text:
    MADGET, Plaintiff-Appellant, v. MADGET et, Defendants-Appellees.
    Ohio Appeals, First District, Hamilton County.
    No. 7059.
    Decided February 21, 1949

      Raymond Huwe, Cincinnati, for William Madget.
    Jack G. Williams, Cincinnati, for Alma Madget.
    Harry B. Marble, Cincinnati for Metropolitan Life Insurance Company.
   OPINION

By MATTHEWS, J.:

The trial court sustained a general demurrer to the amended petition and the plaintiff not desiring to plead further, judgment was rendered dismissing the action. This appeal is from that judgment.

The amended petition purports to state three causes of action. As his first cause of action, the plaintiff in substance alleges that he was the insured in a matured life insurance policy; that he had paid the premiums for the first 19 years and that the defendant, Alma Madget, who was and*is his wife, paid the premiums for the last year and until the policy matured; that thereafter the defendant insurance company issued a check for $442.80, payable to him and his wife; that his endorsement was forged on the check and that his wife appropriated the entire amount of the check to her own use, and that he “was the owner of 19/20ths of said $442.80, that said 19/20ths is his separate property and interest therein.” He also alleged that his wife had become a constructive trustee of the proceeds of said check. He also alleged that he and his wife were not living together at the time she appropriated the cheek and its proceeds and that he was entitled to 19/20ths thereof. He prayed judgment for that amount.

As his second cause of action, the plaintiff alleges that he is entitled to the immediate possession of 19/20ths of the money collected by his wife on the check referred to in the first cause of action; that he is informed and believes that his wife has the money or a sum equal thereto on deposit in The Provident Savings Bank and Trust Company “or in some other bank or financial institution.” He asks that his wife be enjoined from withdrawing the money on deposit in said financial institutions.

As a third cause of action, the plaintiff alleges that he is the insured in two other life insurance policies (numbered 12764745 a and 15166844 a) issued by the defendant insurance company, having a present value of something over $1000.00; that he had paid the premiums for 7 years and his wife had paid them for 2 years on one policy and that he was “entitled to 7/9ths of the present value of that policy; that he had paid the premiums on the other policy for 18 years and his wife had paid them for 2 years and that he was “entitled to 18/20ths of its present value;” that his wife has possession of said policies and that unless his wife is required by order of the court to surrender the policies he will be unable to obtain his share of the cash surrender value and will suffer irreparable damage. He also alleges that the defendant insurance company has refused to take any action and has given notice that it will take no action until the rights to said policies or the proceeds thereof have been determined by a court; that he is unable to determine whether he has the right to change the beneficiary with or without the consent of the named beneficiary and under what conditions when said beneficiary has paid part of the premiums. He also alleges- that he is unable to determine the rights under the policy that will accrue upon his death.

There are other allegations, but the foregoing are sufficient, we believe, to enable us to apply the determinative principles of law.

The prayer is for a declaration of rights of the plaintiff and his wife in and to the surrender or paid up value of the policies, and the duties of the defendant insurance company toward the plaintiff and his wife in relation to said'surrender or paid up value of said policies.

It is the contention of the appellee wife that the allegations of this amended petition are insufficient to state a cause of action between persons other than husband and wife, and much less a cause of action in favor of a husband against his wife. We shall examine the allegations to determine whether they are sufficient in the abstract to state a cause of action, and then consider whether the fact that the plaintiff is the husband of the defendant Alma Madget prevents a recovery.

(1) While the terms of- the insurance policy referred to in the first cause of action are not set forth fully, so as to he sure as to the beneficiary and the power of the insured to change and the right, if any, of the insurer to select the beneficiary, they do show that the plaintiff paid 19 of the 20 premiums and that upon the maturity of the policy the insurer named the plaintiff and his wife as co-payees of the check in discharge of its obligation. Surely, those allegations are sufficient to indicate that the plaintiff had some proprietary interest in the 'check and its proceeds, and the allegations as to the payments of premiums are a sufficient basis to indicate what that interest was.

When to these allegations is added the direct allegation that the plaintiff was the owner of that interest in the check and its proceeds, we think it clear that it is sufficient as an abstract-statement of a cause of action when tested by a general demurrer.

In 31 O. Jur., 565 (Section 29) it is said: “General averments of ownership are ordinarily considered averments of ultimate facts. Thus, allegations or denials that a party was, at a particular time, the owner or holder of a negotiable promissory note, though perhaps indefinite, are not objectionable on the ground of being mere conclusions of law.”

Then there is another rule of construction that precludes the court from declaring this cause of action insufficient on general demurrer. This rule is, as stated in 31 O. Jur., 583, that in accordance with §11345 GC, which provides for a liberal construction of pleadings, courts “must construe pleadings liberally in favor of the pleader.”

We do not believe any extended citations of authorities are necessary to support our conclusion. It will be found that the text of Ohio Jurisprudence is supported by the citation of a long list of Ohio cases.

(2) If the second cause of action is sufficient, it must be on the theory that the allegations show the existence of a constructive trust, of which the plaintiff is the cestui que trustee, and the appellee wife is the trustee. But for a trust to exist, there must be a trust res. The only possible trust res would be the identical money paid to the wife or a specific fund into which it can be traced. However, there is no allegation that the wife still had the identical money at the time the action was filed or a fund into which it was traced.

That a res is essential to the existence of a trust is fundamental. 40 O. Jur., 186. That the res must be identifiable as a separate entity, or as a part of an identifiable fund is settled. Barrs v. Barrs Rent-A-Car Co., 71 Oh Ap, 465. “If there is no corpus there is no trust.” Fulton v. Gardiner, 127 Oh St, 77, at 80. When these principles are applied to the allegations of the second cause of action, we find them, wanting as a statement of a cause of action to enforce a trust.

(3) In this third cause of action it is alleged that the plaintiff is the insured in two specifically identified life policies upon which he had paid certain premiums and his wife had paid other premiums; that his wife has- possession of the policies; that while he owns an interest in the policies commensurate with the premiums paid by him, he has no way of asserting that interest or of knowing his exact rights as against the insurer during his life and upon his death, and, for that reason, he asked for a declaration of his rights, by the court. That the courts of Ohio have jurisdiction to entertain an action for a declaratory judgment in a proper case is clear. Sec. 12102-1, et seq., GC.

Upon the subject of the averments in a petition in an action seeking a declaratory judgment it is said in 16 Am. Jur., 333 (section 64) that: “In view of the purpose of the statute to settle controversies before they have reached the stage where ordinary legal relief is immediately available, it is clear that the complaint need not state what would be a cause of action apart from the statute. It should, however, disclose the existence, or at best, the ripening seeds, of an actual controversy, although it is not essential that it be alleged in so many words that such controversy exists. It should also show that relief is sought under the Declaratory Judgments’ Act and contain a prayer for such relief, either by itself or in combination with affirmative or consequential relief.”

The only requirement in pleading in Ohio is that the cause of action or defense shall be stated in ordinary and concise language. Secs. 11305 and 11314 GC. The fact that the allegations are so indefinite and uncertain that the precise nature of the charge or defense is not apparent, is not ground for demurrer. Sec. 11309 GC. Such a defect may be cured by amendment. Sec. 11336 GC. In discussing the degree of definiteness required in pleading under Chancery practice it is said in 31 O. Jur., 603, that: “It was sufficient if the material facts were plainly and succinctly alleged, with the necessary circumstances of time, place, manner and other incidents; this would seem to be equally true of a petition under the Code, which is largely adopted from principles of equity pleading. Moreover, the rule is considerably relaxed where the facts are peculiarly, and almost exclusively, within the knowledge of the defendant. - If the facts in the allegations of the petition are indefinite, uncertain, etc., the proper method of objection is by motion to make definite and certain. Such an objection cannot be raised by demurrer.”

The allegations of this amended petition show that the plaintiff has an interest or ownership in two written insurance policies, in possession of the defendant, that a controversy has arisen not only as to matured rights thereunder, but also as to rights that will mature upon his death, and he asks for a declaratory judgment as to such matters. It seems to us that he has brought his case within the specific provisions of §12102-2 GC, providing that: “Any person interested under a — written contract - may have determined any question of construction or validity arising under the - contract.”

In 16 Am. Jur., 311, it is stated: “Declaratory judgments have been rendered in numerous cases as to the validity and construction of insurance policies of various kinds and as to the rights arising therefrom.”

We hold that the allegations of the third cause of action in the amended petition are a sufficient statement of an abstract cause of action as against a general demurrer.

(4) We are now brought to the question of whether the fact that the plaintiff is the husband of the defendant Alma Madget prevents these causes of action from arising or prevents him from asserting them against her.

In 27 Am. Jur., 199, it is stated:

“At common law neither spouse can sue the other for a tort on his or her property. However, the view has been taken that the common law merely suspends the remedy for such a tort until discoverture by death or divorce, after which an action can be brought therefor against the other spouse or his or her representative. In some jurisdictions statutes make husband and wife liable to each other for torts by one on the property of the other. There is a difference of opinion as to whether such liability exists by virtue of Married Women’s Acts. Under Married Women’s Acts permitting a wife to sue for a tort to her separate property, but not expressly permitting her to sue her husband therefor, she may, despite the absence of an express provision, maintain such a suit against her husband, at least where she is justifiably living apart from him. It has been so held with respect to replevin, detinue, trover and conversion, and trespass and ejectment. Similar actions by a husband against his wife have been held maintainable. However, under some statutes the contrary view has been taken. Some statutes have been construed to enable a wife to maintain a suit in equity against her husband to protect her separate property, but not to enable her to maintain an action at law to protect her property against his claims or acts.”

This common law incapacity of the wife to resort to the courts to assert rights in personal property owned by her constituted no real limitation upon her right to sue because the wife had no title to personal property during coverture. What had or would have been hers was his upon marriage. In 26 Am. Jur., 865, it is said:

“A wife’s tangible personal property — her goods and chattels —of which she has actual or legal possession, whether such property is hers at the time of marriage or comes to her during coverture, vests, by virtue of their marriage, in her husband under the rule of the common law, and he has the same degree of property therein and the same powers with respect thereto that she, if she were sole, would have; this is true although he asserts no right in such property and does not reduce it into his actual possession. Money in the hands of the wife at the time of marriage becomes the property of the husband, at common law, to the same extent as her chattels.”

This same rule applied to the wife’s choses in action, and to contingent and limited interests, such as tenancy in common in personalty, (Id. 686; sec. 59) provided he reduced them to possession. Self-help was sufficient for the husband’s absolute dominion. Resort to the courts was unnecessary.

The question is whether the incapacity of the husband to sue his wife that existed at common law has survived the Ohio Married Women’s Act, and prevents him from maintaining an action against' his wife -upon a cause _ of action involving property rights not arising out of the marital relation.

Looking at the statutes it would seem that the purpose of the legislature was to remove all significance to the marital relation, when considering property rights of the husband or wife that did not arise out of and were not dependent upon the marital relation: By §7998 GC, it is enacted that: “Neither husband nor wife has any interest in the property of the other” except the right of support, dower and right to remain in the mansion house, etc., as provided by law. Sec. 7999 GC, it is enacted that: “A husband or wife, may enter into any engagement or transaction with the other, or with any other person, which either might if unmarried,” but, by the following section (8000) the generality of the preceding section is limited so that they are precluded from altering their legal relations except to agree upon an immediate separation and make provision for the support of either of them and their children during the separation.

Now how have these statutes been construed and applied?

We have been cited to no Ohio case in which the right of the husband to maintain an action of this kind against the wife has arisen. There are cases involving the right of the wife to contract with her husband and to maintain an action against him.

In Shafer v. Shafer, 30 Oh Ap, 298, this Court held that §§7998, 7999 and 8001 GC, effected a complete emancipation cf the wife except as expressly stated in the statutes, and that, therefore, she could "maintain an action in partition of real estate against her husband.

In DuBois v. Coen, Exr., 100 Oh St, 17, the Court was called upon to decide whether notes executed by the husband payable to his wife in consideration of her release of her right to inchoate dower, and after his death to a year’s support and to live in the mansion house, and a distributive share in his estate, under the laws of Ohio, was enforceable by the wife’s executors. The Court construed §8000 GC, and held as stated in the 4th paragraph of the syllabus that: “The term ‘legal relations’ used in the act comprises not only the purely marital relations existing between them, but also the property provisions which the law gave to each upon the death of a consort.”

The Court held that as these notes were not given as part of an agreement for immediate separation they were unenforceable. The power and right of the husband and wife generally to contract with one another and to enforce the contracts by action in court was assumed. It was the exception to the general right to contract and sue that was involved.

Speaking of the effect of the “Act to define the rights’ and liabilities of husband and wife,” passed March 19th, 1887 (84 O. t. 132) the .Court said at page 21, that: “It lifted the wife above the limitations which restricted her contractual powers and put her upon a plane with her husband thereby giving to her all the freedom of contract which he himself had.”

It should be noted that the court was sharply divided. Two of the judges were of the opinion that “legal relations” meant “marital relations” and that these notes were binding and enforceable in this action.

In Hoagland v. Hoagland, 113 Oh St, 228, the Court was called upon again to construe these sections in an action in which the question was whether dower and distributive share could be released in an agreement contemplating immediate separation. The husband had died and the action was by his heir to quiet title against the claim of the wife for dower. The Court held that the contract was binding upon the wife and quieted the title against her claim for dower. The only difference between this case and DuBois v. Coen, Exr., supra, was that in one case the release of dower and distributive share was a part of an agreement for immediate separation, and in the other separation formed no part of the agreement. In Hoagland v. Hoagland as well as DuBois v. Coen, no question was raised as to the capacity" of the plaintiff to maintain the action. It was the power to contract, not the capacity to sue that was discussed. If the capacity to sue was doubted by any one, silence on the subject would have been broken by some one.

In State v. Phillips, 85 Oh St, 317, the Court was presented with the question of whether the Married Women’s Act taken in conjunction with the section of the Criminal Code defining larceny, authorized the prosecution of the wife for larceny when she had converted to her own use the personal property of her husband. The Court held, as stated in the syllabus, that:

“The Common law rule that neither husband nor wife can be prosecuted for larceny of the goods of the other, is not abrogated by §§7995 to 8004 GC, defining the rights and liabilities of husband and wife, nor by §12447 GC, defining larceny. An intention of the legislature to abolish an established rule of the common law and to create a crime where none existed before, must clearly and unmistakably appear.”

Counsel for appellee relies strongly on this language found on page 324 of the opinion:

“Moreover, the unity of husband and wife, as recognized in the common law, is founded not merely on a community of goods, but upon the recognized obligation of both to the family and to society. The unit of society is not the individual but the family; and whatever tends to undermine the family, by the irrepealable laws of nature will crumble and destroy the foundations of society and the state.”

We think the trend of the Court’s reasoning is more adequately shown on page 323 by this language:

“The legislature was .contemplating the expressed purpose of the statutes, and that only. They were not at that time considering climes and criminal procedure; and surely they cannot be presumed to have intended a thing which they did not clearly express and which is fraught with such far-reaching and radical consequences to the law of the domestic relations, for the abrogation of the doctrine of the legal unity of husband and wife, when pushed to its logical conclusion, would not only create crimes where there were none before, but would /also authorize a husband or wife to maintain civil actions for tort against .the other, such as actions Tor personal injuries, assault, false imprisonment, or slander.”

The two dominant thoughts expressed here are that the legislature in passing the Married Women’s Act did not have .in contemplation the creating of crimes and modifying the application of the criminal laws, and the other thought was that it did not contemplate the creation of causes of action for purely personal torts of the wife against the husband, or the husband against the wife. We believe a reading of the chapter headed: “Husband and Wife” (§7995, et seq, GO .makes this manifest. Those sections modify the common law in certain respects. The common law rights of the husband .and wife in the property of the other were abolished, and it was enacted that neither should have any interest in the property of the other except as stated in the statute. With certain stated exceptions, they were given the right to contract as freely with one another and with others as though they were unmarried.

By providing that neither should have any interest in the property of the other except as stated, the legislature in effect enacted that the state would lend its aid to the husband or wife in preventing the other from invading the property rights of the other. As stated by Justice Cardozo property is no more than “the bundle of privileges” sanctioned by law — and the usual method of securing such property rights is by recourse to the courts for their enforcement, in the proper forms by the appropriate remedy, regardless of whether it would have been called ex contractu or ex delicto at common law. A right conferred by law is a right enforceable by law. There can be no right without a remedy.

When the legislature enacted that husband and wife might contract with one another as though unmarried except that they could not alter their legal relations, it necessarily meant that the state would assist the promisee to enforce the contractual obligation against the promisor. By so doing, it would be no more than assisting in protecting the property-right created by the contract.

We find no case in Ohio denying the right of the husband to maintain an action to recover his property from his wife or seeking damages on account of its conversion. In Finn v. Finn, 19 Oh Ap, 302, the Court held that the wife could not maintain an action to recover damages on account of personal injuries caused by defendant’s negligence and did make the broad statement, in the opinion that: “Had it been the intention of the Legislature to permit husband and wife to sue each other for injuries to the person or property of the other, it surely would have so declared by express and. clear legislative enactment” but that statement was purely gratuitous. Neither State v. Phillips, supra, or any other case cited by the Court supports the broad statement. They all relate to torts causing injury to the person. None of them relates to torts causing damage to property.

Nor have we found any Ohio case holding that the husband could maintain an action in replevin or conversion against the wife. In other jurisdictions, varying results have been reached depending on the exact wording of the statutes in the different states. We believe in none of them has the legislature granted greater freedom to contract and to hold property free from the common law disabilities than Ohio.

In Eddleman v. Eddleman, 109 A. L. R., 877, (183 Ga. 766, 189 S. E. 833) the Court held as stated in the syllabus, that:

“While the statutes of this state embodied in the Code of 1933, §§2-2201, 53-501, 53-502, 53-503, do not purport to change the common law in respect to personal torts committed by one spouse against the other, they do change the common law in respect to property rights of the wife. With respect to such rights she is a feme sole, and may be sued by her husband in a bail-trover proceeding for recovery of his personal property converted by her.”

This result was reached in construing a statute that is certainly no broader than our statute. In construing the statute to authorize an action in conversion by the husband against the wife, the Court, quoting from an earlier Georgia case, said at page 880:

“In the case of Huff v. Wright, 39 Ga. 41, 43, it was declared by this court that husband and wife are no longer a unit, one person in law, with all the property vested in the husband as the head of the family, but so far as property is concerned two distinct persons, with separate and distinct rights. In a word, the common law rule upon this subject no longer prevails in this state. Every married woman is, as to her property, a feme sole, with power to purchase, hold and convey property, contract and be contracted with, sue and be sued as a feme sole. This, under the new order of things, being the status of married women as to their property, rights and liabilities, why may not this wife be sued as a man could be sued, and made to respond precisely in the same manner, as to all contracts upon which she could bind her estate? We see no reason.”

And, at 881, the Court, after reviewing the authorities, stated its own conclusion thus:

“While the statutes of this state, embodied in the Code, §2-2201 (Const. Art. 3, Sec. 11, par. 1), and §§53-501, 53-502, 53-503, do not purport to change the common law in respect to personal torts committed by one spouse against the other, they do change the common law in respect to property rights of the wife. With respect to such rights she is a feme sole, and may be sued by her husband in a bail-trover proceeding for recovery of his personal property converted by her. It follows that the Court of Appeals erred in affirming the judgment granting a nonsuit.”

In the case of Geary v. Geary, 12 Atl. (2d) 23, (338 Pa. 385) the facts bear a striking resemblance to the facts in this case. In that case the husband sued in equity to recover from his wife the possession of three policies of life insurance which she was withholding from him. The husband was the insured and the wife was the beneficiary, with the right reserved in the insured to change the beneficiary. The parties had separated and the wife had taken the policies with her without the husband’s consent. The husband had been ordered to pay for the support of the wife. On this-subject, the Court said at page 24:

“There is no merit in defendant’s contention that as a creditor of her husband under the order of support she is justified in retaining these policies. They were not pledged to her as security for plaintiff’s obligation, nor has she asserted any facts which would entitle her to such security. It does not appear that plaintiff intends to dispose of the policies without adequate consideration, or that such a disposition would render him insolvent. Furthermore, a creditor may not seize possession of the property of his debtor upon the mere apprehension that a fraudulent conveyance of the property in the future is contemplated.”

And on the right of the husband to maintain the action against the wife to recover his property the Court at page 25 said:

“Since, as we have concluded, plaintiff has the sole right to possession of the policies evidencing the insurance contracts, the present action is clearly permitted by the quoted provision of the act. See Schomaker v. Schomaker, 247 Pa. 444, 93 A. 460; Burke v. Burke, 307 Pa. 518, 162 A. 199. Regardless of whatever rights defendant may have in the proceeds of the policies, the documents themselves are the ‘separate property’ of the husband within the meaning of the Act, wherein the term is used ‘not * * * in any technical, but in a broad and comprehensive, sense’: Morrish v. Morrish, 262 Pa. 192, 198, 105 A. 83, 85.”

An examination of the legal encyclopedias and text books discloses that the divergent results reached by the different courts have resulted from the difference in statutory language. We believe, however, that the distinction between purely personal torts and torts affecting property rights is generally recognized.

In the case at bar, we are only required to determine whether the plaintiff has any remedy of any sort whereby he can assert his right in the insurance policies against his wife. He prays for a declaration of his rights. On demurrer, it is sufficient if his amended petition shows a right enforceable in any form of action to require the overruling of the demurrer. We are of the opinion that his amended petition shows a right, and that the law affords a remedy.

For these reasons, we are of the opinion that the court erred in sustaining the demurrer.

The judgment is reversed, and the cause remanded for further proceedings according to law.

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


source: Caselaw Access Project

author: By MILLER, PJ.

license: Public Domain

text:
    CROSS, Exrx., etc., Plaintiff-Appellant, v MOTORISTS MUTUAL INSURANCE COMPANY, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4238.
    Decided September 30, 1949.
    Gumble & Gumble, Harry Hofheimer, Columbus, for plaintiff-appellant.
    Benoy & Sebastian, Columbus, for defendant-appellee.
   OPINION

By MILLER, PJ.

This is a law appeal from the judgment of the Common Pleas Court of Franklin County, sustaining a motion for a directed verdict for the defendant at the close of the plaintiff’s case. The action was one to recover for the loss of a trailer under the terms of an insurance policy issued by the defendant-appellee. The policy contained the following endorsement:

“In consideration of the premium charged, it is agreed that the insured trailer will be used principally for vacation purposes and will not be used as a trailer home.”

The only question presented is whether or not as a matter of iaw the trailer was being used as a trailer home at the time that it was destroyed by an explosion and fire. If it was, then the judgment is correct and should not be disturbed. The facts do not seem to be in dispute but only inferences to be derived therefrom.

Briefly stated, the record discloses that the insured and his family had lived in Cambridge, Ohio, for two years where he had been employed by The Continental Can Company. Upon receiving notice that he was going to be transferred to some other undesignated location the home in Cambridge was sold in November, 1945, and the wife and daughter went to California in the trailer, parking it in the Plantation Trailer Park in Los Angeles, California, where it remained until it was destroyed on June 9, 1946. Here it was connected to the gas line, water line and electric line. The wheels were jacked up off the ground in order to protect the tires. As it was not being used on the highway, no license had been purchased for 1946 from either the state of Ohio or California.

During the month of December Mrs. Cross, the wife of the insured, worked for a period of three weeks in Los Angeles. She and the daughter lived in the trailer during the entire period of time it was parked in the trailer camp prior to the time of the fire, with the exception of several weeks when she visited her husband who had been transferred to Chicago. At the time of the fire the husband was visiting her in California and was fatally burned in the trailer fire. Mrs. Cross was called as a witness and testified that she and the daughter were on vacation in the trailer; that they were there only temporarily and it was never intended to become permanent; that it was not their home and that they were trying to sell the trailer having been offered $1800.00 which was deemed inadequate.

Now did the trial court err in holding from these facts that reasonable minds could arrive at only one conclusion, that being that the trailer was being used as a “trailer home” in violation of one of the restrictions in the policy? We are of the opinion that it did. Since it is admitted that the defendant prepared the policy, any ambiguous provision must be construed strictly against the defendant and liberally in favor of the plaintiff. The appellee urges that under California law, and in the case of The Aetna Life Insurance Company v. Aird, 108 Fed. (2nd), 136, under similar facts, the trailer became a building instead of a vehicle. Even conceding this, and upon which we do not express an opinion, this fact alone would not make it a trailer home. We are cited to only one Ohio case defining the word “home”, that being Nelson v. Nelson, 19 Ohio, 282:

“The term home, generally means nothing more than the place where a person has his habitation — his place of residence. The habitation or home may be, and often is, at one place, and the means of support at another; there is no necessary connection between them.”

Upon an examination of the words “habitation” and “residence”, supra, in Webster’s New International Dictionary, Second Edition, we note that in their stricter sense these words denote a certain sense of permanency. It defines “habitation” as, “place of abode; settled dwelling; residence; house”. Then under the synonyms we find listed “habitation, dwelling, residence, domicile, home. * * * Residence denotes a settled or permanent home”. The word “home” is also defined in 40 Corpus Juris Secundum, page 418, as,

“A relative term, whose meaning must often necessarily depend on the intent as determined by the context; and which may be, and is, often used in different senses, * * *. It has been defined as meaning domicile * * *; a dwelling house, or dwelling place; * * * the house in which one lives, especially the house in which one lives with his family, the habitual abode of one’s family; the place of constant or permanent residence; * * *; the place where one and his family habitually dwell, which they may leave for temporary purposes, and to which they return when the occasion for absence no longer exists; the place where one permanently resides and to which he intends to return when away from it; * * * some permanent abode or residence where the person residing intends to remain.”

In examining the context of the restriction in the policy the idea of permanency is definitely suggested, as it permits its use for living purposes while on vacation. It is a matter of common knowledge that trailers are used for living purposes, and permitting its use while on vacation would necessarily infer that it could be used for living quarters. The word “vacation” in its ordinary sense suggests a temporary status. We are, therefore, of the opinion that the restrictive clause in the policy means that the trailer may be used as a temporary home while on vacation, but not as a permanent home. This was a factual question which should have been submitted to the jury for their determination, as different inferences could reasonably have been drawn from the evidence submitted.

The judgment is ordered reversed and cause remanded.

HORNBECK and WISEMAN, JJ, concur.


author: By THE COURT:

text:
    MONSEY, Plaintiff-Appellee, v. CINCINNATI STREET RAILWAY COMPANY, Defendant-Appellant.
    Ohio Appeals, First District, Hamilton County.
    No. 7086.
    Decided May 23, 1949.

      Robert F. Dreidame, Cincinnati, for plaintiff-appellee.
    John M. McCaslin, Cincinnati, for defendant-appellant.
   OPINION

By THE COURT:

This appeal is from a judgment for the plaintiff for damages to an automobile, as the result of a collision with one of the defendant’s street cars.

The defendant-appellant complains specifically of the giving of the following special charge:

“I charge you that the mere fact that the front of plaintiff’s automobile ran into and against the side of the defendant’s street car does not prevent the plaintiff from recovering, if you find that the sole, proximate cause of the collision was the negligence of defendant’s motorman.

“I charge you that if you find from all of the evidence that the sole, proximate cause of the collision in question was the negligence of the defendant’s motorman, then your verdict must be for the plaintiff.”

As the basis of his claim of error counsel relies upon Plotkin v. Meeks, 131 Oh St, 493, in which the court held, as stated in the syllabus that:

“1. When contributory negligence is a controverted issue, it is not error to refuse a special charge to the jury which assumes plaintiff guilty of negligence and leaves to the jury only the question of proximate cause.

“2. A special charge to the jury requested by a party to the action, which is based on the assumption that a material fact exists in the case, but which in reality is in dispute between the parties, is properly refused. (Northern Ohio Rd. Co. v. Rigby, 69 Oh St, 184, paragraph 1 of syllabus; Binder v. Youngstown Municipal Ry. Co., 125 Oh St, 193, paragraph 1 of syllabus; Weybright v. Fleming, 40 Oh St, 52, paragraph 1 of syllabus; Bellefontaine Ry. Co. v. Snyder, 24 Oh St, 670, paragraph 3 of syllabus, approved and followed. Bartson, d. b. a. Bartson Driveaway Co. v. Craig, an Infant, 121 Oh St, 371, overruled.)”

The special charge which the court found contained an assumption of a disputed fact was:

“If you find from the evidence that the negligence of the plaintiff either directly caused or directly contributed in the slightest degree to cause the injuries of which she complains, your verdict must be for the defendant.”

A comparison of the charge given in the Plotkin case with the charge given in the case at bar forces us to the conclusion that the latter contains the same vice. In each, there is an assumption of negligence by plaintiff, leaving only the issue of proximate cause for decision by the jury.

We find that the court erred in giving the special charge. Appellant’s counsel also relies upon an alleged error in the general charge, wherein the court said:

“The Court charges you if you find from the evidence that the defendant did violate that ordinance or did violate the law and went against the red light he is guilty of negligence, as defined to you, you should then find for the plaintiff.”

Of course, the finding of one of several issues in favor of the plaintiff would not entitle him to a finding on all the other issues and to a general verdict. Such an instruction, manifestly, would be erroneous. The court did not clearly and positively so charge, but, certainly what was said could have misled the jury and together with the special charge may account for the verdict for the plaintiff.

The last objection of appellant is that the verdict and judgment are not supported by any substantial evidence and that, therefore, the court erred in overruling its motions for an instructed verdict for judgment. In passing upon this-claim, we limit ourselves to a consideration of the plaintiff’s own testimony. The plaintiff was operating his automobile at the time and if his testimony fails to show a cause of action, it is useless to go further in our consideration of the record.

The collision of the plaintiff’s automobile and the defendant’s street car took place in the intersection of Broadway and East Fifth Street in the City of Cincinnati. North of East Fifth Street on Broadway, there are two street car-tracks. One of these tracks continues across East 5th Street, on Broadway, and the other (the easterly track) turns westwardly on East Fifth Street and crosses the westwardly track, and proceeds westwardly on East Fifth Street.

East Fifth Street is somewhere between 70 and 80 feet wide, and Broadway is about half that width.

There is a loading platform on the west side of Broadway, just north of East Fifth Street, and a loading platform on East Fifth Street, just west of Broadway. This latter loading platform is immediately south of the street car tracks-in East Fifth Street that turn from Broadway onto East Fifth Street at that intersection, and between this platform and the south curb of East Fifth Street, there are three lanes, of traffic.

Traffic at the intersection of East Fifth Street and Broadway is controlled by lights.

The defendant’s street car had approached the intersection, on Broadway from the north and was proceeding southwardlyacross the intersection at the time of the collision.

The plaintiff approached the intersection from the west, and was proceeding eastwardly in the intersection when his-, automobile came into collision with the street car.

On the subject of what happened just prior to and at the-time of the collision, the plaintiff testified:

“Q. Now in which lane were you proceeding?

“A. 1 was in the lane right next-to the loading platform.

“Q. That would be the northerly lane of these three; is-, that correct?

“A. Yes.

“Q. Now, was there anything on the other side of the-loading platform?

“A. Well, directly to my left was a street car also waiting; for the light to turn to make a left turn, the street car.

“Q. That was not the street car with which your automobile had later collided?

“A. No, sir.

“Q. At the time you are talking about was your automobile .moving or was it stopped?

“A. My automobile was completely stopped.

“Q. What was the color of the light at that time?

“A. Red.

“Q. And about where was the front end of your automobile at the time we are now talking about?

“A. It was a few feet behind the front end of the street •car that was on my left, a few feet behind.

“Q. Where was the front of that street car that was on your left, with reference to say the car tracks that run north and south on Broadway?

“A. Well, I would say that that street car was stopped right there where it should be stopped, right there at the buttons.

“Q. Now, what happened from the time that you were stopped? Tell us what next occurred.

“A. Well, the light changed to yellow and the light changed to green and when the light changed to green I immediately proceeded east and I did not see the street car until I was approximately ten feet from it. I was accelerating at the time. There was a reaction period there from the time my foot left the accelerator until I hit the brake pedal and by the time 1 stopped it was too late. I met with the street car. It was a few feet in front of the center unloading platform on the street car, that is where I met it, and what caused damage to the car was the fact that this street car dragged my car approximately ten feet, because the bumper was caught right there at the unloading platform in the center of the street car.

“Q. By unloading platform you mean the step that people step on as they get out of the center of the car?

“A. Yes, sir.

“Q. When was it that you first saw the front of the street car?

“A. Well, it was approximately eight or ten feet from me.

“Q. Where was it with reference to this other car that was on your left at that time?

“A. At the time I saw it it had pulled just in front, just beyond the middle of the street car on my left.

“Q. As it came out ahead of that street car on your left you saw it?

“A. That’s right.

“Q. You were then about ten feet from it?

“A. From the street car, yes.

“Q. Describe the manner in which you ran into the street car, that is the manner in which your car came in contact with it, as to whether it was a severe blow or otherwise?

“A. It was not a severe blow. The bumpers of my car went underneath the street car and the hood of my car just barely touched the side of the. street car. I had almost come to a dead stop, whether I did make contact with the street car—

“Q. At that time, Mr. Monsey, can you tell the jury what color of the light was?

“A. At the time I proceeded east on Fifth Street the light, was green.

“Q. And what color was it when you came in contact with the street car?

“A. The light was green.

‘‘Q. Green for whom?

“A. Green for me.”

“Q. Well, was there any collision between that street car and the southbound street car?

“A. No, sir, Mr. McCaslin, because the operator of that street car could see the street car coming south on Broadway and I could not.

“Q. You were not in a position to tell whether or not, when that light turned green for you, any traffic had entered the intersection from the north or not, were you?

“A. No, sir.”

Now what does this testimony mean?

It means, we think, that the plaintiff, relying solely upon the fact that the traffic light was green, proceeded into the intersection, knowing that there might be a street car or other southbound traffic on Broadway lawfully in the intersection, with preferential right to complete the crossing (§6307-13 GC), without having his automobile under sufficient control to avoid colliding with such traffic, should there be any such traffic in the intersection. The operator of the street car which was alongside of plaintiff’s automobile at the loading platform did not operate his street car so as to collide with the street ear going south on Broadway, because he saw it and controlled his street car, so that it would not come in contact with the approaching street car. . The plaintiff, without knowing whether a street car had entered the-intersection from the north, and with his view obstructed by the street car proceeding alongside failed to so control his automobile as to prevent it from coming into collision with the southbound street car proceeding along a path predetermined by the visible equipment in the street. In so proceeding, in sole reliance on the traffic lights, under those circumstances, the plaintiff was negligent, and such negligence was, at the least, a part of the direct cause of the collision.

For these reasons, the judgment is reversed and final judgment rendered for the defendant.

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


author: By THE COURT.

text:
    GATES, Plaintiff-Appellant, v. McDONALD, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4316.
    Decided September 6, 1949.
    Brownfield, Schwenker;& Teaford, Columbus, for plaintiff-.appellant.
    Power, McConnaughey & Griffith, Columbus, for defendant.appellee.
   opinion

By THE COURT.

Submitted upon motion by the defendant-appellee for an order of dismissal for the reason that the appellant has failed to file assignments of error and briefs within the time provided by Rule VII, The plaintiff-appellant has also submitted a motion for leave to file the same out of rule. The only reason assigned by counsel for the appellant for the-failure to comply with the rule is that they were of the opinion that an extension of time was granted to them in two-entries prepared by counsel for the appellee granting an extension of time in which to cure certain objections to the Bill of Exceptions and for the approval of the same by the-trial court. This error on the part of counsel does not constitute good cause for failure to comply with the rule. Rule VII definitely provides that the time starts to run upon the filing of the notice of appeal. Should counsel have been unable to comply with the rule because of the delay in the-approval of the Bill of Exceptions by the trial court, it was incumbent upon them to secure an extension of time. This, court has consistently required strict compliance with the rule.

The motion of the appellee will be sustained, and that of the appellant overruled.

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


author: By ROSS, PJ.:

text:
    CLIFTON, etc., Plaintiff-Appellee, v. HOLLIDAY, etc., Defendant-Appellant.
    Ohio Appeals, First District, Hamilton County.
    No. 7061.
    Decided February 21, 1949.

      John M. McCaslin, Richard H. Pennington, Cincinnati, for pláintiff-appellee.
    Robert M. McIntosh, Peter J. McCarthy, Cincinnati, for defendant-appellant.
   OPINION

By ROSS, PJ.:

This is an appeal on questions of law from a judgment of the Common Pleas Court of Hamilton County, entered upon a verdict of a jury in favor of the plaintiff in the sum of $2.000.00, and reduced by the Court, on consent of plaintiff to remittitur, to $1000,00. Summons was returned October 6, 1947.

The plaintiff, in her amended petition, states that she is a minor, and that the defendant operates the “Beechmont. Riding Club” where saddle horses may be hired for riding,, that on May 20, 1947, at about 4:00 o’clock in the afternoon, she applied to the defendant’s employee for a saddle horse-to ride, that a horse was saddled for her, that she mounted it and was directed by such employee to ride the horse to a nearby “riding ring” (a circular path used for exercising, horses), that she proceeded toward the ring, “but that after having gone about seventy-five feet the horse turned and bolted toward the stable door, that she was unable to control the horse (emphasis ours) and was carried through’ the door into the stable,” that her head struck a beam and she was thrown off the horse and severely injured, her scalp being badly cut and torn. Plaintiff states further that the defendant was negligent in that “knowing the proclivities of horses, (emphasis ours) to return to the stable, habitually, kept a bar across the aforementioned door just for the purpose of preventing horses from running back to their stalls from outside, but that said defendant failed to place said bar across the stable door during the time plaintiff attempted to go. riding.”

The answer was in effect a general denial.

Trial resulted in a verdict for the plaintiff of $2000.00.. Motion non obstante was filed by the defendant and overruled. Judgment was entered on the verdict for $2,000.00. Motion for new trial was filed and, after consent to remittitur of $1,000.00, was overruled, and judgment entered for the sum of $1,000.00. Appeal on questions of law is taken to this-. Court from such judgment.

It may be questioned whether the petition in this case-states a cause of action, in any event, the evidence fails to sustain any cause of action against the defendant.

It appears from the evidence that the plaintiff, a young married woman, eighteen years of age, lived in the neighborhood of defendant’s stables, and saw various persons hiring-horses and riding them, that upon the day hereinbefore mentioned she went over to the defendant’s stables and asked an employee for a horse to ride, that she was asked if she could ride and told the attendant she had ridden before. It appears from her own evidence that plaintiff had been riding horses ever since she was twelve years of age and was-thoroughly familiar with saddle horses. Plaintiff told the-attendant that she did not want a “dead head.” She was-shown a particular horse and said he would be satisfactory.

Plaintiff was directed to try the horse first in a nearby riding ring and started to ride toward it, when, feeling that the saddle was loose, turned the horse about to ride back and have the saddle adjusted.

When the horse was turned it “reared up, took off towards the barn.”

The plaintiff states she “sawed” on the reins, but the horse ran back to and into the lower part of the barn through a low door, toward its stall. The plaintiff “ducked” the lintel of the door, but apparently a low beam inside the barn struck her head and she was knocked from the horse suffering severe injuries to her scalp and head.

There is not the slightest evidence in the record to indicate that this particular horse possessed any peculiar characteristic not common to all saddle horses. In fact, it will be noted in the amended petition, and the testimony of a number of witnesses for the plaintiff sustain the statement therein, that it is a normal characteristic of horses in general and particularly hired riding horses to return to their stalls if permitted to do so. The plaintiff states the defendant knew this and should have had a bar across the entrance to the stable. There is evidence that the defendant at times maintained a bar across the entrance to the stalls. There is no evidence that this fact was known to the plaintiff. The familiarity with horses, admitted by plaintiff, would justify the conclusion that she also knew of this normal propensity of horses to return to their stalls. There is not the slightest evidence that this particular horse was vicious or intractable, or more unmanageable than any normal horse.

The position of the plaintiff in assigning the absence of the bar across the door as the proximate cause of her injuries, presupposes that the horse either was not or could not be controlled by the rider, for if it is a normal characteristic of all horses to return to their stalls, certainly it would seem that, unless controlled, they will do so. Two things will keep them from going back to their stalls, one, control by the rider, the other, an obstruction across the entrance to the stalls. If the rider has no responsibility, it is difficult to see how a horse could ever be ridden away from the stable.

Wherever horses are used for riding, there is present a contest of wills, the inclination of the horse, and the purpose of the rider. If the latter does not know how to control the normal horse, obviously the horse will have its way. Again, there is no evidence that this particular horse had any characteristic not possessed by riding horses in general which would prevent normal control of his actions.

The obvious, inescapable conclusion, deducible from the evidence, is that the plaintiff’s injuries were caused solely because she could not or did not control this (according to her own statement and allegation) perfectly normal horse.

To justify the plaintiff’s conception of liability in the defendant, it must be accepted as a predicate that all horses are uncontrollable, that is, that riders have no control over their actions, that they will all run to their stalls, and that the sole means of preventing injury to such riders is to have bars across the entries to their stalls. In other words, that one who hires a saddle horse is not presumed to be able to control his movements. Such a predicate for responsibility is completely untenable and has been repudiated by all courts considering cases involving questions of liability growing out of the use of hired saddle horses.

The syllabus in Troop A Riding Academy v. Miller, 127 Oh St, 545, is as follows:

“One who rides a horse, which he has hired for that purpose, takes the ordinary risks incident to such pursuit.

“In order to recover for injuries received when a horse hired for riding runs and falls, one who sues in tort must show knowledge, on the part of the owner or his agents, of some trait, condition or propensity from .which a probability of the horse’s running away or falling might reasonably be inferred.

“When there is no evidence of any known trait, condition or propensity of the horse, which would subject the rider to greater risks than ordinarily attach to horseback riding, it is error for the trial judge to submit such case to the jury. Defendant’s motion for an instructed verdict should be granted.”

To the same effect is Reynolds v. Kenwood Riding Club, Inc., 59 Oh Ap, 453, where it is stated in the first paragraph of the syllabus:

“A person riding a hired horse must take the ordinary risks incident to such pursuit and, in order to recover in tort from the owner of the horse for injuries sustained as a result of being thrown from the horse, the rider must show that the owner had some knowledge of a trait, condition or propensity of the horse, which was not as obvious to the rider as to the owner that would subject the rider to greater than the ordinary risks of riding.”

There may be peculiar circumstances involving a particular horse, justifying liability as where the rider is young and inexperienced, and the horse is known by the owner to be unbroken, as was the case in Cousino v. Huss, 71 Oh Ap, 107, or where the equipment furnished with the horse is defective, or improperly or negligently adjusted, as was the case of Wenrick v. Hendrickson, etc., 17 Abs, 451, 455.

Negligence is never presumed. It must be proved, and it must be shown to be the proximate cause of plaintiff’s injuries.

There is no evidence in the record indicating a standard of care appropriate to the operation of riding facilities requiring a bar across the door or entrance to the stalls for horses rented for riding. On the contrary, the evidence is to the opposite effect. That it is necessary to introduce evidence sustaining such standard of care in cases in which the public has not common knowledge of the requirements is held in Englehardt, etc., v. Philipps, etc., 136 Oh St, 73, where it is stated in the second paragraph of the syllabus:

“Legal liability for negligence is based upon conduct involving unreasonable risk to another, which must be established ' by • affirmative evidence tending to show that such conduct falls below the standard represented by the conduct of reasonable men under the same or similar circumstances.”

And, at page 78 of the opinion, it is stated:

“Legal liability for negligence is based upon conduct involving unreasonable risk to another which must be established by affirmative evidence tending to show that such conduct falls below the standard represented by the conduct of reasonable men under the same or similar circumstances. Moreover, in determining whether the defendant should recognize the risks which are involved in his conduct as being unreasonable, only those circumstances which the defendant perceives or should perceive at the time he acts or fails to act are to be considered. Until specific conduct involving such unreasonable risk to the plaintiff is made manifest by some evidence, there is no issue to submit to the jury.”

The defendant moved for a directed verdict in the case at bar, at the conclusión of all the evidence. This motion should have been granted, and this Court will render the judgment for the defendant which the trial court should have rendered.

This action renders it unnecessary to comment on other assignments of error.

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


text:
    STATE, ex SCHNEIDER, Plaintiff-Appellant, v. SMITH et, Defendants-Appellees, RANDALL, Defendant-Appellant.
    Ohio Appeals, Second District, Greene County.
    No. 511.
    Decided July 26, 1949.
    Miller & Finney, Xenia, for defendant-appellee, the Village of Fairfield, Ohio.
    Merritt E. Schlafman, Dayton, for defendant-appellee, the Village of Osborn, Ohio.
    Frederick W. Howell, Ernest W. Kruse, Harshman & Young, Dayton, for plaintiff-appellant.
    Joseph S. Gill, Columbus, for Simeon T. Randall, defendant-appellant.
   OPINION

By THE COURT:

Submitted on motion of appellees, the Village of Fairfield, Ohio, and the Village of Osborn, Ohio, to dismiss the appeal on questions of law and fact and to retain it on questions of law only, and that the period of time for filing briefs as provided by Rule VII of this court be shortened in order to expedite and advance the cause on the trial docket.

The cause was submitted, determined and judgment entered on the pleadings, agreed stipulation of facts and supplemental stipulation of facts. The issue was one of law only. The appeal therefore comes under the principle announced in LeMaistre, Admr., Warner, Admx., Appellant v. Clark, Appellee, 142 Oh St 1. The appeal on questions of law and fact should be dismissed and the appeal proceed as upon' questions of law only. It will be so ordered.

Inasmuch as the facts are agreed and are immediately available to counsel for appellants, it will be ordered that ten days be granted to appellants to prepare their record for presentation to the Trial Court for settlement and allowance, the time to begin to run from the date that the opinion of the court upon this motion is journalized, Goyert & Vogel v. Eicher, Admr., et al., 70 Oh St p. 30, appellants to be giVen three days after settlement and allowance of the bill in which to file it in this court and ten days thereafter within which to file briefs, appellees, ten days for answer briefs, and appellants, five days thereafter for reply briefs if it is desired to file such briefs.

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

SUBMITTED UPON AN AGREED STATEMENT OF FACTS

No. 511. Decided September 29, 1949.

By THE COURT.

This is a law appeal submitted to the Court upon an agreed statement of facts. We have carefully examined the record and briefs of counsel and have come to the same conclusion as the trial court. Judge McDowell, in a well-considered opinion, has, we think, correctly stated the law applicable-to the facts presented, the determination being based upon the fact that all monies had been expended prior to the beginning of the action and that the election would not constitute a fraud upon the electors. Under these circumstances-a court of equity can grant no relief.

Finding- no error in the record, the judgment is ordered, affirmed.

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


text:
    COMBS, Estate of, In re.
    Ohio Appeals, Second District, Franklin County.
    No. 4335.
    Decided September 28, 1949.
    Willis H, Liggett, Columbus, for executrix-appellant.
    Hon. Hugh S. Jenkins, Hon. Herbert S. Duffy, Attys. Geni., Robert W. Levering, Robert E. Younger, Columbus, for the Department of Taxation of Ohio, appellee.
   OPINION

By THE COURT.

This is an appeal on questions of law from the judgment of the Probate Court of Franklin County, Ohio, sustaining exceptions filed by the Department of Taxation to the determination of the inheritance tax assessed against Ethel A. Combs, the widow, on her succession to the interest of the deceased husband in a bank account, a promissory note and U. S. Government bonds. The bank account was a joint and survivorship checking account in the name of the husband and wife. The promissory note and the bonds were held jointly by the husband and wife. Inasmuch as the money loaned for which the note was given and the money used to purchase the bonds came from the checking account it is conceded that the tax on the note and bonds will be controlled by the determination of the tax on the checking account.

The checking account was opened in 1931. From 1931 until June 26, 1948, the date of the death of the husband, the record shows that the husband deposited his earnings and profits from his business in the checking account. Against this account checks were issued in payment of family expenses and for investment purposes. The balance in the account fluctuated. The record shows that on October 9, 1943, the balance was $4678.70. On January 30, 1946, it had increased to $26,647.92. On June 13, 1947, the balance was only $3418.00 and increased again to $36,790.69 on June 26, 1948, the date of the husband’s death. The fluctuation in the account was caused by large deposits made by the husband and checks issued against the account in large amounts, presumably for investment purposes.

The testimony of Mrs. Combs was to the effect that for at least twenty years of the thirty-nine years of her married life she earned on the average of $25.00 per week as a musical entertainer and teacher. She testified she made deposits occasionally of small amounts in the account, but the time of making the deposits and the amounts were not stated. Moreover, she testified positively that after she and her husband acquired a residence most of her earnings were used for home and family expenses. The record shows that the residence was acquired before the joint account was opened.

On the basis of this evidence the trial court found that the entire balance in the checking account had been contributed by the husband and held that the entire amount was taxable as a succession, and, also, the entire amount of the note and bonds.

We cannot say that the judgment of the trial court is not sustained by the evidence.

The donative portion or the amount of the account which was not contributed by the one who succeeds to the account is taxable. Sec. 5332, Par. 5, GC; Tax Commission v. Hutchinson, 120 Oh St 361, 369, 166 N. E. 352.

Finding no error in the record prejudicial to the appellant, the judgment is affirmed. '

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


author: By HILDEBRANT, J.:

text:
    McNEES, Plaintiff-Appellee, v. CINCINNATI STREET RAILWAY CO., etc., Defendant-Appellant.
    Ohio Appeals, First District, Hamilton County.
    No. 7027.
    Decided January 10, 1949.

      Hoover, Beall, Whitman & Eichel, Cincinnati, for plaintiffappellee.
    C. R. Beirne, Cincinnati, for defendant-appellant.
   OPINION

By HILDEBRANT, J.:

This is an Industrial Commission case, in which the dependent widow’s claim was denied by the Commission, for the reason “That the claim be disallowed on rehearing for the reason that the claimant has failed to prove by the preponderance of the evidence that the decedent’s death was the result of an injury sustained in the course of, and arising out of employment with the employer named herein.”

On appeal to the Common Pleas Court the following interrogatory was propounded to the jury:

“Was the cause of Taylor McNees’ death, the mental strain and excitement of the driving conditions which prevailed as he drove the trolley bus on the night of January 17, 1944?”

The jury answered the interrogatory “Yes”, and returned a general verdict for the defendant.

Plaintiff moved for judgment notwithstanding the general verdict, on the ground that the evidence in the case and the special verdict of the jury in answer to the interrogatory justified and required such a judgment. The Court granted the motion.

The principal question in the case is whether or not decedent suffered an injury within the meaning of the law in the course of and arising out of his employment by the defendant, who is an employer qualified under the law to pay compensation direct.

There is no substantial dispute as to the facts surrounding the death.

The record reveals that decedent had been employed for a number of years by the defendant as an operator of its trolley busses. Plaintiff testified that decedent, who was 57 years of age, was in apparent good health, except that for a period of a year of more he had complained of shortness of breath, dizziness and a pain around his heart, and down his left arm. Decedent was described by a fellow workman as being by temperament excitable, anxious about his work with respect to whether or not he was to be assigned to a hard or easy run, and as one who worried about the performance of his regular duties, and that on the night of, and shortly before his death the decedent was quite excited. Decedent was driving an old style, hard to steer trolley bus on the night of January 17th, 1944, about 11:00, P. M., outbound on the McMicken-Main run, and the night was so foggy that one could not see more than two or three feet ahead; close to the end of his outbound run, he picked up an inbound woman passenger, asking her help in guiding the path of the bus to the end of the line; his trolleys came off at the terminal and a fellow workman testified he was quite excited about it, and they had some trouble getting him started on his inbound run; inbound, his route .is somewhat irregular for some distance at the start, which he traversed with the aid of a passenger, who testified that he stood on the step in the opened door of the bus and assisted in keeping-on the course by observing the distance to the curb and calling right and left directions to the operator; at the same time a youth located directly behind the driver made a game of it by calling out exactly opposite directions, although told by the driver to keep quiet; on reaching a comparative straight away about a mile inbound, the bus got so far off course that the trolleys came off the wires; decedent got out and attempted to replace the trolleys; while stalled for that reason, another bus came up from the rear and that driver testified he got out and helped try to replace the trolleys without success; decedent was in and out of his bus two or three times during these efforts; the drivers agreed to try having the second bus push the first into position to reconnect the trolleys; the driver of the second bus testified he tried to push the other bus, but was only able to move it three or four feet, as it seemed to have the brake on, and on going to investigate, he found decedent slumped over his steering wheel; that he asked if he was sick, and he answered “yes”, whereupon, with help he stretched decedent out on the floor of the bus and called a police car, which took decedent to the hospital, where he was pronounced dead on arrival, as the result of a coronary thrombosis; a woman passenger on the bus testified that de-. cedent slumped over his steering wheel with a gurgling sound.

There was evidence tending to show unusual physical exertion required in piloting the bus at 5 miles per hour speed over a wavering irregular course.

The medical testimony offered by plaintiff was confined to one expert witness, who never saw decedent, who answered a hypothetical question to the effect that the physical strain involved in the driving conditions would and probably did cause the thrombosis; questioned at call of the defendant the doctor who examined decedent at the hospital and. stated the cause of his death, testified that the mental strain was more apt to have caused the death; both doctors admitted the thrombosis could be caused by either physical or mental strain or both, or could arise without any apparent strain of any kind being involved.

Under these facts, the question is was decedent’s death caused by an injury received in the course of and arising out of his employment.

Starting with the original act of 1911, followed by that of 1913, and through the amendment of §1465-68 GC, in 1937, by the addition of the following paragraph: “The term ‘injury’ as used in this section and in the Workmen’s Compensation Act shall include any injury received in the course of, and arising out of, the injured employee’s employment,” the Supreme Court has in a long line of decisions construed and defined the term “injury” as used in the Constitution and statutes and as applied to the limitless diversity of facts with which it has been confronted. These decisions reveal the reasons and background which have actuated the Court by necessity in order to maintain the constitutional differentiation between injury and disease, to append to the bare terms “injuries” and “injury” as used in the Constitution and statutes such language as accidental, physical, traumatic, accidental in origin and cause, accidental in character and result, and used as related to diseases which are occasioned by or follow as a result of physical injury or acceleration of a pre-existing condition, aggravated by physical injury. For a detailed and discerning history of the judicial construction from the inception of the law, reference is here made to the Article entitled “When is an Injury Not an Injury” by Stephen D. Hadley, of the Akron Bar, reported in 25 Oh Ap 485.

In the case of Malone v. Industrial Commission, 140 Oh St, 292, referring to the 1937 Amendment and stating the rule of statutory construction, the Court, at page 299, said:

“When an existing statute is repealed and a new statute upon the same subject is enacted to include an amendment, as in this case, it is presumed that the Legislature intended to change the effect and operation of the law to the extent of the change in the language thereof.”

We, therefore, conclude that by the amendment, the legislature intended to do away with all limitation on the word “injury” previously placed thereon by judicial construction, save only the constitutional differentiation made between “injury” and “disease.” This seems to be in accord with the concurring opinion in the Malone case, supra, wherein it is stated:

“Under the effective legislative definition, the word ‘injury,’ as applied in the Workmen’s Compensation Act, includes ‘any injury received in the course of, and arising out of, the injured employee’s employment.’

“It therefore includes every injury thus occurring. Inquiry is thereby limited to determining whether the physical disability in question was caused by trauma and did not result from disease, and whether it occurred in the course of and arose out of the employment.”

Limiting our inquiry here in conformity to the statement immediately above, it is apparent that the coronary thrombosis struck this decedent in the course of his employment, and while he was at the steering wheel of his trolley bus; it further appears that by the accident of weather he was exposed to a hazard greater than the genera] public, who were not required to drive a cumbersome vehicle on the public streets carrying passengers for hire with the consequential responsibility for their safety; it further appears that the driving conditions forced upon the decedent an unusual manner of performing his work and quite out of the ordinary in seeking directions from a passenger located on the step of the opened door, and complicated as it incidentally was by counter instructions in this case, these circumstances would seem to supply what was missing in the Nelson case, 150 Oh St, 1, to make it a compensable injury as indicated by the statement of the Court at the bottom of page 9:

“In every muscular movement there is stress and strain,, but, unless there is something unusual or out of the ordinary in the manner of doing his work, which a person is either forced to undergo or undergoes voluntarily, his death is not compensable when he dies from a condition which has iong been with him.” (Emphasis ours.)

Clearly, there was increased physical strain in peering into-the blanket of fog, straining to keep on the course; these facts, would seem to supply the causal connection between the employment and the mishap, in the light of medical testimony to the effect that the blood pressure could be increased thereby.

As to the question of trauma, it appears to be answered by the following statement in the Malone case, at page 300:

“This court is still committed to the proposition that a compensable injury under the Workmen’s Compensation Act. must be accidental and traumatic in character. This is. necessary to differentiate compensable injury from disease-which is not compensable unless caused by an injury, and except occupational diseases for which special provision has-now been made under the law. Such holding, to the effect that a compensable injury must be accidental and traumatic in character, is in harmony with the holdings of practically all courts of last resort of states where Workmen’s Compensation Acts are in force. And this court takes the further position that accidental and traumatic injuries, having the other essential elements of a compensable injury, are compensable whether they are the result of accidental means or the result of the mishap itself proximately causing the harm or damage.” (Emphasis ours.)

We, therefore, conclude that decedent’s death was the result of a sudden mishap occurring by chance, unexpectedly and not in the usual course of events at a particular, time and place, and, therefore, compensable under the law.

Plaintiff’s motion for judgment was not based on any-claimed inconsistency between the general and special verdiets of the jury, although here such verdicts are inconsistent, but was specifically directed at the general verdict based upon the evidence and the answer of the jury to the special interrogatory.

The facts as to what happened on the night of the death are not in dispute, the only difference in the record going to the opinion of the medical experts, wherein one views physical strain, the other mental strain as more probably the cause of the coronary thrombosis. Even this is not a clear cleavage of opinion, since both admit the thrombosis might be caused by either type of strain, both types in combination, or even without strain at all.

We are of the opinion that the evidence conclusively showed the death due to the unusual stress of the employment at the particular time and place under conditions not shared in by the public in general, so that both physical and mental strain to which decedent was subjected combined to produce the coronary thrombosis as the direct and proximate cause of his death.

The answer to the special interrogatory is not now inconsistent with a compensable injury or death, in view of the amendment making any injury, or in other words, every injury compensable suffered in the course of, and arising out of the employment.

Therefore, assuming all the facts claimed by way of defense and supported by evidence, to be true, nevertheless, there are no facts proven which render the death under the circumstances here not compensable.

The action of the trial court in granting the plaintiff’s motion for judgment notwithstanding the general verdict is, therefore, sustained (Bank v. Youngstown, 143 Oh St, 533).

This result would seem to be in accord with the current trend and weight of authority in similar cases, as indicated by the text from 58 Am. Jur., 756, section 255:

“By the weight of authority, the sudden and unexpected breaking of some portion of the internal structure of the body, as in the case of cerebral hemorrhage, apoplexy, hernia, etc., or the failure of some essential function thereof, as in the case of heart failure, paralysis, and similar afflictions, brought about by the exertions of the employee while engaged in the performance of his duties, or by the conditions of the employment, even without any external happening of an accidental nature, is to be regarded as an accidental injury within the meaning of the terms ‘injury by accident,’ ‘injury proximately caused by accident,’ ‘personal injury accidentally sustained,’ and similar expressions, as used in compensation statutes, as well as a simple personal injury, although there are holdings to the contrary. And this is true notwithstanding the workman may have been suffering from a pre-existing infirmity which constituted a predisposing cause of such disablement. It is said, in this connection, that an internal injury which is sudden, unusual, and unexpected is none the less accidental because its external cause is part of the victim’s ordinary work. And the general rule has been held applicable where such affliction results from blood pressure intensified by vigorous muscular activity, while the employee is performing his work in the usual manner, without any extraordinary effort. It is especially applicable where the disablement or affliction is due to extraordinary effort or overexertion. Heart failure, paralysis, or similar affliction, resulting from excitement caused by some event occurring in the course of the employment has also been held to constitute a personal injury by accident arising out of the employment.”

The judgment is affirmed.

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


author: By FORD, J.

text:
    LAPOLLA ex YOUNGSTOWN (City), v. DAVIS.
    Common Pleas Court, Mahoning County.
    No. 127242.
    Decided September 15, 1948.

      John W. King, Columbus, Henry C. Church, D. Pauline Church, Youngstown, for plaintiff.
    H. Herschell Hunt, Law Director, Youngstown, for defendant Davis, finance director.
    Robert D. Huxley, Youngstown, for defendant, Allen.
   OPINION

By FORD, J.

This is a suit in equity brought by a taxpayer under §4314 GC and seeking to restrain the payment of future saiary to the defendant, Allen, as Chief of Police of the City of Youngstown. The basis of plaintiff’s claim is that Allen is but a de facto officer; that he was illegally appointed by the Mayor in that, (1) the office to which he was appointed requires its incumbent under the Ohio Constitution, Article XV, Section 4, to have the qualifications of an elector, which he did not have, and (2) that the office is in the competitive classified service under §486-8 GC and that he did not qualify for the same under the State Civil Service Laws.

We overruled demurrers to the Petition on the ground that plaintiff, as a taxpayer, was entitled under §4314 GC to raise the question of Allen’s right to future salary. In doing so we confined ourselves to that issue alone, disclaiming any intention of passing on the merits of the controversy, though arguably they were raised by the demurrer.

Sec. 4314 GC merely enables a taxpayer under certain conditions to exercise the statutory duty of the chief law officer of a city under §4311 GC to apply for an order of injunction to restrain the misapplication of municipal funds. The purpose of these sections is to insure the preservation of any rights a municipality might have in the premises. But the plaintiff to recover must not only establish misapplication of funds as a fact but also that the misapplication is one that equity will restrain.

It is settled law-that a de facto officer can not sue to recover salary withheld from him; on the other hand, that if he has received his salary he may keep it. The intermediate question is involved here, can he be prevented from drawing it?

The law is stated in High on Injunctions, 4th Ed. * * * 1312, 1314.

“No principle of the law of injunctions, and perhaps no doctrine of equity jurisprudence is more definitely fixed or more clearly established than that courts of equity will not interfere by injunction to determine questions concerning the appointment or election of public officers or their title to office, such questions being of a purely legal nature, and cognizable only by courts of law.”

“The general principle as above stated * * * denying relief in equity for the purpose of determining disputed questions of title to public officers, is also applied to cases where it is sought by injunction to restrain the collection of the fees and emoluments pertaining to an office, pending a contest as to the title.”

This application of the principle has been followed in many cases from other states and is supported by the following Ohio cases, all of which were taxpayer’s suits seeking to restrain the payment of salary where the controlling question was the legality of the appointment or election of the recipient, and in each case the court held that quo warranto was the only proper remedy to test the question. Morrow v. City of Cleveland, 73 Oh Ap 460, 469, 29 O. O. 136, State, ex rel, Srofe v. Vance, 18 O. N. P. N. S. 198, State, ex rel. Vail v. Craig, 21 O. C. C. 175 (affirmed 64 Oh St 588).

No Ohio case has been found involving a de facto public officer which takes the contrary view.

Allen was publicly appointed Chief of Police by the proper appointing authority; he has been in possession of the office and discharging its functions with general public acquiescence. Were we to order that his pay be stopped, he would continue in office though the basis of our order could only be that he was ineligible to the office. The anomalous and confusing result would be to have a chief of police in office, performing the duties and subject to the responsibilities of that office, and yet not entitled to pay for his work. Such a situation would be obviated by following the law which requires a direct attack by a quo warranto proceeding, in which Allen’s title to the office can be finally determined, rather than by permitting a collateral attack which would require Allen to resist without insuring a final settlement of his status.

Even if, therefore, plaintiff correctly contends Allen to be the occupant of an office, we determine that the present case is one in which equity should not intervene, irrespective of whether or not the plaintiff himself has a legal remedy to test the legality of Allen’s appointment.

The determination of the foregoing question, as well as of both of the questions raised by plaintiff in his petition, hinges upon a determination of whether Allen is a person who occupies an office. This arises by reason of Article XV, Section 4 of the Ohio Constitution, which reads:

“No person shall be elected or appointed to any office in this state unless possessed of the qualifications of an elector.”

These qualifications are prescribed in §§4785-29 and 4785-30 GC and are that an elector shall be, among other things, a resident of this state for one year next preceding the election at which he offers to vote. Allen at the time of his appointment was not possessed of this qualification.

Bearing in mind the looseness with which the terms “officer”' and “office” are applied in ordinary and even legal usage,. we must be careful here to consider only what an “office” is within the purview of the above constitutional provision.

Fifty years ago our Supreme Court in 57 Oh St, 415, laid down this rule, which has been applied in many cases since:

“To constitute a public office, against the incumbent of which quo warranto will lie, it is essential that certain independent public duties, a part of the sovereignty of the state, should be appointed to it by law, to be exercised by the incumbent, in virtue of his election or appointment to the office, thus created and defined, and not as a mere employe, subject to the direction and control of someone else.”

The Court said further (page 425):

“The fact that a public employment is held at the will or pleasure of another, as a deputy or servant, who holds at the will of his principal, is held * * * to distinguish a mere employment from a public office, for in such cases no part of the state sovereignty is delegated to such employees.”

The people of the City of Youngstown, under the provisions of the Ohio Constitution, Article XVIII, Section 7, the so-called Home Rule Amendment, framed and adopted a charter in which they have prescribed the form of their local government. Our Supreme Court, as lately as last month, in State ex rel. Hackley v. Edmonds, 150 Oh St 203, 37 O. O. 474 has reaffirmed the long established right of the people of a city through a charter to determine what officers shall administer their municipal government, which shall be appointed and which elected, and what are their powers and duties. The people of a city can exercise all powers of local self-government thereunder, provided their charter does not exceed the powers granted in Section 3 of that Article nor disregard the limits imposed therein or in other articles.

In defining the powers of their officers, the people of this city have made the mayor the chief executive officer, and, by adopting the duties required of a mayor by state laws, have made him the sole conservator of the peace. They also have placed the chief of police in the unclassified civil service though the State Civil Service laws place that municipal position in the classified service. This is important here because incumbents in the classified service have a tenure during good behavior and can only be removed for cause after a hearing. An incumbent in the unclassified service is there by appointment at the discretion of the appointing authority and may be removed therefrom at the pleasure of such authority.

It has been repeatedly held by our Supreme Court that as long as the provisions of a municipal charter comply with the reqquirements of Article XV, Section 10 of the Ohio Constitution relating to Civil Service, and do not conflict with any other of its provisions, they are valid and discontinue general laws on the subject as to the municipality involved.

In addition to its civil service provision, the charter specifically provides in two places that the mayor may appoint and may at will remove the Chief of Police. It is evident that the people of Youngstown have placed the sole direction of their police department in their chief executive, the Mayor, as well as the sole responsibility for its proper use in their service. They deliberately made the Chief of Police the Mayor’s deputy and no more.

That being the status of the position of Chief of Police under the charter, it is clear that he holds at the will of his principal, who hires and can fire him, that as against his principal no independent police duties are appointed to him by law and that therefore, in the language of the Supreme Court in the Jennings case, supra, no part of the state’s sovereignty is delegated to him. His position is a public employment, not a public office.

If not an occupant of an “office” in the constitutional sense, there is no basis in fact or in law justifying an order restraining the payment of his future salary.

It is our conclusion in this case,

(1) that plaintiff is not entitled to an injunction, even if it be conceded that Allen is the occupant of a public office;

(2) that Allen, not being the occupant of a public office within the meaning of Article XV, Section 4 of the Ohio Constitution, was eligible to appointment despite his residence out of the state until the day before his appointment; and

(3) that the provision of the Youngstown City Charter placing his position in the unclassified service being paramount, Allen was eligible to appointment.

Judgment will be entered for the defendants at plaintiff’s costs.

JENKINS & DOYLE, JJ, concur!


text:
    McKEE, Plaintiff-Appellee, v. CLARK, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4349.
    Decided September 6, 1949.
    Alexander, Ebinger & Wenger, Columbus, for plaintiff-appellee.
    Walter R. Hill, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

Submitted on motion by the plaintiff-appellee to strike the notice of appeal from the files, the same being noted as on law only and that the judgment of the Common Pleas Court, entered on June 23, 1949, be affirmed. The record discloses that the notice of appeal was filed on July'25, 1949, which is more than 20 days from the date of the judgment entry. The case originated in the Municipal Court and was in the Common Pleas Court on appeal. There is no provision in the General Code for the filing of a motion for a new trial in a reviewing court and therefore the date of the overruling of the appellant’s motion for a new trial is of no significance.» See Kromer v. Kear, No. 4318, decided by this Court on August 8, 1949. (55 Abs 385.)

The motion to strike is sustained.

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

McKEE, Plaintiff-Appellee, v. WADE, Defendant-Appellant.

Ohio Appeals, Second District, Franklin County.

ON MOTION TO STRIKE APPEAL

No. 4350. Decided September 6, 1949.

By THE COURT.

Submitted on motion by the plaintiff-appellee to strike the notice of appeal from the files, the same being noted as on law only and that the judgment of the Common Pleas Court, entered on June 23, 1949, be affirmed. The record discloses that the notice of appeal was filed on July 25, 1949, which is more than 20 days from the date of the judgment entry. The case originated in the Municipal Court and was in the Common Pleas Court on appeal. There is no provision in the General Code for the filing of a motion for a new trial in a reviewing court and therefore the date of the overruling of the appellant’s motion for a new trial is of no significance. See Kromer v. Kear, No. 4318, decided by this Court on August 8, 1949. (55 Abs 385.)

The motion to strike is sustained.

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