text:
    DAVIS, Plaintiff-Appellant, v. DAVIS, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24669.
    Decided April 16, 1959.
    Florence H. Goodman, Diehm & Farber, for plaintiff-appellant.
    M. A. Picciano, Miriam J. Fingerhut, for defendant-appellee.
   OPINION

Per CURIAM:

Where, in an action for divorce, alimony, custody and support of children, a narrative Bill of Exceptions sets out all witnesses in the order in which they testified at the trial of the case and presents the testimony, in substance, of each, both on direct examination as well as on cross-examination, and the Bill of Exceptions makes reference to and identifies all exhibits introduced in evidence at the trial but does not have attached to it the exhibits bearing on the finances and the property of the couple, and the trial court certifies that it received the Bill of Exceptions with all objections and amendments and signs the same with the annotation “Upon due consideration of the same and the objections and amendments thereto, the said bill of exceptions is hereby allowed and signed by the court,” a reviewing court has the right to conclude that all the evidence with respect to the issue of divorce is contained therein and that it is required to pass on an assignment of error claiming that the judgment “was against the manifest weight of the evidence.”

Upon a careful reading of the Bill of Exceptions, we hold that the judgment of the trial court denying a divorce to the plaintiff-appellant was contrary to the weight of the evidence. Weeden v. Weeden, 116 Oh St 524.

The assignment of error claiming “irregularity of the proceedings of the court by which the appellant was prevented from having a fair trial in that the hearing was not held on consecutive court days but was held on parts of six days extending over a period of 106 days in two terms of court” is overruled for the reason that the record discloses no objection to such proceedings by the appellant, which, in effect, constituted a waiver of the infringement, if any, of her constitutional rights and forecloses the consideration of the same, first raised, on appeal.

Accordingly, judgment is reversed as contrary to the weight of the evidence and cause remanded for further proceedings according to law. Exceptions.

HURD, PJ, KOVACHY and SKEEL, JJ, concur.


source: Caselaw Access Project

author: By BRYANT, PJ.

license: Public Domain

text:
    F. E. AVERY COMPANY, Plaintiff-Appellee, v. GEORGE, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6034.
    Decided April 14, 1959.

      Carlisle O. Dollings, Columbus, for plaintiff-appellee.
    Ray J. Glaze, Columbus, for defendant-appellant,
    (WISEMAN, J, of the Second District, sitting by designation in the Tenth District.)
   OPINION

By BRYANT, PJ.

This matter comes on for determination upon an appeal on questions of law from a judgment and final order entered by the Columbus Municipal Court in the sum $995 against George George, defendant-appellant herein, and in favor of the F. E. Avery Company, a corporation, plaintiff-appellee herein.

The proceeding was begun in the lower court as an action for damages to an automobile owned by the Avery Company and driven by. George, the accident occurring at «about 2:30 A. M., January 29, 1958 on the Olentangy River Road in the northern part of Franklin County, Ohio.

It appears that George prior to the night in question was the owner of a Chrysler automobile which was destroyed in an accident and that he was having difficulty in settling his damage claim with an insurance company.

A representative of the insurance company apparently had suggested that the Avery Company show a car to George as a possible replacement for his Chrysler. The car so exhibited was not acceptable to George but a companion of George praised another car, a Pontiac, at the Avery Company’s lot and as a result George obtained permission to take the Pontiac for a test drive. This was late in the afternoon and he obtained special permission to keep it until the following day.

George drove the car to an eating place on the east side where he had dinner and three small beers. He then went to his office where he worked until about 2 A. M. when he started home driving on Olentangy River Road in a northerly direction. It was at or near Caruthers Drive that the accident occurred with George at the wheel of the Pontiac. The car crossed the road to the wrong or west side, damaged two sections of guard rail, went over an eight-foot bank and came to rest wedged in a ditch or ravine. George escaped with minor injuries but some of the evidence indicates the car was demolished. George said he was travelling at from forty to forty-five miles per hour and that there were occasional icy spots on the road. It is not exactly clear whether he blamed the quick action of the power brakes, the ice on the road or possible drowsiness or falling asleep as the prinpical cause of the accident. The case was tried without a jury and to a court.

As assignments of error, George claims the judgment of the trial court was contrary to law and against the manifest weight of the evidence. He also claims the trial court erred in overruling his motion for a new trial and that other errors occurred.

' Defendant-appellant in his brief sets forth a general discussion of questions relating to the various types of bailment and we are unable to determine exactly what it was in George’s opinion that made the judgment contrary to law. The court clearly had jurisdiction of the subject matter and the parties and in a proper case had the power to render such judgment. Hence we conclude that the first assignment of error is not well taken.

The second and third assignments of error relate to the weight of the evidence and the overruling of a motion for a new trial. Certainly there was sufficient evidence on every material point which, if believed by the court which was the trier of the facts, would sustain the judgment. Actually there was not much in the way of a dispute over the facts although the parties may well have disagreed as to the inferences arising therefrom.

The principal contention of George seems to be the bailment relationship between him and the Avery Company was exclusively for the benefit of the Avery Company because the company allegedly stood to gain if a sale followed, and that as a result it was a gratuitous bailment so far as George was concerned because he could not receive any benefit or gain under the existing circumstances.

With that we are compelled to disagree. In our judgment this was a bailment for the mutual benefit of the Avery Company as bailor and George as bailee. All parties concerned agree that the Avery Company presumably stood to gain if a sale followed the test driving of the car. In our judgment the benefits to George are equally clear. It is clearly beneficial to a prospective purchaser to drive a car before deciding whether or not to buy. There is some benefit in driving a car to a restaurant to obtain an evening meal or driving to the office to work or driving from the office to home at night. It was also beneficial to drive such a car to keep a business appointment. All of these were the intended and the actual uses of the car while in the possession of George.

Having concluded that the bailment in question was mutually beneficial, it follows that George was under a duty to exercise ordinary care. The trial court must have found he did not exercise ordinary care and that this failure was the proximate cause of the accident. Otherwise, it would not have returned the judgment it did.

Falling asleep at the wheel is not exercising due care but is a total absence of any care. The trial court might well have found that there was an absence of due care in driving an automobile at forty to forty-five miles an hour at night in the middle of the winter when the defendant knew there were occasional icy spots on the roads, when the roads were wet and when it alternately was raining and snowing.

The trial court was in a position to see the witnesses, to observe their demeanor as they testified and to evaluate their testimony. From what is set forth in the bill of exceptions, the testimony, if believed, gives ample support to the verdict and judgment arrived at by the trial court.

We conclude therefore the several assignments of error are not well taken and must be overruled, that the judgment of the court below should be affirmed and the appeal dismissed at the costs of the defendant-appellant.

DUFFY and WISEMAN, JJ, concur.


author: By RANKIN, J.

text:
    WASHINGTON (City), Plaintiff-Appellee, v. THOMPSON, Defendant-Appellant.
    Common Pleas Court, Fayette County.
    No. 20691.
    Decided April 21, 1949.

      Winston W. Hill, Washington C. H., for plaintiff-appellee.
    Corry, Durfey, Martin & Browne, Springfield, Bush & Rankin, Washington C. H., for defendant-appellant.
   OPINION

By RANKIN, J.

This is an appeal on questions of law from the judgment of the police court of the city of Washington. In the court below the defendant, appellant herein, was tried and convicted upon an affidavit which charged that “on or about the 27th day of October, 1948, one Charles Thompson unlawfully did go in and upon a private residence property ** for the purpose of soliciting orders for goods, to-wit: photographs, not having first been invited by the owner thereof so to do.’”

This charge was preferred under ordinance No. 383, enacted April 13, 1938, which provides:

“That the practice of going in and upon private residences * * * by solicitors, peddlers, hawkers, itinerant merchants and transient vendors of merchandise, not having been requested or invited so to do by the owner or owners, occupant or occupants of said private residences, for the purpose of soliciting orders for the sale of goods, wares and merchandise, and/or for the purpose of disposing of and/or peddling or hawking the same, is hereby declared to be a nuisance, and punishable as such nuisance as a misdemeanor.”

The facts involved are not in dispute. It was stipulated “that the defendant, Charles Thompson, is, and at the time of his arrest was, employed by Olan Mills, Incorporated of Ohio, a Tennessee corporation with its prinipal place of business in Springfield, Ohio; that said corporation is engaged in the business of making, processing and selling portrait photographs, which business is carried on through the means of house-to-house solicitation of orders, and that the defendant, Charles Thompson, is employed as a salesman for said company, his duties requiring him to make house-to-house solicitation of orders for portrait photographs, in the performance of which duties the defendant * * * was engaged at the time of his arrest.”

While the defendant sets forth four separate respects in which he claims the trial court erred in his prejudice, all of these are based upon the general proposition that the ordinance under which he was convicted is invalid. The question is therefore presented as to whether or not the city possessed the power to enact said ordinance.

Prior to the adoption of the Constitutional amendments of 1912 all police power possessed by municipalities was conferred upon them by the Legislature. They had no other source of such power. At that time many general laws were in force granting police powers to municipalities with respect to a wide variety of subjects. By a schedule adopted with said amendments it was provided that: “All laws then in force, not inconsistent therewith shall continue in force until amended or repealed.” With regard to that subject it may be said that while a constitutional provision will repeal by implication prior to legislative enactments inconsistent therwith, such repeals are not favored. To effect “a repeal by implication, the inconsistency between the constitutional provision and the legislation, must be clear, strong, manifest, necessary, obvious, and incapable of fair reconciliation.” 8 O. Jur. 175-6. Practically all of said general laws have been continued in full force down to the present time. Some amendments thereto have been made by the Legislature and additional laws of a similar nature have been added to the list. All of these laws have been grouped in the Code under the title “Municipal Corporations” under the heading “Enumeration of powers.” Sec. 3615 et seq, GC.

Under the sub-heading “Health and Sanitation” municipalities are empowered to “abate nuisance and prevent injury” and under the subheading “Peace and Morals” they are empowered “to restrain or prohibit” certain activities; “to prevent” certain conduct; “to authorize destruction of instruments or devices used” for certain purposes; “to suppress and distrain” certain establishments; “to restrain and prohibit” the things detailed; and to punish those guilty of various acts of misconduct. Sec. 3646 et seq, GC.

Less drastic powers are grouped under the sub-heading “Licenses,” wherein municipalities are empowered to license certain specified businesses, §3669 et seq, GC. Under the latter sub-heading the law deals specifically with the business of soliciting orders for goods, which is the subject matter of the ordinance under consideration herein. As a matter of fact that specific business is not mentioned or referred to, except in §3673 GC, which merely authorized municipal corporations “to license transient dealers * * * and each person who, on the streets, or traveling from place to place about such municipality, sells, bargains to sell, or solicits orders for goods, wares or merchandise by retail. The granting of such licenses shall be controlled by the provisions of the next preceding section.”

The pertinent portion of “the next preceding section” provides that the municipality ‘“in granting such license, may exact and receive such sum of money as it may think reasonable, but no municipal corporation may require of the owner of any product of his own raising, or the manufacturer of any article manufactured by him, license to rend or sell in any way, by himself or agent, any such article or product.” Both of these statutes were enacted prior to 1912.

By the enactment of these sections the Legislature quite definitely intended merely to permit municipal corporations to license, not forbid, the businesses mentioned therein.

“Where a license * * * is imposed under the police power as a means of regulation, it must not be imposed on such terms and conditions as to operate as the virtual prohibition of a useful and legitimate occupation.” 53 C. J. S., 511, Youngstown v. Harrington, 17 Abs 154, and cases cited.

“The right to follow any of the common occupations of life is one of the fundamental rights of citizenship. * * * Liberty, in its broadest sense, embraces the right of an individual to use his faculties in all lawful ways to live and to work where he will, to do business, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation.” 8 O. Jur. 470.

In the case of Tea Co. v. Tippecanoe, 85 Oh St 120, it was held:

“In view of the guaranties of the Bill of Rights, §3673 GC, cannot be so interpreted as to authorize a municipal council to impose a license fee upon merchants who do not sell upon the public streets or places, but only solicit orders and negotiate future sales at the residences of their customers.”

In the opinion the court makes this important pronouncement: “The concession that the business of the plaintiff is within the terms of this section of the statutes will not aid the defendant (village), for if so interpreted, the statute (§3673 GC) very plainly transcends the limits prescribed by the constitution.”

In 1915 the Honorable Edward C. Turner, then Attorney General and now Judge of the Supreme Court of Ohio, was asked to pass upon the “legality and constitutionality of an ordinance imposing a fee of $10.00 per day upon agents soliciting business in ‘the city of Columbus, said agent going from door to door soliciting sales.’”

After citing the Tippecanoe case he stated: “In view of this decision it seems clear that an ordinance of the kind described by you would be void, regardless of the amount of the per diem license fee.”

“Secs. 3673 and 3676 GC, insofar as they purport to authorize the requirement of licenses from transient dealers as a condition to their doing business within the municipality are unconstitutional and void, and ordinances based on these statutes are therefore without effect.” Evans v. Wooster, 40 O. C. C., 250. Affirmed in memorandum opinion, Wooster v. Evans, 92 Oh St 504.

A municipality may not legally adopt ordinances which are repugnant to the policies of the state as declared in its legislation. “Statutes relative to peddling and street vending indicate that the state recognizes peddling and street vending as lawful businesses and street and itinerant vendors as being engaged in the pursuit of lawful business, thereby precluding municipalities from adopting a contrary policy prohibiting such business.” Schul v. King, (Butler County C. P. Court), 70 N. E. 2d 378.

The business of house-to-house .solicitation always has been regarded as a useful and lawful occupation.

But counsel for the City contends that soliciting sales at private residences is “a public nuisance, because the city of Washington has declared it to be a nuisance and had ample power to declare the same a nuisance by virtue of the police power invested in the city and by statutory power.”

In the first place, the city is wholly without power to declare that to be a “public nuisance” which is not a public nuisance as a matter of fact.

“The nuisance referred to in the statute is that which arises from something dangerous, offensive or unwholesome. It is not sufficient, however, that it should annoy or injure a.single individual, or a small number of persons as compared with the entire community. Such might be a private nuisance; but with that the corporation has nothing to do. Its jurisdiction is restricted to public nuisances. Such a nuisance is one that produces common injury and damage to the public, so that one person cannot be said to sustain any special or particular damage, apart from the rest of the community.” Whitcomb v. Springfield, 3 O. C. C., 244, 249. See also 30 O. Jur. 301 et seq.

Furthermore, “The power to license a business * * * contemplates the continued existence of the business.” 53 C. J. S. 462. Therefore, the Legislature, by empowering municipalities to license the business of soliciting, has recognized that business as a useful and lawful occupation, the continued existence of which, may not be prohibited by the city.

How can it be contended that the Legislature would be guilty of such an inconsistency as to authorize municipalities to suppress as a nuisance, that which it empowers them to license as a lawful business?

Furthermore, if the solicitations of sales at private residences really constituted a public nuisance, in fact, then such solicitation could not be permitted even by those who required or invited them.” Prior v. White, 132 Fla., 1, 180 So., 347.

A proper consideration of the statutes above discussed irresistibly leads to the conclusion that the state has manifested a purpose to assume complete control over the subject of determining what regulations municipalities may or may not impose upon the business of “traveling from place to place” in municipalities soliciting orders for goods, and to limit the extent of such regulation to the mere licensing of such business.

The Legislature has gone further and declared that “no municipal corporation may require of the manufacturer of any article manufactured by him, license to vend or sell in any way, by himself or agent, any such article.” Sec. 3672 GC, supra.

In the case of North College Hill v. Woebkenberg, 59 Oh Ap 458, North College Hills, pursuant to §3673 GC, supra, passed an ordinance requiring a license to engage in the business of peddling. Woebkenberg was convicted and fined for violation of that ordinance. He was the agent of a dairy company whose products he was peddling. That case holds that “§3672 GC, prohibits a municipal corporation from requiring a ‘manufacturer of any article manufactured by him’ to procure a license in order to sell such product,” and that defendant’s conviction was erroneous.

As previously pointed out, the only police power of municipalities over the business of soliciting, is that of merely licensing. By §3672 GC, supra, the Legislature has declared that even that power shall not be exercised against the manufacturer of any article in the sale of his own products. Thus, the manufacturer of an article is left entirely free “to vend or sell in any, by himself or agent, such article.”

It should be pointed out that the ordinance attempts to make the “PRACTICE” of going upon private residences, an offense. The affidavit does not charge the defendant with the “practice” etc. It simply charges that he “did go in any upon A PRIVATE RESIDENCE property at No. 404 Van Deman Street.” Does the affidavit charge an offense?

The judgment of the Police Court will be set aside and this cause will be remanded to the trial court with instructions to enter judgment in favor of the defendant.


author: By RADCLIFF, J:

text:
    ECKENROTH, Plaintiff-Appellant, v. STONE, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24607.
    Decided April 21, 1959.
    McDonald, Hopkins, Hood and Hardy, for plaintiff-appellant.
    Feighan & Feighan, Ned L. Mann, for defendant-appellee.
    (DOYLE, FJ, HUNSI9KER, J, of the Ninth District, RADCLIFF, J, of the Fourth District, sitting by designation in the Eighth District.)
   OPINION

By RADCLIFF, J:

This lawsuit was instituted by the plaintiff in the Common Pleas Court of Cuyahoga County, Ohio, to impress a constructive trust upon a certain piece of real estate which the plaintiff claimed, the defendant acting as his agent, purchased and took title in his own name, then refused to convey the property upon the tender of the actual purchase price by the plaintiff to the defendant. The issues are made up by the second amended petition of the plaintiff, which alleges in substance that the defendant induced the plaintiff to hire him to negotiate for the purchase of a certain tract of land, being 15309 Brookpark Road, located in the village of Brookpark, Cuyahoga County, Ohio. Plaintiff further alleges that defendant was to purchase the property for $11,000 and was to be paid $200 for his services. The defendant did purchase the property for the sum of $11,000, but took title in his own name and upon the tender of the sum claimed to have been agreed upon refused and still refuses to convey the property in question. The defendant’s answer contains a general denial, raises the defense of the statute of frauds and denies any agency between the defendant and the plaintiff.

The facts are in great dispute, not only is there divergence and open conflict between the testimony of the witnesses that appeared on behalf of the plaintiff and the witnesses that appeared on behalf of the defendant, but there is a great deal of conflict and confusion in the testimony of the plaintiff and the witnesses that appeared for him. In order to bring the factual picture into proper perspective we will try to state the consensus of the evidence on both sides and later on in the opinion point out some of the most serious differences. The plaintiff’s version of the factual situation is that on or about the 10th day of May, 1955, the defendant came into the plaintiff’s place of business in the city of Cleveland, they had been friends of some 20 years standing, and told him that he knew of a nice piece of property that he, the defendant, could probably purchase and wanted to know if the plaintiff was interested, that at that time the plaintiff in the presence of his witnesses told the defendant to go ahead and buy it and take the title in the plaintiff’s name. A day or so later the plaintiff and his general manager, a Mr. Bregman, drove past the property in question and to the Municipal Building in the village of Brook Park to determine whether or not there were zoning laws that might interfere with the use to which the plaintiff might wish to put the property in the event it was purchased. They drove past the property but did not stop for any length of time. About the 17th of May, plaintiff, Mr. Bregman and the defendant visited the property located at 15309 Brookpark Road and there discussed or talked to the owner of the property in question, a Mrs. Madelynn Zelis. At this conference the plaintiff stated that he found out for the first time that the property could be purchased for $11,000 and further that he at that time authorized the defendant to buy it at $11,000 and that he would pay him $200 for his trouble. Incidentally Mrs. Zelis said that she did not state the price of the property at the meeting on May 17, and further that the asking price was $13,000 at that time. At this same meeting it was disclosed that Mr. Zelis was en route to Cleveland from a business trip in Italy and would be back in a few days and that it would be necessary for him to handle the final negotiations, if any. The plaintiff contended that on two or three different occasions, between the 10th and 21st of May, he offered the defendant some money to be used as a down payment and that each time the defendant declined. On May 21, the defendant entered into a purchase agreement with the owners, Mr. and Mrs. Walter Zelis, to buy the property in question for the sum of $11,000 and paid them $200 in earnest money. An escrow agreement was entered into by and between the buyer and seller and the Cleveland Trust Company on May 24, 1955. On or about May 24th the defendant was again in the plaintiff’s place of business in the City of Cleveland and told them that he had paid $13,500 for the property, that he had taken title in his own name and that if the plaintiff wanted it he could have it at $13,500. That day or the next, the plaintiff by making inquiry of the Cleveland Trust Company discovered that the purchase price had been $11,000 and demanded that the plaintiff convey the property to him. The discussions back and forth continued until late in June when the defendant told the plaintiff that he had another party who would pay $13,500 and if the plaintiff didn’t want the real estate he was going to sell it to a third person. The plaintiff filed his petition on July 1, 1955, seeking to impress the trust. He alleged in the second amended petition that tender was made on or about the 1st day of July of $11,200, but the record is silent as to any formal tender at any time. As we said there is a strong conflict in the evidence and it is deemed that we state the consensus of the plaintiff’s testimony as to what the facts are.

The defendant claims that he did not discuss the property the subject of this litigation at any time with the plaintiff until after he had entered into an agreement to purchase; that he was at no time the agent for the plaintiff nor did he at any time agree to transfer the property to the plaintiff or take the title in the plaintiff’s name at any given sum.

As we have said earlier the plaintiff and defendant had been friends and had business transactions during the past 20 years preceding 1955. By reading the record it is apparent that the defendant has a little difficulty with the English language. If his comprehension of it is no better than his construction and delivery he is at some disadvantage.

Now, to raise some of the points of conflict that are so apparent in the record. The plaintiff, Mr. Eckenroth, testified that the original negotiations started in April of 1955 between Mr. Stone and himself and that he had no idea as to the price of the property until he was told what it was on the 17th of May, 1955, by Mrs. Zelis. Mr. Leonard Bregman, manager of the plaintiff’s trucking business, said that the negotiations began early in May, possibly on the 10th and that the defendant came into Mr. Eckenroth’s place of business and said, “I have a nice property that I can get for you at $9500,” and at that time Mr. Eckenroth told the defendant to go ahead and get it. If he could get it at $9500 he would pay him $500 for his trouble and to be sure that title was taken in Mr. Eckenroth’s name. Mr. J. A. Kienes, Assistant Manager of Mr. Eckenroth’s trucking concern and the dispatcher, said that negotiations started early in May, probably on the 10th by Mr. Stone coming in and saying there is a nice piece of property I can get for you at $7500 and that Mr. Eckenroth said go ahead and buy it and take title in my name. Mr. Eckenroth testified that he first discovered the asking price of the property on May 17 when Mrs. Zelis told him it was $11,000. This Mrs. Zelis denied saying that she had not mentioned any price to Mr. Eckenroth and had she been asked the price she would have told him that it was $13,000 at that time. The defendant, Mr. Stone, denied that Mr. Eckenroth or Mr. Bregman either one talked to Mrs. Zelis at her home on May 17. Mr. Walter Zelis testified that he returned from a business trip to Italy on the 19th of May. That he had discussed the sale of the property on Brookpark Road with Mr. David Stone at least a year before. That he went to Mr. Stone’s place of business directly across from his home on the 21st of May and asked if Mr. Stone was interested in buying it and Mr. Stone said yes, he would pay $11,000 for it. That Mr. Stone came over to his home later in the day and a contract was entered into between Mr. and Mrs. Zelis and David Stone at a price of $11,000. Mrs. Zelis testified that at the time the agreement was made on May 21, Mr. Stone told her that his man was no longer interested in the property, that he was buying it for himself. Mr. Zelis testified that there was no mention made of any third party being interested in the property and that he never heard anything about a third party purchasing the property or a Mr. Eckenroth until after the transaction had been completed.

Identical evidence was submitted in the Court of Common Pleas except the deposition of Mrs. Madelynn Zelis. Mrs. Zelis was ill at the time the case was first tried and by stipulation her deposition was added to the record in this court. The Common Pleas Court held that the statutes of fraud did apply to the factual situation and further that there was no agency or fiduciary relationship between the plaintiff and defendant.

Before we begin a general discussion of the legal principles involved there are two points that we wish to dispose of. Both points were raised for the first time in the briefs and were stressed in oral argument to this court. The plaintiff injected one of these and the defendant the other. Both are unique in that they are departures from the conception that most students of the law have as to certain principles. The first of these and the one raised by the plaintiff, is that the degree of proof necessary in order to impress a constructive trust arising out of the fraudulent conduct of an agent is by a preponderance of the evidence rather than by clear and convincing evidence. We have examined the various authorities cited both in and out of Ohio and can come to but one conclusion, namely that the degree of proof necessary to establish either a resulting trust or a constructive trust, is clear and convincing and cite in support thereof: Henricks v. Sundmaker (Illinois), 89 N. E. (2d), 732, Masters v. Masters (Maryland), 89 Atlantic (2d) 576, Vincent v. Divine Peace Mission Movement (Oh Ap), 118 N. E. (2d) 190, Crellin v. Parish (Oh Ap), 136 N. E. (2d) 454, Mannix v. Purcell, 46 Oh St 102, 23 A. L. R. 1512, 1538, 54 Am. Jurisprudence 480, section 621; 3 Bogert on Trusts 13, section 472, 1 Jones on Evidence 426, section 224.

The other question injected into the case by the defendant has to do with tender. The defendant’s position being that tender means actual tender in specie of the sum alleged to have been tendered in the second amended petition. The strict construction of tender that the defendant urges 3s that there must be the actual production of currency in the entire amount involved in the alleged contract. Here again after an examination of the authorities we are forced to differ with the defendant’s strict construction of the law of tender and say that tender does not mean the actual presenting of specie in the entire amount and cite in support thereof: Raudabaugh v. Hart, 61 Oh St 73, Thomas v. Matthews, 94 Oh St 32, Gebbie v. Efros, 95 Oh St 215, 4 Scott on Trusts, 3220, section 499, Bonds v. Rhoads (Miss.) 35 Southern (2) 437, Restatement of the Law of Contracts, 919, section 481.

Earlier in this opinion we have made reference to the deposition of Mrs. Madelynn Zelis as being the only additional testimony which we have read that was not heard by the trial judge. This deposition instead of having the effect of clarification further complicated the factual pattern. In one particular it buttressed the testimony of Mr. Eckenroth but in a very important particular contradicted Mr. Eckenroth. In one particular it contradicted Mr. Stone yet by the same token it was helpful to his position and raised some question as to the extent of Mrs. Zelis’ recollection of the entire transaction.

In this case, we are the triers of the facts and after a thorough and complete reading and re-reading of the evidence, I for one am most thankful for the jury system in our state. It is sometimes difficult to determine the law but at no time does it approach the difficulty one has in trying to determine the true facts in any given situation. We have concluded that the plaintiff to be entitled to the relief prayed for must establish the agency relationship and its conditions by clear and convincing evidence. This burden has not been met, it is impossible to tell at what time there was a meeting of the minds which must be present to create the relationship of principal and agent. It is impossible to say that if there had been a meeting of the minds what the terms were upon which they met. We have endeavored to resolve the conflicts and differences in this testimony but it is impossible for me to say that the facts which must be established by the plaintiff before he would be entitled to relief have been established by even a preponderance of the evidence so confusing and conflicting is-the testimony of the plaintiff and his own witnesses.

We conclude therefore that the plaintiff, having failed to maintain the burden of proof by the degree required in equity, that the petition should be dismissed and final judgment rendered in favor of the defendant. We do not say that the statute of frauds is or is not an applicable rule of law in this case as it is not necesstary to the final disposition.

Decree accordingly.

DOYLE, PJ, HUNSICKER,-J, concur in the judgment.


author: By DUFFY, J.

text:
    JOSEPH, An Infant, Plaintiff-Appellant, v. PETERSON et, Defendants-Appellees.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5979.
    Decided April 7, 1959.
    Herbert, Tuttle, Applegate & Britt, Paul M. Herbert, of Counsel, Columbus, for plaintiff-appellant.
    William J. Lohr, Columbus, for defendants-appellees.
   OPINION

By DUFFY, J.

This is an appeal on questions of law from a judgment entered in the Franklin County Common Pleas Court, wherein the trial court directed the jury to render a verdict for the defendants-appellees.

Plaintiff-appellant, a minor four years of age, by her father and next friend, sued the defendants-appellees, the parents of a minor eight years of age, for injuries received by her on May 17, 1955, when a metal-tipped arrow, shot by the eight-year-old son of the defendantsappellees, struck her in the right eye, necessitating a later removal of the eye. At the conclusion of plaintiff-appellant’s case in the trial court, the appellees moved for a directed verdict, which was sustained by the court.

The trial court construed the evidence presented most favorably to the plaintiff and came to the conclusion that there was no evidence presented showing negligence on the part of the defendant parents, as evidence presented did not indicate that the child was incompetent or unskilled in the use of the bow and arrow, which the court held was not a dangerous instrumentality as a matter of law. In that finding the court felt compelled to follow White v. Page, decided by the Court of Appeals of Franklin County, Ohio, in 1950, and reported in 61 Abs 498. The trial court did not feel that there was any evidence indicating a course of conduct on the part of defendants’ son which would give them warning that such an unfortunate incident as this would probably occur, although the court did recognize that when dealing with children anything is possible, but since the law deals only with probabilities, there were not sufficient grounds to present a case to the jury.

The plaintiff-appellant felt that there was evidence presented which the trial court should have submitted to the jury for decision, as plaintiff’s parents testified that they had previously sent the defendants’ son home when he brought the bow and arrow to their yard; and the defendant, Mr. Peterson, testified that he had taken the bow and arrow away from the boy and had told the boy to leave the bow and arrow alone; but in spite of this prohibitipn, the mother gave the boy permission to use the bow and arrow without supervising his activities. The father’s prohibition of the use of the bow and arrow was the result of disobedience in its continued use by the defendants’ son, and plaintiff-appellant feels that a reasonably prudent parent would have foreseen that the use of the bow and arrow in the neighborhood would result in serious injury to some other person and particularly to a child in the neighborhood. Plaintiff-appellant admits in her brief and argument that the bow and arrow was not a dangerous instrumentality in itself, but when placed in the hands of an incompetent and unskilled eight-year-old lad who is allowed to roam a neighborhood in which there are small children, such a weapon becomes an extremely dangerous instrumentality.

Since the parent is not liable for the tort of a child merely because of this relationship and there was no evidence of agency in this case, it was incumbent upon the plaintiff-appellant to show by some evidence that the parents were negligent in permitting the child to be in possession of the bow and arrow, knowing of the incompetence and unskillfulness and dangerous propensities of their son because of a specific, known course of prior conduct in which the son had engaged and which would give them warning that the son would probably injure another with the use of the bow and arrow.

It is true that there is evidence that the parents of the little girl had previously sent home the son of the defendants when he appeared in their yard with the bow and arrow, and there is evidence that they reported such action on their part to the defendants. They did not see the boy shoot the arrow. There is also evidence that the father, who had instructed the boy in its use, told the boy to leave the bow and arrow alone, but this prohibition seems to have been made because of a disobedience in the continued use of the bow and arrow in the basement of the home after having been told to put it away rather than because of any negligent or dangerous use of the bow and arrow by the boy.

The evidence further showed that the defendant mother had given the boy permission, on the morning of the day of the accident, to use the bow and arrow in a field near the home but did not know that the boy was using the bow and arrow after lunch when the incident in question occurred.

Sad situations such as this should not tempt the court to legislate; the rules respecting the nonliability of the parent for the tort of the child have been well established in the law.

We feel that the trial court properly resolved all doubts in favor of the plaintiff-appellant and properly concluded that there was no evidence of negligence on the part of the defendant parents. Finding no error in the record prejudicial to the rights of the plaintiff-appellants, the judgment is affirmed.

BRYANT, PJ, MILLER, J, concur.


author: Per CURIAM.

text:
    TOTH, Appellant, v. ECKLE, Supt., Appellee.
    United States Court of Appeals, Sixth Circuit.
    No. 13342.
    Decided June 26, 1958.
    John Toth, per se.
    William M. Vance, Asst. Atty. Geni., William Saxbe, Atty. Geni., Columbus, on brief, for appellee.
    Before McALLISTER, MILLER and STEWART, Circuit Judges.
   OPINION

Per CURIAM.

This is an appeal from the district court’s denial of a writ of habeas corpus.

In 1948 the appellant pleaded guilty in an Ohio court to an indictment charging assault with intent to kill. Imposition of sentence was suspended for three years, and appellant was placed on probation. Early in 1949 he was brought before the Ohio court as a probation violator and was committed to the county jail for sixty days. The state now concedes that the court was not authorized to impose this jail sentence as a penalty for violation of probation. Later the same year the appellant was again brought before the Ohio court as a probation violator, and this time the court imposed a sentence which might have been imposed upon his original plea of gulity. There is no question but that under Ohio law this was an authorized penalty for violation of probation. It is this sentence which the appellant is now serving, and it is his contention that in imposing it the State of Ohio has placed him in double jeopardy.

The order of the district court must be affirmed. We agree with the trial judge’s reasoning that even though the sixty-day sentence imposed on the charge of probation violation was unauthorized, “nevertheless, petitioner’s probation was not afiected or terminated, and the court still had jurisdiction to impose an indeterminate sentence on April 21, 1949, for violation of probation.” The appellant’s present confinement does not, therefore, result from the violation of any federally protected right. Cf. Palko v. State of Connecticut, 1937, 302 U. S., 319, 58 S. Ct., 149, 82 L. Ed., 288; State of La. ex rel. Francis v. Resweber, 1947, 329 U. S., 459, 67 S. Ct., 374, 91 L. Ed., 422; Ciucci v. State of Illinois, 356 U. S., 571, 78 S. Ct., 839, 2 L. Ed. (2d), 983.

The order of the district court is affirmed.


author: By THE COURT:

text:
    DIBERT, Plaintiff-Appellee, v. ROSS PATTERN FOUNDRY AND DEVELOPMENT CO., INC., Defendant-Appellant.
    Ohio Appeals, Second District, Champaign County.
    No. 147.
    Decided October 2, 1957.

      Grace Fern Heck, William E. Bailey, Springfield, for plaintiff-appellee, Contra the Motion.
    Karl E. Paulig, Urbana, Durfey, Martin, Brown & Hull, Springfield, Anson E. Hull, of Counsel, for defendant-appellant, For the Motion.
   OPINION

By THE COURT:

Defendant-appellant moves for a writ of supersedeas staying execution on a judgment against it in favor of plaintiff in the sum of $37,-500.00, entered in the Common Pleas Court, Champaign County, Ohio.

Facts upon which the motion is predicated are set out therein and in so far as conformable to the proof and concessions on the hearing on the motion, we hereinafter set forth.

March 4, 1957, notice of appeal on questions of law was filed in the trial court.

June 26, 1957, a certificate of judgment was issued by the Clerk of Courts, Champaign County. June 27,1957, the certificate of judgment was filed with the Clerk of Courts of Shelby County, Ohio.

July 1, 1957, defendant executed a supersedeas bond in the sum of $40,000.00 which was approved by the Clerk and by the Common Pleas Court and filed with the Clerk of Courts of Champaign County.

Prior to the execution, approval and filing of the supersedeas bond with the Clerk of Courts of Champaign County, execution on the certificate of judgment was issued to the Sheriff of Shelby County, Ohio. The execution was returned by the Sheriff of Shelby County reciting, among other things, that a levy had been made upon the property of the judgment debtor.

On the date of the giving of the supersedeas bond an alias execution was issued to the Sheriff of Shelby County. Plaintiff insists that he has the right to proceed to the satisfaction of his judgment under the executions and levy.

For the purpose of the motion, we assume that a levy was made under the first execution and possibly under the alias execution. The fact of physical levy upon the property of defendant is in controversy between the parties, but we assume that it was made because of the return of the Sheriff, it is not denied by proof and because the defendant gave a redelivery bond. Giving of the redelivery bond, under §2329.12 R. C., presupposes a levy.

At the outset, we are met with the claim of appellee that we are without authority to grant any relief on the motion because it is contrary to proper procedure and, if any relief is required it should be sought in another forum. Appellee also insists that the supersedeas bond was not effective for any purpose because not filed within the time within which the notice of appeal was required to be filed under the statute.

The applicable section under which the supersedeas bond was given is §2505.09 R. C. No time is fixed in this statute within which the bond is required to be executed. In the absence of such limitation, we could not read into the statute such a provision.

Sec. 2501.02 R. C., provides, in part, that the Court of Appeals, on good cause shown, may issue writs of supersedeas in any case, and all other writs, not specially provided for or prohibited by statute, necessary to enforce the administration of justice. If the supersedeas bond has the effect on the executions and levies for which movant contends, the statute may be given application.

It has been held frequently that Courts have inherent power to stay an execution temporarily, and the power is exercised in an almost infinite variety of circumstances to the end that justice may be administered. 17 O. Jur. 1070.

We come, then, to the decisive question presented by the motion and the facts appearing.

It is the contention of appellee, if it be conceded that the supersedeas bond was executed and filed within time, it is ineffective to bar any further step by the Sheriff incident to the execution and succeeding the levy. This claim is predicated upon the conceded common law rule, that execution of a judgment is one entire thing and may not be divided after it is begun. Appellant insists that the common law rule is not controlling in Ohio; that the steps incident to the execution are sever-able and that the supersedeas bond operates to stop any further action by the Sheriff of Shelby County subsequent to the levy as shown upon his return on the first execution.

If the claim of appellant is sound, then it would be in the interest of justice for this Court to act under its authority to stay further proceedings. Supersedeas has been construed as synonymous with a stay of proceedings.

We are impressed with the thorough research made by Judge Owen in his declaratory opinion respecting the rights of the parties by reason of the giving of the supersedeas bond. We have not had the time nor the opportunity to digest the many opinions which Judge Owen cites from the courts of various states. There is very little authority in Ohio. The early case of Arnold v. Fuller’s Heirs, 1 Ohio 458 and 481, in the first paragraph of the opinion of Judge Burnet, considers, indirectly, our question:

“Several questions are presented in this case: 1. Did the writ of error and supersedeas avoid and vacate the execution and levy, so as to render it a nullity, or did it merely stay the proceedings of the sheriff.
“As to the first point, no authority has been cited to show the effect of a supersedeas on an execution levied on real estate. It is said in the books, that the object of a supersedeas is to stay proceedings till the errors are disposed of. In the Bishop of Ossory’s case, Cro. Jas. 534, it was resolved by all the court, that the writ of error was a supersedeas till the error was examined, affirmed or reversed. In Badger v. Lloyd, 3 Salk. 145, it was said by Holt, Chief Justice, that, although a writ of error forecloses the court, and ties up their hands, yet it doth not alter the right of the parties.” (Emphasis ours.)

It is our judgment that, although the steps incident to effectuating an execution, viz., to enforce satisfaction of the judgment, are a part of, and indeed may be designated as the execution, they are severable within the concept of the statute authorizing the giving of the supersedeas bond. Following the issuance of the execution and as a part thereof, the Sheriff makes a levy, inventories the property levied upon, gives notice of the sale by advertisement, makes the sale and returns the result of the sale to the Court. No step has been taken by the Sheriff incident to the executions and subsequent to either levy on the property since the giving of the supersedeas bond.

Our concept of the meaning and effect of the supersedeas bond in this case is well stated in a Kentucky case, Runyon v. Bennett, 34 Ky. (4 Dana) 599, 29 Am. Dec. 431, cited, approved and followed in Weber v. Tanner (Ky.), 64 S. W. 741, 742:

“A supersedeas suspends the efficacy of the judgment, but does not, like a reversal, annul the judgment itself. Its object and effect are to stay future proceedings, and not to undo what is already done. It has no retroactive operation, so as to deprive the judgment of its force and authority from the beginning, but only suspends them after and while it is itself effectual. A consequence of this is that whatever is done under the judgment after and while it is suspended, being done without authority from the judgment, which is then powerless, should be set aside as improperly and irregularly done, but that whatever is done according to the judgment before the supersedeas takes effect is upheld by the authority of the judgment, and not overreached by the supersedeas. To like effect, People v. David (Ill.), 159 N. E., 263, 265; Etna Casualty And Surety Co. etc. v. Board of Supervisors, etc. (Va.) 168 S. E. 617, 628.”

83 C. J. S. 896, par. 8.

Sec. 2505.17 R. C., provides that: “Execution of a judgment or a final order,” which would include the judgment here, “of any judicial tribunal, * * * may be stayed, on such terms as are prescribed by the Court in which the appeal is filed, or by a judge thereof. (Emphasis ours.) The section under which the bond was given in this case, §2505.09 R. C., provides that:

“No appeal shall operate as a stay of execution, * * *, until a supersedeas bond is executed by the appellant to the adverse party with sufficient surety and in such sum, not less than the amount of judgment and interest, as is directed by the court making the order which is sought to be superseded or by the court to which the appeal is taken.”

It is clear that the giving of this bond- and its approval operates as a stay of execution which term is, in our judgment, as we have heretofore defined it.

Were we not satisfied that the supersedeas bond assures to plaintiff payment in full of his judgment together with costs and damages suffered, if any, if the judgment in his behalf is not reversed, we would not hesitate to overrule the motion. We are satisfied that plaintiff’s rights are, and will be, fully protected by the supersedeas bond which does not affect any action taken on the execution before the bond was given. This is the basis of the relief sought by the appellant.

The motion will be sustained. Exceptions to plaintiff-appellee.

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


text:
    GLICK FURNITURE COMPANY, Appellant, v. BOWERS, Tax Commr., Appellee.
    Board of Tax Appeals, Department of Taxation, State of Ohio.
    No. 35167 A-G.
    Decided January 20, 1958.
    Sidney G. Kusworm, Dayton, for appellant.
    William Saxbe, Atty. Geni., by John M. Tobin, Asst. Atty. Geni., for appellee.
   OPINION

This cause and matter came on to be considered by the board of tax appeals upon the appeal of the appellant from an order of the tax commissioner denying an application for refund of sales tax refunded by appellant to various consumer customers of said appellant on merchandise returned to it, which sales tax had been previously paid by the consumers to said appellant.

In reality this appeal consists of 7 claims by the appellant numbered and in the amounts as follows:

Board No. Store Amount Date of Refund To Consumer
35167-A 3551 Cleveland Avenue $ 136.32 June 1, 1955 to
Columbus, Ohio June 30, 1955
35167-B 45 East Long Street 50.10 June 1, 1955 to
June 30, 1955
35167-C 65 East Long Street 569.98 June 1, 1955 to
Columbus, Ohio June 30, 1955
35167-D 45 East Long Street 161.78 November 1, 1955
Columbus, Ohio to December 31, 1955
35167-E 65 East Long Street 1,313.21 November 1, 1955 to
Columbus, Ohio December 30, 1955
35167-F 3551 Cleveland Avenue 392.68 November 1, 1955 to
Columbus, Ohio December 30, 1955
35167-G 50 Wilson Road 70.79 December 1, 1955 to
Columbus, Ohio December 31, 1955

The tax commissioner denied the claims for refund on the stated ground that they had not been filed within the 90-day period as prescribed in §5739.09 R. C.

The cause was submitted upon the transcript of the tax commissioner, a stipulation entered into by and between counsel, and statements of counsel.

From the transcript of the tax commissioner, it appears that on or about May 27, 1957, inquiry was made of the tax commissioner by a representative of the appellant as to the reason for the delay in making the refunds here under consideration and was advised that according to the records of said tax commissioner no such claims had ever been filed. Whereupon, appellant, on or about June 19, 1957, almost 2 years after the refunds had been made to the consumers on returned merchandise, filed duplicate claims for refund of the sales tax refunds which had been previously made.

According to the stipulation filed herein, the request for refunds, as identified therein, were deposited in the United States mail on the dates set opposite the individual claims:

Board Number Date Deposited in Mail
35167-A July 27, 1955
35167-B July 27, 1955
35167-C July 27, 1955
35167-D January 27, 1956
35167-E January 27, 1956
35167-F January 27, 1956
35167-G January 27, 1956

Although the stipulation provides that the claims were deposited in the United States mail within the time prescribed by §5739.09 R. C., apparently there is no record of their having been received by the tax commissioner until the duplicates were filed on or about June 19, 1957. However, since the uncontroverted evidence, as presented in the stipulation, indicates that the claims were deposited in the mail on the date specified, this Board must conclude that there was at least constructive delivery to the tax commissioner and that, therefore, the claims were timely filed. See State, ex rel. Sherrick v. Peck, 158 Oh St 122, 48 O. O. 60.

It is, therefore, the order of this board that the order of the tax commissioner denying the application for refund of sales tax on jurisdictional grounds be, and the same hereby is, reversed and this cause is hereby remanded to such tax commissioner for processing of the claims for refund.


author: By TOBIN, J.

text:
    ROGERS, Estate of, In re.
    Probate Court, Columbiana County.
    No. 55330.
    Decided May 15, 1959.
   OPINION

By TOBIN, J.

This cause came on to be heard on the application of the Executrix for instructions. A request had been made by the surviving spouse to make her election to take under the will or under the law of §2107.39 R. C. Said request was made prior to the filing of the Inventory and Appraisement and Schedule of Claims. The Executrix asked for instructions as to whether or not this could be done.

Sec. 2107.39 R. C., reads as follows, in so far as pertinent: “After the probate of a will and filing of the Inventory and Appraisement and the Schedule of Debts, the Probate Court on motion of the Executrix or on its own motion, shall issue a citation to the' surviving spouse to elect whether to take under the will or under §2105.06 R. C.”

The question involved is whether this can be done prior to the filing of the Inventory and Appraisement and Schedule of Debts. The Court answers in the affirmative if the surviving spouse waives, which is fier right, not to elect until such time as the Inventory and Appraisement and Schedule of Debts have been filed. The Court’s reasoning is as follows: The requirement to have the inventory and appraisement, and Schedule of Debts is a safeguard for the surviving spouse so that he or she would have a clear picture of the net value of the estate and thus be in position to make a better decision whether to take under the will or under the law. This, however, being a right given to the surviving spouse, it is such a right that he or she may waive if desired. Upon such waiver in writing, the Court will permit an earlier election.


author: By RENNER, J.:

text:
    STUEVE et, Plaintiffs, v. CINCINNATI, (City) et, Defendants.
    Common Pleas Court, Hamilton County.
    No. A-136996.
    Decided May 25, 1959.
    Thomas Stueve & John L. Sanger, for plaintiffs.
    Isabel Guy, Asst. Solicitor, for defendants.
   OPINION

By RENNER, J.:

This action was instituted by Lela R. Stueve and others against the City of Cincinnati, the County Auditor and the Treasurer of Hamilton County, Ohio. The petition alleges that Lela R. Stueve and the other plaintiffs are the owners of their respective properties in which they reside on Victoria Lane and Portsmouth Avenue in Cincinnati, Ohio As such owners they seek to enjoin the City of Cincinnati from enforcing resolution No. 53-12, adopted by the Council of Cincinnati, requiring them to construct or repair with concrete the driveway entrances to their respective properties. The driveway areas in question, which are known as the park-strip areas, lie between the paved portion of the street maintained by the City as a roadway, and the property line of the plaintiffs which adjoined the dedicated or platted portion of the street.

The petition further alleges that all of the park-strip areas were originally, have been for many years and are now constructed of blacktop and were at all the times in question in good, safe and serviceable condition.

The answer of the City admits the general allegations of the petition but denies that the action of council, in adopting and attempting to enforce the resolution complained of, is unreasonable, unlawful or arbitrary and that plaintiffs will suffer damage as alleged in the petition.

A second defense in the answer, states that the driveway entrances are maintained in the public right-of-way under the care, control and regulation of the City Council and that such driveway areas were constructed without a permit from the City and contrary to the rules and regulations governing their construction.

At the close of plaintiffs’ case in chief, the City of Cincinnati moved the Court to dismiss the petition and to render judgment for the City of Cincinnati; counsel for the City then rested their case, without offering any testimony. After oral argument on the motion, counsel for plaintiffs and the City asked leave to submit memorandum briefs in support of their respective positions and the matter for determination here is the City’s motion to dismiss and for judgment.

In their oral argument and in their brief, counsel for the City concede that for the purposes of the motion all of the facts alleged by the plaintiffs in their petition including those which are denied by the City of Cincinnati must be assumed to be true. They further contend that even if the disputed facts were proved by the plaintiffs such facts are insufficient to support a cause of action for the reason that such disputed facts are immaterial to the issues involved.

The City’s position is that the merits of black-top vs concrete or cement paving is not involved. They contend that the only material issue is one of law and not of fact, namely, whether the property owners or the City have the right to determine what material and type of construction are to be used in the park-strip areas for the enjoyment and benefit of the abutting owners in the public right-of-way.

If the City’s contention that it has the sole right to determine the materials to be used is correct that authority must stem from two sources:

(A) The special power and authority granted to municipalities under §723.01 K. C., to regulate the use of the streets and to care for, supervise and control them.

(B) The responsibility and duty which is imposed upon municipalities to guard and protect the public health, welfare, morals and safety.

The Courts of Ohio have always recognized the powers, duties and responsibilities of municipalities under §723.01 R. C., but they have not hesitated to curb the abuse of such power when exercised arbitrarily or unreasonably without regard to the public necessity or so as to interfere with private rights beyond the necessities of the situation. 99 Oh St 376; Froelich v. City of Cleveland; 6 Oh Ap (Hamilton County), 420 Thompson v. City of Cincinnati; 28 O. Jur., page 609, See. 385, and Johnson v. City of Cincinnati, A-159552 of this Court.

In the last mentioned case the plaintiffs were also owners-residents of Portsmouth Avenue and Victoria Lane in the immediate vicinity of the plaintiffs here. The Court enjoined the City from enforcing the provisions of the ordinance requiring replacement of the existing blacktop in the park-strip areas involved so long as they were kept in good condition.

Counsel for the defendants rely principally on Shafer v. Ohio Turnpike Commission, 159 Oh St 581, 50 O. O. 465, as authority for the City’s right to require the replacement of black-top with concrete. The relator in that case by mandamus sought to compel the Ohio Turnpike Commission to revise its plans and specifications for certain Turnpike construction, which provided for the use of Portland cement only, so as to include bids on alternative materials. The Supreme Court in its opinion at page 586 (Oh St), stated that “Portland cement” referred to the method of manufacture and not to the product of any particular plant or company and that the plans and specifications of the commission did not limit competition as claimed.

The Court in that case was deciding the powers and duties of the Turnpike Commission under the particular facts in that case and the provisions of the Turnpike Act which govern the acts of that commission. The Court found that the Turnpike Act vested broad discretionary power in the Commission and denied the relators petitions. The Court at p. 587 (Oh St) made this observation:

“The only restraint upon the exercise of discretion by the commis- . sion is that which the law imposes upon all administrative bodies, viz:, that it act in good faith and not in abuse of its discretion.” (Emphasis added.)

It is obvious that the pronouncements of the Court in the Turnpike case can have no application to the entirely different facts and laws which apply to them here.

The Standard Fire Ins. Co. v. City of Fremont, 164 Oh St 344, 58 O. O. 130, cited by counsel for plaintiff is a case in point. In that case the Insurance Co. sought to recover by subrogation the money paid by it to its insured for damage to the insured’s house. The loss was caused by a tree which fell upon and damaged the insured home. The tree stood in front of the insured’s premises between the sidewalk and the street proper. Several months before it fell the roots were cut by an independent contractor who was widening the street for the City. In relieving the City from liability the Court held that the provisions of §723.01 R. C., are in derogation of the common law and are subject to strict construction; and the scope and application of such statutory provisions as to such streets are limited to conditions affecting the actual physical structure of the streets and to the physical obstructions or hindrances to travel thereon.

Under the law plaintiffs are required to pay the costs of construction and maintenance of the park-strip areas and such areas are intended only for egress and ingress to the plaintiffs properties and not for public street purposes; they are not a part of the actual physical structure of the streets and they do not constitute an obstruction or hindrance to travel on such streets. Furthermore the undisputed testimony was that all of the park-strips have been and are maintained in good and safe condition and that black-top is as durable and safe as concrete. Under the conditions and circumstances, the city lacked the power or authority under §723.01 R. C., to compel the plaintiffs to comply with council’s resolution No. 53-12; nor could the city justify its action to compel the substitution of concrete for black-top under its broad police powers when the city has and continues to construct many of its streets and highways with black-top materials.

Furthermore, I find no merit to defendants’ contention that because such driveway entrances were constructed many years ago without permits from the City and contrary to its rules and regulations governing construction of driveway entrances that they should be torn up and replaced with concrete.

In conclusion I find that the attempt by the City of Cincinnati, by Council Resolution No. 53-12 or otherwise, to force the plaintiffs to replace their present black-top park-strips areas with concrete constituted an unreasonable, arbitrary and imperious exercise of power: and the City of Cincinnati should, therefore, be enjoined from enforcing the provisions of Council Resolution No. 53-12 requiring such replacement, as long as such park-strip areas are kept in good and safe condition.

Please present a decree accordingly.


author: By WEICK, J.:

text:
    BURNS et, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.
    In The United States District Court For The Northern District of Ohio Eastern Division
    Civil Action No. 31570.
    Decided May 25, 1959.
   OPINION

By WEICK, J.:

This action is for the recovery of $1870.66 (plus interest at 6% from November 1, 1950) alleged as an overpayment of personal income tax for the year 1948. Plaintiffs claim they were entitled to a deduction, from their income, of $2,811.40, as a casualty loss under Section 23(e)(3) of the Internal Revenue Code of 1939, because an ornamental elm tree, located on their residence property, had become afflicted with the “Dutch Elm Disease,” and had to be destroyed in consequence thereof.

The deduction was claimed in plaintiffs’ income tax return for the year 1948, and when disallowed, they paid the deficiency of $1707.08 plus interest of $163.58 on November 1, 1950. A claim for refund was disallowed on January 2, 1953 and this suit was filed on January 15, 1955.

There is little, or no, controversy over the basic facts.

Plaintiffs’ residence property had a frontage of 195 feet on South Woodland Avenue in the City of Shaker Heights, Ohio and extended to a depth of about 344 feet to the golf course of the Shaker Heights Country Club.

During the 1920’s two elm trees were planted in front of the house, one near the east end and the other close to the west end thereof, the intention being for the trees to have somewhat of a framing effect on the house. The trees grew to be large and healthy.

In June of 1948, plaintiffs were advised by the Charles F. Irish Co., Inc., experienced arborists, that there were indications that one of the trees might be afflicted with the Dutch Elm Disease. Tests made at a government laboratory confirmed that fact and efforts were made to save the tree by cutting away the afflicted portion. This proved unsuccessful and it was then decided that the only remedy was to remove the tree entirely. This was done by the Irish firm in August of 1948.

The Dutch Elm Disease is a fungus symptomized by the wilting of the tree leaves. The fungus is spread by the scolytus beetle, by root grafting, or by pruning tools. In this case, it was spread by the beetle. The beetle itself, which travels from one elm tree to another, causes little or no damage. It is only when the beetle is infected with the fungus that any damage occurs.

If the beetle is infected when it bores into the tree, the fungus on its body is communicated to the food and water-conducting cells of the tree immediately beneath the bark, known as the merismatic tissue. These become afflicted with the disease and clog up and the tree becomes, in effect, starved for want of nourishment.

When it was discovered that plaintiffs’ tree was afflicted with the fungus they were advised that the only known way of preventing the spread of the disease was to have the tree removed in its entirety, including the roots, and have it burned. Today, methods of checking the disease have been developed which give a greater chance of saving a diseased tree, but they were not known in 1948.

Throughout the year 1948, §1132 GC (now §927.22 E. C.), and Ordinance No. 4732 of the City of Shaker Heights were both in force. By this legislation, the maintenance or continuance of trees, plants or shrubs infected or infested with injurious insects or plant disease was declared to be a public nuisance and the owner could be required by public authority to remove and destroy them if they could not be successfully treated. Otherwise, the owner was required to cause them to be treated or to adopt such preventive measures as may be ordered. If the owner failed to carry out the orders, the public authority could treat or remove them as was necessary and charge the expense thereof against the property upon which such expense was incurred.

The first matter for consideration is whether plaintiffs actually suffered any loss by the destruction of this tree. In my opinion, they did. The tree in question was one of two elms so situated in the front of the Burn’s residence as to “frame” the house. Following the removal of one of the trees the framing effect was lost. Plaintiffs, however, had additional elm trees in the rear of their residence, but because of their location were not as valuable as the front trees.

Edgar L. Ostendorf, a realtor and appraiser of great experience, stated that in his opinion the removal of the tree could have resulted in a $5,000 diminution in the price the property could bring. This, he testified, was due to the fact that in the social strata to which a prospective buyer of such a home would probably belong esthetic considerations were of importance in the purchase of a home.

Leslie Petrie, an experienced arborist, testified that in his opinion the plaintiffs’ loss was to be valued at $2,600. This figure represented the effect on the residential value of the loss of the tree. He adequately explained his basis for this conclusion, which was essentially the same as Mr. Ostendorf’s. Although Mr. Petrie was not experienced in real estate valuation he was experienced in evaluating plants and trees.

The Government presented Frank Bombay, an Internal Revenue real estate appraiser, to testify on this question. His testimony showed that over the course of years since 1948 the Burns’ residence gained substantially in value, and based on construction industry figures should have had a gain in value in 1948.

Assuming that this was true, other comparable real estate was similarly affected and increased in value due in no small measure to inflationary tendencies in our economy. In any event, the Burns’ property would have been worth more if the tree had not been removed.

I consider $2,600 for the loss of the tree and the $211.40 expenses incurred in its removal to be fair and reasonable under the circumstances.

The remaining question here is whether that loss qualifies as a “casualty” within the meaning of Section 23(e)(3) of the Internal Revenue Code of 1939. 26 U. S. C. (1952 ed.) §23. I am of the opinion that it does not.

The statute reads as follows:

Sec. 23 In computing net income there shall be allowed as deductions:

$ $ $ $ $

(e) Losses by Individuals — In the case of an individual, losses sustained during the taxable year and not compensated for by insurance or otherwise ....

* * * * *

(3) of property not connected with the trade or business, if the loss arises from fires, storms, shipwreck, or other casualty, or from theft.

The original income tax statute passed in 1913 allowed deduction only for losses arising from “fires, storms, or shipwreck.” 38 Stat 114. 167. In 1916, the statute was amended to add the words “or other casualty or from theft.” 39 Stat. 756, 759.

There appears to be no additional legislative history.

The words “or other casualty” were not defined so that the courts have been required to determine whether the facts in each case come within the scope of the statute. As will be pointed out, this has produced varying results.

Taxpayers rely upon decisions interpreting Workmen’s Compensation Acts and casualty and accident insurance policies. In two English cases, workmen employed in wool-combing factories had become infected with anthrax from the wool. In 'one of the cases the infection settled on the workman’s neck where his collar had rubbed a pimple and caused an abrasion. In the second case, the anthrax bacillus settled in the workman’s eye. In both Cases, the court held that they were entitled to compensation as they were injured by accident arising out of and in the course of employment. Higgins v. Campbell & Harrison, Limited; Turvey v. Brintons, Limited, 1 (1904) K. B. D. 328 App. Cas. (1905) 230.

The accident insurance case relied on in Rheinheimer v. Insurance Co.. 77 Oh St 360 (1907) where decedent accidentally scratched his finger and bloodpoisoning set in resulting in his death. The court held that death was the proximate result of the scratching of his finger and allowed recovery.

Cases of this type are in apposite because they involve a much different rule of construction.

It is well-settled that Workmen’s Compensation Acts are liberally construed in favor of injured workmen in order to effectuate the beneflcient purposes of the law. Bowling v. Industrial Commission, 145 Oh St 23 (1945); 99 C. J. S. Workmen’s Compensation §20 at p. 92.

The rule of construction with respect to insurance policies is stated as follows:

It is one of the best known principles of insurance law that a policy or contract of insurance is to be construed liberally in favor of the insured or his beneficiary, and strictly as against the insurer. 30 O. Jur. (2d), Insurance, §215.

Various reasons are given for liberality in construing policies of insurance. The insured has little or no voice in the preparation of the policy and pays a consideration for protection.

On the other hand, deductions from income are a matter of legislative grace. The burden is upon the taxpayer to show clear statutory authority therefor. Interstate Truck Lines v. Commissioner, 319 U. S. 590 (1943); Deputy, Admx. v. Dupont, 308 U. S. 488 (1940); New Colonial Ice Co. v. Helvering, 292 U. S. 435 (1934); Mills v. Commissioner, 206 F. 2d 244 (CA 2, 1953).

In determining what the taxpayer may deduct, ambiguities in the statute are not resolved in his favor, but are construed against him. Bagnall v. Commissioner, 96 F. 2d 956 (CA 9, 1938): Commissioner v. Shong, 177 F. 2d 131 (CA 9, 1949). The statute, however, must be construed fairly. Sykes v. United States, 343 U. S. 118 (1952).

Even with the liberal rule of construction, Ohio courts have refused to extend the Workmen’s Compensation Act to cases involving diseases (other than occupational) contracted by workmen in the course of their employment.

In Industrial Commission v. Cross, 104 Oh St 561 (1922), the court denied recovery for typhoid fever contracted by the workman from drinking spring water from a nearby well. The court said:

For it must be recognized that if the term “injury” is to be construed to include typhoid fever contracted in the course of employment, it may as well include influenza, pneumonia, tuberculosis, small-pox, ordinary colds, rheumatism, and practically every disease which may be contracted by workmen in the course of employment.....(p. 566).

The Cross case was approved and followed in Johnson v. Industrial Commission, 164 Oh St 297 (1955). The court said:

However, as pointed out in the syllabus and in the hereinbefore quoted portion of the opinion of Industrial Commission v. Cross, supra (104 Oh St 561), the words of our Constitution and of our workmen’s compensation statutes do require the conclusion, that the word “injury” as used in §§1465-68 and 1465-82 GC, can never include a disease.

If a disease can never be such an “injury,” it necessarily follows that it cannot be such an “injury” regardless of the fact that it may represent a physical or traumatic damage or harm and regardless of the further fact that it may be suddenly and unexpectedly or accidentally contracted, (p. 306.)

Cf. Renkel v. Industrial Commission, 109 Oh St 152 (1923) (tuberculosis); Industrial Commission v. Russell, 111 Oh St 692 (1934) (Loss of vision by motion picture operator incurred from powerful ultra violet ray lights).

Similarly in Burns v. Employers Liability Assurance Corp., 134 Oh St 222 (1938) the court denied recovery on an accident insurance policy for death due to amebic dysentery contracted from drinking water which had been infected by the accidental breaking of a sewer pipe in a hotel.

The court said:

Certainly, a disease such as pneumonia or typhoid fever is not thought of in everyday language as a bodily injury. As said by Judge Cardozo in Connelly v. Hunt Furniture Co., 240 N. Y., 83, 85, 147 N. E. 366, 39 A. L. R. 867.

“We attempt no scientifically exact discrimination between accident and disease or between disease and injury. None perhaps is possible, for the two concepts are not always exclusive, the one of the other, but often overlap. * * * Germs may indeed be inhaled, through the nose or mouth, or absorbed into the system through normal channels of entry. In such cases their inroads will seldom, if ever, be assignable to a determinate or single act, identified in space or time. (Matter of Jeffraves v. Sager Co., 198 App. Div., 446, 233 N. Y. 535). For this as well as for the reason that the absorption is incidental to a bodily process both natural and normal, their action presents itself to the mind as a disease and not an accident.”

Yet to uphold the contention of appellee would compel us to say that if the disease was due to any mishap recovery may he had, but not otherwise. Logically this would lead to the conclusion that all diseases are bodily injuries. There would be no difference between an accident policy and a health policy, except insofar as it would be necessary to trace the cause in the former to some mischance, (pp. 230-31.)

Cf. New Amsterdam Casualty Co. v. Johnson, 91 Oh St 155 (1914): Mitchell v. New York Life Insurance Co., 136 Oh St 551 (1940); Matczak v. Goodyear Tire & Rubber Co., 139 Oh St 181 (1942); Metropolitan Life Insurance Co. v. Hoch, 94 F. 2d 967 (CA 6, 1938); Nickman v. New York Life Ins. Co., 39 F. 2d 763 (CA 6, 1930).

In their brief, taxpayers state their belief that the Ohio authorities are controlling. (Brief, p. 25.) In my judgment, the Ohio authorities are persuasive, but they do not support the taxpayers’ contention that loss from disease should be treated as a casualty.

Nor do cases relied on by taxpayers giving a somewhat broader interpretation of the words “or theft” as used in the statute furnish a true guide. The reason is that the words “or other casualty” are tied in with the words “fires, storms, shipwreck” whereas the words “or theft” stand off by themselves and rélate to an entirely different category. The words “or theft” are, therefore, not limited by the rule of ejusdcm generis.

The definition of casualty given in Webster’s New International Dictionary (2d Ed.) is not particularly helpful. It offers such a wide variation of possible meanings that under it almost any loss could be claimed as a deduction. 1 cannot conceive of that having been the legislative intent in adding the phrase “other casualty” to the statute. Mere inadvertent losses have uniformly been rejected by the courts as claimed casualties. Keenan v. Bowers, 91 F. Supp. 771 (D. C. S. Car., 1950); 41 A. L. R. 2d 710.

The scope given to “other casualty,” as used in the statute, is stated to be:

Generally, “other casualty” has been confined by the courts to events having the characteristic of being sudden, unexpected and unusual. Were “other casualty” delimited in its application to include ordinary, commonplace forms of loss of personal property, the resulting and practical difficulties would not be difficult to imagine. The judicial tendency to limit “other casualty” to sudden, unexpected and unusual events similar to fires, storms and shipwreck has the practical advantage of confining personal losses to somewhat dramatic settings which are suceeptible to identification and verification by the administrative authorities. Whether or not a particular event constitutes a casualty within the purview of §23 (e)(3) is largely a matter of degree and judgment. Bercaw v. Commissioner, T. C. M. 1/21/47, aff’d 165 F. 2d 521 (CA 4, 1948).

This statement not only accurately sets forth the three elements looked for by the courts — sudden, unexpected, unusual — but is quite persuasive in the reason given therefor.

The developing case law on the interpretation of “other casualty” indicates an increasing emphasis on the suddenness of the occurrence.

This point has been considered on several occasions in the New York Universiay Annual Institute on Federal Taxation. In 1947 it was said:

The interpretations accorded to the word “casualty” as used in the Statute, involves the intervention of a sudden or destructive force .... Melvoin, Deductibility of: Taxes; Rents; Casualty Losses, 6th Annual Institute p. 578.

In the 1954 Annual the statement was made:

In fact, the court’s primary inquiry seems clearly to be on the first element, that is, suddenness; and, where this is absent, the deduction is usually denied. Coplin, Casualty Losses: Recent Developments, 13th Annual Institute, p. 525.

A review of some of the decisions under this provision indicates that this suddenness aspect has been considered crucial in many cases.

In Winters v. U. S., 58-1 U. S. T. C. 9205 (D. C. Okla., 1958) and Buttram v. Jones, 87 F. Supp. 322 (D. C. Okla., 1943) it was held that the death of plant life caused by a sudden and unusual drought was a casualty. However, in the recent case of Kemper v. Commissioner, 30 T. C.— (No. 51) (1959) it was held that the death of an elm tree which was attributed to a drought of long duration was not a casualty, as lacking in suddenness.

Similarly, while loss occasioned by an earthquake or flood, occurring suddenly and unexpectedly, is deductible as a casualty, Lyman v. Commissioner, 83 F. 2d 811 (CA 1, 1936), progressive deterioration occasioned by the continuing action of the elements is not, Matheson v. Commissioner, 54 F. 2d 537 (CA 2, 1931).

Losses from a sudden freeze [U. S. v. Barrett, 202 F. 2d 804 (CA 5, 1953)], a relatively rapid and severe sinking of land [Grant v. Commissioner, 30 B. T. A. 1028 (1934)], an auto accident occurring without negligence on the part of the taxpayer [Shearer v. Anderson, 16 F. 2d 995 (CA 2, 1927)] and blasting in a quarry near taxpayer’s residence [Durden v. Commissioner, 3 T. C. 1 (1944)] have all been held casualty losses within the statute. Each involved a sudden and forceful happening.

Conversely, losses caused by infestation of rats (Banigan v. Commissioner, 10 T. C. M. 561 (1951)], by erosion [Texas & Pacific Ry. Co. v. Commissioner, 1 T. C. M. 863 (1943)], by moth damage to a fur coat [Rev. Rul. 55-327, 1955-1 C. B. 25] and by losing personal property [Stevens v. Commissioner, 6 T. C. M. 805 (1947)] have been held nondeductible. In the first three instances suddenness was lacking, while in the fourth force was absent. See also: Mertens, Law of Federal Income Taxation (2d Ed.) §27.57; 41 A. L. R. 2d 691.

The “termite cases” are perhaps the best example of the importance placed on suddenness as an element of “other casualty.”

In U. S. v. Rogers, 120 F. 2d 244 (CA 9, 1941), it was held that damage inflicted on a residence of actor Will Rogers by termites and dry rot some time between 1921 and 1929, severe enough to require razing of the house, was not a casualty. The fact that both the termites and dry rot operated over a long period of time was the controlling factor.

The same year, the Court of Appeals for the Second Circuit held termite damage to be progressive deterioration, rather than a sudden invasion by a hostile force, and disallowed a similar claim. Fay v. Helvering, 120 F. 2d 253 (CA 2, 1941); but cf., Hale v. Welch, 38 F. Supp. 755 (D. C. Mass., 1941).

The decision in Rosenberg v. Commissioner, 198 F. 2d 47 (CA 8, 19521 was the first to allow a deduction for termite damage. The invasion of the termites, with the resultant damage, took place between September, 1946 and April, 1947. While ostensibly agreeing in principle with the Rogers and Fay holdings, the court considered this to be sudden damage and allowed the deduction. It should be noted that a well considered dissent was entered by Judge Johnsen, wherein he stated that the discovery, and not the damage, was sudden, and that the prior decisions should have been followed.

Subsequently, in Shopmaker v. U. S., 119 F. Supp. 705 (D. C. Mo., 1953) and Buist v. U. S., 164 F. Supp. 218 (D. C. S. Car., 1958) claims for termite damage losses were allowed. Both cases were decided with suddenness as the controlling element.

Fay and Rogers were followed in Dodge v. Commissioner, 25 T. C. 1022 (1957) and Feinstein v. U. S., 54-2 U. S. T. C. 9506 (D. C. Mo., 1954), on the ground of lack of suddenness.

The Internal Revenue Service has announced its acquiescence in the Buist decision (Technical Information Release No. 142, March 23, 1959), but stated that it will adhere to the Fay and Rogers decisions also, allowing deductions only upon proof of the fact of suddenness. Thus the suddenness test has gained recognition by the Service also.

The viewpoint has been expressed that the Rosenberg decision (and necessarily those cases following it) is of dubious validity. In my judgment, Fay and Rogers were correctly decided. While the discovery of the damage took place much sooner in Rosenberg, Shopmaker and Buist than in Fay, Rogers, Feinstein and Dodge, I cannot conceive of the termites having such voracious appetities in the former and not in the latter cases as to render the damage itself sudden rather than progressive. The only real point of difference between the cases is how soon the presence of the termites was discovered. This does not, in my judgment, furnish the right criterion for determining whether the loss constituted a casualty.

Taxpayers have cited no case where a deduction as a casualty loss has ever been allowed for plant life afflicted with disease. The nearest approach is the Rohenberg, Shopmaker and Buist cases.

In those cases, the damage was inflicted by the termites themselves. In the case at bar, the beetles inflicted little or no damage, but acted merely as a carrier of a disease with which the tree became infected. The carrying of disease germs is not peculiar to insects. Disease germs are carried in a variety of ways, even by human beings and by the air which we breathe.

There is nothing sudden, unusual or unexpected for a beetle (or any other insect) to feed on a tree, or to deposit its eggs underneath the bark in the tree lining or to act as a carrier of disease or for the tree to become infected with disease and die in consequence thereof. These are everyday occurrences of nature.

While it is true that the tree was removed within a relatively short period of time, the reason for its removal was the disease which would have ultimately caused its death. The action of the disease is a progressive one. The reason for removing the tree before this progressive force ran its natural course was to prevent the spread of the disease to other trees in the area.

To allow recovery here would necessitate an extension of the doctrine of Rosenberg, Shopmaker and Buist. The result would be to open wide the door to all sorts of claims for casualty deduction on account of loss or damage to plant life or animals caused by any kind of disease. Rosenberg, Shopmaker and Buist do not have a sufficiently firm foundation to warrant their extension.

In common parlance, death resulting from disease is not regarded as an accident. The onset of the disease, whether the illness was of short duration or lingering, and the time of discovery might all have importance in determining whether it was a casualty.

In. my judgment, loss occasioned by disease, however contracted, is not a casualty within the meaning of the statute.

It follows that the loss of plaintiffs’ elm tree in consequence of the Dutch Elm Disease was not a casualty within the meaning of Section 23(e)(3) of the Internal Revenue Code of 1939 and the Commissioner of Internal Revenue was right in denying the deduction.

This memorandum is adopted as findings of fact and conclusions of law. Judgment will be entered in favor of defendant dismissing the complaint.

      . These cases involved an occupational disease and usually specific statutory authority exists for the allowance of compensation therefor. Cf. Sec. 4123,68 R. C.

      . Burke Grain Company v. Commissioner, 39 B. T. A. 334 (1939); Miller v. Commissioner, 19 T. C. 1046 (1953); Morris Plan Company v. Commissioner, 42 B. T. A. 1190, 1195 (1940); Muncie v. Commissioner, 18 T. C. 849, 851 (1952).

      . (1) Chance: accident; contingency; also, that which comes without design or without being foreseen; an accident
      (2) An unfortunate occurrence; a mischance; a mishap; a serious or fatal accident; a disaster
      * * # * *
      (7) Injury or death from accident; a person injured or killed by an accident.

      . The same court rendered the decisions in Shopmaker and Feinstein, allowing the deduction in one case and not in the other, considering one to be an instance of a sudden invasion and the second not.

      . Coplin, Casualty Losses: Recent Developments, 1954 N. Y. U. Institute on Federal Taxation, p. 525. See also: Mertens, Law of Federal Taxation (2d Ed., 1958 Supp.) §28.57.