

In the case of State of Ohio v. Worden, 162 Oh St 593, the Ohio Supreme Court considered §§2151.25 and 2151.26 R. C., and the judge writing the dissenting opinion did state that under §2151.25 R. C., the juvenile “must be brought before the Juvenile Court.”

The law has usually seen fit to protect the juvenile’s rights; but apparently the juvenile, like other individuals, can waive his rights; and where the minor charged with a felony does not object to the jurisdiction of the Court of Common Pleas on the ground of his minority by raising that question before the trial court, he has lost his right to object after sentence by that court. See State of Ohio v. Klingenberger, 113 Oh St 418; State v. Joiner, 20 N. P. (N. S.), 313; Ex parte Pharr, 10 Oh Ap 395; In re Evans, 67 Oh Ap 66; and Harris v. Alvis, 61 Abs 311.

The last two cited cases are similar in their fact pattern, and the courts in those cases held that the Juvenile Court Code, §1639-1 et seq, GC (now §2151.01 et seq, R. C.), vested jurisdiction of the Juvenile Court over the infant and not the crime and that jurisdiction of the person may always be waived, even by a minor.

A plea of guilty having been entered in a court of competent jurisdiction, the writ will be denied.

BRYANT, PJ, WISEMAN, J, concur.


text:
    McALLISTER DAIRY FARMS, INC., Plaintiff-Appellee, v. AMALGAMATED MEAT CUTTERS AND BUTCHERS WORKMEN UNION OF N. A. LOCAL 200, and CHAUFFEURS, TEAMSTERS, WAREHOUSEMEN AND HELPERS LOCAL UNION 377, Defendants-Appellants.
    Ohio Appeals, Seventh District, Trumbull County.
    No. 1415.
    Decided December 16, 1958.
    Spain & Spain, Warren, for plaintiff-appellee.
    Green & Schiavoni, Youngstown, for defendants-appellants.
   OPINION

Per CURIAM.

This is an appeal from the judgment of the Common Pleas Court imposing a fine of $500.00 on the two union defendants, the Meat Cutters and the Teamsters.

On February 13, 1958, the trial court found William Braswell guilty of stabbing one of McAllister’s employees, to-wit: Ronald Partridge, in the back with a can opener and sentenced him to ten days in the County Jail. The court found Hugh Sapp and Norman Willard not guilty. Then the court found the defendants, The Amalgamated Meat Cutters and Butchers Workmen Union of N. A. Local 200 and the Chauffeurs, Teamsters, Warehousemen and Helpers Local Union 377 guilty and sentenced them together to pay a fine of $500.00 and costs.

It is from this part of the final order of the court that this appeal is filed, it being an appeal on law only and not as stated in the notice of appeal on law and fact..

There is no appeal from the sentence of the court imposed on William Braswell.

This is a contempt proceeding brought to vindicate and uphold the court’s authority, and if not criminal in nature it is at least quasi criminal. The presumption of innocence obtains in contempt cases and the charges must be supported by evidence that is clear, positive and convincing.

It is clear that the court’s order was violated by Braswell.

Was the conduct of the two unions contemptuous?

In the record before us there is no evidence against either of the labor unions that they conspired with Braswell or any other men, or aided or abetted in any manner the commission of any acts in violation of the court’s order.

There is positive evidence that the defendant unions did admonish their members and especially those on the picket line to obey the order of the court; that their officers made periodic trips to the picket lines to see that things were in order; and that upon learning of William Braswell’s misconduct they immediately removed him from the picket line.

In the absence of a showing of guilt by either of the unions a finding that they were guilty of contempt was not supported by the evidence as revealed by the bill of exceptions in this case.

It follows that the judgment of guilt and fine assessed against the two unions should be reversed and final judgment entered by this court for the two union defendants.

Judgment reversed.

NICHOLS, PJ, GRIFFITH and PHILLIPS, JJ, concur.


author: By SATER, J.

text:
    CLEVELAND RACEWAYS, INC. et, Plaintiffs, v. BOWERS et, Defendants.
    Common Pleas Court, Franklin County.
    No. 202125.
    Decided October 30, 1958.

      Edward Ginsberg, for plaintiffs.
    William Saxbe, Atty. Geni., Hugh A. Sherer, Chief Counsel, Chester Hummell, Asst. Atty. Geni., for defendants.
   OPINION

By SATER, J.

HEARD ON DEMURRER TO PLAINTIFF’S PETITION

Seven plaintiffs have joined in seeking relief .against four State officials, defendants. The plaintiffs are all race track operators duly licensed by the proper State administrative agency to do business in Ohio pursuant to Chapter 3760 R. C.; they are Cleveland Raceways, Inc. (Cranwood-Warrensville Heights), Thistledown Jockey Club, Inc. (North Randall), Ascot Park Jockey Club, Inc. (Cuyahoga Falls), Beulah Park Jockey Club, Inc. (Grove City), Hamilton Raceway, Inc. (Hamilton), Randall Park Jockey Club, Inc. (North Randall) and River Downs, Inc. (Cincinnati). The defendant State officials are Stanley J. Bowers, Tax Commissioner, James R. Hay, Director of Agriculture, James Rhodes, Auditor and Roger W. Tracy, Treasurer.

In their petition plaintiffs say that they conduct and have conducted in Ohio, running type race horse meetings at which pari-mutuel betting is authorized, all under §3769.08 R. C. (For the last twenty-five years Ohio has had what was originally styled in 115 Ohio Laws 171, •‘The Horse Race Act,” now Chapter 3769 R. C., referred to above; its sections here relevant have been amended several times.) They say that the Legislature enacted a bill entitled “An Act to Amend §§3769.08 and 3769.10 R. C., and to enact Supplemental §3769.082 R. C., and they attach to their petition, as Exhibit A thereto, Supplemental §3769.082 R. C., which to them is the key portion of the Act and chapter here relevant. (For the benefit of the reader, this particular Act appearing in Exhibit A was passed in 1957, is entitled Amended House Bill 617, is found in 127 Ohio Laws at page 800 et seq., and carries the purpose statement “to amend §§3769.08 and 3769.10 R. C., and to enact Supplemental §3769.082 R. C., relative to the creation and administration of a fund for the aid of state, county and independent fairs” — terminology never previously found in any legislation connected with either The Horse Race Act or present Chapter 3769 R. C.) They say, and their allegation should be carefully noted, that this Act levies a tax of 0.5 percent of the total of all monies wagered through the pari-mutuel betting at their respective tracks; but let it be noted that their carefully drawn, lawyer-like petition makes not statement or allegation against whom this tax is levied, nor is it alleged that the money wagered and then taxed was owned by plaintiffs. Under these particular statutory sections, §§3769.082 and 3769.08 R. C., they say that the seven paid $418,260.06 in 1957, and that only three of them have so far paid in 1958, $110,039.14. They say that it is the purpose (but see above) of §3769.082 R. C., to take “revenue” — an interesting use of that word— from running race tracks, including those operated by these plaintiffs and to use it for the direct benefit of tracks running the harness type of race; and that the levies and tax of this section are not used for the purposes set forth in the Ohio Constitution, but are used for the “private” — again, interesting semantics — purpose of supplying purses to be paid to owners of horses running in harness races. They say that this 0.5 percent tax violates Article XII, Sections 4 and 5, Ohio Constitution, in that it is not levied for any public purpose of State or County nor to defray expenses of the State but to provide purses for privately promoted harness races. (But they do not in any wise allege or say that their own running races are publicly promoted.) They say that the statute levying the tax does not distinctly define the object (see again above) toward which the taxes are to be applied but allows the tax, in addition to the purses, to be used for agricultural societies without limitation. They say, but without quoting, that none of the purposes expressed in the statute have any reasonable relation to public health, morals, safety or necessity. They further say that this statute. §3769.082 R. C., violates Section 26, Ohio Constitution, in that the statute’s sub-section C delegates to defendant director of agriculture, power vested only in the General Assembly by virtue of which such director may order the Auditor of State to allocate and pay to some county and independent agricultural societies more money for purses than to other such societies. That the statute is unconstitutional as being confiscatory, discriminatory and void in that it establishes a minimum of $1000.00 for purses for harness races raised in substantial part by a tax on permit holders (presumably plaintiffs inter alia) who, for economic reasons, are unable to maintain a similar minimum level for purses. They say that sub-section J of that statute unlawfully delegates powers, apparently to county and independent agricultural societies, of the General Assembly in that the only penalty for their misuse of funds paid to them in the manner set out immediately above herein deprives them automatically of the privilege of participating in the “Ohio fairs fund” for a “period of two years after such misuse of such moneys occurs.” They further say that §3769.082 (D) R. C., contravenes Article II, Section 22, Ohio Constitution, by providing for withdrawals of money from the State treasury, not in pursuance of specific statutory appropriation, by providing that all moneys in excess of that needed to execute the statutory stated purposes shall be distributed equally each year wherein such a surplus occurs to those county and independent agricultural societies that conduct horse and colt racing stakes under sub-section (C) of the statute but with no set period of time within which to make such distribution unless it be within the two immediately subsequent years. They further say that by making a distinction that is capricious, and without reasonable or logical bases between running and harness racing and race tracks, §3769.082 R. C., violates Article I, Section 2, Ohio Constitution, and Amendment XIV of the Federal Constitution; and that by failing to set forth reasonable standards (unspecified unless we assume that earlier allegations are referred to) and by being arbitrary and discriminatory, it denies to plaintiffs the equal protection of the laws guaranteed by both State and Federal Constitutions. After stating that plaintiffs paid the sums of money referred to above under protest, plaintiffs pray for a declaratory judgment that the part of §§3769.082 and 3769.08 R. C., which tax these plaintiffs as stated above and allocate the proceeds of the tax to the “Ohio Fairs Fund” are unconstitutional and void, that defendants be ordered to refund to them respectively the taxes so paid by plaintiffs and that they be awarded costs and other proper relief. To this petition, defendants have demurred for the reasons (1) that plaintiffs lack legal capacity to institute this action, and, (2) that there is a defect of parties defendant.

A short preliminary history of Chapter 3769 R. C., may go far to clarify matters.

“The Horse Racing Act” embodied in Amended Substitute Senate Bill No. 103 (115 v. 171) came into being in 1933. It required a “permit” of any and all parties holding or conducting in Ohio horse race meetings for any stake, purse or award; it covered only meetings whereat pari-mutuel wagering was available. An administratrive state racing commission was established, and provision was made for application for such racing permits, for the deposit of accompanying filing fees, and for restrictions on the use of such permits. Section 8 of that bill provided for suspension of the pari-mutuel system of wagering, allowed each permittee (whether running or harness racing) to retain as “commission” not more than ten percent of all moneys wagered plus “breakage” of odd cents, and required such permittees each day to pay to the state racing commission ten per cent of the first $1000.00, fifteen percent of the next $4000.00 and twenty percent of all moneys over $5000.00. By section 10 of that bill all required taxes, fees and commissions were to be paid each month by the commission’s secretary to state treasury to the credit of a separate fund, “the state racing commission fund” with any surplus from any year to be paid thereafter into the State’s general revenue fund. There were appropriate penalty provisions. Statedly and clearly the sole purpose of this enactment was regulation of horse racing.

The foregoing is accurate as to Amended Substitute Senate Bill No. 372 (115 v. 367) passed three months later except that the “commission” of section 8 while remaining at ten percent was modified by the provision that each day the permittee should pay to the commission, “as a tax,” ten percent of the first $1000.00, fifteen percent of the next $4,000.00, twenty percent of the next $5000.00, twenty-two and one-half percent of the next $5000.00, twenty-five percent of the next $5000.00, and thirty percent of all over $20,000.00. This modification indicates belated recognition by the legislature that it was entering the field of big business.

No change occurred in The Horse Racing Act until 1953 when two bills were made into law. The first bill was Amended Substitute House Bill No. 44 (125 v. 57). As commission, that law granted to harness racing permittees upon to fourteen percent, and breakage, of all moneys wagered daily; to running racing permittees up to twelve and three-quarters percent, and breakage, of all moneys wagered daily. From that commission both types of permittees paid daily to the tax commissioner two percent of the first $10,000.00, three percent of the next $40,000.00, four percent of the next $50,000.00, five percent of the next $300,000.00 and six percent of all over $400,000.00, all to the credit of “the state racing commission fund.” Business was much bigger. The purpose of the bill was “To amend certain sections of the Revised Code relative to the taxation of funds wagered on horse racing.” The second 1953 bill, Amended House Bill No. 566 (125 v. 539), was purposed “To assess an additional tax against horse-racing permit holders for the benefit of the political subdivision,” and taxed each permittee (up to $10,000.00) 0.1 percent of all moneys wagered daily for that purpose, but from this tax agriculturai society permittees were exempted very much as motor vehicles hauling farm products from farm to market are exempt from the motor carrier statutes administered by the Public Utilities Commission of Ohio. Again, the sole purpose of the legislation was regulation of horse racing by means of the acquisition of suitable revenue to effectuate that regulation with any surplus eventually going into the general fund of the State.

The same is true of the 1955 Amended House Bill No. 334 (126 v. 749) purposed “To amend §3769.08 R. C., relative to the taxation of funds wagered on horse racing.” Breakage remained the same but the commission to running race permittees went up to a maximum thirteen and one-half percent of all moneys wagered, and on harness racing permittees to a maximum fifteen percent; the State’s tax share thereon, retained the same monetary break-points as to moneys wagered but increased the tax on each bracket thereof by 0.75 percent over the statute of 1953

Then came the big change of 1957 in Amended House Bill No. 617 (127 v. 800) entitled or purposed, as noted above, “To amend §§3769.08 and §3769.10 R. C., and to enact supplemental §3769.082 R. C„ relative to the creation and administration of a fund for the aid of state, county and independent fairs”; it is called the “Ohio fairs funds” and is dispensed according to new §3769.082 R. C. This was something brand new to the Horse Race Act. This was no “state racing commission fund” as in bygone years; it was an entirely new tax, fund and purpose. The mechanics of creating, setting apart and administering this new “Ohio fairs fund” were quite simple. The 24-year old principle of breakage, commission and tax thereon were left untouched as was the administration of the state racing commission fund noted above herein. And let it be noted that to none of this have plaintiffs now or ever before objected; to the tax on what the Legislature has thrice said they may have and keep as their own, there is no protest. Their protest is directed wholly and solely to what is not theirs by law or otherwise. Thus:

By §3769.08 R. C., this law increases the commission of running race permittees to fourteen percent of all money wagered and then adds 0.5 percent to the commission of all racing permittees whatsoever on pari-mutuel wagers and provides in the next sentence for its payment each day into the new “Ohio fairs fund.” Care having already been made in §3769.08 R. C., for the counties wherein such wagering is done, the use of the new “Ohio Fair fund” is consequently covered by new §3769.082 R. C. From this fund $2500.00 goes annually under paragraph (A) to each county agricultural society and each independent agricultural society for general expenses including junior club work, public school displays, livestock premiums and agricultural improvements; this would be wiped out if plaintiffs’ position prevails. Under paragraph (B) $60,000.00 goes annually to the Ohio state fair for purses for described trotting and pacing races; this also would be wiped out. By paragraph (C) $3000.00 annually to such county and independent societies as conduct horse races, mostly for purses, and $2000.00 each to at least half of such societies for trotting and pacing race purses with the minimum purse of $1000.00. This, too, would be wiped out. If there is not enough money, it is pro-rated; if there is a surplus, it also is prorated among such societies; i. e., “minor league” purses and expenses rise and fall in direct proportion to plaintiffs’ wagering concomitant. However, by paragraph (E) none of these societies participate unless they ask to do so; and paragraphs (F) and (G) further limit the privilege of participation. Paragraph (J) debars participants for two years 'for misuse of any funds so given to them by the director of agriculture.

There is the history of The Horse Race Act. In considering it along with plaintiffs’ petition, several factors may be noted in limine.

' First. The power to tax is the power to destroy, even if plaintiffs have a property interest subject to taxation.

Second. This is an excise tax on the privilege of pari-mutuel wagering. Saviers v. Smith, etc., 101 Oh St 132, syll. 4.

Third. It is as such a proper tax under Article II, Section 1 and Article XII, Section 10, Ohio Constitution. Syll. 1, 3 and 4 of Saviers v. Smith, supra.

Fourth: Consequently, Article XII, Sections 4 and 5, Ohio Constitution, need not here be considered.

Fifth. Plaintiffs are at best mere permittees whose licenses are revocable at any time under the provisions of the Horse Racing Act, and, consequently, under such permit licenses have neither contract nor property right. State, ex rel. Zugravu v. O’Brien, 130 Oh St 23. Of necessity, no property right can be foundationed on such a permit-license.

Sixth. Consequently, and by reason of all the foregoing, plaintiffs have no more right, title or interest in or to the sum derived from this 0.5 percent tax than do Ohio vendors in the sales tax which they collect or Ohio employers in the federal income tax which they withhold and turn over to the state or federal government respectively; all three groups are no more than conduits of revenue, and have no standing in court to challenge either the propriety or the constitutionality of the tax or of the use of the revenue derived therefrom. Parallel, does one sue the conductor (or ticket agent) of a railroad for an overcharge?

Seventh. This does not purport to be a taxpayer’s suit; but even if it were, plaintiffs’ petition fails utterly to show jeopardy to any property right of theirs. State, ex rel. Masterson v. Ohio State Racing Commission, 162 Oh St 366. See also, Sun Oil Co. v. Turnpike Commission, 71 Abs 465, syll. 5, and State, ex rel. Masterson v. Ohio State Racing Commission, 97 Oh Ap 108, syll. 2.

Eighth. The Bill of 1957, supra, by adding 0.5 percent to plaintiffs’ so-called “commission” and at the same time providing for its disposition in a new manner changed completely, by addition, one of the basic purposes of the Horse Racing Act, and it did this in two interrelated inseparable steps listed above.

Ninth. By reason of all the foregoing, plaintiffs have no standing in court, they have no cause of action, they have no choice but to pay, they have no claim to reimbursement regardless of their payment made under protest.

Tenth. If the jurisdiction of an administrative agency under one portion of the Horse Racing Act cannot be prevented, without special showing of property interest and jeopardy, as being in excess of powers conferred by statute (see State, ex rel. Masterson v. Ohio State Racing Commission, 164 Oh St 312), neither can a complimentary administrative agency under a statute in part materia without a similar showing; and that showing is here as absent as it is impossible, be it action in prohibiton, injunction or declaratory judgment.

Eleventh. Plaintiffs make no claim of destitution arising from the 0.5 percent tax on wagered funds that they may not keep as it passed through their pari-mutuel machines en route to the special' fund already named; but even if they did, the remedy lies with the next Legislature and not with the Court.

Twelfth. If we analyze §§3769.08 and 3769.082 R. C., in connection with the 1957 tax payments (those of 1958 are incomplete) by plaintiffs on pages 3-5 of their petition, we are forced to the conclusion either that the 1957 Legislature made an amazing blunder or that plaintiffs are fixed quite comfortably, financially speaking. Thus: §3769.082 R. C., provides for distribution of the “Ohio Fair Fund.” If every possible society and agency participated, the total outlay would be close to $632,000.00. Yet the 1957 tax under §3769.08 R. C., which these plaintiffs admit having paid, amounts to just $418,250.06. But does that $418,-250.06 represent the entire fourteen percent tax of that section or does it represent the 0.5 percent going to the “Ohio Fair Fund”? The petition is silent. But if it represents the full tax, only 1/28 went to the Fair Fund, viz., $14,937.51. Thus we have $14,937.51 receipts versus $632,000.00 outlay. What an astounding legislative blunder! Of if the admitted tax payment of $418,250.06 is simply the 0.5 per cent then that approaches $632,000.00 logically. And it also indicates that plaintiffs’ commission was 27-fold that payment, a neat $2,927,750.42 to plaintiffs to which we may add unknown further income from horse entry fees, personal admission charges, plus concessionaire revenues!

The enumeration of these twelve foregoing factors goes far to eliminating further discussion. But let us assume, for the sake of discussion only, that plaintiffs had some sort of direct property interest in the 0.5 percent of the money which they did not at any time own but which by some strange alchemy became theirs by the mere act of passing through their pari-mutuel machines as described above. What then of plaintiffs’ various constitutional claims? The result is the same. There is no merit to their case.

Take first the fourteenth amendment to the federal Constitution The regulation of slot machines violates no privilege or immunity of a citizen of the United States nor deprives him of life, liberty or property without due process, nor deny equal protection of the law. Ex parte Davis, 91 Pac. 2d, syll. 27. The privileges and immunities protected by’ this amendment against abridgment by state laws are not those fundamental privileges and immunities inherent in state citizenship, but only those which owe their existence to the federal government, its national character, its Constitution, or its laws. Ins. Co. v. Cheek, 259 U. S., 530, 539, 66 L. ed., 1044, 1052, Hamilton v. Regents, 293 U. S., 245, 261, 79 L. ed., 343, 352, State v. McCann, 21 Oh St 198, 209-210, and Watkins v. Oaklawn Jockey Club, 86 Fed., Supp., 1006 (aff’d on appeal).

The power to tax the exercise of a privilege is the power to control or suppress its enjoyment. Murdock v. Penna., 319 U. S., 105, 112, 87 L. Ed., 1292, 1298. The state’s power over taxation is plenary and only emphatic requirements of the Constitution may authorize interpretation of the privileges and immunities clause which restricts the power of states to manage their own fiscal affairs; i. e., the presumption in favor of the constitutionality of a state tax law can be overcome only by the most explicit demonstration that the classification adopted by the legislature is a hostile and oppressive discrimination against particular persons and classes, and the burden is on the one attacking a legislative classification or a particular field to negative every conceivable basis which might support such classification. Madden v. Kentucky, 309 U. S., 83, 84 L. ed., 590. Plaintiffs’ petition here completely lacks those negatives. Since police regulations may be utilized by the power to tax, the taxing of the revenues of pari-mutuel machines may be and is as absolute as was the power to confiscate, which constitutes no denial of due process or of equal protection in Phillips v. Atlanta, 57 Fed. Supp., 588, aff’d 145 Fed. 2d, 470. To the same effect concerning equal protection, see the Oaklawn Jockey Club case, supra, which holds that the equal protection clause contemplates a purposeful and systematic discrimination designed to favor one individual or class from another, a purpose utterly foreign to Ohio’s legislation of 1957, above. And the strong cases, State v. Racing Ass’n., 136 N. J. L., 173, 54 Atl. 2d, 916, Distilling Co. v. Baltimore, 216 U. S. 285, 54 L. ed., 482, and Matosin v. New York, 117 N. Y. Supp. 2d, 532.

So much for federal questions raised. Let us turn now to matters of the Ohio Constitution.

Article I, Section 2, Ohio Constitution, was considered adversely to plaintiffs here, in Novelty Co. v. Evalt, etc., 145 Oh St 205, 207. Before that had come State, ex rel. etc., v. Wallace, 137 Oh St 379, 383, 384; and prior to that Saviers v. Smith, supra, held that “upon the power to tax privileges and franchises there is no express limitation in the (Ohio) constitution.” On the matter of classifications, the Wallace case pungently quoted, “A corporation cannot object to the use of the taxes which it pays for the maintenance of schools because it has no children.” And the second syllabus of Calerdine v. Freiberg, 129 Oh St 453, says “There is no constitutional provision requiring the Legislature to apply an excise tax exclusively for the use and benefit of those who pay it.”

Article H, Section 22, Ohio Constitution, which prohibits the withdrawal of money from the State treasury except in pursuance of specific appropriation by law is not in point here at all. The fund created by the tax of 0.5 percent goes into a special fund, the “Ohio fairs fund” and never becomes part of the general treasury fund until all of its specific, special purposes have been fulfilled; thereafter, any residue enters the treasury but never again goes, as such, to such special fund. See Fisher Bros. v. Brown, 111 Oh St 602, which also noted on page 618 that occasional inequalities are immaterial. To much the same effect, see Long v. Board of Trustees, 24 Oh Ap 261.

The same is true of Article II, Section 26, Ohio Constitution, which requires all laws of a general nature to have a uniform operation throughout the state. State, ex rel. v. Wallace, supra, at page 384. See also State, ex rel. Masterson v. Racing Com’n., supra, 97 Oh Ap 108, 111, 113, Dillon v. Cleveland, 117 Oh St 258, 272, and the Fisher Bros, case, immediately above. If plaintiffs’ contention here were sustained, there would be voided the classifications inter alia of the intangible personal property tax, the corporation franchise tax, the liquor control permit fees, the retail sales tax, the use tax, the wine and mixed beverages tax, the motor vehicle license tax, the motor transportation license tax, the private motor carriers’ license tax and the so-called “axle mile” tax. To state the proposition is to answer it.

Finally, plaintiffs evoke Sections 4 and 5, Article XII, Ohio Constitution. The controlling section of this article is Section 10 and under it, the statutes and tax in question are proper and lawful., Calerdine v. Freiberg, supra, 129 Oh St 453, 457-458, 460-61, Fisher Bros. v. Brown, supra, 111 Oh St 602 (on page 622 is discussed and approved the discretionary power as to how and at what times to disburse funds realized from a tax, and the propriety of disbursing varying amounts in different years) and Fox v. Frank, 52 Oh Ap 483, syll. 1, 2, 3, aff’d., 130 Oh St 268.

A few minor points in closing (1). If the penalty of §3769.082 (J) R. C., is too weak, the remedy lies with the Legislature, not here. (2) Nor is §3769.082 (D) R. C., too vague as to distribution of surplus funds to agricultural societies; the statute is clear that the distribution is annual but even if there were any purportedly reasonable doubt, every possible presumption is in favor of the legislation. Fox v. Frank, supra, 52 Oh Ap 483, 491. The same applies to all of plaintiffs’ allegations of vagueness and to the claimed unwarranted discretion lodged in the director of agriculture; if plaintiffs were correct, there would be no government, state, local or national. (3) The matter of the lack of standards in an administrative agency or official has been settled adversely to plaintiffs’ contentions in parallel situations. Weber v. Board of Health, 148 Oh St 389, Matz, Adm’r. v. Cartage Co., 132 Oh St 271, and this Court’s unreported case Re: The Adoption of Rules and Regulations Relative to Driver Training Schools, No. 200,738. (4) Since plaintiffs have neither title nor interest in the proceeds of the 0.5 percent tax, they have no basis for complaint as to the size of any particular purse or purses. (5) By the parallel token, it is no concern of plaintiffs whether either county or independent agricultural societies are public or private organizations.

(6) The prayer of plaintiffs’ petition will provide no relief to those who place wagers. It will simply increase plaintiffs’ profits.

Defendants’ demurrer is sustained on both grounds. Submit entry in accordance with the foregoing.


author: By MCLAUGHLIN, J.

text:
    WAGNER, Plaintiff, v. FIREMAN’S FUND INDEMNITY COMPANY, and STROUGH, Defendants. WAGNER, Plaintiff, v. FIREMAN’S FUND INDEMNITY COMPANY, and STROUGH, Defendants.

      Common Pleas Court, Stark County.
    No. 93050.
    Decided November 10, 1954.
    Alex D’Aurora, Canton, for plaintiff.
    Burt, Carson, Vogelgesang & Burt, M. M. Kienzle, of Counsel, Canton, on behalf of Fireman’s Fund Indemnity Company.
    Black, McCuskey, Souers, Dan M. Belden, Richard H. Kauffman, Canton, W. H. Neiman, Cincinnati, on behalf of Ford B. Strough.
   OPINION

By MCLAUGHLIN, J.

This case is submitted upon an agreed statement of facts and the deposition of the defendant Ford B. Strough. There appears to be no factual dispute issue.

This automobile accident happened on April 8th, 1952, in the City of Canton. Plaintiff apparently suffered personal injuries in the accident, she being a pedestrian and hit by the car driven by the defendant Ford B. Strough.

At the time of the accident the defendant Strough’s car was covered with a policy of liability and property damage insurance with the Fireman’s Fund Indemnity Company. The defendant Strough was some kind of a travelling salesman, and although plaintiff had letters addressed to him at his Cincinnati address, he did not notify his insurance company of the accident until after he received a summons on May 17th, 1952, some thirty-nine (39) days after the date of the accident.

On the 4th day of January, 1954, the plaintiff recovered a judgment against the defendant Strough in the Court of Common Pleas of Stark County, Ohio, in the sum of Thirty-Five Hundred Dollars ($3500.00).

On February 5th, 1954, plaintiff filed a supplemental petition which set forth the insurance coverage of the defendant indemnity company, • and prayed for judgment against the defendant indemnity company in the sum of Thirty-Five Hundred Dollars ($3500.00), to which supplemental petition the indemnity company filed an answer which set forth one of the conditions of said policy, as follows:

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

And alleged that failure to report the incident as a violation of the terms of the insurance contract.

The sole question before the Court is whether or not the assured complied with the policy provision of reporting the accident “as soon as practicable.”

The phrase “as soon as practicable” means that an assured must give notice within a reasonable time. In this particular instance the time elapsing was some thirty-nine (39) days.

A close scrutiny of the agreed statement of facts and the deposition of the defendant Strough does indicate to the Court that notice was given to the indemnity company “as soon as practicable” under the circumstances surrounding.

The law liberally construes insurance policy provisions in favor of the insured and against the insurer, and it has been held in the Shafer case (35 Fed. Supp. 647), that notice given some one-hundred and twenty-eight (128) days after an accident was timely given under the circumstances then and there surrounding.

This insured gave notice to the insurance company the day he received notice that the claim was being made against him.

Our attention has been directed to the case of Heller v. Insurance Company 27 Oh Ap; particularly to the first full paragraph of Page 411, which does hold that violation of the provision as to notice gives rise to the presumption that the insurance company was prejudiced. We adopt that presumption and hold, that as applied to this case, the presumption of prejudice is amply rebutted, because the summons and notice was turned over to the indemnity company on the same day as received by the insured.

We note also that in the original case itself, the defendant Strough filed an answer and was represented by a firm of competent lawyers at the time the judgment against the defendant Strough was obtained. More than eighteen (18) months had elapsed between the time the insurer received the notice and summons and the judgment against the insured was taken.

We, therefore, hold that said notice was given within a reasonable time, and that the assured did comply with the policy provision of reporting the accident “as soon as practicable.”

Judgment for plaintiff upon her supplemental petition.

Exceptions to the defendant the Fireman’s Fund Indemnity Company.

Plaintiff to prepare entry.

AGREED STATEMENT OF FACTS

Counsel for plaintiff, Anna Wagner, and counsel for defendant, Fireman’s Fund Indemnity Company, hereby agree and stipulate that the following facts may be taken as true without the introduction of proof under the supplemental petition of the plaintiff and defendant, Fireman’s Fund Indemnity Company’s answer thereto:

1. That Fireman’s Fund Indemnity Company is an insurance corporation authorized to do business in the State of Ohio.

2. That on the 4th day of January, 1954, the plaintiff recovered a judgment against the defendant. Ford B. Strough, in the Court of Common Pleas of Stark County, Ohio, in the sum of $3500.00 in the above entitled action.

3. That this action was one for damages for personal injuries suffered by plaintiff as a result of being struck by an automobile driven by said Ford B. Strough.

4. That the defendant, Ford B. Strough, and said automobile were then and there insured by the defendant, Fireman’s Fund Indemnity Company, against liability of said Ford B. Strough for personal injuries occasioned while he was driving said automobile and that he waa so operating said automobile at the time of the accident complained of.

5. That said policy of insurance issued by defendant, Fireman’s Fund Indemnity Company, was in full force and effect on April 8, 1952, being the date on which plaintiff sustained such injuries: that said judgment was for damages for injuries sustained by plaintiff by reason of the operation of said automobile by the defendant, Ford B. Strough.

6. That said judgment remained unsatisfied for more than 30 days after its rendition and is still unsatisfied and unpaid and that the supplemental petition herein was filed in accordance with the statute.

7. That said policy contained the following provision and condition covering bodily injury liability such as was involved herein:

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

Signed: A. H. D’Aurora

H. R. Kauffman — counsel for Strough.

Signed: Burt, Carson, Vogelgesang & Burt, Attorney for Defendant, Fireman’s Fund Indemnity Company