text:
    ROSSER et, Plain tiffs-Appellees, v. ROSSER et, Defendants-Appellees, and RANK, Defendant-Appellant.
    Ohio Appeals, Second District, Darke County.
    No. 661.
    Decided May 21, 1949.
    Wilbur D. Spidel, S. E. Mote, Greenville, for John V. Rosser, et al, Appellees.
    T. A. Billingsley, Marion Murphy, Hugh A. Staley, Greenville, for Waldo Rank, Appellant.
   OPINION

By THE COURT:

The appeal is on questions of law and fact from a judgment setting aside and cancelling a certain deed from Winfield Scott Rosser to the defendant, Waldo Rank, and ordering partition of the premises described in the petition among the heirs at law of said Winfield S. Rosser, deceased.

The issue joined was upon the averment of the petition,

“That the defendant, Waldo Rank, on the 10th day of August, 1945, by undue persuasion, duress and by exercising undue influence over said decedent at which time said Win-field S. Rosser was mentally ill and had not sufficient mental capacity to be able to understand the nature of the transaction, obtained and procured said deed to Waldo Rank, as Grantee, * * *. That, at said time, Winfield S. Rosser was 87 years of age and afflicted with arterio sclerosis and senile dementia, and said Waldo Rank knew of said affliction and the mental incapacity of Winfield S. Rosser, and obtained said purported deed or conveyance without consideration therefor.”

Because of the nature of the appeal, it is our obligation to determine the issues joined as if the case had originated in this Court, to weigh the facts, test the credibility of the witnesses and apply the law as a trial court of first instance.

The record is voluminous, consisting of almost a thousand pages and many exhibits. We have read every line of the testimony, as well as the briefs of the parties. The conflict in the testimony is marked. The statements and conclusions of the witnesses for the parties are utterly irreconcilable. On the one hand, Mr. Rosser was, from 1944 until the time of his death, presented as a doddering old man, utterly incapable of carrying on ordinary business transactions, without mental capacity to appreciate his relation to the natural objects of his bounty and with little or no concept of what was going on currently about him. On the other hand, he was portrayed as a man of exceptional intellect, a brilliant conversationalist, keenly aware of all that was taking place about him and maintaining a lively interest, not only in past events but in those occurring during the years of ’44 and ’45, and with special interest in matters in which during much of his lifetime he had been intimately concerned.

It is probable that some of the testimony is colored and shaped, in a degree, at least, by the interest of the witnesses in the outcome of the suit. Proper determination of the issues must therefore be made largely from the probabilities from facts that are either not in dispute at all or as to which there is little dispute.

It appears that Winfield S. Rosser, whom we will hereinafter refer to as Rosser, had been engaged in business in Darke County for many years. Some sixteen years before his death he met with an unfortunate accident in which, while standing on the sidewalk, he was struck by an automobile, as a result of which he suffered an injury to his legs. After his injury he never regained the ability to walk without difficulty and for several years prior to his death had remained very closely at his home, leaving only at infrequent intervals. In 1937 he lost his wife and from that time on, it is evident that -his mode of living was materially changed. He had no children and was dependent for assistance either upon neighbors or hired help. Because of his infirmity and difficulty in maintaining his household in proper manner, it gradually became dirty and dusty and he, likewise, was neglected, with the result that he was not cleanly. For several years prior to 1944, he had been cared for indifferently and, it is agreed, was in a deplorable condition as to the cleanliness of his person, his bed and his household. He had been irregular in his habits and had not had the proper food nor was it served to him regularly.

In January, 1944, Mr. S. E. Mote, Rosser’s attorney, contacted Rank to hire him to fire Rosser’s furnace. When the result of the conference was made known to Rosser he sent for Rank and as a result Rank took over the care and attention of Rosser at his home.

Rank lived several squares from Rosser, his wife was an invalid confined to a wheel chair but notwithstanding her infirmity she prepared the meals for Rosser and her husband carried them to the home of Rosser. Rank also fired the furnace, acted as nurse, bought the groceries and supplies for the house and generally took over the minor management of the household. There is no question but that he did a good job. The meals were served on time. They were palatable and enjoyed by Rosser. He was bathed and cleaned, two women were brought in to clean the house and there was a complete change in his situation. It was entirely satisfactory to Rosser and afforded him that which he had been denied for many years.

It is contended by plaintiffs that Rank was to have $25.00 per week for his services. He denies this and says that there was no understanding as to what he was to receive. The inference from his testimony is that because of the deplorable condition in which he found Rosser he started to attend to him as a matter of sympathy. Mr. Mote says that Rank was engaged for his services at $25.00 per week. As a matter of fact, although Mrs. Macci, who had sued Rosser for more than $5,000.00, had provided him some meals over a period of more than six years prior to Rank’s coming, as far as we can tell from the record, she had and claimed no specific contract as to what she should be paid. There is nothing in the record other than the testimony of Mr. Mote from which it may be definitely inferred that Rank was drawing $25.00 per week.

Although Rank testified that he kept an account in ’44 and ’45, he does not have the account for ’44. * This is unfortunate and has weighed heavily against him with us. However, he does produce what purports to be an account for ’45, showing all the money that he had received. If this account is at all accurate, if the total of $25.00 per week had been taken from the amount of money with which he charges himself, there would have been an inadequate sum left to meet the probable demands of maintaining Rosser. There is set up by plaintiffs a statement of the total amount of money which Rosser had in the years of ’44 and ’45 until he died. Charging all of this to Rank, it discloses that he would have had $49.22 per week in ’44 and $41.56 per week in ’45. Manifestly, the record does not trace all of this money into Rank’s possession. Had it done so, if it had all been expended on Rosser’s needs, it would not have been excessive for the demands of a man in his condition, maintaining a 12-room house, during the period under consideration. Probably, many of the groceries that were used in preparing Rosser’s meals also were properly used by Rank’s family. Rosser must have understood this would be done because he first proposed that Rank and his family move in with him.

It is urged that Rank prevailed on Rosser to make the deed upon the claim that by so doing he would prevent Mrs. Macci securing the property on her claim. Rank denies this and gives a very reasonable explanation of Rosser’s view of the matter to the effect that he had ample to take care of Mrs. Macci without respect to the outcome of her claim. Mrs. Macci, of course, was not a creditor at the time the deed was made. Had she been, and had Rank and Rosser, by collusion intending to defeat Mrs. Macci, knowingly participated in the making and receiving of the deed, Rosser could not be heard in any court to demand a return of the property. The rights of Rosser’s heirs would rise no higher than his.

However, the probability on this record is that Rosser desired to reward Rank for the services which he had and would perform because of the value which was placed upon them by Rosser under all the circumstances. He owed nothing to his blood relatives because of the ownership of the property in question which had come to him through his wife. He had the right to conclude that his relatives were not the special objects of his bounty by reason of any service that they had rendered or probably would render to him. By the making of the deed he retained full right during his lifetime to the benefit of his property. He assured until his death continuation of the services which Rank had been rendering him.

It is signififcant that the deed which Rosser made to Rank, to all intents and purposes, accomplished that which was intended by the deed which Mr. Mote prepared for Rosser, because it was to be held in escrow by Mr. Billingsley until Rosser’s death and was only to be delivered to Rank if he continued and completed throughout Rosser’s lifetime the services which he was rendering to him when the deed was executed. The making of a deed of Rosser’s property to assure his maintenance did not originate with the coming of Rank. It was the third time that he had entertained the idea.

Upon the ultimate question of Rosser’s mental capacity the preparation of the deed by his counsel in May, prior to the time that the deed here under consideration was made in August, is the most significant fact in this case. His attorney was ready to have Rosser execute the deed as prepared by him. Manifestly, it took as much mental capacity to make this deed as it did to complete the latter deed.

It is also notable that those of the plaintiffs who now insist that in 1944 and 1945 Rosser was incapable of transacting ordinary business permitted him to continue to live under the conditions which they knew and with Rank in his employ without any suggestion of his mental infirmity. If in 1944 and 1945 he was in the state of mind to which they testify, it was their plain duty to assure as a matter of protection to him the appointment of a guardian. No such steps were suggested by them or by his attorney and Rank was permitted to minister to Rosser during this whole period and he did so in the only practical manner available to him.

There is no doubt that Rosser was at times subject to some mental aberration. It is agreed that he commented on having an oil well in his basement. Some of the other so-called hallucinations may or may not have occurred. It is apparent that Rosser was given to exaggeration. The statement respecting his winnings on betting on horse races can easily be reconciled upon the theory that he was doing some imaginary betting by picking probable winners from the form sheet in the daily papers. The statements in his deposition that certain members of the Masonic Lodge had come to his home to help him and other statements, if not in accord with the facts, do not necessarily point to mental impairment.

We have read Rosser’s deposition in the Macci case and, in all, it reflects the language of an intelligent person. Rosser did not want to admit liability to Mrs. Macci. His theory was well defined, namely, that the services she rendered to him were those of a neighbor; that he had recognized their value and had compensated her by gifts at various times. The amount of money that he paid to her may or may not have been exaggerated, although it probably was. He insisted that she did not take care of him personally; that she did not keep him nor his house clean and it is significant that he states that he was so dirty that he was ashamed of his condition. If Rank interfered with his answers in the deposition, it is not shown in it, although Rank admits an interruption when inquiry was made as to the amount that she was being paid.

The doctor who attended Rosser saw him only five or six times from November, 1944, until the date of his death. He stated the cause of death to be arterio sclerosis. He does not say that Rosser was incapable of conducting ordinary business transactions except in response to a hypothetical question. This question had hypotheses from which, in their most unfavorable light to Rosser, the doctor drew the conclusion that he was suffering from senile dementia and probably was not capable of doing business. We refer particularly to that part of the question which stressed the lack of personal cleanliness in contrast to the former habit of Rosser to be immaculate and careful in his attire. It is only fair to Rosser to say that his lack of cleanliness was caused by his physical inability to take care of himself. He states in his deposition that on one occasion he had to crawl to his commode. If his dirty condition prior to 1944 argued for mental instability, then the cleanliness of himself and of his surroundings in 1944 and 1945 spoke for an improved mental state. Dr. Wolverton, who paid Rosser a business visit in 1945, expressed the opinion that he was qualified to carry on business transactions.

Arterio Sclerosis is common to elderly persons and no doubt has the effect in varying degrees of slowing up the activities of the mental processes. The fact alone that one is so suffering does not require the conclusion of general mental incapacity.

The signing of the deed was not hastily accomplished. Mr. Billingsley testifies that he took the matter up with Mr. Rosser deliberately, that when the deed was prepared he left it with him for as much as three days. He acted as a witness. The other witness did not sign until later. Upon Mr. Billingsley’s testimony, which is that of a person with a minor interest, there can be no doubt that at the time the deed in question was executed Rosser had full capacity to act intelligently and that he was under no compulsion. Other witnesses related to Rosser by marriage who have no interest, unless it be conjectured that they were jealous of the fact that the blood relatives of Rosser and not they, would come into the property if the deed was set aside, also substantiate the conclusion that at the very time that the deed was made Rosser was fully qualified to execute it.

It has long been the practice in will contests for the contestants to introduce the instrument as tending to disclose an unnatural and illogical distribution of testator’s property. Conversely, it is appropriate here to consider this deed in the light of all the circumstances as to the reasonableness and propriety of the transfer of title to the grantee. Under all the conditions appearing, the transfer reflects the reaction of a normal mind, making distribution of property in a logical and appropriate manner. The probability is that Rosser accomplished just what he intended to do when he made the deed. His purpose and the consideration moving to him by the services of Rank, performed and to be performed, are appropriately and effectively set out in the deed from Rosser to Rank prepared by Mr. Mote. Indeed the consummation of the whole matter is well presented in two sentences from this deed, as follows:

“The further consideration for this conveyance is extraordinary services performed by said Waldo Rank for me since January 1st, 1944, and to be performed for me during my natural life by way of nursing, etc. Having been bedfast since said date and having paid said Rank only for his time and board and washing at the rate of about $25.00 a week, this service for which this conveyance is made is such that no relative would or could desire to render and which is almost impossible to fix in measure of dollars, yet is of the greatest value to me in my condition of helplessness.” (Emphasis ours.)

There was a confidential relation existing between Rank and Rosser by virtue of the necessities of the situation, but this extended only to the management of the household. When it was necessary to conduct major business transactions Mr. Rosser availed himself of the opportunity of contacting legal counsel. But in -the consideration of this case we have not been troubled with the burden of proof and upon whom it devolves. Upon the whole record we are satisfied that the evidence preponderates in favor of the claim that there was a valid consideration for the execution of the deed and that it was not the result of mental incapacity of the grantor nor induced by any undue influence on the part of the grantee.

The judgment will be in favor of the defendant, Waldo Rank, and the prayer of the petition will be denied.

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


source: Caselaw Access Project

author: By REYNOLDS, J.

license: Public Domain

text:
    STOCKWELL v. COLUMBUS (City), et al.
    Common Pleas Court, Franklin County.
    No. 175387.
    Decided May 23, 1949.

      David dayman, Columbus, for plaintiff.
    Richard W. Gordon, City Atty., Hugh K. Martin and Robert E. Leach, Asst. City Atty., Columbus, for defendant.
   OPINION

By REYNOLDS, J.

Demurrer of defendant, City of Columbus, to plaintiff’s amended petition is sustained.

The amended petition seeks to enjoin defendant, City of Columbus, from enforcing Ordinance No. 658-47 of the City of Columbus, which provides for payment of an income tax by all residents having a certain income or more, and also by all persons employed in the city with similar incomes.

The amended petition is based on the alleged unconstitutionality of the ordinance and ten grounds for this claim are set out in the amended petition as follows:

1. “Said tax ordinance is illegal for the reason that the Constitution of the State of Ohio grants the State of Ohio the exclusive right to levy an income tax. Said tax ordinance is an unlawful invasion of the sovereign power of the State of Ohio.

2. “Said tax ordinance is illegal in that it deprives the plaintiff of his private property without due process of law, in violation of the Constitutions of the United States and the State of Ohio.

3. “Said tax ordinance is illegal because in providing for a deduction of a portion of the plaintiff’s salary, it creates an impairment of the obligation of contracts in violation of the Constitutions of the United States and the State of Ohio.

4. “Said tax ordinance is illegal because it taxes the entire gross wages due the plaintiff from the Jaeger Machine Company, and in so doing causes the plaintiff to pay a tax on funds that he pays to the federal government for income tax and social security.

5. “Said tax ordinance is illegal because it is discriminatory as between wage earners employed in Columbus and other tax payers. Wage earners employed in Columbus are deprived of their tax payments on each payday; whereas, other tax payers pay said tax quarterly and have the use of said funds during the interventing periods.

6. “Said tax ordinance is illegal because it is discriminatory in that it is not levied against the income from intangible property and the income of common carriers and insurance companies, but causes other taxpayers to pay the tax.

7. “Said tax ordinance is illegal in that it violates §§12946-1, 12946-2 and 6346-13 GC, causing the employer to fail to pay the plaintiff the wages due him. The defendant, Jaeger Machine Company, employs over 5 employees.

8. “Said tax ordinance is illegal in that it improperly delegates to employers the duty of the City Treasurer to collect and hold public monies.

9. “Said tax ordinance is illegal in that it improperly delegates to the Board of Appeals created by said ordinance the duty of the Council of the City of Columbus to set the rate of taxes and the duty of the City Auditor to set the amount due.

10. “Said tax ordinance is illegal because it is discriminatory, unjust and contrary to public policy in taxing the entire gross income of the plaintiff; whereas, it taxes only the net profits of the businesses and professions.”

The first ground as above set forth is that the State of Ohio has the exclusive right to levy on income tax. This claim is based on Sections 8 and 9, Article XII .of the Ohio Constitution, which provide as follows:

Section 8. “Laws may be passed providing for the taxation of income * * *”

Section 9. “Not less than fifty per centum of the income and inheritance taxes that may be collected by the state shall be returned to the county, school district, city, village or township in which .said income or inheritance tax originates, or to any of the same as may be provided by law.”

It should be observed, however, that if there had been no constitutional provision concerning income taxes, the state in its sovereign capacity could have provided by law for income taxes.

The case of Hoefner v. City of Youngstown, 147 Oh St 58, 33 O. O. 247, is cited as authority for plaintiff’s position, but in that ease the State of Ohio had preempted the field by enacting an excise tax law upon utilities and when the City of Youngstown passed an ordinance imposing an excise tax on gas, electricity, telephone and water, the ordinance was declared invalid, the court holding that:

“By virtue of §5546-2 GC which has levied a retail sales tax and §5483 GC which * * * has provided for a tax on the gross receipts of utility companies, the state has pre-empted the field of taxation which includes inter alia receipts by utility companies from natural gas, electricity and water sold to consumers and local service and equipment furnished to telephone subscribers.”

In its opinion the court said:

“It must now be regarded as settled law in this jurisdiction that a municipality may levy and collect an excise tax for local purposes so long as it is not precluded by state legislature * * *. Power of the General Assembly to limit or preclude taxation by municipalities would no doubt exist even in the absence of an express constitutional grant; but such a grant is not lacking. Section 13, Article XVIII of the constitution (adopted at the same time as the home rule amendment) provides thus; ‘Laws may be passed to limit the power of municipalities to levy taxes * * Under that provision the General Assembly may impose the limitation not only expressly but also impliedly. The limitation is imposed by-implication where the State Legislation levies the same or a similar excise and thus pre-empts the field. After such pre-emption takes place a municipal tax within the same field cannot be levied or collected.”

The above case therefore does not support plaintiff’s argument that a municipality cannot levy a tax which the state may levy. It only goes to the point that a municipality cannot levy a tax which the state has already levied and this court is of the opinion that the conclusion to be drawn from the Hoefner case is that had there been no excise tax levied by the state at the time in question, the Youngstown ordinance levying such a tax would have been valid,

The reasoning of the court therefore supports defendant’s position here to the effect that it is not precluded from levying an income tax, where the state has not pre-empted the field but- left it entirely open.

In the case of State v. Carrel, 99 Oh St, 220, the court said:

“It may be said in this connection that it is clearly to be implied from the constitution that municipalities are without power to levy an income or inheritance tax.”

This statement was purely obiter as the question was not involved, so that the statement cannot be considered as anything but the personal opinion of the judge and therefore not binding on this court.

It is also interesting to note that in that ease the court held that a municipality under its legislative powers as provided for in Section 3, Article XVIII of the Ohio Constitution has the authority to exercise all powers of local self-government including the power of taxation. On page 227 is found this significant statement by the court in discussing the power of taxation:

“The constitution recognizing the necessity of this grant of power conferred it on municipalities, subjecting them only to the staying hand of the general assembly in respect to its limitation.”

This court is therefore of the opinion that unless and until the State of Ohio enacts laws providing for an income tax, a municipality may do so. The second ground set out in the petition, as the basis for the claim of invalidity of the ordinance is that it is a deprivation of property without due process of law. If the power to levy an income tax is upheld, then there is no want of due process, so that what has been said with respect to the power of the municipality to levy an income tax is dispositive of this objection. The third ground set out is that the ordinance impairs the obligation of a contract. No contract is pleaded, the petitioner contenting himself with the argumentative statement, that since the ordinance provides for a deduction of a portion of plaintiff’s salary, it creates an impairment of the. obligation of contracts.

This court cannot agree with this conclusion. The contract between petitioner and his employer is not changed. His wages or salary remain the same and in this connection is a convenient means of payment of the tax. See Dole v. Phila 337 Pa. 375.

The fourth reason set out as to the invalidity of the ordinance is that it taxes the gross income and causes plaintiff to pay a tax on funds which he pays to the Federal Government by way of Federal income tax, etc. This question is decided in the case of Gorham v. Travis, 274 Fed. (2nd) 975 in which case it was held that:

“A state in taxing the income of a corporation, foreign or domestic, is not required to deduct from such income the tax paid therefrom to the United. States.”

Conceding the power of a municipality to levy an income tax, it necessarily follows that it is not required to deduct from such income the tax paid to the United States.

The fifth ground stated in the petition is that the ordinance is discriminatory as between wage earners employed in Columbus and other taxpayers in that wage earners are compelled in effect to make tax payments each pay day, whereas others only pay quarterly and thus have the use of the amount of their payments in the meantime. This claim loses sight of the fact that other taxpayers are required to file an estimate of their income and pay thereon quarterly in advance.

It also ignores the fact that all taxpayers in the same classification are similarly treated. The identical situation is found with respect to federal income tax payments and this has been held to be valid. See Board of Tax Commissioners of Indiana v. Jackson, 283 U. S. 527 in which the court said:

2. “The classification of incomes for taxation is a matter to be determined by the legislative bi’anch of the government under its powers to classify subjécts for taxation and classifications adopted by it will usually be upheld, if there is no discrimination in favor of one as against another of the same class.”

The sixth ground claimed as to the invalidity of the ordinance is that it is discriminatory in that it is not levied against income from intangible property and the income of common carriers and insurance companies.

What was said with respect to the fifth ground for objection above is applicable here.

The seventh ground is that the ordinance is illegal in that it causes the employer to -fail to pay plaintiff the wages due him.

The answer to this claim is that the ordinance is in no respect a violation of §§12946-1 and 2 and 6346 GC which provides in substance that an employer of five or more persons shall by the first of the month pay to his employees the money earned by such during the first two weeks of the preceding month and on or before the fifteenth of each month pay the wages earned during the last two weeks of the preceding month, and that there shall be no valid assignments of such wages except for certain purposes. The ordinance in no way prevents the payment of wages pursuant to these statutes. The wages are paid in full, in part to the employee and in part to the city in payment of the employee’s liability under the ordinance. This right of a sovereignty to provide such means of collection or payment of a municipal income tax has been recognized in the cases of Stoudt v. Phila. 38 D. C. (Pa.) 222, to which reference is made.

The eighth basis set out to support the claim of illegality is that the ordinance improperly delegates the duty of the city treasurer to collect and hold public money to private employers. The city treasurer does collect and hold the money so paid as income tax, the employer simply being the medium by which payment is made. This is in effect the same ultimate objection as is raised in the third ground set out in plaintiff’s amended petition and heretofore- discussed.

The ninth ground set out in plaintiff’s pleading is that the ordinance is invalid in that there is an improper delegation of legislative authority in that it gives to a Board of Appeals created by the ordinance the power to fix the rate and set the amount due. So far as wage earners are concerned, the Board of Appeals acts only in an administrative capacity. The amount of the wage earner’s tax is fixed by council in the ordinance, as well as the provisions for the employer’s withholding the same and paying it into the city treasurer.

The tenth objection is that the ordinance is discriminatory in that it imposes a tax on a wage earner’s gross income and a tax on only the net income of businesses and professions. Here again the same principle is involved as raised in objections five, six and seven above.

So long as all those of a given class are similarly affected by the ordinance, it will not be declared invalid because of the fact that those of a different class may be otherwise affected.

The only Ohio decision on the questions here involved is the case of Angell v. City of Toledo, being case No. 169, 563 in the Court of Common Pleas, Lucas County, Ohio, in which the court held valid an ordinance of the City of Toledo, which is in all essentials similar to the ordinance here in question.

The court therefore sustains defendant’s demurrer to plaintiff’s amended petition.


author: By PHILLIPS, J.

text:
    GNAT, Plaintiff-Appellee, v. PACKARD ELECTRIC DIVISION GENERAL MOTORS CORP., Defendant-Appellant.
    Ohio Appeals, Seventh District, Trumbull County.
    No. 1185.
    Decided 1949.
    W. W. Pierson, Warren, C. J. Wardlaw, Columbus, for plaintiff-appellee.
    Henry M. Hogan, E. H. Reynolds, Detroit, Michigan, Wm. J. Higley, Toledo, for defendant-appellant.
   OPINION

By PHILLIPS, J.

Defendant, a corporation authorized to do business in Ohio, and by its own election a “self-insurer” under the Workmen’s Compensation Law of Ohio, and authorized by the Industrial Commission thereof “to pay workmen’s compensation claims directly to its injured employees at all times mentioned” in plaintiff’s petition filed in the court of common pleas, appealed to us on questions of law from a judgment of that court entered upon a unanimous verdict of a jury finding plaintiff entitled to participate in the Workmen’s Compensation Fund of Ohio on her appeal thereto under the provisions of §1465-90 GC, from an order of the Industrial Commission of Ohio, made upon hearing of her duly filed application for rehearing, denying her the right of such participation in that fund on the ground that “claimant’s disability, to-wit, fibrocystic degeneration of left breast with small abscess was not the result of an injury sustained in the course of and arising out of employment”.

Plaintiff, a long time employee of defendant corporation, alleged in her petition filed in the court of common pleas and testified that “on or about February 21, 1945, while In the course of said employment assembling electric wire, a tool, called a stripper, which she was using, pinched her left breast near the nipple causing the development of an abscess and removal of the breast by surgical amputation as a result of which she was disabled for several months”.

Briefly, but substantially, plaintiff further testified that before February 21, 1945, she never had any lump or abscessed condition on either breast; that the pinching of her left breast on this occasion was more painful, “I have pinched myself before but it was not such a hard pain, this pain just made me weak”; that she had pinched the left breast before but never had pinched the left nipple; that after she pinched her breast she went to the rest room to see if there was any cut and to the nurse to see if there was anything she could do; that the only sign of injury was where it was red at the point of the nipple and at the bottom for an area about the size of “a niekle”; that two weeks later she noticed that the spot was becoming more painful and there was a lump like a boil; that she made no report of the pinching on the date in question to her foreman or fioorlady, and never talked to anyone in authority at the plant about her condition except one of the company’s officials, its nurse, and the company physician, whom she consulted the latter part of March and whom she told of such soreness and abscess.

In a signed statement of claim made by plaintiff to the Metropolitan Life Insurance Company for benefits under a group insurance policy it was stated that her disability was not the result of the accident, and her condition was not due to accident. On cross-examination plaintiff testified the answers to such questions were not in her writing, and when she last saw the statement those questions, which she never answered, remained unanswered thereon, “I didn’t fill it in, I did not write that”.

The surgeon who removed plaintiff’s breast and first saw her on or about April 25, 1945, at his office, testified that “before it was pinched such breast was in a perfectly normal condition”, and that when the breast was pinched many of the ducts were crushed and some of the acini thereof were injured, and that the trauma formed an abscess therein; that such breast had been developing this fibrocystic disease before it was pinched; that “there had been a condition of the breast before such pinching” for the reason “well the fact that the breast contained a large amount of fibrosis other than just in the area where it was injured at the nipple, the diagnosis was fibrocystic condition of the breast”, “we know the condition does not develop to that extent in a period of four months”; that the condition of the left breast was due to trauma sustained at the time of such pinching, and that such pinching would aggravate that condition; that “the exact edology I don’t believe it is known, and that the edology of the abscess was due to the fact that the breast had been pinched”; and that his final diagnosis was “fibrocostic disease of the breast with small abscess” (sic).

One of plaintiff’s witnesses testified that she saw plaintiff’s left breast before she consulted the surgeon' who amputated it, and that there was an area just below the nipple “no bigger than a dime” which was “pink and bruisy looking”.

Plaintiff’s mother testified that after plaintiff went to sleep on the night of the day she was allegedly injured on February 21, 1945, “I open pajamas, I see little blue on bottom nipple— after inside, little bit, little no lots”; that two weeks later she saw the breast again and at the same spot “I see little big one some swell coming from — coming some stuff, no much little, that’s all I can tell you”.

Plaintiff’s case history at St. Joseph Hospital revealed that while the record indicated that plaintiff said when she entered the hospital on April 28, 1945, that she was injured “three months ago”, that it bore a notation “by patient” 4-20-45 indicating some person’s error, which presented a question for the determination of the jury as to which of the conflicting statements in the record was correct; that plaintiff’s surgeon was unable to say whether the abscess in plaintiff’s breast could or could not have resulted regardless of trauma, that “I can’t say it did, and I can’t say it didn’t”.

Defendant’s company surgeon, .who first saw and examined plaintiff on March 20, 1945, in the medical department of defendant company “found nothing wrong” with her and found no external evidence of injury thereto, but observed .“a mass in the breast”, and advised her to bathe her left breast in a solution of boric acid and epsom salts, testified that there was no causal relation between the alleged injury and the later condition of plaintiff’s breast because there was no evidence of such condition present at the time of his examination on that date, at which time there was no evidence of fibrocystic disease thereof.

A pathologist, testifying for defendant as an expert witness, said that fibrocystic disease is “a disease affecting the breast of both male and female, the cause of which is not determined, and which is manifested by typical clinical and pathological changes. It is a disease which is not a true tumor, its origins are obscure, but it is probably * * * based on disturbances in the ovarian functions and other glands of internal secretion affecting the development and function of the female genitalia, as well as the male organ of the secondary sex characteristics”. In answer to a hypothetical question he stated in substance that there was no causal relationship between the pinching of plaintiff’s breast and the condition causing removal thereof as alleged.

In its first assigned ground of error defendant complains that the judge of the court of common pleas erred in permitting plaintiff to introduce evidence over its objection of a pre-existing condition of her breast which was aggravated by the specific pinching of which she complains when she did not allege. aggravation in her petition, and permitted plaintiff to testify that she had no lump or abscessed condition in her beast prior to the 21st day of February, 1945, and never had any pain therein prior to that time; and her physician to testify that he was able to determine what was probably the condition of the breast and injury and that his opinion was that the condition of the breast “had been developing this fibrocystic disease before the breast was pinched", that “yes I think it (pinching) would aggravate the (previous) condition of her breast.”

It is plaintiff’s contention with reference to this assigned ground of error that “if the breast was previously fibrocystic the diseased tissue with low resistance would be more readily affected by such trauma, which might either aggravate the previous condition or produce a new abscessed condition. Under the petition as written either result or both might be proven as a proper basis for workmen’s compensation. It

was not necessary to allege aggravation of a former disease, under these circumstances, in order to offer proof thereof”; and that “since there is abundant proof that the injury was the direct and proximate cause of the abscess independent of any aggravation of the fibrocystic condition the jury may very well have based its verdict upon that proof alone”, and since “the defendant did not test the verdict by interrogatories on this point” that “even if there was error as defendant claims it was not prejudicial or reversible error under the ‘two-issue rule’

Upon careful consideration of the entire record of the proceedings had before the Industrial Commission and in the court of common pleas submitted to us for review, and in the state of the pleadings in the case from which this appeal is taken, we cannot arrive at the conclusion which defendant urges us to reach that the trial judge erred to its prejudice in permitting the introduction of the testimony of which defendant complains in this assigned ground of error.

While we recognize that “unless and until it is shown that the diseased condition existed at the time of injury, all testimony tendered for the purpose of showing acceleration of a diseased condition is incompetent and should be excluded” (Dewers v. Industrial Commission, 32 Abs 495), we also remember that there is evidence that the alleged trauma to plaintiff’s left breast was the direct and proximate cause of the condition which developed therein necessitating the removal thereof independent of any acceleration or aggravation of any existing diseased conditioned thereof.

Since the verdict of the jury was not tested by interrogatories we can not determine whether the jury found the condition of plaintiff’s breast necessitating amputation thereof was the result of trauma received on February 21, 1945, or whether such injury aggravated a pre-existing condition not pleaded.

So that even though the trial judge did err in the admission of the evidence of which complaint is made in the state of the record we can not say that if he did err such error constituted error prejudicial to defendant as claimed.

We do not believe that “the judgment is not sustained by sufficient evidence and is contrary to law”, and “realizing that upon motion to direct a verdict the party against whom the motion is made is entitled to have the evidence construed most strongly in its favor”, and that “if upon ány essential issue, after giving the evidence such favorable construction, reasonable minds can come to but one conclusion and that conclusion is adverse to such party the judge should direct a verdict against him” (Hamden Lodge No. 517, Independent Order of Odd Fellows, et al, v. The Ohio Fuel Gas Co., 127 Oh St 469), we can not say from such record, which contains evidence offered by 'each party which contradicts other evidence offered by each of them and each offered evidence in direct conflict with that offered by the other, the “court erred in refusing a judgment in favor of defendant notwithstanding the verdict” as we believe from the evidence contained in the record reasonable minds could reach different conclusions on the issues presented by the pleadings and the evidence in the case from which this appeal was taken.

The judgment of the court of common pleas is affirmed.

CARTER, PJ, NICHOLS, J, concur in judgment.


author: By WOODS, Referee.

text:
    GORDON, Bankrupt, In Re. IN THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION
    Decided June 2, 1949
    George F. Quinn, Cleveland, for Clay Marsteller, Trustee.
    Sanborn, Brown & Corlett, Cleveland, for Time Finance Co.
    Lombardo & Spellacy, Cleveland, for Bankrupt.
   MEMORANDUM

By WOODS, Referee.

Clay Marsteller, Trustee of this bankrupt, filed a Petition to Sell certain personal property, being a 1942 DeSota automobile, reciting it is subject to chattel mortgage of $100. To this the Time Finance Corporation filed its Answer and Cross Petition, stating that it has a mortgage on said automobile for $1000, upon which there is due $803.78 with interest from February 26, 1949. The Cross Petition prays that the Trustee be instructed to deliver said automobile to said Cross Petitioner free and clear of any claims of the bankrupt estate.

The proof shows that bankrupt, Gregory Earl Gordon, borrowed One Thousand ($10001 Dollars from the Time Finance Corporation on his 1942 DeSota automobile, executing a mortgage on June 13, 1948. The mortgage, with the Certificate of Title, was presented to the Clerk of Courts of Cuyahoga County, Ohio, as provided in §6390-9 GC and the Clerk of Courts, on June 19, 1948, erroneously made notation of the lien on the Certificate of Title No. 182,282,096 (Exhibit “B”) as being for $100 instead of $1000.

Bankrupt was so adjudicated on March 25, 1949, and on April 14, 1949, at the First Meeting of Creditors, Clay Marsteller became Trustee in Bankruptcy. On April 29, 1949, the Clerk of Courts corrected the notation of lien on the Certificate of Title by issuing a new Certificate of Title No. 182, 640,991 (Exhibit “C”), in which the amount of the first lien is corrected to read $1000. Also on Exhibit “C” appears the word “Correction” in the upper left hand corner.

The question presented is whether Time Finance Corporation has a valid lien on said automobile for the unpaid balance of its mortgage, or is its lien limited to $100 as erroneously noted by the Clerk as being the amount of the lien, the Trustee in Bankruptcy having acquired the title to the automobile by adjudication of bankrupt, which was before the correction entered by the Clerk of Courts on the Certificate of Title.

The pertinent statute is §6290-9 GC, which is long and verbose, providing that §8560-8572 GC, as to filing and recording of a chattel mortgage, or a conditional sales contract, do not apply to any similar instrument covering a motor vehicle. The statute goes on to say that:

“The holder of a chattel mortgage, trust receipt, conditional sales contract or similar instrument, upon presentation of said instrument to the Clerk of Courts of the County where such certificate of title was issued, together with the certificate of title and the fee prescribed by his (this) chapter, may have a notation of such lien made on the face of such certificate of title. The clerk of courts shall enter said notation and the date thereof over his signature and seal of office, and he shall also note such lien and the date thereof on the duplicate of same in his files and on that day shall notify the registrar who shall do likewise. The clerk of courts shall also indicate by appropriate notation on such instrument itself the fact that such lien has been noted on the certificate of title.”

The Trustee in Bankruptcy relies upon Sec. 70c for the nature and basis of his claim to any value of the DeSota motor vehicle in question in excess of $100. Sec. 70 of the Bankruptcy Act is called “Title of Property” and the first part of the second sentence under Sec. 70c reads as follows:

“The Trustee, as to all property in the possession or under the control of the bankrupt at the date of bankruptcy or otherwise coming into the possession of the bankruptcy court, shall be deemed vested as of the date of bankruptcy with all the rights, remedies, and powers of a creditor then holding a lien thereon by legal or equitable proceedings, whether or not such a creditor actually exists.”

This provision confers upon the Trustee “by force of law” the status of the ideal or “perfect” creditor, irreproachable and without notice armed with every right and power which is conferred by the law of the State upon its most favored creditor. Such hypothetical status depends for meaning upon the substantive law which it does not explicitly indicate, but which it incorporates by reference. Hence the Trustee’s powers in every case governed by this portion of Sec. 70c, are those which the State Law would allow to a supposed creditor of the Bankrupt, who had at the date of bankruptcy completed the process for the perfection of a lien upon property in the bankrupt’s or the Court’s possession. Whether a Trustee is entitled to such a status, and the conditions under which he may attain it, are federal questions covered by the Bankruptcy Act, but the extent of the Trustee’s rights, remedies and powers as a lien creditor, are measured by the substantive law of the jurisdiction governing the poverty in question — -that is, in this case the law of the State of Ohio. The foregoing follows a discussion of this subject in Collier on Bankruptcy 14 Ed., Vol. 4, pg. 1261 et seq. See also Remington on Bankruptcy Vol 4, Chap. XXX-A, Sec. 1599-1601.

Since the amendment by the Chandler Act of 1938, this section, which was formerly in Sec. 47c (2), is now recast as a part of Sec. 70c of the Bankruptcy Act, and is sometimes called the “strong arm clause in Sec. 70c”. This right of the Trustee in the Bankruptcy Act, as so amended, is discussed in Commercial Credit Company, Inc. v. Davidson (C. A. 5-1940) 112 F (2) 54, 42 A. B. R. n. s. 688; Janney v. Bell, (4 C. A. 5, 1940) 111F (2), 103, 42 A. B. R. n. s. 360; Robbins v Bastian (C. A. 8-1943) 135 F (2) 298, 53 A. B. R. n. s. 20.

Sec. 70c specifies that the Trustee’s lien is deemed vested as of the date when the Petition in Bankruptcy is filed with respect to all property within the scope of its terms. So, generally speaking, liens properly perfected prior to the date of bankruptcy will be superior to that of the Trustee under Sec. 70c; those not so perfected or perfected subsequently to bankruptcy will be subordinated thereto, and as Collier adds, it must be constantly borne in mind that this is a matter upon which Sec. 70c normally defers to the state law, supra, Pg. 1270.

Improper or defective recordation is just as ineffective as no recordation at all from the standpoint of constructive notice to third persons; so also defective acknowledgement, lack of required affidavit, recordation in the wrong place, and similar errors, will serve to invalidate the lien against a Trustee acting under Sec. 70c. Collier supra, pg. 1292.

There are many cases in the books where the claimed lien is invalid if not recorded in the proper place, or for lack of a required affidavit, and other errors. A case in point, where a chattel mortgage did not bear a date was held invalid against Trustee in Bankruptcy, is In Re: Coast Line Express, Inc. C. C. H. Par. 51660, where the Bankruptcy Court in Massachusetts in 1939 held such mortgage invalid under Sec. 70c of the Bankruptcy Act. Under a Certificate of Title statute in Delaware, where title papers of an automobile sale were delivered to buyer, but the lien not registered and the automobile in possession of bankrupt at adjudication, the District Court approved the Referee’s finding for the Trustee. In Re: Soss 52 F Sup. 123 (1943) 54 A. B. R. n. s. 806.

In Ohio where a chattel mortgage failed to recite the residence or place of business of either the mortgagor or the mortgagee, such was held invalid against the Mortgagor’s Trustee in Osborn v Wells 69 F (2) 970, when this Referee was affirmed by District Judge West and the Court of Ap peals, showing the view the federal courts took of failure to comply with Ohio recording statutes.

Early in Ohio it was held that in order to effect a lien, there must be compliance with the provisions of the Recording acts. Where the statute provided for an affidavit to be written on the mortgage and signed by mortgagee, and the Notary or officer taking the oath failed to sign, it was held that the statute had not been complied with and there was no lien. Benedict v. Peters 58 Oh St 527. In that case Judge Minshall said, at Pg. 534:

“Creditors examining the records of such liens are not required to go beyond the record for the purpose of learning whether an instrument on which there is no duly certified sworn statement required by the statute can be shown to have been properly executed in this record.”

Since the statutory provisions with reference to execution of a chattel mortgage are intended to protect third persons, including a Trustee in Bankruptcy under Sec. 70c, the chattel mortgage, as against them, must be executed in strict compliance with the statutory requirements. Cash Register Co. v. Friedlander 7 O. N. P. 170 — 4 O. D. (N. P.) 347; Mecharder Co. v. Kline, 248 Fed. 296.

If a chattel mortgage is executed or filed defectively, the lien of a subsequent execution upon such property is superior to that of such prior mortgage, even though the judgment creditor had notice of such mortgage. Honk v. Condon 40 Oh St 569.

Misspelling of the name of the mortgagor so as to mislead subsequent mortgagees and purchasers does not constitute notice. Baker v. Coffman 24 O. N. P. (ns) 259.

Defect in the form of or omission in the content of an instrument justifies the court in concluding that the filing of such an imperfect instrument is the legal effect of nonrecordation. Shilling Press 52 F. Supp. 569, 55 A. B. R. (ns) 257; aff. 141 F 2nd 643, 55 A. B. R. (ns) 279; Trimmer, Tr. v. Talbot 36 A. B. R. (ns) 84.

Shortly after the enactment of the Certificate of Title Act as applicable to motor vehicles, the Court of Appeals of this District decided in Union Commercial Corp. v. R. J. Schmunk Company, 30 Abs 116, that a third person not a party to the transaction was entitled to rely upon the statements in the Certificate of Title. Judge Morgan discussing the purpose of the Certificate of Title Law said, at Page 123 of this Opinion, and to same effect is the Syllabus, that:

“The plain purpose of the Certificate of Title Law is to make the Certificate of Title a complete statement of the title of any motor car with a notation of all liens and claims against it. It is clearly intended by the law that any person purchasing a car has the right to rely on the Certificate of Title for these facts.”

Counsel for mortgagor here relies on Vinton v. James 108 Oh St 220, where a Village Council was permitted to correct the proceedings where there had been an omission of a required entry of the Council proceedings. Such decision is of no help here for the rights of the Trustee in Bankruptcy intervened before the recording was corrected on April 29 by the filing of a new certificate and the rights of the Trustee in Bankruptcy had intervened in the meantime with the adjudication April 14.

The provisions of Sec. 70c of the Bankruptcy Act must control in this proceeding, and any attempted correction of the recording by a nunc pro tunc entry is void and of no effect.


author: By McNAMEE, J.

text:
    STATE ex rel BACIAK, Plaintiff-Appellant, v. BOARD OF EDUCATION (Cleveland) et, Defendant-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21520.
    Decided July 18, 1949.

      Frank J. Kmiecek, C. P. Mauk, Horwitz, Kiefer & Harmel, George P. Baer, Cleveland, for plaintiff-appellant.
    Lee C. Howley, Director of Law, Chas W. White, Asst. Director of Law, Frank T. Cullitan, County Pros., Ralph W. Edward and Saul S. Danaceau, Asst. County Prosecutors, Victor M. Todia, Cleveland, for defendant-appellee.
   OPINION

By McNAMEE, J.

The parties will be referred to as they appeared in the trial court.

This is an appeal on questions of law from a judgment of the Court of Common Pleas rendered in favor of the defendants, upon the petition and opening statement of the plaintiff. Counsel for all parties made opening statements in the trial court and it was not until the plaintiff’s first witness was called that the defendants made their motions for judgment upon the plaintiff’s petition and opening statement.

The Bill of Exceptions contains all of the opening statements but under the well settled principles that govern, this court is confined to a consideration of the facts as stated by the plaintiff, which in the present posture of the case must be accepted as true.

These facts are: — That plaintiff as a taxpayer brings this action on behalf of himself and other taxpayers of the school district: that he made the necessary request upon the law director and county prosecutor to institute the suit; that the board of education of the city of Cleveland executed a lease for the north wing of Tremont Public School to the County Child Welfare Board for use as a receiving home for neglected and dependent children for a term of five years with an option to the lessee to renew the lease for an additional five years. Pursuant to a contract between the parties, the lessee is granted the right to alter and remodel the north wing of the school to render it suitable for use as a receiving home for children. The cost of this work estimated at between $130,000.00 and $150,000.00 is to be borne entirely by Cuyahoga County.

At the time this suit was instituted, the work of remodeling the north wing was in progress.

The gist of plaintiff’s claim is that the contract and lease are illegal for the reason that the Board of Education exceeded its authority in permitting a public agency to occupy a school building for purposes other than those specified in §4839 GC, §§4839-1, 4839-2, 4839-3 GC. No question was raised as to the authority of either of the other defendants to enter into the lease and contract.

The trial court held:

“* * * the court finds that the defendants and each of them have acted in the premises within their respective lawful authority; and that the well-pleaded allegations of the petition and the facts shown by the opening statement on behalf of the plaintiff are insufficient to constitute a cause of action against the defendants or any of them, whereby the several motions of the defendants should be well taken.”

The parties are not in agreement as to the precise question of law involved in this appeal. The defendant Board of Education poses the question as follows:

“* * * that a school board is without authority to lease a portion of a school building for use as a receiving home for dependent children or otherwise, and notwithstanding the same may not now or in the foreseeable future be needed for school purposes.”

But there is nothing in the record that indicates that the leased portion of the school will not be needed for school purposes in the foreseeable future or within the period of the lease.

Plaintiff states the issue to be whether a Board of Education may lease a portion of a school building for uses other than school purposes, considering “that the premises so leased will not thereafter be available for any school purposes.” Plaintiff’s interpretation of the stated facts is a reasonable one. It is fairly to be inferred that the adaptation of the north wing of the school to the purposes and needs of a receiving home for neglected and dependent children will seriously impair, if not entirely destroy, its availability thereafter for school purposes.

Expensive alterations are contemplated as evidenced by the substantial sum of money to be expended by the County for such purposes and in view of the cost entailed it may be assumed that the Child Welfare Board proposes to occupy the premises for the full term of the lease.

The record is silent as to what provision, if any, has been made that will insure the reconversion of the leased premises to school purposes, free of expense to the Board of Education, in the event the need therefor arises at or before the expiration of the lease.

A Board of Education holds title to property of a school district in trust for school purposes. Weir v. Day, 35 Oh St 143.

“The boards of education of the state hold the property intrusted to their custody only as a public agency of the state. Although the title to school grounds and other school property is, by the express terms of the statute, vested in the board of education, it is not the private property of the board; it is authorized to hold it for the state for the promotion and advancement of the education of the youth of the commonwealth, and its control is limited according to the will of the sovereign power.” 36 O. Jur. Sec. 166, page 198. Board of Education v. Volk, 72 Oh St 469, 74 N. E. 646.

The general grant of powers to a Board of Education is contained in §4834 GC which reads as follows:

“The board of education of each school district shall be a body politic and corporate, and, as such, capable of suing and being sued, contracting and being contracted with, acquiring, holding, possessing and disposing of real and personal property and taking and holding in trust for the use and benefit of such district, any grant or devise of land and any donation or bequest of money or other personal property and of exercising such other powers and privileges as are conferred upon it by law.”

A legislative policy to permit the use of school houses for other purposes at times and under circumstances that protect against interference with their primary use for school purposes, is evidenced by §§4839, 4839-1, 4839-2 and 4839-3 GC.

Defendant, Board of Education, asserts that it possesses ample authority deriving from §4834 and §4839 GC et seq, to enter into the transaction here drawn into question. For reasons presently stated, the issues raised by these claims cannot be determined in this appeal. Consistent with its fiduciary duties as the owner of school property, it is incumbent upon the Board of Education, while holding title to the property, to preserve its availability for school purposes* where a present or probable future need therefor exists or is likely to arise.

Where a Board of Education leases a wing of a school building to another public agency for an extended and definite term, and authorizes the lessee to make structural changes in the leased portion of the building at the lessee’s expense, it cannot on these facts alone, successfully maintain that it has acted within the scope of its statutory authority. Whether additional facts showing that without cost to the Board adequate provision has been made for the reconversion of the property and its re-adaptation for school purposes if and when the need therefor arises, would bring the case within the statutory authority of the Board, is a question upon which we express no opinion. All that we decide on this appeal is whether the trial court erred in rendering judgment for the defendants upon the petition and opening statement of plaintiff and in holding upon the facts therein stated that the Board of Education acted within its authority.

“It is generally agreed that the court should exercise great caution in directing a verdict on the opening statement of counsel, and the granting of such a motion will be upheld only where it is clear that all the facts expected to be proved and that have been stated do not constitute a cause of action; otherwise the trial court’s action may be reversed by the reviewing court.” 39 O. Jur. 885-886.

The following statement also appears at page 886 and 887 of the text:

“In ruling on a motion to direct a verdict for the defendant on the opening statement of the plaintiff’s counsel, the trial court must interpret the statement most favorably to the plaintiff, or, in the language of some cases, must give it the most liberal construction possible in favor of the plaintiff. The truthfulness of the facts stated therein is to be assumed and a reasonable and liberal construction is to be given the statement so that it may be allowed to stand, in order that the well-known principle that every litigant should have his day in court may be vindicated.”

Nothing should be taken against the party making the statement. Tyler v. Vistula Realty Co. 31 Oh Ap 1, 166 N. E. 240.

The foregoing rules operate with no less force in an action by a taxpayer seeking injunctive relief than in an ordinary action at law. Their application here compels the conclusion that defendants’ motion for judgment upon the petition and opening statement of plaintiff ought to have been overruled.

Accordingly this cause is remanded to common pleas court with instructions to overrule defendants’ motion for judgment upon the petition and opening statement of plaintiff and for further proceeding according to law. Exceptions. Order see journal.

SKEEL, PJ, HURD, J, concur.


author: By MILLER, PJ.

text:
    STATE, ex rel. FISHER, Plaintiff-Appellant, v. McKINNEY, Defendant-Appellee. STATE, ex rel. FISHER, Plaintiff-Appellant, v. McKINNEY, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    Nos. 2031-2032.
    Decided April 11, 1949.
    Herbert M. Eikenbary, Dayton, for plaintiff-appellant.
    Merritt E. Schlafman, Dayton, for defendant-appellee.
   OPINION

By MILLER, PJ.

These are separate law appeals from the Common Pleas Court of Montgomery County, Ohio, in two companion cases. In case No. 2032 the defendant-appellee was charged with the non-support of his minor child under the age of eighteen years. The record discloses that the complainant and the defendant were never married, and counsel for the plaintiff admitted that the defendant had never been adjudicated to be the father of the illegitimate child. At the close of plaintiff’s case a demurrer was filed to the affidavit and to the evidence adduced for the reason that the same did not set forth or show facts sufficient to constitute a cause of action; that the same were defective since the defendant had never been adjudged by any court of competent' jurisdiction to be the father of the illegitimate child, which was the subject of the action. The Court sustained the demurrer upon the authority of State of Ohio v. Parker, 82 Oh Ap 235. This case is squarely in point with the case at bar and no authority had been cited by counsel to the contrary It should be noted that §1639-46 GC under which this action was brought, became effective on January 1, 1946, and cases cited interpreting the old statute are of no assistance. We are of the opinion that the Court did not err in sustaining the demurrer.

The record in case 2031 discloses that the complainant then filed an affidavit charging the defendant with being the father of a bastard child. At the close of the plaintiff’s case a motion to dismiss was filed for the reason that the evidence discloses that the complainant was a married woman, having married several years after the child was born. The Court held that a bastardy action can only be brought by an unmarried woman, citing §12110 GC, and it is to this ruling that this appeal is directed. The rules of construction require that the statute be strictly construed. It provides:

“When an unmarried woman, * * *, makes a complaint”, etc.

To hold differently from the trial court would be adding language to the statute which is not there and would constitute judicial legislation. No authority is cited by counsel which supports his contention that if the plaintiff is unmarried at the time of the conception and birth she may prosecute the action irregardless of her marital status at the time of the filing of the complaint. The Court of Appeals from Mahoning County has spoken on this precise question in Sullivan, Gdn., v. Wilkoff, Exrx, 63 Oh Ap 269, the second syllabus of which provides:

“The only action provided by the statutes of Ohio whereby the mother may institute proceedings against the father of an illegitimate child is found in §12110 GC, which action may be maintained only by an unmarried woman.”

We find also that language in the case of State, ex rel. v. Clark, 144 Oh St at page 309, Zimmerman, J., says:

“In the instant case, plaintiff filed her complaint against defendant when she was pregnant and unmarried. Under statutes similar to ours it has been held that if a woman is unmarried (without a lawful husband) at the time of filing her complaint and is unmarried at the birth of the child, she may maintain a bastardy proceeding. 14 A. L. R., 976 et seq., annotation. See 5 O Jur., 551, Section 9; 7 American Jurisprudence, 682, Section 84; Moore v. Smith, 178 Miss., 383, 172 So., 317; Johnson v. State, 55 Neb., 781, 76 N. W., 427.”

Also in Haworth v. Gill, 30 Oh St, at page 628, in interpreting this statute the Court said:

“The statute authorizes the complaint to be made either during pregnancy or after delivery. If made during pregnancy, it is certain that the pregnancy alleged must be that of an unmarried woman, and if not made till after delivery, it is equally certain that the complainant must still continue to be unmarried.”

We therefore hold that the Court did not err in sustaining the motion to dismiss. The judgment is affirmed in both cases.

HORNBECK and WISEMAN, JJ, concur.


author: By HORNBECK, J.:

text:
    KNAFF, Plaintiff-Appellee, v. NEW YORK CENTRAL RAILROAD CO., Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2036.
    Decided May 9, 1949.
    Baggott & Johnston, Dayton, Donald L. Ziegel and King & Young, Eaton, for plaintiff-appellee.
    Routzohn, Routzohn & Nevin, Dayton, for defendant-appellant.
   OPINION

By HORNBECK, J.:

The appeal is on questions of law from a judgment of the Common Pleas Court in favor of the plaintiff in the sum of $15,000.00, with costs.

The action was for wrongful death predicated upon five specifications of negligence set up in the amended petition.

Plaintiff’s decedent was a passenger in a Chrysler 1941 Sedan, riding on the right side of the front seat. The driver of the car was Arthur Fritz whose wife was also riding in the front seat between him and plaintiff’s decedent. In the rear seat there were four passengers, two men and two women. The automobile was proceeding eastwardly on Bolander Street in the city of Dayton which is intersected by the north and southbound tracks of defendant railway. The locomotive which struck the automobile was attached to a train of some fourteen empty cars moving northwardly. There were also southerly tracks which Fritz had first to cross. The collision occurred at 3:30 A. M. on September 3. 1946. Of the passengers in the car, four others besides the decedent were killed.

The five specifications of negligence were:

(1) The operating of the locomotive at an excessive speed in violation of the city ordinance.

(2) Speed greater than was reasonable and proper and in the exercise of ordinary care.

(3) Failure to give reasonable warning by sounding a bell or whistle.

(4) Failure to maintain a watchman, gates, or flashing lights at the crossing, and

(5) Erection and maintenance within its right-of-way of poles, boxes, cables and other obstructions in such proximity to the crossing as to obscure and obstruct the view of defendant’s right-of-way toward the south.

The trial judge submitted to the jury all five of the charges of negligence.

Five errors are assigned:

(11 The overruling of defendant’s motion to direct verdict and for judgment notwithstanding the verdict.

(2) In submitting all five of the specifications of negligence to the jury.

(3) Errors in the general charge and in the giving of special charges requested by counsel for plaintiff and refusing to give certain special charges requested by the defendant.

(4) In the admission and rejection of evidence.

(5) Overruling the defendant’s motion for new trial, particularly for the reason that the verdict was manifestly against the weight of the evidence.

We are content to say without further comment that assignments Nos. 1 and 4 are not well taken.

Upon the factual development the only eye witness to the collision was the driver of the automobile, Arthur Fritz. He testified that he was familiar with the crossing; that as he approached the crossing he stopped about twelve feet west of the west rail and eleven feet from the south curb of Bolander Ave., at which time he had a view to the south of 150 to 200 feet.

It is inferable from the testimony that if he so stopped, the front of his car was a distance of about 2 feet from what would be the overhang of a train travelling on the southbound track. Fritz inquired of Duanna Knaif if she heard any engines to which she replied, “No, I don’t hear or see any.” He states that he was then looking down the track and so was Duanna Knaff. An automobile passed him to his left, moving at great speed. He states that he approached the crossing at a rate of speed of about 20 to 25 miles per hour and that after he had stopped he first looked to the north and then to the south and started up over the crossing, moving at a rate of speed from 5 to 10 miles per hour; that after he looked to see the car coming west on Bolander, he again looked south when he saw the oncoming locomotive at a distance of about 25 feet; that he then “hit the gas and his car jumped” but he did not clear the track and the auto was struck in the right rear. He fixed the rate of speed of the locomotive at 60 miles per hour. One other witness fixed it at 40 to 50 miles per hour and another said that it was moving fast. Fritz said that although all of the windows in the auto were halfway down he heard no bell from the signal box, no bell or whistle from the locomotive. It is conceded that no watchman was on duty, one having left at 1:30 A. M, and another coming on at 5:00 A. M. Fritz also stated that had he stopped 34 feet from the southbound track he could see down that track a distance of 200 feet. The distance from the westerly rail of the southbound tracks from the westerly rail of the northbound tracks is about 20 feet. In the line of vision of the driver, if he stopped where he stated he did, there were several obstructions on the right-of-way of the company, including the signal bell upon a pole about 6 feet high, the signal box attached to this pole and another pole at about the same heights. Adjacent to these poles was another cement pole, a little shorter than they, and three other poles, a wire fence and other poles with crossarms at varying distances to the south. Adjacent to the fence along the right-of-way of the company and to the west there also was a pile of coal and buildings which would have obstructed the view had the driver stopped at a distance further to his west as he approached the crossing. There was testimony respecting other obstructions not on the right-of-way of the company. There was dispute in the evidence as to the speed of the train, whether or not the signal bell was being sounded at the time of the collision and whether or not the whistle and bell were being sounded on the locomotive. The record also develops the visibility of the crossing both to the north and to the south from varying distances from the intersection. The credibility of the statements of the driver was attacked by producing what purported to be a report of an interview between him and an agent of defendant company in which he made statements contradictory to those testified by him on the witness stand. Testimony also was developed purposed to establish that those in the automobile at the time of the collision had been drinking, during the hours preceding the collision and, possibly in the car, all of which was denied and the driver testified that he drank no intoxicating liquor whatever on the nigfit and morning prior to the collision, and in this he was corroborated by one witness. There was also testimony to the effect that there were wine and beer bottles in the automobile but this was denied, not only by Fritz but by at least one other witness for the plaintiff.

It thus appears that evidence was produced on behalf of plaintiff tending to support each and every one of the five specifications of negligence which were submitted to the jury. We find no basis whatever for the claim that these specifications should not have been submitted, except as it relates to the 4th. We doubt if there is enough averment of operative facts to require the conclusion that the crossing in question was unusually dangerous or especially hazardous. We doubt if it is prerequisite to good pleading that one of the terms “peculiarly hazardous”, “especially dangerous”, or “unusually dangerous” be employed to state a ground of negligence as to the failure to maintain proper warnings. It is, however, necessary to good pleading that the facts be set up, the existence of which constitute the crossing as “dangerous”, “especially dangerous,” or “peculiarly hazardous”, We have read the very fine opinion of Judge Cecil, Lacey v. New York Central Railroad Company, 99, 120 Montgomery County Common Pleas Court, and are in accord with it insofar as it comports with our conclusion here reached.

The 4th charge of negligence, standing alone, in probability does not state a good cause of action. The only observation respecting the hazardous nature of the crossing is by assuming that it was hazardous in its nature. If, in conjunction with the 4th specification, the averments of the 5th could be considered, there would be no doubt of the sufficiency of the 4th specification. Railway Company v. Schneider, 45 Oh St 678, Weaver v. Ry. Company, 76 Oh St 164. The 5th specification clearly brought into the case the dangerous character of the crossing as it affected the exercise of due care on the part of the operatives of the defendant company.

However, as the other four specifications of negligence were properly pleaded, supported by some testimony and correctly submitted to the jury, the application of the Two Issue rule renders any error in the submission of the 4th specification of negligence non-prejudicial. Oschner, Admr. v. Cincinnati Traction Company, 107 Oh St 33.

Assignment of error No. 3 is directed to the general charge and special charges given at the request of counsel for the plaintiff and special charges requested by defendant which were refused. The general charge is correct, succinct and well presented the issues and the law controlling with the one exception that we have heretofore indicated. Plaintiff - requested three special charges before argument, two of which the court gave. Defendant requested twenty one, fifteen of which the court gave. Without discussing the charges specifically. we are satisfied to say that we find no prejudicial error in the charges given at the request of plaintiff nor the refusal to give certain charges requested by defendant.

Assigment of error No. 4 relates to the rulings respecting the admission or rejection of evidence, which assignment is not well made.

Much reliance is placed upon the claim that the negligence of the driver of the car was the sole proximate cause of the death of plaintiff’s decedent, and if not, that plaintiff’s decedent, herself, was contributorily negligent.

Woodworth, Admx. v. N. Y. Central Ry. Co. 149 Oh St 543; Patton v. Pennsylvania Ry. Co., 136 Oh St 159; Farmer v. The P. C. C. & St. L. Ry., 83 Oh Ap 321; Brown v. Pennsylvania Ry. Co., 43 Abs 313; Lang v. Pennsylvania Ry. Co., 59 Oh Ap 345; Ballmer v. Penna. Ry. Co., 59 Oh Ap 331; D. T. & I. Ry. Co. v. Rohrs, 114 Oh St 493; C. C. C. & St. L. Ry. v. Lee, 111 Oh St 391; Penna. Ry. Co. v. Rusynik, 117 Oh St 530.

All of these cases tested the negligence of the plaintiff who, himself, was seeking to make recovery and manifestly, if the plaintiff was negligent and his negligence was a proximate cause of his injury or death recovery could not be had. Here, the test is not quite so narrow. Upon the driver’s own testimony plaintiff’s decedent took some part in attempting to determine if there was an oncoming train on the tracks which they were approaching.

There is sufficient testimony here, giving to the testimony on behalf of plaintiff its most favorable intendment, to make a jury question whether or not the driver of the car was negligent and, if so, whether his negligence was the sole proximate cause of the collision.

The negligence of plaintiff’s driver may not in Ohio be imputed to her. Baltimore & Ohio Rd. Co. v. Brown, Admr., 36 Oh Ap 404.

But it is urged that because of the fact that plaintiff’s decedent was asked by the driver of the car if she heard any engines approaching, and she replied that she did not hear or see any, that she, having assumed to look and listen, was contributorily negligent because she should have seen the oncoming locomotive and should have heard the signals. Upon this narrow question, there was a factual issue whether or not she could see the oncoming locomotive if she looked and when she reported and whether or not she could have heard any warnings of its approach.

Appellant cites Morningstar v. North East Penna. Ry. Co. (Penna.) 137 Atl. 800, Garis v. Lehigh and New England Ry. Co. (Pa.) 188 Atl, 76 and Smellie v. So. Pac. Co. (Cal.) 269 Pac. 657. These authorities may be distinguished from the instant case. In the Morningstar case, there was no attempt to stop the automobile at the intersection. There were no obstructions to the south, the direction from which the train was coming.. The driver depended entirely upon the guest to look for the-, train to the south from which direction the train which struck them came, while the driver looked to the north. The view to the south was not obstructed had the driver or the guest looked for the oncoming train seasonably. The pattern in the Smellie case from California is much like the Morningstar case. In the Garis case, supra, it was admitted that the guest undertook to direct the operation of the auto as it approached the crossing. The court found as a matter of fact that there was not the slightest foundation for the claim that there was any inadequacy of view which prevented the driver or the guest from seeing the oncoming box-car. The car and locomotive were moving slowly.

In the instant case the guest exercised and attempted to exercise no control over the driver in his handling of the car. It is his testimony that as soon as he saw the oncoming locomotive he put his foot on the gas, that the car jumped and that all of it cleared the track but a part of the rear right end. There was an issue whether or not defendant’s operatives saw, or in the exercise of ordinary care should have seen, the automobile upon the track in time to have slackened its speed and thus have prevented the collision. The jury had a right to find that even a slight slackening of speed of the locomotive might have prevented the collision.

Upon the whole record, we are satisfied that the plaintiff had the right to go to the jury on all three issues presented by the pleadings, namely, the negligence of the defendant -company, the contributory negligence of plaintiff’s decedent, the negligence of the driver of the car, and whether or not, if he was negligent, it was the sole proximate cause of the collision.

We do not find prejudicial error in the trial of the cause in any of the particulars assigned by the appellant. The judgment will be affirmed.

MILLER, PJ, and WISEMAN, J, concur.


author: By HICKS, CJ.

text:
    OLD COLONY INSURANCE CO. v. UNITED STATES.
    United States Court of Appeals, Sixth Circuit.
    No. 10578.
    Decided June 2, 1948.
    Philip C. Ebeling, J. Paul Brenton, Pickrel, Schaeffer <& Ebeling, Dayton, for appellant.
    M, M. Hauser, Washington, D. C., Ray J. O’Donnell and William J. Dammarell, Cincinnati, for appellee.
    Before HICKS, SIMONS and McALLISTER, Circuit Judges.
   OPINION

By HICKS, CJ.

This suit was brought under Section 410(a) of the Federal Tort Claims Act, 28 U. S. C. A., Section 931(a). Stripping the complaint of matter not here material, it alleges that an automobile owned by James R. Elliott was parked on U. S. Route No. 35 in West Alexandria, Ohio, and was run into by a United States Army truck operated by Pfc. Lawrence L. Clark of Squadron A, AAF, Wright Field, Ohio, while acting in line of duty for the 4000th AAF BU, Wright Field, Ohio; that as a result of the collision the automobile was damaged to the extent of $328.78; that plaintiff carried an insurance policy on the automobile in the name of Elliott covering collisions and that in accordance with the terms of the policy and on account of the collision and damage to the automobile, plaintiff paid for and on behalf of Elliott the amount of the damage, and by reason of the payment the plaintiff became subrogated to the rights of Elliott to the extent of the payment, and that Elliott assigned -his claim to plaintiff in the amount of the sum so paid; that plaintiff being damaged in said amount demands judgment against the defendant the United States of America therefor.

The defendant moved to dismiss on the grounds, (1) that the Federal Tort Claims Act does not authorize the maintenance of suits upon derivative claims; and (2) that the Anti-assignment statute, 31 U. S. C. A. Section 203, forbids plaintiff’s action.

The court sustained the motion and dismissed the suit. The plaintiff appealed. The parties will be referred to'herein as plaintiff and defendant.

Section 410(a) of the Federal Tort Claims Act reads as follows:

“(a) Subject to the provisions of this title, the United States district court for the district wherein the plaintiff is resident or wherein the act or omission complained of occurred, including the United States District courts for the Territories and possessions of the United States, sitting without a jury, shall have exclusive jurisdiction to hear, determine, and render judgment on any claim against the United States, for money only, accruing on and after January 1, 1945, on account of damage to or loss of property or on account of personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant for such damage, loss, injury, or death in accordance with the law of the place where the act or omission occurred. Subject to the provisions of this title, the United States shall be liable in respect of such claims, to the same claimants, in the same manner, and to the same extent, as a private individual under like circumstances, except that the United States shall not be liable for interest prior to judgment, or for punitive damages: * * * (Emphasis ours.)

There is nothing ambiguous in the quoted section of the Act. The language used is plain, its meaning is certain and easily understood. There is no room for construction and the contention that because defendant has consented to be sued, the statute must be strictly construed in its favor is without basis. See Employers’ Fire Ins. Co., et al. v. U. S., 9 Cir., 167 F. (2d), 655. The word “claimant” simply means one who under the Act has a claim against the United States. The phrase “on any claim against the United States, for money only, * * * on account of damage to or loss of property * * * caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment” means just what it says. The Act does not limit the meaning of the word “claimant” to one who has sustained damage to his property and we are not justified in reading such limitation into it. See Wojciuk v. United States, D. C., 74 F. Supp., 914. To do so would be tantamount to amendment by us of the statute, a function which of course is not ours. As was said by District Judge Medina in Niagara Fire Ins. Co., et al. v. United States, D. C., S. D., 76 F. Supp., 850, 854— “* * * there is every reason to suppose that this particular statute was the result of the most skillful and deliberate draftsmanship and that in its final form it was the cumulation of years ef patient effort.” If Congress had intended to exclude subrogees from the benefits of the Act it could readily have included them in the list of the twelve specified exemptions.

On the motion to dismiss the complaint must be taken as true and our question is, whether plaintiff, the claimant, has stated a cause of action, which, if substantiated by evidence, would entitle it to recover under the law of Ohio, where the collision occurred. Ohio Law answers the question in the affirmative and justly so. The averments of the complaint are, that the plaintiff performed its contract with Elliott by paying on his behalf the damages to his car inflicted by the negligent act of defendant’s employee in running its truck into the car. It is manifest that the payment did not discharge defendant of its liability, if any existed. Simply stated, the plaintiff, under the laws of Ohio, became subrogated to the rights of Elliott against the defendant. In Newcomb v. Cincinnati Insurance Co., 22 Oh St, 382, 385, 10 Am. Rep., 746, the Supreme Court of Ohio said:

“The defendant in error founds its claim on the doctrine of subrogation. This may be stated as follows: Where a loss, covered by insurance, is occasioned by a wrongdoer, the underwriter, after reimbursement of in specie, or making compensation in money, is, in a proper case, entitled to be subrogated, quoad hp.c, to the right of the assured against, the wrongdoer. This is of the highest equity; for whereas the loss is, in the first instance, that of the assured, after reimbursement or compensation, it becomes the loss of the insurer.

“The plaintiffs in error insist that the doctrine, if ever recognized has been doubted by modern decisions. We do not so think. It was fully recognized by Lord Hardwick in the early case of Randal v. Coekran, 1 Ves. Sr., 98, with which the American cases are in nearly universal accord.” See also Massachusetts Bonding & Insurance Co. v. Dingle-Clark Co., 142 Oh St, 346, 351, 27 O. O., 265, 52 N. E. (2d), 340; St. Louis, Iron Mountain & Sou. R. Co. v Commercial Union Ins. Co., 139 U. S., 223, 235, 11 S. Ct., 554, 35 L. Ed., 154; Travelers’ Ins. Co. v. Great Lakes Eng’r. W. Co., 6 Cir., 184 F., 426, 430, 36 L. R. A., N. S., 60.

The doctrine of subrogation as applicable here is simply this: That the plaintiff having discharged its obligation under the contract of insurance, became subrogated to all the rights of Elliott against defendant which grew out of the collision. The doctrine is enforced for the purpose of accomplishing substantial justice. Memphis & L. Railroad Co. v. Dow, 120 U. S., 287, 301, 7 S. Ct., 482, 30 L. Ed., 595. This does not mean of course, that the plaintiff is entitled to recover as a matter of law upon the averments of its complaint, but it does mean that the district court has “jurisdiction to hear, determine .[and render judgment]” on its claim. However, its claim rises no higher than that of Elliott if he had sought to enforce it himself; and it could only be enforced upon evidence that the collision and incidental damage was caused by the negligence, wrongful act or omission of the employee ' of the defendant. Its right does not depend upon the assignment averred in the complaint. The law confers that right, and the suit was brought by the real party in interest. Rule 17, Federal Rules of Civil Procedure, 28 U. S. C. A., following Section 723c.

Appellee in its brief does not undertake to sustain the second ground of its motion to dismiss, to wit, that the Anti-assignment statute forbids the action. The Anti-assignment Act has no application. See Martin v. National Sur. Co., 300 U. S., 588, 57 S. Ct., 531, 81 L. Ed., 822; Goodman v. Niblack, 102 U. S., 556, 26 L. Ed., 229; Hill v United States, D. C., 74 F. Supp., 129.

The judgment is reversed, the order of dismissal set aside and the case remanded for further proceedings not inconsistent herewith.