text:
    Byrd, Appellee, v. Byrd, Appellant.
    (No. 626
    Decided September 23, 1945.)

      Mr. George W. Biclclle, for appellee.

      Mr. Leon McCarty, for appellant.
   Sherick, P. J.

This appeal is from an order made in a special proceeding in a divorce action. It presents several novel questions. The matter was considered upon a motion to make E. Stacey Richards a party, a motion asking that defendant-appellant be permitted to file a cross-petition, plaintiff-appellee’s motion to strike appellant’s motions from the files, a tendered cross-petition, and an agreed statement of facts, all of which disclose thé following situation to exist.

Plaintiff, Donna Byrd, now Donna Richards, secured a divorce from the defendant on January 25, 1928. Defendant was ordered to pay the sum of $20 per month, beginning December 17, 1931. That order was modified to $12 per month, beginning December 1, 1933. This sum has been paid each and every month up to June 1, 1944.

It is agreed that Desmond Richards, formerly Desmond Byrd, was adopted by Donna Richards and E. Stacey Richards on June 13, 1938; that this adoption was made with the approval of the Common Pleas Court of Richland county; that the adoption of Desmond Byrd was had in the Probate Court of Stark county, between March 24, 1938, and June 14th of the same year; and that between June 13, 1938, to June 1, 1944, defendant paid the sum of $858.

The final stipulation is that Donna Richards and E. Stacey Richards preserved their rights to object to the jurisdiction- of the court over the subject matter of the motion and proposed cross-petition and over their persons.

The motion for leave to file the cross-petition, which appears however as having been filed without leave of court, asks for a refund of the $858 support money paid to Donna and E. Stacey Richards for the support of Desmond Byrd Richards.

Defendant’s second motion proclaims the fact that Desmond Byrd Richards is the child of the plaintiff and defendant. The court’s final entry from which the appeal is taken recites that the court also considered a certified copy of the adoption proceedings in the Probate Court of Stark county. This exhibit states that Donna and E. Stacey Richards are husband and wife. It also discloses that when plaintiff and defendant were divorced in the Common Pleas Court of Richland county, the plaintiff was awarded the exclusive custody of their child, Desmond Byrd. Counsel for both parties agree that defendant was never notified of the adoption proceedings and bad no knowledge thereof until on or about June 1, 1944.

The trial court in its final order, overruled defendant’s motions and sustained that of the plaintiff, and dismissed defendant’s attempted proceedings. Defendant now claims that the court erred in so doing, and asserts that this court must answer five questions in order to establish his right to the relief which he seeks.

First: Has the divorce court continuing jurisdiction over support payments for the children of divorced couples? Second: Did the law in force when the adoption was had require tBht defendant be notified thereof? Third: Do adopting parents assume full responsibility for the child’s care and support? Fourth: Is the child’s natural father, who had no notice of the adoption proceedings, responsible for support of the child after adoption? Fifth: In good conscience, should not a court, that had approved the adoption and erroneously compelled the father to pay $858 after the adoption, require the receiving parent to refund the money?

Defendant concedes that if the law required that notice of the adoption proceedings be given him, then the adoption was void and he now has no standing in court. This question shall first engage our attention. Defendant hesitatingly takes the position that he was not entitled to notice. He relies upon the case of Martin v. Fisher, 25 Ohio App., 372, 158 N. E., 287. That case holds that “the custody of the minor having been awarded in the divorce proceedings to her mother, the consent of her father to her adoption was not necessary.” It was decided in 1927. Section 8025, subdivision (d), General Code, was then in'effect. The adoption of Desmond Byrd Richards occurred in 1938. The statute then applicable was Section 10512-11 (2) (d), General Code (114 Ohio Laws, 472), which provided :

* * * written consents must be given to such adoption * * * by each of the living parents * * *, except as follows: * * *

“By the parent awarded custody of child by divorce decree, provided the court which granted such decree approves of such consent and because of such approval the jurisdiction of such court over such child shall thereupon cease.”

It will be noted that those provisions in the sections were in exactly the same language. State, ex rel. Booth, v. Robinson, Judge, 120 Ohio St., 91, 165 N. E., 574, decided in 1929, definitely settled that notice to and consent of a father in such a case were not necessary or required. Therein it was held:

“Where in a proceeding for the adoption of a child of divorced parents the consent of the parent to whom the sole custody of such child had been awarded is duly given and the court which granted such decree approves the same as provided by Section 8025, General Code, the consent of the other parent is not required. ’ ’

It is observed that the provisions of Section 10512-11, General Code, have been amended. See Section 10512-14, General Code, which elided the exception contained in' subdivision (d) of the two older sections. The effective date of the new section is January 1,1944. Its terms are therefore not applicable to the present controversy. We hold that, under the then existing statute, notice to and consent by the appellant to the adoption were not necessary or required. The adoption proceeding was hot void but valid in all respects.

Did the divorce court, the trial court herein, have jurisdiction of the person and subject matter involved in defendant’s motion? We seriously doubt that it had jurisdiction over the person of E. Stacey Richards, the child’s stepfather and adopting parent. He was not in the picture when the divorce was entered or the order for support made. The order required that the support payments were to be made to the child’s mother. We believe that the trial court was correct in its refusal to make the stepfather a party to the present proceeding.

The question of the court’s jurisdiction over the subject matter and the plaintiff’s person is an entirely different matter. Just what wak the legislative intent in the last portion of subdivision (2) (d) of Section 10512-11, General Code, when this language was used: “* * * because of such approval the jurisdiction of such court over such child shall thereupon cease.” This question was ably solved by the Court of Appeals of the Eighth Appellate District in Kosen v. Kosen, 36 Ohio Law Abs., 156, 42 N. E. (2d), 778. It was there pointed out that children are not proper parties to divorce proceedings, and that support orders, though made for a child’s benefit, are made upon one party in favor of the other who is awarded the custdoy of the child. The child has no interest in the order or judgment. The Kosen case was an action by a divorced person, upon motion in the original case, after an adoption, to place accrued arrearage on support orders in a judgment in gross.

The words of subdivision (2) (d) of Section 10512-11, General Code, applied directly to jurisdiction concerning the child’s control after adoption. Adoption ended that particular jurisdiction. It went no further. It did not deprive the divorce court of its power to adjust matters growing out of its support orders between the parties to the action.

This is the rule adhered to in Corbett v. Corbett, 123 Ohio St., 76, 174 N. E., 10, the second paragraph of the syllabus, of which reads:

“The.proper practice in securing a modification of such decree with respect to the custody, care or support of such minors, is by motion filed in the original divorce action by the party seeking such modification.”

In the Kosen case, supra, the father failed to comply with the support orders and the mother was attempting to reduce the amounts due and unpaid to judgment. In the instant case the converse situation is involved. Here the father seeks to recover back that which he claims lie was under no legal obligation to pay.

Defendant’s third and fourth questions must be answered in his favor. 1 American Jurisprudence, 650, Section 51, states the generally accepted rule that “it is a general principle that a statutory proceeding of adoption, when legally conducted, terminates absolutely all legal relations between the minor and his natural parents.”

A provision of Section 10512-19, General Code (114 Ohio Laws, 474), then in force, recently re-enacted as a part of Section 10512-23, General Code, was that, with one exception, in case of adoption “the natural parents of the child, if living, shall be divested of all legal rights and obligations due from them, * * * and the adopting parent or parents of the child stall be invested with every legal right in respect to obedience and maintenance on the part of the child as if said child had been born to them in lawful wedlock.”

We think the statute clearly declares the state’s public policy to make adopting parents responsible for the care, maintenance and support of an adopted child, and to relieve the child’s natural parents of that responsibility.

It follows that when the trial judge’s predecessor in office approved the adoption, he, at the same time, ought to have discontinued his prior order for the child’s support. Defendant had no knowledge of the court’s action and the adoption proceeding in the Stark county Probate Court. He was lawfully entitled to some notice thereof, if not through court writs, at least by the plaintiff. She continued to receive these monthly payments when she knew or must be held to have known that she and her present husband were by law bound to support the child after adoption. The adoption deprived the father of any and all future rights which he might subsequently have possessed or exercised. Such being true,, good conscience required that he be discharged from all the obligations previously placed upon him as the natural parent.

This court takes the view that defendant made these support payments under a mistake of fact, or at the most, a mistake of mixed laiv and fact. The fact is that he had no knowledge of the adoption. The law countenances and affords relief generally in both instances. The mistake is .a unilateral one. Plaintiff had full knowledge thereof.

The general rule in such cases is well stated in 40 American Jurisprudence, 844, Section 187:

“It is a firmly established general rule that money paid to another under the influence of a mistake of fact, that is, on the mistaken supposition of the existence of a specific fact which would entitle the other to the money, which would not have been paid if it had been known to the payor that the fact was otherwise, may be recovered * * *. The ground on which the rule rests is that money paid through misapprehension of facts belongs, in equity and good conscience, to the person who paid it.”

We do not mean to be understood to hold that it is the duty of the trial court to order a repayment of the exact sum sought. However, it ought to exercise its discretion and so modify its prior order, upon an application for modification, no matter what the paper presented may he denominated, in order that justice may be done between the parties and such restitution made as will have the force and effect of a judgment upon which execution might issue.

It follows that the order appealed from is affirmed insofar as it refused to make E. Stacey Richards a party defendant. The judgment is otherwise reversed and the cause remanded for. further proceedings in accordance herewith.

Judgment accordingly.

Putnam and Montgomery, JJ., concur.


source: Caselaw Access Project

author: Doyle, J.

license: Public Domain

text:
    DeAlbert, Appellee, v. Novak et al., Appellants.
    (No. 1128
    Decided April 10, 1946.)

      Mr. William G. Wickens, for appellee.

      Mr. E. H. Davidson, for appellants.
   Doyle, J.

This is a suit in equity, appealed to this court on questions of law and fact. The motion to dismiss the appeal is overruled, on the ground that the action was pending prior to January 1, 1945, and as a result thereof the appellate procedure is not affected by the constitutional amendment effective as of that date. We entertain the action de novo.

The complainant is the owner of approximately thirteen acres of land in one of the rural farming parts of Lorain county. She there resides and keeps a few farm animals on the premises. She is employed in a manufacturing plant in a nearby village.

The defendants own and operate a farm of more than 100 acres, situated across a highway which divides the properties. The defendants reside upon this farm, and carry on general farming activities.

The petition asserts that the defendants maintain a nuisance on their property, in that in the operation of their farm they keep at certain times from 500 to 1,000 ducks, which congregate at night on a pond created by the damming of a small stream of water, and there, by “noise, cackling, hooting, quacking and disturbance,” deprive the complainant “of* the ordinary comforts of life,” deprive her “of the natural enjoyment of her property,” and disturb the “rest, sleep and repose of persons of ordinary sensibilities trying to sleep in her dwelling, and this plaintiff in particular.” It is prayed that the alleged nuisance be enjoined.

The evidence discloses that these ducks were of the usual barnyard breed and made the usual amount of noise, and that snch.noise could from time to time be heard in the complainant’s home about 400 feet away, and that it was disturbing to her and to some of her guests, who testified in her behalf. • The evidence also shows that the number of the ducks varied considerably • — from a comparatively few to some 600 — depending partly on the season, and that only the female ducks, which constituted about half of the various flocks, made any substantial amount of noise.

This is not an action for damages predicated upon nuisance, but is an action in equity for injunction; and the question for determination is whether there is anything in the nature of the case which renders it unreasonable, in view of the relative rights, interests and wishes of the parties, and the general welfare of the public, that defendants should continue upon their premises that part of the business in which they are now engaged, or whether, on the other hand, the resulting annoyance to the complainant must be regarded as one which is incident to the lawful enjoyment of property by another, and which, consequently, can form no basis for equitable legal redress. And in consideration of this question, it must be kept in view that the business-of the defendants is one which is lawful in itself and necessary to the public good, and a business which must be carried on by some persons in some locality .to help provide food and sustenance for the public at large. .See opinion of Cooley, J., in Gilbert v. Showerman, 23 Mich., 448.

Is it proper and right that this business be carried on in the locality where it now exists?

There is a distinction between equitable actions based upon nuisance in which property is alleged to be damaged or health seriously impaired, and actions brought in respect to acts producing purely personal discomfort. Under the latter circumstance, the person complaining of the annoyance must submit in the interest of the public generally to the discomfort usually incident to the circumstances of the place and the usual businesses carried on in the vicinity. See McIntosh v. Brimmer, 68 Cal. App., 770, 230 P., 203.

If this were not so, any annoyed resident could enjoin innumerable activities which we recognize as necessary for the public good. It seems that reason and a just regard to the rights and interest of the public, and to individual property owners, do not permit hard and fast rules to control the subject of nuisance. A controlling fact in the law of private nuisance is the degree of the nuisance in relation to the surrounding circumstances and the environment.

In a clear and powerful treatise on “Administrative Justice and the- Supremacy of Law in the United States,” Professor Dickinson, of Princeton University, writes, at page 135:

“Almost every legal concept or principle is found to be but the terminal of a scale which shades at its opposite extremity into another of exactly contrary tendency, and the line between the two oscillates from specific case to case according to the context. Thus the law of nuisance plays between the principle that every person is entitled to use his property for any purpose that he sees fit, and the opposing principle that every man is bound to use his property in such a manner as not to injure the property of his neighbor. ’ ’

It is apparent that the members of this court, in deciding this case, must look to the evidence and subordinate the opposite legal concepts to expediency and justice, and it is our judgment that the injunction should be denied because (1) the business of raising ducks is legitimate and necessary; (2) the noise therefrom is no more than is usual in such an enterprise, is unavoidable, and the question of sanitation is not involved; (3) a farm located in a farming district provides a fit locality for such business — Eller v. Koehler, 68 Ohio St., 51, at p. 57, 67 N. E., 89; (4) in the lawful use of property, how far an annoyance may be caused to other persons of ordinary health and sensitiveness becomes a question of degree; and (5) in the administration of the rules of equity, in appraising the relative rights of the parties the greater and more general interests of the community and of the individual must be regarded with greater force than those which are inferior and special.

Decree for appellants (defendants below). Plaintiff’s petition is ordered dismissed.

Decree for appellants.

Washburn, P^ J., and Stevens, J., concur.


author: By the Court.

text:
    Frederick, Admr., Appellant, v. Snider Building Co., Appellee.
    (No. 6650
    Decided May 20, 1946.)

      Mr. Fred W, Murphy and Mr. Jerome F. Luebbers, for appellant.

      Mr. Luden G. Strauss and Mr. Jack Glenn Williams, for appellee.
   By the Court.

The matter before the court is a motion to dismiss the appeal for the reason that the notice of appeal was not filed within the time allowed by law.

A trial by jury was had. Defendant’s motions for a directed verdict at the close of plaintiff’s evidence and again at the close of all the evidence were overruled. The jury was charged and deliberated, but, being unable to agree, was discharged on May 23, 1945. On May 25, 1945, defendant filed a motion for judgment. On October 24, 1945, such motion was sustained and judgment dismissing plaintiff’s petition was entered. On October 24, 1945, plaintiff filed a motion for new trial. On January 17, 1946, the new trial motion was overruled and judgment was entered. On January 18, 1946, notice of appeal on questions of law and fact, directed to the judgment of October 24, 1945, was filed.

The action being one for damages based on deceit, the appeal on questions of law and fact is reduced to one on questions of law and is retained and heard by the court on questions of law only.

Section 12223-7, General Code (118 Ohio Laws, 79), fixed the time of perfecting an appeal as twenty days after the “judgment” etc., and provided:

“Provided, that, when a motion for new trial is duly filed by either party within three days after the verdict or decision then the time of perfecting the appeal shall not begin to run until the entry of the order overruling or sustaining the motion for new trial.”

The sole question is: Was the motion for new trial duly filed?

As stated in State, ex rel. Longman, v. Welsh, 133 Ohio St., 244, at page 246, 13 N. E. (2d), 119:

“In deciding this question, the controlling consideration is whether a motion for a new trial was proper, authorized or effective in the circumstances.

“A new trial involves a reexamination of an issue of fact in the same court after trial. In the present case, on a demurrer which challenged merely the legal sufficiency of the pleadings, the Court of Appeals held that the petition presented, a situation wherein the action demanded of the Board of Education of Butler county and the State Director of Education could not bo accomplished under the law. There was no trial on any issue of fact which would make a motion for a new trial the necessary or proper procedure. Appellants’ application of October 19, 1937, amounted to nothing more than a request for a rehearing under Rule XI of the Rules of Practice of the Courts of Appeals of Ohio.”

Section 11420-8, G-eneral Code, provides:

“When the jury is discharged during a trial, or after a cause is submitted, it may at once - be tried again, or on a future day, as the court may direct. ’ ’

It, therefore, appears that plaintiff might have had a right to a new trial and a motion therefor was a proper one, hence, duly filed.

For the reasons set forth above, and on the authority of Cullen v. Schmit, 137 Ohio St., 479, 30 N. E. (2d), 994, the motion to dismiss will be overruled. See, also, Torto, Admx., v. New York Central Rd. Co., 68 Ohio App., 415, 41 N. E. (2d), 742.

Motion overruled.

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


author: Skeel, P. J.

text:
    Soukup, Appellant, v. The Republic Steel Corp., Appellee.

      (No. 20061
    Decided February 4, 1946.)
    Messrs. Friebolin <& Byers, for appellant.

      Messrs. Jones, Day, Gockley é Reavis, for appellee.
   Skeel, P. J.

The plaintiff, who was a part owner of a residence located at 4623 Barkwelh avenue in the city of Cleveland, brings this action against the defendant seeking damages for a nuisance which he claims was caused by the defendant in the operation of 75 coke ovens in the immediate vicinity of his residence.

The plaintiff purchased the property in June 1942, and since then has, together with his wife, occupied it as his place of residence. The property is located in a district zoned for residence purposes.

The part of Barkwell avenue upon which plaintiff’s property is situated, runs southwest from Broadway to the top of the bank where the Cuyahoga river valley begins and is the first street intersecting Broadway toward downtown Cleveland from the East 55th street intersection.

The Cuyahoga valley is zoned for heavy manufacturing and the zoning ordinance provides that among the businesses- that may be carried on in the district is the operation of coke ovens. Prom the foregoing it is clear that plaintiff’s residence, although it is in a residential zone, is in fact at the very edge of a part of the city which is devoted to industrial use.

The Defense Plant Corporation of America, early in 1943, acquired a number of the residence properties across the street from the plaintiff’s premises, beginning at the end of the street, and caused such residences to be demolished. It then cut away the ban]?: so that such properties became the slope of the bank running from the southeast side of Barkwell avenue down to the floor of the Cuyahoga river valley. The Defense Plant Corporation.of America, to increase the production of steel for war purposes, entered into a contract with the defendant, The Republic Steel Corporation, to construct 75 coke ovens located on the .floor of the valley, just beyond the bank above described, and upon their completion leased them to The Republic Steel Corporation to be operated in connection with the manufacture of iron and steel as a part of the war effort.

The coke ovens of modern design were constructed by The Hoppers Company of Pittsburgh, Pennsylvania, a company specializing in that kind of construction.

The plaintiff, by the first cause of action of his second amended petition, alleges that the defendant has been engaged in the manufacture of iron and steel products for a great many years and has, during that time, maintained and operated in the vicinity of plaintiff’s residence its Cleveland plant “at which the defendant makes coke, iron and steel, and engages in many related activities”; that on or about October 1943, the defendant, for the first time, “put into operation the new coke-oven installations above described; that in their operation the defendant wrongfully caused and permitted frequent violent explosions and caused and permitted the creation and discharge into the surrounding atmosphere of - noisome, noxious and poisonous fumes and gases, dense smoke and clouds- of dust, dirt and grime, steam and vapors, all creating a nuisance of such character as to endanger the health of persons living as close to such coke-oven installations as this plaintiff * * and that such conditions caused damage to his property and endangered the health of himself and his family.

In his second cause of action, the plaintiff alleges that in the operation of the coke-oven installations, as described in the first cause of action, the defendant is in violation of certain ordinances of the city of Cleveland, which provide in part as follows:

“Sec. 1715-5. No new plant or plants, or reconstruction of any existing plant or plants, for producing po^er and heat, or either of them, or any new or reconstructed chimney, connected with fuel burning equipment, shall be erected, installed or operated in the city until plans and specifications of same have been filed in duplicate in the office of, and approved by the smoke abatement engineer, except as hereinafter provided, and a permit issued for such erection," reconstruction or operation.

“Sec. 1715-5 (a). Detailed description and drawings of process furnaces, stills and other like fuel-burning apparatus, showing the purpose, design, dimensions, combustion space, amount and kind of fuel to be used, and all other details, shall be submitted to the subdivision of smoke abatement for approval.

“Sec. 1715-5 (b). Plans and specifications to be filed shall show the type of installation, size and capacity of such plant and all appurtenances belonging thereto, including all provisions made.for the purpose of securing complete combustion of the fuel to be used for the purpose of preventing smoke, fly ash, fumes and otherwise accomplishing the purpose of this ordinance. Said plans and specifications shall also contain a statement of the kind and amount of fuel proposed to be used.”

It is alleged further that the defendant failed to furnish to the city such plans and specifications before erecting the ovens, and that such operation is also in violation of Sections 1715-12 to 1715-14 (b), inclusive, of the ordinances of the city of Cleveland. Those se.ctions of the city ordinances are a part of the smoke abatement code of the city. Section 1715-12 provides:

“The emission of any smoke within the city of Cleveland, from the smoke stack on any steamboat, steam tug, steam roller, steam derrick, steam pile driver, tar kettle or any other similar machine or contrivance or from any open fire or from the smoke stack or chimney of any building, roundhouse, or premises, for any period or periods greater than shown in the table set forth in Sec. 1715-13 shall bé deemed a violation of this Code.”

Section 1715-13 defines the various kinds of plants and sets forth the Ringelmann Scale Classification.

Sections 1715-14, 1715-14 (a) and 1715-14 (b) are as follows:

“Sec. 1715-14. The emission of cinders and fly ash or other solids larger in size than 50 mesh in a concentration greater than four (4) pounds per 1000 pounds of dry flue gas, is declared to be a nuisance and shall, at the direction of the smoke abatement engineer, be abated.”

“Sec. 1715-14 (a). On all furnaces built subsequent to the enactment of this ordinance, there shall be installed such means as are in practical use in the industry in similar applications, to reduce to reasonable limits the emission of dust, cinders, fly ash or other solid particles.”

“Sec. 1715-14 (b). The emission from any premises of visible fumes, other than smoke, regardless of color or shade of a density equal to or greater than number one (1) of the Ringelmann Chart is hereby prohibited.”

The petition alleges further that the defendant’s operation of such coke-oven installations is in violation of Section 857-J of the municipal ordinances and that the defendant could, with the exercise of reasonable and proper care, provide “against the wrongful conditions herein complained of.”

The defendant’s answer admits the operation of the coke plant; alleges that it acted as the agent of the Defense Plant Corporation of America, which is an agency of the federal government, organized in furtherance of the war effort, in the construction of the coke ovens, blast furnaces and related equipment, that said property is owned by the Defense Plant Corporation of America and that the defendant is now operating the same under lease with the Defense Plant Corporation of America.

The defendant denies any wrongful conduct in the operation of the coke ovens and denies that plaintiff has suffered any inconvenience or damage because of such operation.

The defendant alleges that the plaintiff purchased his property with full knowledge that it was located on the very edge of the Cuyahoga river valley, which is occupied exclusively by steel mills, oil refineries, chemical works and companies engaged in other industrial pursuits which “cause smoke, dust and vapor to enter the air and with full knowledge that from time to time said area would be put to additional and enlarged industrial uses.”

The defendant alleges that the coke-oven installations are of modern design, and are in all respects of the kind commonly used in similar plants of modern and improved construction and that the ovens have been operated in a careful manner and in accordance with the commonly accepted and most improved methods known to the industry.

The defendant alleges further that under the zoning ordinances of the city of Cleveland the city is divided into six use districts, two of which are industrial; that the “second industrial district” specifically provides for the manufacture of coke and that the property where the Defense Plant Corporation erected the coke ovens here under consideration, is zoned within the second industrial district, as shown by the maps filed as a part of the zoning ordinances.

The defendant’s answer to the second cause of action denies that in the operation of the coke ovens defendant has violated any applicable ordinance of the city of Cleveland, or that it has failed to exercise ordinary care with regard to the rights of plaintiff.

Plaintiff, by reply, denies all the allegations in defendant’s answer to his second amended petition, except as to its admissions of the truth of plaintiff’s claim.

Upon trial, the court withdrew the plaintiff’s second cause of action from the consideration of the jury, and the jury, upon the issues joined in the first cause of action, found for defendant.

The plaintiff, appellant herein, in his assignment of errors claims:

1. That the verdict is contrary to the manifest weight of the evidence.

2. That the court erred in its general charge to the jury-

3. That the court erred in the admission of evidence offered by defendant and in rejecting evidence offered by the plaintiff.

4. That the court erred in withdrawing plaintiff’s second cause of action of his second amended petition from the consideration of the jury, and in holding that certain specific ordinances of the city of Cleveland hereinbefore referred to, did not apply to defendant’s business.

5. That the court erred in that 'part of its charge in which the jury was instructed that, in considering the reasonableness of defendant’s coke-oven operation under the circumstances they could consider the fact that the defendant was engaged in war work.

6. That the court erred in its instruction to the jury, on the subject of damages. '

We' will consider first the claimed errors in the court’s general charge.

The charge of the court reads in part as follows:

“In determining the question of what constitutes a nuisance^ you may start with the fundamental legal doctrine that everyone has a right to use his own property as he deems proper, but he must be careful to so. use it that he does' not injure the property of another, or injure another. This broad principle is subject to certain limitations, however, which I shall explain to you in the course of these instructions. These limitations upon and exceptions to the principle which I have just stated, have risen out of compromise necessary to the maintenance of our social life.

“The business of the defendant was a lawful-one and the operation of coke ovens are not a nuisance per se, that is, the business is not of itself a nuisance, but it may be that a lawful business may be so operated as to injure the rights of another, and if any one so uses his property to the injury of another, he is liable in damages to the person so wronged.

“However, it is the law that there must be an invasion of the rights of a person before he is entitled to redress, and this is true even if he has suffered damage. Thus, there is no liability on the part of defendant unless it is shown by a preponderance of the evidence that the invasion of the plaintiff’s right has been either intentional and unreasonable, or on the other hand, unintentional and negligent or reckless.

“If you find that the defendant was guilty of either of these courses of conduct, it is liable. There is no evidence of any malicious desire on the'part of the defendant to do harm for its' own sake, and therefore no intention to invade the plaintiff’s interest in that sense but it will be for you to say whether in any other sense there has been such an intentional invasion for if it be shown that the defendant has created or continued a condition causing a nuisance with knowledge that harm to the plaintiff’s interest is substantially certain to follow, such conduct is intentional and if there is no reasonable justification for such conduct the defendant would be liable.

“A nuisance may also be the result of conduct which is negligent. Negligence is defined as the failure to use such care as persons of ordinary prudence are accustomed to exercise under the same or similar circumstances. Thus, if you should find that defendant, while engaged in a perfectly proper activity, the making of coke, failed to take the precautions which a reasonably prudent man would have taken to prevent the emission of stench, smoke and other injurious substances, it would be guilty of negligence.

“If, on the other hand, you find from the evidence that the defendant operated the coke-ovens installations as a reasonably prudent man would have operated it, it would not be guilty of negligence. If you find there has been an invasion of plaintiff’s rights you should determine whether such invasion is reasonable or unreasonable. It is a rule of law that in order for an injured person to recover damages, the interferences with his rights must be unreasonable. Thus, if the defendant operated its coke oven installations in the usual and ordinary way by modern appliances, and without negligence on its part, there would be no liability providing the operation is not inherently obnoxious or dangerous. Thus, defendant was entitled to conduct its business, if it did so, within reasonable limits even at the expense of some harm to its neighbors. It conld operate its coke ovens and other equipment, even though they caused some smoke and dust and steam with consequent annoyance and discomfort, and damage to plaintiff, provided it kept within reasonable bounds, but if its conduct became unreasonable and the conditions which it created continued and were beyond the limits of reasonableness, then a nuisance exists and the defendant would he liable in such case. You, therefore, should determine from all of the evidence whether the conduct of the defendant was under all of the circumstances reasonable or unreasonable. If it is reasonable, there is no liability. If it was not reasonable, and there was an invasion of plaintiff’s rights, which I have already discussed with you, then there would be liability.

“There is no hard and fast rule which I can give you for your guidance in your determination of this matter for a thing which is reasonable under one set of facts, would be unreasonable under another. There are certain facts which you may take into consideration, however, in determining this point. You may consider the location of the alleged nuisance. The plant is located in what has been designated by council as a zone within which such a plant or installation is permitted. The plaintiff’s home is located in what has been zoned for residences.

“Zoning ordinances are ordinances passed by municipalities to protect the public health, safety and general welfare. You may assume that they were passed after due consideration of the character of the various municipal districts, the use to which they would be put, the conservation of property values. In other words, a plan designed generally as a plan for the orderly development of the municipality. The fact, however, that the plant is located within a permitted zone does not relieve the defendant of the obligation to operate its installations so as not to canse a nuisance. In addition to this, you should consider the evidence with reference to the general character of the district in which plaintiff’s home and defendant’s plant are located. You should keep in mind that nuisance is often a matter of degree and what would be considered a nuisance in one location would not be considered a nuisance in another. You may consider the manner in which the defendant operates the plant. Were the coke ovens and quenchers constructed, maintained and operated by modern up-to-date methods and machinery, or were the installations poorly constructed or improperly or carelessly operated?. This you should determine from all of the evidence.

“You may also give consideration to the extent and frequency of the injury if any. Did it occur frequently and for long periods of time, or were the visitations of which the plaintiff complains infrequent or of slight duration? You should, of course, consider the general effect of the injury, if you should find that there has been an injury upon the health, property and enjoyment of the plaintiff. Have these injuries been severe or slight, substantial or negligible, actual or fanciful?

“You may also quite properly consider the uses to which the plaintiff is putting his property. You may also quite properly consider the uses to which the defendant is putting its property and the necessity therefor.

“It has been said that life in organized society and especially in populous communities involves that inevitable clash of individual interests and. that each individual in a community must put up with a certain amount of inconvenience and interference and must take a certain amount of risk in order that all may get along together. If the air over Cuyahoga county had been maintained in its pure and natural state, then Cleveland would never have developed and become the great industrial center that it is. On the other hand, a man’s home is his most precious possession, no matter how humble. In those cases where the harm or damage is greater than one ought to be required to bear under the circumstances, the liability'is imposed upon the one who causes the injury and compensation may be awarded by way of damages.

“There has been something said in this case about the installations having been built and owned by the Defense Plant Corporation, which is an agency of the United States Government. This is an action, not against the government for the construction of the plant, but against the defendant for operating it in such a manner as to cause a nuisance. If, therefore, you find that the defendant was operating and maintaining the coke oven installations so as to create a nuisance, as I have defined that term to you, it would be liable even though the plant was built and owned by the Defense Plant Corporation and the defendant operated it by virtue of contract or lease. However, you have the right to consider in determining the reasonableness or unreasonableness of the defendant’s conduct and the question of the invasion of plaintiff’s rights, the fact that our country is at war and that the defendant is engaged in war pursuits.

“Is the injury, if any, of which plaintiff complains such as he must suffer as an incident to citizenship in a democracy, and must he find his compensation in the defense of his country through the efforts of the defendant and others, or is it possible for the defendant to successfully make its contribution to the war effort without invading the rights of plaintiff? This test, like many of the others which I have given you., is not conclusive but may be considered by you in reaching your conclusion of fact.

“In order for the plaintiff to prevail he must show that the injury which he suffered, if any, is real, material and substantial. He. is not entitled to damages if it is shown that the injury of which he complains is trivial, or unsubstantial. The law does not concern itself with petty nuisances and disturbances of every day life in an industrial community, but does safeguard the rights of all to enjoy the ordinary comfort of their home as understood by the civilized people in their present state of enlightenment. You should, therefore, determine from all of the evidence, if you find the rights of the plaintiff were invaded, whether such invasion was of a substantial nature. If it was, there is liability on the part of the defendant. If not, there is no liability.”

We have quoted at length from the charge so that the^full test of the rule, as it was presented to the jury, can be seen. The plaintiff’s contention seems to be that regardless of all other considerations the defendant has no legal right to use its property so as to inconvenience or cause harm to plaintiff in the use and enjoyment of his property, regardless of the circumstances under which such inconvenience was created. We do not understand that to be the correct rule. The plaintiff’s property, although in a zone reserved for residence purposes, is located at the very edge of the heart of the industrial district of Cleveland. His home overlooks a valley in which is located three large steel mills, oil refineries, chemical works and many other heavy industries. Their operation, when managed in the most scientific way, necessarily creates smoke, dust, dirt, grime and noise. Under, these circumstances the defendant, in the operation of its business, such business being in all respects lawful, is charged with the duty not to unreasonably Interfere with plaintiff’s enjoyment of his property under all the attending circumstances, that is, plaintiff should not be compelled to withstand any greater .annoyance or bear any greater burden than he should reasonably be required to bear under all the circumstances.

In the case of Eller v. Koehler, 68 Ohio St., 51, at page 57, 67 N. E., 89, the court says:

“All that can be required of men who engage in ‘lawful business is that they shall regard the fitness of locality. In the. residence sections of a city, business of no kind is desirable or welcome. On the other hand one who becomes a resident of a trading or manufacturing neighborhood, or who remains while in the march of events a residence district gradually becomes a trading or manufacturing neighborhood, should be held bound to submit to the ordinary annoyances, discomforts and injuries which are fairly incidental to the reasonable and general conduct of such business in his chosen neighborhood. The true rule would be that any discomfort or injury beyond this would be actionable * *

In 30 Ohio Jurisprudence, 388, 389, Section 114, the author, although dealing with the question of the right to enjoin a continuing nuisance, stated the general rule as to what factors are to be considered in determining what is or is not a nuisance, as follows:

“* * *. If, however, a person becomes a resident of a trading or manufacturing.neighborhood, or remains there while, in the march of events, such a district gradually becomes a trading or manufacturing neighborhood, he is bound to submit to the ordinary annoyanees, discomforts, and injuries which are merely incidental to the reasonable and general conduct of such business * *

In 46 Corpus Juris, 654, 655, 656, under the title “Principles Governing and Elements Constituting Actionable Nuisance ’ ’ the rule is stated as follows: ■

“Whether a nuisance exists is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances. For instance, the reasonableness of the use, the locality, the extent of the injury, the nature and effect of the. matters complained of are matters that may be considered. No particular fact is conclusive. All the attending circumstances must be taken into consideration. * * *. A fair test as to whether a business lawful in itself, or a particular use of property, constitutes a nuisance is the reasonableness or unreasonableness of conducting the business or making the use of the property complained of in the particular locality and in the manner and under the circumstances of the case, and ordinarily, where the use made of property or the conduct of a business is reasonable, no actionable nuisance is created as against which relief may be had. When it is established that a person is creating a nuisance, the mere fact that' he is doing what is reasonable from his point of view constitutes no defense. Whether the use is reasonable generally depends upon many and varied facts. No hard and fast rule controls the subject. A use that would be reasonable under one set of facts might be unreasonable under another. AVhat is reasonable is sometimes a question of law, and at other times, a question of fact. No one particular fact is conclusive, but the inference is to be drawn from all the facts proved whether the controlling fact exists that the use is unreasonable * * *’

The Supreme Court of Pennsylvania, in considering this question, said, in the case of Ebur v. Alloy Metal Wire Co., 304 Pa., 177, 155 A., 280

“* * * it ]jag been said that a ‘fair test as to whether a business lawful in itself, or a particular use of property, constitutes a nuisance, is the reasonableness or unreasonableness of conducting the business or making the use of tile property complained of in the particular locality and in the manner and under the circumstances of the case’: 46 C. J., 655. It has also been said: ‘whether the use is reasonable generally depends upon many and varied facts. No hard and fast rule controls the subject. A use that would be reasonable under one set of facts might be unreasonable under another. What is reasonable is sometimes a question of law, and at other times, a question of fact. No one particular fact is conclusive, but the inference is to be drawn from all the facts proved whether the controlling fact exists that the use is unreasonable’: 46 C. J., 656. No word is used more frequently in discussing cases of this kind than the word ‘reasonable,-’ and*ho word is less susceptible of exact definition. What is reasonable under one set of circumstances is unreasonable under another. Custom itself has much to do with determining' what is reasonable. Noises which in the pre-industrial era would have been considered intolerably unreasonable are now tolerated as' reasonable. The noise and smoke of railroad trains frequently passing human habitations is not now considered unreasonable, although an equal amount of noise and smoke would doubtless at an earlier time have been considered so. That a certain amount of smoke, fumes, gases and noises will necessarily be produced and emitted by manufacturing plants is inevitable, but that persons who dwell near such plants, like persons who dwell near railroads or on busy city streets, must 'put up with a certain amount of resulting- annoyance, and discomfort is self-evident. The prosperity of an industrial community depends on its industrial activities and it would be inconsistent with sound public policy to prohibit these activities at the behest of a comparatively few who are annoyed thereby.. Every form of industrial activity has its disagreeable factors. Industries, like individuals, have ‘the defects of their qualities.’ In mining and manufacturing communities, people must expect that their homes will be more difficult to keep clean than if they lived in an agricultural community. A certain amount of noise also is inseparable from industrial activity. The burdens of prosperity must be taken with its benefits.”

, The Supreme Court of Pennsylvania again approved this statement of the rule in Hannum v. Gruber, 346 Pa., 417, 31 A. (2d), 99, which was a bill in equity to enjoin the continuing of claimed nuisance (smoke, gases and noise) in the operation of a large dry cleaning establishment.

1 Wood on Nuisances (3d Ed., 1893), Section 6, at page 18 says:

“* * * People living in cities and large towns must submit to some inconvenience, to some annoyance, to some discomforts, to some injury and damage; must even yield a portion of their rights to the necessities of business, which, from the very nature of things, must often be carried on in populous localities and in compact communities, where facilities alone exist upon which it can be kept up and prosecuted.”

In 4 Restatement of the Law of Torts, 241, Chapter 40, Section 826, the rule is stated as follows:

“An intentional invasion of another’s interest in the use and enjoyment of land is unreasonable under the rule stated in Section 822, unless the utility of the actor’s conduct outweighs the gravity of the harm. ”

“Comment:

“a. Unreasonableness in general. * * *. Fundamentally, the unreasonableness of intentional invasions is a problem of relative values to be determined by the trier of fact in each case in the light of all the circumstances of that case * * *.

“b. The point of view. The unreasonableness of an intentional invasion is determined from an objective point of view. The question is not whether a reasonable person in the plaintiff’s or defendant’s position would regard the invasion as unreasonable, but whether reasonable persons generally, looking at the whole situation impartially and objectively, would consider it unreasonable. Regard must be had not only for the interests of the person harmed but also for the interests of the actor and for the interests of the community as a whole. Determining unreasonableness is essentially a weighing process, involving a comparative evaluation of conflicting interests in various situations according to objective legal standards.”

Section 822 to be found at page 226 of é Restatement of the Law of Torts, states:

“General Rule.

“The actor is liable in an action for damages for a non-trespassory invasion of another’s interest in the private use and enjoyment of land if:

“(a) the other has property rights and privileges in respect to the use or enjoyment interfered with; and

“(b) the invasion is substantial; and

“(c) the actor’s conduct is a legal cause of the invasion; and

“(d) the invasion is either (i) intentional and unreasonable; or (ii) unintentional and otherwise actionable under the rules governing liability for negligent, reckless or ultrahazardous conduct.”

And in explaining the terms “Gravity of harm vs. Utility” Sections 827 and 828 at pages 244 and 250 respectively, state:

“Section 827: Gravity of Harm — Factors Involved.

“In determining tlie gravity of the harm from an intentional invasion of another’s interest in the use and enjoyment of land, the following factors are to be considered:

“(a) the extent of the harm involved;

“(b) the character of the harm involved;

“(c) the social value which the law attaches to the type of use or enjoyment invaded;

“(cl) the suitability of the particular use or enjoyment invaded to the character of the locality;

“(e) the burden on the person harmed of avoiding the harm.”

“Section 828: Utility of Conduct — Factors Involved.

“In determining the utility of conduct which causes an intentional invasion of another’s interest in the use and enjoyment of land, the following factors are important :

“ (a) social value which the law attaches to the primary purpose of the conduct;

“(b) suitability of the conduct to the character of the locality;

“(c) impracticability of preventing or avoiding the invasion. ’ ’

And on page 254 under “Suitability to Character of Locality” we find:

“* * *. Consequently, the utility of conduct which causes an intentional invasion of another’s interest in the use and enjoyment of land depends not only upon the social value of its primary purpose but also upon its suitability to the character of the locality in which it is being carried on. The operation of mortuaries or insane hospitals has unquestionable social value, but the utility of a person’s conduct in operating them in a strictly residential locality is decidedly less than it is in operating them in a locality devoted to non-residential activities. The character of a locality depends upon the type of activity to which it is primarily devoted. * *

In the case of Gardner v. International Shoe Company, 386 Ill., 418, 54 N. E. (2d), 482, the court was called upon to consider an action for damages because of a claimed nuisance caused by the operation of a tannery in connection with the carrying on of the shoe business. The plaintiffs claimed that the defendant permitted certain gases, odors, fumes and other unwholesome, noisome, unclean and irritating vapors to escape into the air in the operation of its factory, thereby unlawfully, wrongfully and improperly interfering- with the wholesome enjoyment of their property. The court in rendering final judgment for the defendant, said in the third paragraph of the syllabus:

“Owners of dwellings in an industrial community are not entitled to recover damages because of odors coming from an industrial plant where hides are tanned and made into leather, or coming from the pool or settling basin operated as a part of the plant under modern methods, as the unlimited and" undisturbed enjoyment which one is entitled to have of his own property is qualified to the extent that trifling inconveniences resulting from the useful employment of property must- be submitted to when what is complained of arises from and is suitable to the locality and is reasonable under the circumstances.”

See, also, Jedneak et al. v. Minneapolis General Elec. Co., 212 Minn., 226, 4 N. W. (2d), 326 (Supreme Court of Minnesota, 1942); Rosaria Tortorella v. H. Traiser & Co., Inc., 284 Mass., 497, 188 N. E., 254, 90 A. L. R., 1203 (Massachusetts Supreme Judicial Court 1933); Taylor v. City of Cincinnati, 143 Ohio St., 426, 55 N. E. (2d), 724, 155 A. L. R., 44.

The plaintiff relies strongly on the case of Susquehanna Fertilizer Co. v. Malone; 73 Md., 268, 20 A., 900, 9 L. R. A., 737, 25 Am. St. Rep., 595 (1890). In the course of the opinion the court quotes with approval from an earlier English case as follows:

“As far back as Poynton v. Gill, 2 Rolle’s Abr., 140, an action, it was held, would lie, for melting lead so near the plaintiff’s house as to cause actual injury to his property, even though the business was a lawful one, and one needful to the public, ‘for the defendant, ’ say the court, ‘ oiight to carry on his business in waste places and great commons remote from inclosures, so that no damage may happen to the owner of adjoining property.’ And the doctrine thus laid down has been to this day the doctrine of every case in which a similar question has arisen.”

We have progressed considerably since the time when such a rule was applied to the industrial life of the community. The Superior Court of Maryland in Meadowbrook Swimming Club, Inc., v. Albert, 173 Md., 641, 197 A., 146 (1938), although citing with approval the foregoing authority, did modify it to some extent by holding in the third paragraph of the syllabus :

“It is not every inconvenience that will call forth the restraining power of a court as being a nuisance, but the injury must be such as to diminish materially the value of the property as a dwelling, and seriously interfere with the ordinary comfort and enjoyment thereof. ’ ’

By far the greater weight of authority supports the law of nuisance, as stated in the Restatement of the Law of Torts, supra, and the supporting authorities above referred to. We conclude that the general charge of the court was in complete accord with the law of nuisance as thus stated upon the issues as made up by the plaintiff’s first cause of action, and the defendant’s answer.

The plaintiff complains also of the court’s charge with regard to defendant’s part in the war effort as a circumstance to be considered in the reasonableness or unreasonableness of its use of its property, and the extent to which such activity would require the plaintiff as a citizen to accept inconvenience. Such instruction' was entirely in accord with the great weight of authority. War creates a national emergency. The great need for the materials of war overshadows every other consideration. The very life of the nation depends upon it and every hour that could be saved meant the saving of the lives of our fighting men . and brought us closer to victory. Of what value would plaintiff’s property be without victory? It is also true that in time of war the ability to manufacture goods is far ihore difficult.

The shortage of competent help and good materials is an ever-occurring obstacle and many substitutes must be used. We find no prejudicial error as to this part of the court’s charge or the ruling of the court on the introduction of the evidence upon this subject.

The plaintiff alleges that the court erred in its instruction to the jury on the question of damages. Upon this question it told the jury that the measure of damages would be such sum as would compensate bim for all damages suffered from the beginning of the operation of the coke ovens to the date of the filing of plaintiff’s petition and that in considering the question the rule to be applied was the difference between the value of the use of the property prior to the defendant’s use of its coke ovens and the value of its use after the ovens were in operation.

It would seem that such a question is now purely academic since the jury in a general verdict found' for the defendant. The question of what measure of damages was to be applied to the case in the event of a verdict for plaintiff is not of any importance and the giving of an incorrect rule would not prejudice plaintiff’s rights.

The plaintiff complains further that the court committed prejudicial error in withdrawing from the consideration of the jury plaintiff’s second cause of action. The first group of ordinances referred to in the plaintiff’s second cause of action had to do with the necessity of the defendant securing a building permit after submitting its plans and specifications to the city for approval. The sections involved are 1715-5,1715-5 (a), and 1715-5 (b), supra. The failure to get a permit could not, under any circumstances, be a proximate cause of any injury suffered by plaintiff in the operation of defendant’s coke ovens.

In this connection it must be remembered that the defendant constructed the coke ovens as an agent of the Defense Plant Corporation of America, created by the federal government in furtherance of the war effort. Certainly no municipal ordinance could be invoked to limit the power of the federal government to erect whatever it deemed necessary on its own property to meet the emergency of war.

Section 857J of the municipal ordinances of Cleveland provides:

“No persons, firm or corporation owning or haring the possession, charge . or management of any building, premises or vehicle shall suffer or permit any coal dust, ashes, dust, or offensive odor to escape or be blown therefrom.

“No person, firm or corporation owning, or having the possession, control, charge or management of any forge, coal yard, brick yard, shop, factory, or other place of business shall suffer, or permit any coal dust, ashes, cinders, or refuse to accumulate on the premises, or in the appurtenances thereof, except in a receptacle or receptacles so constructed and placed that no part of the contents thereof may escape or be blown from the premises.”

The terms of this ordinance are in direct conflict with Sections 1715-12 to 1715-14 (b) inclusive, supra, and thus it is repealed by implication.

The court found that there was no evidence to support plaintiff’s contention that the operation of defendant’s coke ovens violated the provisions of Sections 1715-12 to 1715-14 (b) or that such sections were applicable to the defendant’s operation of the coke ovens. In this we find the court was right and there was, therefore, no error in withdrawing plaintiff’s second cause of action of his second amended petition from the consideration of the jury. -

The plaintiff claims also that the court was in error in receiving the evidence of one of defendant’s experts and the charts he had produced from tests made of dust and gases in the air, in the neighborhood of defendant’s coke oven operations.

It is admitted by defendant that the witness did not collect all of the supporting data from which he drew his conclusions, but that such information was, for the most part, gathered by others and such persons were not called to testify or subject themselves to. cross-examination, as to the manner or means by which they collected the data submitted to the expert.

The complete answer to plaintiff’s objection is to be found in the statutes. Sections 12102-17, 12102-18, and 12102-19, General Code, which became effective September 6, 1939, provide:

‘ ‘ Sec. 12102-17. A written report or finding of facts prepared by an expert not being a party to the canse, nor an employee of a party, except for the purpose of making such report or finding, nor financially interested in the result of the controversy, and containing the conclusions resulting wholly or partly from written information furnished by the cooperation of several persons acting for a common purpose, shall, in so far as the same niay be relevant, be admissible when testified to by the person, or one of the persons, making such report or finding without calling as witnesses the persons furnishing the information,. and without producing the books or other writings on which the report or finding is based, if, in the opinion of the court, no substantial injustice will be done the opposite party.”

“Sec. 12102-18. Any person who has furnished information on which such a report or finding is based may be cross-examined by the adverse party, but the fact that his testimony is not obtainable shall not render the report or finding inadmissible, unless the trial court finds that substantial injustice would be done to the adverse party by its admission.”

“Sec. 12102-19. Such report or finding shall not be admissible unless the party offering it shall'have given notice to the adverse party a reasonable time before trial of his intention to offer it, together with a copy of the report or finding, or so much thereof as may relate to the controversy, and shall also have afforded him a reasonable opportunity to inspect and copy any records or other documents in the offering party’s possession or control, on which the report or finding was based, and also the names of all persons furnishing facts upon which the report or finding was based.”

No objections have been interposed because of the failure to give notice. The requirement of notice was thereby waived.

And, finally, we find that the plaintiff’s claim that the verdict is against the manifest weight of the evidence is not well taken.

For the foregoing reasons, the judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

Lieghley and Morgan, JJ., concur.


text:
    The Youghiogheny & Ohio Coal Co., Appellee, v. Industrial Commission of Ohio et al., Appellants.
    (Nos. 3831 and 3833
    Decided September 10, 1945.)

      Messrs. Hale é Kincaid, for appellee.

      Mr. Hugh 8. Jenkins, attorney general, Mr. C. G. L. Yearick and Mr. Albertus B. Cornt, for appellant Industrial Commission.

      Mr. John M. Collins, for appellant G-raziano Zanolla.
   By the Court.

Identical motions were filed by plaintiff, appellee herein, for orders dismissing the appeals for want of jurisdiction of the subject matter. It also filed a supplemental motion to strike the bill of exceptions and brief of defendant Industrial Commission, an appellant herein, from the files. The procedural steps and their chronology are as follows:

The action instituted by plaintiff was for a .declaratory judgment interpreting Section 1465-86, General Code, a ten-year statute of limitation relative to modifications of workmen’s compensation awards, and to give it application to the facts appearing. On January 8, 1944, the trial judge- after hearing rendered a written decision and filed it with the clerk of the Common Pleas Court. Copies of same were mailed to counsel. The decision set out the conclusion of the trial judge as to the interpretation of the section of the Code involved and held that such section had the effect of precluding the commission from making any award to the plaintiff. The decision concluded by a finding and the notation, “judgment accordingly. ’ ’

On January 10, 1944, the Industrial Commission filed its motion for a new trial and on January 11, 1944, defendant Zanolla, an appellant herein, filed his motion for a new trial.

On April 4, 1945, the trial judge, in a written decision, overruled the motions for new trial, which decision was filed with the clerk of courts and copies of same sent to counsel.

On April 21, 1945, a judgment entry was filed in the cause in which it is recited’:

“Evidence having been introduced and the cause submitted for decision. The court having heretofore made and caused to be filed in this court and cause its written findings of fact and conclusions of law, and this cause now coining on for hearing on the motion of defendants for new trial, the court being fully advised in the premises overrules the same.

“Now, therefore, by reason of the conclusions of law and findings of facts aforesaid, and the overruling of defendant’s motion for a new trial, it is ordered, adjudged, decreed, determined and declared, that General Code Section 1465-86 deprives the Industrial Commission of Ohio of jurisdiction in this cause that said commission has no legal authority to proceed in the taking of testimony of witnesses for a rehearing record, as set forth under its order of May 2,1942.” There is a further judgment for the plaintiff for its costs against the defendants.’

On May 3, 1945, defendant Zanolla filed his notice of appeal on questions of law and fact “from a judgment rendered by the Court of Common Pleas in the above entitled cause on the 4th day of April, 1945.”

On May 10, 1945, defendant commission filed its notice of appeal on questions of law “from a judgment rendered by the Court of Common Pleas in the above-entitled cause on the 21st day of April, 1945.”

It is the claim of the plaintiff that the judgment, which gives rise to the right to file a notice of appeal and from the date of which the time within which the right to file the notice of appeal begins, is the written decision of January 8, 1944; that, there being no dispute of facts, no motions for new trial were proper or duly filed under Section 12223-7, General Code; that in any view of the proceedings the notice of defendant Zanolla was not within the statutory period because it recites that the appeal is from a judgment rendered on April 4, 1945; and that the notice was not within time, even if there was a judgment entered on April 4, 1945.

Without discussing all the questions presented and considered in the briefs, we hold that the motion to dismiss the appeal of defendant Zanolla should be overruled upon the condition hereinafter stated.

In Mosey v. Hiestand, Trustee, 138 Ohio St., 249, 34 N. E. (2d), 210, each notice of appeal was directed to a final order. One notice of appeal recited that the final order appealed from was rendered on February 9, 1940. The judgment was actually entered on January 3, 1940. Notwithstanding the fact that the notice was directed specifically to a judgment of February 9th, the Supreme Court held that permission should be granted to amend the notice by correcting it to show the true date of the rendition of the judgment. So, here, the notice of appeal was filed within time after the judgment and after the overruling of the motion for new trial. In re Estate of Wuichet, 66 Ohio App., 429, 34 N. E. (2d), 804. If desired, Zanolla may amend his notice of appeal accordingly and if done, the motion will be overruled. If the amendment is not made, then the motion will be sustained.

The motion to dismiss the appeal of the Industrial Commission must be overruled because the premise of plaintiff that the judgment in the case was entered on January 8, 1944, is incorrect and because the only judgment entered in the cause is that of April 21,1945, and the motion for new trial was overruled as of the same date and the notice of appeal was filed within 20 days thereafter. In re Estate of Wuichet, supra.

Plaintiff does not give full force and effect to the judgment entry of April 21, 1945, in treating it as a judgment for costs only. It is the declaratory judgment from which the appeals were properly prosecuted. That entry also recites that the cause was determined upon the hearing of evidence and that there were separate findings of fact and law. There was also filed in these cases a bill of exceptions. Motions for new trial in both cases were therefore proper.and were duly filed because filed within time. In re Estate of Lowry, 140 Ohio St., 223, 42 N. E. (2d), 987; State, ex rel. Merion, v. Van Sickle, 42 Ohio Law Abs., 33, 59 N. E. (2d), 383; Anderson v. Local Union No. 413, 29 Ohio Law Abs., 364.

It follows from what we have said that the motion to strike the bill of exceptions will also be overruled.

Motions overruled.

IIornbeck, P. J., Geiger and Miller, JJ., concur.


author: Matthews, J.

text:
    Martin, Appellant, v. Ridge Motor Sales, Inc., Appellee.
    (No. 6634
    Decided March 18, 1946.)

      Mr. Harry Falk, for appellant.

      Mr. Charles J. Armstrong, for appellee.
   Matthews, J.

This is an action in replevin to recover a 1935. Chrysler sedan automobile. It originated in the Municipal Court of Cincinnati, which rendered judgment for the plaintiff. On appeal to the Common Pleas Court, the judgment was reversed and the cause remanded. The ground of reversal was that “the plaintiff-appellee did not produce a certificate of title showing ownership of the motor vehicle in question in this cause, and, therefore, failed to sustain the burden of proof.” The appeal to this court is from the judgment of reversal.

This controversy arose out of an attempt by the plaintiff to exchange his automobile for another owned by defendant. In pursuance of that attempt, he delivered his Chrysler automobile and his certificate of title therefor to the defendant. The Municipal Court found — and there was substantial evidence to support the finding — as follows:

“The secretary of the defendant company had the plaintiff sign in blank the assignment on plaintiff’s certificate of title to the plaintiff’s 1935 Chrysler sedan automobile, and also had the plaintiff sign in blank an order for a 1936 Buick.

“That the defendant informed the plaintiff that in the event the 1936 Buick automobile- was unsatisfactory to the plaintiff that the plaintiff could return same and that there would be no sale.

“That the defendant refused to allow plaintiff to test the 1936 Buick telling him to return the following day.

“That the following day plaintiff took the 1936 Buick and that it was unsatisfactory and was returned by plaintiff and accepted by defendant.

“That about a week or two later the plaintiff was allowed to try a 1938 Oldsmobile, which was unsatisfactory and was returned by plaintiff and received by defendant.

“That the plaintiff’s 1935 Chrysler automobile is unlawfully detained by the defendant and that the plaintiff has the title thereto.

“That there was no consideration for a sale and that the plaintiff is entitled to immediate possession of his 1935 Chrysler automobile.”

As its conclusions of law, the Municipal Court found that the plaintiff was the owner of the Chrysler automobile and entitled to its immediate possession.

It appears from the evidence that before the transaction had been completed by acceptance of another automobile by the plaintiff, the defendant, using the plaintiff’s certificate of title and his assignment thereon in blank, had a new certificate of title issued to it. That was the reason the plaintiff could not produce a certificate of title at the trial.

The question is whether under such circumstances the inability of the plaintiff to produce a certificate of title precluded him from recovering his automobile in this action in replevin. We think not.

A case having many features in common with this case is that of Automobile Finance Co. v. Munday, 137 Ohio St., 504, 30 N. E. (2d), 1002, in which the court reviewed 'at considerable length and construed the Certificate of Title Act, Section 6290-2 et seq., General Code, and after doing so, found in favor of Usinger, a defendant there, notwithstanding he had no certificate of title. After quoting the provision of Section 6290-4, General Code, that no person shall acquire any right, title, claim, or interest in or to a motor vehicle until he shall have had issued to him a certificate of title, and that no waiver or estoppel should operate in favor of any such person “ against a person having possession of such certificate of title * * * for a valuable consideration, ’ ’ the court, at page 521, said:

“There is a further reason why appellant had no right to roly on the certificate of title, even if it had been issued properly. Under Section 6290-4, General Code, unless the holder of the certificate of title paid a valuable consideration therefor, waiver and/or estoppel may still operate in favor of .a person acquiring a motor vehicle from the owner thereof. Under the facts of this case, appellant is estopped from setting up its chattel mortgage against appellee IJsinger.”

And, at page 522:

“Although IJsinger’s right of property may be defective by reason of his lack of possession of a certificate of title, the evidence clearly establishes that he had the right of possession. Replevin will not lie against one who has the right of possession at the time of the commencement of the suit.”

Referring back to the findings of the Municipal Court and the evidence, we find that the plaintiff had the certificate of title to this Chrysler automobile, which certificate he delivered to the defendant with his signature to a blank assignment endorsed thereon for the purpose of effecting a transfer of title to the defendant in the event and only in the event that the parties agreed upon its exchange for another automobile. It was further agreed that in the event the automobile tendered by defendant was not satisfactory to the plaintiff “there would be no sale.” Notwithstanding this provision and before the plaintiff had accepted the automobile tendered by defendant, and while negotiations were still in progress, the defendant, using the blank assignment had the clerk of courts issue to it a new certificate of title and later accepted the return of its automobile, but refused to return the Chrysler to the plaintiff.

These findings of fact show that the defendant had no .authority to use the blank assignment while the exchange of the automobiles was still pending; that there was no consideration paid for the title defendant acquired by the unauthorized surrender of the plaintiff’s certificate of title; and that as between defendant and the plaintiff, the plaintiff has title and right to immediate possession of the automobile.

For these reasons, the judgment of the Court of Common Pleas is reversed and that of the Municipal Court of Cincinnati affirmed.

Judgment reversed.

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


author: Wiseman, J.

text:
    Eby, Appellant, v. Ulrich, Appellee.
    (No. 1862
    Decided April 10, 1946.)

      Mr. D. H. Wysong, for appellant.

      Mr. Frank List, Jr., and Messrs. Murr S Miixr, for appellee.
   Wiseman, J.

This is an appeal on questions of law from the judgment of the Common Pleas Court of Montgomery county.

The action was one for damages founded on the alleged negligence of the defendant in constructing a ditch which the plaintiff claimed drained the. water from the defendant’s land and caused it to flow onto the plaintiff’s land, to the plaintiff’s damage.

During the trial of the case the members of the jury were taken to view the premises, in charge of the bailiff under proper instructions of the court.

The jury returned a verdict for the defendant. A motion for new trial was overruled, which motion was grounded on misconduct of the defendant, his wife, the defendant’s attorneys and members of the jury. Plain-, tiff has assigned as error, that in overruling the motion for new trial the trial court committed prejudicial error.

The plaintiff contends that the defendant was guilty of misconduct at the time the jury was taken to view the premises, in that the defendant conversed with certain members of the jury relative to. a dead bird which he held in his hands. The record does not disclose that the defendant conversed with any members of the jury at any time in regard to the case. The court took testimony on the motion for new trial relative to the question of misconduct. The plaintiff’s son testified that he heard the defendant say, “Now you can observe all the rocks that were washed out.” However, the record does not disclose that this statement was made in the presence of the members of the jury, but that the statement was directed to the defendant’s attorneys, who at that time were not close enough to the members of the jury for them to hear the statement. The bailiff testified that the instructions of the court, that no one should speak to the members of the jury on any subject connected with the case, were not violated.

Plaintiff further contends that after the premises were viewed, the women members of the jury, at the suggestion of someone in the group, were permitted to use the toilet in the residence of the defendant, at which time they came in contact with the defendant’s wife. One of the women jurors testified that she was the last person to leave the residence and as she was leaving the defendant’s wife asked her whether she wanted a drink of water. It is the contention of the plaintiff that the minds of the jurors were prejudiced against the plaintiff by this casual meeting with the defendant’s wife.

Section 11420-2, General Code, which gives the court authority 'to order a view of the premises, provides in.part as follows:

“While the jurors are thus absent, no person, other than the persons so appointed, shall speak to them on any subject connected with the trial.”

The record in this case does not show any conduct on the part of the defendant, defendant’s wife, defendant’s attorneys or any members of the jury which would be in violation of the provisions of this section of the Code. The conversations which took place between the defendant and the members of the jury, and the defendant’s wife and women members of the jury were on subjects wholly unrelated to the case and there is nothing in the record to indicate that the minds of the jurors were influenced by such conversations. The authorities cited by counsel for the plaintiff have no application to the facts in this case.

This court having determined that there was no misconduct shown, the trial court did not commit error in overruling the motion for new trial. The judgment is affirmed.

Judgment affirmed.

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


text:
    The State of Ohio, Appellant, v. Ahlbrandt, Appellee.
    (No. 6672
    Decided May 20, 1946.)

      Mr. John D. Ellis, director of law, and Mr. Robert J. Paul, for appellant.

      Messrs. Ragland, Dixon & Murphy, for appellee.
   By the Court.

This case is before this court on motion to dismiss the appeal of the state from a judgment of the Court of Common Pleas reversing a conviction on a charge of drunken driving, originating in the Municipal Court of Cincinnati.

It is admitted the notice of appeal was filed twenty-two days after the judgment of the Court of Common Pleas, and it is claimed that by virtue of Section 12223-7, G-eneral Code, the notice of appeal was not filed within time and this court has no jurisdiction to hear the ease.

The sole question for decision here is whether the above section of the Code governs the time of filing the notice of appeal.

The above section occurs in the General Code in Title V, “Procedure on Appeal,” and is a part of the Appellate Procedure Act, which took the place of Titles V and VI of the former Code of Civil Procedure, and is, therefore, confined in its application to civil cases.

Appeals in criminal cases are governed by a separate chapter of the General Code in Title II, “Criminal Procedure,” Chapter 38, “Appeals.”

The motion to dismiss is, therefore, overruled.

Motion overruled.

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


author: Miller, J.

text:
    Fisher, Appellant, v. Fisher, Appellee.
    (No. 1869
    Decided December 13, 1945.)

      Messrs. Sheridan & McCarthy, for appellant.

      Mr. Julius Herchig, for appellee.
   Miller, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Montgomery county, Ohio. The action was one for divorce, custody of a minor child and an equitable distribution of money and property acquired by the parties during their married life. Upon hearing thereof the court granted a divorce to the plaintiff, appellant herein, by reason of the extreme cruelty of the defendant, appellee herein, and the court awarded the custody of the minor child to the plaintiff.

The error assigned is that the trial court failed to grant the plaintiff a fair and equitable part of the defendant’s property, the decree in that respect being contrary to law and contrary to the weight of the evidence.

The record discloses that the parties herein were married for approximately five years; that during coverture the wife and husband both worked, she earning from $30 to $35 per week and he from $40 to $70 per week. The earnings of the two parties were pooled, household furnishings were purchased as well as a home, which cost $4,000. At the time of the marriage the defendant had $1,000 cash and approximately $900 secured by notes which were subsequently paid. The home was placed'in the names- of both of the parties, and the mortgage, originally for $2,000, has now been reduced to $190, which makes the home practically clear.

On the morning of the separation, without any notice, the plaintiff moved out of the home, taking with her a portion of the furnishings, the exact amount of which is in dispute.

The record discloses also that some of the savings were concealed in the home, amounting to from $500 to $800, and each accused the other of taking this money. The defendant admitted having in his possession at the time of the separation $40 in cash and $200 in government bonds and a Chevrolet automobile which was valued at anywhere from $250 to $350.

In its entry the court found in part as follows:

“That the plaintiff and the defendant are joint owners of the household goods and furnishings and that the defendant has in his possession the sum of $240 in cash * * * and that the defendant is the owner of one Chevrolet automobile of the value of $250, and that the said parties are the joint owners of the following described real estate; * * *. It is therefore ordered and adjudged by this court that the said parties retain their separate interest in said real estate and that the defendant herein is awarded the household goods and furnishings, automobile, all moneys in bank in the safe deposit box, and that said defendant pay to the plaintiff the sum of $350 in lieu of all interest which she may have in said household goods and furnishings, moneys in banlc and automobile.” (Emphasis ours.) ,

This entry appears to us to be convincing that the court awarded no alimony to plaintiff although there was such a characterization in the judgment entry. Obviously, the only purpose of the part of the entry which we have italicized was to restore to the plaintiff in money her share of the articles described. Having done this, the court awarded her nothing further which further award would have been alimony to which she was entitled under Section 11990, General Code, which, insofar as pertinent, provides:

“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 * * V’ (Emphasis ours.)

It is our conclusion that this express admonition and requirement of the section was not observed, although the $350 awarded in the judgment entry is called “alimony.” The court could well have made the property division which is carried in the entry if the decree had been granted to the husband for the wife’s aggression, because- such division was nothing more or less than an equitable division of the property. Alimony begins when the court requires the payment to be made to a party from the aggressor’s property, money or earnings.

In Coffman, Admr., v. Finney, Admr., 65 Ohio St., 61, 61 N. E., 155, 55 L. R. A., 794, the court said:

“Upon the declaration of divorce by the common pleas for the aggressions of the defendant the law vested the right in the plaintiff to an allowance as alimony from the defendant’s real and personal property. This right was an absolute one. ‘Shall be allowed’ is the imperative language of the statute. To the court was left simply the fixing of the amount; it must be such as the court should deem reasonable.”

In the case of DeWitt v. DeWitt, 67 Ohio St., 340, 66 N. E., 136, it was stated:

“It is to be noted that here are certain important mandatory provisions. * * * She shall be allowed alimony out of her husband’s real and personal property, and, if she survives her husband, she shall be entitled to her right of dower in his real estate not allowed as alimony and to which she has not released her right. While the court is granted much latitude as to the amount of alimony to be allowed, it may not disregard these mandatory provisions * *

In Lape v. Lape, 99 Ohio St., 143, 124 N. E., 51, 6 A. L. R., 187, the court said:

“Permanent alimony, it is true, is purely a creature of statutory creation, but it has been defined as late as the eighty-third Ohio State Report, at page 101, in the case of Fickel et al. v. Granger, as being ‘an award by the court upon considerations of equity and public policy and * * * founded upon the obligation, which grows out of the marriage relation, that the husband must support his wife, which obligation continues after legal separation without her fault.’ ”

Since all the decree in the instant case does is to put the parties in statu quo as to their respective ownership in real estate and personal property and makes no award whatever to the wife as alimony which should have been a share of the husband’s money, real estate and personal earnings, the judgment is reversed and the court is ordered to proceed further and grant an award of alimony which is reasonable and in conformity with the requirements of the G-eneral Code of Ohio.

Judgment reversed.

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