text:
    City of Springfield, Appellee, v. Krichbaum, Appellant. City of Springfield, Appellee, v. Scheetz, Appellant.

      (Nos. 477 and 478
    Decided November 9, 1950.)

      Mr. Robert C. Acton, city solicitor, for appellee.

      Mr. Abe Garner, for appellants.
   Per Curiam.

These two appeals on questions of law are from judgments of the Municipal Court of Spring-field.

The facts being similar and the legal questions involved being- identical, the court will use terms in the singular.

The plaintiff-appellee, the city of Springfield, instituted two separate actions against the two defendant-appellants, Oscar Krichbaum and Joseph H. Scheetz, to collect income tax due from them under ordinance No. 4741 of the city of Springfield.

Defendant filed a general demurrer to plaintiff’s petition. The demurrer was overruled and the defendant electing not to plead further, final judgment was rendered against him for the amount prayed for, together with costs.

Defendant in his brief contends that he is a resident of the city of Springfield but is employed outside the municipality, and, therefore, he objects to the ordinance requiring- him to pay a tax on wages earned outside the municipality. Since the pleadings do not state where the wages were earned, this question is not properly raised.

Defendant contends that the ordinance is discriminatory and therefore invalid in that it does not levy a tax on income from intangible property and on income of common carriers and insurance companies. The power to levy a tax on intangibles (Sections 5638 and 5638-1, General Code), on insurance companies (Section 5414-10, General Code), and on common carriers (Section 614-94, General Code) has been pre-empted by tbe state. Section 2, Article XII of the Ohio Constitution, has no application to the issues raised herein. State, ex rel. Taylor, Pros. Atty., v. Guilbert, Aud., 70 Ohio St., 229, 71 N. E., 636.

Defendant contends that the ordinance is discriminatory in that it provides that corporations having a principal place of business in Springfield are exempt on that portion of the income earned outside the municipality, whereas individuals who reside in the city of Springfield and who earn wages outside the municipality are taxed on such wages; and that the ordinance is discriminatory in that it imposes a tax on the wage earner’s gross income, whereas only the net profit of associations and business concerns is taxed. We do not find the classification to be unreasonable, arbitrary, artificial or evasive. On the other hand we find a real and substantial distinction in the nature of the class or classes upon which the ordinance operates. City of Xenia v. Schmidt, 101 Ohio St., 437, 130 N. E., 24; State Board of Tax Commissioners v. Jackson, 283 U. S., 527, 51 S. Ct., 540, 75 L. Ed., 1248, 73 A. L. R., 1464; 8 Ohio Jurisprudence, 635, Section 493.

In City of Xenia v. Schmidt, supra, the court held, as stated in the syllabus:

“1. A legislative act is presumed in law to be within the constitutional power of the body making it, whether that body be a municipal or a state legislative body.

2. That presumption of validity of such legislative enactment cannot be overcome unless it appear that there is a clear conflict between the legislation in question and some particular provision or provisions of the Constitution.

“3. Legislation, in order to be definite and certain, must either expressly, or by clear implication, classify the persons, things, conditions and the like, upon which the law shall operate.

“4. Classification is an inherent right and power in legislation, limited only by the Constitution and the judicial constructions thereunder.

“5. A classification must not be arbitrary, artificial, or evasive, but there must be a real and substantial distinction in the nature of the class or classes upon which the law operates.

“6. In respect to such distinctions, the legislative body has a wide discretion, and the legislation" involving classification will not therefore be held invalid unless the classification attempted is clearly and obviously unreasonable to the point of discriminating against members of the same class, so as to deny them the equal protection of the laws.”

We find no conflict between the provisions of the ordinance and constitutional provisions applicable thereto.

That the city of Springfield has the power to levy and collect an income tax was decided in Angell v. City of Toledo, 153 Ohio St., 179, 91 N. E. (2d), 250. Although several legal questions raised herein were not raised in the Toledo case, we are of the opinion that the decision in that case is sufficiently dispositive of the issues raised herein to require an affirmance of the judgment.

Judgments affirmed.

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


source: Caselaw Access Project

author: Phillips, P. J.

license: Public Domain

text:
    City of Youngstown, Appellee, v. Sheets, Appellant.
    (No. 3356
    Decided April 5, 1950.)

      Mr. I. Freeman and Mr. E. J. Fugett, for appellee.

      Mr. Clyde E. Dyson, for appellant.
   Phillips, P. J.

Defendant in the Municipal Court of Youngstown, called defendant here, was arrested for, charged with, pleaded not guilty to, tried for, and convicted by a jury of operating an automobile within the corporate limits of plaintiff city while under the influence of intoxicating liquor.

The trial judge subsequently duly entered judgment upon the verdict of guilty, imposed a fine of $100 and costs of trial upon defendant, suspended his license to operate his automobile for one year, and sentenced him to be imprisoned in the Mahoning county jail for thirty days.

Defendant appealed to this court on questions of law from the judgment of the trial court.

For his sole assigned ground of error; defendant contends that the trial judge erred to defendant’s prejudice in overruling his motion made before' a jury was selected, witnesses sworn, and evidence introduced, ‘ ‘ to challenge the entire array of the’ jjmy for the reason that it was not drawn according todhe rules •of the court and in a proper manner” in that all the-jurors were residents of the “first and fifth wards ’' of the city of Youngstown, which violated the- provisions ■of rule 24 of the Municipal Court of the city of Youngstown, which provides:

“On the first day of October, 1931, said commissioners shall meet, at the office of the clerk at 9¡:00¡ a. m. and shall there select such number of judicious- and ■discreet persons not less than two hundred (!2Q0’)> having the qualifications of electors of the city ©f Youngstown, Ohio, as the judges may direct, to- be- selected! as nearly as ma} be from the several wards in proportion to their respective population. When it shall become necessary thereafter, the commissioners shall meet at such time and place as the presiding judge may select, and shall there select such additional number of persons as the court, by its order entered on the Journal, may direct.”

The- right of challenge to the array was conferred upon defendant by Section 11419-5©, General Code, which provides:

“A challenge to the array may be made and the whole array set aside by the court, when the jury, grand or petit, was not selected, drawn or summoned, or when the officer who executed the venire did not proceed as prescribed by law. But no challenge to the array shall be made or the whole array set aside by the court, by reason of the misnomer of a juror or jurors; but on challenge, a juror or jurors may be set aside by reason of a misnomer in his or their names; but such challenge shall only be made before the jury is impaneled and sworn, and no indictment shall be ^quashed or verdict set aside for any snch irregularity •or misnomer if the jurors who formed the same possessed the requisite qualifications to act as jurors.”

•The names of 27 prospective jurors, the only names in the jury wheel at the time they were drawn, all of whom resided in the first, second, fourth and fifth wards of plaintiff city, were drawn from the jury wheel. Five resided within one block of one of those wards, and names of residents of the first ward predominated.

In response to the question, “that is the list of the jurors that were called for this case?,” one of the jury commissioners testified:

“Well now I will explain this here to you very completely. I think when we pull a jury we pull a juror by wards and precincts — and we take one name of the Republicans and one of the Democrats, and we jump ten names and we have never yet at any time taken over twenty-five names I believe, from any particular ward. Now that is the way that is done right there.”

While jurors who were residents of only four wards of plaintiff city were empanelled and sworn, there is no evidence that the names of jurors were not placed in the jury wheel in accordance with law and the provisions of rule 24 of the Municipal Court of Youngstown; or that there was any fraud in the drawing of their names from the jury wheel.

We find nothing in the evidence to indicate that the jury commissioners failed to discharge the mandatory duty imposed upon them by Section 11419-50, General Code, in the selection of names of prospective jurors; nor do we find evidence of any irregularity in the selection of the panel from which the jury to try defendant was drawn; or that any of the jurors did not possess the requisite qualifications of a juror; or that the defendant was prevented from having a fair and impartial trial; or that any substantia] right of defendant in any way sustaining his right to a challenge to the array was affected; or that defendnt was prejudiced in any manner or otherwise deprived of a fair and impartial trial by jury. Neither do we find any facts to bring the case we review within the decision of Armstrong v. Cleveland Ry. Co., 31 O. D. (N. P.), 500, 18 O. L. R., 538.

. In the Armstrong ease, upon which defendant relies heavily to secure a reversal of the judgment of the •trial court, it was said, inter alia:

“The provisions of Section 11423, General Code [which is now 11419-50], prescribing the duties of jury .commissioners in the selection of names of jurors, is mandatory. Hence, a challenge to the array lies to a jury, the names of which were selected substantially from one or two precincts instead of from the several precincts of the county.”

That case is distinguished from the case we review by the fact that in the Armstrong case names of prospective jurors were not selected from a list containing names of the residents of the several wards of the city of Cleveland, as required by statute.

The judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

Nichols and Griffith, JJ., concur.


author: Stevens, P. J.

text:
    Gleitz, III, a Minor, Appellant, v. Gleitz, Sr., et al., Appellees.
    (No. 21944
    Decided February 5, 1951.)

      Mr. Hyman J. Blum, for appellant.

      Messrs. Miller & HornbecJc, for appellees.
   Stevens, P. J.

In the trial court an action for damages was brought by a minor (three years old), through his mother and next friend, against his paternal grandparents, to recover for the loss of “love, affection, society, guidance and companionship” of his father, who, it was alleged, was willfully and maliciously induced by the defendants to break up plaintiff’s home and family.

A demurrer to the plaintiff’s amended petition was interposed by the defendants, on the ground that the amended petition failed to state a cause of action against the defendants.

Upon consideration thereof, the trial court sustained the demurrer; and, the plaintiff not desiring to plead further, the action was dismissed and judgment was entered for the defendants for their costs.

This appeal on questions of law ensued.

The question presented is: May a child, acting through its mother as next friend, maintain an action against third persons for wrongfully and maliciously disrupting the family circle, thereby depriving it of the affection, companionship, guidance and care of its father?

Concededly no such action was known to the common law, and there is in Ohio no statutory authority for the maintenance of such an action.

It is urged by the appellant, however, that, upon the principle “there shall be no wrong without a remedy therefor, ’ ’ plaintiff should have been permitted to present his case to a jury, and that if the law, either statutory or common, affords no remedy to plaintiff, then the courts should create such a remedy.

Much has been said and written concerning “judicial empiricism,” or the right of courts to legislate.' However, the members of this court are of the opinion that the right to create new legal rights and remedies is by the supreme law of our state vested in the legislative bodies, and not in the courts; and we do not feel constrained to encroach upon the prerogatives of the legislative branch of the government.

We recognize that there are divergent lines of authority upon the question under consideration. However, we think the weight of authority and reason requires adherence by us to the rule announced in Nelson v. Richwagen, 326 Mass., —, 95 N. E. (2d), 545.

We hold that if a right such as is here asserted is to be created in Ohio, the Legislature and not the courts must create it.

Judgment affirmed.

Hunsicker and Doyle, JJ., concur.

Judges of the Ninth Appellate District sitting by designation in the Eighth Appellate District.


author: McNamee, J.

text:
    Minning, Appellee, v. Prudential Ins. Co. of America, Appellant.
    (No. 7220
    Decided July 13, 1950.)

      Mr. Robert G. McIntosh, for appellee.

      Messrs. Marble & Vordenberg, for appellant.
   McNamee, J.

In this appeal on questions of law, defendant seeks reversal of a judgment of the Court of Common Pleas of Hamilton County in the sum of $1,000, in favor of the plaintiff, as the alleged beneficiary of a policy of insurance upon the life of his minor son, Wilbur G. Minning.

.Five grounds of error are assigned, but a determination whether the judgment is contrary to law will be dispositive of this appeal. From the agreed statement of facts we learn that in July 1939, upon the application of the plaintiff, the defendant company issued two policies of insurance upon the lives of the plaintiff’s minor sons, namely, Adrian O. Minning,. Jr., and Wilbur G. Minning. Each policy was in the face amount of $500, and provided that upon receipt of proof that the death of the insured occurred as a result, directly and independently of all other causes, of bodily injuries effected solely through external and violent means, the company would pay an additional sum equal to the face amount of each policy.

Plaintiff, Adrian C. Minning, Sr., was designated as beneficiary of each policy. Each of the policies reserved to the respective insured (the sons) the right to change the beneficiary and each policy provided further that upon receipt of written application by the respective insured, accompanied by a surrender of the policy, the company would pay to the insured the cash surrender value of the policy. The premiums on the policies were paid or provided by plaintiff until September 1946, at which time after paying the premiums to July 1947, he notified the insurance company- and his two sons that he would not thereafter pay any premiums. About this time plaintiff separated from his wife and family and on October 29, 1946, his wife, who was the mother of the respective insured, filed suit for divorce. Some time later, a decree of divorce was granted to plaintiff’s wife who was awarded custody of the minor children. The court in the divorce decree ordered plaintiff to surrender to his wife “the insurance policies carried on their minor children.” At the time of the divorce decree, Adrian O. Minning, Jr., was 19 years of age and'Wilbur G. Minning was 18 years of age.

On January 14, 1947, the respective insured, Adrian C. Minning, Jr., and Wilbur G. Minning, each made application to the defendant company for the cash surrender value of the policies. On January 28, 1947, the defendant company issued its check for $65.76 in payment of the cash surrender value of the policy on the life of Adrian C. Minning, Jr. This check was payable to the order of Adrian C. Minning, Jr., and Adrian O. Minning, Sr., and was delivered to the son. The check was endorsed by both payees and cashed by the insured, Adrian O. Minning, Jr., and in due course was paid by defendant.

On January 29, 1947, defendant issued its check in the sum of $64.72 in payment of the cash surrender value of the policy on the life of Wilbur G. Minning. This check was made payable to the order of the insured and his father Adrian O. Minning, Sr. It was delivered to the insured, Wilbur G. Minning, who alone endorsed and cashed it. The check was paid by defendant. About two months thereafter, on March 27, 1947, both Adrian C. Minning, Jr., and Wilbur G. Minning met death by drowning.

Plaintiff thereafter demanded payment of the insurance as beneficiary of the policies. This demand was refused by defendant on the ground that the policies had been surrendered and cancelled and were not in force at the time of the death of the respective insured. Thereupon, plaintiff, as the alleged beneficiary of both policies, instituted suit thereon praying judgment in the sum of $2,000. A jury was waived and the cause submitted to the trial judge who entered judgment for defendant on the policy that had been surrendered by Adrian C. Minning, Jr. No appeal from that judgment was taken by the plaintiff.

On plaintiff’s claim in respect of the policy issued upon the life of Wilbur G. Minning, the trial court rendered judgment in plaintiff’s favor in the sum of $1,000, for the apparent reason that the check issued in payment of the cash surrender value of the policy was not endorsed by plaintiff. It is from this judgment that defendant appeals.

Although the record is silent as to the reasons that impelled the trial court to hold for the defendant on one policy and for plaintiff on the other, it is fairly to be inferred that the trial judge was of the opinion that plaintiff had a vested interest in the policies and that the same could not be surrendered and cancelled without his consent. Presumably the trial court found evidence of such consent in the endorsement by plaintiff of the check issued in payment of the cash surrender value of the one policy, and a lack of such consent in the absence of plaintiff’s endorsement on the other check.

It is urged by plaintiff in support of the trial court’s judgment in his favor that he had a vested interest in the policy issued upon the life of his son, Wilbur G. Minning, and that the attempt of the latter to cancel the policy without plaintiff’s consent was ineffective. We cannot concur in this view.

The policy was a contract between the defendant company and the insured, Wilbur G. Minning. By its express terms there was reserved to the insured the right to change the beneficiary. It is the settled law of this state that where a policy of life insurance reserves to the insured the privilege of changing the beneficiary, no vested right is acquired by a designated beneficiary prior to the death of the insured. Oetting, Gdn., v. Sparks, 109 Ohio St., 94, 143 N. E., 184; Baxter v. Old National City Bank, 46 Ohio App., 533, 189 N. E., 514.

The first paragraph of the syllabus of Katz v. Ohio National Bank, Exr., 127 Ohio St., 531, 191 N. E., 782, reads:

“A life insurance policy, which reserves to the insured the privilege of changing the beneficiary therein, gives the named beneficiary only an expectancy during the life of the insured, which does not become a vested right until the insured’s death.”

See, also, Atkinson v. Metropolitan Life Ins. Co., 114 Ohio St., 109, 150 N. E., 748.

Also, by the terms of the policy, the insured possessed the right to surrender the same and obtain the cash surrender value thereof. The exercise of this right was not conditioned upon the consent or acquiescence of the plaintiff, or upon any other condition except compliance by the insured with the procedural requirements of a written application and a surrender of the policy. Except for these requirements, the right of the insured to obtain the cash surrender value was absolute. The right under a life insurance policy to surrender the policy and receive its cash surrender value is an option to the insured to accept a continuing-offer on the part of the insurer and, when exercised, fixes the rights of the parties without further action on the part of the insurer. Gram v. Mutual Life Ins. Co. of New York, 86 N. Y. Supp. (2d), 372; Pacific States Life Ins. Co. v. Bryce, 67 F. (2d), 710, 91 A. L. R., 1446; Northwestern Mutual Life Ins. Co. v. Joseph (Ky.), 103 S. W., 317; U. S. v. Garland, 122 F. (2d), 118, 136 A. L. R., 918.

In Lipman v. Equitable Life Assurance Society, 58 F. (2d), 15, 18, the court said:

“Since the insured had the option to surrender her policy and take the cash surrender value on October 10th, there can be no question but that the rights of the parties became fixed and insured became entitled to the cash surrender value, and nothing more, when she exercised the option. It was not necessary that defendant do anything. There was a meeting of the minds of the parties when insured accepted the continuing offer of the company evidenced by the opinion. Pequot Mfg. Co. v. Equitable Life Assurance Society. 253 N. Y., 116, 170 N. E., 514; McCormick v. Travelers’ Ins. Co., 215 Mo. App., 258; Ingram Johnson v. Century Ins. Co., 1909. Ct. of Sessions cases, 5th Series, Scotland, p. 1032.”

Although Wilbur G. Minning was but 18 years of age, no question is or can be raised successfully that he was incompetent by reason of his minority to enter into a binding contract for the surrender of the policy.

Section 9392-1, General Code, provides that minors of the age of 15 years and over shall not, by reason of their minority, be incompetent to contract for insurance on their lives, “or for the surrender of such insurance, or to give a valid discharge for any benefit accruing, or for money payable under the contract, or to contract for the páyment of a policy loan.”

It is apparent that in applying for the policy in 1939, plaintiff was acting for and on behalf of his sons. In procuring the insurance and paying the premiums thereon from July 1939 to September 1946, plaintiff was undoubtedly motivated by a natural parental concern for his sons’ welfare. Plaintiff recognized that he had no vested interest in the policy by reason of his status as a revocable beneficiary thereof. This is evidenced by his conduct in September 1946, when upon separation from his family he indicated his purpose of refusing further to bear the burden of maintaining his sons’ life insurance in force. Plaintiff was without power to surrender the policy and obtain the cash value thereof. The contract of the company was with the son. The son alone possessed the right to surrender the policy for its cash surrender value. Plaintiff’s possession of the policy and his payment of the premiums to July 1947, invested him with no rights in addition to his mere expectancy as a revocable beneficiary. He was divested of possession of the policy by the decree of divorce.

The insured, upon obtaining possession of the policy, was then in a position to and did exercise his option to obtain its cash surrender value. Upon tbe exercise of this option by insured, the contract of insurance was cancelled and there was created the relationship of debtor and creditor between the insurer and the insured, for the amount of the cash surrender value of the policy.

That the check of the insurer was made payable to both the plaintiff and the insured is of no importance, nor is it material that the check was endorsed only by the insured. The inclusion of plaintiff’s name as one of the payees of the check conferred no right upon him, and by its waiver of his endorsement the insurer incurred no liability to plaintiff.

For the reasons hereinabove set forth the judgment of the Court of Common Pleas is reversed and final judgment is rendered for the defendant, appellant herein.

Judgment reversed.

Doyle, P. J., and Hurd, J., concur.

Doyle, P. J., of the Ninth Appellate District, and McNamee and Hurd, JJ., of the Eighth- Appellate District, sitting by designation in the First Appellate District.


author: Less, J.

text:
    The State, ex rel. Baker, v. Toledo State Hospital et al.
    (No. 4445
    Decided February 27, 1950.)

      Mr. Henry Black, for relator.

      Mr. Herbert 8. Duffy, attorney general, and Mr. Joseph F. Ford, for respondents.
   Less, J.

Relator brings her action in mandamus originally in this court against the Toledo State Hospital and its superintendent. She alleges, in substance, that she was employed as a civil service employee of the state of Ohio as an attendant in the hospital; that as of June 1, 1949, she was discharged by the superintendent for ‘ ‘ abuse of a patient and improper judgment”; and that, upon appeal to the Civil Service Commission of Ohio, and hearing thereon, the order of removal was affirmed on December 7, 1949. She alleges also that her discharge was contrary to Section 486-17o, General Code; that it was insufficient in law and in fact; that it denied her due process of law, equal protection of the laws, and her right to defend her life and herself from bodily hárm; and that the superintendent committed a gross abuse of discretion. She prays that a writ be issued for reinstatement, and for other relief. Upon the filing of her verified petition, a judge of this court issued an alternative writ.

Under special appearance, the Attorney General * ‘ moves to quash notice and summons, and the service and return thereof, for the reason that the relator herein has already been afforded a proper legal rem- , edy. ’ ’ It will be noted that the motion is to quash the summons, service and return thereof and not to quash the alternative writ.

In jurisdictions outside Ohio, an alternative writ of mandamus may be attacked by a motion to quash or dismiss. Such a motion is in the nature of a demurrer. In Ohio, a motion to quash service is ordinarily employed to attack the jurisdiction of the person of a party by reason of some defect in the process. A motion to quash service may be used also to attack the jurisdiction of the tribunal over the person of a party regularly served (Loftus v. Pennsylvania Rd. Co., 107 Ohio St., 352, 140 N. E., 94), but the motion may not be employed to attack the jurisdiction of a court over the subject matter of an action. Jurisdiction is power to hear and determine a controversy, and is complete when both the subject matter of the controversy and the parties to it are properly before the court. In determining whether a given subject matter is within the jurisdiction of a court, regard to the parties is not involved. Handy v. Insurance Co., 37 Ohio St., 366, 370. The motion to quash the service in the instant case does not raise any question as to the regularity of the service but seeks to have the service quashed because the petition fails to state a cause of action.

Section 12292, General Code, provides that on the return day of an alternative writ the defendant may answer as in a civil action, or, if the writ be allowed by a single judge, he may demur. If there be any irregularity in the service, this section would not preclude a motion to quash service, but it makes no provision for a motion to quash the writ.

The motion to quash service will therefore be overruled, with leave to the respondents to answer or demur.

Motion overruled.

Conn and Carpenter, JJ., concur.


author: Carpenter, J.

text:
    The State, ex rel. Baker, v. Toledo State Hospital et al.
    (No. 4445
    Decided May 22, 1950.)

      Mr. Henry Black, for relator.

      Mr. Herbert 8. Duffy, attorney general, Mr. Joseph F. Ford and Mr. Robert A. O’Neil, for respondents.
   Carpenter, J.

In this action Hazel F. Baker, as relator, seeks a writ of mandamus to require the defendant Joseph E. Duty, as superintendent of the Toledo State Hospital, to reinstate her as an attendant in that hospital, from which position he removed her on May 23, 1949. Her position was in the classified civil service of the state.

From the allegations of ^he petition and the undisputed facts, it appears that on May 22, 1949, in the discharge of her duties, relator took a certain combative patient to the washroom to give her a bath. This the patient resisted and attacked the relator. In the altercation and, as relator alleges, to repel the attack the patient made upon relator, she struck the patient on her forehead with the buckle end of a leather belt, causing a cut in the skin an inch and a half long.

The following day, after an investigation, the respondent discharged the relator as of June 1, 1949. In the order of removal, a copy of which was given relator, the reason given was “abuse of a patient and improper judgment.”

The relator filed a timely appeal from respondent’s order to the Civil Service Commission of Ohio. At the beginning of the hearing respondent moved the commission for leave to amend the order of removal by striking out the words, ‘ ‘ abuse of a patient and improper judgment,” and inserting “inefficiency, incompetence and failure of good behaviour.” No objection was made and the order was amended. No question is raised as to the form of the removal order — in fact, the record does not contain a copy of it. The respondent’s brief does contain a copy of the removal order which describes in some detail the incident of May 22, 1949, when relator struck the patient. No reply brief was filed and the court assumes that the copy of the order in the answer brief is not disputed. After an extended hearing of evidence, the commission affirmed the order of removal.

The prayer of the petition is for a writ to require respondent to reinstate relator and to pay her her salary from June 1,1949.

The controlling law is found in Section 10, Article XV of the Constitution of Ohio, and in Section 486-17a, General Code, the material part of which is as follows:

“The tenure of every * * * employee * * * in the classified service of the state * * * shall be during good behaviour and efficient service; but any such * * * employee # * * may be removed for incompetency, inefficiency, dishonesty * * * or any other failure of good behaviour * * *.

“In all cases of removal the appointing authority shall furnish such employee or subordinate with a copy of the order of removal and his reasons for the same, and give such officer, employee or subordinate a reasonable time in which to make and file an explanation. Such order with the explanation, if any, of the employee or subordinate shall be filed with the commission. Any such employee or subordinate so removed may appeal from the decision or order of such appointing- authority to the state or * * * commission * * * within ten days from and after the date of such removal, in which event the commission shall * * * hear * * such appeal within thirty days from and after its filing with the commission, and it may affirm, dis-affirm or modify the judgment of the appointing authority, and the commission’s decision shall be final: provided, however, that in the case of the removal of a chief of police or chief of the fire department or any member of the police or fire departments of a municipality an appeal may be had from the decision of the municipal commission to the Court of Common Pleas of the county in which such municipality is situated to determine the sufficiency of the cause of removal. * * *”

The relator did not file an explanation, as she might have done. To do so was optional with her. As authority for a writ of mandamus, she cites State, ex rel. Brittain, v. Board of Agriculture, 95 Ohio St., 276, 116 N. E., 459, in which Section 486-17«, General Code, which was then in substantially its present form, was discussed. In that case and the earlier one, Hornberger, Dir. of Public Service, v. State, ex rel. Fischer, 95 Ohio St., 148, 116 N. E., 28, which dealt with the earlier statute, the appointing authority did not conform to the statute in the order of removal, and no appeal was filed by the relator.

In the case at bar the amended form of the removal order complies with the statute, and the relator took an appeal to the Civil Service Commission.

In Industrial Commission v. Evans, Judge, 99 Ohio St., 56, 122 N. E., 40, in a per curiam opinion, the court said:

“* * * the courts of this state have no jurisdiction to review, affirm, reverse, or modify the order of removal of an officer, employee or subordinate in the classified service of the state, made and entered by the appointing power, where it acts within the scope of its authority, and the order of removal is predicated upon one or more of the causes named in the statute [Section 486-17o].

“Prior to the passage of the Civil Service Act, the person removed by the appointing power, acting within the scope of its authority, had no remedy whatever. Under the Civil Service Act, the only remedy afforded him is by appeal to the civil service commission.”

In that case the two members of the commission disagreed and the Supreme Court held that the order of removal should be affirmed, and in that connection said:

“The failure of the civil service commission to affirm, disaffirm or modify the order of removal, does not vest jurisdiction in the courts of this state to hear and determine the correctness of such order, or to control by injunction or other mandatory writ, the discretion of the appointing authority, where that authority has acted within the scope of its statutory powers.” (Emphasis added.)

That decision was cited in 46 Corpus Juris, 996. To the same effect was the early decision of the Supreme Court of the United States in Keim v. United States, 177 U. S., 290, 44 L. Ed., 774, 20 S. Ct., 574.

From this court’s examination of the entire record, it appears clear that it was “in the scope of the statutory powers” of the respondent to remove the relator as he did, and it was “in the scope of the statutory powers ’ ’ of the commission to affirm his order.

Immediately after the altercation with the patient, the relator said, in the presence of several witnesses and the nest day to Mr. Duty, that she “lost her head,” and in her testimony before the commission, in describing what happened, relator said, ‘ ‘ I knew I had no business hitting that woman.”

The court can not say that the respondent abused his power in making the order of removal, or the commission in affirming that order. The writ is denied.

Writ denied.

Conn and Fess, JJ., concur.


author: Hurd, J.

text:
    Young, Appellant, v. New York Central Rd. Co., Appellee.

      (No. 21232
    Decided July 18, 1949.)

      Messrs. Payer, Bleiiveiss, Grow & Mollison, for appellant.

      Mr. J. Paul Lamb, for appellee.
   Hurd, J.

This case sounding in tort originated in the Common Pleas Court of Cuyahoga County where the appellant, Augustin F. Young, a railroad signalman, brought his action under the Federal Employers’ Liability Act against the appellee, the New York Central Railroad Company, his employer, for damages for personal injuries sustained by him as the result of an alleged unprovoked attack made upon him by a fellow worker.

At the close of all the evidence, the court granted defendant’s motion for a directed verdict and rendered judgment thereon. Whereupon, a motion for new trial having been overruled, an appeal on questions of law was perfected to this court.

The parties will hereinafter be designated as plaintiff and defendant as they appeared in the trial court.

The gravamen of plaintiff’s complaint is that the defendant was negligent in retaining in its employ a dangerous and vicious man with knowledge of these propensities and characteristics and in failing to provide plaintiff with a safe place to work.

While the record shows a conflict in respect to the facts of the altercation which led to the assault, the trial court, for the purposes of the motion to direct a verdict, was obliged to accept as true the evidence of the plaintiff and also to construe it most favorably to plaintiff, and in this court, upon this appeal, the plaintiff is entitled to the most favorable interpretation of the facts in his favor and all inferences which may reasonably be drawn therefrom.

A brief summary of the evidence, interpreted most favorably to the plaintiff, is as follows:

Plaintiff, 50 years of age, married and the father of four children, had been employed by defendant continuously since he was 19 years of age, as a tower man or signalman. His duties required him to give signals with respect to the right of way at the intersection. of several railroad lines by the pulling or operating of certain mechanical levers.

' During the year 1943, he was assigned to what is known as the C & P crossing at the old union depot, Cleveland, Ohio, where the Pennsylvania Railroad tracks intersect with tracks of the New York Central Railroad. At the time of the matters complained of, his working shift covered the period from 11 p. m. until 7 a. m. He reported to, and performed his duties in, a small 5'x9' shanty, containing a small stove, a clothes locker, a telephone and a small desk. Each night he relieved one James Johnson, the person who assaulted him, who was the lever man at this shanty on the shift which commenced at 3 p. m. and terminated at 11 p. m. Prior to the night of November 29,1943, when the alleged wanton and unprovoked attack was made, plaintiff had only a casual acquaintance with Johnson.

Plaintiff testified that Johnson and he had no physical encounters and no words and no trouble of any sort during the year that Young relieved Johnson prior to the night of November 29, 1943, except that he had reported late a few times in relieving Johnson, on one occasion about 45 minutes late and on another occasion about one minute late, and on the night of the attack he reported about four minutes late. He testified that on the occasion when he was 45 minutes late he paid Johnson 60 cents in cash to compensate him for the overtime service, but otherwise they had no trouble at all and they “got along all right.”

On the night of November 29, 1943, plaintiff’s automobile developed a flat tire enroute to work, and he arrived about four minutes after 11 p. m. Johnson was waiting outside the shanty as Young appeared. According to Young’s testimony, he apologized for being late and he explained he had .trouble with his automobile, and thereupon he proceeded to the shanty with Johnson following him. As plaintiff was removing his jacket, Johnson shouted, “I warned you not to come late * ® * hurry up now, get to work.” Johnson reached for plaintiff’s jacket and appeared to be attempting to pull it off. What appeared to be a mere jerking by Johnson of plaintiff’s jacket, was, according to plaintiff’s testimony, in fact repeated stab wounds in his chest and abdomen. In the struggle which ensued, the plaintiff was severely cut and stabbed in the region of his chest, abdomen and legs. According to plaintiff’s testimony, he was able to save his life by striking Johnson several blows with a stove poker and thereupon he escaped from the shanty and called a Pennsylvania Railroad crew nearby for help. Plaintiff was hospitalized for a number of days under oxygen and underwent two operations. He was confined to the hospital for one month and at home in bed another month. He returned to work in April 1944, and is now employed in the same position by the defendant company.

■ Plaintiff introduced evidence of prior assaults upon other employees of the defendant by Johnson, about seven or eight in number, and introduced testimony showing that repeated reports had been made, concerning Johnson’s conduct in this respect, to the wire despatchcr and to superintendent Crotser, both of whom were his and Johnson’s superiors and persons in authority to whom such reports should have been addressed. While it was denied by superintendent Crotser that he had received any reports about Johnson’s misconduct, nevertheless, for the purpose of this review, we must, as stated, assume that notice was brought to the defendant concerning the previous course of Johnson’s conduct as indicated by the incidents' described in the evidence.

As we view this case, the principal question presented is whether thy facts shown in the record, interpreted and construed most favorably to plaintiff, are sufficient to establish liability of the defendant under the Federal Employers’ Liability Act.

The pertinent and applicable provision of the act is as follows:.

“Every common carrier by railroad while engaging in commerce between any of the several states * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce * * * resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier * * Title 45, Section 51, U. S. Code.

From the foregoing, it is clear that under the Federal Employers’ Liability Act liability arises from negligence, and the burden rested upon plaintiff to prove that the negligence of the railroad company was in whole or in part a proximate cause of the injury for which recovery is prayed.

Cases involving circumstances similar to those of the instant case have heretofore been considered and decided by the federal courts and the interpretations placed upon the Federal Employers’ Liability Act by such decisions must be followed by this court in the instant case so far as they are applicable.

In the case of Davis, Dir. Genl. of Rds., v. Green, 260 U. S., 349, 67 L. Ed., 299, 43 S. Ct., 123, the Supreme Court of the United States reversed a judgment of the Supreme Court of Mississippi, which had affirmed the lower court decision holding the railroad company liable where an employee who was a conductor had been killed by an engineer, a fellow employee of decedent and where the evidence disclosed that the company had employed a dangerous man ■with notice of his dangerous propensities.

Mr. Justice Holmes, speaking for the court, said:

“The ground on which the railroad company was held was that it had negligently employed a dangerous man, ivith notice of his characteristics, and that the hilling occurred in the course of the engineer’s employment. But neither allegations nor proof present the killing as done to further the master’s business, or as anything but a wanton and willful act, done to satisfy the temper or spite of the engineer. Whatever may be the law of Mississippi, a railroad company is not liable for such an act under the statutes of the United States.” (Emphasis added.)

To the same effect is the later decision of the United States Supreme Court in the case of Atlantic Coast Line Rd. Co. v. Southwell, Admx., 275 U. S., 64, 72 L. Ed., 157, 48 S. Ct., 25, which involved similar facts.

The following cases follow the same reasoning: St. Louis San Francisco Rd. Co. v. Mills, Admx. (1926), 271 U. S., 344, 70 L. Ed., 979, 46 S. Ct., 520; Atlanta & Charlotte Air Line Rd. Co. v. Green (1929), 279 U. S., 821, 73 L. Ed., 976, 49 S. Ct., 350.

Counsel for plaintiff, apparently recognizing the force of the foregoing decisions, argue that these cases were decided prior to 1939, at which time the Federal Employers ’ Liability Act was amended in such a manner as to abolish the defense of voluntary assumption of risk, and that therefore those cases have no application, to facts such as are disclosed by the record in the instant case.

In our opinion, this contention cannot be sustained because in the c^-ses cited the Supreme Court did not predicate its decisions on the defense of assumption of risk. The gist of those decisions is that the railroad company is not liable unless the attack or act complained of was done to further the railroad company’s business, even though the act may have occurred in the course of the actores employment.

In our opinion, the attack made upon the plaintiff in the instant case could not be considered as an act in furtherance of-the employer’s business, on the most liberal interpretation in favor of the plaintiff. On the contrary, the facts in the present case show a wanton, malicious, unprovoked attack' done “to satisfy the temper or spite” of the fellow employee.

' Plaintiff places great reliance upon the recent case of Lillie v. Thompson, Trustee, 332 U. S., 459, 92 L. Ed., 73, 68 S. Ct., 140. That case pér curiam reversed the judgments of the District Court and the.Circuit Court of Appeals which had affirmed the decision of the District Court dismissing the petition of plaintiff for failure to state a cause of action.

The court said in part:

“Petitioner’s allegations may be summarized as follows:

“Respondent required her, a 22-year-old telegraph operator, to work alone between 11:30 p. m. and 7:30 a. m. in a one-room frame building situated in an isolated part of respondent’s-railroad yards in Memphis. Though respondent had reason to know the yards were frequented by dangerous characters, he failed to exercise reasonable care to light the building and its surroundings or to guard or patrol it in any way. Petitioner’s duties were to receive and deliver messages to men operating trains in the yard. In order for the trainmen to get the messages it was necessary for them to come to the building at irregular intervals throughout the night, and it was petitioner’s duty to admit them when they knocked. Because there were no windows in the building’s single door or on the side of the building in which the door was located, petitioner could identify persons seeking entrance only by unlocking and opening the door. About 1:30 a. m. on the night of her injury petitioner responded to a knock, thinking that some of the respondent’s trainmen were seeking admission. She opened the door and before she could close it a man entered and béat her with, a large piece of iron, seriously and permanently injuring her.

“In support of his motion for summary judgment respondent alleged, and petitioner did not deny, that the assailant was not an employee of the respondent and that the attack was criminal.

< < # # #

“We are of the opinion that the allegations of the complaint, if supported by evidence, will’ warrant submission to a jury. Petitioner alleged in effect that respondent was aware of conditions- which created a likelihood that a young woman performing the duties required of petitioner would suffer just such an injury as was in fact inflicted upon her. That the foreseeable danger was from intentional or criminal misconduct is irrelevant; respondent nonetheless had a duty to make reasonable provision against it. Breach of that duty would be negligence, and we cannot say as a matter of law that petitioner’s injury did not result at least in part from such negligence.”

When the case was remanded to the District Court, the jury returned a verdict for plaintiff in the sum of $7,500. The appellee entered a motion for judgment notwithstanding the verdict, which the court sustained and dismissed the suit. An appeal was had again to the United States Circuit Court of Appeals, Sixth District, which reversed the judgment of the District Court. Lillie v. Thompson, 173 F. (2d), 481.

It is obvious, we think, that there is no analogy between the facts of Lillie v. Thompson, supra, and the present case. But is there analogy in principle? We think there is not.

■ In the second appeal in the Lillie case, the Court of Appeals, in reversing the second judgment of the District Court, stated as follows:

“The gravamen of her claim [Lillie] was that appellee ordered her to a place of work which they knev' or by the exercise of reasonable care should have known, to be unsafe, and without taking reasonable care for her protection. ”

The second paragraph of the syllabus is as follows:

“Evidence that railroad superintendent placed female telegraph operator for work at a place which by exercise of reasonable prudence he should have known was one of peculiar hazard for a female employee, and that thereafter a negro not employed by railroad criminally attacked operator, authorized recovery by operator from railroad under Federal Employers’ Liability Act, for injuries which she sustained. Federal Employers’ Liability Act, Sec. 1, 45 U. S.'C. A., 51.” (Emphasis added.)

We think that the emphasis in the Lillie case is placed, first, upon the fact that plaintiff was a young girl 22 years of age who was criminally attacked under conditions which created a peculiar hazard for a female employee, second, the fact of the physical condition and location, of the building in which she was obliged to work, third, the fact that her working hours were required to be between 11:30 p. m. and 7:30 a. m., and, fourth, the fact that the place was infested by “thieves, tramps, hoboes and other trespassers.” The gist of the decision of the Supreme Court and later, the decision of the Circuit Court of Appeals on the second appeal is that by the exercise of reasonable prudence, Thompson, the trustee of the railroad company, should have known the dangers inherent in such a peculiar situation.

The doctrine of the Lillie case must, we think, have limited application to cases of a similar factual nature. We cannot agree with the contention of plaintiff that on principle the same issues are involved in that case as in the instant case.

We are further of the opinion that the decision of the Supreme Court in the Lillie case has not repudiated, either expressly or impliedly, the doctrine of Davis v. Green, supra, and later cases of factual analogy.

We .find our conclusion in this respect to be in harmony with the case of Sheaf v. Minneapolis, St. P. & S. S. M. Rd. Co., 162 F. (2d), 110, decided by the Eighth Circuit Court of Appeals, June 18, 1947, paragraph four of the syllabus of which is as follows:

“Where complaint of railroad conductor against railroad under Federal Employers’ Liability Act for injuries sustained as a result of alleged unprovoked attack by railroad engineer alleged that engineer had been quarrelsome and vicious person for many years prior to assault and that railroad had knowledge thereof or, by exercise of ordinary care, should have known of it and that railroad ratified acts of engineer by retaining him in service, no genuine issue of negligence was stated in complaint such as would preclude summary judgment for railroad. Federal Rules of Civil Procedure rule 12, 56, 28 U. S. C. A. following Sec. 723-c; Federal Employers’ Liability Act, Sec. 1, 45 U. S. C. A., Sec. 51.”

Neither do we think that the seamen’s- eases under the Jones Act cited by the plaintiff have application here. We think it unnecessary to review those cases at length, as this proposition has been passed on many times before in decisions of federal courts.

As stated in the case of Sheaf v. Minneapolis, St. P. & S. S. M. Rd. Co., supra, at page 114:

‘ ‘ The appellant argues, however, that the Davis and Southwell cases, supra, have been overruled in effect by a more liberal construction of the act by the Supreme Court and the Courts of Appeal in such cases as Jamison v. Encarnacion, 281 U. S., 635, 50 S. Ct., 440, 74 L. Ed., 1082; Baltimore & Philadelphia Steamboat Co. v. Norton, 284 U. S., 408, 52 S. Ct., 187, 76 L. Ed., 366; and Koehler v. Presque-Isle Transportation Co., 2 Cir., 141 F. (2d), 490.

“These cases are all distinguishable from the Davis and Southwell and other like cases in that they arose among seamen employed on vessels operating upon navigable waters. In such cases the duties of the employer to its employees are different, giving rise to a broader or more liberal construction of the statutes applicable. This fact was pointed out by Mr. Justice Stone in Socony-Vacuum Oil Co. v. Smith, 305 U. S., 424, 430, 431, 59 S. Ct., 262, 266, 83 L. Ed., 265, wherein he said:

“ ‘The seaman, while on his vessel, is subject to the rigorous discipline of the sea and has little opportunity to appeal to the protection from abuse of power which the law makes readily available to the landsman. His complaints to - superior officers of unsafe working conditions not infrequently provoke harsh •treatment * * *. Withal, seamen are the wards of the admiralty, whose traditional policy it has been to avoid, within reasonable limits, the application of. rules of the common law which would affect them harshly because of the special circumstances attending their calling. * * * It is for this reason that remedial legislation for the benefit and protection of seamen has been liberally construed to attain that end. ’ ’ ’

Neither do we think that the doctrine of respondeat superior applies as contended by plaintiff. This could he only upon the theory that the assault' was committed by Johnson “in furtherance of the master’s business.” We have hereinbefore stated that under the most liberal 'construction of the evidence the attack in question cannot be considered “in furtherance of the employer’s business.”

This is not a case of first impression under federal court decisions. Therefore we are obliged to follow the decisions of. the Supreme Court of the United States in cases hereinbefore cited interpreting liability under the Federal Employers’ Liability Act. The later analogous decisions of federal Circuit Courts of Appeals which are unreversed and unmodified are likewise persuasive of this view.

We conclude, therefore, that the judgment of the Court of Common Pleas must he affirmed.

Judgment affirmed.

Skeel, P. J., and McNamee, J., concur.


author: Conn, J.

text:
    The State, ex rel. Greisinger et al., Appellants, v. Grand Rapids Board of Education et al., Appellees.
    (No. 746
    Decided December 5, 1949.)

      Mr. Hayden C. Covinglon, for appellants.

      Mr. Floyd A. Coller, prosecuting attorney, and Messrs. Bowman, Ilanna & Middleton, for appellees.
   Conn, J.

The relators, hereinafter referred to as appellants, brought an action in the Court of Common Pleas against the respondents, appellees herein, seeking a writ of mandamus commanding the respondents to allow Jehovah’s Witnesses to use the auditorium in the school building of the Grand Rapids Local School District. After an exhaustive hearing, the trial court refused to issue the writ and entered judgment accordingly. From that judgment, appellants appeal on questions of law.

The petition filed by appellants is verbose, redundant and argumentative, and could hardly be said to conform with the statute (Section 11305, General Code) as being **■& statement of facts constituting a cause of action in ordinary and concise language.” We state only the averments which we consider material.

Formal parts omitted, appellants aver that they made several applications for permission to use the school auditorium of the Grand Rapids Local School District for the purpose of holding public meetings where lectures were to be given concerning the Bible and the purposes of Almighty God; that the lectures would be free, nonexclusive, open to the public for educational purposes and for the welfare of the community; that appellants informed appellees they, appellants, would pay the expenses incurred, protect the property and comply with any other condition precedent to the use of the auditorium; that the applications for the use of the auditorium were for Sundays when the use would not conflict with the necessary use of such property; and, that appellants were unable to obtain any other suitable place in the village of Grand Rapids to hold such meetings.

Appellants aver further that it was the ministerial duty of the appellees to permit the requested use of the school auditorium; that the requests were illegally denied and appellants were thereby deprived of their legal rights of freedom of speech, freedom of assembly and freedom of worship, contrary to the Constitution of the United States and the Constitution of Ohio; that appellants were discriminated against; that they desired to hold public meetings in the school auditorium from time to time and at all times in the future; that the requested use of the auditorium is mandatory; and that appellants have no other complete remedy to redress the deprivation of their rights' secured by the Constitution and the laws.

The answer of appellees denies each and every material averment in the petition, and avers that appellants had at no time made a demand or request for use of the school auditorium in accordance with the statutes; that a vast majority of the citizens of the school district demanded that the request be denied; and that the use of the school property by appellants was objected to by the taxpayers of the school district, as such use would compel the taxpayers of the village to support a place of worship in violation of the statutes and contrary to the regulations of the school board.

The answer avers further that the action is barred on the ground of laches; that mandamus is not a proper remedy; that appellants are not citizens, residents or taxpayers of.the school district; and that there are other suitable places available for such meetings in the village of Grand Rapids.

Appellees ask that the petition be dismissed.

Appellants filed no reply to the answer of the appellees.

In the judgment entry of the trial court, the appellants were denied a writ of mandamus. There were no special findings of fact and conclusions of law requested or made. However, the trial court prepared a comprehensive memorandum of the case, and its findings and judgment, from which we quote the following :

“Coming now to determine from the facts whether the hoard has abused its discretion in refusing the use of the auditorium the board found the relators were not a responsible organization, and responsibility means more than mere financial responsibility; that the Jehovah Witnesses refuse to do military service; that they do not vote; that they do not do jury service; that their teachings are against the principles and teachings taught and practiced in the schools of Grand Rapids; that they are opposed to other religions, calling them rackets and the ministers racketeers; that the purpose of the meetings of Jehovah Witnesses are for missionary and propaganda purposes and teaching their particular beliefs; that no members of relators are residents or taxpayers in the Grand Rapids School District; that they are seeking to inject themselves into a community where ninety-nine percent of the people are opposed to them; that their meetings will stir up strife among the various religious denominations and disrupt and upset the school system and the community in general. ’ ’

The errors assigned are that the judgment of the trial court should have been in favor of the appellants; that it is contrary to law and not sustained by any evidence; and that the court erred in admitting incompetent evidence.

Many controverted matters of fact and law have been presented in this court in oral argument and by brief, and the discussion has occupied a wide field. The' focal point in the controversy, however, centers on the question whether the board of education had any discretion under the statutes defining its duties and; if so, whether there has been shown any abuse of discretion in the instant case. Many of the questions discussed in the exhaustive briefs are collateral to these central issues upon the determination of which these collateral questions may become secondary or be dissolved.

It is either admitted, or the evidence tends to show, that the appellants desire to use the school auditorium for religious purposes from time to time and at all time in the future; that other suitable places in the village of Grand Rapids are available for use by appellants; that the appellants are not citizens or taxpayers of the district; that no active members of Jehovah "Witnesses live therein; that they actively indulged in unseemly attacks on other religions and further, that some of the doctrines expounded by the appellants are inimical to the responsibilities of citizenship and not in harmony with the school’s program of education in character building, in the development of unprejudiced social attitudes and in the preparation of the boys and girls for intelligent and responsible citizenship.

Mandamus is defined by Section 12283, General Code, as “a writ issued, in the name of the state, to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.”

The plain language of the statute limits its application to those cases where a duty is explicitly and definitely enjoined. It follows “that the lawful discretion vested in an individual, officer, or corporation, cannot be destroyed, controlled, or limited by the writ of mandamus.” 25 Ohio Jurisprudence, 1003, Section 28, and cases cited.

It is the settled law of this state that the discretionary power of a board of education can not be circumscribed by the courts where the exercise of such power is reasonable, in good faith and not clearly shown to be an abuse .of discretion. We cite a few eases wherein this rule is recognized, as follows: State, ex rel. Milhoof, v. Board of Education of Barberton, 76 Ohio St., 297, 81 N. E., 568; Board of Education of Sycamore v. State, ex rel. Wickham, 80 Ohio St., 133, 88 N. E., 412; Brannon v. Board of Education of Tiro Consolidated School Dist., Crawford Co., 99 Ohio St., 369, 124 N. E., 235; State, ex rel. Wilms, v. Blake et al., Industrial Commission, 144 Ohio St., 619, 60 N. E. (2d), 308; State, ex rel. Van Harlingen, v. Board of Education of Mad River Twp. Rural School Dist., 104 Ohio St., 360, 136 N. E., 196; State, ex rel. Methodist Children’s Home Assn. of Worthington, v. Board of Education of Worthington Village School Dist., 105 Ohio St., 438, 138 N. E., 865; State, ex rel. Dworken, v. Court of Common Pleas of Cuyahoga County, 131 Ohio St., 23, 1 N. E. (2d), 138; Greco v. Roper et al., Board of Education, 145 Ohio St., 243, 61 N. E. (2d), 307; State, ex rel. Tarpy, v. Board of Education of Washington Court House, 151 Ohio St., 81, 84 N. E. (2d), 276.

. The pertinent provisions of the statutes found in the Ohio School Code which became effective September 16, 1943, are Sections 4839, 4839-1 'and 4839-2, General Code. These provisions of the Code define the authority of the board in respect to the use of school houses, the use of school grounds and buildings as social centers, and under what conditions and for what purposes school buildings and grounds may be used. As these statutes relate to the same subject matter and are incorporated into one act, they are in pari materia and must be construed together.

Section 4839, General Code, provides:

‘ ‘ The board of education of a city, exempted village or local school district, in its discretion, may authorize the opening of such schoolhouses for any lawful purposes. But nothing herein shall authorize a board of education to rent or lease a schoolhouse when such rental or lease in any wise interferes with the public schools in such district, or for any purpose other than is authorized by law. ’ ’

The pertinent provisions of Section 4839-1, General Code, are:

“Upon application of any responsible organization, or of a group of at least seven citizens, all school grounds and school houses * * * shall be available for use as social centers for the entertainment and education of the people, including the adult and youthful population, and for the discussion of all topics tending to the development of personal character and of civic welfare, and for religious exercises.”

Section 4839-2, General Code, provides:

“The board * * * shall, upon request and the payment of a reasonable fee * * * permit the use of any school house and rooms therein * * * when not in actual use for school purposes, for any of the following purposes:

“2. For holding educational,' religious, civic, social or recreational meetings and entertainments, and for such other purposes as may make for the welfare of the community.”

Do these sections of the Code authorize the exercise of discretionary powers, and if they do, has the board of education in the instant case acted within the limits of sound discretion?

The language employed in these sections evinces a , clear intention on the part of the Legislature to grant to a board of education discretionary power. We call attention to the several statutory provisions and particularly such phrases as “in its discretion, may authorize,” “for any lawful purposes,” “in any wise interferes with the public schools,” “any responsible organization,” “tending to the development of personal character,” “civic welfare,” “religious exercises,” “shall prescribe such rules and regulations,” “shall * * * permit the use of any schoolhouse and rooms therein,” “for * * * religious * * * meetings” and ‘ ‘ as may make for the welfare of. the community." ’

The claim of appellants that .the authority of the board and the exercise of powers which the law has vested in it are ministerial only, and not discretionary, appears to be clearly untenable. The purposes and intent of the Legislature to confer on the board discretionary power could hardly be expressed with greater clarity or in a more appropriate area of our free society.

Has the board of education, in the instant case, exercised a sound discretion in its refusal to give appellants a permit to use the school auditorium for religious exercises and religious meetings?

At the threshold of this issue it appears that there is no evidence of any formal application on the part of any organization for the use of the school building. The applications in the instant case were made orally and in writing by individuals in varying groups and at different times.

The statute contains the following clause: “Upon application * * * of a group of at least seven citizens.” The word “group” is significant. It imports a number of persons acting at one and the same time for a common purpose. The group may make formal written application or the application may be oral, but a group of at least seven must make the application to the board before such application may receive favorable action.-

There is a further qualification. The group must he citizens and there is a strong implication that the persons composing the group should be citizens of the community in which the school building is located, even though the board might waive the statutory requirements as to the appellants. Although these six persons making the several applications could qualify as citizens of some other community or of the state of Ohio, the record shows that they came into the community of Grand Rapids as ‘ ‘ invaders ’ ’ from the outside, not as “citizens, residents or taxpayers.” Being strangers, it became the duty of the board of education, in considering the applications, to inquire into their credentials in order to exercise the discretion conferred upon it by law, and to determine whether the applications were duly made and whether the applicants ’ use of the building would in any wise interfere with the objects and purposes of the public schools or prejudice the “welfare of the community” of Grand Rapids.

However, it is contended that the appellants represent the entire congregation of the East Unit of Jehovah’s Witnesses of Toledo. On the basis of this claim, the board was not dealing with a group of citizens but with a voluntary, unincorporated organization. The statute provides it must be a “responsible organization.” While it is argued that the statute implies a financial responsibility or an organization having good credit or financial standing, it does not appear that the Legislature so intended. If that had been the intention of the Legislature, it would have so modified the word “responsible.” “Responsible” connotes a meaning “involving accountability,” “having a mental or moral capacity for knowing right from wrong, in virtue of which one may be'held accountable for his acts,” “capable of rational thought or action, ’ ’ in addition to ability ‘ ‘ to discharge .obligations or pay debts.” (New Century Dictionary.)

The written application purporting to be on behalf of the east unit of the Toledo organization was signed by two individuals and not in form to be binding on the organization, even if it had a legal existence. It was the duty and responsibility of the board to ascertain whether the organization represented by applicants came within the statutory meaning of a “responsible organization.”

The statute expressly negatives the authority of the board to permit any use of the building that “in any wise interferes with the public schools.” The statute provides also that the school grounds and school house may be available as social centers for entertainment and education “and for the discussion of all topics tending to the development of personal character and of civic welfare, and for religious exercises * * * as inay make for the welfare of the community.” These provisions of the statute required the board to exercise its best judgment and discretion in granting or refusing to grant the applications, if they were made on behalf of the organization.

It is averred in the answer of respondents that a vast majority of the citizens, residents and taxpayers of the school district, and also many civic organizations, have requested the board not to permit the use of the school auditorium by appellants. These aver-, ments are not denied. Over the objection of appellants, evidence was introduced by way of written petitions addressed to the board and resolutions adopted by various civic organizations in the village of Grand Rapids. In the performance of their duties, the members of the board had a right to be informed and to inform themselves of the attitude of the residents and taxpayers of the school district. Having this right, the board of education could properly take cognizance of such petitions and resolutions and was required to do so, having regard for the “welfare of the community” in relation to the use of school property.

No bad faith on the part of the board having been shown in the method employed to ascertain the attitude of the citizens of the school district, it was within the discretion of the trial court to receive this evidence and appellants were not prejudiced by its admission.

It appears that the statutes confer discretionary power on the board of education. In the enactment of these statutes, the Legislature acted within the reserve power of the state, as the reasonable exercise of this power in the control and use of school property sustains a direct and eventual relationship to the lawful purposes for which school property may be employed in “the development of personal character,” and in promoting “the welfare of the community.”

Appellants broadly contend that by reason of the refusal of their request by the board of education, they were denied their legal rights of freedom of speech, freedom of assembly and freedom of worship, contrary to the Constitution of the United States and the Constitution of Ohio.

As already pointed out, the statutes give the board of education broad discretionary power. The plenary power thus granted, and the action taken by the respondent, must be deemed valid, unless it is clearly prohibited by the Constitution. See 8 Ohio Jurisprudence, 161, Section 63; 8 Ohio Jurisprudence, 251, Section 147; State, ex rel. Weaver, v. Board of Trustees of Ohio State University, 126 Ohio St., 290, 295, 185 N. E., 196; and State, ex rel. Wilms, v. Blake et al., Industrial Commission, supra.

It does not appear in the instant case thát the provisions of the statutes undeir review unreasonably interfere with any constitutional right of appellants or that the authority conferred by such statutes on the board of education is incompatible with the state or federal Constitution.

On the record before us, .it is our opinion that the board of education exercised a sound discretion under authority of. law in refusing to grant appellants the right to use the school property, and that the finding and judgment of the trial court should he affirmed.

Judgment affirmed.

Carpenter and Fbss, JJ., concur.


author: Hitnsicker, P. J.

text:
    Boise, Appellant, v. Warren, Appellee.

      (No. 1208
    Decided August 2, 1950.)

      Mr. Charles H. Lampen, for appellant.

      Messrs. Vandemarh <$> Vandemarh, for appellee.
   Hitnsicker, P. J.

In this appeal on questions of law, the facts show the following matters of record:

On November 28, 1947, a transcript from the justice of the peace court of Hobart Holton, Wellington township, Lorain county, Ohio, together with the original papers in an action before such justice of the peace, ivas filed as an appeal de novo to the Common Pleas Court of Lorain County.

The action' commenced in the justice of the peace court by the appellant in this court, Myron E. Boise, herein called Boise, sought a judgment'for $300 against the appellee in this court, Ben B. Warren, herein called Warren, for the alleged “setting fire to and burning” by Warren of a “hedge on property at 521 Herrick avenue, East, Wellington, Ohio.”

A trial to a jury in the justice of the peace court resulted in a judgment in favor of Boise and against Warren in the amount of $300 and the costs of such action.

Upon appeal by Warren to the Common Pleas Court, a petition, thereafter amended, was filed in the Common Pleas Court by Boise, the amended petition alleging that the áction was filed on appeal from the justice of the peace court, and that Warren “wilfully and maliciously set fire to and burned a hedge on property owned by the plaintiff (Boise) at 521 Herrick avenue, East, Wellington, Ohio.” The prayer of this amended petition asked for $300 damages and the costs of the action.

The answer to this amended petition admitted that the cause came into the Common Pleas Court on appeal from the justice of the peace court, and denied the other allegations of such amended petition.

The action was called for trial in the Common Pleas Court on November 18, 1949; the parties and their counsel were there present. Prior to the impanelling of a jury, counsel for Warren orally moved the court for judgment because of lack of jurisdiction of the justice to entertain such an action. The Court of Common Pleas granted the motion for judgment in favor of Warren, whereupon counsel for Boise orally moved the court to grant Boise a new trial. This oral motion for a new trial was overruled. The journal entry granting such judgment to Warren and overruling the oral motion of Boise for a new trial was filed with the clerk of courts on November 18, 1949. -

On November 26,1949, counsel for Boise filed a written motion to vacate the judgment entered against Boise on November 18, 1949, and, in such written motion, said, “and supplementing his oral motion grant a new trial .for the following reasons, to wit:

“1. The judgment for defendant is contrary to law.

“2. Said motion for judgment for defendant made by counsel for defendant is not according to any law.

“3. Errors of law occurring at the hearing.

. “4. Plaintiff’s counsel taken by surprise had not sufficient time to give the correct law to the court.”

This motion as filed on November 26, 1949, the court overruled by a journal entry filed with the clerk of courts on December 7, 1949. On December 9, 1949, a notice of appeal was filed by counsel for Boise as follows :

“Comes now the above named plaintiff-appellee (appellant) herein and hereby gives notice of appeal to the Court of Appeals from a judgment rendered by the Court of Common Pleas in the above entitled cause on November 18, 1949, and from an order overruling plaintiff-appellee’s motion for an order vacating the judgment in this cause and supplementing his oral motion for a new trial rendered by said Court of Common Pleas on December 6, 1949.

“Said written.motion filed by leave of court granted on November 19, 1949.

■ “This appeal is on questions of law.”

When the matter came on for hearing in this court, counsel for Warren filed a written motion in this court to dismiss the appeal for the reason that “the notice of appeal was not filed within the time prescribed by statute.” The parties not desiring to orally argue either this motion to dismiss the appeal or the merits of the case, the entire matter was submitted to this court on the briefs filed herein.

We direct our attention to the motion to dismiss this appeal. Section 12223-7, General Code, provides that the time within which a notice of appeal to the Court of Appeals shall be filed is 20 days. A failure to file such notice within such time confers no jurisdiction upon this court to entertain the appeal. 2 Ohio Jurisprudence, Appellate Review, Part 1, Section 240.

The notice of appeal was filed 21 days after the entry of November 18,1949, overruling the oral motion for a new trial, and this appeal should be dismissed unless it can be claimed that such oral motion and the judgment rendered thereon were of no effect, since eight days after November 18, 1949, to wit, on November 26, 1949, a written motion to vacate the judgment and grant a new trial was filed. This motion was overruled, and an entry thereon was filed on December 7, 1949.-

Section 11579, General Code, provides the manner by which the motion for a new trial shall be made. This section of the General Code reads as follows:

“The application must be made by motion, upon written grounds, filed at the time of making the motion; the causes enumerated in subdivisions two, three and seven, hereinbefore enumerated, must be sustained by affidavits or depositions, showing their truth, and may be controverted by affidavits or depositions, and for this purpose depositions may also be taken in the county where the action is pending.”

We do not have any way of knowing what grounds were urged upon the court in the oral motion for a new trial. Neither the bill of exceptions nor the judgment entry of November 18, 1949, states what they were. From all that appears before us, no grounds at all were stated, and none were reduced to writing as the statute requires.

The purpose to be served in stating in writing the grounds of a motion for a new trial is to apprise the court and opposing counsel of such grounds.

The statutes do not provide for an amendment of a motion for a new trial, nor does the statute specifically deny the right to amend a motion for a new trial.

The question confronting this court is similar to the question raised in the case of Independent Coal Co. v. Quirk et. al., Partners, 16 C. C. (N. S.), 546, 26 C. D., 471, affirmed without opinion in Independent Coal Co. v. Quirk et al., Partners, 80 Ohio St., 746, 89 N. E., 1120. In that case, the Circuit Court said (at p. 549):

“We have then this question, whether a party may, within three days after the return of a verdict against him, and after the overruling of his first motion file a second motion for a new trial upon a new ground that was not known by him to exist when his. first motion was made. The sections of the Revised Statutes, relative to applications for new trial within term, are 5305 to 5308 inclusive, and they contain no express provision forbidding the practice here in question. Nor does the doctrine of res judicata apply strictly to mere motions even where such motions result in orders that are reviewable. We entertain no doubt that the trial court has full power to permit the filing of a second motion under these circumstances, and while it did not expressly give such permission in the present instance, the fact that it entertained the second motion, by hearing and disposing of it, on its merits, conclusively implies such permission (14 Ency. PI. & Practice, 176, 183, 184 and 191, and cases cited).”

In the case now before us, the Court of Common Pleas did entertain and rule on the written motion. ■This motion was filed within the time prescribed by statute and stated the grounds thereof in writing. We therefore determine that the time for filing the notice of appeal in the instant case ran from the date of the journal entry overruling the written motion for a new trial; to wit, December 7, 1949. The motion to dismiss the appeal is therefore overruled.

We next direct our attention to the merits of this appeal.

The appeal from the justice of the peace court to the Common Pleas Court was taken by Warren, against whom the judgment was rendered. There was no objection to the jurisdiction of such justice of the peace until the issues were made by the filing of the petition, the amended petition, and the answer, in the Common Pleas Court. On the day the case was called for trial in the Common Pleas Court, Warren first interposed his objection to the' original jurisdiction of the justice of the peace court.

Many cases haye been examined which discuss the jurisdiction of the justice of the peace where an appeal to’ the Court of Common Pleas has been taken, but, in most of such cases, the question of jurisdiction of the subject matter of the action and the question of jurisdiction of the person are confused.

In the case of Van Dyke v. Rule, 49 Ohio St., 530, at p. 535, 31 N. E., 882, the court said:

“* * * Where the justice of the peace had no jurisdiction of the subject matter, an appeal from his judgment will confer none on the Court of Common Pleas. * * *

“And it is equally certain that the appeal confers on the appellate court jurisdiction only of the cause of action appealed.

“It is also settled in this state that, though the justice of the peace had not jurisdiction of the cause of action appealed from, yet, if the subject matter of the action was within the original jurisdiction of the appellate court, and the parties without objecting to the jurisdiction, joined issue and went to trial, they should be held to have waived the objection.”

Where a judgment of a justice of the peace court is appealed to the Court of Common Pleas, the jurisdiction of such Court of Common Pleas is appellate only, and is limited to the cause of action tried in such justice of the peace court. An objection to the jurisdiction of the Common Pleas Court, made in that court after the appeal from the justice court has been taken and before the cause is submitted to the Common Pleas Court for determination, is made within time; and if the justice of the peace had no original jurisdiction of the subject of the action appealed, the cause should be dismissed.

The jurisdiction of a justice of the peace is set out in Section 10223 et seq., General Code. With respect to the' question before us, Section 10231, General Code, in part, reads:

“Justices shall have jurisdiction in actions in which the title to real estate may be drawn in question:

“1. In actions for trespass on real estate where the damages demanded do not exceed one hundred dollars *■ * *. ”

And Section 10232, General Code, says, in the part applicable herein:

“Justices shall not have cognizance of any action:

í i * «* *

“0. In actions in which the title to real estate is sought to be recovered, or may be drawn in question, except in the cases provided for in the next preceding' section. ’ ’ '

As to an action for trespass to real estate, the jurisdiction of the justice of the peace court is limited to damages not to exceed $100; and, under subdivision 6 of Section 10232, General Code, the statute uses the word “may” to indicate what restriction is imposed on such court’s jurisdiction.

The only. Ohio case which is cited by counsel that is similar to the instant action, and the only case wc have found, is Erie Rd. Co. v. Furry, 9 C. D., 850, 18 C. C., 880. The court there held that the burning by the railroad company of “fences, grass, pasture and meadow” was not an action of trespass to realty, but such an action as “involved the title or possession to real estate. ’ ’

A collection of the authorities on the question in the matter before us is found in 115 A. L. R., 504 et seq.

It will be noted that if the instant action is considered as an action for damages for trespass upon real estate under the provisions of Section 10231, General Code, the justice of the peace was without jurisdiction of the action because the amount demanded as damages exceeded the sum of $100, the limit of the jurisdiction of the justice of the peace court in such an action; .and, if it is considered as one not involving trespass upon real estate but one in which the title to real estate maybe drawn in question, the justice of-the peace court, under the provisions of Section 10232, General Code, was without jurisdiction.

We therefore determine that, however the action is considered, the justice of the peace court was without jurisdiction to entertain it.

We further determine that, under the circumstances here present, the appeal to the Common Pleas Court did not have the effect of conferring upon it any greater or different jurisdiction of said cause than was had by the justice of the peace court.

The judgment of the Common Pleas Court, dismissing the appeal for lack of jurisdiction of the justice of the peace court, is affirmed.

Judgmcnt affirmed.

' Doyle and Guernsey, JJ., concur.

Guernsey, P. J., of the Third Appellate District, sitting by designation in place of Stevens, P. J.


author: Per Curiam.

text:
    Maley, Appellee, v. Village of Wyoming, Appellant.

      (No. 7347
    Decided February 20, 1951.)

      Mr. Fred W. Murphy, for appellee.

      Mr. Robert G. McIntosh, for appellant.
   Per Curiam.

Plaintiff recovered a verdict and judgment for damagés for personal injuries suffered in a fall she received in stepping off the sidewalk onto the metal cover of a catch basin maintained by the defendant in. the. space-between-the-curb and the sidewalk of. its public street. The appeal is on questions of law.

No claim of original, structural defect amounting to an absolute nuisance is made, but rather plaintiff seems to proceed upon the theory of qualified nuisance dependent upon the negligence of the defendant in permitting the cover to remain out of position so that it would tip when stepped upon, thereby-creating a potentially dangerous and unreasonable risk of harm, which in due course injured the plaintiff.

The duty resting upon the municipality arises by-virtue of Section 3714, General Code.

In City of Cleveland v. Amato, 123 Ohio St., 575, 176 N. E., 227, in paragraph one of the syllabus, it is stated:

“The duty imposed upon municipalities by the provisions of Section 3714, General Code, is the exercise of ordinary care to keep it's streets, sidewalks, and other public ways open, in repair and free from nuisanee. Liability for damages for failure to perform such duty cannot arise except upon proof either that its agents or officers actually created the faulty condition from which the injury resulted, or that it had notice thereof, actual or constructive.”

And, at page 577, the court said: ‘‘Liability of a, municipality arises only upon proof that its agents or officers actively created the faulty condition, or that it was otherwise caused and the municipality had actual or constructive notice of its existence.”

The evidence discloses that the metal cover when properly in place was seated on a metal collar, and was fitted on the underside with a lug designed to be inserted in a slot in the collar and turned under a flange thereon, locking it in place. When thus seated, it would not tip when weight was applied to the surface. When the cover was placed in any other than the locked position, it was capable of being tipped, by the application of weight to its surface. It is clear, however, that the cover was not under the exclusive possession and control of the defendant, but exposed to the public generally.

Plaintiff testified it tipped when she stepped opon it, because she heard it bang, and that on arising after having fallen, she put her foot on the cover, and “it moved, it tipped. ’ ’ Another witness testified that another person had fallen in the manhole about a week prior to plaintiff’s fall. There is no evidence in the record of notice, actual or constructive, to the defendant that the catch-basin cover was not in a locked position, as it was designed to be.

On the contrary, the record shows affirmatively that no notice was given to the defendant until after plaintiff’s fall.

In Taylor v. City of Cincinnati, 143 Ohio St., 426, 55 N. E. (2d), 724, 155 A. L. R., 44, it is stated in the fourth and fifth paragraphs of the syllabus:

“Section 3714, General Code, requiring a municipality to keep its streets open, in repair and free from nuisance, does not enjoin upon municipalities a specific legal requirement, but provides a general rule of conduct and makes negligence the basis of liability for its violation, unless an absolute nuisance is proven to exist.

' “The duly resting upon municipal corporations, under Section 3714, General Code, to keep their streets and other public ways open, in repair and free from nuisance, requires only reasonable care and vigilance, in view of all the surroundings, to keep such streets and ways in a reasonably safe condition for travel in the usual and ordinary modes, and does not exact that which is unreasonable or impracticable. Municipal corporations are not insurers of the safety of their public ways, and are liable only for negligence in creating a faulty condition in such ways, or in failing to repair, remove or guard against defects or obstructions therein, after actual dr constructive notice of their existence. The standard of care required to be exercised by municipal authorities in keeping streets in repair and. free from nuisance is that care which persons of reasonable and ordinary prudence exercise under like circumstances and conditions. (City of Cleveland v. Amato, 123 Ohio St., 575, approved and followed.) ”

See, also, Wall, Jr. v. City of Cincinnati, 150 Ohio St., 411, 83 N. E. (2d), 389.

Since no proof of notice, either actual or constructive, to the village, necessary to liability based on negligence, appears in the record, the judgment will be reversed, and final judgment entered in this court for the defendant-appellant.

Judgment reversed.

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