author: By THE COURT:

text:
    STOFFEL, Plaintiff-Appellant, v. CINCINNATI (City), Defendant-Appellee.
    Ohio Appeals, First District, Hamilton County.
    Nos. 7160 & 7161.
    Decided January 23, 1950.
    R. E. Simmonds, Jr., Clarence A. Schnieders, Cincinnati, for plaintiffs-appellants.
    Henry M. Bruestle, J. B. Grause, Jr., Wallace M. Power, Cincinnati, for defendant-appellee.
   OPINION

By THE COURT:

Appeal on questions of law from a judgment of the Common Pleas Court of Hamilton' County, in favor of defendant, entered at the close of the plaintiff’s evidence, on motion of defendant. The court found that in such evidence it appeared as a matter of law that the plaintiff was guilty of contributory negligence.

From the record it appears that the plaintiff, a woman 57 years of age, wearing bifocal glasses, in passing along a sidewalk in the City of Cincinnati, over which she had never walked before or seen, slipped her toe in a crevice created by one slab of the sidewalk, having been pried up by the roots of an adjacent tree. She fell and broke her arm. The difference in elevation of the slabs was apparent to anyone examining the same. However, the plaintiff testified she saw no defect in the sidewalk before she fell.

The trial court, by its judgment, held that as a matter of law she should have seen it — and, hence, was guilty of contributory negligence as a matter of law, in that she did not see it and avoid injury. Such a holding means simply— that a pedestrian moving over a strange sidewalk is required to keep her eyes upon the sidewalk at all times. If such is the law, then no pedestrian could ever recover for apparent defects in a sidewalk, for if she fell in the daylight, she would be held at fault, because she did not observe the obvious, and if she fell in the dark she would be held guilty of contributory negligence in proceeding when she could not see.

It is perfectly apparent that pedestrians are required to use their senses while proceeding along a sidewalk for other lawful purposes than a minute inspection of that upon which they are about to tread, and have a right to presume that a public way will not contain such traps as existed in the instant case.

The cases of Highway Construction Co. v. Sorna, 123 Oh St, 258, and Winkler v. City of Columbus, 149 Oh St, 39, are easily distinguished by the facts involved. In the Winkler case, the plaintiff testified that she saw the defect in the sidewalk, saw it was “raised up,” and tried to step over it. In the Sorna case it is stated at page 264 of the opinion:

“Prom an examination of the record, it is apparent that it was not the excavation in the street which caused Mrs. Sorna’s injury, but the crumbling of the bank, which she claims defendant had negligently failed to properly guard by boards, or by cutting steps, or by slanting back so as to protect persons desiring to use the crosswalk at that place. Whether under such circumstances the defendant construction company was negligent, and whether such negligence proximately caused the plaintiff’s injury, and whether she herself contributed thereto by her own want of due care or by her failure to take an alternative way, were all questions for the jury — found adversely to the construction company.”

The record in the instant case sustains no similarity to the facts considered in the cases cited as sustaining the instructed verdict for defendant.

Certainly, the evidence of plaintiff presented a question for the jury — whether she used the care which a reasonably careful person is accustomed to use under the same or similar circumstances.

Starting with the case of Hamden Lodge v. Gas Co., 127 Oh St, 469, the Supreme Court has in a host of decisions held:

“Where from the evidence reasonable minds may reach different conclusions upon any question of fact, such question of fact is for the jury. The test is not whether the trial judge would set aside a verdict on the weight of the evidence.”

See: Wilkeson v. Erskine & Son., 145 Oh St, 218; Belshaw v. Agricultural Ins. Co., 150 Oh St, 49; Bauer v. Cleveland Ry. Co., 141 Oh St, 197; Durbin v. Humphrey Co., 133 Oh St, 367; Bevan v. N. Y. C. & St. L. Rd. Co., 132 Oh St, 245.

The instant case presented a question for the jury. It might justly conclude that the plaintiff had not used that care which was required. They, as pedestrians, should be able to determine what care was required. The required standard lies within the area of the common knowledge which the jury is presumed to possess.

For this reason, the judgment of the trial court is reversed and the cause remanded for a new trial.

ROSS, PJ, HILDEBRANT & MATTHEWS, JJ, concur.


source: Caselaw Access Project

author: By THE COURT.

license: Public Domain

text:
    DEPARTMENT OF LIQUOR CONTROL, Plaintiff-Appellee, v. ALESSANDRO, d. b. a. LUCKY STAR CAFE, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4317.
    Decided January 10, 1950.

      Hon. Herbert S. Duffy, Atty. Geni., Charles T. Kaps, Asst. Atty. Geni., Columbus, for plaintiff-appellee.
    Sidney Cohen, Fred W. Garmone, Cleveland, for defendant-appellant.
   OPINION

By THE COURT.

Submitted on motion by the plaintiff-appellee seeking an order dismissing the appeal for want of prosecution. The appeal is on questions of law from the judgment rendered on June 15, 1949. The notice of appeal was filed on the same day. Nothing further has been filed in accordance with Rule VII of this court and the time for such filing has long expired.

The appellant has also filed a motion in which he seeks leave to file a bill of exceptions and assignments of error out of rule. This motion is supported by an affidavit' by the appellant which attempts to establish “good cause” for noncompliance. This court adheres closely to the rule and strictly enforces it. The question therefore presented is whether the affidavit is sufficient to support the appellant’s motion. The substance of it is that after the notice of appeal was filed new counsel were employed who failed to comply with the rule; that on December 9, 1949, he learned that the newly employed counsel did not desire to become attorneys of record in the case and that there was no neglect on his part. This, in our opinion, does not establish “good cause” for noncomplianee with the rule. The obligation is one primarily resting upon counsel and there is no showing why they failed to prosecute the appeal. They may have been justified in their actions, or there may be some good reason for their failure. On this fact the affidavit is silent. It might be that both sets of counsel were unable to find reasonable grounds for the appeal which would account for the failure to prosecute. If this were true, counsel owed the appellant no duty to file sham assignments of error and briefs.

It should be further noted that §11564 GC fixes the time for the filing of the bill of exceptions. This provision is mandatory and when not complied with a motion will lie to strike the bill of exceptions from the files. Eubank v. Industrial Commission, 59 Oh Ap 189; Teegarden, etc. v. Teegarden, et al. 80 Oh Ap 79.

The motion to dismiss for want of prosecution will be sustained and the appellant’s motion, overruled.

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


author: By MATTHEWS, J.:

text:
    GATCH, Estate of, In re.
    Ohio Appeals, First District, Hamilton County.
    No. 7072.
    Decided May 2, 1949.

      . Gatch, Kleinmann, Roberts & Kuhn, Cincinnati, for appellant.
    Herbert S. Duffy, Atty. Geni., Columbus, W. H. Annat, Wooster, Robert Levering, Mt. Vernon, for appellees.
   OPINION

By MATTHEWS, J.:

This is an appeal from an order of the Probate Court redetermining the Ohio Inheritance Tax and ordering a refund.

After the inheritance tax had been determined and paid, the Executor paid to the Collector of Internal Revenue $32,933.67 in settlement of the Federal Estate Tax levied against the estate. This debt had not been claimed or allowed as a deduction in the determination qf the Ohio Inheritance Tax. That was the basis of the application by the Executor for a re-determination of the inheritance tax. The Probate-Court found against the Executor as to a part of the Federal Estate Tax and the Executor being dissatisfied filed this, appeal.

Before considering the merits of this appeal, it is necessary to rule upon the motion of the Tax Commission of Ohio to dismiss the appeal on the ground that the Executor failed to exhaust all his remedies in the Probate Court and also on the ground that the order appealed from is not a final order.

This application for a refunder was filed under favor of §5339 GC, providing that “If any debts shall be proven against the general estate after the determination of inheritance tax has been made, an application for modification of such order of determination may be filed.” On such application the Court is authorized by the Section to order a refunder when the inheritance tax has been paid and an unallowed debt has been proven. It is also provided in the section that “Exceptions may be filed to such order of refunder by the tax commission or by any interested party and appeal or error may be prosecuted as from an original determination of tax.”

The Executor filed no exceptions to the order of redeter-mination and that is the basis of the claim that he failed to exhaust his remedies in the Probate Court before ap-. pealing to this Court. Counsel, in effect, urge that the last quoted part of §5339 GC, incorporates the sections relating to appeals from orders of original determination of inheritance taxes and cite §5346 ■ GC, by which it is provided that “The Tax Commission of Ohio, or any person dissatisfied with the appraisement and determination of taxes may file exceptions thereto in writing with the probate court within sixty days from the entry of the order.” And counsel also cite §5348 GC, providing for an appeal from “the final order of the probate court under §5346 GC in the manner provided by law for appeals from orders of the probate court in other cases.”

We cannot agree with counsel for the Tax Commission on their interpretation of these sections of the General Code. Sec. 5339 GC applies to an entirely different situation from that to which §5346 GC applies. This latter Section is the method prescribed for invoking the judicial power of the Probate Court for the first time in the determination of the tax. Up to that point, all action is or may be administrative and not judicial. Or, at least, until the fixing of the time for the hearing upon the written exceptions and the serving of notice upon the interested parties, there is no statutory requirement that the proceeding should take on the characteristics of an adversary proceeding complying with due process of law, so that any order made at the hearing would be binding upon all the parties unless set aside on appeal or otherwise. The findings and orders theretofore made under authority of §5345 and 5345-4 GC, are pro forma — made as of course on the report of the auditor — and notice thereof given to interested persons after and not before, without opportunity for a hearing.

The application for a re-determination of the tax and for a refunder relates to an issue not involved in any way in the original determination of the tax. It relates to something unknown or undeterminable at that time. The application for the re-determination of the tax presents a new issue and §5339 GC, requires that notice of the hearing thereon be given to the only party that could be adversely affected, that is, to the Tax Commission. The exceptions authorized by the section follow the ruling of the court, and there is no provision for a hearing on such exceptions by the Probate Court. They show only the dissent of the party from the ruling, whereas the exceptions provided for in §5346 GC, invoke the jurisdiction of the court.

As we construe §5339 GC, it does not require exceptions as a predicate to an appeal. It provides that exceptions “may” be taken and it also provides that an appeal “may be taken.” It does not condition the appeal upon the prior taking of an exception. We consider that the application for a refunder provided for in §5339 GC, and the exceptions provided for in §5346 GC, as serving the same purpose, that is, of invoking the jurisdiction of the court for a ruling and that when that ruling is made it may be reviewed on appeal in the manner provided by law. That an appeal may be thus taken results from the double reference of §5339 and §5348 GC, to that effect. As noting an exception to a final judgment is unnecessary, its omission does not limit the scope of the review. 3 O. Jur., 240; Frankenstein v. Behrens, 60 Oh Ap, 403.

As there is no specific provision in the Probate Code or elsewhere regulating the mode and manner of taking appeals from the Probate Court to the Court of Appeals, the general statutes (§12223-1, et seq., GC) govern. There is no doubt that the appellant complied with all the requirements of those statutes.

For these reasons, we overrule the motion to dismiss the appeal and turn to a consideration of the record presented.

The Probate Court heard this application for a re-determination of the inheritance tax, as disclosed by the judgment entry, upon an agreed statement of facts duly filed with the papers in the case in accordance with the provisions of §11571 GC. As the agreed statement is short, we quote all the essential facts:

“The applicant, John N. Gatch, is the duly appointed, qualified and acting Executor of the Estate of Loren G. Gatch, deceased.
“Loren G. Gatch died a resident of Terrace Park, Hamilton County, Ohio, on December 16, 1942. His estate is being administered in the Probate Court of Hamilton County, Ohio, as Estate No. 150,791. In the process of settlement of said estate, an application for determination of Ohio inheritance tax was made, and said tax was determined as $3,106.07, which amount less a credit of 4% for early payment was thereafter paid. The total gross estate for Ohio Inheritance Tax purposes amounts to $143,943.72. The debts {less that portion of the widow’s allowance in excess of $3,000.00 not deductible for Ohio Inheritance Tax purposes) amounted to $23,963.43, leaving a net amount of $119,980.29 subject to Ohio Inheritance Tax, excepting however that no deduction for Federal Estate Tax was made at the time of such determination. Thereafter, the Executor filed with the United States Collector of Internal Revenue a Federal Estate tax return, and after adjustment, paid a total Federal Estate Tax amounting to $32,933. Included in the estate reported for Federal Estate Tax was the amount of $67,604.70, .proceeds of life insurance.
“The net Federal Estate before exemptions, including said item of life insurance was $203,696.35.
“Item I of the Will of said decedent reads as follows:
“I direct that all my just debts and funeral expenses be first paid out of my estate, and I further direct that all taxes, both State and Federal shall be a charge against the principal of my estate and shall be paid therefrom and shall not be charged against the interest of any distributee.”

.The Probate Court allowed $22,002.99 as a debt against the estate on account of the Federal Estate Tax payment and disallowed the balance and fixed the amount of the refunder at $712.27 resulting therefrom, and rendered judgment for the Executor for that amount. The Court found that a part <of the Federal Estate Tax arose by reason of the inclusion of the proceeds of life insurance payable to a beneficiary other flhan the insured’s estate, and that as the Executor could recover the Federal Estate tax paid on that portion, he could not include it in the computation of the Ohio Inheritance Tax. The Executor claims that the total amount of the Federal Estate Tax should have been deducted in determining the net estate for the purpose of calculating the Ohio Inheritance tax, and that the amount of the refund should be $1,075.58.

The controversy arose because of the inclusion of the proceeds of life insurance policies as a part of the taxable estate in computing the Federal Estate Tax. Under the Ohio Inheritance Tax Law the proceeds of life insurance policies, payable to a beneficiary other than the estate of the insured, are not included in the insured decedent’s estate in calculating the Ohio Inheritance Tax.

In Tax Commission v. Lamprecht, 107 Oh St, 535, the court held that in determining the value of the succession of any beneficiary under the Ohio Inheritance Tax Law, the amount of the federal estate tax should be deducted, like other debts and expenses of administration. But so far as the report of that case shows, no proceeds of life insurance policies were included in the calculation of the Federal Estate Tax, and no mention was made of that subject although at that time the proceeds of life insurance policies were subject to the tax to a certain extent, as they are now to a greater extent.

By Section 826(c) of the United States Internal Revenue Code, it is provided:

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

By virtue of this provision of the Internal Revenue Code, the scope and meaning of that provision in the testator’s will quoted in the agreed statement of facts became important, for it is clear that if upon payment of the Federal Estate Tax there arises in favor of the decedent’s estate a cause of action against the beneficiaries of the insurance for the amount of the tax, an entirely different situation is presented from that where no such cause of action arises. The parties do not agree as to the meaning of the testamentary provision.

Now, does the testator’s will provide “otherwise” than is provided in Section 826(c) of the Internal Revenue Code? In other words, does the will provide that the general estate shall pay the Federal Estate tax without recourse to the life insurance beneficiaries for the share of the tax attributable to the life insurance fund that was included in the net estate in the calculation of the tax? The Probate Court held that the testamentary provision did not relieve the beneficiaries of the life insurance from the ultimate burden. We agree with this conclusion for the reasons stated by the Probate Court. A reading of the testamentary provision shows that the testator had in mind the estate of which he was disposing and that the provision was in favor of the distributees of that estate only. There is nothing to indicate that he had in mind the proceeds of life insurance policies not a part of the estate, or that he intended to confer an added benefit upon the beneficiary therein named. The case of Priedeman v. Jamison, et al., 202 S. W. (2d) 900, - Mo. -, relied upon by the Probate Court supports his conclusion, although the provision in the will is not identical. The provision in the will in that case was:

“Item Six of the testator’s will is as follows, T direct that all inheritance, succession and estate taxes, both federal and state, which may be assessed against my estate, or against any legatee or devisee in this my Will named, shall be paid by my Executors, so that each legatee or devisee shall receive his or her legacy or devise in full, clear and free of all taxes herein described.’ ”

At 904, the Court said:

“Now the testator directed the payment of all of the described taxes which might be ‘assessed against my estate, or against any legatee or devisee in this my Will named, * * * so that each legatee or devisee’ would be exonerated. The testator in naming those whose gifts were to be received ‘in full, clear and free of all taxes herein described,’ did not name the beneficiary of his life insurance policy. In directing the payment of the described taxes so that the legacy or devise of each legatee or devisee should be received in full, clear and free of all the described taxes, should it be said the testator directed the payment of the taxes so that the proceeds of the insurance should be received by the beneficiary in full, clear and free of the Federal Estate Tax? The language of Item Six is devoid of a reference to insur-anee. It would seem the testator’s direction was limited to the exoneration of legatees and devisees. The proceeds of the insurance policy payable to appellant named as beneficiary were not a part of the testator’s estate being administered by his executors in the Probate Court of St. Louis County. Nance v. Hilliard, 8 Cir., 101 F. 2d 957. The proceeds were a part of testator’s ‘gross estate’ for Federal Estate Tax purposes, under a provision of Internal Revenue Code, as amended, 26 U. S. C. A. Int. Rev. Code, Section 811 (g). Appellant as beneficiary in testator’s insurance policy and as recipient of the proceeds of the policy, of course, was not a ‘legatee or devisee’ whom the testator clearly was so exonerating that ‘her legacy or devise’ should be received ‘in full, clear and free of all taxes herein described.’ In our opinion the testator did not direct ‘otherwise in his will’ than that executors-respondents should be entitled to recover from appellant, as provided in Section 826 (c) supra.”

In the case at bar, the testator used the term “distributee.” It would unduly strain this term to hold that it included “beneficiaries” of an insurance policy, particularly when it was used by a testator in a direction relating to his estate.

The provision in this will is contrasted with that construed by this court in The Central Trust Company v. Lamb, 74 Oh Ap, 299. The question in that case was whether the estate should pay the inheritance tax on an inter vivos trust, the beneficial enjoyment of which took effect upon the death of the settlor. The settlor-testator provided in her will that:

“I further direct my executor or executrix to pay as expenses of administration of my estate all inheritance, succession and estate taxes that may be levied or assessed by reason of my death. No such tax shall be charged by my executor or executrix against the bequest or devise of any non-residuary beneficiary of this will, nor shall any such beneficiary be required to pay to my executor or executrix the amount of any such tax before receiving all or any part of his or her bequest or devise, but all such taxes shall be paid out of the residue of my estate.”

We held that under this provision the estate was required to pay the inheritance tax upon the inter-vivos trust estate to the exoneration of the cestui que trust. At pages 309 and 310, it is said:

“Testatrix plainly said that not part, but ‘all inheritance, succession and estate taxes that may be levied or assessed by reason of my death’ shall be paid by her executor as expenses of administration. She said: ‘No such tax shall be charged by my executor against the shares of the principal or income of’ not just certain ones, but ‘any beneficiary of my estate.’ Obviously, she had in mind her taxable estate, the technical words of inheritance,, succession, estate taxes were used, and this court is struck with their use as being skillful and by particular design. By reaching out to indulge a technical rather than ordinary construction of the words ‘my estate’ to upset the plain, all-inclusive language used, would, it seems, defeat rather than ascertain the meaning of the language used, taken in connection with the will as a whole and the surrounding circumstances at the time of the execution of the will. The law presumes that the testatrix knew the succession to the trust corpus was taxable when she made her will, and the words ‘my estate’ being subject to a latent ambiguity and less clear, will not be construed to change the clear statement of intent that all taxes arising by reason of her death were to be paid by her executor as expenses of administration.”

A comparison of the two statutory provisions will make clear the basis for the difference in the conclusions reached.

We conclude, therefore, that when the executor paid the Federal Estate tax there arose in his favor a cause of action against the beneficiary of the life insurance for the amount of such tax attributable to the life insurance fund. So far as this record shows the beneficiary of the life insurance is and was solvent, and that as said amount is collectible, the executor is not entitled to have that amount considered as a debt of the estate in determining the Ohio Inheritance tax. The claim- against beneficiary as an asset counterbalances the amount of tax, should it be ordered paid.

Having reached the conclusion that the testator did not provide “otherwise” in his will, the application of the rule prescribed in Section 826(c) of the United States Internal Revenue Code controls in determining the portion of the Federal Estate tax that should be considered a debt of the estate in determining the Ohio inheritance tax. We ■ have examined the opinion of the Probate Judge in this case, in which he discusses the issues carefully, and, we think, adequately. We have verified his calculation and have reached the same conclusion as to the amount of the refund.

For these reasons, the judgment is affirmed.

ROSS, PJ, HILDEBRANT & MATTHEWS, JJ, concur in syllabus, opinion & judgment.


author: By HURD, J:

text:
    SELLERS, Estate of, In re: JOHNSON, Admr. etc., Plaintiff-Appellant, v. SADLER et al., Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21365.
    Decided January 30, 1950.

      Deibel, Elbrecht & Roberts, M. H. Dixon, Cleveland, for plaintiff-appellant.
    E. M. Tyler, Cleveland, for defendant-appellees.
   OPINION

By HURD, J:

This is an appeal on questions of law from a judgment of the Probate Court of Cuyahoga County, allowing exceptions to the inventory and appraisal filed in the Estate of Susan Sellers, deceased, who died intestate July 8, 1948. The following named persons are her known next of kin: Carl M. Johnson, brother, aged 46 years; Emma Lou Johnson, niece, aged 20 years; Preston G. Johnson, nephew, aged 22 years; Cornelius Johnson, nephew, aged 36 years; Dorothy Morgan, niece, aged 32 years.

The matters in controversy here relate to events preceding her death. The record shows that decedent took out a policy of life insurance on her own life with The Phoenix Mutual Life Insurance Company hereinafter termed the “insurer” or “insurance company.” By the terms of the policy, she reserved the full right to change the beneficiary at will without the consent of the beneficiary, the reservation in part reading as follows:

“If the insured has reserved the right to change the beneficiary hereunder and such fact is recorded on this policy, the insured, if of legal age, may whenever and as often as he likes, change any beneficiary designated herein by filing at the Home Office of the Company a written notice thereof duly executed and accompanied by the policy for record of the charge thereon by the Company. * * (Emphasis supplied.)

The policy was issued April 24, 1940, and first named Cornelius Johnson, her nephew, as the beneficiary. Thereafter on ' Oct. 6, 1945 the assured signed a change of beneficiary certificate naming Georgia Lindsey and Julia Sadler as the beneficiaries, the rider on the policy stating that they were sisters of the insured, which was contrary to the fact, the exceptors being unrelated to the insured.

On December 14, 1947, the decedent suffered a stroke of apoplexy. Carl Johnson, her brother, who is the appellant herein, with other relatives assisting, took decedent to Lakeside Hospital, Cleveland, for care and treatment, where she remained as a patient for some time. On taking her to the hospital, decedent’s brother explained to the Admittance Clerk at the desk “that she had some insurance to take care of her expenses.”

Evidence in the record is undisputed to the effect that when the appellant took his sister to the hospital on the day of her sudden illness, he had a conversation with her after, as he testified, “she came out of the oxygen tent so she could talk and I could talk to her” in which he explained to her that he had to have money to take care of her while she was in the hospital and that her insurance would have to be changed. At that time she told him to change the policy “to her,” that is to change the policy in such a way as to make her or her estate the beneficiary thereof.

It further appears that on the evening of the day on which she was admitted to the hospital, her brother, at her direction, went to the house where she had been living for the purpose of procuring the policy to accomplish a change of beneficiary. He asked Georgia Lindsey, one of the exceptors herein, where his sister’s things were, referring particularly to the insurance policy. Mrs. Lindsey exhibited the policy to him with the remark that she and Mrs. Sadler were the beneficiaries of that insurance. She refused on demand to deliver the policy to him. She also had a bank book of the decedent evidencing a comparatively small account and likewise refused to surrender that to him.

The record shows that after he discussed the situation further with his sister, Johnson with her consent engaged an attorney for the express purpose of complying with her request to have her estate made beneficiary of the insurance policy in order to provide adequate security for hospital care and other expenses due to her illness in the event of her death. Thereafter, by and with the advice of counsel, Johnson made application to be appointed Guardian of the person and estate of his sister, which was granted by Probate Court in due course.

Whereupon, Johnson taking his Letters of Guardianship with him, procured the assistance of a policeman and repaired to the home of the exceptors. With the aid of the police officer he was able to recover from the exceptors the insurance policy and the bank book. Thereupon Johnson again discussed with his sister the matter of change of beneficiary and she repeated her previous request that he cause a change in the designated beneficiaries of the policy so that her estate would be designated as sole beneficiary.

The evidence clearly shows that she gave these directions to her brother both before and after he was appointed Guardian. The appropriate forms were then procured from the insurance company and Johnson signed the request to change the beneficiary from the names of the exceptors to the executor, administrator or assignee of the insured. This request was forwarded to the insurance company and was duly honored by it and the policy was then made payable to “the executor, administrator or assignee of the insured” and endorsed accordingly.

As stated, the record shows that the first request of the insured to make the change of beneficiary was made the day the insured was removed to the hospital on December 14, 1947. This was some time before application was made for appointment of the guardian. The change in beneficiary was effected eventually and the appropriate rider attached January 20th, 1948.

Susan Sellers died in July, 1948, and thereafter the Probate Court on application, appointed the appellant Johnson as administrator of her estate. On making proof of death the insurance company paid him as administrator, the proceeds of the policy in the sum of $1912.37. The appellant as administrator, filed an inventory in which he showed this sum as part of the assets of the estate of the decedent. The ex-ceptors, Georgia Lindsey and Julia Sadler, then filed their exceptions to the inventory, claiming to be entitled to the proceeds of the insurance policy. The insurance company was not at any time made a party to the proceedings.

The record under review consists of a transcript of the testimony of Carl Johnson, the administrator, who was called for cross-examination by the exceptors and Dorothy Morgan, a niece of decedent, who assisted her uncle, the day he took her aunt to the hospital. According to her testimony, the decedent had worked for a private family and at various times at least once a month “would come in and share a room with Julia Sadler” one of the exceptors.

The exceptors did not testify and the only other evidence consists of photostatic copies of the insurance policy and the written requests for change of beneficiary.

Upon hearing, the court sustained the exceptions. A motion for new trial having been made and overruled, an appeal was perfected to this court.

The administrator claims the proceeds of the insurance policy belong to Mrs. Sellers’ estate, because the policy so provided at the death of the insured. The exceptors insist it belongs to them on the ground that the change of beneficiary was invalid.

The assignments of error are:

1. That the exceptors had no right to call Johnson as a witness as if under cross-examination over objection; allowing his testimony is assigned as error.

2. The change of beneficiary from Georgia Lindsey and Julia Sadler to the executor, administrator and assigns of the assured, was lawful and valid; the contrary holding is assigned as error.

3. The probate court had no jurisdiction to change the terms of the policy; the contrary holding is assigned as error.

As to the first ground of error, we think that a fiduciary is subject to examination in Probate Court in respect of his conduct as such fiduciary. It is claimed by appellant that it was error to compel the appellant to testify concerning facts occurring before the death of the decedent, it being claimed that the exceptors are parties adverse to Johnson and assignees of the decedent, under the provisions of §11495 GC. We believe this claim is untenable, particularly because the exceptors cannot be classified as assignees of the decedent.

We shall consider the two remaining assignments of error together.

It is our conclusion, from the evidence, that the change in beneficiary was accomplished by the guardian to the estate of the ward 'for the benefit of the ward and her estate, to provide adequate security for hospital care and other necessaries brought about by reason of her sudden illness. A representation to this effect was made to the admission clerk of the hospital at the time of her admittance. The evidence also shows that» an attempt was made to procure the policy from the exceptors before the appointment of the guardian, without avail. By their refusal to deliver up the policy, upon demand, the exceptors thwarted the attempt of the insured to make a change in beneficiary in her own interest before the appointment of the guardian. The possession of the policy was necessary to effect the change of beneficiary by reason of the requirement of the insurance company, contained in the insurance contract above noted, that the policy must be forwarded to them with the designation of change of beneficiary.

■ The only reasonable inference that can be drawn from the evidence is that the application for the appointment of a guardian was for the purpose of procuring the policy to enable the ward to exercise her right to change the beneficiary for. her own benefit. The parties may have been mistaken as to their means of accomplishing their purpose but certainly they were attempting to enforce a right in the insured’s interest. Were it not for the wrongful conduct of the exceptors in refusing to deliver up the insurance policy upon demand made, the change of beneficiary would have been effected without the appointment of a guardian. The decedent at that time was sui juris although physically incapacitated, and she had a clear right to the possession of the policy and it should have been delivered to her brother, acting as her agent, upon demand.

Furthermore, the record shows conclusively that the proceeds of the policy are presently a part of the estate of the decedent, having been voluntarily delivered to the administrator by the insurance company upon proof of death. The exceptors in reality are strangers to the estate, being unrelated to the decedent and any claims asserted by them must rest upon the proposition that they were at one time named as beneficiaries under the policy in question. Their interest, insofar as this record is concerned, is not founded upon any relation to decedent by blood or affinity, or under any contractual claims. They had no pecuniary interest in the continuance of the life or expected benefit or advantage in continuance of the life of the decedent. Therefore, under well accepted principles they did not have an insurable interest.

A question arises as to what were the rights of the ex-ceptors upon being named beneficiaries? At best their interest because of the reservation clause, was a contingent one, subject to defeasance at any time, by the mere will and act of the insured.

In 22 O. Jur., Section 268, paragraph 409, we note the following:

“The right of a beneficiary named in a contract of life insurance, which reserves to the insured the right to change the beneficiary at will, and which may be defeated by the insured by designation of another beneficiary, is contingent and does not become vested until the happening of the event which matures the policy. So, an express stipulation in the policy that it is ‘written with the right of the insured to change the beneficiary’ creates an absolute right which can be exercised by the insured at any time.”

The record shows that exceptors were not beneficiaries at the maturity of the policy and had not been such for a period of approximately six months prior thereto, consequently they cannot predicate their claim upon a vested interest.

It is well settled that:

“Where statutory, charter or contract provisions regulate the methods which must be pursued in order to effect a valid designation or change of beneficiary, they must, if known, or if the insured is charged with knowledge thereof, be at least substantially complied with, unless compliance is impossible, or is waived, or the insurer is estopped to set up non-compliance.”

See, 22 O. Jur., Sec. 270, page 412. Section 274 states in part as follows:

“Even though the policy of insurance provides that the beneficiary cannot be changed, except by the surrender of the policy, yet, if the insured is unable to comply literally with the requirement because of physical disability * * * or because it (the policy) has been wrongfully taken or withheld from him, the courts will, notwithstanding such surrender recognize an attempted change as a valid one, where it appears that the insured has done all that he can to comply with the requirements, and the claim will be enforced since the insured cannot be compelled to perform impossibilities.” See 22 O. Jur., page 412. (Emphasis supplied.)

In the case of Atkinson v. Metropolitan Life Insurance Co., 114 Oh St 109, certain well defined principles were established as the law of Ohio, in relation to change of beneficiary of life insurance policies, where the policy is written with the right of insured to change the beneficiary. It was there held that such right is absolute and may be exercised at any time and that the consent of the insurance company is not essential thereto, and that although the mode and manner of making the change is subject to reasonable regulations provided that such regulations are expressed in the policy, nevertheless, such provisions are for the benefit of such insurance company and may be waived by it. (See paragraphs 1, 2 and 4 of syllabus.)

It is also held that the notification in writing by the insured or his agent designating a different beneficiary, accompanied by the policy, is sufficient to effect the change and the new beneficiary therein designated is entitled to receive the proceeds.

Paragraph 3 of the syllabus reads as follows:

“Where the policy contains a provision concerning the change of beneficiary that the same can be made ‘by filing written notice thereof at the home office of the company accompanied by the policy for suitable endorsement’ any notification in writing by the insured, or his agent, designating a different beneficiary, which communication is accompanied by the policy, is sufficient to effect the change and the new beneficiary therein designated is entitled to receive payments of the proceeds of the policy without further action on the part of the insurance company.” (Emphasis supplied.)

This case remains unmodified and has been followed in numerous cases both in state and federal jurisdictions.

See particularly, Glen v. Aetna Life Insurance Co. 73 Oh Ap 452 (March 11, 1943), and Sun Life Insurance Company v. Secoy, 72 Fed. Supp. 83 (June 19, 1947).

In Glen v. Aetna Life Insurance Company, it was held inter alia that where an insured reserved unconditionally the right to change beneficiary, additional provisions in a policy setting forth the manner of making the change are solely for the benefit and protection of the insurance company.

In the case of Sun Life Insurance Co. v. Secoy, it was held as follows:

“4. Under Ohio law, a change of beneficiary in life policies may be effected irrespective of fact that manner of effecting such a change set out in the policies is not complied with exactly.
5. Where strict compliance is unnecessary, a change of beneficiaries of life policies is effected under Ohio law, if the evidence shows that the assured had definitely determined to change beneficiaries and that in accordance with that determination had done everything to best of his ability to effectuate the change.” (Emphasis ours.)

In the instant case, the evidence is clear that before the appointment of the guardian, the insured had definitely determined to change beneficiaries and through her agent had done everything to the best of her ability to effectuate the change. It was only after the insured was unable to secure the possession of the policy in order to effectuate the change that an application was made for the appointment of a guardian and this application was for the express purpose of accomplishing the change in beneficiary. The provisions of the policy in respect of the mode and manner of making the change was for the benefit and protection of the insurance company and not for the benefit and protection of the one time beneficiaries who are the exceptors herein.

The question before us is not whether the agency of the brother to effect the change in beneficiary in accord with the insured’s wishes and request, was revoked by the appointment of a guardian. The question is, — was the wish of the insured accomplished, and were the circumstances such that what was done was for the best interests of the assured? Therefore it does not lie with the exceptors, who owed no legal duty of support to the assured, who had no insurable interest in the life of the assured and who had never expended any money to keep the policy in force, to complain of the method employed when the insurance company recognized the assured’s request in whatever form it was received and in pursuance thereof honored the application for change of beneficiary and thereupon upon maturity of the policy, paid the proceeds to the estate upon proof of death by the administrator.

The decision of the Probate Court in this matter appears to rest solely upon the abstract principle of law that a guardian merely by virtue of his office is without authority to designate a change of beneficiary on a policy of life insurance upon the life of his ward. This is, generally speaking, a sound principle of law which is not challenged by this opinion. But facts and circumstances alter cases. The cases upon which the court seems to rely must be distinguished on the facts.

In sustaining the exceptions, the trial court relied principally on the cases of Kay et al v. Erickson, 209 Wis. 147, and In re Wainman’s Estate, 200 N. Y. S. 893.

In re Wainman’s Estate is not applicable because in that case the husband, at the instance of the wife, took out a life insurance policy naming the wife as beneficiary; the premiums being paid by the wife and the wife acquiring a vested interest in the policy. It was held that inasmuch as the husband could not surrender the policy without the wife’s consent because of her vested interest, the committee of his person and estate when he became incompetent, could not surrender the policy for the purpose of paying his debts and for his support.

In the case of Kay v. Erickson, the named beneficiary predeceased the insured and a contest developed as to whether the proceeds of the policy would go to the next of kin or to the estate of the assured upon an attempted designation by the guardian. It was held that the insurance belonged to the next of kin. The court held that the guardian could “undoubtedly surrender the policy to his ward upon the payment of the cash surrender value thereof, for the purpose of providing necessary funds for the purpose of support and maintenance of his ward.” However, on the basis of a bylaw of the Catholic Knights of Wisconsin, the insurers, which read as follows:

“If no person is designated as beneficiary in the certificate, or if the person or persons so designated have predeceased the member, such sum shall be paid to the person or persons to whom the same shall be given and bequeathed in the last will and testament of the member and to the person or persons who are his heirs under the laws of the state of Wisconsin, if he shall die intestate,”

the court held that the heirs at law were clearly entitled to the proceeds of the certificate and that an attempted designation of the estate by the guardian contrary thereto was invalid; an entirely different factual situation from that here presented.

The case of In re Degnan (1937) 122 N. J. Eq. 470, decided by the New Jersey Chancery Court while not directly so, is more nearly in point. In that case after an adjudication of incompetency, the guardian and the ward signed an application for change of beneficiary from the former wife of the incompetent. The insurance company refused to honor the change of beneficiary on the ground that neither the incompetent nor the guardian could validly effectuate such a change in beneficiary. In that case the policies of insurance requesting the insurer to endorse the change of beneficiary to the executors, administrators or assigns of the insured with such applications were delivered to the insurer. The insurance company while declining to recognize the guardian’s application for change, agreed to make the change providing the former named beneficiary consented. This she refused to do. Whereupon the substituted guardian presented his petition to the Chancellor alleging the essential facts and praying an order authorizing him to execute such papers to effect the change of beneficiary desired and directing that upon filing such papers with the insurance company that the insurance company endorse such change on the policies. The court directed the insurance company to endorse the change on the policies and to return them to the petitioner, stating that the change of beneficiary proposed “will be for the benefit of the incompetent should he die before being restored to reason and if he should be discharged from the state institution as mentally cured he may make such change of beneficiary as he may desire.”

It is interesting to note that the Chancellor in arriving at his conclusion considered the cases of Kay v. Erickson, and In re Wainman’s Estate, in the following language:

“Respondent cites Kay v. Erickson, 209 Wis. 147, 244 N. W. Rep. 625, and In re Wainman, 200 N. Y. Supp. 893, as authority for her contention that the Chancellor has no power to grant the guardian’s petition, but the facts in those cases are quite different from the facts here present, and I am unwilling to accept them as guides in arriving at a decision in the instant case. The cases of Brooklyn Trust Co. v. Dais, 122 New Jersey Eq. 182; In re Reeves, 10 Del. Ch. 324; 92 Atl. Rep. 246; affirmed on appeal, 10 Del Ch. 483;; 84 Atl. Rep. 511 and Maclay v. Equitable etc. Soc. 152 U. S. 499 support the conclusion I have reached that the petitioning guardian should be authorized to execute the. necessary form for changing the beneficiary under the policies to the executors, administrators or assigns of the assured * *

Another proposition raised by the assignments of error was the question of determining the title to the proceeds of the insurance policy upon exceptions to the inventory. The record is clear that appellant objected to a hearing by way of exceptions to the inventory on the ground that this was an insurance matter and that the evidence shows that the policy was payable to decedent’s estate and further that the proceeds thereof had been paid to and were at the time of the hearing a part of the estate; that the insurance company was not a party to the proceedings and that in order to change the terms of the policy some sort of reformation order would have to be made and in order to do that the insurance company would necessarily- have to be made a party.

In the case of Estate of Bruce B. Brady, decided July 11, 1941 by the Probate Court of Cuyahoga County, Brewer, J., in a well reasoned opinion, concluded with these words:

“This court should not and will not entertain jurisdiction on exceptions to an inventory to determine the title to property in this estate.”

At page 376 of the opinion we find the following:

“However, there seems to be a definite line of demarcation between the types of cases the Probate Court should entertain and those in which the exceptors should seek other remedies. This distinction is found in 23 Corpus Juris Sec. 381, 1163:
‘The Probate Court has jurisdiction in proceedings for an inventory, to determine whether property belongs prima facie to the estate, so that it should be included in the inventory, but this jurisdiction does not extend to a determination of the ultimate question of ownership of property as between decedent’s estate and an adverse claimant.’ ” (Citing numerous authorities from many jurisdictions.)

The court also refers to the case of the Estate of Brunskill, 63 Oh Ap 529, where the court states at page 532:

“We are of the opinion that under the circumstances disclosed by this record, the probate court was without jurisdiction to pass upon the title to the real and personal property herein involved in the proceedings on exceptions to the inventory of the decedent’s estate. We indulge in no speculation as to whether, under some circumstances, the Probate Court might have jurisdiction to pass upon questions of title upon exceptions to inventories.”

Without further discussing the Brady case, we are of the opinion that the principle enunciated in that case should have been followed in this case, and that it was error to order the administrator to correct and amend his inventory and appraisal by excluding therefrom the cash proceeds of the insurance policy in question, and that any rights which the exceptors claim to have must be adjudicated in some manner other than by way of exceptions to the inventory.

For the reasons stated, the judgment of the Probate Court is reversed and cause remanded with instructions to overrule the exceptions to the inventory. Exceptions noted. Order see journal.

SKEEL, PJ, McNAMEE, J, concur.


author: By HORNBECK, J.

text:
    STATE ex HARLEY, Petitioner-Appellant, v. ALVIS, Warden, Respondent-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4361.
    Decided January 26, 1950.
    Cecile J. Shapiro, Columbus, for petitioner.
    Hon. Herbert S. Duffy, Atty. Geni., Alan E. Schwarzwalder, Asst. Atty. Geni., Columbus, for respondent.
   OPINION

By HORNBECK, J.

This is an appeal on questions of law from an order of the Common Pleas Court dismissing the petition which prayed for a writ of habeas corpus. ,

At the ouset, we direct attention to the fact that the record in this case does not present the facts which are briefed and which were urged in the Common Pleas Court. In the trial, counsel for the petitioner referred to and identified Exhibits A, B and C, neither of which is read into or made a part of the bill of exceptions. There is no answer in which the averments of the petition are admitted and the return of the Warden sets out only an indictment of the defendant under Court of Common Pleas, Franklin County Case No. 28746 and the sentence thereunder. Much comment is made by counsel respecting another indictment under case No. 28710, but there is nothing in the record respecting the charges or the sentences in that case. Observation is made as to certain orders of the Parole Board with respect to the sentence of the petitioner in Case No. 28710, but no such evidence is to be found in the record, either by witness or by stipulation. We may, therefore, properly reach but one question, viz., was the sentence of the petitioner in Case No. 28746 and the commitment thereunder void?

The senctence shows a plea of guilty of petitioner to grand larceny and the sentence of the court that he be imprisoned in the penitentiary in this State * * * not less than-years, and not more than-years or until legally discharged * * *. Sentence to commence upon completion of sentence in Case No. 28710. The effect of this sentence is that it begins at the termination of the sentence in No. 28710, which is equivalent to an order that it be served consecutively to said earlier sentence.

It must be assumed that the sentence in 28710 conforms to all legal requirements and that there has been or will be a fixed date of its termination. The maximum period of imprisonment under judgment of guilt of grand larceny is seven years. No. 28746 is a separate indictment containing but one count and the sentence imposed is fixed by law and must be general under §2166 GC, under which the maximum term may equal but may not exceed the maximum terms' of all the felonies of which petitioner was sentenced and he must be held to be serving one continuous term of imprisonment.

It is contended, although the record does not disclose the facts upon which the contention is made, that the sentence in No. 28710, being upon two counts in one indictment should have been from two to fourteen years instead of separate sentences of one to seven each.

We certainly do not hold, that such sentences were irregular. It is urged that under a sentence of a minimum of two years the prisoner would have been allowed more time each month to hasten the date when he would have been eligible for parole. It is stated by counsel for petitioner that the plaintiff was considered for parole at the end of his first year of imprisonment. It does not appear that the continuance of petitioner’s cause was made because of the form of the sentences. In any event, if it be admitted that there was an irregularity in the sentence in No. 28710, it is nothing more and would not be a,void sentence, nor can we find that the sentence in Case No. 28746, under which the Warden now holds the petitioner, is void.

The cases cited by the appellant do not support his contention. In Larney v. Cleveland, 34 Oh St 599, the 2nd syllabus, holds:

“A sentence of imprisonment ‘to commence after the expiration of former sentences’ is too uncertain and indefinite.”

This syllabus must be read in the light of the facts developed in the case. The sentence under consideration provided that it was to commence after the expiration of former sentences, etc. The court says that it does not appear “in the record what ‘previous sentences’ were referred to by the court at the expiration of which the present sentence was to commence.”

In Williams v. State, 18 Oh St 47, the sentence was to imprisonment in the penitentiary for a further term of ten years, to commence at the expiration of the sentence “aforesaid” but there was nothing in the record showing to what the term “aforesaid” related. It will also be noted that the order of the Supreme Court in the Williams case was to reverse and remand the judgment because the sentence was uncertain. It did not hold that the sentence was void which is a prerequisite here to the granting of a writ of habeas corpus. The first syllabus says:

“Where a party is. convicted at the same time, of several crimes, each punishable by imprisonment in the penitentiary, it is not error, in sentencing the defendant, to make one term of imprisonment commence when another terminates.”

Eldredge v. State, 37 Oh St 193, holds that where there is a verdict of guilty as to more than one count there should be a judgment as to each verdict.

Ex parte Steinmetz, 35 Oh Ap 491, in which the writ of habeas corpus was granted, was grounded upon the proposition that the court pronounced a sentence which was over and beyond its authority.

Picket v. State, 23 Oh St 405, supports the contention of the appellant that the sentence here under consideration was erroneous. In the Picket case there was a plea of guilty and the sentence pronounced was that the defendant be imprisoned in the jail of Hamilton County for the term of thirty days “from and after the sentence heretofore made in Case No. 4948, State of Ohio v. Henry Picket,” etc.

The court held that this sentence was indefinite and uncertain because it did not advise the prisoner and the officer charged with the execution of the sentence of the time of its commencement and termination without being required to inspect the records of other courts or of other cases. The court remanded the cause for proper sentence and judgment. This case is not authority for the claim that the sentence here is void but that it is irregular.

In Williams v. State, supra, as here, the defendant was convicted at the same time of several felonies. It should be kept in mind that all the cases which we have considered were decided before the present controlling statutes as to sentences were enacted.

It is our opinion that the sentences as pronounced in the three cases in which the defendant was convicted were correct. We do not see how they could have been otherwise pronounced except that the minimum and maximum terms could have been carried into the sentence in No. 28746. If the sentence had been from two to fourteen years under the indictment containing two counts, manifestly, had it later appeared that one of the convictions was improper, the sentence would also have been ineffective as to the other count which may have been regular in all particulars.

In our judgment, in this case if there is any irregularity whatever it is not in the form of sentences pronounced and certainly the sentence under which the petitioner is held is not void.

Judgment will be affirmed.

MILLER, PJ, and WISEMAN, J, concur.


author: By HILDEBRANT, J.: ROSS, PJ,

text:
    VOLMER, Plaintiff-Appellee, v. HOEL, Defendant-Appellant.
    Ohio Appeals, First District, Hamilton County.
    No. 7207.
    Decided February 6, 1950.

      Dolle & Rueger, Cincinnati, for plaintiff-appellee.
    Robert G. McIntosh, Cincinnati, for defendant-appellant.
   OPINION

By HILDEBRANT, J.:

Plaintiff’s cause of action, upon which he recovered a verdict and judgment, arose when he sustained bodily injuries in an automobile accident which occurred on Spring Grove Avenue in the City of Cincinnati, Hamilton County, Ohio, on April 23rd, 1946.

The principal contention made on this law appeal is that the suit is now barred by the two years statute of limitation set forth in §11224-1 GC, for such bodily injuries, for the reason that no valid service of process was had on the defendant in this case.

Under favor of §6308 GC, plaintiff chose Hamilton County as the venue and filed his petition on April 10th, 1948, within the two year limitation referred to above, with praecipe for summons directed to the Sheriff of Darke County, Ohio, for the defendant who had given his address at the time of the accident as 509 West Wayne St., Versailles, Ohio.

On April 19, 1948, this summons was returned endorsed:

“Received this writ on the 12th day of April, .1948, one Joe Hoel can not be found in our bailiwick.

Evert Snyder, Sheriff Darke County.”

On May 5th, 1948, Robert E. Dolle, counsel for plaintiff made and filed with the Clerk of Courts the following affidavit, included in the original papers in this case, to-wit:

“State of Ohio, County of Hamilton, SS:

“Robert E. Dolle, being duly sworn, says that he is Attorney for the plaintiff in the above entitled action, which is an action to recover money damages for personal injuries arising out of an automobile collision which occurred in Hamilton County, Ohio; that the defendant’s place of residence at the time of the collision was 509 West Wayne Street, Versailles, Ohio, which is his last known residence; that his present residence is unknown and cannot, with reasonable diligence be ascertained; that plaintiff has made diligent effort to locate the defendant herein and serve him with summons, but said defendant has concealed himself or moved from the State of Ohio, so that service of summons cannot be made within the State of Ohio on him.

ROBERT E. DOLLE.”

On the same day praecipe for alias summons was filed and returned on May 31, 1948, as follows:

“Ralph J. Paul, Sheriff of Franklin County, Ohio, first being duly sworn, deposes and says that he has been duly authorized and deputized by the Sheriff of Hamilton County, Ohio, to serve this writ, and that pursuant to his command, on the 10th day of May, 1948, he served the within named defendant

Joe Hoel

by leaving a true and certified copy of this writ with all the endorsements thereon, and a check for two dollars ($2.00), at the office of Edward J. Hummel, Secretary of the State of Ohio, as Agent for said defendant in this process.

RALPH J. PAUL,

Sheriff, Franklin County, Ohio.”

(The return was duly verified according to law.)

“STATE OF OHIO, HAMILTON COUNTY, Received this Writ 5th day of May, 1948, at 11:21 o’clock, A. M. and on the 10th day of May¡ 1948 I served the within named

JOE HOEL

of 509 West Wayne St., Versailles, Ohio, by deputizing the Sheriff of Franklin County for such purpose, who as such Deputy left at the office of Edward J. Hummel, Secretary of State, a true and certified copy of this writ with all the endorsements thereon. And on the 15th day of May, 1948 I served the within named

JOE HOEL

of 509 West Wayne St., Versailles, Ohio, by sending to him addressed to his last known address, by registered mail, post-' age prepaid, a true and certified copy of this writ with all the endorsements thereon, of the service upon the Secretary of State in the case; the mailing receipt and the returned envelope, marked Moved, left no address is attached herewith and made part of this return.

C. TAYLOR HANDMAN, Sheriff of

Hamilton County, Ohio,

By JAMES E. MOLLOY,

Deputy.”

Continuing the chronology, on August 18th, 1948, by leave, motion to quash service of summons was filed together with two affidavits of the defendant and, later, on November 4th, 1948, counter-affidavits on behalf of plaintiff were filed.

On November 4, 1948, the court orally directed and granted plaintiff leave to amend his petition and hearing on the motion to quash was continued for 30 days, and actually never heard, and none of the affidavits filed in connection therewith being brought on the record by attachment to the bill of exceptions, they are not before the court.

On November 20th, 1948, plaintiff filed an amended petition with praecipe for summons thereon, which was directed to the Sheriff of Madison County, Ohio, whose attached return shows personal service on the defendant.

Defendant demurred to the amended petition, contending the above record shows no valid service within the time limited for the commencement of the action.

The substituted service shown by this record was had in conformity to §6308-1 GC, which provides:

“Any non-resident of this state, being the operator or owner of any motor vehicle, who shall accept the privilege extended by the law of this state to nonresident operators and owners, of operating a motor vehicle, or of having the same operated, within the state of Ohio, or any resident of this state, being the licensed operator or owner of any motor vehicle under the laws of this state, who shall subsequently become a nonresident or shall conceal his whereabouts, shall,, by such acceptance or licensure, as the case may be, and by the operation of such motor vehicle within the state of Ohio, make and constitute the secretary of state of the state of Ohio his, her, or their agent for the service of process in any civil suit or proceeding instituted in the courts of the state of Ohio against such operator or owner of such motor vehicle, arising out of, or by reason of, any accident or collision occurring within the state in which such motor vehicle is involved.”

Sec. 6308-2 GC, provides for deputizing the Sheriff of Franklin County to serve the Secretary of State, which part of this record is not questioned here.

Sec. 6308-5 GC, provides:

“This act shall be construed to extend the right of service of process upon nonresidents and upon residents who subsequently become nonresidents or who conceal their whereabouts, and shall not be construed as limiting any provisions for the service of process now or hereafter existing.”

In a case decisive of the one at bar, our Supreme Court in Hendershot v. Ferkel, 144 Oh St, 112, held in the second paragraph of the syllabus:

“Sec. 6308-2 GC, providing in substance that process shall be served by the officer to whom directed or by the sheriff of Franklin county, upon being deputized, upon the Secretary of State of Ohio and by sending to the defendant by registered mail, postage prepaid, a like, true and attested copy thereof with an endorsement thereon of the service upon said Secretary of State, addressed to such defendant at his last known address and that ‘The registered mail return receipt of such defendant shall be attached to and made a part of the return of service of process’ makes it reasonably certain that such notice will be received by the defendant and does not require actual delivery of the notice to give the court jurisdiction in the cause, and is not constitutionally invalid.”

In that case the attested copy of the substituted service, sent by registered mail to the last known address of the defendant, was returned by the postal establishment, endorsed “Unknown at address” just as the return here shows, “Moved left no address.” In commenting on whether §6308-2 GC, required actual notice to the defendant, the court said at page 119:

“The provision for mailing the copy of summons ‘to the last known address’ in itself evidences a legislative intent to provide for cases in which notice is not actually delivered to the defendant. Were it intended in every case that notice be actually delivered to a defendant, there would be no necessity for providing that notice should be sent to a particular place, to wit, the ‘last known address.’ ”

The court then observed that §11286 GC, providing the method of service in civil actions effective for many years does not require actual delivery of the summons to the defendant, but makes service valid by “leaving a copy at his usual place of residence.”

As to the effect on due process of the want of delivery to the defendant personally of the registered letter containing the attested copy of the summons and absence of a signed receipt therefor, the court said at page 118:

“It is now well established by the case of Wuchter v. Pizzutti, 276 U. S., 13, 72 L. Ed., 446, 48 S. Ct, 259, 37 A. L. R., 1230, and the case of Hess v. Pawloski, 274 U. S., 352, 71 L. Ed., 1091, 47 S. Ct., 632, decided by the Supreme'Court of the United ■States, that actual notice to a nonresident defendant in such a case is not essential to due process. In the opinion in the Wuchter case, Chief Justice Taft, after citing numerous cases, made the following pertinent statement:

“ ‘These cases and others indicate a general trend of authority toward sustaining the validity of service of process, if the statutory provisions in themselves indicate that there is reasonable probability that if the statutes are complied with, the defendant will receive actual notice, and that is the principle that we think should apply here.’ ”

Whether the summons was sent to the place which was the last known address and the requirement of due diligence met, the court stated at pages 117 and 118:

“Whether the - summons was sent to the place which was ‘the last known address’ of the defendant is a question of fact, presumably determined by the court upon competent evidence. It is claimed in argument that the trial court heard such evidence, although the testimony is not brought into the record and is not before this court. See 5 American Jurisprudence, 831, Section 591; 82 A. L. R., 772; 96 A. L. R., 597; 125 A. L. R., 469 — citing State, ex rel. Nelson, v. Grimm, 219 Wis., 630, 263 N. W., 583, 102 A. L. R., 220.

“Conceding the insurance company’s claim that the plaintiff must use diligence to ascertain the ‘last known address’ of the defendant, nevertheless that was a question for the determination of the Court of Common Pleas in the original damage action and presumably was there determined.”

We, therefore, presume from the record here that those questions were determined by the trial court upon competent evidence.

While §§6308-1 and 6308-2 GC, providing for the substituted service here involved, are in derogation of common law, and to be strictly construed in investing the court with jurisdiction, and do not specifically provide for the affidavit filed by plaintiff’s attorney prior to filing a praecipe for substituted service herein, yet §6308-5 GC, states that the act shall be construed to extend the right of service of process upon those named in the act and shall not be construed as limiting any provisions for service of process now or hereafter existing. So, by analogy to those code provisions wherein affidavits for constructive service are required, it would appear to be a logical practice even though not specifically required.

We, therefore, conclude that the substituted service had herein was valid. The action is deemed to be commenced according to the provisions of §11231 GC, as follows:

“Within the meaning of this chapter, an attempt to commence an action shall be deemed to be equivalent to its commencement, when the party diligently endeavors to procure a service, if such attempt be followed by service within sixty days.”

It is urged that by the filing of the amended petition herein, plaintiff abandoned his original petition so that clearly no service has been had within the two year statutory limitation. Examination of the amended petition shows no different additional cause of action requiring the issuance and service of further summons.

Without passing upon the efficacy of the personal service on the defendant obtained in Madison County in November, 1948, shown by the record herein, we call attention to the case of Couts v. Rose, 152 Oh St, 458, decided January 11, 1950, since this court began its consideration of the instant case, wherein it is held:

“A person injured in an automobile collision occurring in this state is not obliged to institute his action for his injury against a nonresident defendant and secure service through §6308-1 GC, within the time limitation provided by §11224-1 GC, but under favor of the provisions of §11228 GC, he may proceed to institute his action through §6308-1 GC, at any time before the defendant returns to the state.”

By analogy, the cause of action here would seem to be similarly protected from the limitation of §11224-1 GC, upon opportunity given to make the record as to the time of concealment so that the validity of the personal service here might possibly be established.

The court has examined the other assignments of error herein and found no error prejudicial to the defendant upon the record.

The judgment is affirmed.

HILDEBRANT & MATTHEWS, JJ, concur in syllabus, opinion & judgment.

ROSS, PJ,

Dissents:

The record fails to show any support for the application of the provisions of §6308-1 GC. The judgment should be reversed, and judgment here entered for the defendant.


author: By McNamee, J:

text:
    STATE In re McHENRY, Relator, v. CALHOUN JR. etc., Respondent.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21718.
    Decided March 13, 1950
    RockerSchwartz, Cleveland, for relator.
    McKeehan, Merrick, Arter & Stewart, Cleveland, for respondent.
   OPINION

By McNamee, J:

This original action in prohibition presents the question: May a Justice of Peace having jurisdiction of the person and subject matter, be prohibited from hearing and determining an action for damages to property that could have been asserted as a counter-claim in another action pending in the Common Pleas Court between the same parties in which the plaintiff in Common Pleas Court sought recovery of damages for injuries to person and property in an amount in excess of the jurisdiction of the Justice.

The facts are:" On July 22, 1949, automobiles owned and operated by James McHenry and William A. Wishon collided on Carroll Boulevard in University Heights, Ohio. On August 13, 1949, McHenry instituted suit in Common Pleas Court of Cuyahoga County against Wishon, seeking recovery of damages to plaintiff’s automobile and injuries to his person which he claims to have sustained as a result of the collision. On October 21, 1949 Wishon filed an answer in the Common Pleas Court-and instead of filing a counter-claim, he instituted suit in the Court of respondent, Justice, against McHenry, seeking to recover the damages to his automobile alleged to have been sustained in the same collision. On November 4, 1949, McHenry filed a motion in the Justice Court to dismiss the Bill of Particulars on the ground of the pendency of another action in Common Pleas Court between the same parties and arising out of the same transaction. This motion was overruled by the Justice of Peace on November 28, 1949. Thereafter, on December 2, 1949, McHenry, filed his petition in this Court for a Writ of Prohibition seeking to prohibit the Justice of Peace from proceeding to hear and determine the action instituted in that Court by Wishon.

It is conceded that the Justice of Peace has jurisdiction of the person and subject matter of the action filed in his Court, the amount of damage sought to be recovered there being $165.00. Likewise, it is conceded that in the action pending in Common Pleas Court the damages sought to be recovered amount to several thousand dollars beyond the jurisdiction of the Justice of Peace.

In support of his claim Relator invokes the rule:

“That as between courts of concurrent and co-extensive jurisdiction, the one whose power is first invoked by the institution of the proper proceedings and the service of the required process, acquires the right to adjudicate upon the whole issue and to settle the rights of the parties to the exclusion of all other tribunals.” 11 O. Jur. 726, Sec. 81.

This rule is founded in consideration of judicial comity and a due regard for the orderly administration of justice. It is a condition of the operation of the rule that the causes of action be the same in both cases. 11 O. Jur. 729, Sec. 82.

As stated by Matthias, J., in State ex rel etc. v. Schneider, 103 Oh St 492, 495:

“The pendency of another action may be successfully pleaded as a defense only when it is clearly made to appear that such pending cause of action is between the same parties, upon the same cause of action.”

The condition of identity of causes of action is met in actions for divorce, where the dissolution of a status is the subject of the action.

Priority of jurisdiction accompanied by judicial competence to determine the whole case, is preemptive of the jurisdiction of other courts of coordinate powers. Thus, while the statute may confer concurrent jurisdiction of the same cause upon courts of coordinate authority, the rule here sought to be invoked operates to invest exclusive jurisdiction in the court first acquiring jurisdiction of the subject matter and person. It is to protect this exclusive jurisdiction against infringement by another court of equal authority that a superior tribunal will intervene by the issuance of a writ of prohibition. Formerly, under the old system of pleading, a plea in abatement was effective to stay proceedings where there was another action pending between the same parties for the same cause. Pleas in abatement no longer being authorized by the Code of Civil Procedure, the pendency of another action for the same cause may be raised by demurrer or motion when that fact appears upon the face of the petition filed in the second ■cause or as is more frequently the case, by answer, when the pendency of another action is not disclosed by the petition.

See: 1 O. Jur. 36, Sec. 12. Where such defenses are unavailing recourse may be had to a superior tribunal for a writ of prohibition. When necessary, resort to a superior tribunal may be made in the first instance.

“In Ohio, the purpose of a writ of prohibition is to keep inferior courts within the limitations of their own jurisdictions and to prevent them from encroaching upon jurisdictions of other tribunals.” 32 O. Jur. 568, Sec. 6.

When there is a conflict of jurisdiction between courts of coordinate authority that cannot be resolved by an appropriate order of the court last acquiring jurisdiction of the person, the intervention of a superior tribunal is necessary. Neither court of concurrent jurisdiction may prohibit or enjoin the other from proceeding to hear the cause and if one court enjoins the parties from proceeding, the other may retaliate by like action. As observed by the author of the text in 28 Am. Juris. 380, Sec. 190:

“For if one may enjoin, the other may retort by injunction and thus the parties be without remedy since they are liable for a process for contempt in one, if they proceed in the other.”

The rule that the court first acquiring jurisdiction retains it to the exclusion of other courts of coordinate authority, has no application where the conflict of jurisdiction is between a court of general jurisdiction and one whose limited powers are inadequate to afford full relief to the parties. See: 11 O. Jur. 730, Sec. 83. Nor, is the rule applicable in those cases where the second action is based upon a different cause of action in favor of a different party. This is true, even though the different causes of action arise out of the same transaction. As conceded, the Justice of Peace has jurisdiction of the subject matter and person in the action instituted by Wishon against McHenry. The Common Pleas Court was invested with authority to hear and determine Wishon’s claim of property damage against McHenry, if the former had filed a cross-petition therefor in the action pending in Common Pleas Court, but under the terms of §11315 GC, the filing of a counterclaim by a defendant is permissive — not obligatory. The general rule that a defendant must set up every defense, legal or equitable, or be deemed to have waived them does not apply to a counter-claim. Witte v. Lockland, 39 Oh St 141.

“But while it is the better and usual practice for a defendant to avail himself of any counter-claim, he may have against the plaintiff’s action, he is not compelled to do so, but may reserve it and sue on it in a separate action, although, if he fails to do so, he will be penalized as to costs in the subsequent action.” 36 O. Jur. 580, Sec. 92.

Covington & C. Bridge Co. v. Sargent, 27 Oh St 233; Swenson v. Cresop, 28 Oh St 668; Witte v. Lockland, 39 Oh St 141.

The penalty for a defendant’s failure to set up a counterclaim is found in §11624 GC, the pertinent part of which reads:

“* * * if a defendant omits to set up a counter-claim or set-off he cannot recover costs against the plaintiff in any subsequent action thereon * *

It is the clear policy of the law to include all causes of action arising out of the same transaction in a single suit. Although the procedure adopted by Wishon in filing a separate action for damages in the Justice Court instead of asserting a counter-claim in the pending action in the Common Pleas Court is incompatible with that policy, such action on his part is not effective to divest the Justice Court of the jurisdiction conferred upon it by law. The law of this State which permits the filing of a counter-claim as a separate action, is the rule in most of the States. In an extensive annotation in 8 A. L. R. 634,- the law in this country and elsewhere is summarized as follows:

“The general rule is that a defendant having a claim available by way of set-off, counter-claim or cross-petition, has an election so to plead it, or to reserve it for a future independent action, and a prior action in which a claim might have been asserted as a set-off, counter-claim or cross-petition is no bar to a subsequent independent action thereon.”

The foregoing statement of the rule is supported by cases from thirty-three States, including Ohio, and cases from the Federal courts, Canada and England. As bearing directly upon counter-claims arising out of automobile collisions, see: Seeger v. Foster, Iowa, 169 N. W. 168, 8 A. L. R. 690. Republic Auto Ins. Co. v. Madel, 253 Mich, 663.

A writ of prohibition should never issue unless it clearly appears that the inferior court is about to exceed its jurisdiction. The pendency in Common Pleas Court of McHenry’s suit against Wishon did not constitute a bar to the prosecution of Wishon’s action in the Justice Court. This being so, the jurisdiction of the respondent Justice of Peace is unaffected by the pending action in Common Pleas Court and there exists no basis for the issuance of a writ of prohibition.

In view of the conclusion reached, we need not and do not express any opinion on the question whether there are other remedies available to the Relator. Solely as a matter of information, and expressly disclaiming any intention to indicate an opinion thereon, or an approval thereof, we direct attention to the note in 125 A. L. R. 337, which discusses “the right to enjoin the prosecution of actions in courts of limited jurisdiction because of the existence of counter-rights beyond such limited jurisdiction.”

Writ denied. Exceptions. Order see journal.

SKEEL, PJ, HURD, J, concur.