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tenant does not deprive her of the vested re- ! Error to Court of Appeals, Cuyahoga.
mainder. “There is nothing inconsistent or County.
repugnant in the gift of a life estate with a
remainder to a life tenant, even though such

Suit by the University Club against Ralph remainder can never come into the posses

C. McBride, County Treasurer. Judgment sion of the remainderman.” Cushman v. Ar- for plaintiff. The Court of Appeals dismissed nold, 185 Mass. 165, 169, 70 N. E. 43; Jew-defendant's appeal on motion of plaintiff, and ett v. Jewett, 200 Mass. 310, 317, 86 N. E. defendant brings error. Affirmed.—[By Edi308. In our opinion, Bragg v. Litchfield, 212 torial Staff.] Mass. 148, 98 N. E. 673, Jones v. Gane, 205

In the court of common pleas of Cuyaboga Mass. 37, 91 N. E. 129, and similar cases, are county the University Club filed its petition not authorities supporting a different conclu. against the county treasurer, styled “petision. The testatrix in the case at bar did tion for money only.” Pursuant to the precnot make a gift to a surviving spouse with a ipe the summons was likewise indorsed, to specific provision made to the donee; she gether with the amount claimed. was disposing of her entire estate, and gave

The University Club under the terms of a to each of her three children, by name, an certain leage, with an option for purchase, bad equal share in the remainder. She wanted exercised the latter and obtained a deed in fee her property to go to her own children. She to the premises. This deed contained certain did not mean to discriminate against Eadith. restrictions, among others one requiring the She intended that she should have a life es premises to be used for club or residence purtate in the Cohasset property and participate in the remainder. Her interest was vested, the county auditor assessed the premises for

poses until 1936. The petition alleged that and whenever the estate was disposed of, valuation as if the same were unrestricted whether during her life or after her death, and available for business or commercial. purshe was entitled, if living, or her estate after her death, to share in the remainder. The poses, at $2,000 per foot, whereas their true testatrix created by her will a vested re

value in money under the restrictions was mainder in each of her three children. It

only $600 per foot. The county auditor cerfollows that the proceeds of the property tified his valuation to the county treasurer should be divided among them.

for collection. The club tendered to the [4] The decree of the probate court is re- county treasurer a certain amount which it versed. A decree is to be entered, distribut- claimed to be due legally for one-half the ing the proceeds of the property, one-third to taxes, protesting against the payment of the Charles Heath, one-third to the estate of balance upon the claim that the assessment Eadith Heath, and one-third to Eadith H. was illegal. Later a complaint was filed with Hedge and Maragaret E. Robinson. Costs,

the county auditor against the valuation as between solicitor and client, and the fees made under the auspices of the county audiof the commissioner as stated in the decree tor, asking for its reduction. Hearing was of the probate court, are to be allowed. The had before the county board of revision, and, disbursements of counsel are also to be al

later, before the tax commission of the state, lowed in the discretion of the probate court. wherein the club obtained no relief. Soon Ordered accordingly.

thereafter plaintiff paid, under protest, the
balance of the tax levied against the premises
upon the valuation made by the county au-

ditor, together with interest and penalty. The McBRIDE, County Treasurer, v. UNIVERSI. petition alleges further that in arriving at its TY CLUB. (No. 18826.)

true value in money the auditor failed to take (Supreme Court of Ohio. March 3, 1925.)

into consideration all matters affecting the

value of the premises. The prayer asks that (Syllabus by the Court.)

the court find the true value of the premises Courts Cow 240 - Suit, under statute, to re- and that the plaintiff have judgment against

cover back taxes illegally collected, is “ac- the treasurer in the sum of $7.179.37, with tion at law” within Constitution, and is not interest, this being the amount of excess taxappealable to Court of Appeals; "chancery es and penalty paid by the club under its case."

protest, and claimed to be illegal. A suit brought under the provisions of In the trial court a demurrer to the petisection 12075, General Code, to recover back tion was overruled. An answer having been taxes illegally collected, is an action at law filed the case was submitted on the pleadings and not a chancery case, within the purview of section 6, art. 4, of the state Constitution and evidence, and judgment was rendered in as amended in 1912. Nor is such an action ap- favor of the plaintiff for the amount claimed pealable to the Court of Appeals under that in the petition, with interest. The county section of the Constitution.

treasurer thereupon appealed the cause to [ Ed. Note.--For other definitions, see Words the Court of Appeals. That court dismissed and Phrases, First and Second Series, Action, the appeal on motion of the University Club, Action at Law.]

whereupon error was prosecuted to this court. For other cases see same topic aud KEY-NUMBER in all Key-Numbered Digests and Indexes

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(146 N.E.) Edward C. Stanton, pros. atty., and Geo. ( imposing the tax is valid or otherwise. In C. Hansen, asst. pros. atty., both of Cleveland, such an action a full and adequate remedy for plaintiff in error.

is conferred upon the taxpayer; resort to Simmons, De Witt & Vilas, of Cleveland, for the chancery powers of a court is not necesdefendant in error.

sary to enforce recovery. The action insti.

tuted was therefore not a chancery case, and JONES, J. We are not concerned with the the court of appeals did not err in dismissmerits of the controversy. This record pre- ing the appeal. Its judgment is affirmed. sents a single question for our review: Was

Judgment affirmed,
the case instituted in the court of common
pleas a chancery case, and therefore appeal-

MARSHALL, C. J., and MATTHIAS, DAY,
able to the Court of Appeals? Under Section ALLEN, and KINKADE, JJ., concur.
6, art. 4, of our Constitution, as amended in
1912, chancery cases only are appealable to
the appellate court.

In the early jurisprudence of this country, BRADLEY v. CLEVELAND RY. CO. as stated in the text, 26 Ruling Case Law, p.

(No. 18511.) 460:

(Supreme Court of Ohio. March 3, 1925.) "It was originally the law in most if not all of the states of the union that under no cir

(Syllabus by the Court.) cumstances would the collection of a tax bel 1. Negligence Emas 141(2)-Charge on contribu. restrained by an injunction.”

tory negligence required.

In actions for negligence, where the answer While later decisions have potentially modi- pleads the general issue, or that the injury fied that doctrine, it seems that Ohio adhered resulted from plaintiff's fault, either or both, to it until the passage of the remedial act of and the evidence offered at the trial reasonably 1856, which is now section 12075, General tends to develop the issue of contributory negliCode. That section now reads: *

gence, it is the duty of the court to charge

upon that issue. "Common pleas and superior courts may enjoin the illegal levy or collection of taxes and 2. Negligence On 134(11)-Proximate cause of assessments, and entertain actions to recover injury must be shown by preponderance, them back when collected, without regard to If from the whole evidence offered at the the amount thereof, but no recovery shall be trial concerning defendant's negligence and had unless the action be brought within one plaintiff's negligence the jury are unable to deyear after the taxes or assessments are col- termine by a preponderance of the evidence lected."

whose negligence proximately caused the in

jury, the case remains in equipoise, and there Until the enactment of that section, the can be no recovery. prior decisions of this court denying the in- 3. Appeal and error Om 274(5)-General ex. junctive remedy are fully discussed in the

ception to charge, part of which is correct, opinion in Stephan, Treas., v. Daniels, 27 does not bring up for review failure to Ohio St. 532 et seq. The taxpayer might have charge on burden of proof. his legal remedy only if there was a want If, in such action, the issue of contributory of power under a valid law to levy it. negligence is developed by the evidence, and

By the adoption of the quoted act, two the court fails to charge upon the burden of remedies are given, (a) an equitable remedy proof as to that issue, a general exception to a by injunction, where it is only necessary to charge otherwise correct does not bring in reprove that the tax is illegal, and (b) a legal view such failure to charge. Columbus Ry. Co.

v. Ritter, 67 Ohio St. 53, 65 N. E. 613, approvaction to recover if the tax is void for any led and followed.

Since the act of 1856, this court has decided 4. Appeal and error Ow701 (1)-In absence of that the jurisdiction conferred by the act to

evidence, charge that, if plaintiff's failure to restrain the collection of illegal taxes is an

use ordinary care contributed to injury, she

could not recover, held not prejudicial esequitable one “to be exercised upon equitable

ror. principals." Steese v. Oviatt, Treas., 24 Ohio

In the absence of a bill disclosing the eviSt. 248.

dence offered at such trial, a charge, that, if An action by way of injunction seeking to the jury found that plaintiff failed to use orrestrain the collection is an equitable case, dinary care and, if that failure to use that cognizable in chancery and subject to appeal ordinary care contributed to the injury or inunder the provisions of section 6, art. 4, of juries sustained by her, she could not recover, our Constitution.

Manning v. Village of is not prejudicial error.
Lakewood, 94 Ohio St. 85, 113 N. E. 661.
However, an action to recover back taxes

Error to Court of Appeals of Cuyaboga illegally levied and paid is purely a legal

County. action, created by statute, in which a com- Action by Catherine Bradley against the plete remedy is available whether the law | Cleveland Railway Company. Judgment for

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes

6

cause.

defendant was affirmed by the Court of Ap-1 Squire, Sanders & Dempsey, of Cleveland, peals, and plaintiff brings error. Affirmed. for defendant in error. - [By Editorial Staff.]

This was an action for personal injuries. JONES, J. The printed record contains The answer was a general denial. In the none of the evidence offered at the trial but common pleas court verdict and judgment does contain the complete charge of the were given in favor of the defendant. The court. In that aspect, while the issue of conjudgment was affirmed by the Court of Ap- tributory negligence was not made in the anpeals, whereupon error was prosecuted to swer, it may have been presented in the evi. this court.

dence offered in the trial. Counsel for plainThe printed record, other than the journal titf in error insists that the trial court erred entries and pleadings in the cause, consists in charging upon that issue, by instructing only of the general charge of the court, and the jury that if they found that plaintiff's the only error relied upon is that since failure to use ordinary care contributed to the answer contained merely a general de- her injury she could not recover. In support nial the court in its general charge inject of this insistence he cites Cincinnati Traced the issue of contributory negligence when tion Co. v. Forrest, 73 Ohio St. 1, 75 N. E. such an issue had not been presented in the 818, and Cincinnati Traction Co. v. Stephens, answer.

Adm'r, 75 Ohio St. 171, 79 N. E. 235. Plaintiff alleged in her petition that she [1] From a number of cases recently apwas a passenger upon the car of the defend- pearing in this court it is very evident that ant; that she signaled the operator of the there is confusion in the application of princar of her desire to alight therefrom; and ciples heretofore announced in that class of that in attempting to do so, and while in the cases where the answer consists either of a act of stepping from the lower step, she was general denial or both the general issue and thrown to the pavement and sustained se- an allegation that the negligence of the plainrious injury. The acts of negligence relied tiff was the sole cause of the injury. Where upon were that the defendant caused the contributorý negligence is pleaded as an afcar to start suddenly before she had alighted, firmative defense, and evidence is adduced in and did not allow her a reasonably safe time its support, no such confusion can arise. to alight therefrom. The court correctly This court is committed to the rule that charged upon the issue of defendant's negli- where contributory negligence is made a degence. It charged that the defendant com- fense, either by the pleadings or by evidence, pany was compelled to use the highest degree the burden of proving that issue is cast upon of care for the safety of the plaintiff, con- the defendant. Contributory negligence is a sistent with the operation of its line; that defense in the nature of a confession and this degree of care continued until plaintir avoidance. If there be no express admission, had safely alighted from the street car; and there is an admission by implication that that if a preponderance of the evidence dis- some negligence exists on the part of the declosed that the acts of the defendant negli- fendant. Ordinarily in personal injury cases gently and proximately caused the accident the defendant does not desire to confess the jury should find for the plaintiff.

its own negligence, and in practice usually Since the answer contained a general de pleads a general denial with an alternative nial, plaintiff in error contends that in the allegation that if the defendant was negligeneral charge the trial court charged the gent the plaintiff's negligence, either wholly issue of contributory negligence and that the or in combination with the defendant's neg. effect of such charge was to cast the burden ligence, directly contributed to the injury. of proof on that issue upon the plaintiff.

This court has held that, where the anThe part of the general charge complained swer pleads the general issue only, the deof is as follows:

fense of contributory negligence is not there

by presented. Traction Co. v. Forrest, su“To entitle the plaintiff to recover, the neg- pra. Nor is that issue presented by the ligence of the defendant must have been the pleadings where the defendant, in addition to proximate cause of the injury or injuries sus. its general denial, pleads that plaintiff's own tained by her. Again, to entitle the plaintiff to recover she must have been without fault. negligence was the cause of the injury. She owed a duty to the defendant company to

Glass v. William Heffron Co., 86 Ohio St. exercise ordinary care in alighting from the 70, 98 N. E. 923; Rayland Coal Co. v. McFadstreet car. If you find that she was a pas- den, Adm'r, 90 Ohio St. 183, 107 N. E. 330. senger, but you further find that she failed to Whatever confusion may exist at the trial use ordinary care in alighting from the street table as to the scope of the Forrest and car, and that failure to use that ordinary care Stephens Cases, supra, this court in more recontributed to the injury or injuries sustained cent cases has announced the principle that by her, then, of course, she could not recover, if contributory negligence is not made an isand your verdict in that event would be for the defendant."

sue by the pleadings, but is developed by the

evidence, it becomes the duty of the court to Tim Long, of Cleveland, for plaintiff in charge the jury in respect to that issue.

Glass v. Heffron Co., supra; Behm v. C. D.

error.

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(146 N.E.) & T. Traction Co., 86 Ohio St. 209, 99 N. E. “The rule is that he who affirms must prove, 383; Coal Co. v. McFadden, supra; Gibbs v. and when the whole of the evidence upon the Scioto Valley Ry. & P. Co., 111 Ohio St.

issue involved leaves the case in equipoise, the 145 N. E. 854. These later cases do not con- party affirming must fail." flict with the Forrest and Stephens Cases,

[3] Applying the principle in the cases citsupra. In the Forrest Case it is clear from ed, we fail to see any prejudicial error upon the syllabus and opinion that there was no the part of the trial court. The evidence is evidence offered tending to show contributory not before us; we therefore cannot deternegligence. The syllabus in the Stevens Case mine whether contributory negligence was discloses that at the trial the defense was attempted to be proven on the trial.

We wholly that the defendant was not guilty of cannot presume that there was

no such negligence. That the defense of contributory evidence offered. Should we have recourse negligence was not developed by the evidence to the brief of counsel for defendant in is clearly emphasized by the opinion of Da

error we find the contention that plaintiff vis, J., who said, at page 178 (79 N. E. 236): received her injury solely by reason of her

"In a careful reading of the evidence in the own negligence. In its general charge the bill of exceptions we have not been able to court imposed upon plaintiff the burden of discover any attempt on the part of the de- showing negligence upon the part of the defendant to prove contributory negligence.”

fendant. No other burden was imposed upon her. In respect to the burden of proof, tbere

fore, the trial court correctly charged the [2] So that the the purport of the previous law. The plaintiff had alleged in her petidecisions of this court is that the trial court tion that she was guilty of no negligence on is required to charge upon the subject of con- her part contributing to her injury. The • tributory negligence where the evidence rea- court charged the jury that if they found sonably tends to develop that issue, and this that her failure to use ordinary care contribrule applies whether the defendant's answer

uted to her injury she could not recover, but pleads the general issue, or further alleges

no burden was placed upon her on that phase that the accident resulted from the plaintiff's of the case. If the issue of contributory neg. own fault. The reason for the application of ligence was developed by the evidence, counthe announced rule is obvious. In order to sel for plaintiff in error could have asked recover the plaintiff is required to sustain the court to instruct the jury as to the burthe material allegations of his petition by a

den of proof upon that issue, but no such inpreponderance of the evidence. Any counter-struction was asked. vailing proof tending to break down that pre

[4] There being no bill disclosing the tes. ponderance is relevant upon the question timony, we find no prejudicial error upon whether the defendant was negligent and the part of the trial court in respect to its whether the negligence proximately caused charge. If the issue of contributory neglithe injury. Should the entire evidence of

gence was in fact developed by the evidence, fered at the trial convince the jury that some

that issue should be “determined by the intervening, etficient cause, other than the

same rules as to burden of proof" as if made negligence of the defendant, occasioned the by the pleadings. Coal Co. v. McFadden, suinjury, or that the negligence of the plaintiff pra. If the plaintiff in error desired an inproximately caused the injury, or that the struction upon the burden of proof on the negligence of both combined was of such char- issue of contributory negligence, it was inacter that the jury would be unable to deter-cumbent upon her to ask the court to instruct mine by a preponderance of the evidence the jury upon that feature. Under section whose negligence proximately caused the in- | 11561, General Code, a general exception to jury, manifestly it would be the duty of the the charge of the court only reviews errors jury to return a verdict for the defendant. of law existing in the rge as given, and This for the reason that the burden of proof does not bring in review an omission or failrests upon the plaintiff; and if upon the en

ure to give further proper instructions. Coltire case the plaintiff's proof upon the issue umbus Ry. Co. v. Ritter, 67 Ohio St. 53, 65 of deferdant's negligence is fully balanced or N. E. 613, left in equipoise obviously a preponderance

The judgment of the court of appeals is cannot exist. In such situation we think

affirmed.
that the principle announced in Klunk v.

Judgment affirmed.
Hocking Valley Ry. Co., 74 Ohio St. 125, 77
N. E. 752, is applicable here, where the rule MATTHIAS, DAY, ALLEN, KINKADE,
is stated in the syllabus as follows:

and ROBINSON, JJ., concur.

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at the suit of Hissem, operating a motor HISSEM v. GURAN et al. (No. 18771.) transportation company under a certificate of (Supreme Court of Ohio. March 3, 1925.) ities Commission, granting him the exclusive

public convenience issued by the Public Util(Syllabus by the Court.)

right to conduct and operate his business as 1. Carriers m4–Motor vehicle owner trans- a motor transportation company over a reg. porting property for hire under contract only ular route between fixed termini in Sumheld not common carrier nor motor trans- mit county, Ohio, seeking to enjoin Guran portation company.

and Myers from operating a motor truck The owner of a motor-propelled vehicle over the same route, without first obtaining engaged in the business of carrying and trans a certificate of authority from the Public porting property in such vehicle for hire over | Utilities Commission. the highways of this state pursuant to a defi [1] The record discloses that Hissem was nite contract describing the property to be engaged in hauling milk to the city of Akron, carried and the points to and from which the for certain producers, and that Guran and bame shall be carried and the compensation to be paid, such owner not holding himself out Myers were also engaged in hauling milk to the public as willing to carry property for from certain other producers located in the other persons, and not in fact carrying property same community to the same market in the for any other persons than those with whom city of Akron. The trucks of both parties he has thus contracted, and not operating un cover practically the same route; each render any public franchise, is not a common car- dering the same service, though for different rier, and is not a motor transportation company employers. Guran and Myers were operat. as that term is defined in sections 614-2 and ing under a contract of employment with a 614–84, General Code (110 0. L. 212, 213).

branch of the Summit County Milk Produc2. Carriers Cw5—Private carriers held not sub- ers Association, whereby they were employ-'

ject to law regulating operation of motor ve- ed for hire to collect and transport milk hicles.

and cream of the members of the said asPersons, corporations, and firms who oper- sociation, and no one else, to the White Rock ate as such private carriers in carrying and Dairy Company of Akron, and no other per. transporting property over the highways of this son, upon a regular schedule of prices, destate for hire are not subject to the provi: pending upon the distance and the character sions of the law regulating the operation of of the highways covered. The Summit Counmotor-propelled vehicles, as enacted in 110 Ohio Laws, 212 to 223, inclusive, General Code. ty Milk Producers Association, the employer

of Guran and Myers, is a co-operative mar3. Carriers Om 8—Motor transportation compa. keting association organized in accordance

ny holding certificate not entitled to protec- with Ohio laws (109 0. L. 50). Guran and tion from competition of private carriers Myers do not serve the public generally, or over same routes. A motor transportation company holding a the association, in accordance with the con

any person or firm other than members of certificate of convenience and necessity under tract. They do not hold themselves ready the provisions of the act regulating motor transportation is not entitled to protection to carry for all persons, indifferently, who from competition as against owners of such may choose to employ them, neither bare privately operated motor vehicles over the they ever accepted any public franchise or same routes covered by such certificate,

called the police powers of the state to their

aid. Error to Court of Appeals, Summit County. Upon these facts the Court of Common

Action by Melvin H. Hissem against Mat- Pleas refused to enjoin, and upon error bethew B. Guran and another. Judgment for ing prosecuted to the Court of Appeals that defendants was affirmed by the Court of court affirmed the judgment. Upon error Appeals, and plaintiff brings error. Atlirmed. prosecuted to this court we are asked to -[By Editorial Staff.]

construe and apply the provisions of the

Freeman-Collister Act (110 Ohio Laws, 211Musser, Kimber & Huffman, of Akron, for

223). plaintiff in error.

Section 614—2, General Code (110 0. L. Whittemore & Motż, of Akron, for defend

212) provides : ants in error. Henry S. Ballard and William J. Ford,

"Any person, or persons, firm or firms, coboth of Columbus, amici curiæ, for Ohio | stock association, company

partnership voluntary association, joint

or

or corporation, Farm Bureau Federation.

wherever organized or incorporated:

When engaged in the business of carrying and MARSHALL, C. J. This cause involves transporting persons or property or both, in the interpretation of the Freeman-Collister motor propelled vehicles of any kind whatsoMotor Transportation Act, but is not a re-highway in this state except as hereinafter

ever, for hire, over any public street, road or view of any order of the Public Utilities Com- provided in section 614–84, is a motor trans mission. The cause originated in the court portation company and as such is declared to be of common pleas of Summit county, Ohio, a common carrier."

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