author: Wiseman, J.

text:
    Smith, Appellant, v. Smith, Appellee.

      (No. 2061
    — Decided November 16, 1949.)

      Mr. Gus W. Byttner, for appellant.

      Messrs. Jacobson & Burst, for appellee.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery County, dismissing the plaintiff’s petition for alimony.

There is no hill of exceptions presented to this court. The matter is presented on separate findings of fact and conclusions of law. In brief, the trial court found that the plaintiff and the defendant were living together in the same home at the time the petition for alimony was filed and continued to live in the same home for a period of six months to a date ten days prior to the hearing. The court concluded as a matter of law that permanent alimony may not be decreed where the evidence shows that the husband and the wife are not living separate and apart.

The errors assigned are directed to the action of the court in dismissing the plaintiff’s petition for alimony on the facts stated. The sole question presented for determination is whether the court may decree permanent alimony to the wife under the provisions of Section 11997, General Code, when the facts show that the husband and wife “continued to live together in the same home.” No reported case is found in Ohio deciding this precise question.

Alimony is an allowance for -nourishment or sustenance of the wife which a husband may be compelled to pay when she is living apart from him, or has been divorced. Fickel v. Granger, 83 Ohio St., 101, 106, 93 N. E., 527, 32 L. R. A. (N. S.), 270; Lape v. Lape, 99 Ohio St., 143, 145, 124 N. E., 51, 6 A. L. R., 187; Durham v. Durham, 104 Ohio St., 7, 10, 135 N. E., 280; Fisher v. Fisher, 78 Ohio App., 125, 128, 64 N. E. (2d), 328.

In 3 Nelson on Divorce and Annulment (2 Ed.), 374, Section 32.08, the author states the rule to be as follows :

“In the absence of a statute to the contrary, the spouses must separate both from bed and board, or must be living separate and apart, in order that the right of separate maintenance may arise and that a proceeding therefor may be maintainable. Such separation, it has been said, must exist in fact before the wife may have the aid of a court, for it is the constant purpose of the courts to compose differences and smooth out rough places in marital paths.”

In Keezer on Marriage and Divorce (3 Ed.), 609, Section 565, the rule is stated as follows:

“Alimony cannot be decreed unless the parties are actually separated. If they are living together, there is no need of alimony. The reason is that if the wife is living with her husband she can if necessary pledge his credit for her support. Furthermore the continuing to live under the same roof raises a presumption that the offense complained of has been condoned. ’ ’

See 17 American Jurisprudence, 405, 461, Sections 496, 586, and 14 Ohio Jurisprudence, 459, Section 69.

Thus it has been held that alimony may not be decreed unless the court finds that the wife is living separate and apart from the husband. The difficulty arises in determining in a given case whether under all the facts there is a living separate and apart. The precise question for this court to determine in the instant case is whether the fact that the husband and wife “continued to live together in the same home” constituted cohabitation. It must be observed that the trial court did not specifically find that the husband and wife lived “separate and apart”; neither did it specifically find that they lived in a state of marital cohabitation. It has been held that ‘ ‘ cohabitation will be inferred from the living together of husband and wife; and condonation will be inferred from cohabitation, where the contrary does not appear. ’ ’ Burns v. Burns, 60 Ind., 259. In the instant case we need not indulge the presumption for we find from the record that several months after the plaintiff instituted her action for alimony she filed a motion to dismiss the defendant’s cross-petition on the ground “that plaintiff and defendant have cohabited together in the. same home and in the same bed, during all of the time that said cross-petition has been pending in this court.” In view of this admission on plaintiff’s part we conclude that the finding of the trial court that the parties “continued to live together in the same home” was tantamount to a finding that they continued to cohabit. Consequently, the record in this case shows that the wife was not living “separate and apart” from the husband at the time the action was instituted and for a number of months thereafter. Under these circumstances the wife was not entitled to maintain an action for alimony.

The judgment is affirmed.

Judgment affirmed.

Miller, P. J., and Hornbeck, J., concur.


source: Caselaw Access Project

author: Fess, J.

license: Public Domain

text:
    Croke, Appellee, v. The Chesapeake & Ohio Ry. Co. et al., Appellants.

      (No. 4386
    — Decided December 5, 1949.)

      Mr. George R. Effler, for appellee.

      Messrs. Shumaker, Loop, Kendrick & Winn and Mr. Uenry A. Middleton, for appellants.
   Fess, J.

This ease is here on appeal on questions of law from a judgment rendered on a verdict in favor of plaintiff in the sum of $25,000, for injuries sustained as a result of a collision between the automobile in which plaintiff was riding as a guest and the left side of the front part of a locomotive operated by The Chesapeake & Ohio Railway Company over the tracks of the Toledo Terminal Railroad Company at 10:30 p. m. on May 29, 1947.

Assigned as error is the failure of the trial court to render judgment for the defendants as a matter of law, and ten additional assignments of error occurring at the trial in support of a motion for new trial, which was overruled.

The point of the collision is the intersection of Manhattan boulevard with the crossing of the defendant. Although the crossing is within the Toledo city limits, the surrounding terrain is open country. Manhattan boulevard has a 24-foot pavement and the approach to the crossing is level. Three tracks of the Terminal cross the pavement. Two main tracks run parallel to and approximately 200 feet south of the street for a considerable distance east of the crossing and then, by a wide curve, angle at about 50° over the crossing. The third track is a spur crossover further angling to the east to another railroad. One hundred and thirty-two feet west of the Terminal crossing is a single track of the Shore Line Railroad crossing the highway at right angles. A quarter mile further to the west is the Arm Arbor Railway crossing utilized for passenger as well as freight trains, having several tracks. Another track of the Terminal also crosses the highway west of the Ann Arbor crossing. These crossings to the west are guarded by automatic alternating red flasher signals. Only freight trains occupy the Terminal tracks incident to connections with other railroads in the Toledo area.

At the crossing of the Terminal where the accident occurred, no flasher signs are installed but regulation cross-arm signs are erected, equipped with reflector buttons on the lettering of the signs. These signs also have a round metal disc sign with “3 Tracks” painted thereon. Thirty-five feet west of the crossing, overhanging the center of the street, is a street lamp which lights the crossing. For a considerable distance, a driver approaching the crossing from the west has a clear and unobstructed view of the crossing and of the railway tracks to the south and east.

The automobile in which plaintiff was riding was proceeding east at a speed of from 25 to 30 miles per hour. The train hauling 54 cars was proceeding around the curve in a northwesterly direction at not more than 20 miles per hour. There were four persons in the automobile — the driver and his wife in the front seat, the plaintiff and a Mr. Michaelis, who died as a result of injuries, in the rear seat. When the driver of the car turned onto Manhattan boulevard some distance from the crossing, the plaintiff told him he would have to go slow and watch, because there were a lot of crossings there.

Plaintiff also testified that as they drove along she was listening and looking straight ahead, glancing in both directions; that she heard no engine bell or whistle and saw no engine headlight. In answer to what she first observed as unusual, she said:

“Well, the hit — this object was right in front and we hit it. G-reat big dark object on the right side. ’ ’

She also said she did not see the engine “till we hit it.”

The driver likewise testified he was looking and listening and heard no engine bell or whistle and saw no headlight. The first thing he saw was a big black object in front of him. The driver’s wife, who was present in the courthouse during a portion of the trial, did not testify.

Another driver and his boy, in a second car, arriving at the scene a moment after the accident, heard no engine bell or whistle and saw no headlight. The wife of the driver of this second car heard no bell or whistle but when they were two blocks from the crossing saw what appeared to be a headlight of an engine moving westward toward her. None of the occupants of the second car heard the crash of the collision.

The engineer, fireman and brakeman, who were on the engine, testified that the crossing whistle was blown, that the engine bell was rung continuously and that the headlight was bright. The fireman and brakeman were seated on the left side of the locomotive and saw the approaching automobile. They saw the car slow down as if it were going to stop, but then it proceeded ahead at increased speed. When it became apparent the car was not going to stop, each of the men shouted to the engineer, who applied the emergency brakes, but too late, and the car ran into the side of the engine. The locomotive was a mallet type, approximately 100 feet long. The train was stopped with the first box car on the crossing.

A switch tender, who was in his shanty next to and north of the crossing, said he saw the headlight of the engine, heard the bell ringing before and after the collision, and also saw the light of the automobile pass his shanty. He observed the automobile as it traveled for the last 25 feet or so without change of speed, before it struck the engine and rebounded, so it was not dragged along by the moving engine. On cross-examination, he stated he did not hear the engine bell or whistle before the accident. He was not permitted to testify that after the collision he heard one of the members of the crew tell another to turn off the bell on the engine.

In addition to the conflict of the testimony regarding the bell, whistle and locomotive headlight, there is a dispute as to whether after the collision the headlights of the automobile were burning, the automobile radio playing and also whether the left front window of the car was open. These latter disputed items are only material as affecting the credibility of the witnesses.

There is no evidence that the driver of the automobile exercised any care at all for his own safety or that of his passengers. Plaintiff had warned him of the danger; he had been over the crossing before and knew of its location; he did not even have the ojDportunity of applying his brakes before he struck the locomotive. He simply ‘ ‘ saw it and bang, ” or as plaintiff related, there was a “flash and crash.”

Five specifications of negligence were submitted to the jury:

1. Failure to ring the engine bell.

2. Train crew failed to keep a proper lookout for approaching traffic.

3. Headlight either extinguished or so dim as to render it invisible.

4. That defendants, by watchman or other persons, failed to give any warning of the approach of the train.

5. At the close of the evidence, plaintiff was permitted to amend her petition over objection, by alleging that the defendants failed to give any warning by any means or in any manner of the approach of the train to Manhattan boulevard.

Allegations that a crossing watchman had guarded the crossing and that the watchman failed to warn the plaintiff’s driver, were withdrawn and the general allegation referred to as No. 5 was inserted by amendment. Allegations regarding obstructions to the view and failure to sound a whistle were also withdrawn.

In answer to interrogatories submitted by the defendants, the jury stated that the defendants were negligent in “failing to sound proper warning signals— namely by bell or whistle. Crossing has improper protection.” In answer to interrogatories submitted by plaintiff, the jury found that the plaintiff exercised due care, that the engineer failed to ring the bell continuously as the train approached the crossing and that plaintiff’s injury was proximately caused by the failure to ring the engine bell.

It is the contention of plaintiff that inasmuch as the jury found upon credible evidence that the defendant failed to sound the bell and that such failure proximately caused her injuries, any error occurring at the trial with respect to other matters are immaterial under the principle announced in Sites v. Haverstick, 23 Ohio St., 626; Columbus Ry., Power & Light Co. v. Lombard, 33 Ohio App., 47, 168 N. E., 619; Storrs-Schaeffer Co. v. Laws, 13 Ohio App., 387; and Zimmerman v. Second National Bank of Bucyrus, 24 Ohio App., 48, 156 N. E., 157, and supported by certain expressions in the opinion in Soltz v. Colony Recreation Center, 151 Ohio St., 503, 87 N. E. (2d), 167; Elio v. Akron Trans. Co., 147 Ohio St., 363, 71 N. E. (2d), 707; Dowd-Feder Co. v. Schreyer, 124 Ohio St., 504, 515, 179 N. E., 511; Klever v. Reid Brothers Express, Inc., 151 Ohio St., 467, 86 N. E. (2d), 608; and Hart v. R. M. Ins. Co., 152 Ohio St., 185, 87 N. E. (2d), 347.

A review of the authorities reveals that the two-issue rule is commonly only applied where there is a general verdict for the defendant without answers to interrogatories disclosing that the verdict was in fact based upon the issue to which the error related. It has been uniformly restricted to erroneous instructions to the jury, and has not been applied to errors relating to the admission or rejection of evidence. The issues must be complete and independent of each other and neither of them be an element of or dependant on the .other. If the two issues constitute a primary and a secondary issue, the rule is applied only if the primary issue is properly submitted.

In Culbertson Co. v. Warden, 123 Ohio St., 297, 175 N. E., 205, the Supreme Court refused to extend the application of the two-issue rule to separate specifications of negligence and held that the rule has no application to specifications of negligence, separately stated and numbered, but which in fact constitute a single negligent act resulting in a single loss and damage. This decision has not been overruled but has been cited with approval. Acrey v. Bauman, 134 Ohio St., 449, 455, 17 N. E. (2d), 755; Mass. Bonding & Ins. Co. v. Dingle-Clark Co., 142 Ohio St., 346, 357, 52 N. E. (2d), 340; Taylor v. City of Cincinnati, 143 Ohio St., 426, 55 N. E. (2d), 724; Bush, Admr., v. Harvey Transfer Co., 146 Ohio St., 657, 666, 67 N. E. (2d), 851.

The .language taken from the opinions in the cases cited by plaintiff is not carried into the syllabi and does not indicate any modification of the definite statement contained in the second paragraph of the syllabus of Culbertson Co. v. Warden, supra. The two-issue rule, therefore, does not preclude consideration of errors assigned relating to specifications of negligence other than those which may relate to the failure to ring the engine bell.

The finding of the jury that the “crossing has improper protection” is a mere conclusion and of no value. Mason Tire & Rubber Co. v. Lansinger, 108 Ohio St., 377, 140 N. E., 770. Furthermore, there was no evidence tending to show that this crossing was especially hazardous so as to require the defendants to provide greater safeguards than those provided by statute. To approve the submission to the jury in the instant case of the duty to employ additional safeguards would authorize the submission of the question in actions involving all grade crossings in open country over which slow freight movements are made. Before the question of greater precautions can be submitted to a jury, there must be evidence that the crossing is unusually hazardous and that it has been made ■so by the railroad company’s use of it. Cleveland, C., C. & St. L. Ry. Co. v. Schneider, 45 Ohio St., 678, 17 N. E., 321; New York, C. & St. L. Rd. Co. v. Kistler, 66 Ohio St., 326, 64 N. E., 130; Weaver v. Columbus, S. & H. Ry. Co., 76 Ohio St., 164, 81 N. E., 180; Reed, Admr., v. Erie Rd. Co., 134 Ohio St., 31, 15 N. E. (2d), 822; Capelle v. B. & O. Rd. Co., 136 Ohio St., 203, 207, 24 N. E. (2d), 822; Woodworth, Admx., v. New York Central Rd. Co., 149 Ohio St., 543, 551, 80 N. E. (2d), 142; Lacey v. New York Central Rd. Co., 85 N. E. (2d), 540.

At the conclusion of the taking of testimony, on motion of defendants, the allegation that defendant failed to maintain a watchman at -the crossing was stricken. Over objection, plaintiff was granted leave to amend by interlineation “that the defendants failed to give any warning by any means or manner of the approach ■of the train. ’ ’ The amendment was improper as a conclusion, but since it introduced the subject of addition•al precautions without alleging the facts disclosing an unusually dangerous crossing, the granting of the •amendment was prejudicially erroneous. Lacey v. New York Central Rd. Co., supra.

On several occasions during the trial the court, over ■objection, admitted evidence of flasher signals erected at the Ann Arbor crossing, a quarter of a mile west ■of the Terminal crossing. The conditions at the two •crossings are quite dissimilar. The flasher signals at the Ann Arbor were erected pursuant to order of the Public Utilities Commission. Over this crossing operate passenger as well as freight trains. Only slow freight trains operate over the Terminal crossing. The admission of this evidence was erroneous. Jones v. Village of Girard, 111 Ohio St., 258, 144 N. E., 847. Although upon special request of the defendants prior to argument, this evidence was excluded from consideration by the jury, the error was not cured. The jury found the crossing was improperly protected and it is apparent that the admission of this evidence, including that portion of plaintiff’s exhibit No. 1 disclosing the Ann Arbor crossing, was prejudicial.

The court also submitted to the jury the allegation that the employees in charge of the train failed to keep a proper lookout for traffic on the highway, including the automobile in which plaintiff was riding. There was no evidence tending to support this allegation. On the contrary, the testimony of the fireman and the head brakeman that they observed the approach of the automobile is uncontradicted. The specification should therefore have been withdrawn from the consideration of the jury, but since the special finding is equivalent to a finding adverse to the allegation, the error is not prejudicial.

By its special finding, the jury eliminated all specifications of negligence except the failure to ring the engine bell. The allegation with respect to the whistle was withdrawn and the matter of protection was improperly submitted and the finding thereon was of no value. The headlight was burning brightly, according to the manifest weight of the evidence. By inference, the jury found that the headlight was neither extinguished nor so dim as to render it invisible. Masters v. New York Central Rd. Co., 147 Ohio St., 293, 70 N. E. (2d), 898.

It is undisputed that the terrain between the highway and the railroad was open country with no obstruetion to the vision of travelers on the highway. It is also undisputed that both plaintiff and the driver of the automobile knew of the presence of the railroad crossings on this highway. She had called his attention to that fact. He had driven over the crossing on previous occasions. The train approached around the bend toward the crossing with its bright headlight burning at a speed less than that of the automobile. The locomotive did not collide with the automobile.. The automobile hit the side of the locomotive.

In this situation, the failure to ring the bell, the only act of negligence supported by any evidence-found by the jury, could not have been the proximate-cause of plaintiff’s injuries. The motions for judgment notwithstanding the’general verdict should have been granted. Reed, Admr., v. Erie Rd. Co., supra; Capelle v. B. & O. Rd. Co., supra; Woodworth, Admx., v. N. Y. C. Rd. Co., supra.

The judgment is reversed and final judgment awarded defendants.

Judgment reversed.

Conn and Carpenter, JJ., concur.


author: By the Court.

text:
    Grieb, Appellee, v. Department of Liquor Control et al., Appellants.
    (No. 4255
    — Decided May 9, 1949.)

      Messrs. Cowan & Adams, for appellee.

      Mr. Herbert 8. Duffy, attorney general, and Mr. John J. Nolan, for appellants.

      Mr. Isadore Topper, amicus curiae.

   By the Court.

This is an appeal on questions of law from the Common Pleas Court of Franklin County, which rendered judgment for the plaintiff in an action for a declaratory judgment. •

The case was submitted to the trial court on the pleadings and an agreed statement of facts. Prior to March 1, 1946, plaintiff was the holder of a D-5 permit and operated a cafe in Springfield, Ohio, under such permit. On March 1, 1946, the Board of Liquor Control revoked the permit. Immediately the Department of Liquor Control entered plaintiff’s premises and seized intoxicating liquor having an alcoholic content •of 3.2% by weight to 21% by volume and spirituous liquor having a higher alcoholic content, all of the approximate value of $5,000. Such liquor wras legally manufactured and was legally acquired by the plaintiff. The Department of Liquor Control proposes to sell and dispose of such liquor as provided in Section 6064-40, General Code. Plaintiff contends that Section 6064-28, General Code, which authorizes seizure of the liquor on the premises upon revocation or cancellation of a permit, and Section 6064-40, General Code, which provides for the disposition of the liquor without first making compensation to the owner, are unconstitutional in that they authorize the taking and confiscating of private property without due process of law and without compensation in violation of Sections 16 and 19 of Article I of the Constitution ■of Ohio and the “due process” clause of the Fourteenth Amendment of the Constitution of the United States. The trial court upheld this contention and declared and decreed that the plaintiff was entitled to have the liquor returned to him or to recover the fair value thereof. Defendants contend that such judgment is contrary to law.

We are in accord with the judgment of the trial court. In our judgment the contention of the defendants, that the seizure of the liquor and disposition thereof without compensation to the owner were valid exercises of the police power of the state, cannot be supported. It must be observed that the liquor was legally manufactured and acquired. Under the law legally acquired liquor does not become contraband or a nuisance per se upon the revocation or cancellation of such a permit. The plaintiff had a property right in this merchandise at the time it was seized of which he could not be deprived except according to law. 8 Ohio Jurisprudence, 482, Section 349; McKown v. City of Atlanta, 184 Ga., 221, 190 S. E., 571; Murphy v. St. Joseph Transfer Co. (Mo.), 235 S. W., 138; Huston v. Walton, 23 Colo. App., 282, 129 P., 263. See, also, In re Estate of Weisenberg, 147 Ohio St., 152, 70 N. E. (2d), 269. The fundamental requirements of due process were not followed and are not provided for in the sections of the Code under consideration. 8 Ohio Jurisprudence, 715, Section 597. See, also, Anderson National Bank v. Luckett, Commr., 321 U. S., 233, 88 L. Ed., 692, 151 A. L. R., 824, 64 S. Ct., 599; Truax v. Corrigan, 257 U. S., 312, 66 L. Ed., 254, 27 A. L. R., 375, 42 S. Ct., 124; Rowland v. State, ex rel. Martin (Fla.), 176 So., 545, 114 A. L. R., 443; People v. Marquis, 291 Ill., 121, 125 N. E., 757, 8 A. L. R., 874. See, also, Edson v. Crangle, 62 Ohio St., 49, 56 N. E., 647.

The seizure of the legally acquired liquor in which the plaintiff possessed a property right, and the attempt to dispose of such liquor, as provided by Section 6064-40, were clear violations of the “due process” clause of the Fourteenth Amendment to the Constitution of the United States. Section 6064-28, which authorizes the seizure of the liquor, and that part of Section 6064-40 which provides that the liquor so seized shall be distributed to the state welfare institutions are in violation of Section 19, Article I of the Constitution of Ohio, which provides that “where private property shall be taken for public use, a compensation therefor shall first be made in money.”

As we find no error in the record prejudicial to the rights of the defendants, the judgment is affirmed.

Judgment affirmed.

Miller, P. J., Hornbeck and Wiseman, JJ., concur.


text:
    Ohio Society of Professional Engineers et al., Appellees, v. Hulslander, d. b. a. Aimes Engineering Co., Inc., et al., Appellants.
    (No. 21264
    — Decided September 26, 1949.)

      Mr. Ira E. Arnold and Mr. H. R. Raw good, for appellees.

      Mr. 8. J. Blair, Mr. R. J. Neivton and Mr. E. J. Kroch, for appellants.
   By the Court.

This is an appeal on questions of law from a judgment in a civil case wherein the defendant was found guilty of contempt of court for violation of an injunction issued at the instance of the plaintiffs..

The action originated in the Common Pleas Court, of Cuyahoga County on January 14, 1947, when a petition for injunction and equitable relief was filed by the Ohio Society of Professional Engineers, an Ohio-corporation not for profit, and William C. Kammerer, individually and in behalf of the society, as parties-plaintiff, against Ray D. Hulslander and three other-defendants, praying for a permanent injunction under and by virtue of Sections 1083-1 to 1083-26, inclusive,. General Code, to enjoin the defendants from “practicing or offering to practice engineering within the-state of Ohio, or using the word ‘ engineer ’ or any word’ of like import in connection with their name or their business. ’ ’

Thereafter, upon application of the plaintiffs, the-court dismissed all defendants except Ray D. Hulslander against whom the action then proceeded.

On November 12,1947, a journal entry was signed by the trial court whereby defendant Ray D. Hulslander was “perpetually enjoined from practicing or offering-to practice engineering either directly or indirectly, in the state of Ohio, or using the word ‘engineer’ or any word or words of like import, in connection with or in-reference to himself, unless and until he becomes registered by the Ohio State Board of Registration for Professional Engineers and Surveyors.”

He was further “perpetually enjoined from listing,, publishing, or advertising in any directory or any periodical, or from otherwise in any manner or form, either expressly or impliedly, advertising, publishing- or representing that Ray D. Hulslander or any legal entity with which he may be associated, may engage in the practice of engineering in the state of Ohio.” No-appeal was prosecuted from that decree.

Subsequently, on August 13, 1949, charges in contempt were filed by plaintiffs against defendant, charging him with failure to comply with the injunctive order of the court in that he had published or caused to be published, in the June 1948 issue of the telephone directory, the words, “Aimes Engineering Company,” in the alphabetical section thereof, and the same name in the classified section thereof under the headings, “Engineers — Mechanical” and “Engineers — Structural. ’ ’

It was alleged further that the defendant was associated with Aimes Company, Inc., and that as a result of such listings he violated the injunction issued oh November 12, and was “in contempt thereof.”

On September 2, 1948, the defendant was tried upon the charges of contempt, found guilty, fined $500 and costs and sentenced to ten days in the county jail.

There are four assigned errors as follows:

“1. In overruling motion of defendant, Ray D. Hulslander, for the dismissal of the contempt charges.
“2. In overruling motion of defendant, Ray D. Hulslander, at the conclusion of plaintiffs’ evidence, for a judgment for defendant.
“3. The final judgment and order are not sustained by sufficient evidence.
“4. The final judgment and order are contrary to law. ’ ’

Insofar as pertinent to this case, Section 1083-1 et seq., General Code, under which the injunction was issued and the defendant later brought to trial on the charge of contempt, are hereinafter quoted.

“Section 1083-1. That in order to safeguard life, health, and property, any person practicing or offering to practice the professions of engineering * * * shall hereafter be required to submit evidence that he is qualified so to practice, and shall be registered as hereinafter provided; and it shall be unlawful for any person to practice or to offer to practice the professions of engineering * * * in this state, or to use in connection with his name or otherwise assume, use, or advertise any title or description tending to convey the impression that he is a professional engineer * * * unless such person has been duly registered or exempted under the provisions of this act.” (Emphasis supplied. )

The terms, “professional engineer,” and, “practice of professional engineering,” are defined as follows:

“Section 1083-2. The term ‘professional engineer*' as used in this act shall mean a person who, by reason of his knowledge of mathematics, the physical sciences, and the principles of engineering, acquired by professional education and practical experience, is qualified to engage in engineering practice as hereinafter defined.
‘ ‘ The practice of professional engineering within the meaning and intent of this act includes any professional service, such as consultation, investigation, evaluation, planning, design or responsible supervision of construction or operation, in connection with any public or privately owned public utilities, structures, buildings, machines, equipment, processes, works or projects, wherein the public welfare, or the safeguarding of life, public health or property is concerned or involved, when such professional service requires the application of engineering principles and data. * * * ”

It will be observed from an examination of the foregoing provisions of the statute that the prime purpose of the act is- to protect the public from the unauthorized practice of professional engineering as defined by the act. This purpose is clearly indicated in the first words of Section 1083-1, General Code, and in the second paragraph of Section 1083-2, General Code.

These sections differentiate between professional engineering therein intended to be regulated and other fields of engineering not intended to be regulated and which by their very nature cannot be the subject of regulation. It therefore follows that all engineering remains unaffected under the act except that which involves or concerns the safeguarding of life, public health or property. It should be noted that after the act undertakes to regulate certain kinds of engineering involving public health, welfare and safety, it then provides for exemptions from the provisions of the act. These exemptions are as follows:

“Section 1083-20. The following persons shall be exempted from the provisions of this act, to wit:
“(g) Nothing in this act shall be construed as requiring registration for the purpose of practicing professional engineering, or surveying' by an individual, firm or corporation on property owned or leased by said individual, firm or corporation, unless the same involves the public safety or public health; or for the performance of engineering or surveying which relates solely to the design or fabrication of manufactured products(Emphasis supplied.)

That the provisions of the act do not apply to those engaged in designing or fabricating manufactured products was recognized by the Attorney General of Ohio, the legal advisor of the State Board of Engineers and Surveyors, in an informal opinion (No. 199) dated May 2, 1947. He there stated in substance that engineering relating to the design and construction of all kinds of aircraft for every purpose, including commercial, military and experimental aviation, and the designing and construction of all devices, contrivances, and accessories pertaining to such aircraft including engines, motors and other machinery of every sort, while they constituted the practice of professional engineering, obviously came within the exemption of Section 1083-20 (g), General Code. This opinion was given in pursuance of a request by the Secretary of State who had refused to accept for filing proposed articles of incorporation of a company which included in its charter the purposes above described. This construction appears to us to carry the force of logic and reason.

Referring now to the original decree herein, there is no finding by the trial court that the defendant actually practiced “professional engineering” as defined by the statute. However, the defendant was enjoined from practicing or “offering to practice engineering” or from using the word, “engineer,” or any word or words of like import. Further the decree does not in specific terms enjoin the defendant from performing or offering to perform any of the particular services described in Section 1083-2, General Code, as the practice of “professional engineering.”

The decree uses only the term, “engineering,” which is a generic term covering many phases of human activity which do not come within the classification of “professional engineering”' as defined by the statute.

Also, it is important to observe that in the publication of which complaint is made, defendant did not use the term, “professional engineer,” which is specifically prohibited by the statute. Consequently it cannot be said that the mere use of the generic term, “engineer,” would be, per se, a violation of the act. To warrant a finding of guilty it would be necessary to show by the requisite degree of proof that the defendant was actually engaging in the practice of “professional engineering” or actually holding himself out as engaging in such practice as defined by the act.

In our opinion the injunctive decree could'not, by its terms, rise higher than the act (Section 1083-1 et seq., General Code) from which the court derived its jurisdiction in the first instance. In other words, it was not within the province of the court to broaden or extend the meaning of “professional engineering, ’ ’ beyond the definition of the term as set forth in the statute. Its provisions should therefore be construed to prohibit only those activities proscribéd by the statute. Concerning this phase of the subject, the Supreme Court of Illinois, in the case of Krebs v. Thompson, Dir., 387 Ill., 471, 56 N. E. (2d), 761, in passing upon a statute similar to that under consideration herein, said in paragraph four of the syllabus:

“Where an act defines terms therein used, those terms must be construed according to the definitions in the act, and as the act to regulate professional engineering attempts to define the term ‘professional engineering’ by referring to other terms not defined and leaves to the examining committee provided in the act the power to determine its application, it is invalid as a delegation of legislative power. ’ ’

And at page 477 the court said:

“It will be noted that the definition contained in Section 2 gives little insight into what activities are included in the act. Briefly stated, the term ‘professional engineering’ is there defined to mean any professional service wherein the public welfare or the safeguarding of health, life or projjerty is concerned or involved when such professional service requires the application of engineering principles and data. When an act defines the terms therein used, those terms must be construed according to the definitions contained in the act. Smith v. Murphy, 384 Ill., 34; Rozran v. Durkin, 381 Ill., 97."

From an examination of the evidence as shown by the record, it appears that some time in December 1947, after the issuance of the injunction, the defendant sought the advice of counsel who advised him as to his rights and liabilities under the injunctive decree and that he conformed to such advice.

The evidence further shows that the defendant was president of The Aimes Company, Inc., and that the company for a period of time built centrifugal casting machines and permanent molds and did only the structural detailing of shiploading towers all of which in our opinion comes within the exemptive provisions of Section 1083-20, General Code.

Upon consideration of all the evidence, the members of this court are unanimously of the opinion that the evidence shows the business activities of the defendant related solely to the design or fabrication of manufactured products.

Construing the provisions of the injunction in the light of the act, we conclude that there is no evidence showing that defendant violated the injunction, and the finding and judgment below are therefore not supported by any evidence upon a material issue. The judgment therefore should be reversed and a decree entered for the defendant appellant.

Judgment reversed and decree for defendant appellant.

Skeel, P. J., Fess and Hurd, JJ., concur.

Fess, J., of the Sixth Appellate District, sitting by designation in the Eighth Appellate District.


author: Ross, P. J. Matthews, J.,

text:
    Jordon, Appellee, v. Brouwer et al., Appellants.
    (No. 7139
    — Decided October 24, 1949.)

      Mr. Andrew O. Haefner and Mr. Paul J. Rengge, for appellee.

      Mr. Robert G. McIntosh, for appellants.
   Ross, P. J.

This is an appeal on questions of law from a judgment of the Municipal Court of Cincinnati in favor of the plaintiff. Trial was to the court without the intervention of a jury.

A motion to dismiss the appeal for failure to file the briefs of appellant in time was overruled.

The action was instituted against John A. Brouwer, as an individual and partner in' the Cascade Products Company, and Dwight Curley as an individual and partner in the Cascade Products Company, and the Atlas Distributing Company, successor to such Cascade Products Company. John W. Brouwer was dismissed by the court. Otherwise, judgment was rendered generally for plaintiff.

In the bill of particulars, it is alleged that Brouwer and Curley were partners doing business under the name of “Cascade Products,” “selling and distributing through distributors what is known and hereinafter referred to as Cascade Anti-Freeze”; that the Atlas Distributing Company is successor to Cascade Products, and assumed all indebtedness of such latter organization; that plaintiff purchased a quantity of such antifreeze from an authorized distributor of Cascade Products, under an express warranty printed on the labels of cans containing the liquid; and that such warranty consisted of a statement upon such labels — “Glycerine Base Anti-Freeze, Laboratory Tested and Approved” and “we immersed specimens of copper, iron, steel, rubber from a hose, and synthetic rubber, in a solution made by diluting the antifreeze compound submitted with an equal volume of tap water for ten days at 1401' F. No corrosion or other change in condition was visible on any of- the specimens at the end of the test.”

In the bill of particulars it is alleged further that plaintiff took precautions found in instructions for use of the liquid suggested by defendants on such labels and, “plaintiff further says that relying upon the express warranty that said Cascade Anti-Freeze solution was safe and harmless for use in the radiator of an automobile and but for which he would not have so purchased and used said Cascade Anti-Freeze solution, when on the contrary, and the truth be known, said Cascade Anti-Freeze solution was inherently dangerous and destructive to plain tiff's automobile, and a few days after the installation of the Cascade AntiFreeze solution, plaintiff discovered that said Cascade Anti-Freeze solution was not as warranted; that it did cause corrosion, stoppage and damage to the interior of the motor, radiator, hose connections, etc.”

The statement of defense was in effect a general denial.

The label on one of the cans was introduced in evidence and contained only the following statements:

‘ ‘ Cascade
“Glycerin Base, Anti-Freeze
“Laboratory Tested and Approved
“Laboratory Report
“Smith Emery Company .
“Chemical Engineers and Chemists
• “Los Angeles, Calie.
“Freezing point ..................minus 60'' F
“Initial boiling point ...................210° F
“We immersed specimens of copper, iron, steel, rubber from hose, and synthetic rubber, in a solution made by diluting the antifreeze compound submitted with an equal volume of tap water for ten days at MT F.
“No corrosion or other change in condition was visible on any of the specimens at the end of the test.
‘ *' Cascade Products Co.
“Cincinnati, Ohio.
“Licensed under patents of Nyla Manufacturing Co.
“A Permanent Type
‘ ‘ Anti-Freeze
“A chemical antifreeze compound which possesses the properties that has been declared essential for a safe antifreeze. Safe by actual road and laboratory tests when used as directed. Will not evaporate.
“Prevents Rust.
“Will mis readily with water but works best if cooling system contains only CASCADE
‘ ‘ Congealing Points oe
“Cascade Anti-Freeze
“Clean and flush radiator and check all hose connections, head gaskets, heater connections, etc. for radiator full at all times. Replace evaporation with water and leakage with Cascade.
“Cascade Products Co.,
“Cincinnati, Ohio.”

Prom the evidence contained in the bill of exceptions, it appears that plaintiff purchased the liquid from the operator of a garage and filling station, who, before putting the liquid in the radiator of plaintiff’s automobile, thoroughly checked all connections, which would be exposed to the liquid.

After operating the car for two days, it ceased to run and, upon examination at a garage, it was found that the liquid placed in the radiator had found its way into the compartment in which the oil used to lubricate the motor is contained (crank case); that only a “gray substance” remained therein; that when water was placed in the radiator, it flowed through into the crank case; and that the water pump was leaking, and “everything froze up on me.”

Some repairs were made on the motor and plaintiff again drove the car “a couple of days” and “I blew a head gasket.” Again, repairs were made on the motor, and the head was “planed down.” According to plaintiff’s statement: “It run all right for a day or two and I busted a piston, and they fixed it up, and in a few days I busted a head gasket, and it went on like that. They put in new pistons and bearings, and altogether I think they put seven gaskets on and planed the head down twice.” Plaintiff stated further: “I went in the first of October and they said they couldn’t do anything more with the motor. It was twisted and I sold it.”

Plaintiff complained to Curley, who said: “If you have complaints, see us, we’re protected by Lloyds of London.”

Plaintiff had purchased the car in 1947, a used 1940 Plymouth, containing a new motor. Fresh oil was placed in the motor the day the fluid was put in the radiator. Plaintiff further stated that upon examination after use of the antifreeze, the radiator was found to have “a million pin holes in it” and leaked when the-motor ran. The hose connections were eaten ■away. A garage mechanic who worked on the car after the antifreeze solution was placed in the radiator testified:

“A. The antifreeze had taken something out of the metal and let the water and the antifreeze solution «eep through down to the pan, diluting the oil, and that in turn seized the motor and caused all the trouble.
“Q. Now, your inspection and check on that and from your experience you found that the condition of the car was due to what? A. Due to the solution of fhe antifreeze that was in the car.
“Q. And it affected those parts how with reference to the metal? A. Well, it seemed to just eat the gaskets up and in that way leave the solution go into the •oil.
“Q. Would it eat into the metal.
“Mr. McIntosh: Objection.
‘ ‘ The Court: Sustained.
“Q. What did you find its effect on the metal to be? A. To the naked eye you couldn’t see any effect on the metal, but I believe that something was taken out of the metal — some form of substance — iron or steel or something was taken out by the active solution that leaves the water seep through.”

And, again:

“Q. What did you find with reference to the condition of the metal after the solution was in? A. Well, the block was distorted and the head was distorted in such a way that it would leave the >vater or solution through.
“Q. What did you find with reference to the oil in the crank case? A. Well, it was a gray muddy color.
“Q. Was there any oil present? A. What?
£‘Q. Was there any oil present? A. Very little.
££Q. What did you find with reference to the condition of the valves? A. The valves and stems were all seized to the valve guides.
££Q. Would they have the play that is customary in the valve? A. No.
“Q. What was their condition with reference to play? A. With reference to play?
££Q. Play. The ability to move. A. Well, they were sticking.
££Q. They were sticking. From your inspection and repair on the car, what parts were affected on the car? A. Well, the pistons, the rings, bearings, the cylinders, the valves, valve guides, hoses, gaskets, the brass bushings that pin the ride on, and the radiator.
££Q. Now, did that car come in repeatedly over a period for repairs? A. Yes, sir.”

The defendants called a chemist who stated he had tested certain solutions for the defendants, but there is no evidence that the particular solution used by plaintiff had been tested. On the other hand, the chemist stated that cans of the fluid were selected at random from that on sale by the defendants and that such tests showed it was safe for automotive use and that the defendants were so advised. Defendant Brouwer testified that before the right to manufacture was purchased from Nylon Manufacturing Company the fluid was tested and found to be harmless for automotive use, that after purchase of rights each batch wás tested for safety in such use and all such tests showed safety, and that defendant had used the fluid in his own car without harm to the motor.

This action is predicated solely upon the premise of a breach of an express contract or Avarranty.

There is no privity between the plaintiff and the defendants, and such privity is necessary to sustain an •action based upon an express warranty. 46 American Jurisprudence, 487, “Sales,” Section 306. The plaintiff is a subpurchaser through a dealer, an operator of •a filling station, who purchased from a distributor of the product, and 'this is an action for injury to plaintiff’s chattel. As noted in this section, there are exceptions to the rule of privity, where injury results to the person of plaintiff.

Liability has been sustained under the modern rule, •even where the injury is to property, where the action ■is predicated upon the negligence of the manufacturer, which is shown to be the proximate cause of injury to •a subpurchaser’s chattel. 46 American Jurisprudence, 946, “Sales,” Section 824. See 164 A. L. R., 593; Section 497, Torts, Negligence, 2 Restatement of the Law of Torts, Section 395 Id. See, also, 1948 Restatement of the Law, Section 497, Torts, p. 763. See, also, Sicard v. Roux Distributing Co., 133 Ohio St., 291, at page 293, 13 N. E. (2d), 250.

The instant action is not based on negligence, and even if it were, no negligence is shown in the defendants.

It, therefore, appears that, although the plaintiff might have a cause of action, he stated none in this action, and proved no facts upon which recovery might be had against the defendants.

Judgment reversed, and judgment must be here rendered for the defendants.

Judgment reversed.

Ross, P. J., and Hiloebrant, J., concur in the syllabus, opinion and judgment.

Matthews, J.,

dissenting. In the bill of particulars is set forth that the defendant expressly warranted that the antifreeze “was safe and harmless for use in the radiator of an automobile and but for which he would not have so purchased and used said Cascade Anti-Freeze.” The evidence proves the allegation, particularly in view of Section 8392, General Code, Avhicli provides that any affirmation of fact made to induce the buyer to purchase and upon which he relies, is an express warranty.

The defendant knew that this antifreeze would be used in the radiators of automobiles. That was the very purpose for which it was manufactured and used.

Had this action been instituted by the original buyer from the defendant, who had used it in his automobile, it is clear that he could have recovered the damage inflicted upon his automobile, resulting from the harmful nature of the substance. Such damage would be the loss directly and naturally resulting in the ordinary course and within the contemplation of the parties, which is the measure of damage ever since Hadley v. Baxendale, 9 Exch., 341, 156 Eng. R. Rep., 145, and now in statutory form is found in Section 8449, General Code.

And when a vendor places such a representation and warranty on a label intended to be passed on until it reaches the ultimate consumer, as he did in this case, he must be taken to have made the representation and warranty to the ultimate consumer, who would be the only person likely to suffer by reason of the falsity of the representation and the breach of the warranty. Placing such a warranty on the article sold brings the producer into jural relations with the ultimate consumer, because the producer so intends. It is a representation and a warranty made by the producer to the ultimate consumer and creates a privity between them.

For these reasons, I am of the opinion that the judgment should be affirmed.


author: Carpenter, J.

text:
    Wheeling & Lake Erie Ry. Co., Appellee, v. Hollywood Cartage Co., Appellant.
    (No. 585
    — Decided October 24, 1949.)

      Messrs. Young <£ Young, for appellee.

      Mr. G. Ray Craig, for appellant.
   Carpenter, J.

In the early morning of November 13, 1943, a locomotive of the plaintiff, the Wheeling & Lake Erie Railway Company, and a tractor and heavily loaded semi-trailer of defendant came into collision on the grade crossing of plaintiff at Benedict avenue in the city of Norwalk. The locomotive, gates and gatekeeper’s tower were damaged and this action was brought to recover therefor. Prom a judgment for plaintiff, defendant took this appeal on questions of law.

The crossing was protected by gates manually oper.ated 24 hours a day. The truck approached from the south down a grade on Benedict avenue, and the train from the east, or the driver’s right. On that side of the street, trees and buildings cut off the driver’s view to the east until he was within 29 feet from the center of the track.]

The gateman testified that the gates were seasonably lowered as the train approached. The truck driver, who had driven trucks over this crossing for several years and was familiar with it, said the gates stood erect and as he could not see to the east, he relied upon them and proceeded to cross when the locomotive struck the truck and carried it some distance down the track, knocking down the gate and gate mechanism on the southwest side, and the gateman’s tower which stood near it.

When the evidence was concluded, the defendant presented to the court some written instructions to the jury and requested that they be given. On objection by the plaintiff, two of these were refused. One was:

“If by a preponderance of the evidence in this case you find that the safety gates, at the time of the approach of defendant’s truck, were upright, the driver of the truck was entitled to place some reliance upon the indication of safety which the upright gates implied. ’ ’

The language of that instruction obviously came from the syllabus of Lohrey v. Baltimore & Ohio Rd. Co., 131 Ohio St., 386, 3 N. E. (2d), 54. In the reeent. decision of Norwalk Truck Line Co. v. Wheeling & Lake Erie Ry. Co., 77 Ohio App., 253, 66 N. E. (2d), 782, this court followed that decision and the decision in Cleveland, C., C. & I. Ry. Co. v. Schneider, 45 Ohio St., 678, 17 N. E., 321. The instruction should have been given, and refusal of it was prejudicial error.

Certain safety rules of the Public Utilities Commission of Ohio and of the Interstate Commerce Commission, regarding the manner in which trucks should approach and cross grade crossings, were offered in evidence by the plaintiff. Objection was made to their authentication and that the entire booklets of rules were submitted as exhibits. The record shows that the applicable rules were pointed out and marked and the court’s charge upon them quoted the particular rules. As to authentication, the court was bound to take judicial notice of the safety rules and regulations adopted by both of these authorities, so this court has said in two decisions — New York, Chicago & St. Louis Rd. Co. v. Van Dorp, 36 Ohio App., 530, 173 N. E., 445; and Duncan v. Evans, 60 Ohio App., 265, 20 N. E. (2d), 729.

The defendant, in writing before argument, requested the court to instruct the jury as follows:

“I say to you as a matter of law that the safety rules of the Public Utilities Commission of Ohio and of the Interstate Commerce Commission relating to the drivers of carriers are only admissible for your consideration as bearing on the question of the want of ordinary care by the driver of the truck.”

The refusal of the court to so instruct was prejudicial error. Matz, Admr., v. Curtis Cartage Co., 132 Ohio St., 271, 7 N. E. (2d), 220; Norwalk Truck Line Co. v. Wheeling & Lake Erie Ry. Co., 77 Ohio App., 253, 66 N. E. (2d), 782.

In its general charge, the court correctly covered this proposition but that did not cure the error of refusal to give the properly requested instructions before argument. Washington Fidelity National Ins. Co. v. Herbert, 125 Ohio St., 591, 183 N. E., 537, and cases there cited.

At the request of the plaintiff and over the objection of the defendant, the court submitted to the jury the following interrogatory to be answered by it :

“Was the defendant negligent in the operation, of its motor vehicle at the time of the collision between the engine of the Wheeling & Lake Erie Railroad Company and the motor transportation outfit of Hollywood Cartage Company?”

The submission of this interrogatory to the jury over the defendant’s objection raises two legal questions :

First: Did the interrogatory conform to Section 11420-17, G-eneral Code, which provides:

“When either party requests it, the court shall instruct the jurors, if they render a general verdict, specially to find upon particular questions of fact, to be stated in writing, and shall direct a written finding thereon. The verdict and finding must be entered on the journal and filed with the clerk.”

The purpose of such findings of fact is to test the general verdict. Section 11420-18, General Code. Did this query require the jurors ‘ ‘ specially to find upon a particular question of fact”? And was it a controlling fact?

In the petition, the plaintiff pleaded that plaintiff’s damages were Caused by the negligence of the defendant in nine specify: respects grouped under three numbers. The interrogatory does not specify in which of these respects, if any, the defendant was negligent.

In Brier Hill Steel Co. v. Ianakis, 93 Ohio St., 300, 112 N. E., 1013, the interrogatory was:

“Was the defendant negligent in any degree directly and proximately contributing to his accident and • injuries?”

The opinion of the court said it called for a combined finding of fact and conclusions of law and did not conform to the statute. This decision was approved and followed in Mason Tire & Rubber Co. v. Lansinger, 108 Ohio St., 377, 140 N. E., 770.

In contrast with these was Davison v. Flowers, 123 Ohio St., 89, 174 N. E., 137, where there were two questions: (1) “Was the defendant negligent?” and (2) “If your answer is yes, state of what the negligence consisted. ’ ’

As in the case at bar, there was more than one specific act of negligence pleaded, and the second question elicited a finding on a specific fact issue. This distinction is pointed out in three recent decisions: Masters v. New York Central Rd. Co., 147 Ohio St., 293, 298, 70 N. E. (2d), 898; Elio v. Akron Transportation Co., 147 Ohio St., 363, 373, 71 N. E. (2d), 707; Klever v. Reid Brothers Express, Inc., 151 Ohio St., 467, 476, 86 N. E. (2d), 608.

From the reasoning in those decisions, it is apparent that the interrogatory submitted was improper.

The second question is: Was its submission to the jury prejudicial?

This is answered in the affirmative in Anderson, Admx., v. Johnson Co., 150 Ohio St., 169, 80 N. E. (2d), 757, paragraph two of the syllabus. Beginning at page 172, the opinion of the Chief Justice is an extended quote from the opinion of this court on this question in which is expressed its views on this subject.

Other assignments of error are presented by the defendant, but the court does not sustain them.

For the errors in refusing to instruct before argument, and in submitting to the jurors an improper interrogatory, the judgment will be reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Conn and Fess, JJ., concur.


author: Ross, P. J.

text:
    City of Cincinnati, Appellee, v. Kellogg, City Mgr., et al., Appellees; Shannon, a Taxpayer, Appellant.

      (No. 7159
    — Decided July 19, 1949.)

      Mr. Henry M. Bruestle, city solicitor, and Mr. Robert White, for appellee city of Cincinnati.

      Mr. J. B. Grause, Jr., and Mr. Maurice W. Jacobs, for appellees W. R. Kellogg, city manager, and others.

      Messrs. Taft, Stettinius & Hollister, for appellee The Cincinnati Street Railway Company.

      Mr. David L. Shannon, for appellant.
   Ross, P. J.

Two appeals on questions of law, filed by a taxpayer not a party to the original action instituted in the Common Pleas Court of Hamilton County, have been attacked by motions to dismiss filed by defendant appellees.

The first appeal filed by such taxpayer was from an order of the Common Pleas Court refusing to permit such taxpayer the right to intervene in an action, brought by the city solicitor of the city of Cincinnati at the request of such taxpayer, to enjoin giving effect to an ordinance passed by the council of such city. The general effect of such ordinance was to cause the city to assume the expense of the repair of portions of the streets in such city, which duty to repair had been previously placed upon The Cincinnati Street Railway Company by a former ordinance of the city. By virtue of such latter ordinance, the street railway company relinquished the right to increase fares conferred upon it by the former ordinance.

It is the claim of the taxpayer that such latter ordinance results in the unlawful payment of the funds of the city created by the receipt of taxes, and that the latter ordinance creates a benefit for a selected group, to wit, streetcar riders only.

The second appeal is from the final judgment of the Common Pleas Court sustaining a demurrer to the petition filed by the city solicitor in such action and dismissing the same.

This court in considering the motions to dismiss such appeals does not reach a review of the merits of the controversy involved in the final judgment of the Common Pleas Court.

The motion to dismiss the first appeal raises merely the question whether the trial court committed error prejudicial to the taxpayer appellant in refusing the taxpayer the right to intervene in the action brought by the city solicitor at his request.

In Pierce v. Hagans, 79 Ohio St., 9, 86 N. E., 519, it is stated in the syllabus:

“A resident taxpayer, owning property within an incorporated village subject to be taxed for the support of the revenues of the village, in which village there is no solicitor nor other legal counsel whose duties require him, in the name of the corporation, to apply to a court to restrain the illegal use of the funds of the corporation, is not without legal capacity to maintain for himself and on behalf of the village, an action against the municipal authorities to enjoin the unauthorized expenditure of the funds of the village. ’ ’

This case is authority for the proposition that, in the absence of statutory regulation, a taxpayer has a common-law right to maintain an action to enjoin the misapplication of tax funds by a municipality.

See, also, 52 American Jurisprudence, 2, Section 2 et seq.; and City of Middletown v. City Commission of Middletown, 138 Ohio St., 596, 37 N. E. (2d), 609, where, at page 614 in the concurring opinion of Judge Turner, wherein Crampton v. Zabriskie, 101 U. S., 601, is cited, it is stated:

“ ‘Of the right of resident taxpayers to invoke the interposition of a court of equity to prevent an illegal disposition of the moneys of the county or the illegal creation of a debt which they in common with other property holders of the county may otherwise be compelled to pay, there is at this day no serious question.’ ”

In the City of Middletown case, the Supreme Court was divided, Chief Justice Weygandt and Judge Zimmerman concluding that the taxpayer was not even a proper party, even if the city solicitor failed to vigorously prosecute the action. Such was the holding of this Court in that case when before it. Judge Turner in his concurring opinion stated that the taxpayer had the right to intervene as a matter of right. Judge Hart concurred with Judges Williams, Matthias and Bettman in holding the taxpayer was a proper party, but dissented on the merits of the case.

The result is that the Supreme Court has not passed upon the power of a taxpayer to intervene as a matter of right in such an action as is here considered.

As hereinbefore stated, this court is not now concerned with the merits of the taxpayer’s claim that he should have had the right to intervene. The effect of the motion to dismiss the appeal from the order refusing the taxpayer such privilege is to state that under no circumstances has he that right as such, although it is admitted that the court in its sound discretion under authority of the City of Middletown case may admit him as a proper party. His right to intervene is predicated upon his position that he not only is a proper party, bnt a necessary party, and the refusal of the court to permit his intervention constitutes error, prejudicial to him.

As stated as follows by Judge Zimmerman, in the City of Middletown case, it seems that this is a matter for the Legislature, rather than the courts:

“The writer’s position is that the General Assembly having within its prerogatives prescribed a definite and exclusive method of challenging the alleged wrongful conduct of municipal officers, the judicial branch of the government is not at liberty to substitute a different and conflicting plan. Legislation permitting a taxpayer to become an intervening party when the court believes the solicitor is not acting diligently or in good faith would no doubt be desirable, but the court has no right to supply any such deficiency. ’ ’

To the same effect is City of Lakewood v. Rees, 51 Ohio App., 490, 1 N. E. (2d), 953, wherein Judge Lieghley stated:

‘ ‘ There is no principle or rule of equity that may be invoked. Equity follows the law. The Legislature has prescribed the remedy. The right of the taxpayer has been restricted. When the solicitor substantially complies ivith the demand of the taxpayer, his conduct as a public official is not subject to supervision, control and repudiation by the taxpayer. Nor shall an apparent effort at substantial compliance with the demand be held to be no compliance to annul or remove the restriction imposed by statute. The Legislature has provided and prescribed the remedy and recited no exception thereto.” (Emphasis added.)

However, it is to be noted that the circumstances of that case were taken into consideration and the court, as expressed in a concurring opinion, stated :

“While concurring in the judgment, we do not wish to be understood as announcing a proposition of law that in no case can the court allow intervention by a taxpayer in such action. A mere paper compliance by the director of law with the demand made by the taxpayer to file suit, is not sufficient compliance. The ■compliance contemplated by the statute is a substantial ■compliance, so that the court will have presented to it .all the issues of law and fact in order that a full and ■complete adjudication may be had.
“In a proper case, the court may determine that a mere sham compliance by the director of law is no ■compliance with the demand of the taxpayer, in which ■event the court could allow the application of a taxpayer to intervene. ’ ’

In spite of the doubt thus thrown upon the proposition that a taxpayer has no right as such, under any ■circumstances, to intervene in a suit wherein the city solicitor has, at his request, brought an action to enjoin misapplication of public funds, this court con•cludes that no such right exists,' and that he is not a necessary party to the action, although he may be a proper party and be permitted by the trial court in its sound discretion to intervene.

The conclusion upon the first appeal obviously disposes of the second appeal.

There is no right independent of statute to appeal in any case by anyone. There is no authority, certainly, justifying an appeal by one who was not a party to the action in the trial court, and thus the trial court having committed no prejudicial error in refusing the taxpayer the right to intervene, he stands as an outsider to the appeal from the final judgment dismissing the action.

Before concluding, one final matter demands some statement. It is admitted by all parties that the taxpayer requested the city solicitor to appeal from the final judgment dismissing the action, and that the city solicitor refused to appeal.

Do the provisions of Section 4314, General Code, apply to an appeal?

It is the conclusion of the court that they apply to the three preceding sections only, each of which relates to the original action in the trial court and cannot be extended by implication to an appeal.

The motion as to each appeal is granted.

The power of a taxpayer, as a matter of right, to intervene in the instant type of action not having been determined by the Supreme Court, and the members of that court, as constituted when the City of Middletown case, supra, was considered, being in disagreement as to whether such taxpayer was even a proper party, and there being statements both in the opinion of Judge Lieghley and that of the concurring judges in City of Lakewood v. Rees, supra, and the Lakewood case being noted by Judge Turner in his concurring opinion in City of Middletown v. City Commission of Middletown, supra, it is the conclusion of this court that this is a matter of real importance to the taxpayers of this state, and that the conclusions reached by this court present sufficient conflict with those entertained by the judges of the Court of Appeals of the Eighth Appellate District, as expressed in the case of City of Lakewood v. Rees, supra, to justify certification of this case to the Supreme Court as a conflict case.

Motions granted.

Ross, P. J., and Matthews, J., concur in the syllabus, opinion and judgment.

Hildebrant, J., not participating.


author: Hildebrant, J. Ross, P. J.,

text:
    Bevis, Appellant, v. Armco Steel Corp., Appellee.
    (No. 961
    — Decided December 3, 1949.)

      Mr. Robert E. Brooks, Mr. Louis G. Gapelle and Mr. Robert E. L. Young, for appellant.

      Mr. G. W. A. Wilmer and Messrs. Frost é Jacobs, for appellee.
   Hildebrant, J.

Demurrer to tlie amended petition on the grounds that (1) the court had no jurisdiction of the subject matter of the action, and that (2) the amended petition did not state facts sufficient to constitute a cause of action, was sustained by the Common Pleas Court, and judgment was entered for the defendant. The case is here on appeal on questions of law.

Plaintiff labels his amended petition an action for deceit, alleging in substance that in November 1928 he was employed by defendant as a bricklayer and continued in such employment until December 1944, when ill health, due to silicosis, acquired in the course of such employment, forced him to discontinue such employment; that defendant is amenable to and has complied with the Workmen’s Compensation Act of Ohio, and this action is not based on any of the provisions of that law; and that he was given physical examinations previously, including X-ray of the chest by defendant’s doctors, and on April 4, 1944, examined by a lung specialist, hired by defendant, including X-ray of the chest.

The deceit alleged was that while these examinations revealed to the defendant that plaintiff had contracted silicosis, nevertheless the defendant concealed that fact from the plaintiff and falsely represented to plaintiff, both orally and in writing, that such examinations disclosed no evidence of silicosis, whereby plaintiff was induced to continue on the job where he was exposed to harmful'working conditions, resulting in the aggravation and acceleration of his silicosis until he became totally and permanently disabled thereby, to his great damage.

The trial court correctly stated the sole question to be: May a complying employer be held liable to respond in damages at common law or otherwise for any injury or disease or bodily-condition occurring in or arising out of the course of the employment?

In proposing to amend Section 35 of Article II of the Ohio Constitution, the Legislature in its schedule contained in the joint resolution (110 Ohio Laws, 632), states the purposes of the amendment to be:

“Providing compensation for all accidents and diseases arising out of employment, providing additional compensation for employees where accident or disease results from failure to comply with specific requirements for the protection of lives, health and safety of employees, abolishing open liability of employers, and providing a fund for the investigation and prevention of industrial accidents and diseases.” (Emphasis added.)

It is, therefore, clear that the Legislature in proposing, and the people in adopting, the amendment, considered that the language thereof was sufficient to abolish the open liability of employers. That section, as amended, effective January 1, 1924, reads in part:

“For the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational disease, occasioned in the course of such workmen’s employment, laws may be passed establishing a state fund to be created by compulsory contribution thereto by employers, and administered by the state, determining the terms and conditions upon which payment shall be made therefrom. Such compensation shall be in lieu of all other rights to compensation, or damages, for such death, injuries, or. occupational disease, and any employer who pays the premium or compensation provided by law, passed in accordance herewith, shall not be liable to respond in damages at common law or by statute for such death, injuries or occupational disease.”

Thereafter, in Mabley & Carew Co. v. Lee, 129 Ohio St., 69, 193 N. E., 745, the amended constitutional provision was held sufficiently broad to bar the action for damages based on an alleged violation of the laws relating to the employment of females and minors. The court, at page 74, in contrasting the language of the amendment with former provisions, refers to the legislative intent disclosed in 110 Ohio Laws, 632. It is further noted at page 73 that former Section 1465-76, General Code, providing for an election by the employee in the case of willful acts of the employer, was considered, as by implication, repealed by the amendment effective January 1, 1924, and that thereafter, in 1931, the Legislature expressly repealed that section in 114 Ohio Laws, 26, 39, further evidencing the legislative intent and construction that the amendment had successfully abolished the open liability of employers.

However, in Triff, Admx., v. National Bronze & Aluminum Foundry Co., 135 Ohio St., 191, 20 N. E. (2d), 232, decided March 29, 1939, thé Mabley & Careio case was expressly overruled. It was held in paragraph two of the syllabus:

“The right of action of an employee for the negligence of his employer directly resulting in a noncompensable occupational disease has not been taken away by Section 35, Article II of the Constitution of Ohio, or by Section 1465-70, General Code.”

As stated by this court in Weil, Admx., v. Taxicabs of Cincinnati, Inc., 68 Ohio App., 277, at 279, 35 N. E. (2d), 613, an act was passed May 25, 1939, as an emergency measure, apparently with the purpose of eliminating the open liability of employers disclosed by the Triff decision, supra, and Section 1465-70, General Code, was amended to read:

“Employers who comply with the provisions of Section 1465-69 shall not be liable to respond in damages at common law or by statute, for any injury, disease or bodily condition, whether such injury, disease or bodily condition is compensable under this act or not, or for any death resulting from such injury, disease or bodily condition, of any employee, wherever occurring, during the period covered by such premium so paid into the state insurance fund, or during the interval of time in which such employer is permitted to pay such compensation direct to his injured or the dependents of his killed employees as herein provided.
“No action against an employer, who has complied with the provisions of Section 1465-69, to recover damages at common law or by statute for any injury, disease or bodily condition, or death resulting from any injury, disease or bodily condition of an employee arising out of his employment by such employer shall be commenced after 180 days after the effective date of this act.”

In Sebek v. Cleveland Graphite Bronze Co., 148 Ohio St., 693, 76 N. E. (2d), 892, the plaintiff sought damages for ptomaine poisoning, contracted after eating a meal furnished by the employer in its cafeteria as part of the contract of hire, and the court, finding plaintiff had suffered an injury in the course of and arising out of the employment, stated at page 701:

“It follows, therefore, that by virtue of the provisions of Section 1465-70, General Code, plaintiff is precluded from successfully maintaining a civil action for damages against the defendant.”

In the case of State, ex rel. Engle, v. Industrial Commission, 142 Ohio St., 425, 52 N. E. (2d), 743, it is ■stated in the first paragraph of the syllabus:

“The amendment of Section 35, Article II of the Constitution (effective January 1, 1924) extinguished all right of an injured workman to bring an action at law for damages against an employer amenable to and ■complying with the provisions of the Workmen’s Compensation Act; thereafter every injury sustained in the course of and arising out of his employment, except an injury purposely self-inflicted, was made compensable under tbe provisions of tbe Workmen’s Compensation Act.”

In contrasting tbe law before and after tbe 1923 amendment, effective January 1,1924, tbe court says at page 430:

“By this amendment, the right of the workman (or in case of death his legal representative) to maintain an action at law was extinguished even though the injury was caused by a complying employer’s violation of a lawful requirement; after the effective date of the amendment, regardless of how the injury occurred, the rights of the workman (or in case of death his legal representative) were determined by the Industrial Commission under the • compensation act. Thereafter the courts were without jurisdiction to entertain an action for damages for death, personal injury or occupational disease brought by or on behalf of a workman against his complying employer. That result was deemed to be advantageous to both workman and employer. The employer could not be subjected to an action which might result in his being compelled to pay both compensatory and punitive damages, and the workman (or in case of death his legal representative) was relieved from electing at his peril either to prosecute an action or apply for compensation. The net result was that for every injury sustained in the course of and arising out of the employment the workman was entitled to compensation, regardless of whether the injury was caused by unavoidable accident, by his own negligence, the negligence of a fellow workman, or the failure of his employer to comply with a lawful requirement. The only exception was an injury which was purposely self-inflicted.
“We deem it important that in original Section 35, Article II, the purpose was stated thus: ‘For the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational disease * * * ’; and although Section 35, Article II, was amended generally in 1923 the above quoted language is still found intact in the amendment.
“In our opinion the fact that the purpose clause remained unchanged indicates a clear legislative intent to provide compensation only, regardless of how the injury occurred.”

It was held in Lacher v. Roxana Petroleum Corp., 40 Ohio App., 444, 179 N. E., 202:

“Where an employer complies with the Workmen’s Compensation Act, he cannot be made to respond in damages at the suit of an employee who is maliciously assaulted and injured in the course of his employment by a fellow employee. The claim is compensable and compensation is in lieu of damages (Article II, Section 35, Constitution [adopted 1923]).”

And, at page 446, the court said:

“Under this constitutional provision as amended, injury by willful act of the employer is compensable, but cannot be made the basis of an action for damages. ’ ’

The California case of Sarber v. Aetna Life Ins. Co., 23 F. (2d), 434, likewise an action for deceit, was a case where the employer’s physician performed an operation on plaintiff to remove a fragment of steel from his leg, but not only did not remove it, but falsely informed plaintiff it had been removed. The court held the California Workmen’s Compensation Law to be the exclusive remedy.

As part of the mining laws of Ohio, Section 898-80, General Code, gives a cause of action to employees against employers who violate the section or willfully fail to comply therewith, but exempts from the provisions of the act employers who have complied with the Workmen’s Compensation Act, providing that such employers not be liable to respond in damages at common law or by statute for injury or death of an employee wherever occurring.

Again, Section 1465-73, General Code, denies to the noncomplying employer the benefits of the act and deprives them of certain common-law defenses.

These two above provisions further indicate the legislative intent to make the Workmen’s Compensation Act an exclusive remedy.

Taking the allegations of the petition as true at the time of the original deception, plaintiff was not prevented from bringing a common-law action in damages, but only from filing a compensable claim with the Industrial Commission. The further deception whereby plaintiff was induced to continue working, whereby continued and harmful exposure resulted in aggravation of his original condition again only prevented the filing of a compensable claim and did not deprive him of a right of action in damages, because he never has had such a right.

The general rule is that aggravated damages caused by the malpractice of the doctor involved are the natural and proximate result of the original injury. This rule was applied to a workmen’s compensation case in Anderson v. Libby Glass Mfg. Co., 6 Ohio Law Abs., 400, citing Loeser v. Humphrey, 41 Ohio St., 378.

We know of no instance since the 1923 amendment where the courts have permitted a common-law action under any theory for a compensable claim.

Prior to the 1923 amendment, an election of remedies being afforded, election to file a claim for compensation was held to bar an action for damages. It appears from the report of State, ex rel. Bevis, v. Coffinberry, 151 Ohio St., 293, 85 N. E. (2d), 519, that plaintiff herein has invoked the jurisdiction of the Industrial Commission by filing occupational disease claim No. O. D. 4064-22, seeking compensation for the same disabilities claimed in this action, and sought to direct the action of the commission by mandamus in that suit. It, therefore, appears that plaintiff is and ought to be barred and estopped from prosecuting the instant case.

From the foregoing it is clear that the Constitution and laws intend and the Supreme Court in State, ex rel. Engle, v. Industrial Commission, supra, and Sebeck v. Cleveland Graphite Bronze Co., supra, has so construed them, that the open liability of employers is abolished and in every case where the injury, disease, or bodily condition occurred in or arose out of the employment, no matter how incurred, the Workmen’s Compensation Act is the exclusive remedy; that such condition is either compensable under that law or not at all; and that no action of any kind may be brought against a complying employer therefor, whether or not such injury, disease, or bodily condition is compensable under the law.

In the recent case of O’Black v. Ohio Steel Foundry Co., No. 978 on the docket of the Court of Appeals for the Third Appellate District of Ohio (certification since denied and appeal dismissed by the Supreme Court—152 Ohio St., 367, 89 N. E. [2d], 301), wherein the action was predicated on fraud and deceit for damages for concealment resulting in aggravation of an existing pathological condition, that court held that no action at common law, irrespective of the form, is maintainable under the present law, under material facts identical with the case at bar.

Judgment affirmed.

Matthews, J., not participating.

Ross, P. J.,

concurring. I concur with my associate that the judgment of the trial court should be affirmed. I also concur in Ms opinion, however, with the distinct reservation that there are still certain common-law actions which an employee may maintain against an employer which are not abrogated by the provisions of the Workmen’s Compensation Act. It seems clear that such actions as libel, slander, malicious prosecution, false representations, and an action for fraud may still be maintained, although the relationship of employer and employee exists, and the facts sustaining such cause of action might involve the incidents of employment.

In the instant case, a cause of action for false representations is stated in part. The difficulty with the case of the plaintiff is that the damages alleged fall within the classification definitely provided for by the Workmen’s Compensation Act, and the plaintiff, therefore, fails to allege other damages for which the law now recognizes a remedy by compensation.

The injury charged, as the result of the defendant’s fraud, is the exact injury for which he is allowed and did claim compensation under the Workmen’s Compensation Act.

The law does not furnish a double satisfaction for a wrong. The plaintiff claims in his pleading that he was induced to continue in his employment by reason of the fraud of his employer and suffered certain injuries thereby. Those injuries are the ones for which he claimed and was awarded compensation. If he were permitted to recover in the instant action, a double satisfaction for the same injury would follow.

I also wish to be understood as excluding- from the rule of abrogation a situation where, by reason of the fraud of the employer, the employee is caused to fore-go his remedy under the Workmen’s Compensation Act. The damage in such case would not be met by compensation under that act. There would not, as in the instant case, be a double satisfaction.


author: Stevens, J. Doyle, P. J.,

text:
    Basile, Appellee, v. Basile, Appellant.
    (No. 3894
    — Decided January 28, 1948.)

      Mr. Carl M. Myers, for appellee and cross-appellant.

      Messrs. Ferbstein & Sicherman, for appellant and •cross-appellee.
   Stevens, J.

This case presents an appeal on questions of law by the defendant, Sam Basile, from a judgment of the Court of Common Pleas of Summit County, wherein plaintiff, Mary Basile, was granted a divorce, alimony, and an award of expenses of suit, and a cross-appeal on questions of law by the plaintiff concerning the amount of alimony awarded.

The action below was a statutory action for divorce and alimony, and the defendant, by his cross-petition, sought a divorce from plaintiff on the ground that, at the time the marriage contract between plaintiff and defendant was executed, defendant had a wife then living.

No claim was made, nor could be successfully made, by either party that a common-law marriage existed between the parties, as the impediment to such a union was not removed until the day after the supplemental petition herein, on which the case was heard, was filed. It tiras appears that the final separation of the parties occurred on or before July 2, 1947, the date when the supplemental petition was filed, and that the defendant herein procured a divorce from his wife (Izabella) on July 3, 1947.

A motion for temporary alimony was made, and was overruled by the court after hearing.

The award of permanent alimony and expenses of suit was made in the final decree, after submission of the entire case.

From the evidence, it appears that these parties purported to be married by a ceremony performed, and under a contract executed, in the state of New York. Therefore, the validity and effect of the contract must be determined under the law of the state of New York. 2 Schouler on Marriage, Divorce, Separation and Domestic Relations (Sixth Ed.), Section 1261. 26 Ohio Jurisprudence, Marriage, Section 9.

The New York statute (Domestic Relations Law, Section 6, in Book 14 of McKinney’s Consolidated Laws of New York Annotated) provides:

'‘A marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is living * *

The admissions of the parties to this action in their pleadings, establish that defendant did have a wife by a former marriage, from whom he had not been divorced, living at the time he entered into the marriage contract with plaintiff. Consequently, by the express provision of the New York statute, supra, the marriage contract between plaintiff and defendant was absolutely void ab initio.

17 Corpus Juris Secundum, Contracts, Section 10, states:

“* * * a void contract means one merely ineffective, of no force and effect; it is no contract whatever. No rights of any character in favor of anyone vest under it; it is binding on neither party.”

Ohio has by statute provided in Section 11979, General Code:

“Courts of common pleas may grant divorces for the following causes:
“1. That either party had a husband or wife living at the time of the marriage from which the divorce is ' sought;
i Í * * * J >

And in Section 11990, General Code:

“When a divorce is granted because of the husband’s aggression, the court shall * * * allow such alimony out of her husband’s property as it deems reasonable * * (Italics ours.)

The cases of Smith v. Smith, 5 Ohio St., 32, and Vanvalley v. Vanvalley, 19 Ohio St., 588, are cited by counsel for appellee as establishing the right of the Court of Common Pleas to award alimony to the wife, where the husband had a wife living at the time of his second marriage, and a divorce was granted for that reason.

In this case, we do not believe that either of these cases is authority which warranted the trial court in awarding alimony to the plaintiff. In the Smith case, the statement in the opinion concerning alimony was pure obiter; and in the Vanvalley case, the court’s statement was made on a motion for leave to file a petition in error in the Supreme Court, which motion was overruled; the case therefore never reached that court on its merits, and the statements justifying the overruling of the motion, are not authority for an allowance of alimony under a void contract of marriage.

But, be that as it may, this marriage contract, under the express statutory provision of the state of New York, is absolutely void, and certainly, in an action at law, no rights can arise because of a nudum pactum.

The Ohio rule as indicated in 26 Ohio Jurisprudence, Marriage, Section 56, follows:

“In the absence of a statutory provision having a qualifying effect, under the general rule, a civil disability, such as having a lawful living husband or wife by a former marriage, renders a subsequent marriage absolutely void ab initio, in consequence of which it is good for no legal purpose, and the incidents which attend and follow on a valid marriage are not, in the absence of statute, acquired by the parties.”

We find no Ohio statute which we may here recognize as having a qualifying effect upon the rule announced.

The purpose of the first ground of Section 11979, General Code, supra, as we view it, was and is to permit the judicial removal from the marriage records of the record of a marriage which was void when consummated, and to judicially remove the appearance of the existence of a marriage contract between parties who are not bound thereby. This on the ground of public policy.

If, as the New York statute states, the contract under consideration was absolutely void, then no right to alimony could arise thereunder, because an award of alimony is incident to a valid, binding marriage, which this one was not (27 Corpus Juris Secundum, Divorce, Section 228), and this action was not one in equity. The award of permanent alimony was therefore erroneous.

It appears from an examination of the opinion in Stuart v. Stuart, 144 Ohio St., 289, 58 N. E. (2d), 656, that the Supreme Court of Ohio there concluded that an allowance to a wife of expenses of suit can only be justified under the provisions of Section 11994, General Code (the temporary alimony statute).

We have above indicated that alimony, temporary and permanent, is an incident of a valid marriage.

This being an absolutely void contract of marriage, no rights in favor of either party can arise therefrom, except the right of either party to have its nullity judicially declared. Smith v. Smith, 72 Ohio App., 203, 50 N. E. (2d), 889, syllabus 5.

The award of expenses to this wife in the final decree, the application for temporary alimony having been previously denied, was therefore likewise erroneous.

Under our constitutional authority to modify judgments, this judgment will be modified by deleting therefrom the provisions for an alimony award, and also the allowance for expenses of suit; and, as thus modified, the judgment is affirmed.

Judgment modified and affirmed.

Htjnsicker, J., concurs.

Doyle, P. J.,

dissenting in part:

In this state, divorce and alimony are solely creatures of statute. Among the ten causes for divorce in Section 11979, General Code, is “That either party had a husband or wife living at the time of the marriage from which the divorce is sought.” While this ground technically should be for annulment rather than divorce, because a marriage under such circumstances is void ah initio, nevertheless the Legislature has made it a ground for divorce.

Alimony, as incident to divorce, as distinguished from an action for alimony alone, is controlled, in so far as this case is concerned, by Sections 11990 and 11994, General Code. Section 11990, General Code, is in part as follows:

“When a divorce is granted because of the husband’s aggression, the court shall * # * allow such alimony out of her husband’s property as it deems reasonable, having due regard to property which came to him by marriage and the value of his real and personal estate at the time of the divorce.”

Alimony (permanent alimony) under this section of the Code cannot be granted a woman when she secures a divorce on the ground that the man she “married” had a wife living at the time of her “marriage” to him. This for the reason that the prerequisite “aggression” contemplates only things occurring after the marriage which are made grounds for divorce. It does not contemplate some cause which existed at the time of the marriage which made the marriage void from its inception.

However, Section 11994, G-eneral Code, does not have this “aggression” limitation. It provides that a court “may grant alimony to either of the parties for his or her sustenance and expenses during the suit,” and the words “expenses during the suit” have been construed to mean, inter alia, reasonable attorney fees.

The statute does not impair the right of a wife to have awarded to her reasonable expense money when a divorce is granted her on any of the grounds set forth in the statute. In fact, it permits a court, at any stage of a divorce proceeding, to make such an award, regardless of the reasons advanced for the granting of the divorce.

I therefore dissent from the conclusion of my associate judges in their determination to delete the award of counsel fees from the judgment under review, but concur otherwise in the judgment ordered by the majority.


text:
    Carper et al., Appellants, v. Village of Helena, Appellee.
    (No. 459
    — Decided April 25, 1949.)

      Messrs. Hull & Hawk, for appellants.

      Messrs. Ludwig db Busick, for appellee.
   Carpenter, J.

This is an action to enjoin the enforcement of a judgment of a justice of the peace on the ground it was void. From a judgment for the defendant, this appeal on questions of law was taken. The vital assignment of error is that the judgment is contrary to law.

In the justice court the defendant herein, Village of Helena, obtained a judgment against the plaintiffs, who now contend that the justice lost jurisdiction of the cause for the reason that his judgment was not entered “on or by the fourth day” after the close of the trial, as required by Section 10378, General Code.

From the justice’s transcript it appears that the trial was had and the “case taken under advisement” December 20, 1947. On December 26, brief of defendant was filed; December 31, brief of plaintiff filed, and January 2,1948, “decision made in favor of plaintiff.”

At the hearing in this cause, the justice testified that at the close of the trial counsel for defendant asked permission to file a brief.

Section 10378, General Code, requires that such judgment “shall be entered either at the close of the trial, or if the justice then desires further time to consider, on or by the fourth day thereafter, both days inclusive. ’ ’

In the recent decision of Monahan v. Beams, 66 Ohio App., 263, 33 N. E. (2d), 47, in a case on all fours with this, it was decided that the justice of the peace lost jurisdiction after four days passed before entering judgment. There the justice’s record disclosed that counsel for defendant requested permission to submit a brief.

In Tussing v. Evans, 7 C. C. (N. S.), 237, 17 C. D., 685, affirmed without opinion, Evans v. Tussing, 76 Ohio St., 618, 81 N. E., 1188, the court said that jurisdiction can not be conferred by consent of the parties upon a justice of the peace to reserve a decision to a later date than that authorized by statute.

That such is the force of Section 10378, General Code, has been the unbroken line of decisions by the courts since Dunlap v. Robinson, Admr., 12 Ohio St., 530.

This being the rule, on the undisputed facts in this case the judgment of the justice of the peace was void. The trial court erred in dismissing the plaintiff’s petition, and that judgment will be reversed and, on the undisputed facts, final judgment will be entered for plaintiffs.

Judgment reversed and final judgment for plaintiffs.

Conn and Fess, JJ., concur.