author: Stevens, J.

text:
    Tighe, a Minor, Appellee, v. Diamond et al., Appellants.
    (No. 203
    Decided June 27, 1947.)

      Messrs. Brouse, McDowell, May & Bierce, for appellee.

      Messrs. Buckingham, Doolittle & Burroughs, for appellants.
   Stevens, J.

Tlie petition herein, filed in the Court of Common Pleas of Medina county, alleged:

That plaintiff, an infant, on October 28,1945, was riding as a guest in an automobile owned by Samuel J. Diamond and driven by defendant Earl Lewis Diamond, a minor. That the defendant Samuel J. Diamond, in order to procure a motor vehicle operator’s license-for Earl L. Diamond, had theretofore engaged, under Section 6296-10, General Code, in a written undertaking of responsibility as provided in said section. That while said Earl L. Diamond was operating’ said automobile with plaintiff therein as a guest, he turned' onto Durling Drive in the city of Wadsworth, Ohio, and proceeded to drive thereon. That there existed on Durling Drive a sharp and dangerous rise in the surface thereof, which was formed by an abandoned railroad bed, running approximately at right angles to and across Durling Drive. That defendant Earl L. Diamond drove the automobile on Durling Drive for the express and intentional purpose of passing over and encountering said rise, and of passing over said rise, in such manner and at such a rate of speed as to-thrill, jolt and frighten this plaintiff. That said defendant knowingly, intentionally and wilfully encountered the said rise in said highway, at a speed of 50 to 60 miles an hour, well knowing and appreciating-that to do so would endanger, and in all probability injure, the plaintiff herein. .That he did so with total indifference to and disregard of the danger created by his speed in encountering the said rise, and with total indifference to and disregard of the safety of plaintiff. That he encountered the said rise in the said highway at such a rate of speed as threw plaintiff against the top of the car with great force and violence. That the said automobile left the traveled portion of said highway, overturned, and, after rolling over several-times, struck a tree at the side of the highway, where it came to an abrupt stop.

That as a direct and proximate result of the negligence and wilful and unlawful misconduct of defendant Earl L. Diamond, plaintiff was seriously injured, and she prayed a joint judgment against the two defendants for $25,000.

The defendants filed answers, wherein, after certain .admissions, they denied “that defendant Earl L. Diamond knowingly, intentionally and wilfully operated said automobile so as to endanger the plaintiff, and with total indifference and disregard to the safety of the plaintiff,” and generally denied every other allegation of the petition not admitted.

Trial to a jury resulted in a plaintiff’s verdict for $9,500 against both defendants, upon which judgment was entered. This appeal on questions of law followed.

Four assignments of error are presented, as follows:

1. The trial court failed, upon motion of appellants, to direct a verdict in their favor.

2. The trial court refused to charge the jury' before ■argument in accordance with written requests of appellants.

3. The trial court erred in its general charge to the jury. ,

4. The trial court erred in failing to declare a mistrial at the request of the appellants, after appellee offered evidence with respect to the interest of an insurance company.

The facts as disclosed by the record are:

Durling Drive runs to the south from U. S. 224 near the easterly corporate limits of the village of Wads-worth, and is an unimproved road, upon the surface of which were indented wheel tracks. The sides of the street are surfaced with loose material.

At approximately right angles the track of the trolley line had crossed Durling Drive, at a level substantially above the surface of the street.

When the car tracks were removed, the track bed was not graded down to the street level, and a bump or raised place in the street was permitted to remain. The defendant Earl L. Diamond had several times previously driven over this bump, and he had also ridden, over it in cars driven by others.

On the Sunday evening in question, young Diamond, driving his father’s car, was riding around Wads-worth, when he noticed the plaintiff and a girl friend on the street in the downtown portion of the village. The plaintiff was a high school classmate and close neighbor of Diamond, Jr. Diamond stopped the car- and asked the girls if they would like to ride, and, upon their acceptance of his invitation, the girls entered-the car, and they proceeded to ride around the village-for a half hour. They came to and turned onto Durling Drive, and Diamond, with the expressed intention of giving the girls a thrill, proceeded to cross said bump at a speed of approximately 50 miles an hour. After crossing the bump and throwing his passengers-against the top of the car, the auto proceeded some 260' feet southerly with its wheels out of the wheel tracks, when, in turning to the left to get back into the wheel-tracks, it got out of control, went off the road, turned over, and came to rest close to a tree.

In the course of events hereinbefore outlined, plaintiff sustained serious injuries.

Appellants ’ first assignment of error is that, in overruling defendants’ (appellants’) motion to direct a verdict, the trial court erred; and that it erred as a matter of law in submitting the case to the jury upon-any theory of liability.

Antecedent to a consideration of the questions presented by the above assignment of error is the question of the effect of the enactment of Section 6296-10, General Code, upon the provisions of the “guest act” (Section 6308-6, General Code).

The “guest act,” Section 6308-6, General Code, provides :

“The owner, operator or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest while being transported without payment therefor in or upon said motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by the wilful or wanton misconduct of such operator, owner or person responsible for the operation of said motor vehicle.”

This section became operative June 15, 1933.

The “minor drivers’ license” section, Section 6296-10, General Code, as amended effective May 25, 1943, provides:

“(a) The registrar shall not grant the application of any minor under 18 years of age for an operator’s or chauffeur’s license unless such application is signed by either parent, guardian or other person having custody of the applicant, or in the event there is no parent or guardian then by a responsible person who is willing to assume the obligation imposed under this act.

“(b) Any negligence or willful misconduct of a minor under 18 years of age when driving a motor vehicle upon a highway shall be imputed to the person who has signed the application of such minor, which person shall be jointly and severally liable with such minor for any damages caused by such negligence or wilful misconduct except as otherwise provided in the next succeeding paragraph. * * *.”

The original section became effective on October 1, 1936.

Neither the originally-enacted minor drivers’ license law, nor either of its two later amendments, in terms repeals any portion of the guest act; and, repeals by implication not being looked upon favorably by courts, it is the duty of this court to so construe the two sections as to make both effective, if that can be reasonably done.

The rule is well established that “a subsequent statute, treating a subject in general terms, and not expressly contradicting the provisions of a prior act, shall not be considered as intended to affect more particular and positive provisions of the prior act, unless it be absolutely necessary to do so in order to give its words any meaning. ’ ’ State, ex rel. Fosdick, v. Mayor, 14 Ohio St., 472.

It is possible to so construe the wording of both statutes as to give effect to the entire contents of each. Such a construction would limit a guest, under Section 6296-10, General Code, to a recovery against the person signing the minor’s application, because of the wilful misconduct of the minor, and would eliminate said person’s liability to a guest of the minor because of the minor’s negligence, or wanton misconduct.

We are of the opinion that the two statutes are in pari materia, and that, construed as above indicated, the entire contents of both are operative and valid.

The appellants ’ claim of a right to a directed verdict in their favor is based upon the assertion that there was no evidence of “wilful misconduct” of defendant Earl L. Diamond which warranted submission of that question to the jury.

It therefore becomes necessary to ascertain what is meant by the term “wilful misconduct,” as that term is used in Sections 6308-6 and 6296-10, General Code.

Webster’s International Dictionary, Second Edition, defines “willful” or “wilful” as: “2. Self-determined; voluntary; intentional”; and “misconduct” as: “2. Wrong or improper conduct; bad behavior; unlawful behavior or conduct; specif., malfeasance * # * 9 9

Hence, “wilful misconduct” is voluntary and intentional improper conduct or behavior.

Although there has been much confusion of terms in the use of the expressions “wilful misconduct,” “wanton misconduct,” “wilful tort” and “wilful injury,” it seems to the writer of this opinion that “wilful misconduct” may be of two kinds: actual or intentional “wilful misconduct,” where the intent is to injure, of which a battery would be an example; and constructive “wilful misconduct,” where the act causing the injury is intentional, but there is no voluntary intent to injure ; in this type of “wilful misconduct” the perpetration of the wrongful intentional act must be accompanied by indifference to the safety of others after knowledge of their danger, or failure after such knowledge to use ordinary care to avoid injury to such others. The presence of these latter elements, coupled with the intentional act, furnishes the constructive intent to injure.

It is apparent that there are two elements which combine to constitute “wilful misconduct”: 1, the act — which, in either actual or constructive “wilful misconduct,” must be intentional or voluntary; 2, the result — which, in actual “wilful misconduct,” must be a consequence of an intention to cause injury. In constructive “wilful misconduct” the intent to cause injury is established through a presumption of law, where the intentional act is conjoined with indifference to the safety of others after knowledge of their danger, or failure after such knowledge to use ordinary care to avoid injury to them, and the jury finds the result to be a natural and logical consequence of the intentional act. This is upon the basis of the principle that a person is presumed to intend the natural and logical consequences of his voluntary acts.

The evidence in.this case shows that the minor driver of the car in question intentionally drove his car at 50 or more miles an hour over an abrupt rise in the highway, of the existence of which the driver had knowledge, with the intent and purpose of giving the plaintiff and her friend a thrill.

The tragic result of defendant’s act was in all probability not intended, but if that result was a natural and logical consequence of defendant’s intentionally driving over that rise at that speed, that act, coupled with the result ensuing, in the face of the knowledge possessed by Diamond, Jr., and all the'surrounding circumstances, might be found by the jury to constitute constructive wilful misconduct.

Having narrowed the case to the proposition that plaintiff, a guest of the driver, could recover against the father, who signed the minor’s application for a license and entered into the statutory undertaking, only because of the “wilful misconduct” of the minor, we conclude that the evidence at the close of the case was such as required submission of the case to the jury as against both defendants, and that the trial court did not prejudicially err in overruling defendants’' motions for a directed verdict.

The second assignment of error asserts that the trial court erred when it refused to charge the jury before argument in accordance with the written requests of appellants.

The rule as to requests to charge before argument is stated by the Supreme Court in Sheen v. Kubiac, 131 Ohio St., 52, 1 N. E. (2d), 943, as follows:

“1. Under the provisions of subsection 5 of Section 11420-1, General Code, a requested preargument instruction to a jury not only must be a correct statement of the law but it must relate to an issue in the case.”

Appellants’ requests Nos. 1 and 3 were incorrect statements of law because they contained instructions-on wanton misconduct, which was not an issue in this-case.

Instruction No. 2 was properly refused because it did not accurately set out the law as to “wilful misconduct.” Instead, it closely approximated what the Supreme Court of Ohio said constitutes “wanton-misconduct” in syllabus 2 of Universal Concrete Pipe Co. v. Bassett, 130 Ohio St., 567, 200 N. E., 843, 119 A, L. R., 646.

It is next claimed that the trial court erred in its general charge to the jury because the charge did not correctly state the law as to “wilful misconduct.”

The court’s charge on that subject follows:

“Wilful misconduct involves the element of intent or purpose, and is thereby distinguished from negligence. Wilful misconduct involves the element of malice or ill-will but it is not necessary to show actual malice or ill-will. It may be shown by indifference to-the safety of others after knowledge of their danger,, or failure after such knowledge to use ordinary care-to avoid injury. It is not necessary that the wrongdoer should have knowledge of the peril of any particular person, but on the other hand any general knowledge or information that other persons are placed in a position of peril by his wilful misconduct is sufficient.

‘ ‘ This is based on the principle that a person is presumed to intend the natural and logical consequences of his acts.”

The foregoing charge was lifted almost verbatim from the syllabus and opinion of the Supreme Court of Ohio in the case of Payne, Dir. Gen., v. Vance, 103 Ohio St., 59, 133 N. E., 85, except that the term “wilful misconduct” was substituted for “wilful tort” appearing therein.

It is urged by appellants that the Supreme Court of Ohio has departed from the rule announced in Payne, Dir. Gen., v. Vance, supra, by its decisions in the later cases of Reserve Trucking Co. v. Fairchild, 128 Ohio St., 519, 191 N. E., 745; Universal Concrete Pipe Co. v. Bassett, supra; Vecchio v. Vecchio, 131 Ohio St., 59, 1 N. E. (2d), 624; Rothman v. Metropolitan C. Ins. Co., 134 Ohio St., 241, 16 N. E. (2d), 417, 117 A. L. R., 1169; and Akers v. Stirn, 136 Ohio St., 245, 25 N. E. (2d), 286.

We have carefully examined all of those cases, and we are unable to discover when, or in what case, the rule announced in Payne, Dir. Gen., v. Vance, supra, has been modified, or overruled.

We are of the opinion that the rule announced therein is still the law of Ohio in cases involving “wilful tort.” “Wilful misconduct,” actual or constructive, which results in an invasion of the rights of another, constitutes a “wilful tort,” and to that extent the two terms are synonymous.

The definition of “wilful tort” contained in paragraph 3 of the syllabus of Payne, Dir. Gen., v. Vance, is comprehensive enough to include “wilful misconduct,” whether actual or constructive, and hence the substitution of the term “wilful misconduct” in the ■charge of the court in the instant case for the term “wilful tort” used in that paragraph of the syllabus, was not erroneous.

The charge of the court as given was a correct statement of the law as to “wilful misconduct,” and we find no prejudicial error therein.

By the fourth assignment of error it is claimed that the trial court erred in failing to declare a mistrial on application of appellants, because of evidence offered by appellee with respect to the interest of an insurance company.

The record discloses the following:

Jane Butcher was called hy plaintiff. She was- a guest in the Diamond car at the time of the accident. After examination hy plaintiff’s counsel, she was cross-examined by counsel for defendants. In the course of the cross-examination, inquiry was directed to a signed statement which she had given to someone. The time, place and persons involved in respect to the written statement were omitted on cross-examination,, and plaintiff’s counsel, on redirect examination, undertook to inquire as to these matters.

During questioning, the following occurred:

“Q. Whose handwriting is this? A. I don’t know his name.

“Q. Was it a man or woman? A. I think an insurance man.

“Q. A man or woman? A. Man.”

No objection or motion to strike was made by defendants’ counsel to the reference to “an insurance man. ’ ’

After further redirect and recross examination,, plaintiff’s counsel inquired:

“Q. What was said then by this gentleman, as to the purpose of your signing this (referring to the written statement) ? A. I object.

‘ ‘ The Court: She may answer.

“Mr. Rabe: Exception.

“Witness: A. He told me he wanted me to give it so he could give it to an insurance company for my bills — doctor bills.”

Again there was no request to strike the answer relating to insurance.

There appears in the record no mention of insurance’ upon the automobile of defendants, and, for aught that appears, the reference to insurance may have been to insurance carried by the witness, who was not .a party to the action.

The case of Treftz v. Kirby, 7 N. J. Misc., 555, 146 A., 688, is authority for the conclusion that the answers here given furnished no basis for declaration of a mistrial. That case states:

“1. In action for automobile collision damages, where plaintiff’s witness was cross-examined as to whether he had made statement in writing as to details of accident, there was no error in permitting plaintiff on redirect to inquire to whom statement was made, nor was the answer that such statement was made to insurance man any ground for declaring mistrial. ’ ’

In our opinion the statements concerning insurance were innocuous, and the court did not prejudicially err in refusing to grant a mistrial.

The judgment is affirmed.

Judgment affirmed.

Doyle, P. J., and Hunsicker, J., concur.


source: Caselaw Access Project

author: Doyle, P. J.

license: Public Domain

text:
    The Wooster Feed Mfg. Co., Appellee, v. Village of Tallmadge, Appellant.
    (No. 3934
    Decided June 21, 1948.)

      Messrs. Troutman & Taggart, Mr. John E. Cox and: Mr. Evan J. Reed, for appellee.

      Mr. Scott A. Belden, village solicitor, for appellant..
   Doyle, P. J.

The money judgment for the plaintiff from .which this appeal is taken, is based upon claimed damage to a truck occasioned by its being overturned as a proximate result of the existence of a nuisance in a street in the village of Tallmadge.

The liability of the village for damages was based upon Section 3714, General Code, which in part is as follows:

“The council shall have the care, supervision and ■control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts, within the corporation, and shall cause them do be kept open, in repair, and free from nuisance.”

The evidence, we conclude, was sufficient to carry "the case to the jury, and the instructions of the court on the question of the village’s liability for the accident, we find, were adequate and proper.

The error strenuously urged and for which a reversal is sought, is stated by the appellant (village of Tallmadge) in the following language:

“Is a jury issue presented as to damages to a truck where, at the conclusion of the plaintiff’s case, defendant has moved for a directed verdict and the record shows that no evidence has been offered as to the fair and reasonable value of the truck either before or after the accident?”

The only evidence offered and received was the fair •and reasonable value of the labor and parts necessary for repairs; which labor and parts, in so far as the record shows, were necessary to mend the injury to the frame, axle, body, fenders, and windows. There is no specific evidence showing the fair and reasonable market value of the truck before and after the accident, nor is there any evidence specifically showing whether the reasonable market value of the truck after the repairs was greater or less than its value prior to the damage.

Under these facts, was the verdict of the jury, and the judgment rendered thereon, in the amount of $410 ■(the reasonable cost of labor and parts), justified under the law?

It is fundamental that the owner of personal property damaged by the tort of another is entitled to reasonable compensation for the loss sustained. There is not, however, unanimity of opinion among the courts of this state or nation on the method of making this calculation. There are authorities which permit ■calculation on the basis of the difference between the value before the injury and the value after the accident. Other authorities take the view that the damages are the reasonable value of the repairs made necessary by the injuries. Then there are numerous authorities •allowing both methods or modifications of them, depending upon the facts peculiar to the particular case under consideration.

See: 13 Ohio Jurisprudence, Damages, Sections 62 and 64, and cases cited therein; 17-18 Huddy, Encyclopedia of Automobile Law, Section 249 et seq., and cases cited; 25 Corpus Juris Secundum, Damages, Section 157; 5 American Jurisprudence, Automobiles, Section 745 et seq.

In examining many of the cases treating this subject, we are of the opinion that the rule pronounced by former Chief Justice Pound, of the Court of Appeals in New York, in Gass v. Agate Ice Cream, Inc., 264 N. Y., 141, 143, 190 N. E., 323, 324, is a proper one, and should be specifically incorporated into the law of this state. The opinion states the rule:

“The damages sustained by an automobile in a collision may be established by showing the reasonable cost of the repairs necessary to restore it to its former condition, although the general rule is that the measure of damages to personal property is the difference between its market value immediately before and immediately after the injury. This rule is subject to the limitation, first, that the cost of repairs must be less than the diminution in market value due to the injury, and, secondly, that the repairs must never exceed the value of the automobile itself as it was before the injury. The plaintiff should not benefit by the loss. [Cases cited.] Where the automobile is totally destroyed the measure of damages is its reasonable market value immediately before' destruction. There can be no recovery beyond such value for mere repairs.” (Cited and recognized as authority by Hand, Circuit Judge, in O’Brien Bros., Inc., v. Helen B. Moran, 160 P. [2d], 502, 505 [1947].)

It may be said that in the case under consideration there was no specific evidence offered by either party in respect to the effect of the injury upon the market value of the car, and- that we cannot know whether the diminution in value due to the accident was more or less than the reasonable cost of the restoration. The evidence, however, and the reasonable inferences to be drawn therefrom, did show the extent of the necessary repairs and their reasonable cost. Such evidence may be regarded as prima facie proof of the extent of the damage, and, in the absence of other evidence reasonably tending to prove that the cost of repairs exceeded the diminution in market value due to the injury, or that the cost of repairs exceeded the value of the vehicle as it was before the injury, it was sufficient to sustain a judgment in an amount equal to the reasonable cost of the repairs.

Judgment affirmed.

Stevens and Htjnsicker, JJ., concur.


author: Hunsicker, J.

text:
    In re Adoption of Bolling: Children’s Services, Appellant, v. Bolling et al., Appellees.
    (No. 20992
    Decided July 12, 1948.)
    Mr. Lex Kintner, for the motion.

      Mr. Clarence C. Fowerbaugh, contra.
   Hunsicker, J.

This hearing is on a motion of appellees to dismiss an appeal filed by Children’s Services, of Cleveland, Ohio, a charitable organization licensed as a child care agency by the state of Ohio.

The facts show that Lynn Harry Smith, hereinafter called Lynn, the minor son of divorced parents, Harry P. and Dorothy J. Smith, was born March 5, 1943, and was placed by Children’s Services in the home of Mr. and Mrs. Robert Bolling on August 7, 1946, the Children’s Services paying the Bollings for the care of Lynn.

On July 29, 1947, Harry P. Smith and Dorothy J. Smith, the parents of Lynn, signed and executed voluntarily a permanent surrender of Lynn to the Children’s Services, as is provided by Section 1352-12, General Code, which permanent surrender Children’s Services accepted.

On August 15, 1947, Mr. and Mrs. Bolling filed in the Probate Court of Cuyahoga county a petition to adopt Lynn, and filed therewith the answer and consent of Harry and Dorothy Smith, the parents of Lynn.

On September 10, 1947, Children’s Services filed a motion in the Probate Court, to which was attached a copy of the permanent surrender, asking that the Bolling petition for adoption be dismissed for the following reasons:

“1. Lack of jurisdiction of this court to hear the petition.

“2. No valid consent to said adoption has been nor can be filed in that a permanent surrender once signed cannot be revoked.

“3. Children’s Services has permanent and sole custody of said child by virtue of the permanent surrender of said child on the 29th day of July, 1947.”

Counsel for Children’s Services sought to present evidence to show the withdrawal of the consent by one parent to the Bolling adoption petition, and, further, to show the position of Children’s Services as a licensed agency and its interest in opposing this adoption by reason of its claim to the complete and permanent custody of Lynn.

The court below refused to hear any testimony on the motion of Children’s Services. The parent who had once withdrawn his consent to the Bolling adoption thereupon again consented, and the court ordered the adoption of Lynn by the Bollings. The court further held that Children’s Services was not a party in interest, and dismissed the motion of Children’s Services.

On December 1, 1947, before the order of adoption was made and before the motion of Children’s Services was overruled, an answer was filed by Children’s Services, setting forth fully its claims with respect to the child, Lynn.

It is from the order granting adoption and denying its motion, that Children’s Services appeals to this court. Counsel for the Bollings then moved to dismiss the appeal, claiming:

“1. The order appealed from is not a final order or judgment.

“2. There is no proper party appealing who had either a derivative or original interest in or was a necessary party to the suit at first instance.”

The question to be decided here is, Does Children’s Services have an interest in the adoption proceedings, by virtue of the surrender of permanent custody under authority of Section 1352-12, General Code, which it may assert in the Probate Court?

If Children’s Services has any interest at all in Lynn, it is as a result of the permanent surrender agreement which Lynn’s parents signed on July 29, 1947.

The right of parents, by contract, to surrender the care, custody and control of their children to others, has long been recognized by the law of Ohio. Clark v. Bayer, 32 Ohio St., 299, 30 Am. Rep., 593; In re Duffy, 78 Ohio App., 16, 68 N. E. (2d), 842.

The Legislature has sought to define the exercise of this right of contract, where the parent is dealing with an approved child care agency, by the enactment of Section 1352-12, General Code. This section provides for a temporary custody and a permanent custody, and further says such agreement “may authorize the association or institution when such agreements are for permanent care and custody to appear in any proceeding, for the legal adoption of such child, and consent to its adoption * *

In the instant case, there was the written offer on the part of the parents, Smith, to Children’s Services, and a written acceptance by Children’s Services of such offer. All of this was in compliance with Section 1352-12, General Code. A valid contract for the care and custody of the child was then in effect, and, under the terms of the contract, Children’s Services was the only one authorized to give consent to adoption as long as the contract of permanent surrender remained in full force and effect.

Under the factual situation herein, Children’s Services had an interest upon which it was entitled to be heard. It is, therefore, not necessary in this hearing to discuss or pass on the question of revocability of a permanent surrender when made in compliance with Section 1352-12, General Code.

The motion to dismiss the appeal is overruled.

Motion overruled.

Doyle, P. J., and Stevens, J., concur.

Doyle, P. J., Stevens and Htjnsicker, JJ., of the Ninth Appellate District, sitting by designation in the Eighth Appellate District.


author: Metcalf, J.

text:
    Hafer, Admr., Appellee, v. The Alex Wilson Co., Appellant.
    (No. 192
    Decided December 30, 1941.)

      Mr. Robert W. Bagby and Mr. W. O. Kenton, for appellee.

      Mr. O. E. Young and Mr. John W. Brink, for appellant.
   Metcalf, J.

This case is in this court on appeal on questions of law from the Court of Common Pleas of Brown county, the assignment of error relating only to the refusal of the trial court to sustain a motion for judgment non obstante veredicto, filed by the defendant, appellant herein, after the verdict was returned and before judgment was entered.

Briefly the record discloses that plaintiff’s decedent^ Harrison Hafer, on the 15th day of February 1940, at about four o’clock in the afternoon was walking easterly on U. S. route No. 52 in the incorporated village of Aberdeen, Brown county, and traveling thereon on his, decedent’s, left or northerly side facing oncoming traffic; that the highway consisted of concrete slab 20 feet in width; that defendant’s truck was traveling westerly at such time and place; and that as a result of an injury sustained by being struck by the truck decedent died. Plaintiff, appellee herein, brought suit against defendant for the sum of $15,000. The issue was tried to a jury and a verdict returned in the sum of $1,500 and costs. Defendant filed a motion under authority of Section 11601, General Code, for judgment notwithstanding the verdict, which motion was overruled and judgment was entered on the verdict.

Plaintiff called as witnesses three parties who at the time and place in question were walking in the same direction as decedent and had only a short time prior to the accident passed decedent and were at the time of the impact somewhere between 50 and 100 feet easterly from the decedent and on the same side of the road. While they testified they saw the approaching truck and two of them stepped off the concrete slab to permit the truck to pass, one of them being able to continue on the concrete slab, yet their testimony is to the effect that they did not see the truck or the dece- • dent at the time of the impact. When their attention was called to the accident by the noise the decedent had already been struck, the truck was somewhat crossways of the highway and had been stopped or was in the process of stopping. The truck traveled but a very short distance after the impact and did not run over the decedent. The decedent was still ahead of the truck so as to obscure his view, from these witnesses. None of the witnesses heard any signal sounded by the truck driver. These witnesses had the same view of the approaching truck as was provided the decedent and they saw it coming.

The fourth witness testified as to the speed of the truck farther up the road but did not see the accident and came to the scene thereof when they were in the act of taking the decedent to the hospital. The fifth witness called by plaintiff was used for the purpose of identifying certain photographs that he had taken of the scene of the accident subsequent thereto. These exhibits do not in any way disclose the position of either the truck or the decedent, at the time of the accident.

The first four witnesses placed the speed of the defendant’s truck all the way from 25 to 45 miles per hour.

The record discloses that after plaintiff had called these witnesses and after certain exhibits had been introduced, plaintiff by his counsel offered in evidence a certain affidavit which was marked plaintiff’s exhibit E and made a part of the record. Thereupon counsel for plaintiff read to the jury plaintiff’s exhibit E and after reading the same plaintiff rested. This affidavit was made and executed by one of counsel for the defendant, having been sworn to on the 28th day of March 1941, and was made for the purpose of supporting a request for a continuance of. the trial of the case which was to take place on April 3, 1941.

The affidavit purports to show that the driver of defendant’s truck, one Raymond B. Roberts, was then in military training and stationed somewhere in the south, his exact whereabouts being unknown. The affiant further said that he is informed and believes that if Raymond B. Roberts were present at the trial of this cause he would testify that:

“On Thursday morning, February 15, 1940, he left Charleston, West Virginia, about 7:30 o’clock a. m. driving a 1940 model Ford truck owned by the defendant, and headed for Cincinnati, Ohio; that said truck was carrying some egg cases and other articles; that no one was riding in the truck with him; that he started out on U.-S. Route No. 52 and stopped at Ironton, Ohio; then started on U. S. Route No. 52 for Cincinnati, Ohio; that he reached Aberdeen, Ohio, about 4:00 o’clock or 4:30 o’clock p. m. in the afternoon and was going west on U. S. Route No. 52. The highway around Aberdeen was spotted with some ice but the travel portion of the highway was clear; that after he proceeded just a little west of the center of the town going about twenty miles per hour he ‘saw three men walking together east on Route No. 52 on the north side of the road; that they were walking along the concrete ; about twelve feet behind these men another man was walking by himself on the same side of the highway in the same direction; that he afterwards found that this man was Harrison Hafer. That just before he reached these three men he blew his horn, and these three men looked up and saw him coming; that he continued to proceed west about twenty miles per hour and when he was about twenty feet from the man walking by him, (Harrison Hafer), he suddenly turned and walked right out into the center of the highway. When he got into the street he then seemed to see the driver and the truck he was driving and started to take a step back; that he cut his truck to the left to avoid hitting Mr. Hafer, who then stepped forward .again, and that the said Raymond B. Roberts immediately applied his brakes but that it was impossible to avoid hitting him with the front grill; * *

The rest of the affidavit pertains to the acts of the driver following the accident and has no importance here other than his actions negative any wanton and wilful negligence or conduct.

The affidavit is marked filed by the clerk of the Court .■of Common Pleas March 29,1941, and on the same day the record discloses an entry of the court that it appearing to the court that plaintiff and his counsel admit in open court that if present the witness Raymond B. Roberts would testify in substance as set forth in the affidavit, the application for continuance was withdrawn and the assignment allowed to stand. The effect of this affidavit under the circumstances was the same as a deposition on the part of Roberts. United States Life Ins. Co. v. Wright, 33 Ohio St., 533. By its introduction in evidence the plaintiff made this witness his own. The testimony therein contained raises a clear presumption or inference of contributory negligence on the part of plaintiff’s decedent. It then became the duty of the plaintiff to rebut or dispel that presumption or inference by that degree of proof sufficient to equal or counterbalance the evidence tending to show the contributory negligence on the part •of the decedent. The record discloses that he failed to do this. The defendant filed a motion for a directed verdict at the end of plaintiff’s testimony.

Evidence having been introduced to the effect that •defendant’s truck was being operated at a high and ■dangerous rate of speed, and that there was no signal or warning of any kind given, the motion for a directed verdict admitted the negligence of the defendant in that respect and it was a matter for the court’s determination whether the plaintiff’s evidence raised a reasonable presumption of contributory negligence on the part of the plaintiff’s decedent directly contributing to his injury and death, and if so whether any portion of such evidence, given the most favorable interpretation'of which it was reasonably susceptible in-support of the theory of due care on the part of plaintiff’s decedent, tended to dispel that presumption. If it did it made a question of fact for the'determination of the jury; if not it made a question of law for the-» court.

The plaintiff at that time had introduced and read the affidavit referred to. According to this evidence,, introduced by plaintiff, the decedent, when the truck was within about 20 feet of him, suddenly turned and-walked right out into the center of the highway. When he got into the street or highway he then seemed to seethe driver and the truck he was driving and started to take a step back; the driver having cut his truck to-the left to avoid hitting the decedent, the decedent then stepped forward again and it was impossible according to the state of the record to avoid hitting him. The-plaintiff’s evidence being such that it raised a presumption of negligence upon the part of the decedent contributing directly to his injury and death, the burden was cast upon plaintiff to dispel that inference.. He offered no such evidence. At the close of plaintiff’s evidence the question of contributory negligence-had not only been raised by plaintiff’s own evidence but had ceased to be a question of fact for the determination of a jury and had become an ascertained fact for the application of the law thereto by the court. 4 Ohio Jurisprudence, 635, Section 41; Galiardi v. Bowman, 20 Ohio Law Abs., 452; Spusta v. Bernow, 7 Ohio Law Abs., 90; Roland v. Newman, 7 Ohio Law Abs., 100.

The Supreme Court in the ease of Baltimore & Ohio Rd. Co. v. McClellan, Admx., 69 Ohio St., 142, 68 N. E., 816, laid down the law in the second paragraph of the syllabus as follows:

“Where the testimony of the plaintiff raises a clear presumption of negligence on his part which directly 'Contributed to his injury, and no testimony is offered by him tending to rebut that presumption, it is the duty of the trial court to sustain a motion by the defendant made at the conclusion of plaintiff’s evidence, to direct a verdict, and a refusal to sustain such motion is error.”

Again the Supreme Court in the case of Norris, Exrx., v. Jones, Recr., 110 Ohio St., 598, 144 N. E., 274, said on page 603:

“However, it is the rule in Ohio that when plaintiff’s •evidence raises a clear presumption of contributory negligence which is not rebutted by any evidence, it is "the duty of the court to take the case from the jury.”

In discussing this same question 13 Ohio Jurisprudence, 648, Section 312, concludes:

“* * * it reversible error to overrule a motion to direct a verdict for the defendant, in a case where the facts give rise to a clear legal presumption under which he would be relieved of liability, and there is no •evidence inconsistent with this presumption. This rule applies in actions for wrongful death based upon negligence of the defendant, where the plaintiff fails to offer evidence to rebut a presumption, raised by his •own testimony, of negligence, proximately contributing to the injury and death, on the part of the person killed, * *

The motion for a directed verdict should have been sustained.

The testimony offered by the defendant is corroborative of the affidavit as to the contributory negligence of decedent. Defendant’s motion for a directed' verdict was renewed at the end of all the testimony and was, in our opinion, erroneously overruled and the case allowed to go to the jury. The record discloses that reasonable minds could have reached only-one conclusion upon the question of fact presented, that the contributory negligence of plaintiff’s decedent directly contributed to the proximate cause of his injury and death, and thereby it became a question of law and not of fact.

It is, therefore, our conclusion that the trial court erred in overruling defendant’s motion both at the-end of plaintiff’s testimony and at the end of all the-testimony and that defendant’s motion for judgment, notwithstanding the verdict should have been sustained.

The conclusion reached in this case makes it unnecessary to discuss the phase of pecuniary damages other than to say there is no evidence in the record sustaining any pecuniary damage or money loss to the-next of kin named in the amended petition. '

It therefore follows that the judgment of the Common Pleas Court is reversed and judgment is entered for the defendant at plaintiff’s cost.

Judgment reversed.

Gillen, P. J., and McCurdy, J., concur.


author: Ross, J.

text:
    Ott, Appellee, v. Industrial Commission of Ohio, Appellant.
    (No. 7005
    Decided July 6, 1948.)

      Mr. G. R. Beirne, for appellee.

      Mr. Hugh 8. Jenkins, prosecuting attorney, and Mr. Edward A. Schott, for appellant.
   Ross, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Hamilton county, allowing the plaintiff to participate in the state insurance fund by reason of the death of her husband, an employee of the Crosley Corporation. The case was tried to the court without a jury.

The immediate cause of the employee’s death was “acute cardiac dilation, secondary to chronic endocarditis.”

The facts are largely developed in a stipulation of counsel appearing in the bill of exceptions. There is little, if any, conflict in the evidence. It appears therefrom that the deceased was an employee of the Crosley Corporation, who performed duties as a guard. The corporation had adopted a recreational program for its employees, in which provision was made for' the playing of baseball games. Playing-equipment was furnished by the corporation, and the program was directed by a paid supervisor, who made arrangement for the forming of several teams of corporation employees, made the schedule of games, and selected sites for playing. The players w-ore shirts prominently displaying the name of the corporation or enough thereof to identify them as Crosley employees.

When the notice for enrollment of players was first posted, the deceased sought to join one of the regular teams, but was dissuaded from doing so because he was older than the players composing the teams and also because his work as a guard interfered with the time schedule of the games. The deceased then formed a team of “Crosley Guards,” so designated upon the shirts worn by the players in his team. This was sufficient to identify the players as employees of the corporation and spectators of the games knew that the players were all Crosley employees. The teams opposing that led by the deceased were also Crosley employees.

The “Crosley Guards” were not entered in the main schedule of teams, and were not a part of the regular league of Crosley teams.

The “Crosley Guards” were, however, furnished by the corporation with playing equipment. The last game in which the deceased participated was played upon the grounds of the Cincinnati workhouse, and the deceased made the arrangement for use of the playing field.

The “Crosley Guards” and the opposing team posted the sum of $20, the total deposit paid to the winning team, the losing team paying for refreshments for both teams. The teams in the regular Crosley league put up no forfeit, and played solely for a trophy awarded the winning team at the close of the schedule. There is no question that, although the “Crosley Guards” were not included in the regular Crosley league, their activity was sponsored by the-corporation and was in the general purview of the recreational program for employees of the corporation, designed to promote the health and the general welfare of the participants, cultivate a friendly relationship with the corporation, and incidentally advertise its existence to the public. The peculiar incidents applicable to the team of the deceased, therefore, are not of sufficient importance to isolate the deceased and his teammates from principles of law applicable to the teams included in the regular league.

If a player in any of the teams composing such league could be brought within the application of the law applicable to workmen’s compensation, then the deceased was also subject to such application. The difference between the status of the “Crosley Guards” and any team in the regular league was one of degree only and not principle.

It appears from the evidence that the deceased when playing his last game was running the bases when he was tagged out. He walked to the players’ bench. Immediately thereafter, and upon being seated, he fell dead, as a result of the cause previously noted.

The Industrial Commission denied the plaintiff claimant the right to participate in the insurance fund, in spite of a rule of the commission to the following effect:

‘ ‘ Athletics. On April 26, 1929, the Industrial Commission adopted the following resolution, to wit:

“Whereas, it appears that a number of employers are encouraging their employees to engage in athletics, such as baseball, basketball, etc., at times during working hours and other times outside of working hours, and

“Whereas, it has developed that employees while engaged in such athletic activities experience injuries, and claims are being filed in this department for such injuries, and

‘ ‘ Whereas, it is deemed advisable that some rule be adopted by the commission as a guide under such circumstances:

“Be it therefore resolved by the Industrial Commission of Ohio, that in all cases where the employer encourages the employees to engage in athletics, either during working hours, or outside of working hours, and supervises and directs, either directly or indirectly, such activities, meritorious claims for injuries to any such employees while so engaged will be recognized, the employer’s risk and experience to be charged with such cases. In the event, of any such employees, while so engaged, received extra compensation from the employer the same shall be included in the pay roll reports to this department.

“This order shall not apply to employers who do not supervise and direct either directly or indirectly athletic activities of their employees or do not pay the employees for the time devoted to athletics.”

The conclusion of the commission was that “decedent’s death was not the result of an injury received in the course of and arising out of his employment.”

Section 1465-55, General Code, was construed by the Supreme Court in State, ex rel. Kildow, v. Industrial Commission, 128 Ohio St., 573, 192 N. E., 873, it being stated in the syllabus:

“1. Section 1465-55, General Code, delegates to the Industrial Commission of Ohio plenary power to adopt rules and regulations with respect to the collection, maintenance and disbursements of the state insurance fund.

‘•‘2. This delegation of power is given constitutional sanction by Article II, Section 35, Constitution of Ohio.

“3. The Industrial Commission cannot, in the exercise of its rule-making power, enter a field that the General Assembly has preempted by legislative enactment. ’ ’

“7. The Industrial Commission, being a state agency, is not estopped to plead the invalidity of rules adopted and promulgated by it.”

And, at page 580 of the opinion, it is stated:

“We are likewise in harmony with the principle of law announced in the cases of Industrial Commission v. Brown, 92 Ohio St., 309, 110 N. E., 744, L. R. A., 1916B, 1277, and State, ex rel. Automobile Machine Co., v. Brown, Secy. of State, 121 Ohio St., 73, 166 N. E., 903, viz.:

“ ‘Administrative interpretation of a given law, while not conclusive, is, if long continued, to be reckoned with most seriously and is not to be disregarded and set aside unless judicial construction makes it imperative so to do.’

“The Industrial Commission carried its rule along for ten years and must have construed it in the light of the existing law; hence we must accord to it the respect that it demands, and we do, but we cannot escape the rule announced in 1933 in the case of Norwegian Nitrogen Products Co. v. United States, 288 U. S., 294, 77 L. Ed., 796, 53 S. Ct., 350:

“ ‘Administrative practice does not avail to overcome a statute so plain in its commands as to leave nothing for construction.’ ”

In Adkins v. Stoker, 130 Ohio St., 198, 198 N. E., 575, it is stated in the syllabus:

“The chief purpose of Section 35, Article II of our state Constitution, is to levy compulsory contributions upon employers in order to establish a state fund for providing compensation to workmen or their dependents. Under the provisions of that section the Legislature has been invested with the power of ‘determining the terms and conditions upon which payment shall be made’ out of the fund.

“The disposition of a claimant’s compensation, or the fixing of fees payable out of the fund, is not the subject of private contract between a claimant and attorney. Both contributing employers and the state have an interest in the fund and in the terms and conditions upon which payment shall be made therefrom. ’ ’

Section 35, Article II of the Constitution of Ohio pro vides 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. * * *. Laws may be passed establishing a board which may be empowered to classify all occupations, according to their degree of hazard, to fix rates of contribution to such fund according to such classification, and to collect, administer and distribute such fund, and to determine all right of claimants thereto.”

•Section 1465-68, General Code, provides in part:

“Every employee mentioned in section 1465-61, who is injured, and the dependents of such as are killed in the course of employment, wheresoever such injury has occurred, provided the same was not purposely self-inflicted, on and after January 1st, 1914, shall be entitled to receive, either directly from his employer as provided in section 1465-69, or from the state insurance fund, such compensation for loss sustained on account of such injury or death, and such medical, nurse and hospital services and medicines, and such amount of funeral expenses in case of death as provided by sections 1465-79 to 1465-87 inclusive.

# * # # *

“The term ‘injury’, as used in this section and in the workmen’s compensation act shall include any injury received in the course of, and arising out of, the injured employee’s employment.”

Regardless of how long-standing the rule of the Industrial Commission may be, if it be in conflict with the Constitution or the statutes, it cannot prevail and extend compensation, if this be denied by such provisions of the Constitution or statutes. Therefore, if the death of the deceased was not due to “an injury received in the course of, and arising out of, the injured employee’s employment” no rule of the commission could make it so.

The question then presented is: Was the death of decedent due to an injury received in the course of his employment with the Crosley Corporation, and did such injury arise out of such employment?.

The Supreme Court has not had before it the exact situation here presented, although other courts in other states have found in favor of the claimant in somewhat similar circumstances. LeBar v. Ewald Bros. Dairy, 217 Minn., 16, 13 N. W. (2d), 729; Holst v. New York Stock Exchange, 252 App. Div., 233, 299 N. Y. Supp., 255; Fagen v. Albany Evening Union Co., 261 App. Div., 861, 24 N. Y. Supp. (2d), 779; Kenney v. Lord & Taylor, Inc., 254 N. Y., 532, 173 N. E., 853; Wilson v. General Motors Corporation, 272 App. Div., 845, 70 N. Y. Supp. (2d), 109; Kingsport Silk Mills v. Cox, 161 Tenn., 470, 33 S. W. (2d), 90; Linderman v. Cownie Furs, 234 Iowa, 708, 13 N. W. (2d), 677; Conklin v. Kansas City Public Service Co., 226 Mo. App., 309, 41 S. W. (2d), 608; Thomas v. Procter & Gamble Mfg. Co., 104 Kan., 432, 179 P., 372, 6 A. L. R., 1145.

In view of the facts previously recited herein, and the weight of authority involving similar and related situations, it seems that there is sufficient relationship in the activity of the deceased at the time of his death to his employment to justify the conclusion that the claimant is entitled to compensation under the Constitution and statutes, as well as the rule of the Industrial Commission. It seems also apparent that both employee and employer received considerations from this activity which was the direct outgrowth of a recreational program which was not only authorized by the corporation, but definitely sponsored by it, and the means of its accomplishment furnished at the expense of the corporation.

The judgment is affirmed.

Judgment affirmed.

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


text:
    Hugger, Appellant, v. City of Ironton et al., Appellees.
    (No. 765
    Decided August 12, 1947.)

      Messrs. Pratt <& Grotoe, for appellant.

      Mr. A. J. Layne and Mr. P. A. Ross, for appellees..
   Metcalf, J.

The city of Ironton, having a “city-manager plan” of government, by ordinance duly adopted, sold, executed and delivered to the United' States Department of Agriculture, Forestry Service,, an 8.4-acre tract of unimproved land for the nominal sum of $10. In addition to the consideration mentioned in the deed, it is claimed by the city, as shown by the record, that the purchaser is to furnish fire protection to a large area of forest land adjacent to and ■within the corporate limits of the city. And there is the further consideration that a building is to be erected on the premises sold of approximately the value or expenditure of $25,000.

The plaintiff in the instant case, by way of amended petition, alleges that the defendant, the city of Iron-ton, by such act, violated Section 3699, General Code, and its kindred sections. Section 3698, General Code, authorizes municipalities to sell or lease real property not needed'for any municipal purpose.

Section 3699, General Code, reads as follows:

“No contract for the sale or lease of real estate shall be made unless authorized by an ordinance, approved by the votes of two-thirds of all members elected to the council, and by the board or officer having ■supervision or management of such real estate. When ■such contract is so authorized, it shall be made in writing by the board or officer having such supervision ■or management and only with the highest bidder, after advertisement once a week for five consecutive weeks in a newspaper of general circulation within the corporation. Such board or officer may reject any or all bids and re-advertise until all such real estate is sold or leased.”

It is plaintiff’s contention that the deed executed in ■conformity with the action of council is null and void, and is a cloud on the title of the real estate, and he asks that the same be declared null and void and that certain defendants, the county auditor and county recorder, be enjoined from transferring and recording the deed of conveyance.

All the defendants answered, except the United States Department of Agriculture, Forestry Service, admitting all the pertinent facts alleged in the amended petition except the claim that the ordinance authorizing the execution and delivery of the deed was unauthorized by law. The city sets up its claim to a further consideration as hereinabove noted in addition to the nominal sum set forth in the deed and alleges further that the real estate is not needed for municipal purposes. Plaintiff’s reply to this answer denies all facts alleged that are not admissions of the allegations in the amended petition.

On the issués joined, trial was had and the Common Pleas Court found in favor of the defendants, and dismissed plaintiff’s petition, from which judgment plaintiff appeals to this court on questions of law and fact.

While it is not necessary to the disposition of the case before us, perhaps it is well to state that, prior to the sale out of which this action grew, the city of Ironton did by ordinance and by advertising offer the tract for sale as provided by Section 3699, General Code, hereinabove set out and that when the bids were opened it was found that the United States Department of Agriculture, Forestry Service, had bid the sum of $5 and that plaintiff herein had bid the sum of $1,500 for the tract of land in question and thereupon the city rejected both bids.

Both sides to this controversy rely upon Section 3 of Article XVIII of the Constitution of Ohio, adopted in 1912, and known as part of the home-rule amendment. That section of the constitution reads:

“Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”

Plaintiff urges that to permit the city of Ironton to sell and convey real estate without complying with Section 3699, General Code, supra, is in direct violation of the home-rule amendment hereinabove quoted in that the ordinance permitting the sale in the instant ■case is in conflict with general laws. The city on the other hand maintains that, since the adoption of the home-rule amendment, Ironton not being a charter city which has adopted the general laws of the state ;as a part of its charter, it has full power to exercise all powers of local self-government and that the sale of the real estate is in no way in conflict with the general 'laws of Ohio.

As was pointed out by the trial court in the instant ■ case and held in many cases, Section 3 of Article XVIII consists of two sentences, the first of which ■gives to municipalities all powers of local self-government without any qualifications or reservations. The second sentence authorizes municipalities to adopt ■and enforce within their limits such local police, sanitary and other similar regulations as are not in conflict with general laws. In other words, the qualification as to any regulation not being in conflict with general laws applies only to the adoption and enforcement of local police, sanitary and other similar regulations. It follows that the sale of real estate by a municipal corporation, not being the adoption or enforcement of any act connected with local police, sanitary ■and other similar regulations, is a proper exercise of the power of local self-government granted by the home-rule amendment of the Constitution of the state ■of Ohio. The fact that part of the consideration claimed 'by the city is the assistance of the forestry service in fire prevention does not bring the action of the city council within the regulation of local police power or >other regulations mentioned in the second sentence of Section 3, Article XVIII, supra. Prior to the adoption of this amendment it was imperative that a city in disposing of real property comply strictly with the General Code as announced in Sections 3698' and 3699, supra, and the prior enactments because it' was from the Legislature only that a city derived its power to sell real property. Since the adoption of the-amendment, however, a city which has not made the-provisions of the General Code a part of its basic-law, by way of charter or otherwise, is not compelled' to follow those sections of the General Code.

Plaintiff urges that the case of State, ex rel. Zielonka, v. Carrel, 103 Ohio St., 50, 132 N. E., 161, is decisive of the issue in this case because there the city of Cincinnati, a charter city, had followed Sections 3698 and' 3699, General Code, in disposing of certain real estate. An examination of that case shows that the only question before the court was as to the right of the city to-pay an auctioneer for crying the sale and the court held it did not have such right for the reason that a public-official was duly charged with that duty. The city of' Cincinnati followed the above sections of the General Code because its charter, in force and effect at that time, adopted the general and all local or special laws-enacted by the General Assembly of the state of Ohio, then in force relating to the organization of municipal' governments not otherwise in its charter provided.

The supplemental brief filed by counsel for plaintiff urges that the provision can have no force and effect because the power of municipalities as to local self-government stems directly from the Constitution and' is a continual flow of power and cannot be limited by the people of the city at one moment as against the-future actions of any council. The obvious answer to this is that if a city, having a charter that has adopted' the general and special laws of the state respecting--municipalities as a part of the basic law of the city, at some future time desires to exercise this continual flow ■of power from the Constitution, all the city has to do is to amend its charter in that respect. See Section 7, Article XVIII of the Ohio Constitution.

It is necessary to-keep in mind that the city of Iron-ton has a city manager form of government, a plan of government provided for in Section [3515-19], General Code. Since, as we have pointed out, the sale of the' property in question is in no way connected with local police, sanitary or other similar regulations and therefore not restricted by Section 3, Article XVIII of the ■Ohio Constitution as being in conflict with general laws, and since this sale is not prohibited or limited by Section 13, Article. XVIII of the Ohio Constitution, because it is in no way an attempt to levy taxes and incur debts for local purposes or an attempt to circumvent any of the other limitations therein contained, it then would seem to.confine our question solely to one as to whether the action taken by the council involves a local matter. It is true plaintiff urges that the result of the action will involve taxation, the contracting of debts etc., yet that possibility is not tenable. Any action of the city council might lead to the expenditure of money thereby depleting the treasury of the city which in turn might require the raising and expenditure of further taxes. But that is quite another thing than taxation, assessment, borrowing money or contracting debts.

As to the local aspect of the issues involved here, we call attention to the case of Fitzgerald v. City of Cleveland, 88 Ohio St., 338, 103 N. E., 512, Ann. Cas. 1915B, 106, a case decided less than one year (August 26, 1913) after the adoption of the home-rule amendment (September 3, 1912). The court in that case, with the proceedings and actions of the constitutional convention of 1912 still very much alive, discusses Section 3, Article XVIII in the light of the intent and purposes of the convention to bestow upon cities home-rule. There are many timely illustrations given throughout the 64 pages of the opinion of the court,, the concurring and dissenting opinions in that case. In discussing Section 3, Judge Wanamaker says on page 362 that “this is the cornerstone of home rule for Ohio cities.” He then proceeds to show the fallacy of in any way trying to claim that the first sentence of this section is limited in any degree, by the restriction-placed upon the second sentence by the phrase “conflict with general laws.” On page 365 appears this language:

“The first half relates wholly to municipal power. The last half relates wholly to state power. The first half is as unlimited as the second half is limited. The second half could not possibly relate to municipal power, because the first half is as comprehensive as a grant of power could be and therefore no addition could be made to it.

“If it be claimed that ‘not in conflict with general-laws’ as found in the second half modifies also the-first half, then it must follow that all municipalities are as absolutely under the control and domination of the state Legislature today as they were before the adoption of the home-rule amendment, because all general latos now on the statute boohs would be preserved, and future legislatures might proceed with municipal legislation at their pleasure. Home rule would be but an empty eggshell, a mere snare and ideality.” (Emphasis ours.)

It seems to this court that to hold it- is imperative for the defendants here to follow Sections 3698 and' 3699, General Code, which in substantially their pres•ent form were enacted long years before the constitutional convention of 1912, would be tantamount to annulling the home-rule amendment by saying that the Legislature still has direct control of municipalities in purely local matters.

We find on page 578 of the opinion in the case of State, ex rel. Arey, v. Sherrill, City Manager, 142 Ohio St., 574, 53 N. E. (2d), 501, the Supreme Court, speaking through Judge Bell, saying: “The word local as used in that provision of the Constitution (Section 3, Article XVIII) has a definite meaning. The phrase ‘all powers of local self-government’ as used therein, means the power of self-government in all matters of a purely local nature.” The court then proceeds to outline what in its opinion are not local matters. The ■Sherrill case, in the opinion of this court, is sufficient ■authority for holding that the sale in the instant case is a local matter with which only the city of Ironton is •concerned.

As to whether the city here acted arbitrarily and with abuse of discretion in selling the property in question for $10 when it could have obtained the sum of $1,500 therefor from plaintiff we call attention to the case of Green v. Thomas, 37 Ohio App., 489, 175 N. E., 226. That case grew out of the purchase by the state •of Ohio of the site or part thereof on which the new-state office building now stands in Columbus and there the court reviews the evidence and enumerates the 'benefits accruing to the city of Columbus as a part •or most of the consideration for the land conveyed.

While the Green v. Thomas case cannot be used as authority for not following Section 3699, General Code, by reason of there having been a special legislative act ■ providing for the acquisition of the site for the new •state office building yet it does shed a great deal of light on the intent and purpose of the transaction in the instant case and certainly is decisive as to whether the benefits accruing to the city of Ironton by the sale of the real estate in question are adequate in view of the higher offer in money by plaintiff. The first paragraph of the syllabus of that case reads:

“1. Transfer of site for office building by city of Columbus to state, in consideration of benefits derived by city, held neither ‘sale’ nor ‘donation’; hence statutes were inapplicable (Sections 3631, 3698 and 3699, Genera] Code; 113 Ohio Laws, 58, Section 3).”

The seventh paragraph of the syllabus reads:

“7. City of Columbus may transfer to state site for state office building for consideration other than money * *

The court, starting on page 497, discusses the adequacy of the consideration moving to the city of Columbus and quotes from the record as to the testimony ■offered on this phase. It seems to this court that, reasoning from the Green case, it can be readily seen that no other city in Ohio has any interest whatsoever in what the city of Ironton does with the land here in ■question and further that the benefits to be derived as taken from the testimony in the instant case are as peculiar to the city of Ironton as the improvement of the site for the state office building in Columbus was to that city and therefore there can be no conflict with the general laws of Ohio.

In 38 American Jurisprudence, 167, Section 487, we find this statement:

“The advantage which will inure to the municipality from a contemplated improvement may constitute a valuable consideration for a deed from the municipality to the state or the United States.”

In the case of Stanley v. Schwalby, 162 U. S., 255, 40 L. Ed., 960, 16 S. Ct., 754, the Supreme Court of the United States, at page 276, said:

“A valuable consideration may be other than the actual payment of money, and may consist of acts to be done after the conveyance. * * * The advantage enuring to 'the city of San Antonio from the establishment of the military headquarters there was clearly a valuable consideration for the deed of the city to the United States.”

There is a long line of other decisions to the same effect which substantiate the claim of the city of Iron-ton that the consideration of fire protection and the erection of the building on the property sold is far greater to the city and its inhabitants than the $1,500 offered by plaintiff.' Under such circumstances it cannot be said that the city acted arbitrarily or with abuse of discretion or with fraud or deceit or in any way evaded the public responsibility it owed its citizens in transferring the real property in question to the Department of Agriculture, Forestry Service.

The circumstances surrounding the transaction in the instant case illustrate the wisdom of granting to municipalities the right to exercise all powers of local self-government. In this day and age, when all cities and municipalities are more or less competing in obtaining for their inhabitants various industries, institutions and civic improvements, many times it becomes necessary to convey property not needed for municipal purposes in exchange for these various benefits. If the constitutional provision is to be ignored and cities are to be bound by the old statutory provisions of advertising and accepting the highest bid there will always be those willing and ready to pay more in cash than the city will be able to receive if the other benefits are to -be ignored. The free and untrampled growth of a municipality, both civic and industrially, demands that a city have wide freedom of choice in matters of this kind. This the makers of the Constitution of 1912 recognized when they granted to municipalities powers of local self-government.

It is the holding of this court that the city of I ronton under its form of government is authorized and empowered by virtue of Section 3, Article XVIII of the Constitution of the state of Ohio to dispose of the real property in question in the manner and by the procedure followed and that therefore the prayer of plaintiff’s amended petition will be denied, the same dismissed and judgment entered for defendants.

Judgment accordingly.

(tillen, P. J., and McCurdt, J., concur.


text:
    The Republic Mutual Ins. Co., Appellee, v. Faught et al., Appellants, et al.
    (No. 1100
    Decided January 14, 1948.)

      Messrs. Slabaugh, Guinfher, Jeter & Pflueger, for appellee.

      Messrs. Critchfield, Critchfield & Critchfield, for appellants William P. Faught and Theresa Faught.

      Messrs. Feighan, Feighan & Mann, for appellant Joseph Stockhausen.
   Doyle, P. J.

This action was brought for the purpose of having declared invalid a policy of insurance which insured one William P. Faught against liability for damages caused by accident arising out of the ownership or operation of an automobile, and losses to the owner thereof through theft, fire and collision. It also seeks a declaration by the court “that the said instrument * * # created no obligation or liability to defend any action, or actions, which have been or may be begun or maintained” by certain named persons.

It appears that William P. Faught, the named insured, is now a defendant in a personal injury action growing out of an automobile accident in which he, as the driver of the car in question, is charged with negligently injuring the driver of another car on the public highway.

In the written application for the insurance, Faught declared himself the owner of the ear, and the policy was later issued by the company on that basis. The uncontroverted fact is, however, that the car was then, and was continuously past and beyond the time of the accident, owned by his wife, Theresa Faught.

Pertinent provisions of the contract of insurance are in the following terms:

At the end of the “Declarations”:

“By acceptance of this policy the named insured agrees that the statements in the foregoing declarations are his statements and representations, which he warrants to be true, that this policy is issued in reliance upon the truth of such representations, and that this policy embodies all agreements existing between himself and the company or any of its agents relating to this insurance. ’ ’

Under “Damage By The Automobile”:

“10. Exclusions. — The company shall not be liable under coverages A, B and H:

( ( * * #

“(b) For any loss or accident which occurs after the named insured’s interest in the automobile has been transferred; or unless named insured’s interest in the automobile be unconditional' sole ownership unless such ownership or change shall appear in the policy. ’ ’

Under “Damage To The Automobile”:

“25. Exclusions. — It is a condition of this policy that the company shall not be liable under coverages C, D, E, F-l, F-2 and G for:

( i * # #

“(e) Loss or damage if the interest of the insured in the property be other than unconditional and sole ownership, or if the same be leased or encumbered in any manner, except as stated * *

Under “Conditions, Limitations and Agreements”:

“33. Waiver-or Change. — No notice to an agent, or knowledge possessed by an agent or by any other person shall be held to effect a waiver or change in any part of this policy, nor estop the company from asserting any right under the terms of this policy, nor shall the terms of this policy be waived or changed, except by endorsement issued to form a part hereof, signed by the president or secretary of the company.”

It is asserted by appellants that the agent who solicited the policy and secured the application for the same, had at all times knowledge of the fact that the ownership of the automobile was in the applicant’s wife, and that such knowledge was the knowledge of the company, which effected a waiver of the terms of the policy and estopped the company from asserting any rights thereunder.

The Court of Common Pleas of Wayne county found from the evidence there presented that the agent did not have such knowledge, and that under the policy there was neither a waiver of the provisions of the policy nor was the company estopped from asserting rights thereunder.

This court has examined the evidence before us,-in this appeal on questions of law and fact, and we find, as did the trial court, that the evidence satisfactorily favors the claim of the company'that the agent was without knowledge of the material fact in question when the application was made and the policy issued. We further determine that, under the express limitation on powers of agents to waive conditions in the policy, as set forth above, the sounder view, supported by excellent authority, upholds such limitation when applied to circumstances of the character presented here. See 3 Williston on Contracts (Rev. Ed.), Section 760.

Likewise, Ohio decisions tend to support this rule of contract law.

See Ohio Farmers’ Ins. Co. v. Titus, 82 Ohio St., 161, 92 N. E., 82; Michigan Automobile Ins. Co. v. Van Buskirk, 115 Ohio St., 598, 155 N. E., 186; Hartford Fire Ins. Co. v. Glass, 117 Ohio St., 145, 158 N. E., 93.

The prayer of the appellee’s petition for a declaratory judgment will be granted.

Decree accordingly.

Stevens and Hunsicker, JJ., concur.


author: Montgomery, J.

text:
    Ruff, Appellee, v. Spires et al., Appellants.
    (No. 252
    Decided April 28, 1948.)

      Mr. Kermit C. Sitterley and Mr. William G. Goul~ trap, for appellee.

      Mr. George L. Gugle and Mr. James A. Gorrell, for appellants.
   Montgomery, J.

The appeal to this court is on questions of law and fact, and the case was submitted upon a transcript of the evidence taken in the court below. A detailed recital of the facts will answer no useful purpose. They are, of course, known to the interested parties and counsel, and would be of no interest to anybody else. The issue is essentially a factual issue. A reading of the record leaves no doubt in the minds of the court as to the action that should be taken.

Until enjoined by the Court of Common Pleas, the defendants were operating over and through the land of the plaintiff without his approval or consent. They were professedly proceeding under the provisions of Section 6727, General Code, which is in the following language:

“A person injured by a drift of wood, sand, gravel or other substance produced casually or by growing weeds, willows, bushes of .any kind or any other obstruction in the channel or on the banks of a stream or watercourse upon the lands of another, after three days’ notice previously given in writing to the owner or occupant of such lands, if they be occupied and, if not occupied, without notice, may enter thereon, with such assistance as is necessary, and remove such obstruction. ’ ’

That section seems to us to need no construction. Its terms seem to be clear. Any intelligent man, whether he be lawyer, farmer, or operator of a power dragline, should understand the language of that section.

It has long been in force, obviously passed by the Legislature for a specific and limited purpose. It does authorize what would otherwise be an infringement or a trespass upon one man’s land for the benefit of another. It seems obvious to us that such a statute must be construed strictly, and that anyone proceeding to act under it cannot go beyond its express terms.

However, in the instant case a strict compliance with what is authorized by this statute is not what was sought by the defendants, at least, the defendant Miller, who is actively contesting this action. Called to the witness stand in the lower court for cross-examination, he testified, and we quote from the record:

££Q. You told the engineer, did you not, what you wanted done? A. Yes. It was in the notes that he had got.

Q. What did you tell him you wanted done? A. Wanted thirty eight feet at the top and eighteen feet at the bottom, five feet deep minimum.

££Q. You stated that to the engineer, you say? A. No, I didn’t know anything about the engineer, the engineer figured that out, I didn’t tell the engineer because I didn’t know until he figured it out.

££Q. The creek bed was to be cut back was it not, so there would be a minimum of 38 feet in width at the fop from one end to the other? A. Yes.

“Q. And eighteen feet in width at the bottom of the bed? A. Yes.

“Q. Furthermore that there was to be, it was to be five feet deep from the ground surface, minimum? A. Yes.

“Q. That would necessitate, would it not, cutting the banks back in certain places? A. It probably would, yes.

“Q. More in some places than in other? A. That is right.

“Q. You refer to this in the contract as drainage •ditch? A. Yes.

“Q. In fact, you were digging a drainage ditch here, were you not, so your farm would drain? A. That is xight. ’ ’

And the engineer who prepared those plans, on the ■strength of which the dredging contract was entered into, and under which the defendant Spires, in charge •of the dredging, worked, testified, as shown by the record:

“Q. Mr. Dumond, these specifications which you ■said were your specifications as set out in the contract between Alvin Miller and Hubert A. Spires Excavating Company, were not specifications to remove obstructions to the flow of water in Clearcreek itself, was 'it? A. No.

“Q. You were hired, were you not, to determine how much it was necessary to excavate Clearcreek and how far to excavate it in order to give fall, enough fall that you could have drainage of Muddy Prairie and for tile drainage of Muddy Prairie, isn’t that true? A. Originally my thought was just to drain Muddy Prairie and usually we aim generally to provide tile «drainage.

“Q. That was for Muddy Prairie, wasn’t it? A.. Yes.”

Such an operation is not to be justified under the-authority of Section 6727, General Code, above quoted.. We are not passing upon what other right, if any, defendant Miller might have to open up this watercourse-in controversy.

Two incidental questions may be touched upon in. passing:

1. We hold that the notice served upon Ruff was-adequate, because it does indicate what was required of him, and he admitted that it was handed to him by the defendant Miller. It did put him upon notice.

2. We hold that the plaintiff in this action has no-adequate remedy at law, and that he was justified in asking for an injunction. If the injunction had not been granted and the work had proceeded, it is difficult to understand how this land could have been restored to its original condition, or how the compensation for the injury done could be measured, and,, if it could not be measured, then it is difficult to see how adequate and proper compensation could be made.

There may be a decree for the plaintiff, enjoining the defendants, and each of them, from doing- anything upon the land of the plaintiff other than what is specifically provided for by Section 6727, General Code, hereinbefore quoted. Counsel for plaintiff may prepare an entry in accordance with this conclusion. Motion for new trial, if filed, will be overruled.

Decree for appellee.

Putnam, P. J., and McClintock, J., concur.


author: By the Court.

text:
    The State of Ohio, Appellee, v. Giles, Appellant.
    (No. 6991
    Decided July 9, 1948.)

      Mr. Carson Hoy and Mr. Harry S. Schwartz, for •appellee.

      Mrs. Ophelia Emden, for appellant.
   By the Court.

Defendant below appeals to this court from a conviction by a jury of the crime of sodomy.

The proof in the record is clear and convincing that substantial justice has been done in the conviction of the defendant of the crime charged.

Among many assigned errors, it is claimed that evidence of a rape committed by the defendant earlier on the same day, admitted by virtue of Section 13444-19, General Code, constituted prejudicial error.

It is true that during the trial the defendant’s counsel stipulated that defendant was present at the time and place charged, but he coupled that admission with the statement that there was a fight between defendant and the prosecuting witness. The plea of not guilty still stood and the cause of the struggle remained to be proved by the state. According to the state’s evidence, force was used to accomplish this sex crime. Evidence that accused used force on the same day to perpetrate another sex crime has some tendency to prove that was the motive for the use of force in this instance.

We hold the evidence admissible under the statute, as reasonably disclosing a purpose to use the force necessary to consummate a sex crime over the victim’s-objection and resistance, within the purview of the-holding of the Supreme Court in State v. Moore, 149 Ohio St., 226, 78 N. E. (2d), 365, and Barnett v. State, 104 Ohio St., 298, 135 N. E., 647, 27 A. L. R., 351.

Error is also specifically assigned to the following-of the court’s charge:

‘ ‘ If the state of Ohio, or the prosecution, has proved beyond a reasonable doubt that the defendant has committed other acts similar in nature to the one-charged in the presentment or indictment in this case,, you may consider them in any way in which they will-assist you in arriving at the truth or falsity of the-charge presented in the indictment.”

The above charge is erroneous, as being incomplete,, in failing to limit same to the purpose for which the-evidence was introduced. However, in view of the-clear and convincing proof in the record of the guilt of the defendant, we find that no prejudicial error occurred.

The affidavits used on the motion for a new trial were-not brought into the record by a bill of exceptions,, and, for that reason we could not in any event give them effect. We have found the affidavits among the-papers and have read them. As to the affidavit of the prosecuting witness, it is sufficient to say that she did' not change in any way the testimony she gave at the trial. As to the other affidavit, it does not constitute-a material contradiction of the testimony of the police officers. Furthermore, there is no showing that it was-newly discovered evidence.

We find no other error in the record prejudicial to-the defendant.

The judgment is affirmed.

Judgment affirmed.

Matthews, P. J., Ross and Hildebrant, JJ., concur..